Intermountain Rural Electric Association

National Labor Relations Board - Board Decisions

Oct 29, 1985

277 N.L.R.B. 1 (N.L.R.B. 1985)

INTERMOUNTAIN ELECTRIC ASSN. 1
Intermountain Rural Electric Association and Inter-
national Brotherhood of Electrical Workers,
Local No. 111. Cases 27-CA-6151, 27-CA-
6280, and 27-CA-6305.
29 October 1985
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
On 8 January 1981 the National Labor Relations
Board issued a Decision and Order in the above-
entitled proceeding 1 finding that the Respondent
violated Section 8(a)(5), (3), and (1 ) of the Act by
unilaterally abrogating terms of a collective-bar-
gaining agreement with the Union concerning the
allocation of pension plan dividends ; failing to
comply with the Union 's requests for information
regarding its decision to change the application of
pension funds ; suspending and discharging Kather-
ine Tate and issuing a written reprimand to Kath-
leen Gunton because they engaged in protected
concerted activities ; threatening employees with
suspension or discharge because of their union
sympathies and activities ; interrogating employees;
linking employees ' economic benefit to the absence
of the Union and their economic detriment to the
Union; and warning employees that unionization
would be futile . The Board ordered the Respond-
ent to cease and desist from these unlawful activi-
ties and to take certain affirmative steps to remedy
the effects of its actions.
Thereafter, the Respondent petitioned the United
States Court of Appeals for the Tenth Circuit for
review of the Board 's Order and the Board filed a
cross-application for its enforcement. On 16 April
1984 the court issued its decision,2 which sustained
all of the Board's unfair labor practice findings and
enforced all of the provisions of its Order except
those pertaining to employee Tate . Although the
court found substantial evidence supports the
Board's conclusion that the Respondent suspended
and discharged Tate in retaliation for her union ac-
tivities, it found that the Respondent was entitled
to relitigate its assertion that Tate was a confiden-
tial employee . The court stated that the Respond-
ent should not be barred from relitigating this issue
during the instant unfair labor practice case simply
because the same issue had been raised and litigated
in an earlier and, according to the court 's findings,
unrelated representation proceeding . ' The court
found that the Respondent presented sufficient evi-
dence on the theory that Tate was a confidential
1 253 NLRB 1153.
s 737 F.2d 754.
secretary with a labor nexus that the Board could
properly make a finding as to whether Tate falls
into that category .3 Should the Board find that
Tate is a confidential employee, the court held it
would then be for the Board to decide the Re-
spondent's further contention that confidential em-
ployees fall outside the protection of the Act and
that its actions involving Tate therefore cannot be
held to violate the Act . Accordingly , the court re-
manded the case to the Board for a determination
on these issues.
On 1 October 1984 the Board advised the parties
that it had decided to accept the court's remand
and that they could submit statements of position
with respect to the issue of/Tate's confidential
status. Thereafter the General 'Counsel filed a state-
ment of position and the Respondent filed a brief
on remand and a request for oral argument.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the record as a whole,
the decision of the United States Court of Appeals
for the Tenth Circuit remanding the proceeding,
and the statements filed by the General Counsel
and the Respondent.4
As stated above , the issue of Tate 's confidential
status was first considered by the Board during a
representation proceeding . In a Decision and Di-
rection of Election dated 21 March 1979 in Case
27-RC-5809 the Acting Regional Director found
that Tate had been hired as the secretary to Direc-
tor of Engineering Mike Deans approximately 3
months prior to the date of the hearing . Her duties
consisted of typing and answering the telephone
for Deans and others in the department, as well as
regularly filling in at the Respondent 's switchboard
and occasionally performing work for Assistant
General Manager Fred Williams . The Acting Re-
gional Director concluded that the evidence pre-
sented at the hearing demonstrated that Tate did
not assist or act in a confidential capacity to any
person who formulates , determines, and effectuates
management policies with regard to labor relations.
Accordingly , he included her in the unit . The Re-
spondent filed a request for review of the Acting
Regional Director 's determination of Tate 's status.
3 The court noted that the Supreme Court had issued its decision in
NLRB v. Hendricks County Rural Electric Corp., 454 U.S. 170 (1981),
after the parties had presented oral argument in the instant case. In Hen-
dricks the Court reversed the Seventh Circuit and held that there is a rea-
sonable basis for the Board's use of the "labor nexus" test for confidential
employees . The Respondent had relied in substantial part on the Seventh
Circuit's rejection of that test.
4 The Respondent 's request for oral argument is denied as the record,
statements of position , and briefs adequately present the issues and the
positions of the parties.
277 NLRB No. 3
2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board denied the Respondent's request on 12
April 1979.
