Ohio State Legal Services Association

National Labor Relations Board - Board Decisions

Dec 6, 1978

239 N.L.R.B. 594 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR REI.ATIONS BOARD
Ohio State Legal Services Association and Ohio State
Legal Services Association Employees Union,' Peti-
tioner. Case 9 RC-12286
December 6, 1978
DECISION AND DIRECTION OF ELECTIONS
BY CHAIRMAN FANNING AND Mi MBERS PENFI. lO
AND) ITR tlSi)AI I
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held in Columbus, Ohio, on December
16, and 21, 1977, and January 10, February 13 14,
and March 14 15, 1978, before Hearing Officer
James E. Horner of the National Labor Relations
Board. Pursuant to Section 102.67 of the Board's
Rules and Regulations and Statements of Procedure.
Series 8, as amended, this case was transferred by the
Regional Director for Region 9 to the National La-
bor Relations Board for decision. The Employer filed
a brief.
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 reviewed the Hearing Officer's rul-
ings made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby af-
firmed.
Upon the entire record in this proceeding, the
Board finds:
1. The Employer is a nonprofit corporation orga-
nized under the laws of Ohio. It is the grantee and
administrator of three separate and segregable
grants, which support the activities of the Ohio State
Legal Services Association (OSLSA). Food Action
Community Education Project (FACE), and South-
eastern Ohio Legal Services Project (SEOLS). 2
The Employer contends that each of these funding
projects is a separate employer and that since the
Employer named in the petition, OSLSA, when con-
sidered alone, has an annual gross revenue of less
than $250,000, the Board should decline to assert ju-
risdiction based on its decision in Camden Regional
Legal Services, Inc., 231 NLRB 224 (1977). This argu-
ment is without merit. OSLSA, which is the only in-
corporated legal entity of the three, has the same
board of trustees as the other projects. Its own opera-
The name of the Petitioner appears as amended at the hearing.
Each project will be referred to by its acronym OSLSA will be used to
designate those of the Employer's employees whose activities are primaril 5
funded by grants other than those suppor ting FACE and SEOI.S The three
projects together will be referred to as the }(mploer
tions are partially supported by the funds for SEOIS
and FACE, to the extent that OSLSA's staff and ser-
vices are utilized by SEOLS and FACE. Moreoever,
OSLSA is not only the legal grantee for all the pro-
grams, it also retains tight managerial, administra-
tive, and supervisory authority over the other pro-
jects. Thus, we conclude that OSLSA is the Employer
for the employees in all three projects.
The aggregate of the grants supporting the Em-
ployer's three programs is well over $250,000, with
almost all of the funds coming from the Legal Ser-
vices Corporation and the Community Services Ad-
ministration. In addition, during the 12 months pre-
ceding the filing of the petition, the Employer has
spent approximately $13,800 for lawbooks from pub-
lishers outside the State of Ohio. $9,000 for office
supplies from a New York concern, and between
$2,000 and $2,500 or malpractice insurance from an
out-of-state carrier. Thus, the Employer's operations
clearly have a substantial effect on interstate com-
merce so as to establish the required statutory juris-
diction and an annual gross revenue sufficient to
meet the Board's discretionary jurisdictional stan-
dard for law firms and legal assistance programs. See
Wayvne Countrl NciShhorhood Lgal Services. Inc.. 229
NLRB 1023 (1977); Camreden Regional lengal Senrvices,
Inc., supra.
Accordingly, we find that the Employer is engaged
in commerce within the meaning of the Act and that
it will effectuate the purposes of the Act to assert
jurisdiction herein.
2. The Ohio State Legal Services Association Em-
ployees Union is an organization within the meaning
of Section 2(5) of the Act.
3. A question affecting commerce exists concern-
ing the representation of employees of the Employer
within the meaning of Section 9(c)(1) and Section
2(6) and (7) of the Act.'
4. The appropriate unit: The Employer's head-
quarters is located in Columbus, Ohio, and houses
the offices of OSLSA and FACE, where approxi-
mately one-half of the employee complement works.
The remaineder of the employees are distributed
throughout the various SEOLS area offices. There
are four main offices servicing discrete geographical
areas in Ohio. The offices are located in Zanesville.
