RCA Communications, Inc.

National Labor Relations Board - Board Decisions

Jul 27, 1965

154 N.L.R.B. 34 (N.L.R.B. 1965)

34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Act and they accordingly were included in the unit. The Em-
ployer did not request review of the Decision and the Petitioner was
certified as exclusive representative of the employees in the unit de-
scribed above.
On September 2, 1965, the Regional Director issued a complaint
alleging a violation of Section 8(a) (3) arising out of the discharge
of one of the Employer's sergeants.' The Employer defended on the
ground that the sergeant admittedly discharged for union activity,
was a supervisor rather than an employee under the Act. The hear-
ing before the Trial Examiner was conducted on December 10 and 11,
1964, and the petition herein was filed on January 15, 1965. At the
hearing in this proceeding, the Employer introduced in evidence the
transcript of testimony in the unfair labor practice proceeding for
the purpose of showing the duties and responsibilities of shift super-
visors. It thus appears that both cases present the issue of the super-
visory status of guard sergeants.
On March 10, 1965, Trial Examiner William E. Spencer issued his
Decision in Case No. 28-CA-1091 in which he found that shift super-
visors or sergeants, such as the Charging Party involved therein,
were not supervisors as defined in the Act. As of this date, we are
adopting the carefully considered conclusions of Trial Examiner
Spencer in that case which are set forth in detail in his Decision.'
And upon consideration of the entire record in this case, we have
reached the conclusion, consistent with that arrived at in the unfair
labor practice proceeding, that shift supervisors or sergeants are not
supervisors as defined in the Act and should not be excluded from
the certified unit. We shall accordingly deny the Petition for Clarifi-
cation and Amendment of Certification.
[The Board denied the petition for unit clarification.]
2 Case No. 28-CA-1091
3 Security Guard Service , Inc., 154 NLRB 8.
RCA Communications , Inc. and Operating Engineers Local Union
No. 3 International Union of Operating Engineers , AFL-CIO,
Petitioner. Case No. ?0-RC-6313. July 27,1965
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Hearing Officer William F.
Roche. The Hearing Officer's rulings made at the hearing are free
154 NLRB No. 2.
RCA COMMUNICATIONS, INC. 35
from prejudicial error and are hereby affirmed. Thereafter, the Em-
ployer, the Petitioner, and the Intervenor' filed briefs with the Na-
tional Labor Relations Board.
Upon the entire record in this case, the Board finds :
1. The Employer is a Delaware corporation having its principal
office in New York City, with facilities in various States of the United
States of America and in foreign countries. During the past 12
months the Employer furnished sales or services to customers outside
the State of New York exceeding $50,000 in value. During the past
calendar year, the Employer purchased goods and services from out-
side the State of New York exceeding $50,000 in value. And during
the same period the Employer, at its operation in Guam, provided
services to national defense agencies of the United States Government
valued in excess of $400,000. It is clear from the above, and the Em-
ployer admits, that the Employer's general operations bring it within
the commerce definition of the Act and within the Board's discretion-
ary standards for the assertion of jurisdiction.
The Employer, however, contends that the Board does not have
jurisdiction over its specific operations in Guam. Although conced-
ing that Guam has the same governmental status as the Virgin Islands,
over which the Board has determined that it would assert jurisdic-
tion,2 the Employer asserts that because the Organic Act establishing
the government of Guam 3 provides that no law subsequently enacted
by the Congress shall have force or effect in Guam unless made
specifically applicable "to Guam by name or by reference to 'posses-
sion"' Guam cannot be regarded as a "territory" within the meaning
of that term as used in the Labor Management Relations Act. We do
not agree.
Section 1421(a) of the same Organic Act states that "Guam is
declared to be an unincorporated territory of the United States."
Thus, Congress has expressly declared Guam an "unincorporated terri-
tory," a declaration we are not permitted to ignore. In prior cases we
have held that no distinction can be drawn between "incorporated" and
"unincorporated" territories for the purpose of determining our juris-
diction, and accordingly have asserted jurisdiction over territories,
both incorporated and unincorporated."
The Organic Act in section 1421c(b) further provides that a. com-
mission be established to make a report within 1 year after August 1,
1950, as to which statutes are applicable and which are not applicable
to Guam. On July 31, 1951, the commission rendered its report.'
' The ACA (American Communications Association) intervened on the basis of a show-
ing of interest.
2 Caribe Lumber and Trading Corporation, 148 NLRB 277.
3 48 U S C. sec . 1421 et seq.
4 Ronrico Corporation , 53 NLRB 1137, 1141-1142.
5 H. Doe. 212, 82d Cong 1st sess
36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Among the statutes which the commission indicated should remain
applicable to Guam was the Labor Management Relations Act of 1947.
In the absence of any indication of congressional disagreement with
the findings of the commission, we think it reasonable to assume that
Congress acquiesced in the commission's finding that the Labor Man-
agement Relations Act was applicable to Guam.
Finally, we think that Section 14(c) (1) and (2) of our Act reflects
Congress' intent to include Guam within the coverage of the Act.
Section 14(c) (2) specifically names Guam as a "territory," and this
in our view unmistakably clarifies any ambiguity that might have
otherwise existed as to its status under this Act. Plainly it would have
been anomalous for Congress to have conferred upon an agency or
court of Guam authority under Section 14(c) (1) to assert jurisdiction
over labor disputes in which the Board declines to assert jurisdiction
unless in Congress' view the Board had jurisdiction in the first place
to process labor disputes in Guam falling within the compass of its
normal statutory jurisdiction. For us to hold that our jurisdiction
does not extend to Guam would be for us to create a "no man's land,"
one which Section 14(c) (2) was intended to eliminate, since the sec-
tion confers jurisdiction on an agency or court of Guam only in those
cases where the Board has declined jurisdiction.
Concluding as we do that Guam is a "territory" within the meaning
of the Act, we find that the Employer is engaged in commerce as de-
fined in Section 2(c) of the National Labor Relations Act. As the
Employer's operations satisfy our jurisdictional standards 6 we find
that it will effectuate the policies of the Act to assert jurisdiction
herein.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. The Intervenor contends that its contract with the Employer
constitutes a bar to an election in this proceeding. The contract recog-
nizes the Intervenor as the representative of "all the employees in the
continental United States, Hawaii, and Puerto Rico . . . ." Although
conceding that Guam is not specifically covered in the contract, the
Intervenor asserts that it was the intent of the parties to include all
overseas employees of the Employer and that it would be contrary to
the policies of the Act to exclude a small number of overseas em-
ployees where the union represents all others.
It appears that the Employer began operations in Guam in 1951
and that there has been no effort prior to the instant proceeding to
bring these employees within the scope of the Intervenor's contract.
Moreover, where new groups of employees have been brought within
the scope of the contract in the past, it has been done only after a
6 Siemons Mailing Service, 122 NLRB 81; Ready Mixed Concrete d Materials, Inc., 122
NLRB 318
RCA COMMUNICATIONS, INC. 37
card check or Board election. There has been no card check among
the employees in Guam. The evidence on the record thus negates the
Intervenor's contention that the parties intended to cover employees
in Guam by the execution of the contract. The Board has consistently
held that "to serve as a bar, a contract must clearly by its terms
encompass the employees sought." We see no reason for departure
from this policy in this case. We therefore find that the Intervenor's
contract with the Employer is not a bar to the election. Accordingly
we find that a question affecting commerce exists concerning the rep-
resentation of employees of the Employer within the meaning of Sec-
tions 9(c) (1) and 2(6) and (7) of the Act.
4. The parties stipulated, and we find, that all employees of the
Employer in its Guam operations, excluding all guards, confidential
employees, professional employees, and supervisors, as defined in the
Act, constitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act.
The Employer asserts, and the Petitioner and the Intervenor deny,
that employee Lourdes S. A. Fernandez is a confidential employee
and should therefore be excluded from the unit. Fernandez is a pay-
roll clerk. She prepares payrolls for management and nonmanage-
ment employees. She also maintains the sick leave, absentee, lateness,
and vacation records. In connection with her duties in keeping ab-
sentee and lateness records, she is required to inform the manager
when an employee is late or absent in excess of the standards set by
the Employer. The imposition of punishment for exceeding the stand-
ards is in the discretion of the district manager. The Employer con-
tends that because Fernandez has information regarding management
salaries and because she brings to the attention of management the
records of the delinquent employees, she is a confidential employee.
Under the Board's established criteria, an employee is deemed a
confidential employee only where he assists or acts "in a confidential
capacity to persons who formulate , determine , or effectuate manage-
ment policies in the field of labor relations." 7 Neither an employee's
possession of information regarding management salaries nor her per-
formance of routine clerical duties which may ultimately lead to dis-
ciplinary action by management is enough under the Board's stand-
ards to support a finding that the employee assists and acts in a
confidential capacity to persons who formulate , determine , and effectu-
ate management policies in the field of labor relations. We therefore
find that employee Fernandez is not a confidential employee and
should be included within the unit.
[Text of Direction of Election omitted from publication.]
7 Eastern Camera and Photo Corp., 140 NLRB 569 , 574-575 ; American Beryllium Com-
pany, Inc ., 142 NLRB 457 , 459, footnote 6.