In the representation election held on 13 April
1979, the Respondent challenged Tate's ballot, as-
serting that she is a confidential employee. The
Acting Regional Director's Supplemental Decision
on Challenged Ballots overruled the Respondent's
challenge, finding that Tate's duties regarding con-
fidential labor relations matters had not changed
between the time of the representation hearing on 2
March 1979 and the date of the election 6 weeks
later. On 17 August 1979 the Board affirmed the
Acting Regional Director's determination with re-
spect to Tate's ballot and denied the Respondent's
request for review on this issue.
The unfair labor practice allegations in this case
include 8(a)(3) and ( 1) issues relating to Tate's sus-
pension and discharge as well as certain threats
made against her because of her activities in sup-
port of the Union. In its defense against these alle-
gations the Respondent contends that Tate was
outside the protection of the Act because her posi-
tion was of a confidential nature, thereby excluding
her from the right to participate in union activities.
Review of the record indicates that while the judge
was reluctant to permit relitigation of Tate's confi-
dential status, he nevertheless allowed the Re-
spondent to introduce into' evidence the record of
the representation case as well as other relevant
evidence on Tate's employment status. The judge
did not, however , make an independent assessment
of her alleged confidential status, deciding instead
that he was bound by the Board's previous repre-
sentation case determinations . In view of the com-
pleteness of the record now before us, it is neces-
sary only to review this evidence to comply with
the court's remand.5
Tate was hired in November 1978 as a secretary
in the engineering department. She was referred to
as the secretary to Director of Department Mike
Deans, and was primarily responsible to him, but
her duties encompassed the performance of general
clerical tasks for others in the department as well.
Testimony during the representation hearing estab-
lishes that as of that time, 2 March 1979,6 Tate re-
ceived and made records of telephone calls and
visitors and typed for Deans and others in the engi-
neering department. In addition she regularly filled
in at the Company's switchboard when the opera-
tor was on breaks. On occasion, when the secretary
to Assistant General Manager Fred Williams was
unavailable, Tate would type for him. There was
also one instance when Tate took minutes of a staff
5 In their statements to the Board , no party has requested a further
hearing.
6 Dates herein refer to 1979 unless otherwise designated
meeting , attended by Williams, Deans, Director of
Operations Cowan, and Supervisors Logos, Miller,
and Schroeder, dealing with the Employer's pro-
duction and maintenance unit employees. Tate tes-
tified that she knew nothing about Deans' role in
labor relations matters, that she did not type
memoranda or correspondence concerning labor
matters, that she did not accompany Deans to
meetings concerning labor relations, that she did
not type minutes of such meetings, and that Deans
did not discuss with her the content of any such
meetings he may have attended. Tate testified that
she was told that information to which she had
access was considered by the Company to be confi-
dential.7 According to the Supplemental Report on
Challenged Ballots, Tate indicated that following
the election she typed a memorandum stating that
the Respondent would deal with the Union at
arm's length, another stating that the Respondent
wanted to take meter readers out of the established
unit and place them in the office and clerical 'unit,
and a third stating that working as a janitor would
not qualify as relevant experience toward the at-
tainment of a position as either warehouseman or
groundsman. These documents do not appear in
the record."
Deans9 stated that around the time of the repre-
sentation hearing he had been involved in discus-
sions with, others in management concerning the
Respondent's position on the confidential status of
Tate's job. He said that he had doubts then con-
cerning the Respondent's position that Tate was a
confidential employee and that he discussed with
Tate the fact that management viewed her as a
nonbargaining unit confidential employee. Howev-
er, Deans also stated that he did not have any de-
tailed discussions with Tate concerning her job
duties. Sometime after the 2 March representation
hearing Deans informed Tate that she had a new
job description. The document dated 1 February
was admitted into evidence at the unfair labor
practice hearing. Despite the fact that Tate was
Deans ' secretary, Deans did not participate in for-
mulating this job description. Instead, Deans re-
called receiving the document from the office of
General Manager Stanley Lewandowski some time
r This refers to the engineering department 's possession of documents
and information relative to the Respondent 's systems improvements, con-
tracts with customer-users of the Respondent's underground and over-
head facilities, information concerning substations and other equipment,
and data concerning the Respondent 's rebate program which involves
substantial sums of money.
a Tate testified that following the representation hearing Deans told
her that he had been requested by Personnel Director Tom Riffe to have
her type a memo dealing with any subject so long as it related to labor
relations
9 Deans did not testify in person at the unfair labor practice hearing,
but his deposition was submitted into the record.
