Ameritech Communications, Inc

National Labor Relations Board - Board Decisions

Jan 31, 1990

297 N.L.R.B. 654 (N.L.R.B. 1990)

654 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Ameritech Communications, Inc and Commumca
bons Workers of America, AFL-CIO, Petition
er and International Brotherhood of Electrical
Workers, Local No 494, AFL-CIO, Intervenor
Case 30-RC-4788
January 31, 1990
SUPPLEMENTAL DECISION,
DIRECTION, AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
The National Labor Relations Board, by a three-
member panel, has considered determinative chal
lenges in an election held July 26, 1988, and the
hearing officer's report recommending disposition
of them The election was conducted pursuant to a
Stipulated Election Agreement The tally of ballots
shows 14 for Communications Workers of Amer-
ica, AFL-CIO, 7 for International Brotherhood of
Electrical Workers, Local No 494, AFL-CIO, and
no votes against the participating labor orgamza
tions, with 11 determinative challenged ballots
The Board has reviewed the record in light of
the exceptions and briefs, and has adopted the
hearing officer s findings' and recommendations 2
DIRECTION
IT IS DIRECTED that the Regional Director for
Region 30 shall, within 10 days from the date of
this decision, open and count the ballots of Thomas
Axelson, Vic Behrendt, David Elsbury, Richard
Freeman, Brian Hadlinger, Ken Kloss, Jeff Pender,
Lance Thieme, and Joan Windram, and shall there-
after prepare and cause to be served on the parties
a revised tally of ballots, on which basis he shall
issue the appropnate certification
ORDER
It is ordered that the above entitled matter be re
ferred to the Regional Director for Region 30 for
further processing consistent herewith
'The hearing officer stated that the Employer s project at the Clul
dren s Hospital of Milwaukee lasted until December 1989 whereas the
record shows that the project was completed in December 1988 This
misstatement does not affect our result in this case
2 In the absence of exceptions the Board in Its earlier unpublished de
cision Issued on March 30 1989 adopted pro forma the Regional Three
tor s recommendation that the challenge to Richard Padilla s ballot be
sustained The parties thereafter stipulated that the challenge to George
Williams ballot should also be sustained because he is a statutory supervi
sor We adopt the hearing officer s recommendations to overrule chal
lenges to the ballots cast by the nine remaining employees whose eligibil
ity status is in dispute
Hearing Officer s Report on Challenged Ballots
with Findings and Recommendations
Pursuant to a petition filed on March 24 1988' and a
Stipulated Election Agreement executed by the parties
and approved by the Regional Director on July 20, an
election was conducted on July 26 among employees in
the following unit
All full time and regular part time technicians em
played at or reporting to the Employer s location at
200 South Executive Plaza Brookfield Wisconsin
excluding managerial employees confidential em
ployees professional employees guards and super
visors as defined in the Act and all others
The results of the election as set forth in the tally of
ballots served on the parties on the day of the election
show that of approximately 21 eligible voters 14 cast
ballots for the Petitioner 7 cast ballots for the Interve
nor and no ballots were cast against the participating
labor organizations There were 11 challenged ballots
which were sufficient in number to affect the results of
the election No objection to conduct affecting the re
sults of the election were filed
The ballots of the following named employees were
challenged by the Board Agent because their names did
not appear on the voting eligibility list Vic Behrendt
David Elsbury Thomas Axelson Brian Haeflinger,
Lance Thieme Jeff Pender Richard Freeman Joan Win
derman Ken Kloss and George Williams
Following investigation of the issues raised by the
challenges on August 30 the Regional Director issued a
Report and Recommendation on Challenged Ballots The
Petitioner on September 13, filed exceptions with the
Board to said Report On March 30 1989 the National
Labor Relation Board issued a Decision and Order Di
recting a Hearing on the above challenged ballots 2
Thereafter on April 7, 1989 the Regional Director
issued a Notice of Heanng on Challenged Ballots The
Notices of Hearing, as modified by the Hearing Officer
provided that the Hearing Officer will prepare and cause
to be served upon the parties a report containing resolu
tions of credibility of witnesses findings of fact and rec
ommendations to the Board concerning the disposition of
all issues involved herein A hearing was held before the
undersigned on June 13 1989, in Milwaukee, Wisconsin
