American Federation of Labor

National Labor Relations Board - Board Decisions

May 14, 1958

120 N.L.R.B. 969 (N.L.R.B. 1958)

AMERICAN FEDERATION OF LABOR 969
mons to the "boss' office" is not lessened by the nonexistence of phys-
ically enclosing walls.
In these circumstances, we adopt the Regional Director's recom-
mendations and shall set aside the election and order a second
election.3
[The Board set aside the election of October 10, 1957."]
[Text of Direction of Second Election omitted from publication.]
3 As the Employer's exceptions raise no substantial issues of fact, we reject the Em-
ployer's contention that the issues raised herein should be resolved in an unfair labor
practice proceeding. The Hunko Co., Inc., 117 NLRB 825.
s Accordingly, we find, as did the Regional Director, that it is unnecessary to consider
at this point the disputed issue raised by the Petitioner's assertion that various of the
Employer's supervisors promised wage increases to employees if they voted against the
Petitioner.
American Federation of Labor and Congress of Industrial Or-
ganizations and Field Representatives Federation , Petitioner.
Case No. 5-RC-2 93. May 14, 1958
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Louis S. Wallerstein, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed. Pursuant to a notice
of hearing, oral argument was heard before the Board on April 1,
1958. Both parties were represented by counsel and participated in
the argument.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The petitioning labor organization claims to represent certain
employees of the Employer.
3. The Petitioner seeks a unit of all employees of the Employer's
Department of Organization classified as organizers or field repre-
sentatives . The Employer agrees that, if the Board finds no merit
in its various contentions, the requested unit is appropriate. It main-
tains, however, that the employees involved are managerial employees
who, under Board decisions, are not accorded collective-bargaining
rights either as part of a unit comprising other employees or as
separate units . It also urges that the Board in deciding this issue
should consider the fact that the Employer is a labor organization
engaged in rendering services, on a nonprofit basis, to employees
throughout the Nation and that it would be contrary to the best in-
120 NLRB No. 134.
970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
terests of the labor movement for the AFL-CIO to recognize a union
of its organizers. It also contends that the Board should keep in
mind that, if an election is directed herein, the result will be to encour-
age organizers of international unions to organize with a consequent
danger of promoting "power blocs" of organizers within the inter-
national unions.'
With respect to the latter contentions, we find them to be without
merit. The fact that the Employer is also a labor organization is not
a sufficient basis for disregarding, as to it, considerations applicable
-to other employers under the Act. A similar contention was before
the Supreme Court in Office Employees International Union v.
N. L. R. B.,2 and the Court there stated :
It [the Act] says that the term "employer" includes any labor
organization "when acting as an employer." It follows that
where a labor union takes on the role of an employer the Act
applies to its operations just as it would to any other employer'
The Court, further, stated that it was not "within the Board's dis-
cretion to remove unions as employers from the coverage of the Act
after Congress specifically included them therein." Clearly, then,
the fact that the employer is a labor organization is not a material
consideration here.
The Employer's other argument that the fact that organizers, as
distinguished from other union employees, are involved creates special
problems warranting dismissal of the petition, seems to assume that
extending collective-bargaining rights under the Act to organizers
will impair their effectiveness in discharging their duties and respon-
sibilities and, at least in the case of international unions, will enable
them to exercise undue control over internal union affairs. The Em-
ployer's position is clearly at variance with (1) the finding of the
Act that it is the denial of the right of employees to organize and
bargain collectively that causes industrial strife and unrest and not
the granting of such right and (2) the. express policy of the Act to
.eliminate the causes of such strife and unrest "by encouraging the
practice and procedure of collective bargaining and by protecting the
exercise by workers of full freedom of association, self-organization,
and designation of representatives of their own choosing...."' If
,the Employer is, in effect, taking exception to these findings and
policy, then its arguments should be directed to Congress, not to this
1 The Employer contends also that the Board's decision in Airline Pilots Association,
97 NLRB 929, directed an election in a unit which contained union organizers, should
not be deemed controlling here, because the contentions made here were not litigated in
that case To the extent that this is so, we have considered those contentions on their
merits and as not foreclosed by Airline Ptilots.
