Capitol Insulation Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Capitol Insulation Company, Inc. and Colorado State Council of Carpenters & its affiliated District Councils & Local Unions, United Brotherhood of Carpenters & Joiners of America, Petitioner. Case 27-RC-5534 December 2, 1977 DECISION AND DIRECTION OF ELECTION BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Donald E. Chavez of the National Labor Relations Board on June 3 and 10, 1977. Following the hearing and pursuant to Section 102.67 of the Board's Rules and Regulations, Series 8, as amended, the Acting Regional Director for Region 27 transferred this proceeding to the Board for decision. Thereafter, the Employer and Petitioner filed briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this case, the Board finds: 1. Capitol Insulation Company, Inc. (the Em- ployer herein), is a Colorado corporation with its principal place of business in Denver, where it is engaged in the manufacture, sale, and installation of insulation. During the calendar year immediately preceding the hearing, the Employer purchased goods valued at more than $50,000 from sources outside the State of Colorado and has had goods valued in excess of $50,000 shipped directly from its Colorado plant to points outside that State. The parties stipulated, and we find, that the Employer is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein. 2. The labor organization involved herein claims to represent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of certain employees within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. l At the close of the hearing, the Petitioner amended its petition to exclude the over-the-road truckdriver on grounds that he lacks a community of interest with the other unit employees. The Employer does not contend 233 NLRB No. 129 4. The Petitioner seeks to represent a unit of "all employees including all production and maintenance employees, truckdrivers,1 warehousemen and insula- tion installers; excluding all office clerical employees, professional employees, salesmen, guards, foremen and other supervisors as defined in the Act." Petitioner also seeks to include in the unit certain "day laborers" who fall within the guidelines of its proposed eligibility formula. Contrary to the Petitioner, the Employer contends, inter alia, that only a unit limited to the production employees is appropriate for purposes of collective bargaining and that other regular full-time employ- ees should be excluded. The Employer further argues that "day laborers" are casual employees and should be excluded from any unit found appropriate but that, in the event the Board determines that some day laborers are eligible to vote, only those who meet the requirements of the Employer's proposed eligibil- ity formula should be included in the unit. The Employer employs approximately 20 regular full-time employees: 2 12 plant employees, 5 installers and helpers, I deliveryman, I repairman, and I warehouseman. The deliveryman is responsible for bringing bundled waste paper obtained from various suppliers in the metropolitan area to the plant where he and/or the warehouseman unload it. Once unloaded, five plant employees operate the two feeder machines which convert the waste paper into cellulose fiber insulation. Six other plant employees operate the two sacking machines which package the insulation in 30-pound bags. Each morning, the driver installers and their helpers, frequently assisted by plant employees, load their trucks with the bagged insulation. The driver installers then go to various commercial and residen- tial establishments where they are scheduled to "blow in" the insulation. Generally, installation requires two persons; however, on large jobs, the Employer occasionally sends a plant employee to assist the regular installers. The driver installers and their helpers return to the plant during the course of the day if they have to reload the trucks, and always return to the plant when their scheduled calls are completed. If, during the course of the insulation installation, the "blower" or truck fails to operate properly, the repairman is dispatched to the site to correct the problem. Usually, however, the repairman works in the yard area adjacent to the plant where he repairs the installer trucks and the blower equipment. When necessary, he may work in the plant. that the over-the-road driver should be included in the unit and we shall, therefore, exclude him. 2 In addition to the over-the-road driver. 