Daniel Ornamental Iron Co., Inc.

334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Daniel Ornamental Iron Co., Inc. and Shopmen's Lo- cal Union #539 of the International Association of Bridge, Structural & Ornamental Iron Workers, AFL-CIO, Petitioner. Case 10-RC-8870 February 7, 1972 DECISION ON REVIEW BY MEMBERS FANNING, JENKINS, AND KENNEDY On October 8, 1971, the Regional Director for Re- gion 10 issued a Decision and Direction of Election in the above-entitled proceeding, in which he found ap- propriate, and directed an election in, the Petitioner's requested unit of production and maintenance em- ployees at the Employer's Birmingham, Alabama, plant, including, inter alia, certain intermittently em- ployed welders as the equivalent of regular part-time employees, if they met an eligibility formula devised by him. Thereafter, in accordance with Section 102.67 of the National Labor Relations Board Rules and Regula- tions, Series 8, as amended, the Employer filed a timely request for review of the Regional Director's decision on the ground that in not excluding from the unit all part-time welders as casual employees, he departed from officially reported precedent. On November 4, 1971, the National Labor Relations Board by tele- graphic order granted the request for review and stayed the election pending decision on review. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Board has delegated its authority in this proceeding to a three- member panel. The Board has considered the entire record in this proceeding with respect to the issues under review and makes the following findings: As found by the Regional Director, the Employer is engaged in fabricating ornamental iron, and at times its business increases to the point where even with over- time its regular full-time welder mechanics merely have time to lay out the ornamental ironwork. When this occurs the Employer makes use of a pool of some 27 welders, fully employed elsewhere, to complete this work after day-shift operations end.' They do not work any fixed schedule of hours, may work so many hours as they wish, and when they work are unsupervised. Nor do they receive any of the fringe benefits provided for full-time employees. However, a number of such welders, as revealed by the record, have histories of substantial employment in this capacity by the Em- ployer. The record indicates that, aside from the pool of part-time welders, the Employer employs 20 regular full-time welder mechanics, 4 truckdnvers, 6 to 20 laborers, 2 painters, and I part-time maintenance employee The Regional Director rejected the Employer's con- tention that all part-time welders are casual employees, and he devised a formula whereby their inclusion in the unit and eligibility to vote would be predicated on their performance of some work for the Employer in at least two calendar quarters of the year preceding October 1971 and in the period beginning July 1, 1971, to the payroll period immediately preceding October 8, 1971, the date he issued his decision. The parties had not proposed any formulas of their own. The Employer in its request for review contends that the Regional Director erred in not excluding from the unit all of the welders in question as casual employees. In view of the fact that some of these welders have substantial histories of employment by the Employer and when employed perform work similar to that done by regular full-time welder mechanics, we find no merit in this contention.2 However, we believe that the eligibility formula de- vised by the Regional Director is too broad as it could confer eligibility on an employee who had worked as little as 2 days in a 1-year period. Selection of an eligi- bility formula for the part-time welders depends on a careful balancing of the factors of length, regularity, and currency of employment giving due regard to the industry involved.' The Employer's principal custom- ers are in the housing and construction industries, and because of the seasonality of those industries business usually experiences a slack period in the fall of the year, beginning in September or October, during which period its need for the part-time welders drops sharply. In cases involving year-round operations with fluctuat- ing need for extra or on-call employees, the Board has found it equitable to include in the unit, on the basis of available records of employment, all extra or part-time employees who had worked a minimum of 15 days in the calendar quarter preceding the eligibility date,` rea- soning that devoting that much time to unit work evi- denced a substantial and continuing interest in the unit. Further, where such fluctuating need shows a seasonal pattern-as in the instant case-and the timing of the election may tend to exclude employees with substan- tial records of employment during peak periods, the formula has been modified to include employees who worked a minimum of 15 days in either of the two See Fresno Auto Auction, Inc., 167 NLRB 878, 879, Scoa, Inc., 140 NLRB 1379, 1381, Motor Transport Labor Relations, Inc., 139 NLRB 70, 72 See also N.L.R.B. v. Atkinson Dredging Company, 329 F 2d 158, 162 (C.A. 4) The case of Haag Drug Company, Incorporated, 146 NLRB 798, relied on by the Employer, is inapposite as there the part-time employee involved was not shown to have had a history of substantial part-time employment C.T.L Testing Laboratories, Inc., 150 NLRB 982, 985. See Scoa, Inc, supra Motor Transport Labor Relations Inc., supra As the Employer has a substantial year-round complement of regular full-time employees, there are lacking some of the considerations which justify adop- tion of more liberal eligibility standards in operations where the unit comple- ment is made up predominantly of intermittent employees. 195 NLRB No. 55 DANIEL ORNAMENTAL IRON CO. 3-month periods immediately preceding the date of is- suance of the direction of election.' We find the latter formula appropriate herein. Therefore, part-time em- ployees satisfying this criterion in either of the two 3-month periods immediately preceding the date below shall be eligible to vote. Accordingly, we shall remand the case to the Re- gional Director for the purpose of conducting an elec- tion pursuant to his Decision and Direction of Election, as modified herein, except that the payroll period for ' C.T..L Testing Laboratories, Inc. supra; Robert W Hunt Company, Inc, 150 NLRB 986 335 determining eligibility shall be that immediately preceding the date of issuance.6 ' 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 ad- dresses which may be used to communicate with them . Excelsior Underwear Inc, 156 NLRB 1236, NL.R.B. v Wyman-Gordon Co, 394 U.S 759 Accordingly, it is hereby directed that a corrected election eligibility list, containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 10 within 7 days of the date of this Decision on Review 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.