National Cement Co., Inc.

National Labor Relations Board - Board Decisions

Mar 23, 1977

228 N.L.R.B. 1039 (N.L.R.B. 1977)

NATIONAL CEMENT CO., INC. 1039
National Cement Company , Inc. and United Cement,
Lime and Gypsum Workers International Union,
AFL-CIO, Petitioner. Case 10-RC-10803
March 23, 1977
DECISION ON REVIEW
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND JENKINS
On October 8, 1976, the Regional Director for
Region 10 issued a Decision and Direction of
Election in the above-entitled proceeding in which he
found that two employees employed at the Employ-
er's Ragland office were not confidential employees
and were accordingly included in the office clerical
unit found appropriate for purposes of collective
bargaining. Thereafter, in accordance with Section
102.67 of the Rules and Regulations, Series 8, as
amended, of the National Labor Relations Board,
the Employer filed a timely request for review of the
Regional Director's decision on the ground, inter
alia, that in failing to find the two employees to be
confidential employees who would be excluded from
the appropriate unit he departed from Board prece-
dent.
By telegraphic order dated November 2, 1976, the
Board granted the request for review.
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 considered the entire record in this
proceeding with respect to the issues under review
and makes the following findings:
The Employer is engaged in the manufacture and
sale of cement. In the course of its operations, it
maintains an office at its Ragland, Alabama, plant,
where it employs three office clerical employees,
among whom are Dorothy Noah, secretary to Robert
Toler, vice president and plant manager, and Gaylon
Brown, secretary to Charles Ford, the personnel
manager.
The Employer seeks to exclude from the appropri-
ate unit both Noah and Brown on the basis that they
perform work of a confidential nature. The Regional
Director, relying on a 1972 Decision and Direction of
Election involving the same unit wherein both
employees were found not to be confidential employ-
ees, concluded that there was no evidence of other
duties that would render either Noah or Brown a
confidential employee and, accordingly, included
them in the unit. The Employer asserts that the
Regional Director's reliance on the 1972 case ignored
the present record and that the inclusion of these
employees in the appropriate unit contravenes the
Board's established policy. We find merit in the
Employer's contention with regard to Noah.
The record discloses that Toler, in his capacity as
vice president and plant manager, sits in on negotia-
tions and is responsible for the handling of labor
relations including grievances and the settlement of
minor disputes. Noah, in her capacity as secretary,
performs a wide range of clerical duties including the
typing of the daily and monthly production reports,
answering the phone, and distributing the mail. She
also types correspondence concerning reprimands,
grievances, and discharges, opens and sorts Toler's
mail unless it is specifically marked confidential, and
has access to Toler's files. Upon the foregoing, we
conclude that Noah acts in a confidential capacity to
Toler, a person involved in formulating, determining,
and effectuating the Employer's labor relations
policies, and that she is a confidential employee as
defined by the Board.' Accordingly, we shall exclude
her from the unit found appropriate.
With regard to Brown, although she performs
general secretarial functions for Personnel Manager
Ford, the record fails to disclose that she assists Ford
in any way vis-a-vis his role in the formulation,
determination, and effectuation of the Employer's
labor relations policies.2 Accordingly, we find that
she is not a confidential employee as defined by the
Board and shall include her in the unit found
appropriate.
The case is hereby remanded to the Regional
Director for Region 10 for the purpose of conducting
an election pursuant to his Decision and Direction of
Election, as modified herein, except that the payroll
period for determining eligibility shall be that ending
immediately before the date of issuance of this
Decision on Review. [Excelsior footnote omitted
from publication.]
I The B F. Goodrich Company, 115 NLRB 722 (1956); West Chemical in connection with labor relations in the past year and that when he wants
Products, 221 NLRB 250 (1975). his notes from negotiating and grievance committee meetings typed he does
2 Personnel Manager Ford testified that Brown had not done any typing them himself.
228 NLRB No. 125