Pacific Maritime AssociationDownload PDFNational Labor Relations Board - Board DecisionsSep 28, 1970185 N.L.R.B. 780 (N.L.R.B. 1970) Copy Citation 780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pacific Maritime Association and Office and Profes- sional Employees, Local No. 3, AFL-CIO, Peti- tioner . Case 20-RC-9015 September 28, 1970 DECISION AND DIRECTION OF ELECTION BY MEMBERS FANNING, BROWN , AND JENKINS Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Francis W. Hoeber, on October 17 and 28, 1969, in San Francisco, California. Pursuant to an order issued by the Regional Director for Region 20 on December 11, 1969, the record was reopened and hearings held on January 8, 15, and 29, and February 5, 1970, in San Francisco, California, before Hearing Officer Douglas H. Barton. At the close of the hearing on February 5, 1970, and pursuant to Section 102.67 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Regional Director issued an order transferring this case to the National Labor Relations Board for decision. The Employer has filed a brief with the Board. Pursuant to the provisions of Section 3(b) of the Act, as amended, the Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Hearing Officers made at the hearings, and finds that the rulings are free from prejudicial error.' They are hereby affirmed. Upon, the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The labor organization involved claims to repre- sent certain employees of the Employer. 3. A question affecting commerce exists concerning the representation of certain employees of the Employ- er within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 4. The Employer is an association established to represent in labor relations matters member-employers engaged in steamship, stevedoring, and marine termi- ' We find no merit in the Employer's contention that the Hearing Officer's rulings in the remanded hearing refusing to permit introduction of evidence bearing on the issue of an employerwide unit were erroneous and prejudicial The Order Reopening Record was clearly limited to the purpose of adducing additional evidence regarding the duties of certain classifications of employees The Employer was afforded a full opportunity to submit evidence on the scope of unit issue prior to the close of the first hearing on October 28. nal operations on the Pacific Coast. The Employer's principal office, or coast office, is located in San Francisco, California. There are regional, or Area offices, of the Employer in Los Angeles, San Francisco, Portland, and Seattle. The Petitioner seeks to represent a unit of all full- and part-time employees at the Employer's coast office, including paycheck distribu- tors, but excluding confidential employees and employ- ees of the president's office, the treasurer's office, the offshore labor relations office, the coast labor relations shoreside office, the San Francisco Area office, the contract data and research office, the acci- dent prevention department, the administrative depart- ment, the training department, guards and supervisors as defined in the Act.' The Employer contends that all of its employees must be excluded as confidential employees and, therefore, there is no unit appropriate for collective bargaining. Alternatively, the Employer argues that the only appropriate unit is a single employerwide unit , and that the unit petitioned for is based solely on the extent of organization. The Board has long recognized that an employee who directly aids or assists managerial personnel in the formulation, determination, and effectuation of an employer's labor relations policies should not be included in a bargaining unit of rank-and-file employ- ees.' In almost all instances, the Board has considered the question of confidential employees in a context of an employer developing and implementing labor relations policies for its own employees.' In the instant case, one of the Employer's primary functions is to develop and implement labor relations policies on behalf of member-employers affecting employees of member-employers. It is clear from the record that the labor policies that make up the bulk of the Employer's day-to-day activities do not deal with rates of pay, wages, hours of employment, or other terms and conditions of employment and any other subjects of collective bargaining of the Employer's own employees. We have held that employees of labor organizations are not confidential, unless they have legal access to the labor organization-employer's labor relations policies concerning its own employees.' We see no persuasive reason why this standard should not be extended to an employer representing manage- ment interests in collective bargaining. Accordingly, we find that only employees who assist and act in a confidential capacity to persons who formulate, determine, and effectuate management labor relations ' Petition as amended at the hearing, essentially for the purpose of more accurately describing departments the Petitioner considered as being wholly made up of confidential employees ' The B F Goodrich Company, 115 NLRB 721, Ford Motor Company, 66 NLRB 1317, S Blechman & Sons, Inc., 4 NLRB 15 ' See, e g , cases cited, supra Air Line Alois Association, International, 97 NLRB 929 185 NLRB No. 114 PACIFIC MARITIME ASSOCIATION policies affecting directly the Employer's own employ- ees are confidential employees and are excluded