National Labor Relations Board v. Rish Equipment Company, a Subsidiary of Bluefield Supply Company, Inc. , 687 F.2d 36 ( 1982 )

DONALD RUSSELL, Circuit Judge:

The Board seeks enforcement of its order finding that the employer’s refusal to bargain with the certified representative of a unit of clerical employees violated Section 8(a)(5) and (1) of the Act. The employer justified its refusal to bargain on the inclusion in the certified unit of Charlotte Bowers, who, it contends, qualified as a confidential employee under N.L.R.B. v. Quaker City Life Insurance Company, 319 F.2d 690 (4th Cir. 1963). We agree that Quaker City is controlling.

In Quaker City we held that the secretary of the district manager of a nationwide insurance company was a “confidential employee,” and that “[i]t would be patently unfair to require the company to bargain with a union that contain[ed] such an employee.” Id., 694. The relevant facts in this case are the same as those in Quaker City. Just as the secretary in Quaker City, Charlotte Bowers is the secretary to the branch general manager of a regional concern.

The Board’s attempts to distinguish Quaker City are unpersuasive. It first argues that Bowers’ superior took no active role in establishing labor relations policy, but merely implemented policy formulated by the home office. But the duties of Gardner, the branch manager in this case, are not different than those performed by the district manager in Quaker City. There, the district manager “supervised] the day to day operations of the [branch] office, operating under general rules set by the home office [,] ... [and] recommended] the hiring, firing, and disciplining of the office employees and ... under certain conditions, fire[ed] summarily” 319 F.2d 692. The Board concedes that Gardner has similar authority. Beyond this, there is undisputed testimony that in this case Gardner is “in the thick” of all labor contract matters, including both negotiations generally and negotiations involving grievances arising at his branch, evidence which was not present in Quaker City.

The Board next asserts that, even if Gardner’s participation in labor matters was sufficient, Bowers was not exposed to any confidential labor relations information. In Quaker City, the secretary “typ[ed] correspondence for the District Manager and [was] privy to all confidential matters and communications between the District Manager and the home office, including those in which the performance of the other employees of the branch office is discussed.” Id., 692. Although Bowers does not see all incoming confidential mail, there is no restriction on her access to all records in the office, she does all the filing and she does type all outgoing correspondence with the home office, which necessarily would include any written communications on labor relations, such as employee complaints or grievances, employee evaluations or performances, etc., and she, finally was, as Gardner summarized it, his “personal, confidential secretary .. .. ” This is substantially like the situation of the confidential secretary in Quaker City.

The Board finally argues that the Supreme Court in N.L.R.B. v. Hendricks Cty. Rural Electric Corp., 454 U.S. 170, 102 S.Ct. 216, 70 L.Ed.2d 323 (1981), has effectively overruled Quaker pity. We disagree. The Court in Hendricks merely approved the Board’s “labor nexus” rule as determinative of whether or not a personal secretary is a “confidential employee.” Under this rule, “the term ‘confidential’ .. . embrace^] only those employees who assist and act in a confidential capacity to persons who exercise ‘managerial’ functions in the field of labor relations.” 454 U.S. at 177-178, 102 S.Ct. at 222, 70 L.Ed.2d at 331, quoting Ford Motor Po., 66 NLRB 1317, 1322. This Court followed precisely this standard in deciding Quaker Pity.

Nor does the Court’s application of the rule in Hendricks differ from that in Quaker Pity. In finding that the secretary there was not a confidential employee, the Court made clear the unusual character of her duties, a fact which was actually determinative of the decision in that case. Thus, the majority opinion declares that “Hendricks does not argue that Weatherman came within the labor-nexus test as formulated by the Board [but concedes that she does not have] ‘confidential duties “with respect to labor policies.” ’ ” Id. 454 U.S. at 188-192, 102 S.Ct. at 228-29, 70 L.Ed. at 338-39. In explanation of this singular statement, the Supreme Court adds in a note:

“Hendricks is an unusual case, inasmuch as Weatherman’s tasks were ‘deliberately restricted so as to preclude her from’ gaining access to confidential information concerning labor relations. 236 NLRB 1616, 1619 (1978). Whether Hendricks imposed such constraints on Weatherman out of specific distrust or merely a sense of caution, it is unlikely that Weatherman’s position mirrored that of executive secretaries in general.” Id., n. 23.

The duties of the confidential secretary in Quaker City and of Bowers in this case were not circumscribed as were the responsibilities of the secretary in Hendricks. The ruling in Hendricks is accordingly not in point here.

In summary, we conclude that, under our rule as established in Quaker City, the Board should not have included Charlotte Bowers in the certified bargaining unit. As her vote would not,have affected the outcome of the certification election, the employer remains obligated to bargain with the certified representative concerning the terms and conditions of all employees properly included in the unit on the basis of the result of the certification election. But since Bowers is not properly included within the unit, the employer is not obligated to bargain with the Union concerning her terms and conditions of employment. The petition of the Board to enforce its order requiring the employer to bargain with the Union is granted except insofar as it requires the employer to bargain concerning employee Bowers.

Enforcement granted in part and denied in part.