The Employer Petitioner and Intervenor were repre
sented and participated in the hearing Full oportunity to
be heard to examine and cross examine witnesses and to
introduce evidence bearing on the issues was afforded to
all parties The Petitioner and Intervenor have filed
1 Unless otherwise indicated all dates refer to 1988
2 In the absence of exceptions the Board adopted the Regional Direc
tor s recommendation that the challenge to the ballot of Richard Padilla
be sustained
The Board further stated that the unit described in the election stipula
lion is not clear and unambiguous and that at hearing the parties may
present evidence bearing on their Intent in that stipulation
At heanng the parties stipulated that they will not argue or present
evidence that the election agreement resolves the issue presented to the
Hearing Officer but rather will present facts in support of their respec
tive positions
297 NLRB No 102
AMERITECH COMMUNICATIONS 655
timely briefs which have been carefully considered The
findings of fact and credibility resolutions contained
herein are based upon my consideration of the entire
record and my observations of the testimony and de-
meanor of the witnesses 3
The Challenges
The Board Agent at the election conducted on July
26, challenged the ballots of the ten employees named
above At hearing the parties stipulated that George Wil-
liams is a supervisor as defined in the Act Based upon
said stipulation and the entire record, Ifind that Williams
is a supervisor and was not eligible to vote in the elec-
tion I shall, therefore, recommend that the challenge to
his ballot be sustained With respect to the nine remain-
ing challenged ballots, it is the position of the Petitioner
that those employees were temporarily assigned by the
Employer to work on projects in Milwaukee and, there-
fore, they were not eligible to vote in the election On
the contrary, the Intervenor contends that these employ-
ees were eligible to vote because they were not provided
with a date certain of when their employment in Mil-
waukee would terminate and because they were em-
ployed in the unit on both the eligibility date and the
election date The Employer, while cooperating fully at
the hearing, took no position regarding the eligibility of
the nine employees
Facts
The Employer is engaged in the installation of tele-
phones and related equipment for business enterprises on
a national basis In the Chicago area the Employer uti-
lizes approximately 150 to 160 employees who install and
service this equipment Those Chicago-based employees
are represented by IBEW Local 134 The current agree-
ment between the Employer and Local 134 is effective
from January 1, 1987, until December 31, 1989 Around
March 1987, the Employer commenced operations in
Milwaukee with two employees who voluntarily agreed
to the temporary assignment Between that time and
about January 1988, employees were assigned to a
number of projects During that time the employee-mem-
bers of Local 134 worked on small projects in and
around Milwaukee and were paid in accordance with the
Local 134 contract They commuted between Milwaukee
and their residence in the Chicago area
Around October or November 1987, the Employer
was awarded a contract with Children's Hospital of Mil-
waukee with the major portion of that job to install
cable That project began in November 1987 and was ex-
pected to last 6 or 7 months, but lasted until December
1989 About April 1988, the Employer received a con-
tract from the Milwaukee Public Schools (MPS) to es-
sentially rewire the entire telephone system for the 70
schools and the administration building That work
began around April and finished in late December 1988
or early January 1989 That project was estimated to last
1 year In addition there were an undetermined number
3 Accordingly, any failure to completely detail any evidentiary con-
flicts does not mean that such conflicts were not considered Bishop and
Maleo Inc d/b/a Walkers, 159 NLRB 1159 (1966)
of smaller jobs in the Milwaukee area during the calen-
dar year 1988
It is undisputed that the 9 employees at issue worked
on one or both of the two major projects referred to
above It is further undisputed that during those projects
they were residents of the Chicago area who voluntarily
agreed to work in the Milwaukee area, that all were
working in Milwaukee on the election date of July 26,
that 8 of the 9 were working in Milwaukee on the pay-
roll eligibility date of July 2, an that all were employed
by the Employer on that date Finally, it is undisputed
that as of the date of the election none of these employ-
ees had been given a definite date when their employ-
ment on the two major projects, or in the Milwaukee
area would end
As a result of having discovered that employees of the
