Brotherhood of Locomotive Firemen and Enginemen

National Labor Relations Board - Board Decisions

Feb 5, 1964

145 N.L.R.B. 1521 (N.L.R.B. 1964)

BROTHERHOOD OF LOCOMOTIVE FIREMEN & ENGINEMEN 1521
in the selection of representatives for the purpose of collective bargaining or
the adjustment of grievances.
MISCELLANEOUS WAREHOUSEMEN, DRIVERS, &
HELPERS, LOCAL 986, AFFILIATED WITH THE
INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS
OF AMERICA,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 849 South
Broadway, Los Angeles 14, California, Telephone No. 688-5204, if they have any
question concerning this notice or compliance with its provisions.
Brotherhood of Locomotive Firemen and Enginemen and Grand
Lodge Employees ' Association . Case No. 8-RM-320. Febru-
ary 5, 1964
DECISION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Hearing Officer Bernard
Levine. The Hearing Officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.'
i The Brotherhood, the Employer herein, urges that the National Labor Relations Board
has exclusive jurisdiction In this proceeding, and the Union does not contest the Board's
jurisdiction The considerations appropriate to other employers under the Act apply to a
labor union when it is acting in the capacity of an employer. Ofirce Employees Inter-
national Union, Local 11 v. N.L.I?.B., 353 U.S. 313, 316; American Federation of Labor,
120 NLRB 969, 970. See Section 2(2) of the National Labor Relations Act.
The application of the National Labor Relations Act to the Employer herein with respect
to its employees is not precluded by the fact that as a labor organization the Employer's
membership is employed by employers subject to the Railway Labor Act. Section 2(2) of
the National Labor Relations Act states that "[t]he term `employer' . . . shall not in-
elude any person subject to the Railway Labor Act .. . .. The term "employer" does not
appear and is not defined in the Railway Labor Act, but the term "carrier" is used in its
place. A "carrier" is defined In section 1, first, as "any express company, sleeping car
company, carrier by railroad . . . and any company . . . which operates any equipment
or facilities or performs any service . . . in connection with the transportation, receipt,
delivery, elevation, transfer In transit, refrigeration or icing, storage, and handling of prop-
erty transported by railroad . . . ." Title II of that act extends its coverage to carriers
by air. Patently, the Employer in its relations to its employees herein is not "an employer
subject to the Railway Labor Act."
Section 2(3) of the National Labor Relations Act states that the "term `employee' .
shall not include . . . any individual employed by an employer subject to the Railway
Labor Act . .. .' The employees involved are employed and have their remuneration and
other working conditions determined by the Brotherhood The Board has been administra-
tively advised by both the National Mediation Board and the National Railroad Adjustment
Board that neither has jurisdiction herein because the Brotherhood and its employees do
not qualify as a carrier or as employees of a carrier, respectively, under the Railway Labor
Act. Thus, since the Railway Labor Act is only applicable to carriers and employees of
carriers, and does not regulate labor unions and their employees as such, it is clear that
the National Labor Relations Board has jurisdiction over the parties to this proceeding.
Cf. Air Line Pilots Association, 97 NLRB 929; Bradley Flying Service, Inc., 131 NLRB 437.
145 NLRB No. 143.
734-070-64-vol. 145-97
1522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The labor organization involved claims to represent certain
employees of the Employer.
3. The Employer is an international labor organization represent-
ing firemen and engineers working on railroads in the United States
and Canada. The Employer is also a fraternal benefit society, and
engages in an extensive insurance program for its members. The
Grand Lodge Office at Cleveland, Ohio, is the Employer's adminis-
trative and clerical arm. It has a staff of approximately 97. These
employees have been represented since 1919 in a contract unit com-
prising the Grand Lodge Office by a local independent union known
as the Grand Lodge Employees' Association. Job categories cov-
ered by the various collective-bargaining agreements negotiated by
the parties over the years have not changed significantly. The latest
1-year automatically renewable agreement, effective as of March 1,
1960, was reopened in December 1961 and has been continued on an
interim basis to the present time. The Employer filed its petition
on February 13, 1963.
During the negotiations for a new contract which began in De-
cember 1961, the Employer challenged the continued unit inclusion
of certain of its Grand Lodge employees. These employees, now
alleged to be supervisory, managerial, confidential, technical, or pro-
fessional, at all times have been a part of the contract unit. The unit
has never been the subject of a Board proceeding. The Union con-
tends that the petition should be dismissed under the Board's decision
in The Bell Telephone Company of Pennsylvania 2 because the Em-
ployer does not genuinely question the status of the Union as the
representative of a majority of the Grand Lodge Office employees
in the noncertified unit but filed its petition solely to have the Board
determine the unit placement of certain of those employees.
The record reveals that at no time prior to the hearing did the
Employer question the representative status of the Union, and that
no other union seeks to represent the office employees. The dispute
which culminated in the proceeding now before us had its genesis
at the outset of negotiations for a new contract in December 1961,
when the Employer sought to exclude three employees. The only
variation in the Employer's position throughout the subsequent dis-
cussion was an increase in the number of exclusions sought from 3
to 34.3 There is nothing to indicate that the Employer has any doubts
about its employees' choice of the Union as their representative. In-
deed, it continues to accord the Union recognition on an interim con-
2118 NLRB 371
3In February 1962 the Employer stated it wished to eliminate three positions from unit
coverage . The Union resisted the claim for the exemption In August 1962, as negotia-
tions continued , the Employer requested two more exclusions . Finally, shortly before the
petition was filed in February 1963, some 29 additional exemptions were sought by the
Employer.
BROTHERHOOD OF LOCOMOTIVE FIREMEN & ENGINEMEN 1523
tract basis, and in its petition named the Union as the present repre-
sentative of its employees. Any intimation on the Employer's part
that it might be questioning the representative status of the Union
and might want an election occurred for the first time at the hearing.
