Pat'S Blue Ribbons And Trophies

National Labor Relations Board - Board Decisions

Nov 19, 1987

286 N.L.R.B. 918 (N.L.R.B. 1987)

918 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Pat's Blue Ribbons and Trophies and United Food
and Commercial Workers International Union,
Local 44, AFL-CIO. Case 19-RC-11482
19 November 1987
DECISION AND DIRECTION
BY CHAIRMAN DOTSON AND MEMBERS
STEPHENS AND CRACRAFT
The National Labor Relations Board, by a three-
member panel, has considered determinative chal-
lenges in an election held 5 November 1986 and
the hearing officer's report recommending disposi-
tion of them. The election was conducted pursuant
to a Stipulated Election Agreement. The tally of
ballots shows six for and six against the Petitioner,
with five challenged ballots.
The Board has reviewed the record in light of
the exceptions and brief and adopts the hearing of-
ficer's findings and recommendations only to the
extent consistent with this decision.'
The Petitioner challenged the ballots of Lori La-
Cross, Judy Mathews,2 and Dawn Branco on the
grounds that they were casual employees, 3 and the
hearing officer recommended sustaining the chal-
lenges in his report of 31 December 1986. Al-
though the Employer has filed timely exceptions to
the recommendation of the hearing officer regard-
ing the three challenged ballots, we find merit only
concerning two of them. Accordingly, for the rea-
sons set forth below, we overrule the challenges to
the ballots of Lori LaCross and Judy Mathews and
sustain the challenge to the ballot of Don Branco.
The Employer, a small family-owned business,
manufactures prize ribbons for various cat shows
held nationwide. The Employer's busy season is
June through October. Although most employees
work at the Employer's place of business , several
employees work in their own homes at their own
pace. The Petitioner does not contend that home-
based employees, as a category, should be excluded
from the unit, but only that some of them are
casual employees to be excluded. Lori LaCross,
one such home-based employee, was hired in late
August 1986,4 well before the eligibility cutoff date
i At the outset of the hearing , the Employer withdrew its challenges
to the ballots of Kitty Amos and Dawn Holz We therefore overrule the
challenges to those ballots and direct, as recommended by the hearing of-
ficer, that the ballots of Kitty Amos and Dawn Holz be opened and
counted
2 In the cases of both Judy Mathews and Linda Mathews, we use the
spellings of their names that appear in the record rather than the spellings
used by the hearing officer.
3 The stipulation sets forth the appropriate unit as
All retail employees, commissioned employees, and production em-
ployees employed by Pat's Blue Ribbons and Trophies at Belling-
ham, Washington , excluding all office clerical employees , guards and
supervisors as defined by the Act
4 All dates are 1986 unless otherwise indicated
of 30 September.5 Although there is some question
whether LaCross began working in August, the
Employer's payroll records show that she was paid
for 73 hours in September, prior to the eligibility
cutoff date. LaCross testified that part-owner
Linda Mathews contacted her when there was
available work, dropped off the necessary materi-
als, and retrieved the finished products. In addition
to supervising LaCross' work, Mathews supervises,
hires, fires, schedules, and otherwise manages the
shop employees. LaCross, as a home-based employ-
ee, was assigned work for specific shows to com-
plete within a designated timeframe. Although La-
Cross was paid on a piece-rate basis while perform-
ing work identical to that performed by shop em-
ployees, application of a formula devised by the
Employer resulted in her receipt of the same nomi-
nal "hourly" rate of pay received by shop employ-
ees. Regarding other terms and conditions of em-
ployment, the record reveals that workmen's com-
pensation and unemployment compensation pay-
ments were made on behalf of LaCross, as they
were for shop employees, and that LaCross was
treated in a manner identical to remaining unit em-
ployees regarding vacation pay, Federal income
tax, and social security deductions.
In concluding that LaCross was a casual employ-
ee with intermittent and irregular employment, the
hearing officer emphasized the perceived ability of
home-based employees to accept or reject employ-
ment or to vary the number of hours worked ac-
cording to personal choice. The Board has held,
however, that the ability to reject work is not de-
terminative of an individual 's employment status so
as to exclude the individual from the unit as a
casual employee. