Mid Allegheny Corp.

National Labor Relations Board - Board Decisions

Dec 28, 1977

233 N.L.R.B. 1463 (N.L.R.B. 1977)

MID ALLEGHENY CORPORATION
Mid Allegheny Corporation and Brotherhood of Rail-
way, Airline, and Steamship Clerks, Freight Han-
dlers, Express and Station Employees, AFL-CIO,
Petitioner. Case 9-RC-11921
December 28, 1977
DECISION AND DIRECTION OF
ELECTION
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a hear-
ing was held on March 15, 1977, before Hearing
Officer Edward H. Burton. Thereafter the Regional
Director directed a further hearing, which was held
on May 17, 1977, before Hearing Officer Daniel
Roketenetz. Following the hearings and pursuant to
Section 102.67 of the National Labor Relations
Board Rules and Regulations and Statements of
Procedure, Series 8, as amended, and by direction of
the Regional Director for Region 9, this case was
transferred to the National Labor Relations Board
for decision. Thereafter, the Employerl (hereinafter
also called Mid Allegheny) and Petitioner filed
briefs.
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.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that no
prejudicial error was committed. His rulings are
hereby affirmed.
Upon the entire record in this case, the Board
finds:
1. The Employer, a West Virginia corporation,
contends that it is not subject to the Board's
jurisdiction because it is a totally intrastate corpora-
tion and it does not affect interstate commerce. Thus,
it asserts that its income is derived solely from its
operations within the State of West Virginia. Mid
Allegheny is a wholly owned subsidiary of the B & O
Railroad Company which, in turn, is 99.9 percent
owned by the C & O Railroad, which is in turn
wholly owned by the Chessie System Inc. At the time
of the hearing the Company had approximately
230,000 acres all in West Virginia, consisting of some
600 various tracts of land.
The Employer is engaged in acquiring and holding
mineral properties, mostly coal, gas, and oil, which it
leases to companies who extract the minerals. During
the fiscal year 1976 the Employer's gross volume of
I The Employer has requested oral argument. This request is hereby
denied as the record, the exceptions, and the briefs adequately present the
issues and the positions of the parties.
233 NLRB No. 206
business was in excess of $500,000. Of this amount,
$501,943 represented royalty payments and income
under lease agreements from mineral production
companies, and $50,000 was a management fee paid
by the New Gauley Corporation, a West Virginia
corporation. The Employer stipulated that each of its
top seven production company customers, Amoco
Production Company, Consolidated Coal Company,
Sewell Coal Company, Island Creek Coal Company,
Consolidated Gas Supply Company, Eastern Associ-
ated Coal Corporation, and Powellton Company,
ships more than $50,000 worth of goods in interstate
commerce.
The Employer's argument that it does not affect
interstate commerce is clearly without merit. The
Board asserts jurisdiction over all nonretail opera-
tions which have an annual outflow or inflow across
state lines of at least $50,000, whether such outflow
or inflow is direct or indirect.2 The Board has defined
indirect outflow as sales of goods or services to users
meeting any of the Board's jurisdictional standards,
except the indirect outflow or indirect inflow stan-
dard. Since the Employer explores and develops coal
and related energy sources which, in turn, it leases to
some of the major national energy production
companies or their subsidiaries, who ship their
product in interstate commerce, the operations of the
Employer clearly meet the requirements of the
$50,000 indirect outflow test.
On the basis of the foregoing, we find that the
Employer is engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act, and that it
will effectuate the purposes of the Act to assert
jurisdiction herein.
2. The labor organization involved claims to
represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of certain employees of the
Employer within the meaning of Sections 9(c)(1) and
2(6) and (7) of the Act.
4. The Petitioner seeks to represent a bargaining
unit described in its petition as:
Included: All clerical and related [sic] as
defined under the Act. Secretary, Auditor, Geolo-
gist, Office Engineer, Field Engineer, Draftsman.
Excluded: All Guards, Supervisors as defined
under the Act.
The Petitioner contends that the petitioned-for unit
is appropriate and that Jones, the geologist, is a
professional employee who is entitled to a self-
determination election. However, the Petitioner is
2 Siemons Mailing Service, 122 NLRB 81 (1958).
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
willing to proceed to an election in any unit or units
found appropriate.
The Employer contends that there is no possible
appropriate unit because the employees in the unit as
defined do not have a community of interest.