2 353 U S 313.
3 353 U. S. 313, 316
* Section 1 of the Act
AMERICAN FEDERATION OF LABOR 971
Board. Furthermore, the Board has long held that "there is no in-
compatibility between the' faithful performance of duty and enjoy-
ment of benefits under the'Act."
We now come to the Employer's primary contention that the or-
ganizers are, in fact, representatives of management and, thus, not
employees entitled to the benefits of the Act.' The Employer con-
cedes that none of the employees heretofore found by the Board to be
managerial had exactly the same duties as -organizers, but it takes
the position that the essential factors upon which the Board relies
in finding employees managerial are present here.
The organizers are part of the staff of the Employer's Department
,of Organization. The headquarters of the Department is in Wash-
ington, D. C., and has a local staff composed of the director of Or-
ganization, 4 assistant directors, 2 professional members, and clerical
employees. Under the supervision of the Washington office are 23
regional offices in various cities in the United States, which offices have
jurisdiction over particular geographical areas. Each region is headed
by a regional director who has under him, in most'instances, an as-
sistant regional director. The organizers are assigned to the various
regions by the Washington office. Their work assignments in the field
are determined by the regional directors and may be either to cover
generally a particular area in the region or to handle some specific
assignment within the region.
On the whole, the organizers spend a majority of their time in or-
ganizing activities, though individual organizers may be assigned to
other tasks which take up a majority, if not all, of their time. The
organizer may conduct an organizing campaign on his own initiative
or on direction of the regional office. He may work alone, or with
-other AFL-CIO organizers, or if the campaign is under the direction
of an AFL-CIO international union, he may work with the organizers
of that international. If several' organizers are assigned to a cam-
paign, one may be selected to coordinate the activities of all.
Organizing activities involve, among other things, talking to em-
ployees, setting up committees of employees in the group being
organized, and distributing throwaways which the organizers them-
selves draft. When the occasion warrants, television and newspaper
advertising may be used. The organizers may also talk with various
persons such as civic leaders in the area where the organizing occurs
in order to create a sympathetic community attitude toward the
campaign and unions' involved.
5 Brooklyn Borough Gas Company, 110 NLRB 18, 22, Bethlehem-Alameda Shipyard, Inc.,
59 NLRB 1525, 1527. Moreover, any fear as to the untoward effect on the labor move-
ment of now granting bargaining rights to organizers overlooks the fact that such rights
were granted by the Board over 6 years ago in the Airtme Pilots case, supra, a precedent
which until now had not been challenged We are not advised, and it is not contended,
,that such ,decision has had any adverse effect on,the functioning of labor organizations.
See, Swift & Company, 115 NLRB 752, 754.
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In those cases where it is deemed advisable to seek a certification
under the provisions of the Act, the organizer will file a petition and
represent the employees both at the hearing, if one is held, and at
the Board election., He may also act on his own initiative with "respect
to unfair labor practice charges.-- If a unit of employees gains recog-
nition from its employer, the organizer may help the'employees to set
up a local, union and, install and instruct its first officers. • He may also
help the 'new' union in , bargaining for, its initial contract with the
company - involved.' Such ,new local may either affiliate directly with
the AFL-CIO or with one of its -international unions. He may, on
request of an'international union, negotiate a contract\for-one of its
locals. I' - rr,, fl. ,:t .- '1,',',;'1 ,1,1 ^ „•- t;
Many 'of 'the organizers' in' the 'requested unit spend. some of their
time 'serving -local 'unions directly- affiliated 'with the AFL =CIO. In
areas where there are many such- unions, an 'organizer may be' as-
signred, td handle such work 'a maj'ority' of his time. ' Serv'icing' 'these
unions involves various duties, such as'negotiatinglcontracts for the
union, which -they-organizer may'sign'.on behalf oVthe AFL-CIO`,
participating in: grievance- and arbitration proceedings; handling
certain strikelproblems,'or'actirig' as a trustee' of a-local-where abuses
have occurred'. 'A number of organizersrhave, since 'the merger of the
AFL and, the'- CIO'' in 1955; 'been engaged ' in merging, various local
central bodies of the two formerly independent' parent federations.
