Retail Clerks International Ass'n v. NLRB

• Decision Date: 16 August 1966
• Docket Number: No. 19504.,19504.
• Citation: 366 F.2d 642
• Parties: RETAIL CLERKS INTERNATIONAL ASSOCIATION, AFL-CIO, and Retail Clerks International Association, Local 880, AFL-CIO, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

366 F.2d 642 (1966)

RETAIL CLERKS INTERNATIONAL ASSOCIATION, AFL-CIO, and Retail Clerks International Association, Local 880, AFL-CIO, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 19504.

United States Court of Appeals District of Columbia Circuit.

Argued January 17, 1966.

Decided August 16, 1966.

Petition for Rehearing Denied September 27, 1966.

Mr. S. G. Lippman, Washington, D. C., with whom Messrs. Tim L. Bornstein, Washington, D. C., and Joseph E. Finley, Cleveland, Ohio, were on the brief, for petitioners.

Mr. Warren M. Davison, Attorney, National Labor Relations Board, with whom Messrs. Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, and George H. Cohen, Attorney, National Labor Relations Board, were on the brief, for respondent.

Before BAZELON, Chief Judge, EDGERTON, Senior Circuit Judge, and BURGER, Circuit Judge.

BURGER, Circuit Judge.

Petitioners ask us to review and set aside an order of the National Labor Relations Board arising out of alleged violations of Sections 8(a) (5) and (1) of the National Labor Relations Act;¹ the Board in response asks enforcement of the order.

The Board found that the Retail Clerks International Association violated the Act by refusing to bargain with the representative of certain of its employees and by threatening employees with loss of their jobs unless they resigned from the union. The Board further found that Retail Clerks Local 880 had violated Section 8(a) (1) by engaging in coercive conduct with respect to certain of its own employees.

The controversy arises out of efforts of the Agents and Organizers Association (AOA) to organize three categories of union personnel: International Representatives, Council Organizers, and local union business agents.

The International includes 300 locals with over 400,000 members. In the United States and Canada the International is divided into seven organizing divisions. Each division is staffed with International Representatives, whose total number is between 70 and 100. Since most local unions are too small to employ full-time staffs on their own, they are united in District Councils, of which there are 10. These District Councils employ Organizers; Local 880, being large, employs its own staff including the business agents. The central issue in this case is whether the Board had warrant in the record and a reasonable basis in law for deciding that these three categories of Retail Clerks personnel are "employees" within the meaning of the Act.

(1) International Representatives

The functions of the International Representative vary with the particular man, but the main occupation assignment of all of them is initiating organizing campaigns. They also do such related work as making demands of recognition on employers, negotiating contracts, directing strikes, processing grievances, handling NLRB proceedings, and supervising, advising, and assisting local unions. They are hired on a full-time basis and the majority are paid between $75 and $125 per week as a starting salary. They are subject to control by the Division Directors, who choose the organizing targets and with whom weekly reports must be filed, although the skill and experience of the particular International Representative will determine the degree of particularity in the instructions received and required in the reports filed. Even where the Representative has discretion to select a target, the decision to go forward with organizing is discussed with the Division Director and his superiors.

The accuracy of the findings of the Trial Examiner, adopted by the Board, is not contested. Rather, the International contends² that the International Representative is a managerial employee and so not within the scope of the Act.³

The Trial Examiner found that the Representatives were the "production workers" of the union. In doing so, he relied on long-standing Board practice of treating organizational workers very similar to these as employees and refusing to characterize them as managerial employees. See, e. g., Air Line Pilots Ass'n, 97 N.L.R.B. 929 (1951); AFL-CIO, 120 N.L.R.B. 969 (1958); ILGWU, 131 N.L.R.B. 111 (1961); Textile Workers Union, 138 N.L.R.B. 269 (1962). As the International itself complains, "The Board has, ever since the Supreme Court required it to take jurisdiction over employees of labor unions⁴, treated almost all employees of unions as `production workers,' regardless of factual differences." But it argues that the only case in which this Board policy has been reviewed by a court, International Ladies Garment Workers' Union v. NLRB, 339 F.2d 116 (2d Cir. 1964), involved personnel who did not exercise the same discretion they do here. The differences, however, are minimal, and, in any case, the court there implicitly approved the Board holding in AFL-CIO, supra, where the facts are substantially identical with those in this case.

