All-Work, Inc.

National Labor Relations Board - Board Decisions

Oct 26, 1971

193 N.L.R.B. 918 (N.L.R.B. 1971)

918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All-Work, Inc. and Warehouse and Mail Order
Employees Union , Local No. 743, I.B. of T.,
Petitioner . Case 13-RC-12394
October 26, 1971
DECISION AND DIRECTION OF
ELECTION
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a hearing
was held before Hearing Officer Melvin L. Gelade.
Following the hearing and pursuant to Section 102.67
of the National Labor Relations Board Rules and
Regulations and Statements of Procedure, Series 8, as
amended, this case was transferred, by direction of
the Regional Director for Region 13, to the National
Labor Relations Board for decision. Briefs have been
filed by the Employer and the Petitioner.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. The rulings are hereby
affirmed.'
Upon the entire record in this case, including the
briefs filed by the parties, the Board finds:
1. The Employer is an Illinois corporation en-
gaged in providing its customers with temporary
unskilled workers. The parties stipulated that during
the past fiscal or calendar year, a representative
period, the Employer had a gross volume of business
in excess of $500,000 and did business in excess of
$50,000 with customers which themselves shipped
goods or products directly across state lines, although
the Employer itself provides no goods or services
directly across state lines. We find that the Employer
is engaged in commerce within the meaning of the Act
and that it will effectuate the policies of the Act to
assert jurisdiction herein.
2. The labor organization involved claims to
represent certain employees of the Employer.
3. The Petitioner seeks to represent a unit of all
day laborers employed by the Employer at 149 West
Chicago Avenue during the period February 3
through March 1, 1971, excluding all office clerical
employees, guards, supervisors, and professional
employees as defined in the Act. The Employer
contends that no appropriate unit exists for its
employees because of the nature of their employment.
It appears to base its contention on two general
considerations: (1) because the employees are casual
they have no community of interest with each other in
terms and conditions of employment and (2) the
Employer does not have sufficient control over the
employment conditions of its employees to enable the
parties to engage effectively in collective bargaining.
The Employer has an office at 149 West Chicago
Avenue, Chicago, Illinois, from which it operates a
referral system for unskilled labor. Those who wish to
be supplied with labor call the Employer's office the
night before, or on the morning of, the day that such
labor is required. The customer's request is noted on a
card which shows the customer's name, location, type
of work to be done, and any special requests by the
customer. A request that a certain laborer be sent or
one that a certain laborer not be sent are examples of
such requests.
Men desiring to be referred by the Employer to
available jobs appear at the Employer's office at 5:30
a.m., Monday through Friday. The manager of the
office calls out the requests and those desiring the
work volunteer for employment at the jobs offered. In
each instance the manager assigns the work to the first
individual who responds. If the person assigned the
work finds upon further inquiry that he does not wish
to do the work he may refuse to accept it.
When a laborer has agreed to an assignment the
Employer's manager makes out a form containing the
name and location of the customer, type of work to be
done, and the name of the laborer referred. The
laborer takes this form to the customer and when the
workday is ended the customer fills in the number of
hours worked and signs it. The laborer then returns to
the Employer's office and gives the signed form to the
manager. At this time the laborer receives a $10 draw
against his wages if he has worked a full day. At the
end of the week the laborer is then entitled to his
entire wages for the week less the draw he has received
on a daily basis.
The customer has the right to reject a laborer who
has been referred and send him home if his work is not
satisfactory. The laborer must, however, be paid a
minimum of 4 hours' pay after he has reported for
work. The customer directs the laborer in the
performance of his job and determines such working
conditions as breaks and the lunch hours.
The Employer receives a fee from the customer
depending on the number of hours worked by the
I The Employer moved that the transcript be corrected in certain they disagree . However, we do not find that these items have a significant
respects The Petitioner opposed the motion as to two of the items bearing on the decision reached herein We shall also grant the Petitioner's
contained in the motion We shall grant the motion with respect to those motion that reference to a March 25, 1971 , letter in the Employer 's brief be
items on which the parties agree but deny it as to the two items on which stricken since it was not entered in evidence.
193 NLRB No. 137
ALL-WORK, INC. 919
laborer but there is no written agreement between the
Employer and the customer. From the fee thus
received, the Employer pays the laborer his wages,
usually $1.60 to $1.70 per hour, and pays time and
