F.P. Packaging, Inc.

National Labor Relations Board - Board Decisions

May 19, 1978

238 N.L.R.B. 239 (N.L.R.B. 1978)

F. P. PACKAGING, INC.
F. P. Packaging, Inc. and Printing Specialties and Pa-
per Products Union Local No. 362, D. C. 1!, Peti-
tioner. Case 20- RC--14505
May 19. 1978
DECISION AND DIRECTION
BE CGIAIRMAN FANNING AND MEMBE RS JIINKINS
AND PFNrLEl.O
Pursuant to a Stipulation for Certification Upon
Consent Election, an election by secret ballot was
conducted under the direction and supervision of the
Regional Director for Region 20 on December 15.
1977, among the employees in the appropriate unit.
At the conclusion of the election, the parties were
furnished with a tally of ballots which showed that of
approximately five eligible voters. two cast ballots
for, and two cast ballots against, the Petitioner. and
one ballot was challenged. The challenged ballot wvas
sufficient in number to affect the results of the elec-
tion. No objections to the conduct of the election or
to conduct affecting the results of the election were
filed.
In accordance with the National Labor Relations
Board's Rules and Regulations, Series 8, as amended.
the Regional Director for Region 20 conducted an
investigation and, on January 10, 1978, issued and
duly served on the parties her "Report on Challenges
and Notice of Hearing." The Regional Director
found that the challenge raised material and substan-
tial issues which could best be resolved on the basis
of record testimony at a hearing and directed that a
hearing be held to resolve those issues. Thereafter, a
hearing was conducted on JanuarN 20, 1978. before
Hearing Officer Paul F. McCarthy. All parties were
afforded the opportunity to be heard, to examine and
cross-examine witnesses, and to introduce all relevant
evidence bearing upon the issues in the case.
On February 9, 1978, the Hearing Officer issued
his report and recommendation on challenged ballot
in which he recommended that the challenge to the
ballot of John Sanna be sustained. Thereafter. the
Petitioner filed timely exceptions to the Hlearing
Officer's report and a brief in support thereof, and
the Employer filed a reply brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon the entire record in this case the Board
finds:
1. The Employer is engaged in commerce within
the meaning of the Act, and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The labor organization involved claims to rep-
resent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of certain employees of the
Employer within the meaning of Sections 9(c)(1) and
2(6) and (7) of the Act.
4. The parties stipulated, and we find, that the fol-
lowing employees of the Employer constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All full-time and regular part-time production
employees, maintenance employees, warehouse
employees. and drivers employed by the Em-
ployer at its 229 Ryan Way, South San Francis-
co, California, facility: excluding all other em-
plo!ees. office clerical employees, temporary
employees, and guards, professional employees,
and supervisors as defined in the Act.
5. The Board has considered the Hearing Officer's
report, the exceptions and briefs, and the entire rec-
ord in this proceeding, and, for the reasons set forth
below, we find merit in the Petitioner's exceptions.
The ballot of John Sanna was challenged by the
Board agent conducting the aforementioned election
because his name did not appear on the list of eligi-
ble voters. The Hearing Officer sustained the chal-
lenge. finding both that Sanna was a temporary em-
ployee and that, because he did not receive the same
wages and benefits as the full-time employees, Sanna
"did not have a substantial and continuing interest in
the wages. hours, and working conditions of the
other unit employees." We do not agree with these
findings.
The record reveals that Executive Vice President
Adrian Maarleveld exercises overall supervisory au-
thority at the Employer's South San Francisco, Cali-
fornia, facilits, where cork imported from Europe is
cleaned, treated, packaged, and then sold to various
California wineries. Four full-time employees, two of
whom have been employed in excess of 5 years (Roy
Decot and Brian Eagleson) and two of whom have
been employed only since the summer of 1977 (Rob-
ert Bowers and Louis Gomez),' operate the machin-
ery utilized by the Employer and perform all other
functions incident to the production process. When
overseas cork shipments arrive, the Emplo)er's prac-
tice has been to obtain laborers to unload the con-
tainerized cargo from Manpower, an entity which
supplies temporary help on an hourly basis. From
July 5 through September 9, 1977.2 John Sanna, who
l n increase in business prompted Ihe Finplover to hire Ihe.e lIater t 'o
emplozecs Prol~! to the suniiller of i977' onls two emplloees 'ere em
ploedi
236 NLRB No. 39
239
DECISIONS OF NATIONAI. LABOR RELATIONS BOARD
was employed by Manpower and not the Employer.
worked 37-1 2 hours per week at Employer's facilitr.
