Prudential Ins. Co. of America v. N.L.R.B.

Decision Date12 November 1987
Docket NumberNo. 86-1199,86-1199
Citation832 F.2d 857
Parties126 L.R.R.M. (BNA) 3038, 56 USLW 2323, 107 Lab.Cas. P 10,181 PRUDENTIAL INSURANCE COMPANY OF AMERICA, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
CourtU.S. Court of Appeals — Fourth Circuit

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 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 Union's challenge to two votes. Those two ballots were sealed and not counted in the election count. The tally, including the ballot of the assistant to the district manager, was 4-1 in favor of the Union. Prudential objected to both the conduct of the election and the conduct affecting the results of the election, but these objections were rejected by the Regional Director, who certified the Union as the bargaining unit's representative. The Company then requested Board review of the Regional Director's certification of the Union as representative. However, this request for review was denied by the Board on October 29, 1985 as raising "no substantial issues warranting review."

In order to gain judicial review of the Board's certification of the representative, Prudential refused to bargain with the Union. As stated, this case comes to us upon a petition to review the Board's order requiring Prudential to bargain with the Union and its determination that the Company violated Secs. 8(a)(1) and 8(a)(5) of the National Labor Relations Act, 29 U.S.C. Secs. 158(a)(1) and (5), by refusing to do so.

In order to evaluate Prudential's claim that the assistant to the district manager should have been excluded from the field service bargaining unit as a confidential employee, it is necessary for us to examine the relationship between her and the district manager as well as the district manager's responsibilities. With little exception, the facts in this case are not in dispute and the Board's findings are essentially a summary of undisputed evidence. Accordingly, it is appropriate to reproduce the Board's findings concerning the district manager and the assistant to the district manager.

As district manager, Leary oversees the day-to-day operation of the Cape Cod district office. He is responsible for hiring and training new employees, setting their levels of compensation, determining work assignments, scheduling overtime, scheduling vacations, evaluating employees, making disciplinary recommendations, recommending promotions, merit increases and bonuses and resolving day-to-day problems that arise in the office. The collective bargaining agreement between the Employer and the Petitioner covering district agents provides that the district manager is the Employer's representative at Step One of the contractual grievance procedure. While Leary has the authority to respond to grievances at Step One, since he has been at the Cape Cod District office (a year and a half) his practice has been to receive and investigate each grievance, formulate a recommended response and then clear it with VPRM Russo before presenting it to the Petitioner. Leary does not participate either in the preparation for, or the actual negotiations with the Petitioner concerning the district agents' unit. The Employer's labor relations and personnel policies, including compensation plans and levels, and benefits, are established and/or negotiated and managed from the Employer's corporate headquarters in Newark, New Jersey and/or its regional offices, in this case located in Boston, Massachusetts. As district manager, Leary is responsible for ensuring that the Employer's policies are administered in the Cape Cod District office consistently with the Employer's national policy.

Patricia Roberts is the ATTM in the Cape Cod District office. In this capacity, she handles correspondence and clerical work for Leary. Thus, she performs customary secretarial duties, such as typing and filing; she does not take dictation. Roberts maintains files of grievances submitted by the Petitioner and types Leary's proposed and actual responses to them. Roberts types Leary's correspondence with Russo and other Employer representatives and maintains a file of such correspondence in her desk, which is unlocked. Roberts also compiles and types office sales reports and submits them to the appropriate regional office. Roberts types correspondence concerning the employment, compensation, evaluation and discipline of district agents. Roberts has access, as needed, to employees' personal job history files, which are maintained in a locked portion of Leary's desk. She also shares a private telephone line with Leary, but she has never been asked by him to listen in on a conversation. In one instance, at Leary's...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT