National Opinion Research Center

National Labor Relations Board - Board Decisions

Dec 30, 1970

187 N.L.R.B. 583 (N.L.R.B. 1970)

NATIONAL OPINION RESEARCH 583
National Opinion Research Center and Local 1108,
American Federation of State , County and Munici-
pal Employees (AFL-CIO), Petitioner. Case
31-RC-1340
December 30, 1970
DECISION AND DIRECTION OF
ELECTION
BY CHAIRMAN MILLER AND MEMBERS
FANNING, BROWN, AND JENKINS
Upon a petition duly filed with Region 31 of the
National Labor Relations Board under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held on February 25, 1970, before
Hearing Officer Max Dauber. Following the hearing,
pursuant to Section 102.67 of the National Labor
Relations Board Rules and Regulations, Series 8, as
amended, and by direction of the Acting Regional
Director for Region 31, this case was transferred to
the Board for decision. Thereafter, the Employer filed
a brief.
On July 1, 1970, the Board issued an Order
Reopening Record and Remanding Proceeding to
Regional Director for Further Hearing for the
purpose of adducing additional evidence concerning
the Employer's operations. On July 8, 1970, the
Acting Regional Director for Region 31 transmitted
to the Board a stipulation executed by the Petitioner,
dated July 7, 1970, accepting the Employer's list of
names of the employees employed during the period
from and including September 1969, to and including
March 1970, and the total employment of said
employees worked in that 6-month period. The
Petitioner's stipulation and the Employer's list are
hereby accepted and made part of the record. The
stipulation and Employer's list is hereby designated as
Board Exhibit 1.
Pursuant to the provisions of Section 3(b) of the
Act, as amended, the Board has delegated its powers
in connection with this case to a three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds no prejudicial
error. The rulings are hereby affirmed.
Upon the entire record in this case, including the
brief filed herein, the Board finds:
1. The Employer, a nonprofit Colorado corpora-
tion affiliated with the University of Chicago, is
engaged in commerce within the meaning of the Act.
The current standard for the assertion of jurisdic-
I National Labor Board's Rules and Regulations, Section 103 1,
published in the Federal Register of December 3, 1970, Vol 35 F R 18370
2 See Woods Hole Oceanographic Institution, 143 NLRB 568
3 The parties stipulated that the assistant supervisors are not supervisors
within the meaning of the Act
4 All interviewers are required to drive their own automobiles
tion over private, nonprofit colleges and universities
coming within the Board's legal or statutory jurisdic-
tion is a gross annual revenue from all sources
(excluding only contributions which are, because of
limitation by the grantor, not available for use for
operating expenses) of not less than I million dollars.'
The record discloses the Employer in the fiscal year
ending in August 1967 grossed $1,800,000 for its
services in conducting surveys for various universities,
foundations, and government agencies . That under a
current contract with the United States Office of
Economic Opportunity and the United States Depart-
ment of Labor the estimated cost is approximately
$2,500,000. These factors, which exceed the monetary
standard for assertion of jurisdiction by the Board
over private, nonprofit colleges, as described above,
establish the Board's legal or statutory j urisdiction.2
2. The labor organization involved claims to
represent 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 Section 9(c)(1), and
Section 2(6) and (7) of the Act.
4. The Petitioner seeks to represent a unit of
assistant supervisors,3 test administrator, and inter-
viewers employed at the Los Angeles office of the
Employer. The Employer contends that the interview-
ers are independent contractors or, in the alternative,
casual employees, and as such should not be included
in the unit.
The Employer, at its Los Angeles office, is currently
engaged, pursuant to a contract with the Federal
Office of Employment Opportunity and the United
States Department of Labor, in a survey of the
manpower programs of such Federal agencies.
The interviewers whose status is in question here
were recruited locally by the Employer, given a 1-
week orientation program, and hired after being
advised that they could expect an average of 20 hours
weekly at an hourly rate of $2.20 per hour plus a 10-
cent auto mileage rate.4 The Employer's supervisor
and assistants assign the caseload as it is received in
the Los Angeles office on the basis of the interviewer's
availability and capabilities.5 The interviewers pick
up their assignments at the office and leave them there
when completed. Interviewers in their interviews are
required to apply the techniques taught to them in the
orientation programs.6 The majority of such inter-
views consist of group interviews scheduled for the
interviewers by the supervisor at the manpower
program centers of OEO and the Department of
5 The evidence indicates that interviewers hired by the Employer and
who are called for an assignment are permitted to decline or accept such
assignment
6 While attending the orientation program these employees are paid the
$2 20 hourly rate
187 NLRB No. 93
584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Labor. The balance of the interviews are with
individual participants in such manpower programs.
Interviewers schedule their own visits with the
individual participants but are required by the
Employer to complete the interview within a given
period.
The Employer enters into no written agreement
with the interviewers defining the obligations of either
party. The interviewers are notified of their assign-
ments either by telephone or by office memoranda
placed in a central office file set aside for their use.
After having completed their orientation course, if
they are hired, they work in the field alone or with
other interviewers. They are subject to termination by
the Employer if their work is unsatisfactory.
The Employer does not withhold tax deductions for
the Internal Revenue Services and makes no payment
to Social Security Administration on behalf of the
interviewers. Nor do these employees receive vaca-
tions, holiday, or other fringe benefits. The Employer
does provide Workmen's Compensation.
The Board has frequently held that, in determining
the status of persons alleged to be independent
contractors, the Act requires application of the "right
to control" test. Where the person for whom services
are performed retains the right to control the manner
and means by which the result is to be accomplished,
the relationship is one of employment; while, on the
other hand, where control is reserved only as to the
result sought, the relationship is that of an independ-
ent contractor. The resolution of this question
depends on the facts of each case, and no one factor is