However, as we read the record that intimation, rather than consti-
tuting an accurate manifestation of the Employer' s real position,
was born of a desire to avoid dismissal of its petition under Bell
Telephone. In essence , Bell Telephone held that when a petition was
filed under Section 9 (c) of the Act in a contract unit where the union
had never been certified, the union's majority representative status
was not in issue, and neither the employer nor the union wanted an
election because the parties only desired a Board determination of
the status of certain disputed employees, the Board had no statutory
power to make such a determination. Accordingly, the Board con-
cluded in Bell Telephone that it must dismiss the petition under such
circumstances.4 Similarly, here, if Bell Telephone precedent were to
be followed and if-as we believe-the Employer does not really
question the Union's representative status but is instead seeking
Board clarification of the contractual unit, with neither party ac-
tually desiring an election, the instant petition should be dismissed.
We shall not do so, however, because we cannot accept the reasoning
of that case.
Upon careful reexamination and reconsideration of the decision in
Bell Telephone we conclude that there is ample statutory support for
the Board's authority to determine the status of the Grand Lodge
employees at issue even though the Grand Lodge Office is a unit which,
formally, has never been found appropriate by the Board.5 Moreover,
4 The rationale of that decision was that since the Act provides a specific statutory
scheme for resolving questions concerning representation by an election and certification
of a labor organization, Congress has given the Board the concomitant power to regulate
such certification by clarification or amendment of the unit But, Bell Telephone con-
cludes, no similar "legal power" can be derived from the Act with regard to an uncertified
union because its status as employee representative did not evolve through a specific Board
determination as set forth in the Act
6 Although our processes are invoked through Section 9(c) of the Act, we do not view the
presence of specific provisions in Section 9(c) for the handling of certain types of repre-
sentation issues as a negation of all other procedures which the Board might utilize in
dealing with other types of representation situations, for example , as here, to clarify a unit
represented by an uncertified union Indeed , Bell Telephone itself acknowledges that up
to its advent the Board had done so in many cases . See footnote 3 of Bell Telephone
upon which the dissent therein relied . 118 NLRB 371, 372.
Section 9 (b) supplemented by other sections of the Act provides the authority for the
Board to determine the unit placement of disputed categories of employees even though
their representative is not certified Thus, Section 9(b) mandates the Board to make unit
determinations with the objective of assuring employees "the fullest freedom in exercising
the rights guaranteed by [the] Act" Section 9( b) is not made subordinate to Section 9(c),
and no limitation exists on the Board 's Section 9(b) power to define unit composition
other than in Section 9(c) (5) where it is stated that the extent of employee organization
may not be controlling in such a determination . Furthermore, Section 10 ( a) broadly em-
powers the Board to prevent unfair labor practices All of these provisions indicate that
even though Section 9(c) (1) provides some procedures for determining units, the Act con-
tains the authority and direction to permit the development of other approaches achieving
a result consistent with the national policy.
1524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
we believe that the Board, as a major custodian of the national labor
policy, should take all positive action available to eliminate industrial
strife and encourage collective bargaining. To this end the Board has
often determined the placement of employees whose status is in dis-
pute through the procedure of clarifying and modifying unit deter-
minations when circumstances have changed. We see no legally
significant difference in applying similar techniques to facts such
as are present in this case, even though no certification exists.6 If
we were to refuse to determine the unit placement of the contested
employees, we would be exacerbating a dispute which reached us in
the first place because the parties could not settle it themselves. We
do not regard it as our function to compel the parties and the Govern-
ment to engage in the expense of a needless election procedure when
there is no serious doubt of the Union's majority position. Accord-
ingly, the Bell Telephone decision is hereby reversed to the extent
inconsistent herewith.? In view of the parties' long history of bargain-
ing, the Employer's recognition of the Union as the majority rep-
resentative of its employees, and the fact that the Grand Lodge Office
is a unit which is not repugnant to the policies of the Act, we shall
treat the petition herein as, in effect, a motion for clarification and
shall determine the status of the disputed employees in the Grand
Lodge Office unit.'
4. The Employer contends that some 32 job classifications should be
excluded from the contract unit out of an entire complement of ap-
proximately 97 employees.' It states that the positions which it seeks
8It was argued in Bell Telephone that if a unit determination were made without afford-
ing an election to the employees , the employees would be denied any choice of bargaining
representative . However, the Board in its many cases involving accretions to an existing
unit denies self- determination elections to the affected employees See Borg-Warner
Corporation , 113 NLRB 152, 154; Radio Corporation of America, 141 NLRB 1134. It
should also be noted that the absence of a question concerning representation and of a
prior certification are factors which do not uniformly inhibit Board unit determinations.
Thus, in a Section 8(a) (5) proceeding where majority status is established by cardeheck,
unit determinations involving the placement of disputed categories are commonly made.
See also The Absorbent Cotton Company , 137 NLRB 908.
Furthermore , the argument presented in Bell Telephone that if the Board clarified the
unit it would be providing only an "advisory opinion" which could be challenged in a sub-
sequent refusal -to-bargain case is not persuasive . The same challenge to the unit appears
when a refusal-to-bargain charge is filed in a situation where the union has been certified,
but the binding nature of the unit placement remains undisturbed in the unfair labor
practice proceeding.
7 Member Leedom , in accordance with his dissent in the Bell Telephone case and for the
additional reasons given herein, joins in the reversal of that case.
8 Although it is apparent to us from the record as a whole that the Employer does not
question the Union 's majority status, it nevertheless stated it did desire an election in the
unit. Thus , if notwithstanding what we state in our Decision herein the Employer never-
theless still wishes an election , it may make an appropriate motion therefor to the Board.
