N.L.R.B. v. Allied Products Corp., Richard Bros. Div.

• Decision Date: 28 January 1977
• Docket Number: No. 75-2124,75-2124
• Citation: N.L.R.B. v. Allied Products Corp., Richard Bros. Div., 548 F.2d 644, 94 LRRM 2433 (6th Cir. 1977)
• Parties: 94 L.R.R.M. (BNA) 2433, 81 Lab.Cas. P 13,005 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ALLIED PRODUCTS CORPORATION, RICHARD BROTHERS DIVISION, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 644

548 F.2d 644

94 L.R.R.M. (BNA) 2433, 81 Lab.Cas. P 13,005

NATIONAL LABOR RELATIONS BOARD, Petitioner, v.ALLIED PRODUCTS CORPORATION, RICHARD BROTHERS DIVISION, Respondent.

No. 75-2124.

United States Court of Appeals Sixth Circuit.

Argued Oct. 6, 1976.

Decided Jan. 28, 1977.

Elliott Moore, Deputy Associate Gen. Counsel, N. L. R. B., Paul Spielberg, Richard Cohen, Washington, D. C., for petitioner.

Scott A. Lathrop, Richard L. Marcus, Adams, Fox, Marcus & Adelstein, Chicago, Ill., for respondent.

Before WEICK, EDWARDS, and McCREE, Circuit Judges.

McCREE, Circuit Judge.

The National Labor Relations Board(the Board) seeks enforcement of its order issued June 30, 1975 against Allied Products Corporation(the Company).The Board's order is reported at 218 N.L.R.B. No. 188, 1974-75 CCH NLRB P 15951, 89 LLRM 1441(1975).The Board concluded, Member Kennedy dissenting, that the Company had violated Section 8(a)(1) and (5) of the National Labor Relations Act(the Act), 29 U.S.C § 158(a)(1) and (5), by unilaterally suspending its previously established merit wage review program, and also by refusing to bargain with UAW Local 701 (the Union) concerning two secretarial employees who had been included in the collective bargaining unit.

The Board's order required the Company to cease and desist from unfair labor practices and from "interfering with, restraining, or coercing its employees in the exercise of rights guaranteed them in Section 7 of the Act."The Board's order also required the Company to bargain collectively and in good faith with the union.Finally, the Board ordered the Company to reinstate the merit review program formerly in effect, to apply that program "retroactively from on or about May 3, 1974," and to make whole the employees in the unit by paying them "the differences, if any, between their actual wages and the wages they would have received had the merit review program . . . not been suspended during the above period . . . ."

We agree with the Board that the Company's suspension of its merit review program was an unfair labor practice in violation of § 8(a)(1) and (5).But we do not agree with the Board's determination insofar as it includes the two confidential secretaries in the bargaining unit.Accordingly, enforcement of the Board's order concerning the two secretaries who are clearly confidential employees will be denied.The balance of the order will be enforced, with modifications.

I.THE BOARD'S DETERMINATIONS.

The Company and the Union stipulated, and the Board agreed, that the bargaining unit consists of,

All office clerical employees employed by the Employer at its facility located at 235 East Bacon Road, Hillsdale, Michigan, but excluding all production and maintenance employees, confidential employees, guards and supervisors as defined in the Act, and all other employees.(emphasis added).

The Board found that on December 20, 1973, a majority of the members of the unit selected the Union as their bargaining representative.The two secretaries whose status is disputed voted in that election, but disregard of their votes would not have affected the outcome.

On July 22, 1974, the Regional Director issued a "Decision and Order Clarifying Unit" which specifically included the "secretary to the division general manager" and the "secretary to the vice president of manufacturing and physical resources" in the unit.The Regional Director found that both secretaries performed only routine, non-confidential secretarial work, that the general manager's secretary had no access to confidential mail or office files, and that, except in one instance, neither secretary ever typed or handled any correspondence dealing with contract negotiations, grievances or labor relations.He therefore concluded that neither secretary was sufficiently concerned with labor relations matters to be characterized as a confidential employee.The Board denied review.

At least since September 1974, the Company has refused to bargain with the Union regarding these secretaries.The administrative law judge (ALJ) who considered the unfair labor practice complaint did not discuss the issue whether the two secretaries were confidential employees because no new objections to the Regional Director's decision were made after the Board's earlier denial of review.The Board affirmed the ALJ's determination.