Chillicothe. Portsmouth, and New Philadelphia. Due
I he iEnplhoer algues that a iaucstion conc:rning representation does
not exist because there wails no showing of Interest for the Pelitioner narnied
In the petition I he hasis for this contention is that Iwo I.ttorne -emplosees
entered their ilamnes in the space ,in the pelition reserted for the Peltitioner'
name while Ihe a.lcompanilng authoriiatiuon cards establishing the showsing
lf interest were made out in the name of OfSI S ' F .A(CE SfOIS Employ-
ees U nion We find thrit the underlying letitllner was the same throughout
and that the subsecquent rnmeidnient of Ihe liarie ilf the Petitloner cured ant
error In the fornial petitiomn %ithluit prelpIadc toi the I mployuer In an -re-
..p~ci
594
OHIO STATE LEGAL SERVICES ASSN.
to the size of its area, the New Philadelphia office
also maintains satellite offices.
OSLA's functions include initiating litigation with
law reform consequences for the poor, providing
backup legal expertise for legal aid groups in Ohio,
lobbying on legislative matters concerning the poor,
working with community groups on issues related to
OSLSA's mandate, and administering and supervis-
ing the FACE and SEOLS projects. The FACE grant
funds a three-person operation which provides advo-
cacy and education services in the area of Federal
food programs. SEOLS provides routine legal ser-
vices to the poor population in certain counties in
Ohio.
The Petitioner seeks to represent the professional
and nonprofessional employees in all of the Employ-
er's offices. The Employer contests the appropriateness
of the scope of that unit and the unit placement of some
of the employees.
A. The Scope of the Unit
The Employer contends that the petitioned-for
unit is inappropriate and that the only appropriate
units would be ones limited to the Employer's indi-
vidual offices. The Employer cites three factors to
support its position: (1) the distance between the of-
fices; (2) the lack of interchange among the employ-
ees working at the different offices; and (3) the dif-
ferent working conditions and supervision of the
employees at each location as a result of the autono-
mous authority of the managing attorneys in the lo-
cal offices. We reject the Employer's contention and
conclude that there is sufficient homogeneity among
the employees in all the Employer's offices to war-
rant finding that the petitioned-for unit constitutes
an appropriate unit.
Despite the substantial distances between some of
the offices and the infrequent interchange of employ-
ees, the record clearly demonstrates that the employ-
ees share a community of interest. They are subject
to the same overall labor relations and personnel pol-
icies. There is one personnel manual which applies to
all the offices and establishes uniform rules and ben-
efits, inter alia. those concerning health benefits,
malpractice insurance, vacation leave, sick leave,
breaktime, grievances, etc. Moreover, the decision-
making authority' in almost all personnel matters of
importance, such as hiring, firing, discipline, and
promotions, rests in the main office. Even the consid-
erable discretion of the individual office or project in
professional matters is monitored by the top hierar-
chy in Columbus. Elaborate computer printouts are
used to evaluate case management in all the offices.
and policy decisions on legal issues are made after
consultation with the main office.
Based on the above and other similar evidence in
the record, we conclude that the employees work un-
der similar conditions (as defined in the personnel
manual), receive the same benefits, and have the
same overall supervision, especially as it relates to
their initial employment, promotion, discipline, and.
ultimately, tenure with the Employer. Accordingly,
we find that a unit including the employees at all the
Employer's locations is appropriate. The Employer's
professional employees must, of course, be accorded
a separate vote as to whether they' wish to be includ-
ed in the overall unit, as mandated by Section 9(b)(1)
of the Act.
B. The Composition of the Unit
The Employer has approximately 50 employees, 21
in the Columbus office and 29 in the SEOLS offices.
The top managers are Martens, the executive direc-
tor; Baker, the assistant director; Friedman, the di-
rector of litigation; and Schmidt, the office adminis-
trator. Martens and Baker supervise all of the
Employer's operations. Friedman is concerned pri-
marily with overseeing the litigation matters, and
Schmidt runs the Employer's entire support staff. Of
the remaining 17 employees in the Columbus office,
8 perform support tasks and 9 are involved in law-
related activities. Those latter employees include the
three FACE employees: Weinberg, the project direc-
tor; Giraham, the project coordinator; and Cooper,
the project assistant; the two legislative lobbyists,
Mapes and Miller; and a legal section which consists
of Mullinax. another attorney, and two law clerks.
The support staff includes three secretaries, one of
whom is assigned to the FACE project; an adminis-
trative secretary, Maddamma; two clerks; an ac-
counting specialist, Plummer; and an accounting
clerk. In each of the SEOLS offices there is a manag-
ing attorney, three or four staff attorneys, and two or
three support staff,4 including one administrative sec-
retarN.
