Pat'S Blue Ribbons And Trophies

918 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Pat's Blue Ribbons and Trophies and United Food and Commercial Workers International Union, Local 44, AFL-CIO. Case 19-RC-11482 19 November 1987 DECISION AND DIRECTION BY CHAIRMAN DOTSON AND MEMBERS STEPHENS AND CRACRAFT The National Labor Relations Board, by a three- member panel, has considered determinative chal- lenges in an election held 5 November 1986 and the hearing officer's report recommending disposi- tion of them. The election was conducted pursuant to a Stipulated Election Agreement. The tally of ballots shows six for and six against the Petitioner, with five challenged ballots. The Board has reviewed the record in light of the exceptions and brief and adopts the hearing of- ficer's findings and recommendations only to the extent consistent with this decision.' The Petitioner challenged the ballots of Lori La- Cross, Judy Mathews,2 and Dawn Branco on the grounds that they were casual employees, 3 and the hearing officer recommended sustaining the chal- lenges in his report of 31 December 1986. Al- though the Employer has filed timely exceptions to the recommendation of the hearing officer regard- ing the three challenged ballots, we find merit only concerning two of them. Accordingly, for the rea- sons set forth below, we overrule the challenges to the ballots of Lori LaCross and Judy Mathews and sustain the challenge to the ballot of Don Branco. The Employer, a small family-owned business, manufactures prize ribbons for various cat shows held nationwide. The Employer's busy season is June through October. Although most employees work at the Employer's place of business, several employees work in their own homes at their own pace. The Petitioner does not contend that home- based employees, as a category, should be excluded from the unit, but only that some of them are casual employees to be excluded. Lori LaCross, one such home-based employee, was hired in late August 1986,4 well before the eligibility cutoff date i At the outset of the hearing , the Employer withdrew its challenges to the ballots of Kitty Amos and Dawn Holz We therefore overrule the challenges to those ballots and direct, as recommended by the hearing of- ficer, that the ballots of Kitty Amos and Dawn Holz be opened and counted 2 In the cases of both Judy Mathews and Linda Mathews, we use the spellings of their names that appear in the record rather than the spellings used by the hearing officer. 3 The stipulation sets forth the appropriate unit as All retail employees, commissioned employees, and production em- ployees employed by Pat's Blue Ribbons and Trophies at Belling- ham, Washington , excluding all office clerical employees, guards and supervisors as defined by the Act 4 All dates are 1986 unless otherwise indicated of 30 September.5 Although there is some question whether LaCross began working in August, the Employer's payroll records show that she was paid for 73 hours in September, prior to the eligibility cutoff date. LaCross testified that part-owner Linda Mathews contacted her when there was available work, dropped off the necessary materi- als, and retrieved the finished products. In addition to supervising LaCross' work, Mathews supervises, hires, fires, schedules, and otherwise manages the shop employees. LaCross, as a home-based employ- ee, was assigned work for specific shows to com- plete within a designated timeframe. Although La- Cross was paid on a piece-rate basis while perform- ing work identical to that performed by shop em- ployees, application of a formula devised by the Employer resulted in her receipt of the same nomi- nal "hourly" rate of pay received by shop employ- ees. Regarding other terms and conditions of em- ployment, the record reveals that workmen's com- pensation and unemployment compensation pay- ments were made on behalf of LaCross, as they were for shop employees, and that LaCross was treated in a manner identical to remaining unit em- ployees regarding vacation pay, Federal income tax, and social security deductions. In concluding that LaCross was a casual employ- ee with intermittent and irregular employment, the hearing officer emphasized the perceived ability of home-based employees to accept or reject employ- ment or to vary the number of hours worked ac- cording to personal choice. The Board has held, however, that the ability to reject work is not de- terminative of an individual 's employment status so as to exclude the individual from the unit as a casual employee. Mid-Jefferson County Hospital, 259 NLRB 831 (1981); Leaders-Nameoki, Inc., 237 NLRB 1269 (1978). Rather, the test for whether an employee is a regular or a casual part-time employ- ee takes into consideration such factors as regulari- ty and continuity of employment, length of em- ployment, and similarity of work duties. Muncie Newspaper, 246 NLRB 1088 (1979). In short, the in- dividual's relationship to the job must be examined to determine whether the employee performs unit work with sufficient regularity to demonstrate a community of interest with remaining employees in the bargaining unit. Mid-Jefferson County Hospital, supra. Because LaCross worked a substantial number of hours (i.e., 73) between her date of hire in late August and the end of the eligibility period on 30 September, and because during that period 5 Although LaCross worked for the Employer about 10 years previ- ously while a high school student, we find, based on the substantial lapse of time between the former and current employment, that for the pur- poses of this case LaCross is a new employee 