Modern Food Market

National Labor Relations Board - Board Decisions

Dec 10, 1979

246 N.L.R.B. 884 (N.L.R.B. 1979)

I)( ISI()NS ()01 \ ()X \ I\ 1 ) Rl \ I 1 ()\S lB()\RI)
I'awa Brothers, Inc. tl/h/a Modern Food Marketl El-
ployer-Petiliolner and Retail Clerks UInion, Iocal
905, Chartered h[r United Food and (Commllercial
Workers International U nio[]. AFL-CIO.' Case 21
RM 1969
I)eceimher 10. 1979
DI)t('ISI()N ANI) I)RLCI I()ON
13B ) M ill 1 RS NI I] . t RIIl1, N) 1t I Sl) \1 I
PursLtIant to aLuthority granted it hbs the Nation'al
l.abor Relations Board under Section 3(h) of' tile Na-
tional Lahor Relations Act, as amended, a three-
member panel has considered the determinatlcive chal-
lenge to a hallot in an election held on .l lue 28. 1979').
and the Regional l)irector's report reconmlendling
disposition of' the samiie. T''he Board has re iewed the
record in light of the exceptions and Stlu)[portlng brief:
and hereb adopts the Regional Director's indings
and recommendations onl to) the extent conlsistent
)Ihe rew ith.
The :nioon challenged the hallot of one crnplo\ec
voting in the election. and the Regional I)irector rec-
ommended sustaining this challenge in his report of'
August 3. 1979. Petitioner has filed timlely exception
to the Regional Director's Report.
Petitioner operates a grocery store in which, on the
date of the election. Matt Suminaga was employed as
a grocery clerk on a part-time, as-needed basis to
stock shelves. At the election. Suminaga's ballot was
challenged by the Union on the ground that Sumi-
naga had not been employed in the bargaining unit
on the eligibilitx date. Although the Regional Direc-
tor found that Suminaga had been employed on the
eligibility date' and that stocking shelves was bar-
gaining-unit work.4 he recommended sustaining the
challenge to Suminaga's ballot on the ground that
Suminaga had worked an insufficient number of'
hours per week in the quarter immediately preceding
the eligibility date to share a sufficient communit of
interest with other bargaining-unit employees..
In making his recommendation, the Regional l)i-
rector indicated that he relied on Davion,,-Paoxon
On June 7. 1979, the Retail ('Icrks lnlernat i ,nal Il nin,. \ ll ( 10,
merged with the \malgarnated Meatcutters alnd Butcher Workmen o1 North
Amerilca. thereh liorminrg he iited FJid and ( mmerctl.l IWorkers Inltr
nalitu al It ion. I I ('1().
2 he eliottl w a ctllcted purl ll.tl ri i a Stijllili. tio ( ttilill-1i
I :r11n ('ilsCint I:ctcltii .11 d the tal1 i lltiated liIe ,IeC lhr. alld toull %i s
agail, the. i nion, ulth ine h.al.ot challetigedt
I lic [C glhlit dlate wasl Jurlc t. 179 SlilIrillia va' hired on April 9,.
I 979
I ii h pe i t ltcd as .approprltac a.s: All greter clerk' and boxh,,
ciprluled h, Ihe I:lpIrstlr at iI.ls I 111t ici II ait (01 \ eC Xlltillll
Streel. Wilningihi. (ialiltrnli: excluding all i alI lalrlleint elplties.
iiI .cclerical trpl.ees, gmtd, Land .pr ,ls r a diclited Il tIhe A I
' Il ls rprl. the Regional Dircttr alo 1ileTi1tted tetllil tptiCtitS Itt
( 'i,/mpqu. I' iII Mu ich part-tlme. i,-call ellot\ees "iho
a\ eagced itt l eatl 4 hoirs o (f : Irllin llI n Lillt wXork per
' eek d urin11 the quarter peceditiLg the eli gibili t date
\ , Irel iic luided i tle bara ilii tilnlit. I is, altrhough
StIminaga hid not been hired l ltil the filth week ol'
the quaretr preced ilng the cligibilit\ date. the Re-
gional )irecto comilpute the tolal hotiurs S1inallag
worked prior to tlie cligibilil tdate and averaed them
over ll the weeks in the quarter, rather than over
only the ,,veeks subsequient to Suminaga's hire. In so
loiing. he IncIlutided 4 \\cks ill x\\tichl Suni11 naga's
"''hors orked were neessarilx /erol. and tltind that
Sunliinaga had av raged less than 4 hoLurIs r w ork per
v. cCk tAer thile qlarlter. Petitioner excepts to the Re-