The Board also found that the Company, between 1970 and 1974, had followed a settled practice of evaluating the performance of each full-time clerical employee upon his completion of six months work.Without exception, the Company rewarded each employee so evaluated by wage increases ranging from 10 cents to 25 cents per hour.The Board determined that the wage reviews were sufficiently regular to be considered conditions of employment, and that office clerical employees regarded the reviews as an established procedure affecting compensation.

Shortly before the issuance, over the Company's objection, ¹ of the Board's formal certification of the Union as the bargaining representative of the unit, the Company omitted the regular wage review of employee Rhonda Moore.It was ultimately disclosed that this action represented a deliberate and unilateral decision by the Company to suspend its merit wage review program pending a resolution of the contract negotiations with the Union.The Board concluded that this unilateral suspension of an established condition of employment without notice to and bargaining with the Union violated § 8(a)(1) and (5).

II.THE TWO SECRETARIES WERE "CONFIDENTIAL".

The Board has for many years placed a gloss on § 2(3) of the Act, ² holding that employees who assist and act in a confidential capacity to persons who formulate, determine and effectuate management labor relations policies are "confidential" employees and may be excluded from a bargaining unit.Although they are not themselves "managerial,"they are sufficiently involved in labor relations management that they would be subjected to a potentially irreconcilable conflict of interest between their bargaining representative and their employer.Ford Motor Co., 66 N.L.R.B. 1317(1946);B. F. Goodrich Co., 115 N.L.R.B. 722(1956).We have in the past recognized the need to balance

the right of employees to be represented . . . with the right of the employer to formulate, determine and effectuate its labor policies with the assistance of employees not represented by the union with which it deals.

Westinghouse Elec. Corp. v. N. L. R. B., 398 F.2d 669, 671(6th Cir.1968).

See alsoIllinois State Journal-Register, Inc. v. N. L. R. B., 412 F.2d 37(7th Cir.1969).

Our circuit has therefore endorsed this gloss.

The Board has, with this court's approval, declined to treat secretaries as confidential unless the managers for whom they work are sufficiently engaged in labor-management negotiations to warrant exclusion of their secretaries from the benefits of collective bargaining representation.Westinghouse, supra.Furthermore, the secretaries must enjoy confidential status with respect to those labor relations functions.N. L. R. B. v. Poultrymen's Serv. Corp., 138 F.2d 204, 210-11(3d Cir.1943).Finally, the Board enjoys a wide discretion in the selection of an appropriate bargaining unit, and we may not upset its determination unless it is arbitrary and capricious.N. L. R. B. v. Mock Road Super Duper, Inc., 393 F.2d 432, 434(6th Cir.1968);Packard Motor Co v. N. L. R. B., 330 U.S. 485, 491, 67 S.Ct. 789, 91 L.Ed. 1040(1947).

In spite of those precedents and recognizing the narrow scope of our review, nevertheless we have concluded that the inclusion of employees Salisbury and Rose in the bargaining unit was erroneous.

Miss Salisbury was the sole, personal secretary of Mr. Warstler, the general manager and chief labor relations administrator of the plant.Incredibly, however, the Regional Director specifically found that "there is no evidence that Salisbury in fact assists and acts in a confidential capacity to Warstler" in his labor relations duties, that she"does not have access to Warstler's confidential mail or office files," and that "(t)here is no evidence that Salisbury has ever typed any material or had access to any (grievance or contract negotiation) information . . . ."

These findings were apparently based upon Salisbury's and Warstler's inability to recall, with two exceptions, any particular items which Salisbury had typed or seen.Warstler did testify that Salisbury had typed all labor relations paperwork he generated.That of course includes grievance or contract negotiation materials.And Salisbury never denied that fact, except that she could not recall specific items.Once an employer has demonstrated that a secretary prepares and reads labor relations materials, it need not provide a list of the particular documents that have flowed through the secretary's hands unless the charging party has at least introduced evidence which contests the general statement.

Similarly, Warstler testified that Salisbury opened and read all his mail except that which was labeled "confidential," and had access to all his files except the "confidential" ones.According to his testimony, files and letters were "confidential" only if they concerned company supervisors who were exempt from the coverage of the Act.Salisbury did not define the word confidential, but did say that the only mail which she did not open was that which was marked confidential.She therefore opened mail which appears to be confidential for the purposes of the Board's "confidential employee" doctrine, although it was not confidential under the definition used in her office.Of course, legal rights are determined by substance and not by the labels that parties may use.Union Planters National Bank of Memphis v. United States,426 F.2d 115(6th Cir.1970).

The Board's reliance upon our opinion in Westinghouse to support its inclusion in the...