United Federal Savings and Loan Association of Puerto Rico

National Labor Relations Board - Board Decisions

Apr 4, 1974

209 N.L.R.B. 1078 (N.L.R.B. 1974)

1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Federal Savings and Loan Association of
Puerto Rico and Union Nacional de Trabajadores.
Case 24-CA-3390
April 4, 1974
DECISION AND ORDER DENYING
MOTION AND REMANDING
PROCEEDINGS
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
Upon a charge filed on August 10, 1973, and
amended on August 20, 1973, and October 2, 1973,
by Union National de Trabajadores, herein called
the Union, and duly served on United Federal
Savings and Loan Association of Puerto Rico, herein
called Respondent, the General Counsel of the
National Labor Relations Board, by the Regional
Director for Region 24, issued a complaint on
October 19, 1973, against Respondent, alleging that
Respondent had engaged in and was engaging in
unfair labor practices affecting commerce within the
meaning of Section 8(a)(3) and (1)i and Section 2(6)
and (7) of the National Labor Relations Act, as
amended. Copies of the charge, amendments thereto,
complaint, and notice of hearing before an Adminis-
trative Law Judge were duly served on the parties to
this proceeding.
With respect to the unfair labor practices, insofar
as is material here, the complaint alleges in substance
that during the month of August 1973, following a
hearing in the representation case involving this
Respondent and the Union2 at which both Pedro
Anibal Matos and Rafael Enrique Correa testified,
Respondent withheld salary payments to them for
August 9, 20, and 29, 1973, because they joined and
assisted the Union and engaged in other concerted
activity for the purpose of collective bargaining and
other mutual aid and protection. On October 31,
1973, Respondent filed its answer to the complaint
admitting in part and denying in part the allegations
of the complaint. In said answer, it raised as an
affirmative defense its contention that Matos and
Correa, who work for Respondent as field auditors,
are not employees within the meaning of the Act.
Respondent asserts that the Regional Director for
Region 24, in a Decision and Direction of Election in
Case 24-RC-5115, had found them to be managerial
employees not entitled to the protection of the Act
by excluding the category of field auditor from the
1 This case originally also involved charges of violations of Section
8(a)(3) and (1) regarding two other persons. These were resolved by a partial
settlement agreement between the parties and approved by the Regional
Director for Region 24. They are not involved in the instant case
appropriate unit because "their interests are more
closely related to management."
On November 16, 1973, Respondent filed with the
Chief Administrative Law Judge of the Board a
Motion for Partial Summary Judgment, and on
November 19, 1973, counsel for the General Counsel
filed a statement in opposition thereto. On Novem-
ber 21, 1973, said motion and response were referred
to the Administrative Law Judge to be designated to
conduct the hearing. By order dated November 26
the Regional Director for Region 24 postponed the
hearing indefinitely. Thereafter, the parties filed a
joint motion to transfer to the Board Respondent's
Motion for Partial Summary Judgment in which they
agreed that the charge, second amended charge,
complaint and notice of hearing, answer, motion of
Respondent for partial summary judgment, opposi-
tion of General Counsel to said motion, transfer of
said motion to the Administrative Law Judge, order
postponing hearing indefinitely, partial settlement
agreement, Regional Director's Decision and Direc-
tion of Election in Case 24-RC-5115,3 and transcript
of proceeding in Case 24-RC-5115 and pages 37
through 73 in transcript of prior proceeding in Case
24-RC-4875 (of which it was requested that official
notice be taken in connection with Case
24-RC-5115) constitutes the entire record in this
case and that no oral testimony is necessary or
desired by any of the parties. The parties further
waived a hearing before an Administrative Law
Judge and the making of findings of fact and
conclusions of law and the issuance of a decision by
an Administrative Law Judge, and indicated that
they desired to submit the case for findings of fact,
conclusions of law, and order directly by the Board.
The Board granted the motion and transferred the
proceedings to the Board by order dated December
20, 1973, in which it set a time for the filing of briefs.
None of the parties thereafter filed a brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The parties stipulated and we find that Respondent
is a savings and loan association organized under the
provisions of the Home Owners Loan Association
2 The Respondent and Union were parties to Case 24-RC-5115, and the
hearing was held on July 31 and August 9, 20, 24 , and 29, 1973.
3 Not published in NLRB Decisions and Orders.
209 NLRB No. 168
UNITED FEDERAL SAVINGS & LOAN
Act of 1933. During the relevant period, its annual
gross volume of business exceeded $500,000, and the
deposits from sources from outside Puerto Rico were
in excess of $50,000. The deposits of Respondent are
insured by the Federal Savings and Loan Insurance
Corporation. In view of the foregoing, we find that
Respondent is, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and that
it will effectuate the policies of the Act to assert
jurisdiction herein.
