Amalgamated Clothing Workers of America

National Labor Relations Board - Board Decisions

Mar 26, 1975

217 N.L.R.B. 98 (N.L.R.B. 1975)

98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Amalgamated Clothing Workers of America,
AFL-CIO, CLC andAmalgamated Clothing Work-
ers Southern Staff Union, Petitioner. Case
2-RC-16050
March 26, 1975
SUPPLEMENTAL DECISION AND
CERTIFICATION OF REPRESENTATIVE
BY MEMBERS FANNING, JENKINS, KENNEDY, AND PENNELO
Pursuant to our Decision and Direction of Election
in the above-captioned case (210 NLRB 928 (1974)) a
secret ballot election was conducted by mail in the unit
described below.' Thereafter, the Employer filed
timely objections to the election. On August 13, 1974,
the Regional Director for Region 2 issued a report
recommending that the objections be, overruled and
that the Petitioner be certified as the unit employees'
collective-bargaining representative.' The Employer
has filed exceptions to that report, and the Petitioner
has filed an answering brief. The Board has reviewed
the record in light of the exceptions and briefs and
hereby adopts the Regional Director's findings and
recommendations.
The Board's original decision in this case specifically
found that a unit of all "label staff employees of the
Employer working in and out of its International Office
located in New York City" was an appropriate unit for
the purposes of collective bargaining. The Employer's
contrary contention that these employees were supervi-
sors was rejected. Member Kennedy, who disagreed
with the majority's conclusion above, also dissents
herein, asserting that the votes of these employees were
challengeable on the supervisory issue. We find no
merit in this position. For we find, to the contrary, that
the votes of the label staff employees were not chal-
lengeable, that the Employer was properly denied the
opportunity to challenge them, and that the election
should not be set aside.
It is the Board's long-established procedure and
practice to deny any party to an election the oppor-
tunity to challenge the ballots of individuals in catego-
ries as to which the Board has already ruled on
eligibility.' This has been announced many times in
i The tally was: nine for, and none against, the Petitioner; there were six
challenged ballots, an insufficient number to affect the results
2 The pertinent portion of the Regional Director's report is attached
hereto and marked "Appendix."
3 E.g, Atlantic Furniture Products Co., Inc, 102 NLRB 1241 (1953),
employees held eligible: The Kleinhans Company, 115 NLRB 627,
628-629 (1956), and Animal Trap Company ofAmertca, 107 NLRB 1193,
1194 (1954), employees held ineligible Although in Animal Trap Company
ofAmerica, supra, the Board found no prejudice in the fact that the Board
agent had allowed three individuals to cast challenged ballots, although they
had been excluded from the unit in the prior Decision and Direction of
Board decisions, as well as in the Board's Field
Manual,' and should be clearly understood by all
Board personnel and by members of the bar who regu-
larly practice before this Board.
In this case the majority of the participating Board
Members had already decided that the label staff em-
ployees are not managerial employees or supervisors
within the meaning of the Act; if that were not so, there
could have been no Direction of Election issued, as the
unit is composed only of such employees. Under these
circumstances, the inquiry by the Regional Director to
the Executive Secretary's Office as to whether to accept
challenges on the very grounds already rejected by the
Board was entirely unnecessary and shows, at best, an
excess of caution; but such an inquiry does not elevate
the matter to a question td-be answered by the Board
Members themselves. Accordingly, the Regional
Director's characterization, i.e., that it was "with
Board approval," is totally irrelevant, and it is im-
material that this purely ministerial matter had not
been discussed with all the Board Members.
Our dissenting colleague attempts to make much of
certain phrases taken from our original decision herein,
construing them as indicating that we left open the
question of the eligibility of individuals within the unit
there found appropriate. This is not the case. For, while
we noted that the record in the instant case was not
clear on the amount of time so expended, we did so in
applying our construction of Westinghouse Electric
Corporation, 163 NLRB 723 (1967), as meaning that,
in the absence of specific evidence that time spent in
supervision was 50 percent or more of working time,
employees with dual functions were entitled to repre-
sentation. Thus, in the original decision herein (210
NLRB 928), after stating (at 929),
.. . as the pickets occasionally hired by them are
not included in the unit herein below found appro-
priate, we find that no danger of conflict of interest
within the unit is presented. We likewise conclude
that the limited exercise of supervisory authority
shown herein does not .so ally the staff members
with the Employer's management ... .
we went on to say (at 930):
Our [dissenting] colleagues refer to the picket-
ing as a "major function" of the union label staff
which here seeks representation, and as involving
a "substantial portion of their time." They charac-
terize the hire and discharge of picketers and the
Election, that would not have been the situation in the instant case where
all voters would have cast challenged ballots, the ballots would not have
been counted until after the challenges were disposed of, and in making such
disposition the Board would be acting contrary to its practice of refusing to
permit relitigation of previously decided matters
4 NLRB Field Manual Sec. 11338.51 (1971)
217 NLRB No. 20
AMALGAMATED CLOTHING WORKERS OF AMERICA 99
overseeing of same -as "regular and frequent" por-
tions of the normal duties of that staff. Apparently
they see in the record specifics which we do not.
