United Federal Savings and Loan Association of Puerto RicoDownload PDFNational Labor Relations Board - Board DecisionsApr 4, 1974209 N.L.R.B. 1078 (N.L.R.B. 1974) Copy Citation 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. Copy with citationCopy as parenthetical citation