11. THE LABOR ORGANIZATION INVOLVED
The parties agree and we find that the Union is a
labor organization within the meaning of Section
2(5) of the Act.
Ruling on the Motion for Partial Summary
Judgment
As noted above, the Respondent contends that
Pedro Anibal Matos and Rafael Enrique Correa,
who work for Respondent as field auditors, are
managerial employees and as such are not "employ-
ees" within the meaning of the Act. Respondent
argues that the Regional Director, in his Decision
and Direction of Election in Case 24-RC-5115 in
which he excluded field auditors from the unit of all
employees at the Respondent's main office and
branches, concluded that they were managerial.
Respondent takes the position that under the
holdings of N.L.R.B. v. North Arkansas Electric
Cooperative, Inc., 446 F.2d 602 (C.A. 8, 1971),
denying enforcement of 185 NLRB 550, and Bell
Aerospace Company Division of Textron, Inc. v.
N.LR.B., 475 F.2d 485 (C.A. 2, 1973), denying
enforcement of and remanding 197 NLRB 209,4
managerial personnel are not entitled to the protec-
tion of the Act and therefore the complaint in this
case must be dismissed insofar as it relates to Matos
and Correa. The General Counsel argues that the
Board's view has been contrary to that of the courts
and, in any event, the Regional Director did not, in
4 The Board's rationale concerning the coverage of managerial employ-
ees under the Act is set forth in North Arkansas Electric Cooperative, Inc,
185 NLRB 550, enforcement denied 446 F.2d 602 (C A 8, 1971). and Bell
Aerospace Company, Division of Textron. Inc, 196 NLRB 827, in which the
Board denied the employer's motion for reconsideration of its decision in
the Bell Aerospace representation case underlying the 8(a)(5) proceeding
which was before the court of appeals
5 The Board has long excluded from appropriate units as managerial
employees "those who formulate, determine and effectuate an employer's
policies," and in our decision at 196 NLRB 827, we restated our view
(rejected by C.A. 8 in the North Arkansas case) that those concerned with
employee or labor relations should not be afforded the protection of the
Act
6 With due deference to the holdings of the Courts of Appeals for the
Eighth and Second Circuits, supra, we adhere to our views as expressed in
the decisions cited above until such time as the U S Supreme Court has
passed on the matter.
1079
fact, find them to be managerial but only that "their
interests are more closely related to management."
Counsel for the General Counsel notes, further, that
in this respect there was no finding that the field
auditors participated in the formulation, determina-
tion, or effectuation of any company policy, much
less policy with regard to employee or labor
relations.'
We find no merit in the position of the Respon-
dent. Rather, we agree with the General Counsel that
the Regional Director's finding in the representation
case did not amount to a holding that the field
auditors are managerial employees who, under the
decisions of the courts of appeals, supra, would be
excluded from coverage under the Acts The Region-
al Director's discussion of this category is contained
in a brief paragraph 7 and includes no reference at all
to any possible "real or apparent authority to speak
as an `employer' in a labor relations or employee
relations context." 8 Accordingly, we deny the Res-
pondent's motion insofar as it rests on the underlying
ruling of the Regional Director.
Apparently the Respondent contends alternatively,
and the General Counsel disputes, that the testimony
in the transcript of the hearing in Case 24-RC-5115
and at pages 37 through 73 are part of the record
herein, establishes that field auditors are managerial
employees9 to whom the holdings of the courts of
appeals should apply. We disagree with the Respon-
dent in this respect as well.
Working under the direction of the auditor there
are an assistant auditor and two field auditors. The
field auditors conduct various types of audits in the
home and branch offices which are initiated by the
head auditor or at the request of an association
officer. Field auditors report to the auditor, who
directs them where, when, and what duties they are
to perform. There are no employees who work under
the field auditors checking work records, and there is
no evidence that the field auditors are supervisors.
Their offices are on the second floor of the main
location next to the personnel office, but in conduct-
7 The Regional Director 's finding, in full, was "The Petitioner would
include field auditors and the secretary to the head auditor in the unit. The
Employer would exclude them. The parties agree the unit placement of the
secretary to the head auditor should be the same as that of the field
auditors Field auditors perform surprise audits of the records in all
branches throughout the island periodically. Their findings are necessarily
highly confidential . Because of the character of their work I find that their
interests are more closely related to management, thus differing substantial-
ly from all other unit employees , and I shall exclude them from the unit
Banco Creditoy Ahorro Ponceno, 160 NLRB 1504, 1509."
