Berlitz School of Languages of America, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Berlitz School of Languages of America, Inc.' and Warehouse, Mail Order, Office, Technical and Professional Employees Union, Local No. 743, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America 2 Petitioner. Case 13-RC-14060 August 30, 1977 DECISION ON REVIEW AND DIRECTION OF ELECTION BY CHAIRMAN FANNING AND MEMBERS JENKINS AND WALTHER On October 7, 1976, the Regional Director for Region 13 issued a Decision and Direction of Election in the above-entitled proceeding, in which he found appropriate a unit of language teachers employed at the Employer's schools in Chicago, Hinsdale, and Winetka, Illinois,3 who have taught on one occasion in the last 6 months preceding the issuance of his decision and who have not been terminated for cause, quit voluntarily, or expressed their unavailability to teach. Thereafter, in accor- dance with Section 102.67 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Petitioner filed a timely request for review of the Regional Director's decision on the ground that, in selecting the eligibility formula, the Regional Director departed from precedent. The Board by telegraphic order dated November 11, 1976, granted the request for review and stayed the election pending decision on review. Thereafter, the Employer and the Petitioner filed briefs 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 proceeding, including the briefs on review filed by both parties with respect to the issue under review, and makes the following findings: The Employer is engaged in the teaching of languages, the sale of translation and interpretation work, the sale of audio products and books, and the administration of language testing for corporations. In teaching the languages, the Employer employs teachers who are trained in the special Berlitz method of teaching before they are given teaching assignments. The Employer does not, however, i The name of the Employer appears as amended at the hearing. 2 The name of the Petitioner appears as amended at the hearing. :' The Petitioner had petitioned only for the teachers at the Chicago school, but the Regional Director found the only appropriate unit to consist of the teachers at the Chicago, Hinsdale, and Winetka schools and 231 NLRB No. 116 contract with the teachers for their services. They serve on an "on call" basis and the Employer advises the teachers that it cannot guarantee full-time employment. The teachers are also advised that they have the right to refuse assignments without worry of discipline. The evidence indicates, however, that in some cases teachers may be called less frequently if they often refuse assignments. Further, the Employer distinguishes between "active" and "inactive" teach- ers. To qualify for the former category, one must have taught at least one 40-minute lesson unit in the last 6 months. If one falls into the "inactive" status, the cumulative number of lesson units taught by the person reverts to zero for pay increase purposes. The record reveals, however, that the rule is quite flexibly applied and is typically applied where a teacher has refused assignments for 6 months rather than where there has been a lack of demand for the language taught by that teacher. The languages taught are divided into "A" and "B" categories. The "A" category consists of the langua- ges that are taught more frequently than the other languages taught by the Employer.4 The "B" languages are all the others taught by the Employer. As intimated above, the frequency with which teachers are assigned will depend upon the demand for the language they teach and the teachers' availability, as well as other factors which sometimes conflict with each other and with the availability factor. The other factors which are considered in assigning lesson units to teachers include seniority, the desires of the students, the talent of the particular teacher in teaching his language, and the desire by the Employer to spread out assignments so as to keep teachers interested in continuing to work for the Employer. Further, the Employer also considers it desirable to expose private students to different language intonations and inflections and therefore sometimes takes this into account in making assign- ments. The Employer does attempt to regularly schedule the same teacher for semiprivate or group instruction. The teachers at the three schools do receive certain fringe benefits, but there is no uniformity among the schools regarding what benefits are given and when and to whom they are given. One of the three schools considers teachers who teach 1,400 hours per year to be full-time teachers and the remaining teachers to be part time. On that basis, the particular school awards certain benefits to the full-time teachers. The other two schools comprising the unit, however, have accordingly directed an election with the proviso that the Petitioner demonstrate an adequate showing of interest in the more comprehensive unit. Review has not been sought of the unit scope in question. 4 The "A" languages are English, French. Spanish. German, Italian, and Portuguese. 766 BERLITZ SCHOOL OF LANGUAGES OF AMERICA no part-time or full-time dichotomy, and may award benefits to those whom the schools feel are deserving or may not award benefits at all. The record thus presents an unstructured Employ- er whose lesson assignment and benefit granting policies do not decrease the difficulty of deciding the voter eligibility question herein. In weighing this, the Regional Director concluded that application of the Employer's "active" versus "inactive" teacher formu- la was an appropriate mechanism for determining the eligibility question. He therefore found eligible all teachers who taught on at least one occasion in the last 6 months preceding the issuance of the Decision and Direction of Election. In doing so, he noted that "with few exceptions those teachers who taught on at least one occasion in the 6 months preceding July 1976 also taught a substantial number of lesson units." The Petitioner, who, as stated, requested review of the eligibility formula, contends that eligibility should be conferred upon those teachers who have taught 20 or more lesson units per month. In determining the proper eligibility standard in a situation such as the one presented here, the Board must consider whether Employees have a reasonable expectation of future employment. Neither the formula chosen by the Regional Director, which arbitrarily limits eligibility to those who have taught in the last 6 months, nor the formula urged by the Petitioner, which eliminates approximately 59 per- cent of the teachers found eligible by the Regional Director, adequately considers the latter factor. The record discloses that there are a total of 87 teachers at the Employer's 3 schools. A number of teachers (approximately five) who have taught in the year preceding the hearing did not teach at all in the last 6 months preceding the hearing. This could be due to the lack of demand at the time for their particular language. The Employer's roster shows that three of the five are the only ones listed to teach the particular language for which they are qualified, and four of the five teach the less popular "B" languages. Thus, it is reasonable to assume that when there is a demand for their language, which may certainly be expected at some point, they will again be called upon to teach. Further support for this conclusion lies in the fact that some of the teachers who did not teach units in the 6 months prior to the hearing were employed doing translation work for ' American Zoetrope Productions, Inc., 207 NLRB 621 (1973); Medion, Incorporatrred, 200 NLRB 1013 (1972). the Employer. These people are thus clearly available for teaching work, and the desire by the Employer to keep them available is manifest. Additionally, some of the teachers who would be excluded under the Regional Director's formula taught more total units in the year preceding the hearing, even though they did not teach in the last 6 months prior to the hearing, than some who did teach in that 6-month period. Interestingly, in some cases the average number of hours taught over the course of the entire year by the teachers who would be excluded by the Regional Director is higher than the average of some who would be eligible under the Regional Director's formula. One of the excluded five, for example, averaged 86.6 hours per month over the 6 months from July to December 1975, but did not teach thereafter and would therefore be ineligible under the Regional Director's eligibility formula. That teacher's average over the course of the entire 12 months from July 1975 to June 1976 was 43.3 hours per month. There are many teachers who averaged far fewer hours and yet would be eligible to vote under the Regional Director's formula. We are thus unable to agree with the Regional Director that eligibility should be limited as he suggests. In circumstances somewhat analogous to those here, we have applied a I-year cutoff to eligibility 5 and a similar limit appears appropriate here. Further, under the Regional Director's eligibility formula, someone who may have taught as little as one 40-minute unit in the last 6 months or may have taught more units but on only I day in the last 6 months, would have the same power and opportunity to effect working conditions as the teacher who has worked on a more regular basis. In recognition of this possible inequity, we shall require that the teachers who have taught in the last year shall also have taught on more than one occasion (day) during the past year. To be sure, the above eligibility formula will enfranchise some teachers who have not taught nearly as much as others. However, given the vagaries of the Employer's employment structure, the formula will also not disenfranchise those who have a reasonable expectancy of future employment. [Direction of Election and Excelsior footnote omitted from publication.] 767