Capitol Insulation Co.

National Labor Relations Board - Board Decisions

Dec 2, 1977

233 N.L.R.B. 902 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Capitol Insulation Company, Inc. and Colorado State
Council of Carpenters & its affiliated District
Councils & Local Unions, United Brotherhood of
Carpenters & Joiners of America, Petitioner. Case
27-RC-5534
December 2, 1977
DECISION AND DIRECTION OF
ELECTION
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a
hearing was held before Hearing Officer Donald E.
Chavez of the National Labor Relations Board on
June 3 and 10, 1977. Following the hearing and
pursuant to Section 102.67 of the Board's Rules and
Regulations, Series 8, as amended, the Acting
Regional Director for Region 27 transferred this
proceeding to the Board for decision. Thereafter, the
Employer and Petitioner filed briefs.
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 reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby affirmed.
Upon the entire record in this case, the Board
finds:
1. Capitol Insulation Company, Inc. (the Em-
ployer herein), is a Colorado corporation with its
principal place of business in Denver, where it is
engaged in the manufacture, sale, and installation of
insulation. During the calendar year immediately
preceding the hearing, the Employer purchased
goods valued at more than $50,000 from sources
outside the State of Colorado and has had goods
valued in excess of $50,000 shipped directly from its
Colorado plant to points outside that State. The
parties stipulated, and 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 herein claims
to represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of certain employees within
the meaning of Sections 9(c)(1) and 2(6) and (7) of
the Act.
l At the close of the hearing, the Petitioner amended its petition to
exclude the over-the-road truckdriver on grounds that he lacks a community
of interest with the other unit employees. The Employer does not contend
233 NLRB No. 129
4. The Petitioner seeks to represent a unit of "all
employees including all production and maintenance
employees, truckdrivers,1 warehousemen and insula-
tion installers; excluding all office clerical employees,
professional employees, salesmen, guards, foremen
and other supervisors as defined in the Act."
Petitioner also seeks to include in the unit certain
"day laborers" who fall within the guidelines of its
proposed eligibility formula.
Contrary to the Petitioner, the Employer contends,
inter alia, that only a unit limited to the production
employees is appropriate for purposes of collective
bargaining and that other regular full-time employ-
ees should be excluded. The Employer further argues
that "day laborers" are casual employees and should
be excluded from any unit found appropriate but
that, in the event the Board determines that some
day laborers are eligible to vote, only those who meet
the requirements of the Employer's proposed eligibil-
ity formula should be included in the unit.
The Employer employs approximately 20 regular
full-time employees: 2 12 plant employees, 5 installers
and helpers, I deliveryman, I repairman, and I
warehouseman. The deliveryman is responsible for
bringing bundled waste paper obtained from various
suppliers in the metropolitan area to the plant where
he and/or the warehouseman unload it. Once
unloaded, five plant employees operate the two
feeder machines which convert the waste paper into
cellulose fiber insulation. Six other plant employees
operate the two sacking machines which package the
insulation in 30-pound bags.
Each morning, the driver installers and their
helpers, frequently assisted by plant employees, load
their trucks with the bagged insulation. The driver
installers then go to various commercial and residen-
tial establishments where they are scheduled to
"blow in" the insulation. Generally, installation
requires two persons; however, on large jobs, the
Employer occasionally sends a plant employee to
assist the regular installers.
The driver installers and their helpers return to the
plant during the course of the day if they have to
reload the trucks, and always return to the plant
when their scheduled calls are completed. If, during
the course of the insulation installation, the "blower"
or truck fails to operate properly, the repairman is
dispatched to the site to correct the problem.
Usually, however, the repairman works in the yard
area adjacent to the plant where he repairs the
installer trucks and the blower equipment. When
necessary, he may work in the plant.
that the over-the-road driver should be included in the unit and we shall,
therefore, exclude him.
2 In addition to the over-the-road driver.
902
CAPITOL INSULATION COMPANY
It appears from the record that all regular employ-
ees enjoy substantially the same conditions of
employment, i.e., they are paid at an hourly rate,
have the same starting time, punch the same
timeclocks, and are subject to the same rules of
conduct and disciplinary procedures. As noted
above, plant department personnel occasionally
assist the driver installers as helpers on jobs and the
warehouseman, deliveryman, and repairman all have
frequent day-to-day contact with production employ-
