National Opinion Research Center

NATIONAL OPINION RESEARCH 583 National Opinion Research Center and Local 1108, American Federation of State, County and Munici- pal Employees (AFL-CIO), Petitioner. Case 31-RC-1340 December 30, 1970 DECISION AND DIRECTION OF ELECTION BY CHAIRMAN MILLER AND MEMBERS FANNING, BROWN, AND JENKINS Upon a petition duly filed with Region 31 of the National Labor Relations Board under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held on February 25, 1970, before Hearing Officer Max Dauber. Following the hearing, pursuant to Section 102.67 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, and by direction of the Acting Regional Director for Region 31, this case was transferred to the Board for decision. Thereafter, the Employer filed a brief. On July 1, 1970, the Board issued an Order Reopening Record and Remanding Proceeding to Regional Director for Further Hearing for the purpose of adducing additional evidence concerning the Employer's operations. On July 8, 1970, the Acting Regional Director for Region 31 transmitted to the Board a stipulation executed by the Petitioner, dated July 7, 1970, accepting the Employer's list of names of the employees employed during the period from and including September 1969, to and including March 1970, and the total employment of said employees worked in that 6-month period. The Petitioner's stipulation and the Employer's list are hereby accepted and made part of the record. The stipulation and Employer's list is hereby designated as Board Exhibit 1. Pursuant to the provisions of Section 3(b) of the Act, as amended, the Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds no prejudicial error. The rulings are hereby affirmed. Upon the entire record in this case, including the brief filed herein, the Board finds: 1. The Employer, a nonprofit Colorado corpora- tion affiliated with the University of Chicago, is engaged in commerce within the meaning of the Act. The current standard for the assertion of jurisdic- I National Labor Board's Rules and Regulations, Section 103 1, published in the Federal Register of December 3, 1970, Vol 35 F R 18370 2 See Woods Hole Oceanographic Institution, 143 NLRB 568 3 The parties stipulated that the assistant supervisors are not supervisors within the meaning of the Act 4 All interviewers are required to drive their own automobiles tion over private, nonprofit colleges and universities coming within the Board's legal or statutory jurisdic- tion is a gross annual revenue from all sources (excluding only contributions which are, because of limitation by the grantor, not available for use for operating expenses) of not less than I million dollars.' The record discloses the Employer in the fiscal year ending in August 1967 grossed $1,800,000 for its services in conducting surveys for various universities, foundations, and government agencies . That under a current contract with the United States Office of Economic Opportunity and the United States Depart- ment of Labor the estimated cost is approximately $2,500,000. These factors, which exceed the monetary standard for assertion of jurisdiction by the Board over private, nonprofit colleges, as described above, establish the Board's legal or statutory j urisdiction.2 2. The labor organization involved claims to represent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of certain employees of the Employer within the meaning of Section 9(c)(1), and Section 2(6) and (7) of the Act. 4. The Petitioner seeks to represent a unit of assistant supervisors,3 test administrator, and inter- viewers employed at the Los Angeles office of the Employer. The Employer contends that the interview- ers are independent contractors or, in the alternative, casual employees, and as such should not be included in the unit. The Employer, at its Los Angeles office, is currently engaged, pursuant to a contract with the Federal Office of Employment Opportunity and the United States Department of Labor, in a survey of the manpower programs of such Federal agencies. The interviewers whose status is in question here were recruited locally by the Employer, given a 1- week orientation program, and hired after being advised that they could expect an average of 20 hours weekly at an hourly rate of $2.20 per hour plus a 10- cent auto mileage rate.4 The Employer's supervisor and assistants assign the caseload as it is received in the Los Angeles office on the basis of the interviewer's availability and capabilities.5 The interviewers pick up their assignments at the office and leave them there when completed. Interviewers in their interviews are required to apply the techniques taught to them in the orientation programs.6 The majority of such inter- views consist of group interviews scheduled for the interviewers by the supervisor at the manpower program centers of OEO and the Department of 5 The evidence indicates that interviewers hired by the Employer and who are called for an assignment are permitted to decline or accept such assignment 6 While attending the orientation program these employees are paid the $2 20 hourly rate 187 NLRB No. 93 584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Labor. The balance of the interviews are with individual participants in such manpower programs. Interviewers schedule their own visits with the individual participants but are required by the Employer to complete the interview within a given period. The Employer enters into no written agreement with the interviewers defining the obligations of either party. The interviewers are notified of their assign- ments either by telephone or by office memoranda placed in a central office file set aside for their use. After having completed their orientation course, if they are hired, they work in the field alone or with other interviewers. They are subject to termination by the Employer if their work is unsatisfactory. The Employer does not withhold tax deductions for the Internal Revenue Services and makes no payment to Social Security Administration on behalf of the interviewers. Nor do these employees receive vaca- tions, holiday, or other fringe benefits. The Employer does provide Workmen's Compensation. The Board has frequently held that, in determining the status of persons alleged to be independent contractors, the Act requires application of the "right to control" test. Where the person for whom services are performed retains the right to control the manner and means by which the result is to be accomplished, the relationship is one of employment; while, on the other hand, where control is reserved only as to the result sought, the relationship is that of an independ- ent contractor. The resolution of this question depends on the facts of each