Alternatively, the Employer contends that none of
the six would be eligible for inclusion in the unit. It
argues that Halstead, the field engineer, and Hick-
man, the office engineer, are supervisors while
McKenzie, the auditor, is a supervisor and/or confi-
dential employee. The Employer agrees with the
Petitioner that Jones, the geologist, is a professional,
but contends that he should therefore be excluded
from any unit. The Employer takes the position that
only one employee, Angus, the draftsman, would
remain but could not alone constitute an appropriate
unit.
The Employer further maintains that its six em-
ployees are in four separate and distinct depart-
ments: The administrative department, consisting of
two employees, McKenzie as the supervisor and
Dorsey the clerical; office engineering department,
consisting of two employees, Hickman as the super-
visor and Angus; field engineering department,
consisting of one employee, Halstead; and the
geology department, consisting of one professional
employee, Jones. The Employer states that David
Morrison, the executive vice president, is ultimately
responsible for the day-to-day operations of the
Employer.
Contrary to the Employer, we find that the unit
sought consists of all employees of the Employer and
thus is presumptively appropriate under the Act. The
employees clearly share a community of interest, as
the record shows that they have common supervi-
sion, regular contact in a common work situs, and
identical fringe benefits; and all are salaried. Hence,
it is necessary to determine the unit placement of the
four employees whose status the Employer questions.
Thomas McKenzie. The Employer maintains that
McKenzie, who has been employed by the Company
for 6-1/2 years, is a supervisor and/or confidential
employee in charge of the administrative department.
Darrell Goff, retired head of the administrative
department, testified that the position when he held
it was supervisory because he had the right to hire,
fire, and discipline employees, and that McKenzie
was promoted into his job after others were inter-
viewed for the position. Morrison testified that
McKenzie is the office manager and administrative
assistant who supervises and directs the administra-
tive department. Morrison further testified that
Dorsey was hired as a secretary to assume the
responsibilities of McKenzie's old job after McKen-
zie was promoted into Goffs position.
McKenzie admits that he trained Dorsey in pay-
roll, banking, filing, preparing reports, and book-
keeping, but testified that he was never told that he
was an office manager or supervisor and that in fact
he performs no duties that could be considered
supervisory. However, he admits his advice is sought
on administrative problems, that he has direct
contact with the Employer's clients, and that he is
qualified for a supervisory position.
Based on the record as a whole we find McKenzie
possesses indicia of supervisory authority. In this
regard we note that McKenzie was promoted to
Goffs position and that he does Goffs job, except
lease and tax work. McKenzie admits that Morrision
gives him general instructions regarding work to be
carried out by his department, and Dorsey admits
that Morrison has instructed McKenzie to have a job
performed which McKenzie then instructed Dorsey
to complete. Based on this record, we are satisfied
that McKenzie possesses and exercises supervisory
authority and must be excluded from the unit. In
view of this finding, we need not pass on his status as
a confidential employee.
Eula Dorsey: As stated previously the Employer,
contrary to the Petitioner, contends that Dorsey is a
confidential employee who assists and acts in a
confidential capacity to Vice President Morrison,
who formulates, determines, and effectuates manage-
ment policies with regard to labor relations. Dorsey,
a stipulated clerical, has been employed by the
Company since October 1976 and performs some
bookkeeping functions, including preparing the pay-
roll and paying monthly bills. Morrison testified that
Dorsey was his confidential secretary in all matters
pertaining to corporate situations, including confi-
dential information concerning labor relations. He
testified that she would be responsible for typing
memos, letters, and other matters concerning em-
ployees' wages, hours, and working conditions which
would ultimately go to his supervisors.
Dorsey testified that she has never handled any
information pertaining to labor relations including
matters regarding the instant election petition. She
admits to having access to the company files which
contain personnel records but states that all employ-
ees have equal access to those files.
Based on the record as a whole we are persuaded
that Dorsey is not a confidential employee. McKen-
zie testified that he and Dorsey open Morrison's
correspondence, but they have been instructed not to
open any correspondence of a confidential or person-
al nature whatsoever. Further, the Board has held
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MID ALLEGHENY CORPORATION
that mere access to personnel files is insufficient to
establish a confidential employee status.3 Although
Dorsey spends part of her time performing certain
routine personnel functions, such as payroll, she has
not been designated as Morrison's personal secretary
and her duties do not involve her in a confidential
capacity assisting Morrison with labor matters. Thus,
since we find that the facts do not warrant a finding
that Dorsey is a confidential employee, we shall
include her in the unit found appropriate.