902 CAPITOL INSULATION COMPANY It appears from the record that all regular employ- ees enjoy substantially the same conditions of employment, i.e., they are paid at an hourly rate, have the same starting time, punch the same timeclocks, and are subject to the same rules of conduct and disciplinary procedures. As noted above, plant department personnel occasionally assist the driver installers as helpers on jobs and the warehouseman, deliveryman, and repairman all have frequent day-to-day contact with production employ- ees. It is undisputed that the Employer has no established pension, vacation,3 or health plan for its employees. The record further establishes that General Manager Weiss exercises general superviso- ry authority over all employees and has final authority with respect to all personnel policies. Accordingly, on the basis of the foregoing, we find, contrary to the Employer's contention, that the deliveryman, repairman, and insulation installers and helpers share a community of interest with the regular plant production employees and that, there- fore, the unit requested by the Petitioner is appropri- ate for collective-bargaining purposes. As noted above, the Petitioner seeks to include in the unit those day laborers who meet its proposed eligibility formula. The Petitioner asserts that such day laborers share a sufficient community of interest with other unit employees to warrant their inclusion, and that day laborers who have worked a minimum of 25 days during the 5-month period January 1 through May 31, 1977, should be eligible to vote. In support of this proposed formula, the Petitioner contends, inter alia, that, although the Board usually finds a calendar quarter the appropriate period for determining eligibility in situations such as that presented here,4 consideration of all day laborers who worked during a longer period is justified in this case because of the large number of personnel in this category. The Employer, on the other hand, contends that day laborers should be excluded as casuals from any unit found appropriate or, alternatively, that only those day laborers who worked a minimum of 150 hours in the 120 days preceding the Direction of Election and who worked a minimum of 100 hours within the 60 days preceding that same date should be included in the unit. 3 Arvin Weiss, the Employer's general manager, testified without contradiction that, although the Employer has no uniform vacation policy. certain employees are granted paid vacations on a "merit" basis. 4 Citing Motor Transport Labor Relations, Inc., 139 NLRB 70 (1962). The Petitioner further cites Motor Transport to support its contention that a period other than one immediately preceding this Decision is appropriate for determining eligibility. In Motor Transport, the Board adopted an advanced eligibility date because the employer-members involved in that proceeding were scattered around the country, payroll records were The record discloses that the Employer fills approximately five positions in the plant daily with day laborers. Day laborers perform the same duties as regular production employees, are paid the same hourly wages as the lowest paid regular employee, and are subject to the same personnel policies and supervision. Examination of the payroll ledgers for the day laborers reveals that certain of these persons are hired on a relatively regular basis, enabling them to establish substantial employment histories with the Employer. Accordingly, in view of the regularity of employment of some of the day laborers and the above-mentioned facts, which we find establish that the day laborers, when they work for the Employer, share the same terms and conditions of employment as regular production employees, we conclude that those day laborers who meet the criteria described below should be included in the unit.5 With respect to the selection of a formula for determining the eligibility of day laborers to vote, "a careful balancing of the factors of length, regularity, and currency of their employment"6 is required. In light of these factors, we find that those day laborers who have worked a minimum of 15 days in the 3- month period immediately preceding the date of this Decision and Direction of Election, and have not been terminated for cause or voluntarily quit, have a sufficient community of interest with the regular employees to warrant their inclusion in the unit found appropriate herein. This formula is consistent with previous decisions involving similar issues, 7 and neither the Employer nor the Petitioner has offered persuasive reasons for utilizing a different formula. Accordingly, on the basis of all the foregoing, we find that the following employees constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act: All employees including all production and maintenance employees, truckdrivers, warehouse- men and insulation installers, but excluding the over-the-road driver and all office clerical em- ployees, professional employees, salesmen, guards, foremen, and other supervisors as defined in the Act. [Direction of Election and Excelsior footnote omitted from publication.] therefore difficult to obtain, and the parties agreed that an earlier cutoff date than that of issuance of the Direction of Election was appropriate. Inasmuch as the record fails to establish that such factors are present in this case, we find no merit to the Petitioner's contention. 5 Daniel Ornamental Iron Co., Inc., 195 NLRB 334 (1972). 6 Scoa, Inc., 140 NLRB 1379, 1381 (1963). ' See, e.g., Scoa, Inc., supra, Delaware Valley Printing and Graphic Communications Union, Local 1776 (The Bulletin Company), 226 NLRB 476 (1976); Mancrafp Exhibitors Services, Inc., 212 NLRB 923 (1974). 903