case, and no one factor is determinative. On the basis of the foregoing, and the entire record, we are satisfied that the interviewers are not inde- pendent contractors. We are aware that the evidence discloses some factors usually considered to indicate an independent contractor status, but the presence of these factors does not alone establish such status. Thus, we do not regard as controlling that the Employer does not make the usual payroll deductions for the interviewers; that the interviewers are to some extent free to reject a request by the Employer to conduct an interview and that they have some discretion as to the hours they will work. We find, rather, that these factors are outweighed by others which amply demonstrate the effective control the Employer maintains over the day-to-day duties of the interviewers, and which, on balance, are sufficient to support a finding that they are employees both in law and as a "matter of economic reality." We rely particularly on the following: (1) All interviewer applicants are interviewed and if accepted must take an orientation course prior to their actual hiring; (2) the Employer sets a definite time schedule in which an interview must be completed; (3) the interviewers are solicited for employment by the Employer through the usual channels used by Employers to secure the necessary help; (4) the Employer may terminate an interviewer at will; (5) interviewers are required to submit a record of hours worked and mileage at regular intervals which are subject to review and adjustment by the Employer; and (6) the Employer maintains, through its supervisor and assistant super- visors, complete supervisory control over the inter- viewers. The Employer's alternative contention that the interviewers are casual employees, finds no support in the payroll records of the Employer or in the record as a whole. The Employer's payroll data covering the period of September 1969, through March 1970, discloses that approximately 24 interviewers worked a total of 147 pay periods which varied from 6 to 21 payroll periods during each time. Further, from January 1 through March 1970, when there appears to have been a heavier concentration of employment, approximately 56 interviewers worked during 4 or more pay periods. On this basis of work history it appears clear that a substantial number of these employees worked as regular part-time employees, rather than as casual employees.7 The Employer's payroll data does disclose that the employment of some of the interviewers was for one to three pay periods which in the absence of any other evidence in the record is in our view indicative of casual employment. Accordingly, we shall in the eligibility requirement hereinafter set forth eliminate such casual employees from the appropriate unit. In view of the above, we find that the following employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All employees including assistant supervisor, test administrators, and inter- viewers employed at the Los Angeles offices of the Employer excluding guards, professional employees and supervisors as defined in the Act. 5. As demonstrated by the foregoing, the employ- ment of the interviewers differs substantially from the usual pattern of employment found elsewhere. For this reason, particular care must be taken to ensure that our determination of voter eligibility takes into account the special pattern of employment evidenced here. As indicated above, although the Employer maintains an almost continuous survey operation, the survey insofar as it concerns the instant case is limited, as of the time of the hearing, to completion in 1971. However, all of the interviewers who have not been terminated for cause or who voluntarily have 7 Allied Stores of Ohio, 175 NLRB No 162 , cf Vaca Valley Bus Lines, 171 NLRB No 170 NATIONAL OPINION RESEARCH 585 quit such employment are considered eligible for reemployment. Moreover, a substantial number of the interviewers have maintained a continuing interest in employment with the Employer, as evidenced by the Employer's payroll data, even though there were breaks in their periods of employment. Neither the Employer nor the Petitioner have advanced any eligibility proposal. While we are aware of the inherent difficulties in attempting to define or determine what constitutes a continuing employment interest of intermittent employees within an appropri- ate unit, as is the case here, nevertheless, it is our responsibility under the Act to devise an eligibility formula which will protect and give full effect to the voting rights of those employees who have a reasona- ble expectancy of future employment with the Employer. However, such a standard must not be so broad in application that it will permit the question of union representation to be decided by those individu- als who reasonably have no likelihood of reemploy- ment or continuing employment with the Employer. B Hondo Drilling Co, 164 NLRB 416, enf 428 F 2d 943 (C A 5), in I I, relevant text and case cited 9 In order to assure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all parties to the election should have access to a list of voters and their addresses which may be used to communicate with them Excelsior Underwear Inc, 156 NLRB 1236, NLRB v Wyman-Gordon Company, 394 U S 759 Accordingly, it is hereby directed that an election eligibility In our opinion, the desired result can be best achieved by fashioning an eligibility formula which excludes from voting those interviewers who quit voluntarily or who have been terminated for cause prior to the completion of the survey for which they were employed, and those who do not have a recent history of substantial employment with the Employer. Ac- cordingly, we find it will effectuate the purposes of the Act to limit eligibility to all interviewers, excluding the office employees, who have been employed not less than four weekly pay periods during the 90-calendar- day period from January 1 through March 1970; also included shall be all interviewers who have likewise been employed in not less than 4 weekly pay periods during the 90-calendar-day period preceding the issuance of our Decision and Direction of Election herein, and who have not been terminated for cause or quit voluntarily during the above-described eligi- bility periods.s [Direction of Election9 omitted from publication.] list, containing the names and addresses of all the eligible voters , must be filed by the Employer with the Regional Director for Region 31 within 7 days after the date of issuance of the Direction of Election by the Regional Director The Regional Director shall make the list available to all parties to the election No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed