Beatrice Foods Co.

National Labor Relations Board - Board Decisions

Jun 18, 1976

224 N.L.R.B. 1341 (N.L.R.B. 1976)

JOHN SEXTON & CO.
John Sexton & Co., Division of Beatrice Foods Co.
and International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca, Local 313, Independent, Petitioner. Case 19-
RC-7852
June 18, 1976
DECISION ON REVIEW
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
On March 9, 1976, the Regional Director for Re-
gion 19 issued a Decision and Direction of Election
in the above-entitled proceeding in which he found,
contrary to the Petitioner, that Ms. Leonard, one of
the office clerical employees it seeks to represent, is a
confidential employee and therefore excluded her
from the unit. Thereafter, in accordance with Section
102.67 of the National Labor Relations Board's
Rules and Regulations, Series 8, as amended, the Pe-
titioner filed a timely request for review of the Re-
gional Director's decision, on grounds, inter alia, that
in concluding that Leonard is a confidential employ-
ee he made findings of fact which are clearly errone-
ous and he departed from officially reported prece-
dent.
On April 12, 1976, by telegraphic order, the re-
quest for review was granted and the election stayed
pending decision on review. The Employer filed a
brief on review.
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 considered the entire record in this
case with respect to the issues under review, includ-
ing the Employer's brief on review, and makes the
following findings:
The Petitioner contends that the record does not
support the Regional Director's finding that Leonard
acts in a confidential capacity to Branch Manager
Robert O'Connor with respect to his labor relations
responsibilities. We agree.
The Employer is engaged in the selling and distri-
bution of food products to the institutional food
market. Its Tacoma, Washington, branch facilities
are alone here involved. The Petitioner, which cur-
rently represents a unit of warehousemen and drivers
at this branch, seeks a separate unit of five office
clerical employees, including Leonard. It is undisput-
ed that Branch Manager O'Connor formulates, de-
termines, and effectuates labor relations policies for
1341
the branch. He has no personal secretary.' The rec-
ord shows that in negotiating with the Petitioner with
respect to their initial contract in 1973 none of the
office clerical employees played any role in assisting
him. In fact, he himself conducted the negotiations,
mostly verbally, by telephone and visits by people
from the Chicago main office. There was practically
no correspondence and, when agreement was
reached, the contract was drafted and typed in the
offices of the Employer's legal counsel. Negotiations
for the 1975 wage reopener were handled in the same
manner.
Leonard performs a variety of office clerical func-
tions and about 10 percent of her time is spent han-
dling personnel matters for O'Connor of the charac-
ter described by the Regional Director, such as
typing employee status changes and placing such
completed forms, as well as handwritten evaluations
and other information, in the personnel files of the
employees. It appears that other office clerical em-
ployees also on occasion have performed duties of
this type. Personnel files are kept locked in
O'Connor's desk. Leonard does not have a key to it.
In typing certain forms requiring information from
an employee's file, only recently was Leonard given
access to the file itself to obtain that information.
The Board has held that mere access to personnel
files is insufficient to invest one with confidential em-
ployee status.2 Here, while Leonard spends part of
her time in the performance of certain routine cleri-
cal functions relating to personnel matters, she has
not been designated as O'Connor's personal secre-
tary and her duties do not involve her in a confiden-
tial capacity with his responsibilities in the negotia-
tion of contracts with the Petitioner. As the facts of
this case, in our opinion, fall short of establishing
that Leonard is at present functioning as a confiden-
tial employee, we shall include her in the unit of of-
fice clerical employees found appropriate.'
Accordingly, we shall remand the case to the Re-
gional Director for Region 19 for the purpose of con-
ducting an election pursuant to the Regional
Director's Decision and Direction of Election, as
modified herein, except that the payroll period to de-
termine eligibility shall be that ending immediately
before the date of this Decision on Review. [Excelsior
footnote omitted from publication.]
i O'Connor indicated that if he were to create a secretarial position in the
future, because of expansion in branch business, he would consider offering
it to Leonard
2 See Chrysler Corporation, 173 NLRB 1046, 1048 (1968)
3 The B F Goodrich Company, 115 NLRB 722 (1956) The cases of Bech-
tel, Incorporated, 215 NLRB 906 (1974), West Chemical Products, Inc, 221
NLRB 250 (1975), and Savage Arms Corporation, 144 NLRB 1323 (1963),
relied on by the Employer in its brief on review, are, in our opinion, factual-
ly distinguishable
224 NLRB No. 191