9 The exceptions sought are the following:
In the president 's department-chief clerk , assistant chief clerk , secretary to the presi-
dent, secretary to the assistant president , promotion director , research and education
director , assistant research and education director , assistant research and education di-
rector No . 2, research and education assistants Nos. 1, 2, 3.
In the general secretary and treasurer 's department-chief clerk , assistant chief clerk,
secretary to general secretary and treasurer , chief accountant -cashier, assistant cashier,
BROTHERHOOD OF LOCOMOTIVE FIREMEN & ENGINEMEN 1525
to exclude are supervisory, managerial, confidential, professional, or
technical, and in most cases allegedly possess at least two of these
indicia. The Union maintains that none of these job classifications
should be removed from the unit.10 The Grand Lodge Office of the
Employer is administratively divided into three sections, namely, the
president's department, the general secretary and treasurer's depart-
ment, and the publications department.
The president's department is comprised of approximately 25 em-
ployees who service the local lodges and field operations of the Em-
ployer in its dealings with the railroads in the United States and
Canada. The three elected officers situated in the Grand Lodge Office
are the international president, the assistant president, and the resi-
dential vice president. Although they occasionally participate in
negotiations, the bulk of their work is to coordinate the overall activi-
ties of the Employer from the Grand Lodge Office. The actual field
work is conducted by 13 vice presidents and 5 alternate vice presidents
who are located throughout the country. National policy objectives
of the Employer are established by an association of the general griev-
ance committees," while matters limited to a particular carrier are
determined by the local general policy committee. Actual negotia-
tions with the carriers are conducted through the local lodges and
subcommittees. Submissions of employee grievances to the National
Railroad Adjustment Board are also pressed at the local level.
Several general organizers and field representatives are classified as
within the president's department. The organizers generally solicit
members for the Employer and the representatives are responsible
for the sales promotion of the Employer's insurance program. Neither
the organizers nor the representatives are located in the Grand Lodge
Office, and none has been represented by the Union nor are they sought
tabulating clerk No 1, assistant tabulating clerk, tabulating assistant No. 1, insurance
actuarial clerk, assistant insurance actuarial clerk, claim clerk, file clerk, railroad retire-
ment clerk, supply clerk, statistical clerk.
In the publications department-secretary to editor and manager, chief clerk, assistant
chief clerk, editorial assistants Nos. 1, 2, 3.
isIn support of this position the Union argues that the bargaining history which has
included all of the classifications should be persuasive. Furthermore, the Union urges
that because the Employer is a labor organization the Board ought to impose a policy
requiring labor organizations, acting as employers, to sustain a greater burden of proof in
any attempt by them to exclude their employees from a bargaining unit.
Although, in certain circumstances when determining the scope of the appropriate unit,
weight is given to bargaining history and to the prior agreement of the parties, such factors
are not determinative of the status of disputed employee categories whose exclusion may be
required because of the statute or for policy reasons. We also find no merit in the Union's
proposal that the Board should adopt a different approach to the resolution of unit dis-
putes when the employer is a labor organization seeking to exclude its employees from
contract coverage. We find no compelling reason for the adoption of such a policy.
n The Employer also has a general policy committee which is comprised of the elected
Grand Lodge officers and the joint relations committee, the latter containing representa-
tives from each of the four geographical districts of the Employer. There are 29 members
on the general policy committee , and it has met at least three times between 1959 and
1963 An insurance promotion committee also functions-it includes the president,
assistant president, and general secretary and treasurer.
1526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to be included within the unit in this proceeding. The research and
education department, discussed below, is also in the president's de-
partment at the Grand Lodge Office.
There are approximately 60 employees in the general secretary and
treasurer's department. The function of this department is to handle
the Employer's financial affairs including the insurance program and
collection of membership dues.
The publications department consists of 13 employees engaged in
the publication of the Employer's magazine, newspaper, and directory.
The president's department: the chief clerk spends a majority of
his time processing the president's correspondence. He is in charge
of the president's department when the president, the assistant presi-
dent, and the residential vice president are not in the Grand Lodge
Office. He assigns work to the correspondence clerks, the utility clerks,
and other employees in the department. He has transferred em-
ployees from one job to another without prior approval of the elected
officers, and has graded employees' job performances with respect to
these transfers. Although the vacation schedules are in part deter-
mined by the contract and the seniority of the employees, the chief
clerk is responsible for maintaining an effective working force and
accordingly resolves any conflicts in requests for lengthy absences.
In addition, he has hired stenographers and on at least one occasion
effectively recommended the dismissal of an employee. He also as-
signs stenographers as needed to other sections within the department
based upon his judgment of their stenographic ability. In view of
the foregoing, we find that the chief clerk in the president's depart-
ment is a supervisor within the meaning of the Act, and should be
excluded from the unit.
The secretary to the president and the secretary to the assistant
president take dictation of memoranda concerning matters to be ne-
gotiated with the Union, have access to the files containing the min-
utes of meetings of the wage commission which conducts collective
bargaining with the Union, and type letters to be sent to other mem-
bers of the wage commission concerning labor relations matters. Since
they assist and act in a confidential capacity to the president and
assistant president, respectively, who formulate, determine, and exe-
cute management policies in the field of employer-employee relations,
we find that both should be excluded from the unit.12
The promotion director administers and coordinates the Employer's
membership drives and insurance sales programs which are carried on
in the field by the organizers and the field representatives, respectively.
The Employer alleges that he is either a supervisory, managerial, or
technical employee.