N 196 NLRB at 550.
9 Although not specified in these terms in the joint motion to transfer
this matter to the Board , we construe the stipulation that no oral testimony
is necessary or desired as meaning that the transcript supplied includes all
relevant testimony which any parties may desire to introduce on this
question and that the Board is to rule on this issue.
1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing audits they work in the same general area as
other employees.
Field auditors , as directed , make spot checks, full
audits, and surprise audits; work with bank reconcili-
ations to check for possible errors : check loans where
payments are in arrears; audit mortgage loans to
check whether interest percentage due is collected
and add up the mortgages to determine what the
total thereof is; check certificates of deposit to see
that the interest paid on them is correct and whether
any such certificate is guaranteeing a loan; on
request of a bank manager to the head auditor, check
an unbalance of a teller's box by reviewing all the
transactions the teller carried out that particular day
as reflected on the tape of the teller 's machine and
the papers that are to be entered on the balance
sheet ; check for violations of bank rules by all
personnel , including supervisors and officers; check
savings account records for accuracy ; and audit and
inventory travelers checks. In the mortgage depart-
ment they check all documents and in the tax and
insurance departments they check to see that the
escrow account is maintained . A field auditor usually
goes to the branch offices alone , but the head auditor
accompanies him when a complete audit is made. A
spot check can be completed in half a day , while a
complete audit takes as long as 3 days. Under bank
regulations , the 27 branches are audited not less than
two or three times every 6 months.
The field auditors make reports of their factual
findings to the auditor , who checks their work; their
reports contain no recommendations , they are
confidential , and only the auditor and the board of
directors see them . Even where a branch manager
has requested an audit of a certain employee's
transactions, the field auditor's report may not be
made to that manager but only to the head auditor.
The head auditor makes recommendations to the
board of directors concerning the employee involved,
and if action is to be taken the Board makes its
recommendations to the president , who informs the
employee's supervisor of the decision reached.
From the above, it is apparent that the field
auditors do not fall within the Board 's definition of
managerial employees in any respect . Their work
does not involve participation in the formulation,
determination , or effectuation of policy with respect
to employee relations matters; they have neither real
nor apparent authority to speak for the Employer in
a labor relations or employee relations context; and
there is nothing that would lead any employee
reasonably to believe that they have substantial
responsibilities in this area. They exercise no discre-
tion and make no recommendations . Nothing in this
record suggests any inconsistency or conflict of
interest between their proper performance of their
duties and the implementation of their right to
engage in or refrain from engaging in concerted
activity. Accordingly, although they have interests
different from other employees, they remain "em-
ployees" within the meaning of the Act and we so
find.
As we have rejected the Respondent's contention
that the field auditors were found to be managerial
and/or that the record establishes such status, we
shall deny the Respondent's Motion for Partial
Summary Judgment. Left for determination, then, is
the issue raised by the allegations of paragraphs VI
B, C, and D; VII; VIII; and IX of the complaint that
in August and September 1973 Respondent withheld
the salaries of employees Pedro Anibal Matos and
Rafael Enrique Correa for August 9, 20, and 29,
1973, because they appeared on those dates as
witnesses in the proceeding in Case 24-RC-5115 and
because they joined and assisted the Union and
engaged in other protected concerted activity, there-
by violating Section 8(a)(3) and (1) of the Act, and
the Respondent's denial of those allegations. Inas-
much as the record and stipulation submitted to us
do not contain facts upon which a determination can
be based, we shall remand this case to the Regional
Director for a hearing on this issue.
ORDER
It is hereby ordered that the Motion for Partial
Summary Judgment herein be, and it hereby is,
denied.
IT IS FURTHER ORDERED that a hearing be held
before a duly designated Administrative Law Judge
for the purpose of taking evidence to resolve the
issues herein.
IT IS FURTHER ORDERED that the above-entitled
matter be, and it hereby is, remanded to the Regional
Director for Region 24 for the purpose of arranging
such hearing, and that said Regional Director be,
and he hereby is, authorized to issue notice thereof.
IT IS FURTHER ORDERED that, upon the conclusion
of the hearing, the Administrative Law Judge shall
prepare and serve on the parties a decision contain-
ing findings of fact, conclusions of law, and
recommendations based on the evidence received
pursuant to the provisions of this Order, and that,
following the service of such decision on the parties,
the provisions of Section 102.46 of the Board's Rules
and Regulations, Series 8, as amended, shall be
applicable.