Their responsibility withrrespect •to'this activity involves bringing the
officers of the separate local" bodies together to 'reach agreement"on
merger'and-drafting'of'a, constitution for the new''centrallorganiza-
tioiY. The constitution must be' approved' by the' office of the AFL-
CIO's president''in'Washington'before'it,beconies effective. t=
Article XIII'of the AFL-CIO 'c'onstitution-provides generally that
the` AFL-CIO wishes to encourage its members"and'affiliated'unions
to' participate in community activities: Thus, organizers engage in
such work, serving as union representatives in''community 'organiza-
tions and I encouraging greater union' participation in such groups.
They also may''speak before various-civic groups as-representatives
of the 'AFL-CIO, and ''in conjunction -with'' State 'or local labor
'organizations, they may work on various' legislative matters` - '
"As"stated' above, the organizers are employed' by the, Washington
office' and assigned to the 'various regions where their activities are
under the general direction of the regional director. However, the
very nature of their work militates against close' supervision and,
thus, they of necessity exercise, considerable discretion in doing their
work. Moreover, as'they are all employees of considerable experience,
they are expected to,be able to discharge their responsibilities properly
with a minimum of -supervision. They are, nevertheless, required
to submit to their regional director and the Washington office every
AMERICAN FEDERATION OF LABOR 973
2 weeks a report on. their activities during the period and they are in
frequent contact, either in person or by telephone, with their regional
director. In carrying out their duties, the organizers are required
to incur certain expenditures which- they may either have billed to the
AFL-CIO or pay themselves subject to reimbursement by the AFL-
CIO. These include expenses for hotel rooms or other sleeping accom-
modations and expenses incident to organizing campaigns, such as
printing bills for throwaways, rent for a hall for a union meeting
or for a temporary office. The former expenses are limited to $6.50
a night, absent special permission, and the latter expenses usually
amount to less than $100 unless specific authorization is, granted to
spend a greater sum.- There are other minor expenses, such as toll
telephone calls. ,
We believe that it is clear from the foregoing that the organizers
are the "production" employees of the Employer's Department of
Organization. They are the ones who do the actual organizing and
related work which the Department is primarily responsible for carry-
ing out.' The Board has held, in essence, that managerial employees
are those who formulate, determine, and - effectuate an employer's
policies.' But there is nothing in the record to indicate that, apart
from an occasional recommendations-they play any part in the formu-
lation or, determination of the policy of their Department. In fact,
there are 2 or 3 levels of supervision between the organizers and top
management.
The Employer contends, however, .that the organizers are man-
agerial employees in that (1) they do not work under close immediate
supervision and,-in consequence, exercise wide discretion and responsi-
bility in carrying out their duties; (2) they represent the Employer
to the public; (3) -they may pledge, the, Employer's credit; and (4)
they may engage in collective bargaining and sign agreements on
behalf of the Employer. We disagree. The performance of duties
under little supervision and involving the exercise of considerable
discretion does not necessarily indicate managerial status.1° Neither
4 See article XI and article VIII, section 8 of the Employer 's constitution.
8 See American Broadcasting Company, 107 NLRB 74, 79 ; St . Louis Independent Pack-
ing Company, 67 NLRB ,-543, 547 ; Palace Laundry Dry Cleaning Corporation , 75 NLRB
320, 323.