The parties agree that the professional comple-
ment should include the staff attorneys, with one ex-
ception, and the law assistants who have graduated
from law school but are not yet admitted to the bar.
The Petitioner would also include Mapes, the staff
attorney who is the legislative lobbyist, and Plum-
mer, the accounting specialist.
We agree with the Employer's contention that em-
ployees Plummer and Mapes should be excluded
from the group of professionals. Although Plummer
4 In the Ne, Philadelphi; office. there Is a larger ,upporl staff due to the
slatellite offices
505
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is the Employer's accounting specialist, she does not
have a college or accounting degree, and there is no
evidence that such is a job requirement. Accordingly,
we find that she does not qualify as a professional.
With respect to Mapes, he is an attorney and, as a
lobbyist, apparently utilizes his professional expertise
in the performance of his job. Nevertheless, his pro-
fessional training is not a requirement of his job. His
duties do not differ substantially from those of the
other legislative lobbyist, Miller, who has not com-
pleted law school. Accordingly, we find that, in his
capacity as a legislative lobbyist, his professional
training is not a job requirement and thus he does
not qualify as a professional employee.
Remaining for consideration is the unit placement
of the following employees, who the Employer con-
tends should be excluded from the unit: Mullinax, a
senior staff attorney; Weinberg, the FACE project
director; Mapes, the staff attorney-lobbyist; Miller,
the legislative lobbyist; the administrative secre-
taries; Plummer, the accounting specialist; the Re-
gional Heber Smith Fellowship recipient; 5 and a de-
moted managing attorney, John Smith.6
Mullinax, Weinberg, and Mapes
The Employer contends that these employees are
supervisors and/or managerial employees. Since the
evidence proffered in support of this contention is
related, we will consider the status of these individ-
uals together.
Mullinax is the Employer's acknowledged expert
in welfare law. His responsibilities as senior staff at-
torney include consulting on substantive legal mat-
ters, initiating and assisting in law reform litigation,
working with community groups concerned with wel-
fare rights, and providing backup legal support to the
two paralegals in the FACE project, Graham and
Cooper, who represent individuals in administrative
"fair hearings." 7 Friedman is his immediate super-
visor. The Employer contends that those duties in-
5This attorney, referred to as the "Reggie," is paid by funds from a
fellowship foundation administered by Howard University, which under-
writes the salary of legal aid lawyers throughout the country. Although
previously the Employer used "Reggies," none was working for the Em-
ployer at the time of the hearing, and there was evidence that the Employer
has ilot applied for one in the near future. Thus, we will reserve our decision
on the Employer's contention that because of the outside funding source the
"Reggie" is not an employee of the Employer.
6Smith was the former managing attorney for the New Philadelphia of-
fice and before the hearing was demoted to a status of unclear dimensions
pending the final disposition of the disciplinary action against him. Since
both the nature of his position and his tenure with the Employer are uncer-
tain, we will also reserve our decision as to his placement in the unit and will
allow him to vote in the election in the professional group subject
to challenge.
"The 20 percent of Mullinax's salar', that is paid for b? FACE funds
reflects the percentage of his time that he works for the project as its legal
advisor.
clude the supervision and evaluation of the FACE
paralegals, involvement in the hiring process, partici-
pation in the Friday morning "management" meet-
ings, and independent power to establish the Em-
ployer's policy on welfare matters.
The record, however, reveals that the Employer's
characterization of Mullinax's authority is exaggerat-
ed. As described by Mullinax and the two paralegals
he directs, Graham and Cooper, his relationship with
them is merely advisory, although as a matter of
form he is the attorney of record in many of their
cases and has ethical responsibilities which flow from
that status. Both Graham and Cooper essentially op-
erate on their own, seeking Mullinax's advice and
judgment when they have problems, particularly le-
gal questions, in areas within his expertise. Thus,
Mullinax's direction of the paralegals is merely inci-
dental to his professional role as the attorney for the
FACE project and is not the exercise of supervisory
authority.8
Mullinax's comments on one of Graham's evalua-
tions are also not indicative of any supervisory au-
thority. Rather, this participation in the evaluation
was at the behest of the admitted supervisor seeking
information about Graham's performance from a se-
nior employee who had worked with her. Mullinax
has not contributed to any other evaluations. In fact,
other employees have commented on Graham's eval-
uations. Furthermore, the Employer's evaluation
procedure is generally an informal one that is initiat-
ed by the employee's completing a self-evaluation
and is subject to independent review and investiga-
tion by the executive director.9
Similarly, Mullinax's participation in the hiring
process is also more in the nature of informed advice
to management than an indication of the effective
power to recommend. To an even greater extent than
in the evaluation process, the Employer involves
most of the employees in the hiring process. Typical-
ly, the staff affected by the new hire will interview
and screen applicants, recommending a limited num-
ber of candidates to Martens, who then interviews
them and makes a selection. Mullinax, as the former
leader of the FACE project, was asked to participate
in the selection of its new director. After screening
and interviewing applicants, he made his recommen-
dations. After reviewing the candidates, Martens
made the final selection and chose Weinberg, who
was not Mullinax's first choice.
