NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,534, E & L TRANSPORT COMPANY and LOCAL 710, HIGHWAY DRIVERS, DOCKMEN, SPOTTERS, RAMPMEN, MEAT PACKING HOUSE AND ALLIED PRODUCTS DRIVERS AND HELPERS, OFFICE WORKERS AND MISCELLANEOUS EMPLOYEES, CHICAGO/VICINITY, ILLINOIS., (Oct. 18, 1994), National Labor Relations Board, (Oct 18, 1994)

E & L TRANSPORT COMPANY and LOCAL 710, HIGHWAY DRIVERS, DOCKMEN, SPOTTERS, RAMPMEN, MEAT PACKING HOUSE AND ALLIED PRODUCTS DRIVERS AND HELPERS, OFFICE WORKERS AND MISCELLANEOUS EMPLOYEES, CHICAGO/VICINITY, ILLINOIS.

315 NLRB No. 43.Case No. 13-CA-29431. October 18, 1994 Russell M. King Jr., Administrative Law Judge..

Before Gould, Stephens and Devaney.

Scott A. Gore, for General Counsel. R. Ian Hunter (Dean & Fulkerson), Troy, Michigan, for Respondent. Susan Brannigan (Asher, Gittler, Greenfield, Cohn & D’Alba, Ltd.), Chicago, Illinois, for Charging Party Union.

Confidential Employees--Protection against Unfair Labor Practices--Discrimination in Hiring.--An employer discriminated against four applicants for a confidential secretary position by denying them an opportunity for employment because of their membership in a union. The NLRB determined that applicants for confidential positions were within the NLRA’s definition of “employee” and, as such, were protected by the Act. Section 8(a)(3).

Back reference: ¶4020.05.

Supervisors--Fact Finding--Tests of Status.--On the facts, an employer’s dispatch supervisor was not a statutory supervisor because the pay requests he approved were required to be reviewed and, further, the disciplinary warnings he issued were both sporadic and insufficient in number to justify supervisory status. Section 2(11).

From Text of Board’s Decision

On December 16, 1992, Administrative Law Judge Russell M. King Jr. issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed a reply brief to the Respondent’s execeptions. The Respondent also filed a brief in reply to the General Counsel’s reply brief to the Respondent’s exceptions.

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings, [1] and conslusions [2] and to adopt the recommeded Order.

One of the positions for which the judge found that the four discriminatees here should have been considered was that of confidential secretary. [3] The judge rejected the Respondent’s argument that because a confidential employee position is outside the bargaining unit and arguably not protected by the Act, none of the discriminatees could have been considered for the confidential secretary position because of their union membership. Rather, the judge found that the fact that an individual is a union member should not preclude him or her from being considered and possibly hired for a confidential position where that person could not be a union member, because to so preclude that person would unlawfully discriminate against that individual because of his or her union membership. The judge noted that even if a position requires exclusion from the Union, the individual being considered can determine for himself or herself if it is worth giving up union membership for the position.

The Respondent argues that the Board should adopt the approach of the Seventh Circuit [4] and the Fourth Circuit [5] and find that confidentials should be excluded from the protection of the Act because they should be viewed as “supervisors” within the meaning of the Section 2(3) of the Act. [6] The Respondent further notes that current Board law holds that when Congress amended the Act to exclude supervisors from the definition of the term “employee,” it denied to those seeking as well as to those holding supervisory jobs the protection of Section 8(a)(3) of the Act. Pacific American Shipowners Assn., 98 NLRB 582, 596-597 (1952); Ace Machine Co., [1980 CCH NLRB ¶17,091] 249 NLRB 623, 624 (1980); St. Anne’s Hospital, [1979-80 CCH NLRB ¶16,327] 245 NLRB 1009, 1009-1010 (1979). [7] The Respondent contends that the Board should apply the same reasoning to applicants for confidential positions, and that thus the discriminatees here should not be entitled to the Act’s protection in applying for the confidential secretary position.