determinative.
On the basis of the foregoing, and the entire record,
we are satisfied that the interviewers are not inde-
pendent contractors. We are aware that the evidence
discloses some factors usually considered to indicate
an independent contractor status, but the presence of
these factors does not alone establish such status.
Thus, we do not regard as controlling that the
Employer does not make the usual payroll deductions
for the interviewers; that the interviewers are to some
extent free to reject a request by the Employer to
conduct an interview and that they have some
discretion as to the hours they will work. We find,
rather, that these factors are outweighed by others
which amply demonstrate the effective control the
Employer maintains over the day-to-day duties of the
interviewers, and which, on balance, are sufficient to
support a finding that they are employees both in law
and as a "matter of economic reality." We rely
particularly on the following: (1) All interviewer
applicants are interviewed and if accepted must take
an orientation course prior to their actual hiring; (2)
the Employer sets a definite time schedule in which an
interview must be completed; (3) the interviewers are
solicited for employment by the Employer through
the usual channels used by Employers to secure the
necessary help; (4) the Employer may terminate an
interviewer at will; (5) interviewers are required to
submit a record of hours worked and mileage at
regular intervals which are subject to review and
adjustment by the Employer; and (6) the Employer
maintains, through its supervisor and assistant super-
visors, complete supervisory control over the inter-
viewers.
The Employer's alternative contention that the
interviewers are casual employees, finds no support in
the payroll records of the Employer or in the record as
a whole. The Employer's payroll data covering the
period of September 1969, through March 1970,
discloses that approximately 24 interviewers worked a
total of 147 pay periods which varied from 6 to 21
payroll periods during each time. Further, from
January 1 through March 1970, when there appears to
have been a heavier concentration of employment,
approximately 56 interviewers worked during 4 or
more pay periods. On this basis of work history it
appears clear that a substantial number of these
employees worked as regular part-time employees,
rather than as casual employees.7 The Employer's
payroll data does disclose that the employment of
some of the interviewers was for one to three pay
periods which in the absence of any other evidence in
the record is in our view indicative of casual
employment. Accordingly, we shall in the eligibility
requirement hereinafter set forth eliminate such
casual employees from the appropriate unit.
In view of the above, we find that the following
employees constitute a unit appropriate for the
purposes of collective bargaining within the meaning
of Section 9(b) of the Act: All employees including
assistant supervisor, test administrators, and inter-
viewers employed at the Los Angeles offices of the
Employer excluding guards, professional employees
and supervisors as defined in the Act.
5. As demonstrated by the foregoing, the employ-
ment of the interviewers differs substantially from the
usual pattern of employment found elsewhere. For
this reason, particular care must be taken to ensure
that our determination of voter eligibility takes into
account the special pattern of employment evidenced
here. As indicated above, although the Employer
maintains an almost continuous survey operation, the
survey insofar as it concerns the instant case is
limited, as of the time of the hearing, to completion in
1971. However, all of the interviewers who have not
been terminated for cause or who voluntarily have
7 Allied Stores of Ohio, 175 NLRB No 162 , cf Vaca Valley Bus Lines,
171 NLRB No 170
NATIONAL OPINION RESEARCH 585
quit such employment are considered eligible for
reemployment. Moreover, a substantial number of the
interviewers have maintained a continuing interest in
employment with the Employer, as evidenced by the
Employer's payroll data, even though there were
breaks in their periods of employment.
Neither the Employer nor the Petitioner have
advanced any eligibility proposal. While we are aware
of the inherent difficulties in attempting to define or
determine what constitutes a continuing employment
interest of intermittent employees within an appropri-
ate unit, as is the case here, nevertheless, it is our
responsibility under the Act to devise an eligibility
formula which will protect and give full effect to the
voting rights of those employees who have a reasona-
ble expectancy of future employment with the
Employer. However, such a standard must not be so
broad in application that it will permit the question of
union representation to be decided by those individu-
als who reasonably have no likelihood of reemploy-
ment or continuing employment with the Employer.
B Hondo Drilling Co, 164 NLRB 416, enf 428 F 2d 943 (C A 5), in I I,
relevant text and case cited
9 In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their
addresses which may be used to communicate with them Excelsior
Underwear Inc, 156 NLRB 1236, NLRB v Wyman-Gordon Company,
394 U S 759 Accordingly , it is hereby directed that an election eligibility
In our opinion, the desired result can be best achieved
by fashioning an eligibility formula which excludes
from voting those interviewers who quit voluntarily or
who have been terminated for cause prior to the
completion of the survey for which they were
employed, and those who do not have a recent history
of substantial employment with the Employer. Ac-
cordingly, we find it will effectuate the purposes of the
Act to limit eligibility to all interviewers, excluding the
office employees, who have been employed not less
than four weekly pay periods during the 90-calendar-
day period from January 1 through March 1970;
also included shall be all interviewers who have
likewise been employed in not less than 4 weekly pay
periods during the 90-calendar-day period preceding
the issuance of our Decision and Direction of Election
herein, and who have not been terminated for cause
or quit voluntarily during the above-described eligi-
bility periods.s
[Direction of Election9 omitted from publication.]
list, containing the names and addresses of all the eligible voters , must be
filed by the Employer with the Regional Director for Region 31 within 7
days after the date of issuance of the Direction of Election by the Regional
Director The Regional Director shall make the list available to all parties
to the election No extension of time to file this list shall be granted by the
Regional Director except in extraordinary circumstances Failure to
comply with this requirement shall be grounds for setting aside the election
whenever proper objections are filed