National Labor Relations Board v. Rish Equipment Company, a Subsidiary of Bluefield Supply Company, Inc.
687 F.2d 36
4th Cir.
1982
Check Treatment

*1 Before WIDENER HALL, Circuit Judges. *2 sufficient, Judge: DONALD exposed Bowers was not any confidential labor relations informa- The Board seeks enforcement of its Quaker In City, secretary finding employer’s order that the refusal to “typ[ed] correspondence for the District Manager privy to all confidential [was] a unit of clerical violated Section matters and communications between the 8(a)(5) of the Act. Manager office, and the home in- justified its refusal to on the inclu cluding those in which performance sion in the certified unit of Charlotte Bow the other employees of the branch office is ers, who, contends, it qualified as a confi Id., Although discussed.” Bowers dential employee Quaker under N.L.R.B. v. mail, does not see all incoming confidential City Life Company, 319 F.2d 690 there is no restriction on her access to all 1963). agree Quaker We office, filing records she does all the is controlling. type outgoing and she does all correspon- Quaker In City we secretary held office, dence with the home which necessar- of the manager district of a nationwide ily would include any written communica- insurance company was a em- “confidential relations, tions on labor such as employee ployee,” and that would patently be “[i]t complaints grievances, or employee evalua- unfair to require company etc., she, tions or performances, finally with a union that such an em- contain[ed] was, it, as Gardner summarized his “person- ployee.” 694. The relevant facts in ” al, confidential secretary .. .. This is this case are the same as Quaker those in substantially like the situation of the confi- City. Just as secretary Quaker in secretary Quaker dential in City. Charlotte Bowers is the to the branch general manager regional of a con- finally argues The Board cern. Supreme Court in N.L.R.B. v. Hendricks 170, Rural Corp., Electric U.S. attempts Board’s distinguish 216, (1981), S.Ct. 70 L.Ed.2d 323 has effec Quaker City are unpersuasive. It first ar- tively Quaker pity. disagree. overruled We gues that superior Bowers’ took active merely approved Court role in establishing labor relations policy, the Board’s “labor nexus” rule as determi but merely implemented policy formulated native of personal whether or not a secre by the home office. But the duties of tary is a “confidential employee.” Under Gardner, the manager branch in this rule, this “the term ‘confidential’ .. . em are not different than only those employees who assist brace^] district manager City. and act in a confidential There, manager “supervised] who exercise ‘managerial’ functions in the day to day operations of the [branch] field of labor relations.” office, 454 U.S. at 177- operating general under rules set 178, at S.Ct. 70 L.Ed.2d at the home [,] office ... recom- [and] Po., Ford Motor 66 NLRB the hiring, firing, disciplining mended] of the 1322. This Court precisely office followed this employees and ... under cer- conditions, tain standard in deciding Pity. summarily” 319 fire[ed] F.2d 692. The Board concedes that Gardner Nor does the application Court’s of the has similar this, authority. Beyond there is Quak- rule in Hendricks differ from that in undisputed testimony that er Pity. finding that the there Gardner is “in the thick” of all labor con- employee, was not a confidential the Court matters, tract including negotiations both made clear the unusual character of her generally and negotiations involving griev- duties, a fact actually which was determina- arising branch, ances at his evidence which Thus, tive of the decision that case. was not present City. majority opinion declares “Hendricks

The Board next asserts even if argue does not that Weatherman came Gardner’s participation in labor matters within the labor-nexus test as formulated personal that she and that