half for work in excess of 8 hours in a single day. The
Employer also withholds Federal income tax and the
Social Security tax from the laborer's wages and
makes workmen's compensation payments. The
record also shows that the Employer sometimes
provides transportation to the jobsite. If the site is
located in the city of Chicago the Employer pays for
transportation. If it is in the suburbs the customer
pays for transportation. Also, one or two men are paid
a small amount of money each week for transporting
fellow workers to a job.
The relationship of the laborer to the Employer
herein is not greatly different from the relationship of
the stevedore to the stevedoring companies. There, as
here, the employees are hired from a general labor
pool and on a day-to-day basis. The laborer, as does
the stevedore, may also perform their services for
other employers. Thus the laborer herein may work
for other employers engaged in supplying casual
laborers to customers just as the stevedore may work
for a number of different stevedoring companies. The
Board has, in fact, recognized stevedores as "casual
laborers" and has held that the casual nature of their
employment does not deprive them of their rights as
"employees" under the statute.2 We think that the
laborers employed by the Employer are, for similar
reasons, entitled to the protection of the Act.
Nor do we believe that the fact that the Employer
does not exercise control over the entire employment
relationship is a sufficient reason for failing to grant
the laborers their statutory right to engage in
collective bargaining. The Employer herein controls
the wage rates, the manner in which they are paid, the
assignment of work, and, in many cases, the transpor-
tation of the laborers to the jobsites. Although the
Employer does not actually supervise the work
performed it thus has control over some of the most
important aspects of the employer-employee relation-
ship. We therefore find that effective and meaningful
2 Tamphon Trading Company, 88 NLRB 597
3 Detective Intelligence Service, 177 NLRB No 115
4 The Employer, at the hearing, moved to dismiss the petition on the
ground that there was no current showing of interest The showing of
interest is an administrative matter not litigable in a representation case
OD Jennings & Company, 68 NLRB 516 Moreover, we are
administratively satisfied with the Petitioner's showing of interest The
motion to dismiss is therefore denied
5 Avis Rent-A-Car System, Inc, 173 NLRB 1366, 1367
6 In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their
collective bargaining could take place between the
Employer and the Petitioner and that the laborers, as
employees of the Employer, are entitled to such
bargaining if they indicate that they desire it.
There is thus no legal obstacle to the establishment
of an appropriate unit. As set forth above the
Petitioner has requested a unit which, in substance,
includes all laborers employed during the period
February 3, 1971, through March 1, 1971. We would
agree that a unit of all laborers employed by the
Employer is appropriate but we believe that it would
be improper to exclude employees on the basis of their
date of hire.3 We therefore find that the following
employees of the Employer constitute a unit appropri-
ate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act:
All day laborers employed by the Employer at 149
West Chicago Avenue, excluding all office clerical
employees, guards, supervisors and professional
employees as defined in the Act.4
4. There remains the question of eligibility to vote
in the election. The Petitioner suggests that any
employee whose name has appeared on six or more
different pay periods within a 6-month period be
eligible to vote. In the alternative the Petitioner
suggests that any employee who has worked 3 or more
days in the calendar quarter immediately preceding
the Decision and Direction of Election should be
eligible to vote. The Employer does not take a
position with respect to this question.
The data in evidence indicates that a substantial
number of laborers worked 7 or more days in each
quarter for which data was submitted. In the
circumstances of this case , therefore, we believe that
any employee who worked 7 days in the 90-day period
preceding the issuance of our Decision and Direction
of Election herein, and who has worked at least 1 of
those days during the 30-day period immediately
preceding this Direction of Election, has a substantial
and continuing interest in conditions of employment
with this Employer; and that the selection of these
figures will insure a representative vote.5
[Direction of Election6 omitted from publication.]
addresses which may be used to communicate with them Excelsior
Underwear Inc, 156 NLRB 1236, N L R B v Wyman-Gordon Co, 394 U.S
759 Accordingly, it is hereby directed that an election eligibility list,
containing the names and addresses of all the eligible voters , must be filed
by the Employer with the Regional Director for Region 13 within 7 days of
the date of this Decision and Direction of Election The Regional Director
shall make the list available to all parties to the election No extension of
time to file this list shall be granted by the Regional Director except in
extraordinary circumstances Failure to comply with this requirement shall
be grounds for setting aside the election whenever proper objections are
filed