832 F.2d 857 (4th Cir. 1987), 86-1199, Prudential Ins. Co. of America v. N.L.R.B.

Docket Nº:86-1199.
Citation:832 F.2d 857
Party Name:PRUDENTIAL INSURANCE COMPANY OF AMERICA, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
Case Date:November 12, 1987
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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832 F.2d 857 (4th Cir. 1987)

PRUDENTIAL INSURANCE COMPANY OF AMERICA, Petitioner,

v.

NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 86-1199.

United States Court of Appeals, Fourth Circuit

November 12, 1987

        Argued April 6, 1987.

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        Daniel M. Gribbon (Jerome Ackerman, Douglas S. Abel, Covington & Burling, Washington, D.C., James J. Burns, William A. Young, Jr., Wallerstein, Goode & Dobbins, Richmond, Va., on brief), for petitioner.

        Karen Ruth Cordry, N.L.R.B. (Rosemary M. Collyer, General Counsel, John E. Higgins, Jr., Deputy General Counsel, Robert E. Allen, Associate General Counsel, Elliott Moore, Deputy Associate General Counsel, Peter Winkler, Supervisory Atty., Washington, D.C., on brief), for respondent.

        Before WIDENER and PHILLIPS, Circuit Judges, and HAYNSWORTH, Senior Circuit Judge.

        WIDENER, Circuit Judge:

        This is a petition of Prudential Insurance Company of America to review an order of the National Labor Relations Board and the Board's cross petition for enforcement. Prudential challenges a representation election based on the propriety of a bargaining unit which included an alleged confidential employee. We hold that the employee was not properly included in the bargaining unit and remand the case with instructions.

        The United Food & Commercial Workers International Union, AFL-CIO-CLC, filed a petition with the Board seeking to represent a unit of office and clerical employees at Prudential's Cape Cod district office located in Hyannis, Massachusetts. These employees, referred to by Prudential as the field service staff, support the Company's sales agents in their selling and service functions. There are several job categories that are involved in these functions: service representative, senior service representative, service assistants, service coordinator, senior service coordinator, and assistant to the district manager. These positions comprise the bargaining unit sought by the Union and approved by the Board. The Company's challenge is directed to the inclusion within the unit of the assistant to the district manager, Patricia Roberts.

        In May 1985, the Board conducted a pre-election hearing. The Company contended that the inclusion of Mrs. Roberts was improper because she was a confidential employee. After hearings, the Board's Regional Director issued a Decision and Direction of Election in which he concluded that Mrs. Roberts was not a confidential employee. The Regional Director's conclusion was based on two alternative findings. First, he found that the district manager does not formulate, determine and effectuate labor relations policies. Second, the Regional Director also found that Mrs. Roberts did not assist and act in a confidential capacity to the district manager. The Company subsequently filed a request for review with the Board, challenging the Regional Director's unit determinations. The Board denied this request based on the Regional Director's finding that the district

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manager does not formulate, determine, and effectuate management labor relations policy. Given this determination, the Board did not comment on the Regional Director's alternate finding.

        On August 28, 1985, the Board's regional office conducted a secret ballot election. The Company unsuccessfully challenged the ballot of Mrs. Roberts. The Board agent rejected Prudential's challenge and refused to impound and segregate her ballot since the Board had already ruled on her eligibility. However, the agent permitted the...

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