Pacific Maritime Association

National Labor Relations Board - Board Decisions

Sep 28, 1970

185 N.L.R.B. 780 (N.L.R.B. 1970)

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