America Federation of State County and Municipal Employees

National Labor Relations Board - Board Decisions

Jun 17, 1976

224 N.L.R.B. 1057 (N.L.R.B. 1976)

AMERICAN FEDERATION OF STATE COUNTY AND MUNICIPAL EMPLOYEES
American Federation of State , County and Municipal
Employees , AFL-CIO, and Zwerdhng , Maurer and
Papp ' and Office and Professional Employees In-
ternational Union, Local No 333, AFL-CIO-CLC,
Petitioner Case 9-RC-11400
June 17, 1976
DECISION AND ORDER
BY MEMBERS FANNING, PENELLO, AND WALTHER
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before Hearing Officer James E
Horner After the hearing this proceeding was trans-
ferred to the Board for decision The Employer has
filed a brief
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel
The Board has reviewed the Hearing Officer's rul-
ings made at the hearing and finds that they are free
from prejudicial error They are hereby affirmed
Upon the entire record in this proceeding, the Na-
tional Labor Relations Board finds
1 The Employer is engaged in commerce within
the meaning of the Act, and it will effectuate the
purposes of the Act to assert jurisdiction
2 The labor organization involved is a labor orga-
nization within the meaning of the Act
3 No question of representation of employees of
the Employer affecting commerce exists within the
meaning of Section 9(c)(1) and Section 2(6) and (7)
of the Act
The Employer, American Federation of State,
County and Municipal Employees, (AFSCME), is an
unincorporated association which exists for the pur-
pose of bargaining collectively on behalf of its mem-
bers over wages, hours, and other conditions of work
Its headquarters is in Washington, D C, with 30 area
offices which coordinate activities between the par-
ent organization and its subordinate councils and lo-
cals The alleged joint Employer, Zwerdling, Maurer
and Papp, is a law firm with offices in Detroit, Mich-
igan, and Washington, D C, as well as one recently
established in Columbus, Ohio A L Zwerdling, a
partner in the firm, is AFSCME's general counsel,
and the firm's Columbus office provides legal ser-
vices to AFSCME's area office there
1 The petition was amended at the hearing to include the law firm of
Zwerdhng Maurer and Papp as a joint employer Since we find infra that
it is not a point employer no issue is presented with respect to the assertion
of Board j u-isdiction over law firms
1057
There is no history of collective bargaining with
respect to either employer's Columbus, Ohio, opera-
tions A local of the Office and Professional Employ-
ees International Union, AFL-CIO-CLC, is volun-
tarily recognized by AFSCME as the col-
lective-bargaining representative of the clerical
employees at its Washington, D C, headquarters and
at its Baltimore, Maryland, area office in a combined
unit
The Petitioner seeks a unit of all office clerical em-
ployees of both Employers at their Columbus, Ohio,
office 2 excluding supervisors The parties have stipu-
lated the exclusion of William Garnes, AFSCME's
area director, and Denny Gilbert, an International
representative who deals with public relations and is
represented by another labor organization
The Petitioner contends that AFSCME and
Zwerdling, Maurer and Papp are joint employers,
and that Karen Metzger, secretary to Ronald Janetz-
ke, the law firm's resident attorney, should be includ-
ed in the unit At the time of the hearing, Janetzke
shared office space with AFSCME's area office, his
number was not listed in the telephone directory, and
the law firm was not identified in the building direc-
tory or on the office door However, the firm's Co-
lumbus office was opened February 2, 1976, barely
more than 5 weeks before the hearing
Following testimony, the record was held open to
permit the receipt of further evidence on the joint
employer issue Following submission of an affidavit
from A L Zwerdling and notification from the Peti-
tioner that it did not object to closing the rec-
ord-although not conceding agreement with, or the
truth of, the affidavit-the record was closed Zwerd-
ling avers that the firm's Columbus office was
opened on a tentative basis and that no decision has
been made on continuing the office or its permanent
location The firm and Zwerdling were not aware
that the Columbus office was not listed in the tele-
phone and building directories, nor that its name did
not appear on the office door Zwerdling further
avers the firm intends to make its services generally
available to other attorneys and potential clients
Metzger, the employee in question, was hired fol-
lowing directions from the firm to Janetzke to hire a
legal secretary and her salary and benefits are paid
for by the firm, as are Janetzke's Although Metzger
previously worked for AFSCME, she was hired by
Janetzke only after interviews with three other appli-
cants and his conclusion that she was the most quali-
fied Her work hours are different from the hours
worked by the AFSCME employees, she receives 1
week less vacation than she had received previously,