The Employer also ascribes significance to
Mullinax's attendance at the Friday morning "man-
agement" meetings. Despite the Employer's charac-
See Neighhborhood Legal Servire.s, Inc., 236 NLRB 1269 (1978).
The personnel manual specifically reserves to the executive director this
nght
596
OHIO STATE LEGAL SERVICES ASSN.
terization of these meetings, a more reasonable inter-
pretation of the record is that the meetings are infor-
mational and provide a regular forum for communi-
cation and discussion. These meetings are held over
breakfast in a local restaurant which is apparently
patronized regularly by the employees. The Friday
meetings are far from exclusive. Mullinax testified
that he often attended merely because he was eating
in the restaurant that morning. Employees readily
substitute for each other at the meetings, the only
requirement being that each operating area be repre-
sented. That the Employer would hold such meetings
is consistent with the procedures described above for
evluations and hiring, which also involve feedback
from the staff, with the decisionmaking power vested
in the top hierarchy. As such, attendance at these
meetings is not evidence of supervisory or manage-
rial rank.
Sanford Weinberg is the project director of FACE,
which includes two other paralegals and a secretary.
According to the Employer's witness, Assistant Di-
rector Baker, Weinberg was responsible for writing
the grant proposal and on day-to-day matters is re-
sponsib!e for implementing the goals of the project.
The Employer contends that these responsibilities
are managerial and supervisory in nature, since in
drawing up the proposal Weinberg created job posi-
tions, set salaries, and determined the Employer's
policy and since in implementing the program he in-
fluences the hiring of personnel, manages the work
assignments, evaluates the other FACE employees.
and otherwise administers the project.
Again, as with Mullinax, the record reveals that
the Employer's characterization of the degree of
Weinberg's independent authority to supervise the
FACE employees is inflated. The description of
Weinberg's independent role in creating the proposal
is misleading. Weinberg testified that his discretion
in writing the grant proposal was limited, since he
was carefully supervised by Baker in its preparation.
Although he recommended salary levels for the staff
as part of the budget section of the proposal, those
recommendations were subject to the same careful
scrutiny as the rest of the document." Weinberg's
decisions as to the substance of the proposal were
technical grantsmanship judgments geared to what
would be most successful in terms of getting funded.
As far as Weinberg's responsibilities in the imple-
mentation of the project, the Employer would have
us elevate the role of a team leader to that of a supe-
rior in the strict hierarchical sense." Baker character-
ized Weinberg as the head of his section with ulti-
O See Fordham University, 214 NLRB 971. 972-973 (1974).
' See Trailback, Inc., 221 NLRB 527 (1975).
mate responsibility for its operations.'2 According to
Weinberg and his two coworkers, however, they
work cooperatively and by consensus. Although he
spends 10-15 percent of his time coordinating the
activities of the FACE employees and on administra-
tive duties, Weinberg stated that his authority is lim-
ited to reasoned persuasion. In the event of a dispute
that the three of them could not resolve on their own,
they all agreed that Weinberg does not have the au-
thority to give a binding directive. Weinberg does not
assign them work. Each of the FACE workers choos-
es his or her areas of concentration after consultation
as a group." Although they regularly meet to provide
feedback for each other and to coordinate their ef-
forts when appropriate, they operate independently.
Employees outside FACE routinely approach Gra-
ham and Cooper with projects without first clearing
them with Weinberg.
The Employer also contends, as it does with Mulli-
nax, that Weinberg's supervisory authority is estab-
lished by his participation in hiring, evaluations, and
the management meetings. In addition to our find-
ings with respect to Mullinax, the evidence of
Weinberg's role in these areas clearly demonstrates
that these activities are not indicative of supervisory
status. When Martens requested Weinberg's com-
ments on Graham's evaluation, he also specifically
stated that he would retain final responsibility for it.