Sanna's primary duty during this period was to un-
load and warehouse a cork shipment. but he also as-
sisted employee Decot on a coating machine in late
July and August. Due to certain supply problems ex-
perienced by the Employer during the summer, high
school students were hired to sort, and thereby up-
grade, the Employer's on-hand cork so that it would
be able to fulfill its contract with Almaden, a Califor-
nia wine producer, to supply 50 bales of cork. Prior
to sorting that amount of cork, the students' summer
vacations ended, and they returned to school.
At the beginning of September. Sanna told Maar-
leveld that, because his college classes were to re-
sume on or about September 9. he would have to quit
Manpower's employ,3 and he asked Maarleveld if the
Employer would employ him while in school. On or
about September 9, Maarleveld told Sanna that the
Employer needed him to continue and complete the
sorting job begun by the high school students and
that Sanna could work as his class schedule permit-
ted. According to Maarleveld, Sanna would be em-
ployed so long as the sorting job lasted. Neither the
duration of Sanna's employment nor his perfor-
mance of other duties were discussed. Sanna became
an employee of the Employer on September 13. and.
from that date, he worked 24 hours per week until
mid-October when he dropped a class and increased
his hours to 31 per week. Throughout his emploN-
ment. which ended on or about January 15, 1978, 1
month after the election, 4 Sanna worked pursuant to
a fixed schedule devised by him and posted in the
Employer's shipping office.
With the help of the Employer's four full-time em-
ploy ees. Sanna, who performed no other duties dur-
ing this period, completed the sorting for the Alma-
den shipment in 3 weeks.' The 50-bale lot was then
shipped to Almaden, but it was rejected. The Em-
ployer stored the rejected shipment in its warehouse
until early December when the available supply of
cork Uwas so low that Almaden accepted the previous-
ly rejectled shipment without an,, further sorting h\:
the FEmplover. 6 After the Almaden sorting job w as
completed, and while the Employer had a full com-
plement of employees. Sanna operated the Employ-
er s machinery and performed other production-re-
I nless ilhert ise ii dicated, all dales refer to thosc In 1 97
'l Malpilwer requiled its emploees to he avlillable for full-l nlt citll,-
plIhe recordj dlcl nrt resetl the ret.lsln [Ir the es.ti.rn rf Srlil r
plO\ itenli
I he full tinme ncmplosees sorted crrk Ifor 2 J1 the 3 uceks bec.llue i ;,f
slo'idotiwn ill plodultiion work
According. Be rlejetl the Hlearing Officer's apparent fillinig that, it
Decenmberhc Salnna agr;lin sortled cork lor this shipment
lated tasks, and it was not until early December that
Sanna again sorted cork. He continued, however, to
operate the Employer's machinery whenever he was
needed. Additionallv. from early October through
l)ecember, Sanna filled in for Gomez on approxi-
mately 10 occasions when the latter was ill. At no
time from September 13 through December 15 did
the Employer say anything to Sanna regarding the
termination of his employment.
All five employees, including Sanna, were hourly
paid. While Sanna's rate was the lowest, it was sub-
stantially higher than the rate which had been paid to
the high school students and was comparable to, al-
though somewhat less than, the rate paid to Bowers
who, like Sanna, had come to the Emplover without
prior industry experience. As would be expected in
the case of a part-time employee, Sanna reported the
hours he worked, which generally conformed to his
posted schedule. and was paid accordingly. The full-
time employees, on the other hand, were paid for a
40-hour week without having to report their hours.
except for any overtime hours.' Sanna's paycheck
was prepared at the South San I rancisco facility. and
those for the full-time employees were prepared at
the Employer's parent organization in Illinois. Sev-
eral fringe benefits were available to the Employer's
full-time employees. including group insurance and
several paid holidays. Paid vacations were available
after I year of emploNyment. and coverage by the Em-
plover's medical plan began after a 3-month waiting
period. With respect to the Employer's pension plan.
the record does not reveal what type of plan. e.g..
participating or nonparticipating. was offered, but it
does reveal that only employees with 2 or more years
of service were eligible and that neither Decot nor
Eagleson. the only eligible employees, had "applied
for admission." None of these benefits was available
to Sanna.