INTERMOUNTAIN ELECTRIC ASSN. 3
during the spring. According to Tate there were
two new duties listed among her responsibilities:
"Prepares confidential minutes taken at meetings
involving highly sensitive labor relations matters"
and "Prepares recommendations as provided by the
Director of Electrical Engineering concerning con-
fidential labor relations matters." Deans said that
(luring her employment Tate typed three memoran-
da which related to labor relations . One concerned
meter readers' unit placement ; another consisted of
Deans ' suggestions regarding field engineers; and
the third related to draftsmen and wage recommen-
dations. Deans could not recall when any of these
memos were typed. None of them was produced or
offered by the Respondent. Deans stated that he
considered several of the matters with which Tate
dealt to be confidential, such as employees' annual
reviews, probationary reviews, and memos to su-
pervisors concerning problems with employees.
None of these types of materials was introduced as
an example of her work product. ' ° Deans testified
that Tate regularly took notes at the monthly engi-
neering staff meeting."
One memorandum typed by Tate which was in-
troduced into evidence was from Richard Prahl,
supervisor of engineering services, to Personnel Di-
rector Riffe. The 3 March memo recommended
that the Respondent take a "hard-nose" approach
to bargaining with the office and clerical unit over
health insurance benefits and extra holidays. Prahl
stated that he was not solicited to provide sugges-
tions at that time and that he had never before or
since made recommendations of this nature. He did
not explain what prompted him to pass along his
suggestions in this instance.
Deans testified that his job involved supervising
the office engineering department, engineering
services, overhead and underground field engineer-
ing and drafting, and providing technical supervi-
sion over district field engineers. Deans' only other
reference to his duties was that after the represen-
tation hearing he was requested to make recom-
mendations on several items related to labor rela-
tions. However he did not say who made this re-
quest or how he responded to it.
The assistant general manager of operations and
engineering Fred Williams, Deans ' direct superior,
testified that since Deans had been in charge of the
engineering department there had been only one
10 The Respondent did introduce examples of Tate's work for the pur-
pose of demonstrating her deficiencies. These included departmental
work orders and reports as well as correspondence for Deans The only
item which did not relate strictly to the Respondent's business operations
was a general letter of reference on behalf of a former employee of the
engineering department
i i Deans stated that this was not a supervisory meeting but included
all employees in the engineering department
contract negotiated, that being with the production
and maintenance employees in the so-called "out-
side" unit. Williams said that Deans' role in that
negotiation was to recommend salary and language
changes. He recalled one instance in which Deans,
in response to his solicitation of suggestions, made
a recommendation regarding the salaries of engi-
neering aides.
The Respondent's general manager Lewan-
dowski testified that Deans was responsible for all
engineering department personnel . He stated that
these responsibilities included handling grievances
and supplying information for negotiations. Specifi-
cally, Lewandowski said that Deans reviewed the
bargaining agreement covering the outside unit to
check for problems in administering its terms, made
suggestions concerning contract language, and at-
tended strategy meetings. Lewandowski stated that
because the outside contract was for a 3-year term,
Deans did not have occasion within the past year
to be involved in bargaining matters. Lewandowski
did not cite specific examples of Deans' input prior
to entering into that agreement . Lewandowski tes-
tified that it was possible that Deans could play a
role at the bargaining table in future negotiations.
There is no evidence that Deans had sat at the bar-
gaining table in the past or that he has done so
since the date of the hearing.12 A memorandum
dated 12 April from Lewandowski to several de-
partment heads outlined those individuals' respec-
tive areas of responsibility with regard to labor re-
lations.13 This memo substantially reiterates
Lewandowski's description of Deans' duties and
concentrates on what Deans' future responsibilities
might entail should the office and clerical employ-
ees choose union representation. Lewandowski
stated that this document was prepared in response
to questions raised by the election petition filed in
the office and clerical employee unit and was de-
signed to shed light on the status of the secretaries
to those department heads.
The Board's long-established test for determining
whether an employee possesses confidential status
is whether that employee "assist[s] and act[s] in a
confidential capacity to persons who formulate, de-
termine, and effectuate management policies in the
12 The Respondent has not asserted either before the circuit court or
in its statement of position now before the Board that Deans has assumed
a more prominent role in negotiations with either the outside unit or the
office and clerical unit.
13 The memo was directed to Williams, Manager of Office Services
Steve Glaim, Riffe, Deans, Director of Member Relations and Energy
Conservation Richard Kavulic, Director of Operations Spencer Cronk,
and Assistant Director of Operations Ron Lewis A description of each
of these individuals' responsibilities is set forth, states that all are consid-
ered members of the negotiations strategy team if not actually present at
the bargaining table, and is apparently meant to limit labor relations re-
sponsibilities to those individuals.
4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
field of labor relations ." B. F. Goodrich Co., 115
NLRB 722, 724 (1956). This is termed the "labor
nexus" test and its validity as an appropriate meas-
ure of confidential status was endorsed by the Su-
preme Court in NLRB v. Hendricks County Rural
Electric Corp., 454 U.S. 170 (1981). Under this defi-
nition it is insufficient that an employee may on oc-
casion have access to certain labor related or per-
sonnel type information. What is contemplated in-
stead is that a confidential employee is involved in
a close working relationship with an individual
who decides and effectuates management labor
policy and is entrusted with decisions and informa-
tion regarding this policy before it is made known
to those affected by it. Whether Tate's job was
characterized by a relationship of this nature must
now be assessed.