12 Vulcanized Rubber and Plastics Company, Inc., 129 NLRB 1256.
BROTHERHOOD OF LOCOMOTIVE FIREMEN & ENGINEMEN 1527
The general organizers and field representatives are initially as-
signed by the president or other high elected officers to various terri-
tories located throughout the United States and Canada. The or-
ganizers regularly submit reports of their activities to the Grand
Lodge Office which are first read by the promotion director. If the
report contains information involving the need for additional ac-
tivity in a particular area, the promotion director routinely relays
that information so that available organizers in the area can concen-
trate their efforts in the affected location. However, if the problem
is unusual, the matter is referred to the president or assistant presi-
dent for resolution. The advice given to the organizers by the pro-
motion director concerns the procedures to be followed in represen-
tation disputes and the applicable provisions of the Railway Labor
Act or, infrequently, those of the National Labor Relations Act.
The field representatives, who sell and service the Employer's in-
surance policies, also correspond with the Grand Lodge Office. The
promotion director answers the routine inquiries about the insurance
program and, as in the case of the organizers, the more complex
problems are referred to the president. The promotion director can-
-not change a representative's district without the prior approval of
the president. The dissemination of insurance promotion material
by the promotion director does not involve the special training and
skills which are required for technical employee status. In fact,
some of it is supplied by an outside company.
In appropriate instances the promotion director sends the corre-
spondence to the general secretary and treasurer's department. At
the request of the general secretary and treasurer, the promotion di-
rector may upon occasion obtain field representatives to speak at
various local lodges in order to promote insurance sales.
The approval of the organizers' and representatives' expense ac-
counts is another routine function of the promotion director. The
expense accounts are received monthly, and are checked against daily
report cards previously submitted. If any irregular item appears,
the account is submitted to the president for his decision on its allow-
ance. The promotion director is bonded for $30,000, and in the
absence of the chief clerk also approves the expense accounts of the
vice presidents.
As indicated above, the actual fieldwork is conducted by the 18
vice presidents. The organizers and representatives under them ap-
pear to function independently of the promotion director and the
very nature of the field personnel's work militates against close
supervision by the Grand Lodge Office. The fact that the promotion
,director may occasionally recommend that certain field representa-
tives attend life insurance training institutes does not confer super-
visory status upon him, A managerial employee must formulate,
1528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
determine, and effectuate an employer's policies, but as indicated
above, the promotion director clearly functions within the well-
defined limits of the Employer's predetermined policy. The Board
has long held that an occasional policy recommendation which an
employee may make is not enough to create managerial status.13
It is contended that the promotion director directly supervises two
clerical employees working in the Grand Lodge Office. The assistant
organizing clerk works in the promotion section along with the pro-
motion director. Any directions given to her by the promotion di-
rector are of a minor and routine nature. The remaining employee,
a stenographer, takes dictation from the promotion director. Con-
flicting testimony was presented as to whether the promotion director
has authority to discipline these two other employees in his depart-
ment. However, no instance reflecting such authority was presented.
On the other hand, it is undisputed that he cannot transfer them out
of the department or grant them leave or overtime, and on one oc-
casion when the promotion director' s vacation request conflicted with
that of the assistant organizing clerk, the promotion director was
required to yield because of less seniority.
Thus the record taken as a whole does not support the contention
that the promotion director is a supervisory, managerial, or technical
employee. Accordingly, on the basis of all the testimony, we conclude
that the promotion director should be in the unit.
The assistant chief clerk is alleged to be a supervisory, managerial,
or technical employee. The major portion of his job is devoted to
answering correspondence and writing decisions concerning internal
union (Employer) disputes. He has also drafted an amendent for
the Employer's constitution upon the suggestion of the president. The
record indicates that the content of the correspondence and of the
decisions written by the assistant chief clerk is well within the bounds
of established employer policy. The knowledge of the Employer's
regulations that is needed for the writing of decisions is not the prod-
uct of any formal technical training demanded by the position but
rather results from the present incumbent's accumulated experience
with the Employer.
The limited authority which the assistant chief clerk exercises while
the chief clerk is on vacation is of short duration and does not involve
more than routine direction of work.14 There is no evidence that the
13 Westinghouse Electric Corporation, 122 NLRB 391, 393; American Federation of
Labor and Congress of Industrial Organizations , 120 NLRB 969, 973.
14 The Employer makes the same supervisory contentions with regard to the other assist-
ant clerks . The vacation substitution in most cases is for 4 weeks each year . However, the
operations of the departments are well defined . During the limited periods of absence, the
assistants exercise only routine coordination of their sections , falling short of the re-
sponsible direction contemplated in the statutory definition of a supervisor . Eastern
Camera and Photo Corp., 140 NLRB 569, 572; The F. A. Bartlett Trte Expert Co., 137
p7LRB 501.
BROTHERHOOD OF LOCOMOTIVE FIREMEN & ENGINEMEN 15529
assistant chief clerk otherwise has any authority to adjust grievances,
discipline employees, or effectively recommend the hiring or discharge
of employees. The one instance of the assistant chief clerk directing
work of the eight Grand Lodge Office employees who attended the
Employer's 1959 convention is too isolated to confer supervisory status
upon him. In view of the foregoing, we conclude that the assistant
chief clerk is not a supervisor. Nor is his function that of a man-
agerial or technical employee. Accordingly, he should be included
in the unit.
The research and education section of the president's department
consists of six employees. The work involves the compilation of data
concerning the wages and work rules movements involving the Em-
ployer; the processing of members' grievance submissions and other
issues through various dispute committees to the National Railroad
Adjustment Board and before emergency boards; the arranging of
educational programs for members of the Employer; the preparation
of home study courses for the membership; and the handling of safety
awards. The Employer contends that all six should be excluded from
the unit as technical employees; that two are supervisory and man-
agerial as well; and that another of the six also has professional
status.
The research and education section arranges conferences for the
local lodges in various parts of the country. Employees of the section
go to the area, arrange subjects and speakers, and generally coordinate
the sessions. The section also conducts home study courses. The
material used in such courses is developed and provided by faculty
members of universities and employees in the section merely grade the
answers. The section prepares and distributes bulletins and circulars
covering the Employer's activities. For this purpose, employees of
the section attend various dispute committee meetings and summarize
the decisions announced at those sessions. They also review the form
and language of submissions to the National Railroad Adjustment
Board originating at the local level. Much of the precedent needed
for this editing is obtained from an extensive card index of prior cases
located at the Grand Lodge Office.