ees. It is undisputed that the Employer has no
established pension, vacation,3 or health plan for its
employees. The record further establishes that
General Manager Weiss exercises general superviso-
ry authority over all employees and has final
authority with respect to all personnel policies.
Accordingly, on the basis of the foregoing, we find,
contrary to the Employer's contention, that the
deliveryman, repairman, and insulation installers and
helpers share a community of interest with the
regular plant production employees and that, there-
fore, the unit requested by the Petitioner is appropri-
ate for collective-bargaining purposes.
As noted above, the Petitioner seeks to include in
the unit those day laborers who meet its proposed
eligibility formula. The Petitioner asserts that such
day laborers share a sufficient community of interest
with other unit employees to warrant their inclusion,
and that day laborers who have worked a minimum
of 25 days during the 5-month period January 1
through May 31, 1977, should be eligible to vote. In
support of this proposed formula, the Petitioner
contends, inter alia, that, although the Board usually
finds a calendar quarter the appropriate period for
determining eligibility in situations such as that
presented here,4 consideration of all day laborers
who worked during a longer period is justified in this
case because of the large number of personnel in this
category. The Employer, on the other hand, contends
that day laborers should be excluded as casuals from
any unit found appropriate or, alternatively, that
only those day laborers who worked a minimum of
150 hours in the 120 days preceding the Direction of
Election and who worked a minimum of 100 hours
within the 60 days preceding that same date should
be included in the unit.
3 Arvin Weiss, the Employer's general manager, testified without
contradiction that, although the Employer has no uniform vacation policy.
certain employees are granted paid vacations on a "merit" basis.
4 Citing Motor Transport Labor Relations, Inc., 139 NLRB 70 (1962). The
Petitioner further cites Motor Transport to support its contention that a
period other than one immediately preceding this Decision is appropriate
for determining eligibility. In Motor Transport, the Board adopted an
advanced eligibility date because the employer-members involved in that
proceeding were scattered around the country, payroll records were
The record discloses that the Employer fills
approximately five positions in the plant daily with
day laborers. Day laborers perform the same duties
as regular production employees, are paid the same
hourly wages as the lowest paid regular employee,
and are subject to the same personnel policies and
supervision. Examination of the payroll ledgers for
the day laborers reveals that certain of these persons
are hired on a relatively regular basis, enabling them
to establish substantial employment histories with
the Employer. Accordingly, in view of the regularity
of employment of some of the day laborers and the
above-mentioned facts, which we find establish that
the day laborers, when they work for the Employer,
share the same terms and conditions of employment
as regular production employees, we conclude that
those day laborers who meet the criteria described
below should be included in the unit.5
With respect to the selection of a formula for
determining the eligibility of day laborers to vote, "a
careful balancing of the factors of length, regularity,
and currency of their employment"6 is required. In
light of these factors, we find that those day laborers
who have worked a minimum of 15 days in the 3-
month period immediately preceding the date of this
Decision and Direction of Election, and have not
been terminated for cause or voluntarily quit, have a
sufficient community of interest with the regular
employees to warrant their inclusion in the unit
found appropriate herein. This formula is consistent
with previous decisions involving similar issues, 7 and
neither the Employer nor the Petitioner has offered
persuasive reasons for utilizing a different formula.
Accordingly, on the basis of all the foregoing, we
find that the following employees constitute a unit
appropriate for purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All employees including all production and
maintenance employees, truckdrivers, warehouse-
men and insulation installers, but excluding the
over-the-road driver and all office clerical em-
ployees, professional employees, salesmen,
guards, foremen, and other supervisors as defined
in the Act.
[Direction of Election and Excelsior footnote
omitted from publication.]
therefore difficult to obtain, and the parties agreed that an earlier cutoff date
than that of issuance of the Direction of Election was appropriate. Inasmuch
as the record fails to establish that such factors are present in this case, we
find no merit to the Petitioner's contention.
5 Daniel Ornamental Iron Co., Inc., 195 NLRB 334 (1972).
6 Scoa, Inc., 140 NLRB 1379, 1381 (1963).
' See, e.g., Scoa, Inc., supra, Delaware Valley Printing and Graphic
Communications Union, Local 1776 (The Bulletin Company), 226 NLRB 476
(1976); Mancrafp Exhibitors Services, Inc., 212 NLRB 923 (1974).
903