Moreover, Graham testified that although Weinberg
never discussed the evaluation with her, Martens
visited her expressly for that purpose. As for
Weinberg's role in the hiring '' of the third FACE
employee, his role in screening and interviewing the
applicants for Martens was identical to that of Gra-
ham, an admitted nonsupervisor. Similarly, Graham
occasionally substituted for Weinberg at those Fri-
day breakfast meetings discussed previously.
Robert Mapes is the senior member of the legisla-
tive team and is the Employer's main lobbyist. He
receives requests for assistance on bills from the Em-
ployer's clients, other staff attorneys, and legislators.
The Employer argues that Mapes supervises the
other member of the legislative team, Miller, includ-
ing directing, assigning, and evaluating her work:
1: The Employer's personnel manual sets the policies with respect to time
off. vacations, leave. etc. To the extent that Weinberg has any responsibili-
ties In these areas, they do not involve an- independent judgment. ihe
FACE employees testified that as a practical matter such decisions are han-
dled informally and cooperatively. with each person having the initial re-
sponsibility for insuring that his work is not adversely affected
Aside from his responsibilities with respect to the proposal and certain
routine administrative tasks, Weinberg's duties do not differ from those of
the others in the project in terms of their hierarchical importance. Although
he does not participate in the adrmnistrative fair hearings. Weinberg does
the same kind of community education work as Graham.
4 The Employer also argued that Weinberg hired the secretary for the
FACE project. Weinberg, however. stated that Schmidt, the office adminis-
trator. transferred the secretary to the FACE- staff and that he had no role
in selecting her.
597
DECISIONS OF NATIONAL LABOR RELATIONS BOARII
controlling her overtime, vacation, and leave; and ef-
fectively recommending her promotion, discipline, or
discharge.
Again the evidence of specific instances in the rec-
ord does not support the Employer's characterization
of the degree of Mapes' authority. Although Mapes
did not testify, Miller clearly stated that, while
Mapes as the senior person often assisted and ad-
vised her, he did not have the authority to direct her.
Even though Miller sought his counsel, she insisted
that in the event of a conflict both she and Mapes
would resort to Baker to resolve the dispute. Other
employees testified that they have dealt directly with
Miller without consulting Mapes. In addition, Miller
spends approximately one-half of her time engaged
in activities other than lobbying, which are unrelated
to Mapes' responsibilities. When engaged in lob-
bying she performs the same tasks as Mapes and gen-
erally operates independently, working on separate
projects.' 5 Thus, Mapes' direction of the less senior
Miller, such as it is, is attributable to his experience
and expertise on the job rather than to any superviso-
ry status.'16
The Employer also contends that Mapes effective-
ly recommended Miller for her promotion. Although
Baker testified that as a practical matter Mapes' rec-
ommendation was all that was necessary, the weight
of the evidence indicates that the promotion was a
result of independent investigation by the directors
which included the solicitation of Mapes' opinion.'7
Miller did not approach Mapes with her request for a
promotion. She went directly to Martens and met
only with him and Baker to discuss it. Furthermore.
as a general rule, such personnel matters are the ex-
clusive province of Baker and Martens.
Finally, the Employer makes the same argument
with respect to Mapes as it did with respect to Wein-
berg concerning attendance at the breakfast meetings
and the administrative duties as head of a section.'
In summary, with respect to Mullinax, Weinberg,
and Mapes, Assistant Director Baker's testimony
suggests, and the Employer contends, that they effec-
tively recommend the employment, promotion, and
discipline of employees in addition to responsibly di-
recting them in their work. However, as described
above, their authority and independent judgment in
these areas are severely limited. Although their feed-
The Employer in its argument that Miller is a managerial employee
contends that she "determines the OSLSA legislative position without con-
sultation with Bob Mapes .. ." This statement, which is somewhat incon-
sistent with its contention regarding Mapes, does. however, support a find-
ing that Miller operates independently.
See National Bureau of Economic Research. Inc.. 216 NLRB 171. 172
(1975).
1S Id.
Is See fn. I1. supra
back is solicited and required, sometimes along with
that of admittedly nonsupervisory employees. their
judgments are clearly subject to independent reas-
sessment by the director and assistant director, who
alone have the power to make personnel decisions.