The Employer contends that the director of the research and educa-
tion section has the authority to recommend discipline and hiring, to
assign work, to supervise educational conferences, and on his own
initiative to select problems to be researched. The record reveals that
the director distributes the work in the section and changes the assign-
ments when necessary based primarily upon the availability of the
employees for the work. The director testified that he has no authority
to hire or recommend the discharge of employees, or to grant overtime
1530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or resolve their grievances. The record reveals that on one or two
occasions on his field trips the director requested that a stenographer
be hired for temporary work. The temporarily hired stenographer
did not become a Grand Lodge Office employee. If stenographic help
is needed at the Grand Lodge Office the chief clerk is requested by the
director to provide the additional clerical assistance . The record fur-
ther reveals that other members of the section as well as the director
attend and help coordinate the educational conferences. Such co-
ordination is of a routine nature and requires little independent judg-
ment. On the whole, the bulk of the section's work is accomplished
by each of its employees acting relatively independently.
Based upon the entire record, we find that the relationship of the
research and education director to the other employees in the section
is more that of a skilled and experienced group leader than that of a
supervisor .15 As neither he nor his assistant possesses the requisite
statutory authority, we find that they are not supervisors within the
meaning of the Act.
Neither is the director or assistant director a managerial employee.
They do not through the data which they compile and the projects,
in which they engage formulate or determine management policies.
Rather, this material is assessed by the elected officers and the policy
committees and only then evolved into policy. During 1961, the
director worked closely with the assistant president in Washington,
D.C., supplying data to support the Employer's position before the
Presidential Commission conducting hearings on the work rules dis-
pute. Pursuant to requests for information, the director with the
other employees of the section conducted surveys of the local lodges
and compiled and classified the information obtained. Although
the director attended the hearings, he did not participate as a spokes-
man for the Employer but was primarily present so that he might
be called upon quickly to respond to requests for data which might
be needed. One other member of the research and education section
also was in Washington during part of 1961 mimeographing ma-
terials and doing other clerical work for the Employer. We find'
that the director's duties on this assignment were not managerial.
The one employee alleged to be a professional as well as a technical
employee, the assistant research and education director No. 2, has
a master's degree, and has also done other graduate work. However,
his position does not require the extensive educational background'
that the present incumbent happens to possess. Although he has;
produced research of a scholarly nature the qualifications for his:
position are not such as to demand that specialized, advanced knowl-
edge obtained after a prolonged course in institutions of higher learn-
ing-the criterion for professional status under Board standards.
15 Material Service Division, General Dynamics Corp., 144 NLRB 908.
BROTHERHOOD OF LOCOMOTIVE FIREMEN & ENGINEMEN 1531
The character of the work required rather than the individual in-
cumbent's qualifications is the determining factor.16 Accordingly, we
find that the assistant research and education director No. 2 is not
a professional employee.
We also conclude that employees in the research and education
section are not technical employees as alleged. No specialized train-
ing is required for their jobs and no formal training program exists.
It further appears that much of the section's work is routine, and
research techniques which the employees currently possess are learned
on the job. Some of the present employees have in fact advanced
into the section solely by seniority from other, and for the most part,
unrelated positions with the Employer.
Based upon the foregoing, we conclude that all employees, including
the director, of the research and education section should be in the
unit.
The general secretary and treasurer's department: This depart-
ment, under the elected general secretary and treasurer of the Em-
ployer, handles all of the finances including the membership dues from
local lodges and the insurance program. There are 60 employees in
the department.
The chief clerk is alleged by the Employer to be a managerial,
supervisory, and confidential employee. The record indicates that the
chief clerk has had occasion effectively to recommend the hiring of a
keypunch operator and several other female employees. He has dis-
charged three employees without prior consultation with the general
secretary and treasurer. He is responsible for the overall arrange-
ment of the vacation schedules in the department and uses his judg-
ment based upon the proper running of the department to resolve any
conflicts. During 1963, the general secretary and treasurer was
away from the Grand Lodge Office approximately one-third of the
year, and during his absence the chief clerk was solely responsible for
the operation of the department. He consults with section heads and
guides them in resolving various problems which may occur. The
record clearly reveals that the chief clerk exercises considerable inde-
pendent judgment in responsibly directing many of the activities of
the department. We find that he is a supervisor within the meaning
of the Act and should be excluded from the unit because of his super-
visory status.
The assistant chief clerk spends almost all of his time corresponding
with recording clerks and other field personnel answering questions
about various insurance procedures and other financial matters which
may arise. The content of all such correspondence closely adheres to
16 Western Electric Company , Incorporated, 126 NLRB 1346, 1348.
1532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Employer's constitution, rules, and other previously stated policy
and procedures, leaving little room for any independent judgment.
He and another employee allocate membership pins and life member-
ship cards to qualified members of the Employer. The assistant chief
clerk assumes the duties of the chief clerk when the latter is on vaca-
tion or on an audit trip. Although the Employer contends that the
assistant chief clerk has access to and consults the department's per-
sonnel files, it is clear that he in no way assists in determining, form-
ulating, or effectuating the Employer's labor policies. As the record
does not support the contention that the assistant chief clerk is a
managerial, supervisory, or confidential employee he should be in-
cluded in the unit.
The secretary to the general secretary and treasurer has access to
information concerning labor relations with the Union. She takes
dictation concerning these matters from the general secretary and
treasurer who is a member of the Employer's wage commission. She
receives correspondence on this subject from other members of the
wage commission. As in the case of the secretaries to the president
and assistant president, she should be excluded from the unit because
of her confidential relationship to a person who formulates, deter-
mines, and executes the Employer's labor relations policies.