from the unit hereinafter found appropriate. As noted above the Employer claims that only a single, employerwide unit is appropriate. The Employer argues that since its relationship with the maritime unions on behalf of member-employers is coastwide in scope, uniformity in collective-bargaining, contract interpretation, and administration is neces- sary and that this requires a high degree of coordina- tion and integration. The Employer also argues that the highly centralized control exercised by the coast office of all Area office operations demonstrates that the Area offices lack the autonomy which would justify their separation from the coast office for pur- poses of representation. All major collective-bargain- ing agreements on behalf of member-employers are developed and negotiated by the coast office, and administered through the Area offices. Functionally, the Employer's activities may be characterized for identification purposes as administrative and opera- tional. The latter, performed primarily by Area office employees, includes preparation of weekly paychecks for longshoremen employed by member-employers within the geographic territory of each Area office, compilation of statistical data of regional activities, allocation of available labor crews among member- employers pursuant to contract terms, implementation of contractually mandated safety programs, and repre- sentation of member employers in their employee grievance proceedings. Administrative activities car- ried on mainly at the coast office includes statistical studies of data collected from Area offices, develop- ment of training and safety programs, accounting and bookkeeping, administration of trust and pension funds, and research and preparation of contract data for future collective-bargaining proposals. The record discloses some interrelationship between Area offices and the coast office in recordkeeping, accident preven- tion programs, and accounting. There does not appear to be any overlap in the operating activities of the Coast and Area offices in the implementation and enforcement of the various collective-bargaining agree- ments. Coast office activities in this respect are prima- rily concerned with coordinating and providing gener- al assistance and support to labor relations administrators in the Area offices. The Employer's Area offices are, to a significant degree , separate entities through which the Employer conducts its operations in the respective geographic territories. With respect to its own employees, the coast office determines labor policy, rates of pay, hours of employ- ment, vacation and health benefits, and holidays. All payroll information is maintained and paychecks are prepared at the coast office. The various activities 781 performed in the Area office are performed subject to separate, immediate supervision of the Area manag- er. He is responsible for day-to-day discipline and effective implementation of Employer policies within his territory, and possesses actual authority to hire, discharge, and promote nonmanagerial employees.' Each Area office department head is administratively responsible to his Area manager, although functionally he is answerable to the coast manager overseeing and coordinating the function of his department. It further appears that there has been very little inter- change of nonmanagerial employees among coast and Area offices, except through promotion to managerial positions. We are satisfied that the Area offices possess signifi- cant autonomy and that the Employer's overall opera- tions are not so integrated as to require employees to exercise their right to organize collectively only on an employerwide basis.7 Under all the circum- stances we find no merit in the Employer's contention that separation of coast and Area offices personnel for purposes of collective bargaining will unduly impede full integration of the Employer's operations to the detriment of its internal administration and its relationship with maritime unions with which it has collective-bargaining agreements. Further, the fact that the Area offices merely effectuate policies estab- lished by the Coast office and the fact that the Coast office provides a variety of services in support of Area operations, does not, in our opinion, defeat the separate identities of the coast and Area offices. In view of the foregoing, and upon the entire record, particularly considering such factors as the degree of autonomy vested in the Area offices, the absence of significant interchange, the lack of geo- graphic proximity of Area offices to each other and to the coast office, and the diverse community of interest between Area and coast personnel, we find 6 See Haag Drug Company, Incorporated, 169 NLRB No. 11, where the Board stated More significant [than centralized administrative control] is whether or not the employees perform their day-to-day work under the immediate supervision of a local manager who is involved in rating employee performance, or in performing a significant portion of the hiring and firing of the employees, and is personally involved with the daily matters which make up their grievances and routine problems It is in this framework that the community of interest of the employees in a single [bargaining unit] takes on significance, for the handling of the day-to-day problems has relevance for all employees in the [bargaining unit], but not necessarily for employees [in other bargaining units] ' NLR.B v Sun Drug Co, Inc., 359 F 2d 408, 413 (CA 3) Since Sec 9 (b) of the Act specifically recognizes the validity of the plantwide unit, the Board has long held that a unit confined to a single manufacturing plant of a particular employer is presumptively an appropriate unit See, e g, Beaumont Forging Company, 110 NLRB 220 When possessing the requisite autonomy, the Board has consistently viewed a single store of a retail chain or a district office of an insurance company the analogue of the single manufacturing plant See, e g , SawOn-Drugs, Inc, 138 NLRB 1032, Metropolitan Life Insurance Company, 156 NLRB 1408 782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that a unit appropriate for collective-bargaining pur- poses need not be limited to all employees of the Employer.' However, having found that the coast office and the various Area offices may be separated for collective bargaining, we nevertheless find that a single unit combining the coast office with the San Francisco Area office represents a "coherent and sensible" grouping for such purposes.' Both offices are located in the same building, both share the same administra- tive services, and both share common rest and relaxa- tion facilities. Unlike the other Area offices, the San Francisco Area office does not have its own central records office. The coast office provides these services within the geographic territory of the San Francisco Area office. As a result, the staff of the San Francisco Area office is substantially smaller than the staffs of other Area offices and the San Francisco Area office personnel work more closely in their day-to- day operations with coast office employees. According- ly, and in view of the intimate geographic proximity of the two offices, the small complement of employees in the San Francisco Area office, and the substantial integration of normal Area office activity into the coast office, we shall direct an election in a unit comprised of the Employer's coast and San Francisco Area office and clerical employees. We agree with the Employer's contention that the San Francisco paycheck distributors do not have a substantial community of interest with office and clerical employees of the Employer. The sole responsi- bility of the paycheck distributors is to disburse weekly ° The Employer's claim that the bargaining unit sought by Petitioner is based solely upon the extent of organization is without merit Section 9(c)(5) of the Act merely prohibits the establishment of a bargaining unit which would not be appropriate under traditional criteria apart from extent of organization Metropolitan Life Insurance Company, 156 NLRB 1408 , 1415 In any event, the fact that the union, in petitioning for a particular unit, may have been motivated by the extent to which it had organized is immaterial so long as the Board in making its determina- tion of the appropriate unit does not give controlling weight to that fact Allied Stores of New York, Inc d/b/a Stern's Paramus, 150 NLRB 799 ' State Farm Mutual Automobile Insurance Company, 158 NLRB 925. paychecks to longshoremen employed by member employers. These duties are performed at strategically located offices on the docks. All paycheck distributors are part-time employees, and the record indicates that all are either regularly employed on a full-time basis in unrelated work, retired, or students. All paycheck distributors are hourly paid and receive no other employee benefits; all other employees of the Employer are salaried and receive certain health and vacation benefits. The paycheck distributors do not work at the Employer's offices. They have separate supervision and do not interchange with other employ- ees of the Employer. In view of the absence of inter- change, separate supervision, and lack of community of interest, we shall exclude the San Francisco pay- check distributors from the unit of office and clerical employees of the Employer's coast and San Francisco Area offices. On the basis of the foregoing and the entire record in this case, we find the following employees constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act: All office and clerical employees of the Employ- er's coast office, San Francisco, California, and San Francisco Area office, San Francisco, Califor- nia, excluding paycheck distributors, officers, pro- fessional employees, guards and supervisors as defined in the Act, managerial and confidential employees. [Text of Direction of Election10 omitted from publi- cation] '0 In order to assure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all parties to the election should have access to a list of voters and their addresses which may be used to communicate with them Excelsior Underwear Inc, 156 NLRB 1236, NLR.B v Wyman-Gordon Company, 394 U S 759 Accordingly , it is hereby directed that an election eligibility list, containing the same names and addresses of all the eligible voters, be filed by the Employer with the Regional Director for Region 20 within 7 days of the date of this Decision and Direction of Election The Regional Director shall make the list available to all parties to the election No extension of time to file this list shall be granted by the Regional Director except in extraordmai _ circumstances. Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed Copy with citationCopy as parenthetical citation