Employer were performing work in Milwaukee, the
Business Manager of the Intervenor, Neal Rosenberg,
contacted the Employer in September 1987, for the pur-
pose of negotiating a collective-bargaining agreement
On or about December 30, 1987, the Employer signed a
Letter of Assent to the Sound and Communication
Agreement between the Electncal Contractors Associai-
ton of Milwaukee (NECA) and the Intervenor Howev-
er, the employees continued to receive the wages provid-
ed in the Local 134 contract The Employer, also on De-
cember 30, 1987, signed the Letter of Assent to the
Inside Wiremen's Agreement which enable the Intervnor
to refer inside wiremen to the Employer's projects
In light of the these facts, the Petitioner contends that
these nine employees were temporary, did not have a
sufficient community of interest with the permanent em-
ployees, and that if these employees were found eligible
to vote, it would improperly interfere with the demo-
cratic election process For the reasons set forth below, I
am not persuaded by these arguments
With respect to the issue of temporary status, there is
no question that none of the nine employees were as-
signed permanently to Milwaukee, and that each of their
assignments were for an indefinite period without a spe-
cific ending date While it may be that these employees
worked primarily on the Children's Hospital and/or
MPS projects, they also did "moves, adds and changes"
on other projects, and worked on the Milwaukee County
Courthouse, Arthur Anderson and Blue Cross/Blue
Shield projects It appears that these employees were to
work in Milwaukee until the Children's Hospital and/or
MPS jobs were completed Each project had a proposed
"cut-over" date when the work was scheduled to be
completed and the system became operational However,
such date is subject to change due to construction delays,
shipping days, customer initiated changes, or customer
not ready For whatever reason, the Children's Hospital
job was not completed by the proposed "cut-over" date,
but the MPS jobs was finished before that date
In Personal Products Corporation, 114 NLRB 959, 960
(1955), the Board specifically stated, "temporary employ-
ees, who are employed on the eligibility date, and whose
tenure of employment remains uncertain, are eligible to
vote" In that case an electrician was hired on a part-
time, temporary basis to fill a vacancy until a permanent,
656 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
full-time replacement could be found Inasmuch as he
was employed on the critical payroll and election dates,
and he was employed for an indefinite period, he was eli-
gible to vote and the challenge to his ballot was over-
ruled The foregoing test was applied by the Board to
the challenged ballots in Lloyd A Fry Roofing Company,
121 NLRB 1433, 1436-1438 (1958)
The Board has also applied this test in Bromine Divi-
sion, Drug Research Inc , 224 NLRB 1275, 1287 (1976), in
a situation where the challenged employee was a tempo-
rary employee who had been laid off by another employ-
er The challenged employee worked for Bromine less
that 3-1/2 months, but was found eligible to vote because
he did not have a definite termination date
Similarly, the Board has applied an analogous test in
determining whether an authorization card should be
counted in determining a union's majority status In
M J Pirolh (1 Sons, Inc , 194 NLRB 241, 249-250
(1972), the Board held that where there was not a defi-
nite employment termination date, the authonzation
cards signed by the temporary employees were to be
counted The Board followed this holding in Emco Steel
Inc , 227 NLRB 989, 990-992 (1977) The employee,
Cob, was a member of Iron Workers Union and on strike
from Brightman Iron Works He began working for
Emco in July 1975 for an indefinite penod at a lower
wage and without fringe benefits The Board adopted the
administrative law judge's finding that Cob was em-
ployed by Emco when he signed the authorization card
and that he was not a temporary employee since his em-
ployment was for the duration of the strike and thus of
indefinite duration
The Board's test has also been adopted by the First
Circuit Court of Appeals in NLRB v New England Lith-
ographic Company Inc , 589 F 2d 29 (1st Cir 1978) The
court therein relied upon the holdings in Personal Prod-
ucts and Llyod A Fry, supra, in finding that two tempo-
rary employees whose termination dates were not certain
were eligible to vote
Applying the foregoing precedent to the facts in the
instant case, I find that since they were employed in Mil-
waukee by the Employer on the payroll eligibility date,
on the election date, and since their employment in Mil-
waukee was of indefinite duration, the nine employees at