Concerning the direction of employees, apart from
Baker's statements, the record is unanimous that
Mullinax, Weinberg, and Mapes work cooperatively
with their colleagues and that their direction, such as
it is, is a function of experience and expertise rather
than authority in the interest of the Employer. Aside
from Baker. not one witness suggested that in the
event of some unresolved dispute either Mullinax,
Weinberg, or Mapes could direct a result that would
not be subject to independent investigation and re-
view by the stipu'ated supervisors. Accordingly, we
find that the weight of the evidence demonstrates
that neither Mullinax, Weinberg, nor Mapes exercis-
es the requisite independent authority that would
warrant their exclusion from the unit as supervisors.'9
The Employer's alternative contention that Mulli-
nax, Weinberg, and Mapes should be excluded from
the unit as managerial employees is without merit.
The Employer argues that all three employees formu-
late, determine, and effectuate management policies
because they shape the Employer's policy in the ar-
eas of their work such as welfare reform, legislative
lobbying, and Federal food programs and as a result
commit the Employer's manpower and resources.20
We have consistently stated, however, that manage-
rial authority is not vested in employees merely be-
cause their work performance may influence an em-
ployer's direction. See Neighborhood Legal Services.
.supra: General Dynamics Corporation, 213 NLRB 851
(1974). In this case only the executive director and
possibly the assistant director have the authority to
formulate, determine, and effectuate management
policies with respect to labor relations.2 ' Accordingly,
we find that Mullinax. Weinberg, and Mapes are not
managerial employees.
Administrative Secretaries
In each of the four main SEOLS offices one of the
secretaries is designated as the administrative secre-
tary. In the Columbus office the administrative secre-
19 See Neighhborhhood Legal Services. In, supra.
20 With respect to Weinberg, the Employer relies on his preparation of the
grant proposal. As noted before, h wever. his performance In this area was
closely supervised by Baker and Martens. Moreover. Martens had the final
approval of the proposal and submitted it himself to the granting agency.
Fhus, as with Mullinax and Mapes. Weinberg's judgments are subject to
institutional limitations and supervision and do not constitute the authority
Io formulate, determine. and effectuate management policies with respect to
labo relations.
l ()n the basis of this finding and the la.ck of evidence demonstrating
sufficient involvement with labor relations, we reject the Employer's argu
mnents that Miller and Plummer are managerial employees.
598
OHIO STATE LEGAL SERVICES ASSN.
tary, Angela Maddamma, is assigned to Martens and
Baker. The Employer's assertion that the administra-
tive secretaries in the SEOLS offices are supervisors
is without merit. There is no evidence that the ad-
ministrative secretaries have anything but routine re-
sponsibilities with respect to the one or two other
members of the support staff in an office. The only
differences in work between the administrative secre-
taries and the other secretaries are such routine du-
ties as maintaining timesheets, handling petty cash,
and writing checks for court costs. Their only direc-
tive responsibilities are to see that the work is evenly
distributed, although such assignment of work is in-
formal and essentially cooperative. Moreover, nei-
ther of the two out of four administrative secretaries
who testified stated that administrative secretaries
had any authority over other employees.
With respect to the confidential status of the ad-
ministrative secretaries, the record clearly demon-
strates that they do not work in a confidential capaci-
ty for persons who formulate, determine, and
effectuate management policies with regard to labor
relations. The administrative secretaries work for the
managing attorneys. Although the managing attor-
neys are stipulated to be supervisors, they are cer-
tainly not persons who formulate, determine, and ef-
fectuate management policies with regard to labor
relations. As noted previously, personnel matters are
laid out in detail in the personnel manual, and the
Employer's labor relations are administered in a
highly centralized fashion. Individual determinations
on hiring, discipline, firings, and promotions are all
made by the central office. Staffing decisions are
similarly made by those in charge in the Columbus
office.
The Employer makes the same contentions with
respect to the administrative secretary in the Colum-
bus office, Angela Maddamma. On the supervisory
issue, the Employer does not cite any evidence estab-
lishing Maddamma's authority. Her position, how-
ever, as secretary for Martens and Baker does sug-
gest at first glance that she is a confidential
employee. Martens and Baker, as the Employer's top
administrators, clearly formulate, determine, and ef-
fectuate management policies with respect to labor
relations. She has typed the minutes of the Board
meetings, has typed several memoranda dealing with
the Petitioner, and has prepared letters and memo-
randa concerning other personnel action, including
evaluations. Nevertheless, the record is deficient on
the critical issue 22 of whether Maddamma operates
in a confidential capacity. Her assignment to Mar-
tens and Baker was a result of a recent division of
22 See Ernst A Ernsl National Warehouse. 228 NLRB 590. 591 (1977)
secretaries as part of a changeover from the "pool"
system. Maddamma testified that she was never told
that her role was confidential or that there were cer-
tain matters that could not be farmed out to other
secretaries.2 In fact, on one occasion Baker made a
general request to all the secretaries for a volunteer
to come in on a weekend to type some confidential
matters relating to a grievance hearing. This indis-
criminate request belies the Employer's contention
that Maddamma's status is distinguishable from that
of the other secretaries. Thus, since the record does
not establish that Maddamma's role is a confidential
one, we will include her in the unit.