As noted above, the Htearing Officer found that
Sanna's employment was temporarst. 1'he asserted
reason for this finding was that Sanna's emplox ment
was "contingent on the one sorting jobh." referrinig to
the sorting job for Almaden. It is clear from the rec-
ord,. however, that such was not the case. I hus, at no
time was Sanna told that his employment would end
at a certain time. Moreover, e en assuming that
Maarleveld's September 9 statement to Sanna that
his employment would correspond to the sorting job
could he construed as a date certain, it is clear that
that job ended in earls October and that, rather than
have his employment t terminated. Sanna worked for
the Employer through D[eceimber. during which time
he performed the same tasks as the full-time emplo!-
I lhc i tnph ler ' lihbel ik icae pidl c I....k Tce .[ 11n, isthclcs hib
ile fill lnll.c elllpioNec,
240
F. P. PACKAGING, INC.
ees. Accordingly, we reject the Hearing Officer's
finding that Sanna's employment was of a temporary
nature.
The Hearing Officer also found that because San-
na did not receive the same wages and benefits as the
full-time employees, he did not enjoy a community
of interest with those employees. As hereinbefore dis-
cussed, Sanna worked well in excess of 20 regularly
scheduled hours per week from September 13
through December and, during all but I week at the
beginning of that period, performed the same tasks
under the same conditions and supervision as the
full-time employees. His wage rate was comparable
to that of Bowers, the only other inexperienced em-
ployee. While it is true that the benefits offered to the
full-time employees were not offered to Sanna, it is
likewise true that, because of the various waiting pe-
riods involved, only two of the four full-time employ-
ees were eligible for vacation and pension benefits,
and no employee had "applied" for the pension plan.
Moreover, it appears to us that it is the rare case that
part-time employees enjoy the same overall benefits
as full-time employees.
In light of the fact that Sanna worked a substantial
number of regularly scheduled hours from Septem-
ber 13 through December, during which period he
performed the same work under the same conditions
and supervision and received a rate of pay similar to
the rate for full-time employees, we find, contrary to
the Hearing Officer, that Sanna did have a commu-
nity of interest with the full-time employees regard-
ing wages, hours, and other terms and conditions of
employment. See Gruber's Super Market, Inc., 201
NLRB 612. 613, footnote 5 (1973). 8 We conclude,
therefore. that Sanna was, at the time of the Decem-
ber 15 election, a regular part-time employee eligible
to vote in the election, and we shall overrule the chal-
lenge to his ballot. Accordingly, we shall direct the
Regional Director to open and count the ballot of
John Sanna.
DIRECTION
It is hereby directed that the Regional Director
for Region 20 shall, pursuant to the Board's Rules
and Regulations. within 10 days from the date of this
direction, open and count the ballot cast by John
Sanna and thereafter cause to be served on the par-
ties a revised tally of ballots including therein the
count of the above-mentioned ballot. Thereafter, the
Regional Director shall issue the appropriate certifi-
cation in accordance with the Boards Rules and Reg-
ulat ions.
In supporI iof his conncluion that Sanna did not share Ihe requmite c~n-
nlitnlx of tllerest. the licarint Officer cited the Board' decisions In IA,
( i; Htm ti r tihe 4t,'d, Int i h I: Shaad OAk,r 229 Nl RB 4 ( 1977). and
('rest WHine and .Sprits. Lid., 168 NlRB 754 (1967) Since (r: It ri, in-
.olkcd the quei¢,,rn of uhether a1 .tudent's poradic emplo*smcnt during Ihe
hool scar u, stifflclent to stablish regular part-tinme status, that ,ae is
inapproite to thir one A tth rcpert to Shlad Oaki, w.e are f' the opinion
Ihat the case is distineruih.hle and not crontroiling hecause the student,
Insl,.cd thcrrein cre paid less than the minimum wage and aere restirted
in the nic[llrihcl of hoLlrs thes r culd iork pursunt to an airccrnt heeleecn
their emriplirr and the t S I)epa;lrtent of I abor
241