David Hickman: The Employer, contrary to the
Petitioner, contends that Hickman, who has been
employed by the Company for 6 years, is a supervi-
sor over employee George Angus. Hickman was
promoted to his current position as office engineer
and draftsman only 15 days prior to the first hearing,
after the retirement of his and Angus' admitted
supervisor, Holbert. Holbert was unquestionably a
supervisor, testifying that he had the right to hire,
fire, and discipline employees. When Hickman was
promoted to his current position, Vice President
Morrison informed him of a raise effective February
I and that he was to take over Holbert's job, which
included running the office engineering department.
Hickman admits that Morrison discussed the super-
visory nature of the position. Morrison testified that
Hickman would have the right to hire, discipline, and
fire persons in the office engineering department,
subject to Morrison's approval.
In his position Hickman reports directly to Morri-
son and is in charge of maintaining property records
and making sure the maps are received from the
lessees so the Employer can audit royalty payments
by calculating the amount of tonnage removed. He
must also make engineering calculations and prepare
property descriptions for sales.
Hickman adamantly denied that he supervises
Angus in any way because he has never been told
that he possessed supervisory responsibilities and,
furthermore, Angus is supervised directly by Morri-
son. However, on the basis of the entire record,
which shows that Hickman was promoted into
Holbert's supervisory position and fails to reveal any
change in duties or authority, we conclude that he is
a supervisor who must be excluded from the unit. It
is well settled that possession of supervisory authori-
ty is enough even if not exercised, 4 and we note
Holbert was in his position only 15 days at the time
of the first hearing.
W. C. Halstead: Halstead, a field engineer, has
been employed by Mid Allegheny and its predeces-
sor since 1951, performing duties which include
3 John Sexton &d Co., Division of Beatrice Foods Co., 224 NLRB 1341
(1976).
4 Spotlight Company, Inc., 188 NLRB 774 (1971).
5 See The Great Western Sugar Company, 137 NLRB 551 (1962);
mapping properties and researching deed descrip-
tions and plottings at local courthouses; in addition,
he sporadically supervises prospecting crews when
core drilling samples are required. His responsibili-
ties include obtaining the rights to go onto a property
for the purpose of obtaining coal samples. Halstead
has in the past hired, fired, and disciplined tempo-
rary field prospecting crews of up to eight people. In
his supervisory capacity, he would inform the drillers
where to drill and go back on a regular basis to see
that they were doing the job.
It is undisputed that as of the hearing date that
there had not been field crews in 8 or 9 months, and
at the time of the hearing there were no employees
under his direction and control. Under these circum-
stances, most of his work would be done in the office
preparing maps and visiting the field to inspect the
mining operations of the lessees. Finally, there is no
evidence presented that any of the employees he has
supervised in the past were anything other than
sporadic employees who would not be eligible for
inclusion in the instant unit. We therefore conclude
that Halstead should be included in the bargaining
unit since the exercise of his supervisory functions is
only sporadic and occasional. 5
Accordingly, we find the following unit may be
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All employees of the Employer, including the
secretary, field engineer, draftsman, and geolo-
gist, but excluding all guards and supervisors as
defined in the Act.
As noted above, the parties agree, and we find that
Jones, the geologist, is a professional employee. As a
result of this finding it appears that the unit as
described above would include professional and
nonprofessional employees, whom the Board cannot
join in a single unit without the desires of the
professional employee being determined in a sepa-
rate vote.6 We shall direct that a separate ballot be
used for recording the vote of the geologist, Forest
Jones, which will ask two questions:
1. Do you wish to be included in the same unit as
nonprofessional employees employed by the Em-
ployer at its Summersville, West Virginia, facility for
the purposes of collective bargaining?
2. Do you desire to be represented for the
purposes of collective bargaining by Brotherhood of
Railway, Airline and Steamship Clerks, Freight
Handlers, Express and Station Employees, AFL-
CIO?
Amalgamated Clothing Workers of America, A FL-CIO, CLC, 210 NLRB 928
(1974).
6 Sonotone Corporation, 90 NLRB 1236 (1950).
1465
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
If the professional employee votes "yes" to the first
question, indicating his desire to be included in the
unit with the nonprofessional employees, he will be
included. His vote on the second question will then
be counted with the votes of the nonprofessional
bargaining unit. If, on the other hand, he does not
vote for inclusion, his vote on the second question
will not be counted, as a one-person unit may not be
found appropriate.
[Direction of Election and Excelsior footnote omit-
ted from publication.]
1466