286 NLRB No. 94 PAT'S BLUE RIBBONS 919 she performed the same work under the same su- pervision and received a rate of pay equivalent to the rate received by full-time employees, we find, contrary to the hearing officer, that LaCross en- joyed a community of interest with the full-time employees regarding wages, hours, and other terms and conditions of employment.6 We conclude, therefore, that LaCross was, at the time of the election,7 a regular part-time employee eligible to vote, and we shall overrule the challenge to her ballot. Accordingly, we direct the Regional Direc- tor to open and count the ballot of Lori LaCross. Similarly, we find that Judy Mathews was a reg- ular part-time employee, eligible to vote in the election. The record establishes that Mathews worked continuously as a shop employee from February 1985 until 22 January. In January she went on maternity leave and did no work for the Employer for 9 months until September when she began working at home . An accurate determination of the regularity of her employment for the quarter in which she resumed active employment, there- fore, can be based only on those hours worked in September. During the month preceding the 30 September eligibility cutoff date, Mathews worked 43 hours.8 Additionally, Mathews' hours in the months pre- ceding her leave were substantial.9 Mathews, like LaCross, was paid pursuant to a formula that re- sulted in her receipt of the same nominal hourly rate received by shop employees and, likewise, for purposes of workmen's compensation and unem- ployment compensation, vacation pay, and Federal income tax and social security deductions, was treated the same as the Employer's other employ- ees. 6 In making a determination concerning an individual's status as a casual or a regular part-time employee, the Board considers not only the length, but also the regularity of employment This is particularly true when, as here, an individual is a recently hired employee Modern Food Market, 246 NLRB 884, 885 (1979) Regularity does not necessarily mean a fixed schedule, rather this requirement can be satisfied by evidence, as in this case, that an employee has worked a substantial number of hours within the period of employment poor to the eligibility date and there is no showing that such work has been only on a sporadic basis. See Newton- Wellesley Hospital, 219 NLRB 699 , 703 (1975) 7 In the 5-week period between the eligibility cutoff date and the elec- tion, LaCross was paid for 92 hours of work . Although LaCross had been told apparently in October that business was slowing down and she performed no work in November poor to the 5 November election, the Petitioner does not claim that LaCross no longer was an employee as of the date of the election The Petitioner also makes no claim employment would be of limited duration 8 Though not determinative, Mathews worked 16 5 hours in October, after the eligibility cutoff date She worked 140 hours in December 1985 and 108 hours in January Mathews' preleave and reemployment hours and her compensation establish such tenure, regularity, and continuity of employment and similarity of wages and working conditions to render her a reg- ular part-time employee.10 Therefore, we overrule the challenge to Mathews' ballot and we shall order that her ballot be opened and counted. In contrast we find that Dawn Branco worked an insufficient number of hours during the quarter preceding the eligibility cutoff date to be consid- ered as other than a casual employee, and that she was not eligible to vote in the election. The Em- ployer's time and payroll records indicate that Branco was employed from October 1984 through April 1985, and that she did not work for the Em- ployer again until September. At some point during this apparent 16-month hiatus, Branco was consid- ered to be on maternity leave." On resuming em- ployment in September, she worked 14 hours prior to the eligibility cutoff date. Further, in the 2 months prior to her cessation of active employ- ment, Branco worked 4.5 hours in March and April 1985, respectively. Consequently, Branco's preleave and reemployment hours indicate that her status is that of a casual part-time employee.12 Ac- cordingly, we conclude that Branco was ineligible to vote in the election, and we sustain the chal- lenge to her ballot. DIRECTION It is directed that the Regional Director for Region 19 shall, pursuant to the National Labor Relations Board Rules and Regulations, within 10 days from the date of this decision, open and count the ballots of Kitty Amos, Dawn Holz, Lori La- Cross, and Judy Mathews. The Regional Director shall further prepare and cause to be served on the parties a revised tally of ballots and thereafter issue the appropriate certification. 10 May Department Stores, 175 NLRB 514 (1969), and Davison-Paxon Co, 185 NLRB 21 (1970) 11 Despite apparent inconsistencies in the record and briefs, no party contends that the record is in error As stated above, time and payroll records establish that Branco did not work from April 1985 to September 1986 Although the Employer states on brief that Branco was "placed on a maternity leave in April of 1985," Branco testified that her child was born on 12 April 1986. 12 The hours Branco worked on resuming employment and her hours poor to taking leave-none of which are disputed-conclusively establish the casual nature of her employment This is so notwithstanding the in- consistencies noted in fn 11 above, and regardless of whether Branco's leave was for 16 months or 5, and whether it was maternity leave, an- other type of leave, or a combination of the two