Star Brush Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Aug 20, 1952

100 N.L.R.B. 679 (N.L.R.B. 1952)

STAR BRUSH MANUFACTURING CO., INC. 679
and was also responsible for the dinner arrangements. If, on the other band,
the dinner date was set after the conference, it must necessarily have been
done with knowledge that the election was scheduled for the following day.
I cannot agree with the Employer's contention that the timing of the dinner
was mere coincidence. A dinner of the kind here involved, so timed, and
representing a substantial deviation from the Employer's prior practices in such
affairs, cannot but have been calculated to affect the choice to be made by the
employees in the election the following day, and I so find. In the sense that
this dinner was unrelated to any business need of the Employer, it was an
unusual benefit to the employees; and as such, is no less interference with the
free choice of the employees because the Employer refrained from overt promises
of benefit than would be a wage increase or other change in working conditions
under similar circumstances."
I accordingly conclude that the dinner of June 12, 1951, constituted improper
interference with the election of June 13, 1951.
B. Conclusions and recommendations
It has been found that the Employer improperly interfered with the conduct
of the election in the above matter by the use of Boltz as its observer, and
further through the dinner for its employees on the eve of the election. It is
accordingly concluded that the Employer 's exceptions to the Regional Director's
report on objections are without merit, and it is recommended that the said excep-
tions be overruled . It is further recommended that the election be set aside
and a new election directed.
Any party may within 10 days from the date hereof file with the Board
in Washington , D. C., seven copies of exceptions hereto. Immediately upon
the filing of such exceptions the party filing the same shall serve a copy thereof
upon each of the other parties, and shall file a copy with the Regional Director
for the Thirteenth Region. Proof of service shall be made to the Board. If no
exceptions hereto are filed, upon the expiration of the said 10-day period the
Board may decide the matter forthwith upon the record , or may make other
disposition of the case , pursuant to Section 102.60 of the Board's Rules and
Regulations ; Series -6, as amended.
13 See, e. g., Spengler-I oomis Mfg Co., 95 NLRB 243.
STAR BRUSH MANUFACTURING CO., INC. and MARY MAHER, PETITIONER
and OFFICE EMPLOYEES' INTERNATIONAL UNION, LOCAL 6, AFL.
Case No. 1-RD 108. August 20, 1952
- Decision and Order
Upon a petition for decertification duly filed, a hearing was held
before David E. Davis, hearing officer. The hearing officer's
rulings made at the hearing are free from prejudicial error and are
hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
100 NLRB No. 111.
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The Petitioner, an employee of the Employer, asserts that the
Union is no longer the representative of certain employees of the
Employer, as defined in Section 9 (a) of the Act. The Union is a
labor organization recognized by the Employer as the exclusive bar-
gaining- representative for the',e iployees designated in the petition.
3. No, question affecting commerce exists concerning the repre-
sentation of employees of the Employer within the meaning of Sec-
tion 9 (c) and Section 2 (6) and (7) of the National Labor Relations
Act for the following reasons :
The bargaining unit for which the Union is herein sought to be
decertified- as representative consists of the Employer's clerical
employees. The Petitioner, one of these employees, is the secretary
to the Employer's general manager who participates in contract nego-
tiations and other labor relations matters with the Union involving
the employees concerned in this proceeding. Because of the Peti-
tioner's relation to the general manager, we find that she is a confiden-
tial employee similar to those whom the Board customarily excludes
from bargaining units. . The Petitioner, however, upon the Union's
insistence, has been included in the unit. The Union nevertheless
contends, in effect, that she is disqualified to file a decertification peti-
tion because she is a confidential employee. We find merit in this
contention.
Section 9 (c) (1) (A) of the amended Act provides in pertinent
part for the filing of decertification petitions "by an employee or
group of employees or any individual or labor organization acting in
their behalf" (emphasis supplied). The legislative history of the
Act and the precise language of this section indicate clearly that
Congress intended decertification proceedings to provide a remedy
exclusively for and in behalf of employees and not of employers.'
Accordingly, the Board has held that supervisors, because they are
'mtnageinent'representatives anal owe special loyalties to their employ-
ers which would subject them to conflicts in allegiance if they were
permitted to participate in union activities with employees, are dis-
qualified from filing decertification petitions.' Similarly, we regard
confidential employees to whom an employer entrusts secret labor
relations information vital to the interests of those fellow employees
with whom they may seek to engage in union activities, as persons who,
like supervisors, owe and are expected to manifest special loyalties to
their employers. Because these loyalties would subject them to con-
flicting allegiances if they were encouraged by this Board to partici-
pate in such activities ,3 this should, in our opinion, disqualify them
as petitioners in decertification proceedings.
' Clyde J Merrzs, 77 NLRB 1375 ; see Senate Report No. 105 on S 1126, p. 10.
s Clyde J. Merris, ibid.
See E. P. Dutton & Co., Inc., 33 NLRB 761.
STAR BRUSH MANUFACTURING CO., INC. 681
It is -totally irrelevant to these broad considerations that 'the Peti-
tioner had been included in the bargaining unit because of the Union's
insistence. The Petitioner's disqualification to file a decertification
petition is not cured by her inclusion in a bargaining unit from which
the Board has traditionally excluded such employees. The fact that
she had been erroneously included in the unit at the Union's own
insistence does not create competence where none would otherwise
exist. Accordingly we shall grant the Union's motion to dismiss the
petition filed in this case.
Order
Upon the basis of the foregoing findings of fact and the entire
record in this proceeding, the National Labor Relations Board hereby
orders that the petition filed by Mary Maher for the decertification
of Office Employees' International Union, Local 6, AFL, as the bar-
gaining representative of the employees of Star Brush Manufacturing
Co., Inc., be, and it hereby is, dismissed.
MEMBERS HOUSTON and PETERSON, dissenting :
We cannot agree with the determination of the majority that the
Petitioner, who has long been included in the bargaining unit, is in-
competent to file the present decertification petition.
Although her status is that of a confidential secretary, it is uncon-
troverted that Petitioner is an employee within the meaning of the
Act.' Section 9 (c) (1) (A), by its specific terms, provides that a
petition for decertification can be filed "by an employee." There-
fore, as a matter of law, Petitioner is not necessarily disqualified from
initiating this proceeding.
The majority nevertheless seeks to justify its disqualification of
the Petitioner by equating her status to that of the "supervisory rep-
resentatives of management" considered by the Board in the Merril
case, and holding that, like those individuals, she owes special loyal-
ties to the Employer which would subject her to conflicting allegiances
if she were to participate in union activities with other employees.
Such reasoning is clearly not persuasive in this case.
Initially, as already mentioned, Petitioner, unlike a supervisor, is
an employee under the Act. While a confidential secretary is ex-
cluded from a bargaining unit because of the nature of her work,5
she is not a representative of management solely by reason of her posi-
tion, nor is she prohibited from engaging in union activities merely
4 See Southern Colorado Power Co., 13 NLRB 699 , en-M. 111 F 2d 539 ( C. A 10) ;
N. ,L. R B. v. Poultrymen's Service Corp ., 138 F 2d 204 ( C A. 3). Cf. Coopersville Co-
operative Elevator Company , 77 NLRB 1083 ; American Book -Stratford Press, Inc., 80,
NLRB 914.
5 Brooklyn Daily Eagle, 13 NLRB 974, 986, and numerous cases thereafter.
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because of her status as a confidential employees Secondly, the
possible conflicts in allegiance adverted to by the majority are ob-
viously not present in this case, the Petitioner having been included
in the unit at the insistence of the very Union which now seeks to dis-
qualify her, and with the admitted acquiescence of the Employer.
Finally, we believe that the purposes of the Act are frustrated, rather
than effectuated, by withholding from an employee the express statu-
tory procedures for terminating the authority of the agent which has
been serving as her bargaining representative.'
Under the circumstances of this case, we would find that the Peti-
tioner is a proper party to file the petition, and we would direct an
immediate election.
° See cases cited in footnote 4, supra.
° Of course , it is unnecessary here to decide , nor do we, whether a confidential employee
not currently being represented by the statutory agent in the unit involved may properly
file a decertification petition.
CONTINENTAL CAN COMPANY, INC. and UNITED STEELWORKERS OF
AMERICA, CIO, PETITIONER . Cabe No. 10-RC-1836. August 21,
1952
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Allen Sinsheimer, Jr., hear-
ing officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Upon the entire record in this.case, the Board finds:
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent employees
of the Employer.
3. No question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act, for the following
reasons:
The Employer and the Intervenor, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local
#79, A. F. L., urge as a bar to this proceeding a contract between
them, effective by its terms until May 22, 1953. The Petitioner con-
tends that the contract should not operate as. a bar, alleging that it
contains (1) a maintenance-of-membership provision illegal under
Florida law, and (2) a so-called "harmony pledge" illegal under Sec-
tion 8 (a) (3) of the Act.
As to the first contention, the Florida State Constitution provides
that:
100 NLRB No. 118.