gional )irector's inclusion of these 4 Xweeks in his
computation. or the tollo ig reas(ons, C ie llnd mer it
in thils exception.
Ih e Regional I)irector's report included data indi-
catinig that. out of the 9 \weeks during Xwhich Sumi-
Iig;la \as Sactluallx emplro),ed in the quarter preceding
the eligibilit 5 date, in onl I week dlid he fail to wuork
at least 4 hours, and i 5 out of the 9 t eeks he orkeu
more than 4 hours. In its exceptions to the Regional
[)irector's recomlilellndations. etitiotner points to the
regularit of Suiinaa's empplomnient and argues that
it does not further the policies o the Act to appl\
l)vi.nz-Pau\on (otput? i, Nirpt, sO as to isen'ran-
chise Suminagga. Petitioner further argues that, in ap-
pling the 4-hour rule, the Board should look only to
the average hours orked during the weeks subse-
quent t an emplo ee's actual date of' hire and that, if'
this is done in the present case, Suminaga will be
found to has e averaged 4.4 hours of' work per week.
As noted, we ind merit in Petitioner's exception.
The paramlount consideration in determining whether
a part-time employee doing unit work should be in-
cluded in the bargaining unit is whether he or she
shares a coremunit\ of' interest with regular unit em-
ployees.7 In making this determination, the Board
considers not only the length, but also the regularity
of' employment.' Since the Facts o' this case clearly
reveal that, as of the eligibility date, Suminaga had a
reasonable expectation of continued and regular em-
ployment.' and in the absence of evidence that his
work pattern during the 9 weeks preceding the eligi-
bilit, date was atypical, we here deem the length of
Surni ll ga't ciplitvnlient hich difttred trin those of olher hargaiing unit
etilplo\ ees lie did I1tI hlwet',er. bhie hls linding i,1 an In/%Uticint cilmu
1111\ oi1 llelei hetwecn Slrn.1g. id tl hel hbarglrning aLitt elllipio)ecs o{i
Iliese il crnccs hill llihcr 1l thie r1uttitcielt niilher li hurs thlat Suitl-
II.iga. iuorketd \itl.UgI Ce ht.iC tonsitdereal thee tictters, ue do rtt fidlt
I1, u;.lrri llt c illltitl/it It1;i{ SULIu lllg.u does nt l slhare ci(lnltlruIt i t inter
ctt vtItih Ciilplo ceC iii litc ulllt
See tt/1lt)lr . '... t i ( ltiltit. el ),nl, tl, l ., R 1/ 1lttt iA (, hi . 185
NI R 21 i] 97t{
l)mrrl, ,it/5 - ( --mipi 185 N R 21. 24 (1970)
(.'/ Iniu: L it; /,,tt ('I i, h , 21t N R '112 11977)
('1 ",-cS (.md1 .Sht pr /, I . 231 NI RH IS(. 157 1977)
246 N.RB No. 144
X884
\1()[) R\ ()()t) MA\RKI I
Suminaga's employment to hb less important than its
regularity. ' ° Thus, the fact that he a,eraged less than
4 hours of work per week when his hours \ere coin-
puted over a period of time which included the 3
weeks prior to his hire is not controlliing. Of more
relevance in this case is the average of weekl, hours
worked 4.4 since his emplo Nment began.' Ac-
cordingly, we find that Matt Sumlinaga was a member
of the hargaining unit n the eligihilit dlate and
'lhis case does not present the issute otl'a enmpllos r w ho h a pat Icrn ol
hiring large numbers ot p;lrt-line enmpli,ees. nI some .-1 nhlrn isurk Ith
regularity. See he tai Depiartmenti Sni ( pa mt l 'a h, () I
(mipan. 181 NLRB 710(19701,
" See Slti.haim alve & [itt,e . . 222 N RB 217 11976)
thereafter. AccordinIgl. we shall direct Ithat his hallot
be opened and counted aind that a revised It1ll of
hallots helrealter he issued wit h the appropriate certi-
fica tioll.
)IRE!( -l ()N
It is hereby directed that thile Regional l)irector fi)r
Region 21 shall, pursuant to the Board's Rules and
Regulations, Series 8, as amended, within 10 daxs
from the date of' this [)ecision and D)irection open
anld count tile ballot of' Matt Suminaga. prepare and
serxe on the parties a revised tall of hallots, and is-
sue tile appropriate certification.