issue were eligible to vote in the election
Petitioner next argues that the nine employees did not
have sufficient community of interest to be eligible to
vote The evidence establishes that these employees
worked with members of the Intervenor on the Chil-
dren's Hospital and MPS projects, that they had
common supervision, that they received the fringe bene-
fits set forth in the collective-bargaining agreement be-
tween the Employer and Intervenor, they were repre-
sented by the Intervenor in grievances involving unit
work performed by nonunit personnel and a wage dis-
pute The steward was a mmber of the Intervenor and
represented its members as well as the Local 134 mem-
bers on the Employer's Milwaukee projects In addition
the Employer paid to the Intervenor on behalf of the
nine employees the working dues of 1 percent per
month Local 134 did not receive working dues pay-
ments from those employees when they were working in
Milwaukee after the Employer and the Intervenor had
entered into a collective-bargaining relationship
Petitioner asserts that there was no community of in-
terest because the nine employees were receiving the
Local 134 wage rate, and because an employee cannot
have a community of interest in more than one unit As
to the former, the Intervenor negotiated with the Em-
ployer to give the nine employees the higher wage rate
The employees did not receive that rate automatically
Further, it is not necessary to have identical wages or
benefits with all other unit employees to have a commu-
nity of interest See Llyod A Fry, 121 NLRB at 1427,
New England Lithographic, 589 F 2d at 36 The court at
page 34 stated, "An employee who works during the
payroll period and whose affiliation with the employer is
of an unspecified duration is naturally concerned with
the terms and conditions of his/her employment" As to
the latter point, Petitioner cites no authority to support
the proposition that an employee can have a community
of interest in only one unit On the contrary, in Emco
Steel, supra, employee Cob was a union member and had
a community of interest in both units, i e, his struck em-
ployer and Emco
Based upon the foregoing and the entire record, I find
that Petitioner's argument is without merit and that the
nine employees have more than a sufficient community
of interest to be included in the unit herein
Finally, Petitioner asserts that as a matter of policy
these employees should not be eligible to vote because of
potential improprieties such as unit packing Petitioner
correctly points out that there is no such allegation in
this case, but speculates that such possibility could exist
in the building and construction industry It is more than
sufficient to state that the Board will not base its deci-
sions upon mere speculation In essence Petitioner is
asking that the rights of the nine employees to vote be
denied because of this speculation This the Board will
not do Contrary to Petitioner, the facts and conclusion
herein are totally consistent with the reality of job as-
signments in the building and construction industry For
example, the Board has devised formulas for voter eligi-
bility in Dick Kekher Excavating Go, 236 NLRB 1414
(1978) and Daniels Construction Company, Inc , 133
NLRB 264 (1961) which recognize the seasonal and tran-
sient nature of the building and construction industry As
these cases show, the Board's policy is to favor, not re-
strict the eligibility of employees to vote
Conclusion and Recommendation4
Based on the foregoing and the entire record, I con-
clude that the nine employees at issue are not temporary
employees, that they do have a sufficient community of
interest to be included in the stipulated unit, and that
there are no Board policies which would find them ineli-
gible to vote
4 Under the provisions of Section 102 69 of the Board's Rules and Reg-
ulations, exceptions to this report must be received by the Board s in
Washington, D C by August 23, 1989 Immediately upon the filing of ex-
ceptions, the party filing same shall serve a copy with the Regional Di-
rector of the Thirtieth Region If no exceptions are filed, the Board will
adopt the recommendation of the heanng officer
AMERITECH COMMUNICATIONS 657
Accordingly, I recommend that the ballots of Vic
Behrendt David Elsbury Thomas Axelson Bnan Hae
flinger, Lance Thieme, Jeff Pender, Richard Freeman,
Joan Wmdram and Ken Kloss be overrule that these
ballots be opened that a revised tally of ballots issue
and that a Certification of Representative issue to the
labor organization receiving the majority of votes cast I
further recommend, pursuant to the parties stipulation
that the ballot of George Williams be sustained and not
counted
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