Assuming arguendo that the confidential secretary position here would be a confidential position under the Board’s labor nexus test, we find nevertheless that applicants for confidential positions are within the Act’s definition of “employee” under Section 2(3) and are entitled to the Act’s protection against a discriminatory denial of employment based on their past protected concerted activities. In Phelps Dodge Corp. v. NLRB, [4 LC ¶18,732] 313 U.S. 177, 182-187 (1941), the Supreme Court broadly interpreted the Act to include applicants for work as well as actual hires within its protections, noting that, “[d]iscrimination against union labor in the hiring of men is a dam to self-organization at the source of supply. The effect of such discrimination is not confined to the actual denial of employment; it inevitably operates against the whole idea of the legitimacy of organization.” 313 U.S. at 185. The Court also noted that an embargo against employment of union labor was one of the chief obstructions to collective bargaining through self-organization, and thus the prohibition in Section 8(a)(3) of the Act against “discrimination in regard to hire” must be applied as a means toward the Act’s object of removing such obstructions. 313 U.S. at 186. The Court further noted that Section 2(3) of the Act encompassed a “broad” definition of “employee,” and excluded from that definition only those explicitly so excluded in the Act. [8] 313 U.S. at 192. Similarly, as discussed in Town & Country Electric, [1992-93 CCH NLRB ¶17,642] 309 NLRB 1250, 1255 (1992), enf. denied on other grounds docket No. 92-391 (8th Cir. 1994), the Board has interpreted the term “employee” broadly to “include members of the working class generally,” and has found that Section 2(3) includes applicants for employment. [9] Assuming arguendo that an employer were able to require that an employee give up his or her union membership once the employee assumes a confidential position, an employer cannot refuse to hire an applicant for a confidential position because of past union membership or activities. [10] Thus, contrary to the Respondent’s argument, we decline to apply Pacific American to applicants for a confidential position. [11] In this regard, we note that unlike supervisors, confidentials are not expressly exempted from coverage under Section 2(3) of the Act.

Accordingly, we agree with the judge that the Respondent violated Section 8(a)(3) and (1) of the Act by refusing to consider for hire any of the four discriminatees for the confidential secretary position.

¹	The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrrule an administrative law judge’s credibility resolutions unless the clear preponderance of the evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. We note that the judge incorrectly stated that the Respondent’s terminal manager, Al Schaeffer, asked Nancy Norton during her interview for the condidential secretary position why she was not a union member; rather, the Respondent’s management representative, Terry Hoeft, asked Norton this question. We also note that contrary to the judge, there is no evidence that the Respondent interviewed anyone for the data entry clerk positions in July 1990. We further note that the judge incorrectly stated that Kathleen Williams, whom the Respondent hired as a dispatch supervisor on July 25, 1990, did receive her job description before she began working for the Respondent. We also find it unnecessary to rely on the judge’s characterization of employees James Houseman and Lisa Buschman as clerical employees.
²	In adopting the judge’s finding that dispatch supervisor Vern Joyner is not a statutory supervisor within the meaning of Sec. 2(11) of the Act, we note that althouth Joyner initially approves or disapproves drivers’ pay requests, the request then must be reviewed and signed by the Repspondent’s terminal manager or assistant manager. Further, to the extent that Joyner has occasionally issued warnings which are not automatic pursuant to regulations or the contract, such incidents have been isolated and sporadic and are insufficient to indicate that Joyner is a supervisor within the meaning of Sec. 2(11).
³	The judge failed, however, to make a specific finding regarding whether this position was actually a confidential position under the Board’s “labor nexus” test, under which only those employees who act in a confidential capacity to persons exercising managerial functions in labor relations matters are confidential employees. NLRB v. Hendricks County Rural Electric Corp., [92 LC ¶13,098] 454 U.S. 170, 189 (1981); Crest Mark Packing Co., [1986-87 CCH NLRB ¶18,754] 283 NLRB 999 (1987).
⁴	Peerless of America v. NLRB, [71 LC ¶13,879] 484 F.2d 1108 (7th Cir. 1973).
⁵	NLRB v. Wheeling Electric Co., [65 LC ¶11,820] 444 F.2d 783 (4th Cir. 1971).
⁶	Sec. 2(3) of the Act specifically excludes “supervisors,” as defined in Sec. 2(11), from the definition of “employee.”
⁷	The Board in Pacific American, supra, drew a distinction, however, between nonemployee applicants and present employees of an employer who are seeking a promotion to a supervisory position, stating that a refusal to accord an actual employee the normal consideration for promotion to a supervisory position based on protected concerted activity during such employment would clearly be a violation of the rights of nonsupervisory employees. See Pacific American, above at 597.
⁸	In this regard, the Court stated that this construction of the Act expressed the conviction of Congress “that disputes may arise regardless of whether the disputants stand in the proximate relation of employer and employee, and that self-organization of employees may extend beyond a single plant or employer,” citing H.R. Rep. No. 1147, 74th Cong., 1st Sess., p. 9, 313 U.S. at 192.
⁹	Briggs Mfg. Co., 75 NLRB 569, 570 (1947). Cf. Star Tribune, 295 NLRB 543, 546 fn. 10 (1989). Note that while the Eighth Circuit denied enforcement on other grounds in Town & Country v. NLRB, above the court stated that, “[a]pplicants for employment, however, have long been considered to be employees under the Act,” citing Phelps Dodge Corp., above.
¹⁰	Thus, an employer would have to show more than mere membership in a union or past union activities in order to disqualify an applicant for being considered for a confidential position; rather, the employer would have to prove by objective evidence that it has reasonable grounds for believing that an applicant will be disloyal or will impair business operations.
¹¹	In view of our disposition of this case, we find it unnecessary to pass on the continuing viability of Pacific American’s majority holding that nonemployee applicants for a supervisory position not protected by the Act. Also, in view of our disposition of this case, we find it unnecessary to consider the issue of whether the Act’s protections extend to confidential employees. Emmanuel Hospital, 268 NLRB 1344 fn. 1 (1984).

NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,534, E & L TRANSPORT COMPANY and LOCAL 710, HIGHWAY DRIVERS, DOCKMEN, SPOTTERS, RAMPMEN, MEAT PACKING HOUSE AND ALLIED PRODUCTS DRIVERS AND HELPERS, OFFICE WORKERS AND MISCELLANEOUS EMPLOYEES, CHICAGO/VICINITY, ILLINOIS., (Oct. 18, 1994), National Labor Relations Board, (Oct 18, 1994)

315 NLRB No. 43.Case No. 13-CA-29431. October 18, 1994 Russell M. King Jr., Administrative Law Judge..

Before Gould, Stephens and Devaney.

Back reference: ¶4020.05.

From Text of Board’s Decision

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

¹	The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrrule an administrative law judge’s credibility resolutions unless the clear preponderance of the evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. We note that the judge incorrectly stated that the Respondent’s terminal manager, Al Schaeffer, asked Nancy Norton during her interview for the condidential secretary position why she was not a union member; rather, the Respondent’s management representative, Terry Hoeft, asked Norton this question. We also note that contrary to the judge, there is no evidence that the Respondent interviewed anyone for the data entry clerk positions in July 1990. We further note that the judge incorrectly stated that Kathleen Williams, whom the Respondent hired as a dispatch supervisor on July 25, 1990, did receive her job description before she began working for the Respondent. We also find it unnecessary to rely on the judge’s characterization of employees James Houseman and Lisa Buschman as clerical employees.
²	In adopting the judge’s finding that dispatch supervisor Vern Joyner is not a statutory supervisor within the meaning of Sec. 2(11) of the Act, we note that althouth Joyner initially approves or disapproves drivers’ pay requests, the request then must be reviewed and signed by the Repspondent’s terminal manager or assistant manager. Further, to the extent that Joyner has occasionally issued warnings which are not automatic pursuant to regulations or the contract, such incidents have been isolated and sporadic and are insufficient to indicate that Joyner is a supervisor within the meaning of Sec. 2(11).
³	The judge failed, however, to make a specific finding regarding whether this position was actually a confidential position under the Board’s “labor nexus” test, under which only those employees who act in a confidential capacity to persons exercising managerial functions in labor relations matters are confidential employees. NLRB v. Hendricks County Rural Electric Corp., [92 LC ¶13,098] 454 U.S. 170, 189 (1981); Crest Mark Packing Co., [1986-87 CCH NLRB ¶18,754] 283 NLRB 999 (1987).
⁴	Peerless of America v. NLRB, [71 LC ¶13,879] 484 F.2d 1108 (7th Cir. 1973).
⁵	NLRB v. Wheeling Electric Co., [65 LC ¶11,820] 444 F.2d 783 (4th Cir. 1971).
⁶	Sec. 2(3) of the Act specifically excludes “supervisors,” as defined in Sec. 2(11), from the definition of “employee.”
⁷	The Board in Pacific American, supra, drew a distinction, however, between nonemployee applicants and present employees of an employer who are seeking a promotion to a supervisory position, stating that a refusal to accord an actual employee the normal consideration for promotion to a supervisory position based on protected concerted activity during such employment would clearly be a violation of the rights of nonsupervisory employees. See Pacific American, above at 597.
⁸	In this regard, the Court stated that this construction of the Act expressed the conviction of Congress “that disputes may arise regardless of whether the disputants stand in the proximate relation of employer and employee, and that self-organization of employees may extend beyond a single plant or employer,” citing H.R. Rep. No. 1147, 74th Cong., 1st Sess., p. 9, 313 U.S. at 192.
⁹	Briggs Mfg. Co., 75 NLRB 569, 570 (1947). Cf. Star Tribune, 295 NLRB 543, 546 fn. 10 (1989). Note that while the Eighth Circuit denied enforcement on other grounds in Town & Country v. NLRB, above the court stated that, “[a]pplicants for employment, however, have long been considered to be employees under the Act,” citing Phelps Dodge Corp., above.
¹⁰	Thus, an employer would have to show more than mere membership in a union or past union activities in order to disqualify an applicant for being considered for a confidential position; rather, the employer would have to prove by objective evidence that it has reasonable grounds for believing that an applicant will be disloyal or will impair business operations.
¹¹	In view of our disposition of this case, we find it unnecessary to pass on the continuing viability of Pacific American’s majority holding that nonemployee applicants for a supervisory position not protected by the Act. Also, in view of our disposition of this case, we find it unnecessary to consider the issue of whether the Act’s protections extend to confidential employees. Emmanuel Hospital, 268 NLRB 1344 fn. 1 (1984).

From Text of Board’s Decision

Footnotes

From Text of Board’s Decision

Footnotes