The Accounting Specialist
Plummer, as the accounting specialist, is responsi-
ble for the Employer's financial records, maintaining
its accounts and preparing its budgets and tax state-
ments. She is assisted by Linda Myrick, an account-
ing clerk. According to Baker, Plummer directs Myr-
ick in her work, is responsible for her evaluation,
could effectively recommend her discharge, and au-
thorizes her overtime, vacation, leave, etc. Myrick
performs essentially routine tasks such as preparing
vouchers for payment and checks, tallying the bank
reconciliations, and handling petty cash reimburse-
ments.
The Employer contends, based on Baker's testi-
mony, that Plummer is a supervisor and/or confiden-
tial employee. Plummer, however, directs only one
employee, Myrick, who at the time of the hearing
had been employed for only 5 or 6 weeks. There are
no concrete examples of the supervisory authority
that Baker testified Plummer exercises. The person-
nel manual provides that such matters as leave, over-
time, and vacations must be authorized by the office
administrator, who is Plummer's superior. Myrick's
work requires little supervision except doublecheck-
ing the financial work. Although Plummer assigns
Myrick work, the range of tasks seems to be well
defined. Thus, Plummer's exercise of independent
judgment in that respect is limited. Any delegation of
substantial power to Plummer in personnel matters
appears inconsistent with the otherwise tight control
management employees retain over the operation.
Furthermore, since Plummer reports to Schmidt, the
office administrator, and Baker, the assistant direc-
tor, who are both responsible to Martens, if Plummer
also supervised Myrick the chain of command would
seem to be unreasonably topheavy. Thus, the weight
of the evidence demonstrates that Plummer's direc-
tion of Myrick is merely incidental to her responsibil-
23 It is office practice to spread work around when one secretary is over-
burdened.
599
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ities as the accounting specialist and does not involve
supervisory authority. Accordingly, in the absence of
other specific examples of supervisory authority, we
find that Plummer is not a supervisor as defined in
the Act.
The Employer's alternative argument that Plum-
mer is a confidential employee is without merit, in
view of our decisions stating that mere access to even
confidential financial data is not sufficient to qualify
one as a confidential employee. Planned Parenthood
Association of Miami Valley. Inc., 217 NLRB 1098
(1975). Accordingly, we shall include Plummer in the
unit.
In sum, we find that the following employees may
constitute a unit appropriate for purposes of collec-
tive bargaining within the meaning of Section 9(b) of
the Act:
All regular professional, paraprofessional, of-
fice, and clerical employees, including the senior
staff attorney, the staff attorneys, the legislative
agent, the project director, project coordinator,
and the project assistant of the Food Action
Community Education Project, the law assis-
tants, the law clerks, the accounting specialist,
the accounting clerk, secretaries, receptionists,
and clerks employed by the Employer in all its
offices in Ohio; excluding the executive director,
the assistant director, the director of litigation,
the office administrator, the managing attor-
neys, and all confidential employees, managerial
employees, and supervisors as defined in the
Act.
The unit set out above includes professional and
nonprofessional employees. However, as previously
noted, the Board is prohibited by Section 9(b)(1) of
the Act from including professional employees in a
unit with employees who are not professionals unless
a majority of the professional employees vote for in-
clusion in such a unit. Accordingly, we must ascer-
tain the desires of the professional employees as to
inclusion in a unit with nonprofessional employees.
We shall therefore direct separate elections in the
following voting groups:
Voting Group A: All regular paraprofessional,
office, and clerical employees, including the
staff attorney performing lobbying functions,
the legislative agent, the project director, project
coordinator, and project assistant of the Food
Action Community Education Project, the law
clerks, the accounting specialist, the accounting
clerk, secretaries, receptionists, and clerks em-
ployed by the Employer in all its offices in Ohio;
excluding the executive director, the assistant di-
rector, the office administrator, the director of
litigation, the managing attorneys, the senior
staff attorney, staff attorneys performing tasks
requiring a legal degree, and all confidiential
employees, managerial employees, and supervis-
ors as defined in the Act.
