Southern Maryland Electric Cooperative, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1975

220 N.L.R.B. 979 (N.L.R.B. 1975)

SOUTHERN MARYLAND ELECTRIC COOPERATIVE, INC. 979
Southern Maryland Electric Cooperative , Inc. and In-
ternational Brotherhood of Electrical Workers,
AFL-CIO, Petitioner . Case 5-UC-49
September 30, 1975
DECISION ON REVIEW AND ORDER
By CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
On May 29, 1974, the Regional Director for Re-
gion 5 issued a Decision and Clarification of Bar-
gaining Unit in the above-entitled proceeding in
which he clarified the existing office clerical unit at
the Employer's facilities in Hughesville , Hollywood,
White Plains, and Prince Frederick, Maryland, to in-
clude five department secretaries . Thereafter, in ac-
cordance with Section 102.67 of the National Labor
Relations Board Rules and Regulations, Series 8, as
amended, the Employer filed a timely request for re-
view of the Regional Director's decision on the
ground that he departed from officially reported
Board precedent and made findings of fact which are
clearly erroneous on the record.
By telegraphic order dated July 8, 1974, as correct-
ed July 19, 1974, the request for review was granted
in certain respects , as indicated below. Thereafter,
the Employer and the Petitioner filed briefs on re-
view.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the entire record in this
case with respect to the issues under review, includ-
ing the briefs on review filed by the parties, and
makes the following findings:
The Employer is engaged in the business of distrib-
uting electric power in the southern Maryland area.
In 1969 in Case 5-RC-7081, the Petitioner was certi-
fied as the exclusive bargaining representative of the
employees in the following unit:
All office clerical employees, including engineer
assistant, janitor, head machine operator, and
chief accounting clerk employed by the Employ-
er at its Hughesville , Hollywood, White Plains,
and Prince Frederick, Maryland, facilities; ex-
cluding all confidential employees, professional
employees , guards, watchmen , and supervisors
as defined in the Act, as amended.
At the hearing, the Employer contended that these
employees were supervisory, managerial, and/or
confidential and should therefore be excluded from
the unit. The Petitioner contended that these employ-
ees continued to perform essentially the same func-
tions that they had previously performed as stenogra-
pher-clerks and therefore they, along with the new
job classification, should be included in the certified
unit . The Regional Director found merit in the
Petitioner's contention and concluded that the de-
partment secretaries were not supervisory, manageri-
al, or confidential personnel. He, therefore, included
them in the unit. The grant of review was limited to
the issue of whether or not the department secretaries
were supervisors or confidential employees.
On review, the Petitioner asserts that the duties of
the five employees have not substantially changed
and that unit members perform some or all of the
duties which have been outlined as the duties of the
department secretaries. The Employer, however, as-
serts that four of the department secretaries, Rollins,
Joy, Davis, and Burroughs, are supervisors since they
have the authority to hire employees , to reassign em-
ployees and to make effective recommendations re-
garding employee status. The Employer also con-
tends that all five, including the remaining
department secretary, Mattingly, should be excluded
from the unit because they perform confidential cler-
ical and secretarial functions for department heads
who engage in the formulation, determination, and
effectuation of management policies in the field of
labor relations. For reasons set forth below, we agree
with the Employer that these five individuals should
be excluded.
As set forth in the Regional Director's decision,
the Employer has designated five individuals as de-
partment secretaries.' They include Joan Rollins and
Beulah Joy, secretaries to the district superintendents
of the Charles and St. Mary's County districts re-
spectively; Liza Davis, secretary to the chief engi-
neer ; Patricia Burroughs, secretary to the director of
office services; and Elaine Mattingly, secretary•to the
director of public and personnel relations. Prior to
assuming the job of department secretary, these indi-
viduals were classified as stenographer-clerks and
were included in the unit.
The record reveals that the Employer decided to
establish the new classification to aid the department
heads who were becoming heavily burdened with ad-
ministrative duties and paperwork, involving person-
nel and labor relations matters of a confidential na-
ture, which it felt could not be entrusted to unit
In November 1973 the Employer established the
new classification of department secretary . Thereaf-
ter, five unit employees assumed this classification . vert County office had not been named at the time of the hearing.
1 A sixth department secretary for the district superintendent at the Cal-
220 NLRB No. 150
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
members .2 At the time that the incumbents were in-
terviewed they were told that they would be handling
matters concerning the Union, labor negotiations,
employee appraisals, and salaried personnel. They
were also told that they would be responsible for su-
pervising and directing the work of the clerk-typists
that would be assigned to assist them, and for mak-
ing recommendations for salary increases and job re-
classifications. Upon assuming the positions, they be-
came salaried employees and they are paid
approximately $900 per year more in wages than they
received as stenographer-clerks. They were also told
that they would be out of the bargaining unit.
The record reveals that, in addition to performing
essentially the same functions that they performed as
stenographer-clerks, the department secretaries, with
the exception of Mattingly, have been endowed with,
and have exercised, supervisory functions.
Thus, Rollins testified that she now attends super-
visors' meetings and independently assigns and re-
views the work of the unit employee under her. This
unit employee was assigned to Rollins after Rollins
agreed that the employee was qualified to help her.
Rollins also stated that the unit employee reports di-
rectly to her for time off and that she makes adjust-
ments for the employee's sick time. Rollins testified
that on one occasions she permitted the employee to
leave work 25 minutes early.
Joy testified that she has one clerk-typist assigned
to assist her in her duties. She stated that she assigns
work to this employee and is responsible for approv-
ing her leave and overtime. Joy also testified that she
has let this employee go home early without consult-
ing anyone.