8 An employee does not necessarily possess managerial status because he makes recom-
mendations which may influence an employers policy or business decisions Titefex, Inc,
103 NLRB 223 , 225 ; see also Puget Sound Power & Light Company, 117 NLRB 1825, 1827;
Westinghouse Electric Corporation , 113 NLRB 337, 339-40; Western Electric Company,
Incorporated, 100 NLRB 420, 422
10 Eastern Corporation, 116 NLRB 329 , 332; The Daily Review, Inc, 111 NLRB 763,
764, A. S. Abell Company, Publishers , 81 _NLRB 82 , 83; Northwestern Bell Telephone
Company, 79 NLRB 549, 552 ; Worthington Pump and Machinery Corporation , 75 NLRB
678, 679. Also, the fact that organizers represent the Employer in proceedings before this
Board would not appear to be indicative of managerial status. See Lumbermen's Mutual
Casualty Co, 75 NLRB 1132, in which the- Board found lawyers who represented their
employer in court ' nqt to be managerial . See also Air Line Pilots Association , 97 NLRB
929, 931, in which lawyers representing their employer in both court and administrative
proceedings were included in a voting group of professional employees.
974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
does the fact that an employee may represent its employer to the
public.ll Furthermore, though we have in many cases 12 found the
authority to pledge an employer's credit to be indicative of managerial
status, we have not done so in cases such as we have here where such
authority is strictly limited and is not regularly exercised.13 As for
the organizers' signing labor agreements as representatives of the
Employer, the Board has long held that the authority to sign an
agreement binding on an employer does not confer managerial status
on an employee.14
Thus, viewed singly, the various factors relied upon by the
Employer are insufficient to support a finding that the organizers are
managerial employees, nor do we believe that such a finding is war-
ranted by considering the work and responsibilities of the organizers
in their totality. For whether these factors are viewed singly or in
combination, they fail to meet the Board's view of what constitutes
managerial status. Moreover, the duties of the organizers are not
materially more complex, nor do they require more judgment or
responsibility than those of other employees heretofore held to be
within the 'coverage of the Act.15 Accordingly, we find that the
organizers are nonmanagerial employees and that there thus exists a,
question concerning, the representation of employees within the
meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. In view of the foregoing, and adopting the agreement of the
parties with respect to the composition of the unit, we find that the
following employees of the Employer constitute a unit appropriate
for purposes of collective bargaining "within the meaning of Section
9 (b) of the Act: All employees of the Employer's Department of
Organization classified as organizers who are not-employed on a tem-
porary basis, excluding all regional directors, assistant regional di.-
rectors, the director of Organization, and all other personnel of the
Department of Organization not classified as organizers.
[Text of Direction of Election omitted from publication.]
11 See Wells Fargo, Carloading . Company, 78 NLRB 419, 420 ( salesmen ) ; Oklahoma State
Union, etc , 92 NLRB 248, 252; Travelers Insurance Company, 116 NLRB 387, 389 (in-
surance adjusters ) ; Northwestern Bell Telephone Company, 79 NLRB 549, 552 (plant
engineers who are frequently called upon to make public contacts for the telephone
company) ; Eljir Co, 108 NLRB 1417, 1420 ( clerks in constant communication with cus-
tomers with regard to filling and scheduling shipments of orders).
12 See, for example, Swift & Company, 115 NLRB 752, 753
13 See St Cloud Rendering Co., 116 NLRB 1069, 1071-72; F. Segari & Co , 114 NLRB
1159, 1161, Wilson & Co., Inc, 97 NLRB 1388, 1391-92; Transit Casualty Company, 83
NLRB '857, 859; Lumbermen's Mutual Casualty Co., 75 NLRB 1132, 1139 , adjusters who
may settle claims up to $2,500, not managerial.
1* See Lumbermen's Mutual Casualty Co., 75 NLRB 1132, where adjusters who reached
final settlements with claimants were held not to be managerial . See also, cases cited in
footnote 13, supra.
16 Oklahoma State Union , etc., 92 NLRB 248, 252 ; Travelers Insurance Company, 116
NLRB 387, 389 (adjusters ) ; Northwestern Bell Telephone Company, 79 NLRB 549, 552
( plant engineers ) ; Lumbermen's Mutual Casualty Co., 75 NLRB 1132, 1134-39 (lawyers).