2 AFSCME s area office and Zwerdling Maurer and Papp s residert at
torney share the same office
224 NLRB No 143
1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and is covered under the firm's optional insurance
plan (which is the same package offered AFSCME
employees) Metzger takes turns with AFSCME em-
ployees in answering the telephone and occasionally
performs office tasks for AFSCME, but it is clear
that her salary, hours, duties, and conditions of em-
ployment are established and controlled by the law
firm
Whether AFSCME is a joint employer of Metzger
is essentially a factual issue turning on the extent of
its control over her 3 Although certain factors, most
particularly the similarity of the work and close rela-
tionship with AFSCME employees and the sharing
of some office tasks, suggest that the law firm and
AFSCME jointly employ Metzger, the record as a
whole convinces us that is not the case As a former
AFSCME employee working in the same small of-
fice, the fact that certain office tasks are currently
shared is not compelling To at least some extent that
is attributable to the fact that the law firm only re-
cently established its office in Columbus, Ohio
Zwerdling is AFSCME's general counsel, not house
counsel, and Janetzke, the resident attorney, has only
recently joined the firm at a distant location It is not
surprising that certain details of his relationship with
AFSCME and its effect on office administration had
not been worked out at the time of the hearing That
does not provide any basis for finding appropriate a
bargaining unit which lumps together AFSCME em-
ployees with those of its general counsel
Metzger was hired and is paid by the law firm and
her work and working conditions are distinct from
those of AFSCME employees and are controlled by
the law firm, not AFSCME We find that Metzger is
not an employee of AFSCME and that AFSCME is
not a joint employer with the law firm of Zwerdling,
Maurer and Papp Accordingly, Metzger may not be
included in a unit with AFSCME employees
Edward Bell is a multilrth operator whom the Peti-
tioner would include in the unit The Employer con-
tends that Bell is, as he testified, a temporary em-
ployee who must be excluded from the unit Bell
testified that he had previously been hired by
AFSCME in 1973 and was laid off in July 1975 and
rehired on a temporary basis for 90 days September
27, 1975, which was later extended for another 90-
day period However, Garnes, the area director, testi-
fied that Bell had previously worked for a subordi-
nate body of the Employer and not for the Employer,
and that he was hired as a temporary employee be-
3 Boire v The Greyhound Corp 376 U S 473 481 (1964)
cause of that experience We see no need to resolve
the conflict, although Bell might not have recognized
the distinction between employment by the parent
body and employment by its subordinate council
Unlike the other employees sought in the unit, Bell
is paid on a weekly basis and receives no fringe bene-
fits Bell was hired as a "special project employee"
for the purpose of an organizing campaign Although
Garnes sought permission to hire Bell as a regular
full-time employee, it was denied Since Bell is em-
ployed for a specific 90-day period which may be
extended for an additional 90 days only if specifical-
ly authorized by the Employer from its Washington,
D C, headquarters, and does not share similar
wages, benefits, or work with other employees
sought, we conclude that he is a temporary employee
and lacks a sufficient community of interest to be
included in the proposed bargaining unit
Patricia Cain is the area director's personal secre-
tary, and assists him generally Her work includes the
preparation of confidential correspondence to be
sent to the Employer's Washington, D C, headquar-
ters Cain is responsible for typing evaluations, rec-
ommendations for employment and pay raises, and
disciplinary warnings Although most labor relations
matters are now handled by the Employer at its
Washington, D C, office, the area director manages
the area office, effectively recommends wages, hiring,
layoff, may order overtime, and sets the hours of em-
ployment Cain acts in a confidential capacity as the
area director's personal secretary, prepares corre-
spondence dealing with labor relations and would
handle collective-bargaining related clerical duties
should that circumstance arise We conclude that she
is a confidential employee and shall exclude her from
the unit 4
The remaining employee, Sandra Eaton, handles
the books and accounts and all financial manage-
ment for the area office The Employer suggests that
she also is a confidential employee However, the
unit would include only a single employee and it is
established Board policy not to direct an election in a
single-employee unit Accordingly, we shall dismiss
the petition
ORDER
It is hereby ordered that the petition in Case 9-
RC-11400 be, and it hereby is, dismissed
4 National Medical Hospitals Inc of San Diego d/b/a Chico Community
Memorial Hospital 215 NLRB 821 (1975) The B F Goodrich Company
115 NLRB 722 (1956)