As we have indicated, the record is not clear on the
amount of time expended in connection with
picket lines. . . . Duties with respect to picket
lines are certainly "a" function of the staff. We,
however, cannot say on this record that that func-
tion is "major" or constitutes a "regular and fre-
quent" part of normal staff duties, and least of all
that it requires a "substantial portion" of staff
time. By their approach, of course, our
[dissenting] colleagues are in a position to decline
to implement the salutary principle expressed in
the Adelphi [University, 195 NLRB 639 (1972)]
decision, not to deny bargaining to employees sim-
ply because part of their time is spent in the exer-
cise of supervision over nonunit personnel.
. . . The Board has addressed the specific problem
of supervision over temporary workers who are
wholly outside the scope of the unit sought, and
concluded that employees who spend "50 percent
or more of working time performing non-supervi-
sory duties" should not be denied the advantages
of collective bargaining.6 We think the Board
meant in Westinghouse that the evidence should be
quite specific before employees with dual functions
are denied representation because of time spent on
supervision. . . . [Emphasis supplied.]
Our colleagues see no resemblance between the
facts concerning these union label staff employees,
also called "regional directors," and the Adelphi
"director of admissions" and "director of motion
picture studies," or the Westinghouse engineers,
though hire, direction, and discharge of others in-
cident to carrying out a program are a part of the
duties of each, and those affected by this incidental
exercise of supervisory authority-whether casual
picketers, a secretary, students working part time,
or craft employees working on a temporary
basis-present no conflict of interest within the
unit at issue.' In our view, and in these circum-
stances, Section 2(11) does not require dismissal of
this petition or disqualification of individual "staff
employee-regional directors" from voting in the
absence of a showing that over 50 percent of the
time of such employees is or will be required by
supervisory duties. Unless that is shown, they are
entitled to be represented for the nonsupervisory
work for which they were hired. Sequential con-
clusions that picketing is a "major" function and
includes "substantial" time in supervision do not
satisfy recent Board precedent. [Emphasis
supplied.] Clearly these employees have, at certain
times, devoted as much as 100 percent of their
time to consumer boycott activities-for which
they are hired at the national level-but the record
lacks any meaningful basis for concluding that di-
recting pickets, and occasionally organizers, has re-
quired as much as 50 percent of their time.
[Emphasis supplied.] [Accordingly, the majority
found that a question concerning representation
existed and that the unit sought was
appropriate.]
6 See Westinghouse Electric Corporation , supra [163 NLRB 723] at
727.
1 The picketers whom these staff employees supervise are generally
only casual or temporary employees of the Union in their -work as
pickets, and are not within the unit of staff employees "working in and
out of [the Union's] International office located in New York City "
It is quite clear from the above that we determined
that, in the absence of evidence in the record before us
that the union label staff employees spent over 50 per-
cent of the time in supervisory functions, all of these
dual function employees are employees within the
meaning of the Act and were eligible to vote in the
election.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for Amalgamated Clothing
Workers Southern Staff Union, and that, pursuant to
Section 9(a) of the National Labor Relations Act, as
amended, the said labor organization is the exclusive
representative of all the employees in the following
appropriate unit for the purposes of collective bargain-
ing in respect to rates of pay, wages, hours of employ-
ment, or other conditions of employment:
All union label staff employees of the Employer
working in and out of its International office
located in New York City, New York, excluding
all other employees , all office clerical employees,
professional employees , guards, and supervisors as
defined in the Act.
MEMBER KENNEDY, dissenting:
For the reasons stated in the dissent to the initial
Decision in this case, 210 NLRB 928, I would not
certify Petitioner as the representative in the unit in
which the election was conducted. I adhere to the view
that the union label staff personnel are supervisors
within the meaning of Section 2(11) of the Act.
I am of the further view that the Amalgamated, the
Employer herein, was improperly denied the right to
challenge those voters who it contended satisfied the
supervisory criteria set forth in the majority opinion.
Significantly, there was no affirmative finding in the
original majority opinion herein that the "union label
100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
staff personnel" spend less than 50 percent of their time
performing supervisory duties.-Quite the contrary, the
majority states that in their opinion the "record is not
clear on the amount of time expended" in this regard.
Under these circumstances, it was manifest error to
refuse to entertain the challenges. In thousands of
cases, this Board has directed that the ballots of voters
be challenged because the records were less than clear
as to their duties.
Apparently, my colleagues perceive no impropriety
in the erroneous advice to the parties that the Board
had approved the refusal to accept the challenges when
in fact four Members of this Board were not even con-
sulted about the challenges.5 It is one thing to advise
,parties as to the views of the Executive Secretary, but
quite another to advise those parties that the Board has
approved a course of action when in fact four Members
of the Board have not even considered the issue.
