Hendrick's County Rural Electric Membership Corporation

National Labor Relations Board - Board Decisions

Jan 22, 1980

247 N.L.R.B. 498 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hendricks County Rural Electric Membership Corpo-
ration and Mary M. Weatherman. Case 25-CA-
8921
January 22, 1980
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
On July 17, 1978, the National Labor Relations
Board issued a Decision and Order in the above-
entitled proceeding,' finding that the Respondent had
violated Section 8(a)(1) of the National Labor Rela-
tions Act, as amended, by discharging Mary M.
Weatherman, personal secretary to its general manag-
er, for signing a petition calling for the reinstatement
of an injured employee, and by interrogating another
employee regarding the petition. The Board ordered
Respondent to cease and desist from discharging or
taking other adverse action against any employee for
engaging in protected, concerted activity, and from
coercively interrogating employees concerning such
activity. The Board further ordered Respondent to
reinstate Weatherman to her former job or, should
that job no longer exist, to a substantially equivalent
position, and to make her whole for any loss of
earnings she may have suffered by reason of her
discharge.
Thereafter, Respondent filed a petition for review of
the Board's Order in the United States Court of
Appeals for the Seventh Circuit, and the Board filed a
cross-application for enforcement of its Order. On
July 26, 1979, the court issued its decision,2 which
enforced the Board's Order concerning the 8(a)(1)
interrogation, but reversed and remanded the aspect of
the case dealing with the discharge of Weatherman to
determine whether she was a confidential employee
and therefore not covered by the Act under a different
standard than that used by the Board.
On October 10, 1979, the Board advised the parties
that it had decided to accept the remand, and that
they might submit statements of position with respect
to the issue raised by the remand. Thereafter, the
General Counsel and the Respondent filed statements
of position.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
'236 NLRB 1616.
Hendricks County Rural Electric Membership Corporation v. N.LR.B.,
603 F.2d 25.
' The . F Goodrich Company, 115 NLRB 722, 724 (1956).
247 NLRB No. 68
The issue on remand is narrowly limited to the
alleged confidential status of Weatherman, as the
court concluded that the Board's finding that she was
discharged for participating in protected concerted
activity-signing a petition requesting the reinstate-
ment of an injured employee-was supported by the
evidence.
In our original decision, we found that Weatherman
was not a confidential employee measured against our
traditional standard that such employees are "persons
who assist and act in a confidential capacity to persons
who formulate, determine, and effectuate management
policies in the field of labor relations."' And the court
agreed with our factual determination that, as person-
al secretary to Wallace Dillon, Respondent's general
manager, Weatherman did not act and assist him in a
confidential capacity with respect to labor relations
policies. The court also agreed with our finding that
she did not work in a position equivalent to a
personnel department employee. However, the court
concluded, in light of its interpretation of the Supreme
Court's opinion in N.L.R.B. v. Bell Aerospace Compa-
ny, Division of Textron, Inc., ' that B. F. Goodrich does
not enunciate the correct legal standard for judging
confidential employee status under the Act. Rather,
the court held that the proper criteria to be applied is
whether, by the nature of the employee's duties, the
employee is given by the employer information that is
of a confidential nature, and that is not available to the
public, to competitors, or to employees generally, for
use in the interest of the employer. Accordingly,
recognizing that "[t]he determination of 'confidential'
status is . . . a question appropriately committed to
Board discretion," the court remanded the case to us
to decide under this standard if Weatherman was a
confidential employee in terms of her "actual job
responsibilities, authority, and relationship to manage-
ment."' Accepting the court's criteria for resolving
questions of confidential employee status as the law of
this case only, we find that Weatherman was not a
confidential employee.
When she was discharged in May 1977, Weather-
man had been personal secretary to Dillon, Respon-
dent's general manager and top executive officer, for a
little more than 4 years. In this capacity, she answered
the telephone and opened mail addressed to Respon-
dent and Dillon, except for some mail which was
removed before it reached her by Office Manager
Donald Douglas and given to Dillon by him.6 Al-
though Weatherman typed all of Dillon's letters, this
correspondence apparently did not relate to labor
relations or personnel matters other than occasional
'416 U.S. 267 (1974).
'603 F.2d at 30.
Among the mail she did not see was that regarding union relations.
498
HENDRICKS COUNTY RURAL ELECTRIC
letters referring to the dates of negotiating meetings
with a union. Nor is there any evidence that it
concerned confidential matters of any description.
Weatherman generally did not place Dillon's tele-
phone calls, nor did she keep a record of his
appointments. Weatherman did share a partitioned
office with Dillon, but no personnel records or
confidential records of any type were kept there,
excluding Dillon's testimony that he kept some papers
concerning labor negotiations in a file behind his
desk.' Weatherman did not attend meetings of Re-
spondent's board of directors or other management
meetings. However, she did type minutes of meetings
of the board of directors and the agenda for such
meetings. While these meetings apparently occasional-
ly involved personnel matters, there is no indication
that such matters, or any other issues discussed during
them, were confidential.' Weatherman did not type
internal memoranda regarding labor relations or
personnel or employment matters. Finally, and most
significantly, Dillon conceded at the hearing that the
Respondent did not maintain secret or classified
papers or documents.
As previously noted, the court of appeals affirmed
not only our earlier finding that Weatherman did not
work in a confidential capacity in respect to labor
'As we pointed out in the initial decision herein, Weatherman had no
duties concerning labor negotiations, nor was there any evidence that she was
even aware of the existence of Dillon's file.
Weatherman did maintain some files respecting routine insurance claims
filed by employees, which she was responsible for processing, for her own
convenience.
relations matters, but also that she was not the
equivalent of a personnel department employee. Thus,
for Weatherman to qualify as a confidential employee
under the standard erected by the court, the record
would have to disclose that she performed confidential
duties in connection with nonlabor relations or per-
sonnel areas. Quite clearly, however, the evidence
taken at the hearing contains no hint that Weather-
man had any such responsibilities. That this was not
merely an oversight in the course of litigation is
confirmed by Dillon's statement that Respondent
simply did not have secret papers or documents.
Therefore, we reaffirm our conclusion, made in the
original decision in this case, that Respondent dis-
charged Weatherman in violation of Section 8(a)(1) of
the Act, and our remedial Order concerning that
violation.'
ORDER
It is hereby ordered that the Order issued by the
Board in Hendricks County Rural Electric Member-
ship Corporation, 236 NLRB 1616 (1978), concerning
the discharge of Mary M. Weatherman in violation of
Section 8(a)(1) of the Act be, and it hereby is,
reaffirmed.
' We noted in our original decision that Respondent is a cooperative, and
that all members presumably have access to documents such as the minutes of
board meetings.
' It is unnecessary to reaffirm our previous Order in regard to Respondent's
violation of Sec. 8(aX I) by coercively interrogating an employee, inasmuch as
the court has already enforced that portion of our Order.
499