Meier & Frank Co., Employer-Petitioner

464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Meier & Frank Company, Employer-Petitioner and Warehousemen's Local No 206, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America. Case 36- UC-118 28 September 1984 DECISION ON REVIEW AND UNIT CLARIFICATION BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER On 4 October 1983 the Regional Director for Region 19 issued his Decision and Order dismissing the Employer's petition for unit clarification The Regional Director found, contrary to the Employ- er's contention, that the exclusion of temporary employees from the existing unit would be disrup- tive of the parties' collective-bargaining agreement and therefore inappropriate Thereafter, in accord- ance with Section 102 67 of the Board's Rules and Regulations, the Employer filed a timely request for review of the Regional Director's decision on the grounds that he departed from precedent re- garding unit clarification and the definition of tem- porary employees By telegraphic order dated 13 December 1983 the Board granted the Employer's request for review The parties filed briefs on review The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the entire record in this case, including the parties' briefs, and makes the following findings The Employer operates retail department stores in Oregon and Washing- ton It also operates warehouses in Portland, Oregon The Union has represented the following unit of employees at the Portland warehouses since the 1940s All shipping clerks, receiving clerks, warehou- semen, clerical employees, wrappers and checkers, but excluding all other employees, professional employees, guards and supervisors as defined in the Act In the course of the Employer's business, inven- tories typically occur three times a year and ware- house sales four or five times a year These events generate an increased volume of work and, occa- sionally, additional help is needed for a 1- to 4-day period to assist with presale inventory checking and warehouse display preparation From 1970 to 1982 the Employer contacted the Union's business representatives to obtain employ- ees to work during inventories and warehouse sales The record indicates that these employees were hired for indefinite and unspecified periods of time, and were paid in accordance with the collec- tive-bargaining agreement On nine occasions be- tween November 1980 and August 1983 the Em- ployer obtained additional help from sources other than the Union 1 The record shows that on these nine occasions individuals hired to do inventory preparation work were told they were needed for 2 to 3 days Those hired for warehouse sales were asked to work 2 days to help set up and 2 to 4 days to take down sales displays The individuals were told which days to report When the extra work for which they were hired was completed, their employment with the Company was terminated No personnel records concerning these employees were kept on file, and there was neither promise nor expectation of future employment, temporary or otherwise, with the Employer 2 The Employer did not apply the collective-bargaining agreement to any of the peak-period employees hired on the nine occasions 3 The current collective-bargaining agreement4 contains no provisions expressly including or ex- cluding temporary employees During contract ne- gotiations in June, July, and August 1982, the Em- ployer proposed the creation of a pool of "on-call" employees for peak periods of warehouse activity, including warehouse sales and inventories These employees were to be hired for indefinite periods of unlimited duration Under the terms of the pro- posal, the on-call employees would not be entitled to contract wages or benefits, and would not attain seniority The Union did not agree to the Employ- er's on-call proposal, and the Employer abandoned the idea In dismissing the petition, the Regional Director found that the general subject of temporary help was addressed during the 1982 contract negotia- tions He rejected the Employer's contention that its proposed on-call pool was different from the employees it wishes to exclude from the unit In so doing, the Regional Director found that irrespec- tive of their label these employees were to be used for extra help on an irregular basis, i e, during peak periods 5 Relying on the lack of any contrac- 1 These employees were hired directly by the Employer or secured through outside referral sources mainly church groups and employment agencies 2 The record indicates that Melodee Hefty, hired for a March 1983 warehouse sale, was later rehired as a regular employee on the request of a supervisor 3 In October 1982 the Union raised the issue of contract pay for these employees No agreement was reached between the parties In March 1983 the Union again raised the issue and filed a gnevance 4 The current agreement runs from 1 August 1982 to 1 August 1985 5 The Regional Director relied on this finding to distinguish B J Carney Go, 157 NLRB 1285 (1966), in which the Board excluded tempo rary employees from the unit where the Issue was raised for the first time in the middle of the contract term 272 NLRB No 75 MEIER & FRANK CO 465 tual provision excluding temporary employees, and the historical inclusion of temporary employees in the unit, the Regional Director concluded that it would be inappropriate to clarify the unit herein The Employer contends that the Regional Direc- tor departed from Board precedent by finding that the short-term employees obtained through the Union from 1970 to 1982 were temporary employ- ees The Employer asserts that the only temporary employees involved herein are the employees it wishes to exclude, and that B J Carney, supra, is controlling The Union, in support of the Regional Director's decision, contends that the Employer has historically applied the collective-bargaining agreement to short-term employees hired for a par- ticular period of time and that the Employer un- successfully attempted to negotiate contractual coverage of the temporary employees We find that the employees covered by the peti- tion are temporary employees The record estab- lishes that the peak-period employees obtained in- dependently of the Union were hired for a definite limited period and did not have a reasonable expec- tation of retention or later recall 6 In addition, we find merit in the Employer's contention that the Regional Director erroneously characterized as temporary employees those individuals hired through the Union for peak periods in 1970 through 1982 The record shows that these em- ployees were hired for indefinite and unspecified periods of time No limits were placed on the dura- 6 We find that the isolated instance of reemployment with respect to Melodee Hefty does not affect the temporary status of the limited dura tion employees ton of their employment Some of these employees worked for months, and others went on to obtain permanent full-time employment with the Employ- er We therefore find that these employees were not temporary employees The above findings lead us to the conclusion that the Regional Director erred in finding that tempo- rary employees had been historically included in the unit Because the instant petition concerns tem- porary employees and the Employer's 1970-1982 practice involved regular employees, the Regional Director's reliance on the 1970-1982 practice in finding that the Employer historically included temporary employees in the unit was misplaced We also disagree with the Regional Director's find- ing that the Employer's proposed on-call pool of employees resembled the temporary employees in- volved herein In light of the evidence that the on- call employees were to be hired for indefinite peri- ods of unlimited duration, we find that they are not analogous to the limited-tenure employees at issue here We therefore are unable to agree with the Regional Director's finding that the type of em- ployee covered by the petition was discussed during contract negotiations in 1982 Because we find that the employees sought to be excluded from the unit are of a temporary nature, and that temporary employees have not historically been included in the unit nor discussed at the bar- gaining table, we conclude in accordance with es- tablished Board policy that, absent agreement of the parties, temporary employees are not part of the existing unit Accordingly, the existing unit is clarified to exclude temporary employees