The chief accountant-cashier is alleged to be a supervisory, man-
agerial, and confidential employee. For approximately 6 months of
the year, about 90 percent of the section's work is the preparation of re-
ports which the Employer is required to submit under law. Although
the general secretary and treasurer is required to sign many of the
reports, the record indicates that no corrections or additions are ever
made by him or the chief clerk in the data which is submitted to them.
The chief accountant-cashier is responsible for the operations of the
accounting section. He assigns the bookkeeping and accounting work
to the 10 people in his group. He also instructs other employees in
the section in problems which may arise in their work. In view of
the foregoing, we find that the chief accountant-cashier responsibly
directs the work of the other accounting employees. Accordingly,
he should be excluded as a supervisor from the unit.
The assistant cashier is alleged to occupy a supervisory, managerial,
and confidential status. The record shows that each morning he issues
receipts for all moneys received in the mail. He then makes the
required journal entries. The assistant cashier deposits the money in
the bank, handles bond transactions, maintains other records, and
each evening compiles a daily report of the total assets of the Em-
ployer. He substitutes for the chief accountant-cashier for 1 month
each year when the latter is on vacation. It appears that, upon re-
quest, both he and the chief accountant-cashier provide figures to the
BROTHERHOOD OF LOCOMOTIVE FIREMEN & ENGINEMEN 1533
general secretary and treasurer regarding wage adjustments which
the wage commission may consider in its negotiations with the Union,
However, the Board has long held that merely providing wage data
to a person who determines an employer's labor relations policies
does not by itself confer confidential status upon that employee."
Since the assistant cashier's duties are primarily routine involving
little independent judgment, and since he possesses no supervisory
indicia, he should be included in the unit.
The insurance actuarial clerk is sought by the Employer to be ex-
cluded from the unit on supervisory, managerial, and technical
grounds. This employee rates insurance applicants to determine the
type of policy to be issued. An established insurance table furnishes
substantial guides for these ratings. The bulk of his work involves
corresponding with members of the Employer regarding the direct
billing procedure utilized and transmitting other information which is
within clearly and previously defined employer policy as broadly
set forth by the insurance promoting committee and the general policy
committee. He determines the cash surrender and loan values of the
policies. This involves computing various figures set forth in the
policy and in the appropriate tables. He has received some training
in rating policies in a course given by an insurance company during
December 1962. However, most of the actuarial work is done by
an outside company. We find that the small amount of training which
he has received does not make him a technical employee. There are
approximately 11 employees in the actuarial section. The insurance
actuarial clerk coordinates the vacation schedule for the section and
submits it to the chief clerk for final approval. His distribution of
work in the section involves little independent judgment and no re-
sponsible direction. Nor does the evidence establish that the insurance
actuarial clerk effectively recommends discipline or hiring and firing
in the section. In view of all the foregoing, we find that he is not a
supervisor and should be included in the unit.
The assistant insurance actuarial clerk's duties involve computing
the amount of cash surrender, loans, ratings, and extended insurance.
He also handles correspondence with the Employer's members re-
garding their insurance problems. He accompanied the insurance
actuarial clerk to the training program given in December 1962, and
substitutes for him when the latter is on vacation 1 month each year.
For the same reasons stated with respect to the insurance actuarial
clerk, we find that the assistant should be included in the unit.
The tabulating clerk No. 1 prepares bills for the membership of the
Employer, compiles commission statements for insurance sold by field
insurance sales personnel, maintains a statistical file of dividends
17Federal Telecommunications Laboratories , Inc., 92 NLRB 1395, 1400.
1534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
accumulated by the membership and is responsible for the payment
of those dividends , prepares reports required of the Grand Lodge
Office, and wires boards for the IBM machines. His training involved
8 days advanced study at an IBM school.
The Employer alleges that the tabulating clerk No. 1 is a super-
visory and technical employee. There are approximately 12 ein-
ployees in the tabulating section. The recording clerks and keypunch
operators have detailed knowledge of their jobs, and are primarily
guided by the work schedules which have been in existence in the sec-
tion for many years. There is considerable overlap in the duties per-
formed by such employees who are required to be able to perform all
aspects of the work of the section. Thus there is little supervision
needed and only routine assignments are given to the remaining em-
ployees in the section . The tabulating clerk No. 1 spends almost
all of his time working in the same manner as the other employees.
He may grant time off to employees for personal business, but time
requested beyond a half-day must be approved by the chief clerk. He
has had an occasion to administer tests to three applicants for a key-
punch operator's job. Based primarily upon the test and the opinion
of the chief clerk, the person he recommended was hired . On one oc-
casion, he requested the retention of an employee who was about to
be discharged, and she remained on the payroll. However, he cannot
adjust any grievances or transfer employees out of the section. The
tabulating clerk No. 1 exercises only routine and minimal direction of
the work of the section. We do not find that he possesses sufficient
indicia of supervisory authority as defined by the Act to warrant his
exclusion from the unit.
The assistant tabulating clerk and the tabulating assistant No. 1
perform essentially the same duties as the tabulating clerk No. 1.
The training of all tabulating employees in the wiring of IBM ma-
chines may indicate that they possess certain technical skills not com-
mon to office employees generally . However, since the interests of
all three are closely allied with those of the other unit employees, and
no other union seeks to represent them, they should be included in the
Grand Lodge Office unit."
The claim clerk and the railroad retirement clerk are sought to be
excluded from the unit on the grounds that they are supervisory and
managerial employees. The claim clerk approves the payment of
beneficiary and accident indemnity claims. He is bound by the terms
of the insurance policy, the constitution, and the rules of the Employer
-in determining their allowance . All questionable claims are referred
to the Employer's attorneys. The two stenographers in the claims
is The Budd Company, Automotive Division , Gary Plant, 136 NLRB 1153 , 1155 , Mera,nea
Mining Company, 134 NLRB 1675
BROTHERHOOD OF LOCOMOTIVE FIREMEN & ENGINEMEN 1535
section mail claim forms and collate the forms when they are returned
to the Grand Lodge Office. The claim clerk's direction of them is
merely routine in nature.