The majority errs in stating that it was "entirely
unnecessary" for the Regional Director to have in-
quired as to whether challenges should be accepted by
the Board agent conducting the election. Having found
in the initial Decision herein that the "record is not
clear on the amount of time expended" in hiring and
discharging pickets and overseeing their duties, it is
incorrect to suggest that the Board has already ruled on
the eligibility of all individuals within the union label
staff department. The original majority decision herein
found no more than that a unit of union label depart-
ment personnel is appropriate. That majority decision
further found, in effect, that it could not decide eligibil-
ity issues because the majority could not say on the
record whether "that function [of supervision of the
pickets] is `major' or constitutes a `regular and fre-
quent' part of normal staff duties." The Amalgamated
correctly argues in its exceptions that the refusal to
accept the challenges denied it "the very right created
by the Board's Decision and Direction of Election to
establish disqualification of individuals on the basis of
criteria set forth in the Board' s Decision . Amalgamated
is thus put in a Catch 22 posture." The decision to deny
Amalgamated the procedural right to challenge ballots,
if sustained by a reviewing court, will be dispositive of
5 The Regional Director stated in his Report on Objections:
the substantive issue herein. My colleagues are wrong,
I think, in stating that the ruling that challenges should
not be accepted was a "purely ministerial matter"
which did not require discussion with the Board Mem-
bers. in my view, denial of a party of its right to chal-
lenge the ballots of individuals about whom the record
is found to be deficient is not a "purely ministerial" act.
My colleagues suggest that I make too much of the
phrase appearing in their original Decision that "the
record is not clear on the amount oftime expended" in
hiring and discharging pickets and overseeing their du-
ties. Their repetition of long portions of their original
decision does not and cannot obscure the fact that they
now assert that they definitively ruled on the eligibility
of all union label staff personnel on the basis of a record
which they characterized as "not clear." I regard my
colleagues' claim that they ruled on all eligibility issues
on the basis of a record which is not clear to be legally
indefensible. Query: Did my clairvoyant colleagues rely
on their intuition in deciding the eligibility issues as to
all union label staff personnel?
Nor do I agree with my colleagues that "it is totally
irrelevant" that the parties were erroneously advised
that the Board had approved the refusal to accept chal-
lenges. And I cannot agree with my colleagues' obser-
vation that the Regional Director's "inquiry does not
elevate the matter to a question to be answered by the
Board Members themselves." It is my conviction'that
a question posed by a Regional Director either should
be referred by the Executive Secretary to the Board
Members for an answer, or should be referred back to
the Regional Director without an answer. I think it
improper for the Executive Secretary's Office to pro-
pound answers which are then understood by the Re-
gional Director and the parties to reflect action by a
majority of the Board Members.
It was ill advised for the instructions to have been
issued without consulting all Board Members who par-
ticipated in this case. The Act provides in Section 3(b)
that the Board may delegate its authority to a panel of
three or more Board Members, and the Board may
delegate certain authority in representation matters un-
der Section 9 of the Act to its Regional Directors.
Nowhere in the statute is any provision made for dele-
gation of decision-making authority to the Executive
Secretary's Office.
Prior to the count of the mailed ballots, Counsel for the Employer
informed the Board Agent that he intended to challenge the ballots of
all employees who had voted , basing such challenges on their alleged
supervisory and managerial status. He was told, with Board approval,
that challenges so based would not be accepted inasmuch as the issue
of the status of the employees had been fully litigated and resolved by
the Decision and Direction of Election . [Emphasis supplied ]
My dissent should not be construed as criticism of the Regional Director.
Manifestly, he understood from the telephone conversation that the Board
had directed him to refuse to accept the challenges.
APPENDIX
Prior to the count of the mailed ballots, Counsel for
the Employer informed the Board Agent that he in-
tended to challenge the ballots of all employees who
had voted, basing such challenges on their alleged
supervisory and managerial status. He was told, with
Board approval, the challenges so based would not be
AMALGAMATED CLOTHING WORKERS OF AMERICA
accepted inasmuch as the issue of the status of the
employees had been fully litigated and resolved by the
Decision and Direction of Election . The tally of ballots
showed nine votes for the Petitioner and no votes
against, with six ballots challenged on different
grounds . A majority of the valid votes had been cast for
the Petitioner.
On July 30, 1974 , the Employer filed timely Objec-
tions to the Election , a copy of which was served upon
the Petitioner . The objection alleges that the Regional
Director violated Section 102.69(a) of the Board's
Rules and Regulations by refusing to permit the Em-
ployer to challenge ballots cast in the election.
101
In its objection to the election , the Employer again
contends that all the Union Label Staff employees are
supervisory and managerial, reasserting the position
taken throughout the litigation which heretofor was
considered and decided by the Board in its Decision
and Direction of Election . Thereafter, the Employer
filed a Motion for Reconsideration or Reopening of the
Record, which was denied by the Board in its Order,
dated July 12, 1974. Thus, the Employer is attempting
again to relitigate these same issues.
In view of the foregoing, it is clear that the objections
filed by the Employer are without merit , and I recom-
mend that they be overruled.