Documentary evidence that Tate had access to
the Respondent's labor policy formulation is limit-
ed to a single memorandum from Supervisor Prahl
to Personnel Director Riffe. There is no evidence
that Prahl's regular duties included providing sug-
gestions for bargaining strategies or contract con-
tent. 114 Prahl stated that his suggestions were unso-
licited, and there is no evidence that the Respond-
ent accorded them any consideration. This one-
time voluntary memo is insufficient to qualify Prahl
as one who formulates, determines, and effectuates
labor relations policies. Moreover, there is no evi-
dence of what other work, if any, Tate performed
for Prahl. Based on these facts the working rela-
tionship between Tate and Prahl falls far short of
displaying confidential characteristics.
Testimonial evidence indicates that during her
approximately 8 months of employment with the
Respondent, Tate typed three memoranda for
Deans dealing with labor or personnel matters 1 s
and that she took minutes at one management staff
meeting (apparently substituting for Williams'
absent secretary) concerning the Respondent's pro-
duction and maintenance employees.16 Tate's unre-
futed testimony establishes that her work did not
regularly include labor relations matters. The three
memos therefore appear more notable by their in-
frequent nature than by their serving as examples
of Tate's typical responsibilities. While Tate's re-
vised job description states that she regularly dealt
with confidential labor relations matters, there is no
substantiation that this was the case. While this dis-
i* Prahl was not among the recipients of Lewandowski's 12 April
memo directed to all those having labor relations responsibilities.
15 As stated earlier these memos were not introduced into evidence.
They were not described in any more detail than the previous discussion
provides.
16 The minutes were not introduced into evidence . There was no testi-
mony concerning the specific topics discussed at this meeting other than
that it involved production and maintenance unit employees
crepancy may be attributable to the fact that the
job description was not prepared by her immediate
supervisor, the fact remains that it serves little pro-
bative value in assessing Tate's status , standing
merely as an uncorroborated statement.17
Tate testified that she was unaware of what role
Deans played in the conduct of the Respondent's
labor relations. Lewandowski's 12 April memoran-
dum outlining various individuals' labor relations
responsibilities depicts Deans and six other persons
as having significant labor relations involvement.
However, much like Tate's revised job description,
there is no supporting evidence-testimonial or
documentary-that Deans actually held appreciable
labor relations responsibility. Deans' account of his
labor relations duties was general . He cited his
overall responsibility for his department, his attend-
ant role in evaluating employee performance and
handling discipline matters , and that he had been
requested (during the organizational campaign of
the office employees) to make "recommendations
on several items related to labor relations." He was
not specific in describing the three memos, referred
to above, other than by the fact that one dealt with
meter readers, another with draftsmen, and a third
with field engineers . The only evidence that Deans
took part in the collective-bargaining relationship
with the "outside" unit was Williams' recollection
that Deans had made a recommendation on the
wages of engineering aides . While Lewandowski
asserted that Deans had responsibility for handling
grievances, Deans did not include this as among his
duties nor did he mention typing grievance reports
as one of Tate's responsibilities. It appears , there-
fore, that the array of labor relations responsibil-
ities attributed to Deans in the 12 April memo does
not comport with the evidence of what his duties
were in practice.
In this case it is incumbent on the Respondent to
provide the evidence on which it has based its as-
sertion that Tate is a confidential employee. We
conclude that the evidence before us fails to estab-
lish that Tate acted in a confidential capacity to
anyone having the responsibility of formulating, de-
termining , and effectuating labor policy for the Re-
spondent. Deans' duties have not been shown to
have consisted of more than an occasional contri-
bution to possible management decision-making-
clearly inadequate to show personal responsibility
or regular involvement in the labor policy function.
His relationship with Tate, most importantly, fails
to exhibit any evidence of sharing of management
policy development or entrusting her with informa-
14 Tate's original job description was not discussed on the record nor
were the duties of Tate's predecessor.
INTERMOUNTAIN ELECTRIC ASSN. 5
tion relative to labor relations formulation . A single dential employee with a labor nexus . 18 We reaffirm
instance of note -taking at a management meeting the Board's previous Decision and Order.
and typing three memos of uncertain labor policy
content simply are inadequate to provide a basis for ORDER
finding that Tate served in a confidential capacity The Board 's original Decision and Order is reaf-
for the Respondent . Accordingly , we find that firmed.
Katherine Tate has not been shown to be a confi-
18 In view of our determination of this question it is unnecessary to
reach the issue of whether the Act's protections extend to confidential
employees