The railroad retirement clerk credits accounts of members of the
Employer with respect to the retirement fund. He also prepares
reports to the Railroad Retirement Board for the general secretary
and treasurer in connection with the latter's capacity as national
reporting officer. Information collected from local lodges and com-
mittees is compiled into the annual report. The one stenographer
in the section writes letters of acknowledgment to the subordinate
bodies after the reports and checks are received in the Grand Lodge
Office. The railroad retirement clerk's duties are dictated by the
terms of the Railroad Retirement Act and the Employer's well-
-defined procedures of compliance. His direction of the stenographer
is routine and his duties require little independent judgment. Ac-
cordingly, both the claim clerk and the railroad retirement clerk
should be included in the unit.
The file clerk and the statistical clerk are alleged to be supervisory
and managerial employees, respectively. The file clerk and three
assistant file clerks do essentially the same work. They read and
distribute the mail received in the general secretary and treasurer's
department. The correspondence is put into appropriate folders,
index cards are typed, and, when required, files are transferred to
other sections of the department. The assistants also run errands.
The training given new employees by the file clerk is analogous to
that given by a skilled employee to an inexperienced one, and does
not denote supervisory status.19
The statistical clerk works with financial reports received from
local lodges and other units of the Employer. He prepares reports
to the Internal Revenue Service and the Labor Department, and
corresponds with local lodges to ascertain needed information. In
addition to his general statistical work, he occasionally audits the
books of subordinate units and may suggest certain changes in book-
keeping techniques to conform with generally accepted accounting
procedures. The statistical clerk's duties do not involve formulating
or determining the Employer's policies. Accordingly, we find that
both the file clerk and the statistical clerk should be included in the
unit.
The supply clerk is alleged to be a managerial and supervisory
employee. An assistant supply clerk and a mail clerk also work in
this section. The supply clerk purchases supplies for the Grand
Lodge Office and subordinate bodies. The annual value of the pur-
chased supplies is between $60,000 and $100,000. The supply clerk
' See footnote 15, supra.
1536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pledges the Employer's credit, and rarely consults with the general
secretary and treasurer in purchasing material. He has indepen d-
ently changed suppliers based upon his assessment of quality and
price. We normally exclude as managerial an employee who may
significantly pledge an employer's credit2° The Union, however,
contends that because the supply clerk is not employed by a "profit-
making enterprise" his duties ought to be viewed differently. We
find no merit to this argument. Pledging the credit of an employer
in the above amounts for an administrative office serving over 75,000
members does not appear to involve different functions from those
existing in the "commercial" enterprise. In view of the foregoing
we find that the supply clerk should be excluded from the unit.
The publications department: The secretary to the editor and
manager is alleged to be a confidential employee. The record reveals
that the editor and manager is a member of the wage commission
which negotiates with the Union. The secretary occasionally has
received dictation of memoranda from the editor regarding the Em-
ployer's position in the negotiations. She also files and has access
to minutes of wage commission meetings. It appears that there have
been at least five wage commission meetings in 1963. Since the secre-
tary to the editor and manager clearly acts in a confidential capacity
to a person who formulates and effectuates the Employer's position
in labor relations with the Union, she should be excluded from the unit
as a confidential employee.
The chief clerk is alleged to be a supervisory or managerial em-
ployee. The Employer contends that the chief clerk has the authority
to administer the affairs of the office and directly supervises the edi-
torial section which is comprised of five employees. Exclusion of
three of the five editorial assistants is also sought. The five editorial
section employees compile the magazine which is then given to the
chief clerk who, in turn, arranges the printing details. It appears that
after the editor approves articles for inclusion, the material is given
to the chief clerk to distribute among the editorial section employees,
This assignment is primarily based upon availability for the work.
On some occasions the editor's secretary bypasses the chief clerk, and
gives the work directly to one of the editorial assistants. The Em-
ployer admits that the chief clerk has never disciplined or recom-
mended discipline for any employee. The evidence reveals no in-
stance of the chief clerk's participation in the hiring or discharge
of any employee. The testimony indicates that the editor spends 15
to 20 percent of his time away from the office, and in his absence the
chief clerk is in charge. Arranging details of publication with the
printer of the Employer's magazine occupies 20 to 25 percent of the
20 Eastern Camera and Photo Corp, supra , at p. 572; American Litho/old Corporation,
107 NLRB 1061, 1062.
BROTHERHOOD OF LOCOMOTIVE FIREMEN & ENGINEMEN 1537
chief clerk's time. He is also responsible along with the assistant chief
clerk for sorting the mail which comes to the department. The chief
clerk has no duties in preparing the Employer's newspaper. An
editorial assistant arranges its publication, including the printing de-
tails. The newspaper's circulation equals that of the magazine but
is published biweekly while the magazine appears once a month. We
find that the chief clerk in the publications department possesses
neither supervisory nor managerial status. He should be included
in the unit.
The Employer contends that the assistant chief clerk is a super-
visory, managerial, and confidential employee. Because of his ex-
perience as a bookkeeper, he spends about 25 percent of his time do-
ing the accounting in the department. However, the major portion
of this work is done in the general secretary and treasurer's depart-
ment. Together with the three employees in the circulation' section
he maintains the mailing list of members and other subscribers. A
third circulation employee aids the directory assistant in the prepara-
tion of the manual. The record indicates that the circulation and di-
rectory assistants are experienced in their jobs and require little or
no supervision. The assistant chief clerk also edits the ladies' section
of the magazine. He substitutes for the chief clerk during the latter's,
4-week vacation 21
The allegation that the assistant chief clerk is a confidential em-
ployee is based upon the fact that he provides wage information to
the editor, who is a member of the wage commission. This is in-
sufficient to establish a confidential status 2a The assistant chief clerk
plays no part in the formulating, determining, or effectuating of man-
agement policies. Based upon the foregoing we include the assistant
chief clerk in the unit.
