V.I.P. Movers, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD V.I.P. Movers, Inc. and Freight Construction, Gen- eral Drivers, Warehousemen and Helpers Local Union No. 287, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, Petitioner Case 20-RC-14014 September 16, 1977 DECISION ON REVIEW BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On March 25, 1977, the Regional Director for Region 20 issued her Decision and Direction of Election in the above-entitled proceeding, in which she found appropriate the Petitioner's requested unit of full-time and regular part-time drivers, helpers, and packers, but excluded five "oncall" employees as casual or irregular part-time employees. Thereafter, in accordance with Section 102.67 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Employer filed a timely request for review of the Regional Director's decision on the grounds, inter alia, that, in finding ineligible the oncall employees, she made erroneous findings as to substantial factual issues and departed from officially reported precedent. By telegraphic order dated April 19, 1977, the Board granted the Employer's request for review and the election was stayed pending decision on review. Thereafter, the Employer filed a brief on review. 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 considered the entire record in this case with respect to the issue under review, including the Employer's brief, and makes the following findings: The Employer is engaged in the moving and storage of household and commercial items, operat- ing out of a facility located in San Jose, California. In connection with this business, the Employer employs approximately 18 persons classified as drivers, packers, and/or helpers.' The Petitioner seeks to represent a unit comprised of drivers, packers, and helpers, excluding oncall employees,2 the dispatcher (also classified as a driver), subcontractors and their employees, office clerical employees, guards, and supervisors. The Employer contends that oncall employees should be i Some employees function in more than one of these classifications. 2 The five oncall employees, who are the only employees at issue in this decision, are Henry Cortez, Tom Garcia, Gerald Jaster, Cherri Keeney, and Harold McGowen, Sr. :3 While the Employer's president testified that oncall employees accrue sick leave and vacation time at the same rate as other employees, we do not 232 NLRB No. 3 included as they share a community of interest with other employees in the unit. There is no collective- bargaining history for the employees, and no labor organization seeks to represent these employees in a broader unit. In concluding that oncall employees should be excluded from the unit, the Regional Director found that these employees, unlike others in the unit sought by the Petitioner, could take personal leave at will, accept or reject employment, or vary the number of hours of work in any day or week according to their personal choice. We disagree with those subsidiary findings. Oncall employees are employed as helpers and packers and receive the same wages and work under the same supervision as other employees in these classifications. In hiring oncall employees, the Employer attempts to find individuals who are willing to work at least 15 hours per week on short notice. The five individuals at issue here have all performed work at the Employer's facility for subcontractors as well as for the Employer, although Cortez and McGowen perform such work most regularly; at such times, they are paid by the Employer who is then reimbursed by subcontractors. Some oncall employees have also been involved in other work away from the Employer's facility; however, the Employer's president testified that, for the most part, their work for other employers has not interfered with their work for the Employer. He testified that, while a commitment to work for another employer would be an acceptable reason for declining work on any particular day, an employee who gave that excuse would be less likely to be recalled on subsequent days if any other employee was available. Other acceptable excuses, which are also accepted from other employees, include illness, doctors' appointments,3 and time off for personal reasons.4 By agreement of the parties, after the close of the hearing the Employer was permitted to submit its payroll records for the 6 months preceding the date of hearing. Those records indicate that, in the 6 months covered by the records (or the fraction thereof during which an employee was employed), after deduction of hours worked for subcontractors which are reflected in the Employer's records, each oncall employee averaged at least 4 hours of work per week; and between December 1, 1976, and the date of the hearing (the last calendar quarter preceding the hearing) each oncall employee aver- rely on this testimony in concluding that oncall employees should be included in the unit, as the record shows that no oncall employee has received either sick pay or vacation pay even when said employee has declined work due to illness or has arranged for time off. 4 For example, Harold McGowen, one of the oncall employees, arranged to take unpaid personal leave to visit his family in another city. 14 V.I.P. MOVERS, INC. aged at least 5 hours of work per week and three averaged over 10 hours per week.5 Although, as indicated above, there are some differences in the conditions of employment of oncall employees and the Employer's other employees, these differences are insufficient to warrant the exclusion of oncall employees who work on a frequent, though unscheduled, basis, perform the same tasks in the same areas and under the same supervision as other employees, and therefore share a community of interest with the Employer's other employees. 6 We therefore find that oncall employees are regular part-time employees and include them in the unit found appropriate. With respect to the eligibility of the oncall employees to vote in the election, we note that, in previous cases involving part-time and oncall em- 5 Including hours of work for subcontractors at the Employer's facility, the total work hours for oncall employees dunng the time period for which payroll records were submitted ranged from nearly 6 hours per week for Jaster to approximately 27 hours per week for Cortez. While work for other employers might ordinarily decrease the contact between part-time employees and the Employer's work force, the work for subcontractors reflected in the Employer's records, although not performed as an employee of the Employer, was performed in the same work area as that utilized by the Employer's other employees and therefore may tend to strengthen the ployees, the Board has found such employees eligible to vote if they regularly averaged 4 hours of work per week in the quarter preceding the election.7 There- fore, we shall direct that those oncall employees who have averaged a minimum of 4 hours of work per week in the quarter immediately preceding the date of issuance of this Decision on Review 'shall be eligible to vote. Accordingly, we shall remand the case to the Regional Director for the purpose of conducting an election pursuant to her Decision and Direction of Election, as modified herein, except that the payroll period for determining eligibility shall be that ending immediately before the date of issuance of this Decision on Review. [Excelsior footnote omitted from publication.] attachment of oncall employees to the rest of the Employer's work force. We find, however, that even without considering the work performed for subcontractors the record shows that these oncall employees perform a substantial amount of work for the Employer. s Newton-Wellesley Hospital, 219 NLRB 699 (1975); Scoa, Inc., 140 NLRB 1379(1963). ? Davison-Paxon Conmpany, a Division of R. H. Macy & Co., Inc., 185 NLRB 21 (1970): The May Departmern Stores Contpany d/b/a The M. O'Neil Company, 175 NLRB 514(1969). 15