by the Board concedes does [but Bowers, is therefore a respect secretary, ‘confidential duties “with Charlotte have] ’ ” 188-192, Though Gardner policies.” employee. to labor Id. 454 at confidential I 228-29, policy, at do not clearly S.Ct. at 70 L.Ed. 338-39. effectuates 102 In statement, deter- explanation believe that he either formulates or singular of this *3 Accordingly, the I dissent. Supreme policy. Court adds in a note: mines that “Hendricks is an unusual inasmuch defines “confidential The labor nexus test ‘deliberately as Weatherman’s tasks were and act in as those “who assist employees” preclude restricted so as to her from’ to who for- a confidential gaining access to confidential information mulate, manage- and effectuate determine concerning labor relations. 236 NLRB in the field of labor relations.” policy (1978). Whether Hendricks Rural Electric N.L.RB. v. Hendricks imposed such constraints on Weatherman 216, 228, Corp., 454 102 S.Ct. specific out of a merely distrust or sense B. F. Goodrich L.Ed.2d 323 caution, unlikely it is that Weather- Co., (1956). re- By 115 N.L.RB. man’s position mirrored that of executive and de- quiring person the formulate general.” secretaries in n. 23. policies, termine as well as effectuate labor contemplates person The duties of the confidential the do the test Quaker City existing policies. and merely of Bowers more than execute respon- Instead, develop- not the a role in play were circumscribed as were he must also sibilities of the secretary selecting company’s policies. in Hendricks. The and the ruling in accordingly Hendricks is not in the distinction be- Goodrich illustrates point here. policy effectuate only tween those who In summary, we conclude under our determine. those who also formulate and rule as established in the with the confidential part Goodrich dealt Board should not have included Charlotte status the secretaries for certain man- bargaining Bowers in the certified unit. As agement personnel. plant engineer not,have her vote would affected the out- managers engi- of the industrial election, come of the certification the em- and techni- neering, purchasing, production ployer obligated remains hiring, responsible cal divisions were concerning discharging, disciplining promoting terms and employees prop- conditions of all merit respective employees, granting their erly included in the unit on the basis of the grievances matters. handling raises and result of the certification election. But managers played a personnel and office since Bowers is not included within properly but, signifi- grievance procedure, role in the unit, employer is obligated negotia- cantly, they participated also concerning Union her Uti- bargaining tion of collective contracts. terms and employment. conditions of test, found lizing the the Board labor nexus petition of the Board to enforce its order personnel only those secretaries for the requiring employer with the as confiden- managers qualified and office granted except Union is insofar it re- as tial employees. quires concerning to bargain dispositive of analysis The Goodrich is employee Bowers. he is the this case. Gardner granted part Enforcement and denied Rish’s Albans general manager of St. in part. performs he dis- capacity, branch. In that func- discipline timekeeping charge, HALL,

K. K. Judge, dissenting: pay makes recommendations tions and test, fashion Ostensibly conclusory in a applying the labor nexus raises. testified policy in labor deci- participated concludes that William Gard- that he single formulates, sions, give ner determines and effectuates but he was unable He conceded policy Equip- example participation. relations for the Rish of his “principal- these decisions were made Bluefield, ly” at the home office in West short,

Virginia. Gardner’s duties are

squarely analogous plant to those of the

engineer managers and division in Goodrich.

Consequently, compels Goodrich the conclu-

sion that is not a confi-

dential employee.

The majority’s heavy upon reliance N.L. Co., City

R.B. v. Life Ins. 319 F.2d 1963) misplaced. is As re

vealed the list of the duties manager, cited *4 majority at page opinion, three of its manager simply role played no pol

formulation and determination of labor

icy. Though citing Goodrich, Quaker City

neither discusses or applies the criteria of

the labor nexus test. Since Hendricks man criteria,

dates the application of

Quaker City completely precedential lacks

value. the context of this

overrules City. By adhering to

Quaker City, inexplicably

refuses bring step this Circuit into

the current state of the law. For these

reasons, I would enforce the Board’s order bargain. JOHN T. CLARK & SON OF MARY- Drechsler, Baltimore, R. Roger Md. LAND, INC., and American Mutual Lia- (Thomas Wilcox, bility Company, Petitioners, petitioners. Goldstein, Baltimore, Md., Bernard M.

Kay (Widow Kowaleviocz COOPER Kowaleviocz), Respondent. Matthew SPROUSE, Before BUTZNER and Cir- Judges, KISER, cuit L. JACKSON United States Court of Judge for West- Fourth Circuit. ern District of Virginia, sitting by designa- Argued April 1982. PER CURIAM: Inc., John T. Clark & of Maryland, Son carrier, and its insurance American Mutual