Three editorial assistants are sought to be excluded. It is claimed
that one is a supervisory, managerial, and technical employee. He
writes the lead story in the newspaper, sometimes in conjunction with
the other two editorial assistants. He may assign work to another
employee in the editorial section, but there is no indication that this
is more than a routine distribution of work. It also appears that this
editorial assistant has a degree in business administration. He was
elected alternate editor at the 1959 convention of the Employer in
21 The editor also testified that in his 10 years in the position at least eight employees
have been hired in the department The editor independently did- the hiring in all but two
instances . In one case , he was hospitalized for 8 weeks and the assistant chief clerk and
one editorial assistant jointly hired a stenographer Also, after being directed by the
editor to interview a male applicant , they recommended his retention . However, it clearly
appears that no sustained authority to hire has ever devolved upon the assistant chief
clerk We do not regard the hiring of an employee in an emergency situation and one other
isolated instance of hiring over a period of at least 10 years as an effective demonstration,
of supervisory status. Meijer Supermarkets , Inc., 142 NLRB 513, footnote 8.
22 See footnote 17, supra, and the text to which it relates.
734-070-64-vol. 145-98
1538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contemplation of the present editor's retirement. However, since
none of the duties involved in his prospective job is present in his
current position, we do not consider such duties relevant to our
consideration of the editorial assistant's function.23 From the fore-
going it is clear that the editorial assistant No. 1 is not a supervisory,
managerial, or technical employee, and we include him in the unit.
Editorial assistant No. 2 is alleged to be a supervisory and man-
agerial employee, and editorial assistant No. 3 is sought to be ex-
cluded on the grounds that he has managerial and technical status.
Assistant No. 2 prepares articles for the newspaper, and with assistant
No. 3 is responsible for the layout of the newspaper in the absence
of editorial assistant No. 1. He directs no other employees. Editorial
assistant No. 3 is primarily responsible for articles in the magazine.
He edits a technical section, selecting technical articles each month
for publication. He has a bachelor of science degree. However, in
choosing the article his editorial experience rather than any technical
training is primarily utilized. To the extent that the editorial assist-
ants need help in their jobs, they call upon two general assistants in
the department. As the editorial assistants Nos. 2 and 3 are not
supervisory, managerial, or technical employees, they should be in-
cluded in the unit.
Accordingly, we find that the following employees of the Employer
constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9('b) of the Act:
All office employees at the Employer's Grand Lodge Office in Cleve-
land, Ohio, including the assistant chief clerks, the promotion direc-
tor, all research and education department employees, the assistant
cashier, the tabulating clerk No. 1, the assistant tabulating clerk and
tabulating assistant No. 1, the insurance actuarial clerk, the assistant
insurance actuarial, claim, file, railroad retirement and statistical
clerks, the chief clerk in the publications department, and all the edi-
torial assistants, but excluding the chief clerks in the president's and
the general secretary and treasurer's departments, the secretaries to the
president, assistant president, general secretary and treasurer, and
editor and manager, the chief accountant-cashier, the supply clerk,
guards, and supervisors as defined in the Act.
MEMBER FANNING, dissenting :
In this case the Employer filed a petition for an election-and stated
at the hearing that it desired an election-in the unit of office em-
ployees which had been represented by the Union. Nevertheless, the
23 Insofar as this editorial assistant participated in the hiring of a stenographer during
the editor ' s illness , as discussed in footnote 21, supra, with regard to the assistant chief
clerk, we find, for the same reasons, that supervisory status was not thereby conferred
upon him.
WESTERN WIREBOUND BOX CO. 1539
majority has difficulty with this state of the record as an "accurate
manifestation of the Employer's real position." Therefore, my col-
leagues have decided to treat this Employer petition for election as
a request for clarification of unit, necessitating a reexamination of the
existing Board policy not to clarify units such as this which have
resulted from voluntary bargaining but only those which have re-
sulted from Board certification. It may be that a reexamination of
that policy is now indicated, but I would point out that it is unneces-
sary for a determination of this case.
This is not a case where the parties have stipulated that the Union
is the majority representative of the employees, and, in fact, the
Union's majority status may well be altered by the Board's clarifica-
tion herein. The unit numbers 97; the Employer has challenged 32
positions; and the Board, by clarification, has removed 8 positions
from the contract unit, excluding these as supervisory, confidential, or
managerial employees.
In the circumstances I see no persuasive reason to reach for the
question whether Board policy as expressed in Bell Telephone 24 should
be overruled. Direction of an Election as requested in the petition and
at the hearing is clearly indicated and I would grant it.25 Apparently
my colleagues would also if the Employer would make the request just
one more time.
MEMBER JENKINS took no part in the consideration of the above
Decision.
'A See footnote 2, above.
25 See also General Bow Company, 82 NLRB 678.
Western Wirebound Box Co. and International Woodworkers of
America, Local Union 3-3, AFL-CIO. Case No. 36-CA-19306.
February 6, 1964
DECISION AND ORDER
On October 23, 1963, Trial Examiner Wallace E. Royster issued
his Decision in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial
Examiner 's Decision. He also found that the Respondent had not
engaged in certain other alleged unfair labor practices and recom-
mended dismissal of these allegations of the complaint. Thereafter,
the General Counsel filed exceptions to the Trial Examiner's Deci-
sion and the Respondent filed exceptions and a supporting brief.
145 NLRB No. 148.