Davis testified that she, along with her department
head, interviewed several employees who were being
considered to fill the position of clerk-typist under
her. Consistent with Davis' recommendation, an em-
ployee was placed in this position. However, at the
time of the hearing, this employee had not yet as-
sumed her new duties. Davis testified that she would
be responsible for scheduling this employee's work,
overtime, and time off. She also stated that she would
have the authority to permit this employee to leave
work early. The record also reveals that Joy effective-
ly recommended that a certain employee, out of a
number of applicants, be upgraded to the job of engi-
neering clerk.
Burroughs testified that she selected and arranged
2 The Employer admits in its brief on review that unit personnel were
"occastonally" relied on for typing and filing "labor relations -sensitive ma-
terial ." The Employer states, however, that the classification of department
secretary was created , in part, to alleviate this system which "required the
department head or district superintendent personally to communicate or
record the confidential information, or else rely on the judgment , discretion
and divided loyalty of an employee within the bargaining unit."
for several applicants to interview for a position un-
der her. She stated that with the consultation of her
department head, who interviewed the applicants,
the choice was narrowed to two applicants. She
thereafter selected one of the applicants who was
hired as a probationary employee. Subsequently,
Burroughs made an appraisal of this employee and
effectively recommended that she be put on a perma-
nent status before the end of the normal probation-
ary period. In March 1974 another employee was as-
signed to work under Burroughs' supervision.
Burroughs stated that she has the authority to assign
work and grant time off. In one instance she denied a
request for time off by one of the employees under
her because "the workload was heavy." 3 She also
stated that she independently authorizes overtime
and makes recommendations with respect to sick
leave in situations where the employee has exhausted
her sick leave under the collective-bargaining agree-
ment. Burroughs testified that, while she has crit-
icized the two employees, she has never disciplined
them. She stated that if she thought disciplinary ac-
tion was necessary she would discuss the matter with
her department head and make a recommendation to
him.
Upon review of the entire record we find that Rol-
lins, Joy, Davis, and Burroughs have the authority
effectively to recommend the hire of employees, and
to assign and oversee their work. We conclude they
have the authority to act as, and have actually exer-
cised the authority of, supervisors. Accordingly, we
shall exclude them from the unit .4
Mattingly is a department secretary for Robert E.
Mitchell, the director of public and personnel rela-
tions.' This new department was created in Decem-
ber 1973. The Employer contends that she is a confi-
dential employee because she serves in a confidential
capacity to Mitchell.
Mitchell testified that, inter alia, he deals in the
"areas of personnel . . . job related problems, union
related problems . . . [and] problems that exist in
management categories . . . dealing with . . . other
superintendents and the union and personnel-related
problems, counseling with them ...." Thus, Mit-
chell has discussed grievances with district superin-
tendents and has advised them on what positions to
take in response to grievances. He has taken part in
discussions with the Employer's general manager and
the board of directors' labor committee concerning
3 Following this incident , Burroughs stated that she informed both em-
ployees that in the future she would require a prior notice of 2 days in the
case of annual leave and that if such notice were not given the request could
be denied depending on the workload and the circumstances at the time.
4 In view of our decision herein , we find it unnecessary to decide whether
or not these individuals are confidential employees.
S She also works for the job training and safety instructor and for the
member home services advisor who are both supervised by Mitchell.
SOUTHERN MARYLAND ELECTRIC COOPERATIVE, INC.
contract negotiations . During these discussions, al-
ternative positions of the Company and the Union
were discussed . He was also involved in the discus-
sions which led to the creation of the classification of
department secretary. He has been involved in dis-
cussions with company officials on the grievance
procedure resulting from alleged violations of certain
terms of the contract relating to promotions and va-
cancies. He has also discussed with department
heads and other management officials certain griev-
ances which arose prior to the time he became the
director of the department.
While Mattingly's current duties are basically the
same as they were before, she has, since becoming a
department secretary , been present and taken notes
at "all discussions . . . which [dealt with] union relat-
ed problems , grievances, the contract , etc.," includ-
ing a discussion of the issues involved in this pro-
ceeding.6 She also has access to all files in the
personnel office and the personnel files in the general
manager's office.
Mattingly testified that her duties include opening
the mail , writing correspondence , answering the
phones, and taking dictation. She further testified,
consistent with Mitchell's testimony, that she has sat
6 Employees who occupy jobs within the bargaining unit do not attend
these meetings.
981
in on discussions relating to personnel and union
matters , as well as discussions of the minutes of su-
pervisors' monthly meetings? She was also told that
her duties will include typing Mitchell's recommen-
dations and proposals with respect to future collec-
tive-bargaining negotiations, grievances, and prob-
lems related to the Union.
Upon the basis of the entire record we find that
Mattingly is a confidential secretary to Mitchell,
who, the record shows, formulates, determines, and
effectuates management policies in the field of labor
relations.' Therefore, we find that she is a confiden-
tial employee and we shall exclude her from the unit.
From the foregoing we conclude that the depart-
ment secretary classification cannot properly be in-
cluded in the bargaining unit. Accordingly, we shall
clarify the unit to exclude the classification of depart-
ment secretary.
ORDER
It is hereby ordered that the currently recognized
bargaining unit be, and it hereby is, clarified to ex-
clude the classification of department secretary.
7 The record reveals that , while these minutes were at one time available
to some unit employees, they are not now available to unit employees.
8 Moore-McCormack Lines, Incorporated, 181 NLRB 510, 512-513 (1970),
and cases cited in In . 8 therein.