The Board has not developed clear standards for determining what is a managerial employee; there seem, however, to be two tests. The first is whether, even if they do not supervise other workers, their position with the employer presents a potential conflict of interest between the employer and the workers, e. g., employment interviewers who have authority in hiring, New England Telephone, 90 N.L.R.B. 639 (1950). This strand of the managerial employee test is often phrased in a more conclusory manner, i. e., that the employee is closely related to or aligned with the management; such a determination, however, also seems to turn on the possibility of a conflict of interest arising, e. g., timekeepers and expeditors, Bendix Aviation Corp., 47 N.L.R.B. 43 (1943); an office manager and record keeper who has no confidential information about other employees, Burke Brewery, Inc., 54 N.L.R.B. 1061 (1944).⁵

The Board also excludes from the protection of the Act, as managerial employees, "those who formulate, determine, and effectuate an employer's policies," AFL-CIO, supra at 973, and those who have discretion in the performance of their jobs, but not if the discretion must conform to an employer's established policy, Eastern Camera and Photo Corp., 140 N.L.R.B. 569, 571 (1963) (store managers who could set prices are not managerial). The rationale for this Board policy, though unarticulated, seems to be the reasonable belief that Congress intended to exclude from the protection of the Act those who comprised a part of "management" or were allied with it on the theory that they were the one from whom the workers needed protection.

It was reasonable for the Board to decide that the International Representatives do not fall within either of these two formulations.⁶ Their work does not involve the potential clash of loyalties with which the first is concerned. While the International Representatives are occasionally negotiators, they are not negotiators for the International with respect to fellow employees, that is employees of the International. They negotiate only for members of the International who are employees of others. There is, therefore, no potential conflict of interest as there is in the usual managerial case. The Board concedes that if the AOA begins organizing retail clerks, rather than merely organizers of retail clerks, as its constitution now limits it, the potentiality of a similar conflict might exist. The International alleges that the AOA does intend to do this, but the Board is warranted in relying on existing conditions when deciding the nature of an employee's job.

The International rests mainly on the second test, arguing that the Representatives exercise a high degree of discretion and are policy-making officials since they lead organizing campaigns, negotiate contracts, and call strikes. According to Board policy, however, discretion is not the touchstone if it must conform to the employer's established policy; such a definition of employee is a reasonable one, and the Board was warranted in applying it in this case.

The record discloses that most organizing campaigns are initiated on the direction of division directors and those that are not are at least cleared with the Representatives' superiors. Furthermore, the calling of strikes is subject to guidelines laid down in union policy and to the supervision of the International. Strikes must be authorized by the International's Executive Board and the terms of a contract must be approved by the International President — findings that the International does not challenge, except to say the President's veto does not establish a policy.

The Board was justified in concluding that the Representatives exercising even the greatest amount of discretion are not policy-making officials of the International. Furthermore, the Representatives make no decisions which affect employees of International and thus are not the kind of person against whose actions the Board need believe Congress intended to provide the workers protection.⁷

(2) Council Organizers

The International claims that Council Organizers, because they are elected by the District Councils' annual conventions, are not employees. It points to a series of cases in which the Board has excluded elected officials of labor organizations from bargaining units, particularly to the two representation cases decided simultaneously with the instant unfair labor case, Retail Store Employees Union, Local 444, 153 N.L.R.B. No. 16, n. 7 (1965); Retail Store Employees Union, Local 880, 153 N.L.R.B. No. 17, n. 9 (1965). In those cases, however, it seems that the elected officials (of local unions) were excluded because of the nature of their jobs rather than the manner in which the jobs were acquired.

There does not seem to be any reason why the fact of election should determine the status of a worker. The International argues that it is meaningless to require the "elected" to bargain with its electorate;...