Tri-State Transportation Co., Inc.

356 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Tri-State Transportation Co., Inc. and Teamsters, Chauffeurs, Warehousmen and Helpers of America Local 25, a/w International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO,' Petition- er. Case 1-RC-18975 June 27, 1988 DECISION AND DIRECTION BY CHAIRMAN STEPHENS AND MEMBERS BABSON AND CRACRAFT The National Labor Relations Board, by a three- member panel, has considered determinative chal- lenges in an election held November 6, 1987, 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 five for and five against the Petition- er, with two 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 Board agent conducting the election chal- lenged the ballots of Brian Berlo and Rocco Sarno on the ground that their names did not appear on the eligibility list furnished by the Employer. The Employer contends that these employees are casual employees and not entitled to vote in the election.2 The Petitioner asserts that they are regular part- time employees entitled to vote. The hearing offi- cer found both employees to be casual employees and excluded them from the unit.3 We disagree. The Employer is a trucking company engaged in the transportation of garments operating in Nor- wood, Massachusetts.4 The Employer employs drivers who make pickups and deliveries locally within the Norwood area and over-the-road drivers who transport garments to and from its facility in Little Falls, New Jersey. In local runs the garments are usually hung in the trucks, a practice requiring driver training.5 At the time of the election there ' On November 1, 1987, the Teamsters International Union was read- mitted to the AFL-CIO Accordingly, the caption has been amended to reflect that change 2 The stipulation sets forth the appropriate unit as All full-time and regular part -time truck drivers, helpers and ware- housemen employed by the Employer at its 655 Pleasant Street, Nor- wood, Massachusetts facility but excluding office clerical employees, managerial employees, guards and supervisors as defined in the Act. 2 The Stipulated Election Agreement is silent as to the intended appli- cation of the term "regular part-time drivers." We agree with the hearing officer that by "regular part-time drivers" the parties' intended a defini- tion identical to that used by the Board in making original unit determi- nations 4 The Employer also has facilities in Little Falls and Belmont, New Jersey, Reading, Pennsylvania, and Baltimore, Maryland 5 Occasionally the garments are transported in containers as in the over-the-road runs were seven full-time local drivers and three full- time over-the-road drivers. The Employer also em- ploys spare drivers who usually are assigned over- the-road runs, which do not require training, al- though spare drivers may perform local runs when the garments are packed in containers. All drivers who perform over-the-road runs are paid a flat fee for each round trip, and those driv- ers performing local runs are compensated on the basis of an hourly rate. The spares who do either over-the-road runs or local runs receive the same wages as the full-time drivers. Spares and full-time drivers report to the same supervisor and both classes of employees are subject to the same hiring procedures. Spares have become full-time employ- ees on several occasions since the Norwood termi- nal opened in September 1985. The full-time drivers receive paid vacations (1 week after 1 year and 2 weeks after 2 years), 5 paid sick days annually, a $1000 individual IRA pay- ment a year, and a fully paid health insurance plan. The spares are not entitled to receive any of the above-mentioned benefits and receive a paid holi- day only if they work the day before or after a holiday. Sarno averaged one over-the-road run a week between July 26, 1987, when he was hired, and Oc- tober 17, 1987, the eligibility cutoff date. Berlo made six over-the-road runs to New Jersey and worked 22 hours as a local driver between August 16 and October 17, 1987. In excluding both Sarno and Berlo from the unit as casuals, the hearing offi- cer found that although both Berlo and Sarno met the 4-hours-a-week average eligibility test tradition- ally used by the Board to determine the inclusion of employees in a unit as regular part-time employ- ees, their lack of community of interest with the full-time drivers precluded their inclusion in the unit. The hearing officer emphasized the differ- ences in fringe benefits between the full-time driv- ers and the spares as well as the spares' ability to reject work and have full-time jobs elsewhere. The test for determining whether an employee is a regular part-time employee or a casual employee takes into account factors such as regularity and continuity of employment and similarity of work duties. Pat's Blue Ribbons, 286 NLRB 918 (1987). In that case the Board stated, "[T]he individual's relationship to the job must be examined to deter- mine whether the employee performs unit work with sufficient regularity to demonstrate a commu- nity of interest with remaining employees in the bargaining unit." Here, in concluding that both Sarno and Berlo were casual employees, the hear- ing officer failed to give proper weight to the simi- larities in working conditions between the spares 289 NLRB No. 38 TRI-STATE TRANSPORTATION CO. and the full-time drivers. Both groups receive the same wages, have the same supervision, and per- form the same work. Spares do over-the-road runs as well as local runs and receive the same compen- sation for their trip as the full-time employees. Fur- ther, spares remain employed as long as they choose and have even become full-time employees. Additionally, both Sarno and Berlo have worked continually and regularly for the Employer since their hire and have the expectation of continued employment. The differences in employment conditions be- tween the spares and the full-time employees are insufficient to justify the exclusion of spares from the unit. Part-time employees frequently receive less in fringe benefits than full-time employees. Similarly, the spares' ability to reject work is not determinative of their employment status so as to exclude them from the unit. Pat's Blue Ribbons, supra. Nor is the fact that spares may have regular employment elsewhere sufficient to justify their ex- clusion. V.I.P. Movers, 232 NLRB 14 (1977). In sum, the differences here do not warrant a finding that the spares lack a community of interest with the full-time employees. The hearing officer also found that the Petition- er's failure to protest the exclusion of spares from the Excelsior list provided by the Employer was further evidence that the spares did not share a community of interest with the full-time drivers.6 6 The hearing officer stated that, if the Petitioner knew of the existence of spare drivers prior to the election and failed to protest their exclusion, 357 There is no requirement, however, that the omis- sions from the Excelsior list be protested, and we are unwilling to draw any inference from the Peti- tioner's failure to challenge the exclusion of these two employees from the Excelsior list. We find that the Employer' s spare drivers, spe- cifically Rocco Sarno and Brian Berlo, both shared a community of interest with the Employer's full- time drivers. As both Sarno and Berlo worked with sufficient regularity between the date of their employment and the end of the eligibility period on October 17, 1987, they are both regular part-time employees eligible to vote in the election. Accord- ingly, we shall direct the Regional Director to open and count the ballots of Rocco Sarno and Brian Berlo. DIRECTION IT IS DIRECTED that the Regional Director for Region I shall, pursuant to the National Labor Re- lations Board Rules and Regulations, within 10 days from the date of this decision, open and count the ballots of Rocco Sarno and Brian Berlo. 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. this constitutes evidence that the spares were not included within the unit description of the Stipulated Agreement . The hearing officer further stated that, on the other hand, if the Petitioner was unaware of the exist- ence of spares, this would highlight the lack of community of interest be- tween the spares and the full-time employees