North Arkansas Electric Cooperative, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 1970

185 N.L.R.B. 550 (N.L.R.B. 1970)

550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
North Arkansas Electric Cooperative , Inc. and Inter-
national Brotherhood of Electrical Workers, AFL-
CIO. Cases 26-CA-2585 and 26-CA-2620
August 27, 1970
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING,
MCCULLOCH, AND BROWN
The National Labor Relations Board issued its
original Decision and Order in this case on December
18, 1967, finding that Electrification Advisor Jack
Lenox was discharged for engaging in union activity,
that Lenox was not a managerial employee as
Respondent contended, and that Lenox's discharge
violated Section 8(a)(3) and (1) of the National Labor
Relations Act, as amended.' On application for
enforcement of the Board's Order, the United States
Court of Appeals for the Eighth Circuit concluded
that Lenox's duties did closely ally him with manage-
ment and that in a representation context the Board
would find Lenox to be a managerial employee. The
court then remanded the case to this Board "to
determine whether or not the discharge of Lenox,
as a `managerial employee' under all the circumstances
of the case, was or was not violative of the Act."'
As the court pointed out, the "managerial employ-
ee" category is Board created, not established by
the Act.' In our representation case proceedings, indi-
viduals found to fall within that category have been
consistently excluded by the Board from bargaining
units of other types of employees. But typically in
those cases, our concern has been whether certain
nonsupervisory employees have a sufficient communi-
ty of interest with the general group or class of
employees constituting the bulk of a unit so that
they may appropriately be considered a part thereof.
Where the interests of certain employees seemed to
lie more with those persons who formulate, determine,
and oversee company policy than with those in the
proposed unit who merely carry out the resultant
policy, we have held them to be excluded, and have
commonly referred to such excluded persons as "man-
North Arkansas Electric Cooperative, Inc, 168 NLRB No 122
N L R B v North Arkansas Electric Cooperame, Inc , 412 F 2d 324,
328 (C A 8. 1969)
' The concept seems to have had its origin in Vulcan Corporation,
58 NLRB 733, 736, where a timber cruiser log buyer, who spent about
75 percent of his time away from the plant and occasion substituted
for the superintendent , was excluded from a unit because "of the responsi-
bility of his position and his peculiar relationship to management, and
in view of the fact that his interests are apparently different from those
of the production and maintenance employees "
agerial employees," without ever having attempted
a precise definition of that term . Our lack of clear
definition has evoked some judicial criticism. Thus,
one court has commented that the Board "has not
developed clear guidelines for determining whether
particular individuals are `managerial employees,""
and another has announced that there was no stated
Board rationale for finding the procurement drivers
in Swifts and the credit managers in Diana Shop6
to be managerial.'
This lack of definition may be inherent in the
difficult process which we face constantly in evaluating
"community of interest" in many kinds of unit deter-
minations . Since, however , in representation cases
"community of interest " is the principal determinant,
our decisions in those cases are not genuinely relevant
to the issue here. An employee may not have the
requisite community of interest with other employees
to be included with them in a proposed unit, and
yet clearly be an employee entitled to the protection
of the Act as a Section 2(3) "employee ." On the
other hand , some persons we have traditionally exclud-
ed as "managerial " might more accurately have been
termed "employers" within the definition of Section
2(2), which defines employers as including "any person
acting as an agent of an employer."
In this case , we have been called upon to determine
whether a given individual is to be considered as
a Section 2(3) "employee" or a Section 2(2)
"employer." As we have explained above, the fact
that he may be a "managerial employee" for purposes
of determining his exclusion from a given bargaining
unit may well not assist us materially in making
this kind of determination.
We do not in this initial consideration wish to
attempt an inflexible comprehensive definition, for
we are of the view that a definition must be evolved
on a case-to -case basis . However, it is relevant, we
believe , to focus our attention upon whether the
employee here had either real or apparent authority
to speak as an "employer" in a labor relations or
employee relations context.
Although Lenox exercised discretion in the perform-
ance of his duties and responsibilities , was paid on
a monthly basis , received no extra pay for overtime,
participated in semiannual meetings concerning pro-
grams for attracting and retaining customers, and
occasionally spoke for the Employer in his dealings
with customers and advertisers, there is nothing in
' Illinois State Journal-Register, Inc v N.LR B, 412 F 2d 37 at
41 (C.A 7,1969)
' Swift & Company, 115 NLRB 752
Diana Shop, 118 NLRB 743
Retail Clerks International Association , Local 880 v NLR B, 366
F2d642,645(CADC)
185 NLRB No. 83
NORTH ARKANSAS ELECTRIC CO-OP
the record to suggest that he participated in the
formulation, determination, or effectuation of policy
with respect to employee relations matters. Nor is
there any indication that his status in the Cooperative's
organization was such as to lead any employee reason-
ably to believe that Lenox had substantial responsiblili-
ties in this area, so that views which he might express
would be taken as a reflection of the considered
position of the Cooperative. Finally, insofar as we
can determine there is nothing in this record to
suggest an inconsistency or conflict of interest between
Lenox's proper performance of his job and the imple-
mentation of his right to engage in or refrain from
engaging in concerted activity. While Respondent
might well have had a legitimate interest in regulating
Lenox's conduct in his contacts with customers, we
are unable to perceive any conflict between Respond-
ent's right effectively to carry on its business and
Lenox's freedom to express his views to the Respond-
ent's other employees with respect to this or any
other union.
551
Under these circumstances, and even if we would
have found that Lenox had insufficient community
of interest with the employees in the unit to include
him therein, nevertheless, upon the entire record,
we find him to be an "employee" rather than an
"employer," and we conclude, therefore, that his dis-
charge on October 20, 1966, violated Section 8(a)(3)
and (1) of the Act.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby affirms as its Order the Order
heretofore entered in this proceeding on December
22, 1967.
' Insofar as Swift & Company, supra , and other cases have indicated,
in a representation case context , that managerial employees might not
be entitled to the protection of the Act, we hereby overrule them to
the extent that they may be inconsistent with our decision herein