Voting Group B: All regular professional em-
ployees including the senior staff attorney, the
staff attorneys performing tasks requiring a legal
degree, law assistants employed by the Em-
ployer at all its offices in Ohio; excluding the
executive director, the assistant director, the di-
rector of litigation, the office administrator, the
staff attorney performing lobbying functions,
the legislative agent, the project director, the
project coordinator, and the project assistant of
the Food Action Community Education Project,
the accounting specialist, the accounting clerk,
the law clerks, the secretaries, receptionists, and
clerks, and all confidential employees, manage-
rial employees, and supervisors as defined in the
Act.
The employees in the nonprofessional voting
group A will be polled to determine whether or not
they wish to be represented by the Union.
The employees in voting group B will be asked two
questions on their ballots:
(I) Do you desire that the professional em-
ployees be included in a unit composed of all
professional employees and nonprofessional em-
ployees of the Employer for the purpose of col-
lective bargaining?
(2) Do you desire to be represented for the
purpose of collective bargaining by the Ohio
State Legal Services Association Employees
Union?
If a majority of the professional employees in vot-
ing group B vote "yes" on the first question, indicat-
ing their wish to be included in a unit with nonpro-
fessional employees, they will be so included. Their
vote on the second question will then be counted to-
gether with the votes of the nonprofessional voting
group A to determine whether or not the employees
in the whole unit wish to be represented by the
Union. If, on the other hand, a majority of profes-
sional employees in voting group B vote against in-
clusion, they will not be included with the nonprofes-
sional employees. Their votes on the second question
will then be separately counted to determine whether
or not they wish to be represented by the Union.
There is no indication in this record that the Union
would be unwilling to represent the professional em-
ployees separately if those employees vote for sepa-
600
OHIO STATE LEGAL SERVICES ASSN.
rate representation. However, if the Union does not
desire to represent the professional employees in a
separate unit even if those employees vote for such
representation, the Union may notify the Regional
Director to that effect within 10 days of the date of
this Decision and Direction of Elections.
Our unit determination is based, in part, then,
upon the results of the election among the profes-
sional employees. However, we now make the follow-
ing findings in regard to the appropriate unit:
i. If a majority of the professional employees vote
for inclusion in the unit with nonprofessional em-
ployees, we find that the following will constitute a
unit appropriate for purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All regular professional, paraprofessional, of-
fice, and clerical employees, including the senior
staff attorney, the staff attorneys, the legislative
agent, the project director, project coordinator,
and the project assistant of the Food Action
Community Education Project, the law assis-
tants, the law clerks, the accounting specialist,
the accounting clerk, secretaries, receptionists,
and clerks employed by the Employer in all its
offices in Ohio; excluding the executive director,
the assistant director, the director of litigation,
the office administrator, the managing attor-
neys, and all confidential employees, managerial
employees, and supervisors as defined in the
Act.
2. If a majority of employees in each voting group
vote for the Union but a majority of professional
employees do not vote for inclusion in the unit with
nonprofessional employees, we find that the follow-
ing two groups of employees will constitute separate
units appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the
Act:
Unit A: All regular paraprofessional, office, and
clerical employees, including the staff attorney
performing lobbying functions, the legislative
agent, the project director, project coordinator,
and project assistant of the Food Action Com-
munity Education Project, the law clerks, the ac-
counting specialist, the accounting clerk, secre-
taries, receptionists, and clerks employed by the
Employer in all its offices in Ohio; excluding the
executive director, the assistant director, the of-
fice administrator, the director of litigation, the
managing attorneys, the senior staff attorney,
staff attorney:; performing tasks requiring a legal
degree. and all confidential employees, manage-
rial employees, and supervisors as defined in the
Act.
Unit B: All regular professional employees in-
cluding the senior staff attorney, the staff attor-
neys performing tasks requiring a legal degree,
law assistants employed by the Employer at all
its offices in Ohio; excluding the executive direc-
tor. the assistant director, the director of litiga-
tion, the office administrator, the staff attorney
performing lobbying functions, the legislative
agent, the project director, the project coordina-
tor. and the project assistant of the Food Action
Community Education Project, the accounting
specialist, the accounting clerk, the law clerks,
the secretaries, receptionists, and clerks, and all
confidential employees, managerial employees,
and supervisors as defined in the Act.
[Direction of Elections and Excelsior footnote
omitted from publication.]
601