Berlitz School of Languages of America, Inc.

National Labor Relations Board - Board Decisions

Aug 30, 1977

231 N.L.R.B. 766 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Berlitz School of Languages of America, Inc.' and
Warehouse, Mail Order, Office, Technical and
Professional Employees Union, Local No. 743,
affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Help-
ers of America 2 Petitioner. Case 13-RC-14060
August 30, 1977
DECISION ON REVIEW AND
DIRECTION OF ELECTION
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND WALTHER
On October 7, 1976, the Regional Director for
Region 13 issued a Decision and Direction of
Election in the above-entitled proceeding, in which
he found appropriate a unit of language teachers
employed at the Employer's schools in Chicago,
Hinsdale, and Winetka, Illinois,3 who have taught on
one occasion in the last 6 months preceding the
issuance of his decision and who have not been
terminated for cause, quit voluntarily, or expressed
their unavailability to teach. Thereafter, in accor-
dance with Section 102.67 of the National Labor
Relations Board Rules and Regulations, Series 8, as
amended, the Petitioner filed a timely request for
review of the Regional Director's decision on the
ground that, in selecting the eligibility formula, the
Regional Director departed from precedent.
The Board by telegraphic order dated November
11, 1976, granted the request for review and stayed
the election pending decision on review. Thereafter,
the Employer and the Petitioner filed briefs on
review.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the entire record in this
proceeding, including the briefs on review filed by
both parties with respect to the issue under review,
and makes the following findings:
The Employer is engaged in the teaching of
languages, the sale of translation and interpretation
work, the sale of audio products and books, and the
administration of language testing for corporations.
In teaching the languages, the Employer employs
teachers who are trained in the special Berlitz
method of teaching before they are given teaching
assignments. The Employer does not, however,
i The name of the Employer appears as amended at the hearing.
2 The name of the Petitioner appears as amended at the hearing.
:' The Petitioner had petitioned only for the teachers at the Chicago
school, but the Regional Director found the only appropriate unit to consist
of the teachers at the Chicago, Hinsdale, and Winetka schools and
231 NLRB No. 116
contract with the teachers for their services. They
serve on an "on call" basis and the Employer advises
the teachers that it cannot guarantee full-time
employment. The teachers are also advised that they
have the right to refuse assignments without worry of
discipline. The evidence indicates, however, that in
some cases teachers may be called less frequently if
they often refuse assignments. Further, the Employer
distinguishes between "active" and "inactive" teach-
ers. To qualify for the former category, one must
have taught at least one 40-minute lesson unit in the
last 6 months. If one falls into the "inactive" status,
the cumulative number of lesson units taught by the
person reverts to zero for pay increase purposes. The
record reveals, however, that the rule is quite flexibly
applied and is typically applied where a teacher has
refused assignments for 6 months rather than where
there has been a lack of demand for the language
taught by that teacher.
The languages taught are divided into "A" and "B"
categories. The "A" category consists of the langua-
ges that are taught more frequently than the other
languages taught by the Employer.4 The "B"
languages are all the others taught by the Employer.
As intimated above, the frequency with which
teachers are assigned will depend upon the demand
for the language they teach and the teachers'
availability, as well as other factors which sometimes
conflict with each other and with the availability
factor. The other factors which are considered in
assigning lesson units to teachers include seniority,
the desires of the students, the talent of the particular
teacher in teaching his language, and the desire by
the Employer to spread out assignments so as to keep
teachers interested in continuing to work for the
Employer. Further, the Employer also considers it
desirable to expose private students to different
language intonations and inflections and therefore
sometimes takes this into account in making assign-
ments. The Employer does attempt to regularly
schedule the same teacher for semiprivate or group
instruction.
The teachers at the three schools do receive certain
fringe benefits, but there is no uniformity among the
schools regarding what benefits are given and when
and to whom they are given. One of the three schools
considers teachers who teach 1,400 hours per year to
be full-time teachers and the remaining teachers to
be part time. On that basis, the particular school
awards certain benefits to the full-time teachers. The
other two schools comprising the unit, however, have
accordingly directed an election with the proviso that the Petitioner
demonstrate an adequate showing of interest in the more comprehensive
unit. Review has not been sought of the unit scope in question.
4 The "A" languages are English, French. Spanish. German, Italian, and
Portuguese.
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BERLITZ SCHOOL OF LANGUAGES OF AMERICA
no part-time or full-time dichotomy, and may award
benefits to those whom the schools feel are deserving
or may not award benefits at all.
The record thus presents an unstructured Employ-
er whose lesson assignment and benefit granting
policies do not decrease the difficulty of deciding the
voter eligibility question herein. In weighing this, the
Regional Director concluded that application of the
Employer's "active" versus "inactive" teacher formu-
la was an appropriate mechanism for determining the
eligibility question. He therefore found eligible all
teachers who taught on at least one occasion in the
last 6 months preceding the issuance of the Decision
and Direction of Election. In doing so, he noted that
"with few exceptions those teachers who taught on at
least one occasion in the 6 months preceding July
1976 also taught a substantial number of lesson
units."
The Petitioner, who, as stated, requested review of
the eligibility formula, contends that eligibility
should be conferred upon those teachers who have
taught 20 or more lesson units per month.
In determining the proper eligibility standard in a
situation such as the one presented here, the Board
must consider whether Employees have a reasonable
expectation of future employment. Neither the
formula chosen by the Regional Director, which
arbitrarily limits eligibility to those who have taught
in the last 6 months, nor the formula urged by the
Petitioner, which eliminates approximately 59 per-
cent of the teachers found eligible by the Regional
Director, adequately considers the latter factor.
The record discloses that there are a total of 87
teachers at the Employer's 3 schools. A number of
teachers (approximately five) who have taught in the
year preceding the hearing did not teach at all in the
last 6 months preceding the hearing. This could be
due to the lack of demand at the time for their
particular language. The Employer's roster shows
that three of the five are the only ones listed to teach
the particular language for which they are qualified,
and four of the five teach the less popular "B"
languages. Thus, it is reasonable to assume that when
there is a demand for their language, which may
certainly be expected at some point, they will again
be called upon to teach. Further support for this
conclusion lies in the fact that some of the teachers
who did not teach units in the 6 months prior to the
hearing were employed doing translation work for
' American Zoetrope Productions, Inc., 207 NLRB 621 (1973); Medion,
Incorporatrred, 200 NLRB 1013 (1972).
the Employer. These people are thus clearly available
for teaching work, and the desire by the Employer to
keep them available is manifest.
Additionally, some of the teachers who would be
excluded under the Regional Director's formula
taught more total units in the year preceding the
hearing, even though they did not teach in the last 6
months prior to the hearing, than some who did
teach in that 6-month period. Interestingly, in some
cases the average number of hours taught over the
course of the entire year by the teachers who would
be excluded by the Regional Director is higher than
the average of some who would be eligible under the
Regional Director's formula. One of the excluded
five, for example, averaged 86.6 hours per month
over the 6 months from July to December 1975, but
did not teach thereafter and would therefore be
ineligible under the Regional Director's eligibility
formula. That teacher's average over the course of
the entire 12 months from July 1975 to June 1976
was 43.3 hours per month. There are many teachers
who averaged far fewer hours and yet would be
eligible to vote under the Regional Director's
formula.
We are thus unable to agree with the Regional
Director that eligibility should be limited as he
suggests. In circumstances somewhat analogous to
those here, we have applied a I-year cutoff to
eligibility 5 and a similar limit appears appropriate
here.
Further, under the Regional Director's eligibility
formula, someone who may have taught as little as
one 40-minute unit in the last 6 months or may have
taught more units but on only I day in the last 6
months, would have the same power and opportunity
to effect working conditions as the teacher who has
worked on a more regular basis. In recognition of
this possible inequity, we shall require that the
teachers who have taught in the last year shall also
have taught on more than one occasion (day) during
the past year.
To be sure, the above eligibility formula will
enfranchise some teachers who have not taught
nearly as much as others. However, given the
vagaries of the Employer's employment structure, the
formula will also not disenfranchise those who have a
reasonable expectancy of future employment.
[Direction of Election and Excelsior footnote
omitted from publication.]
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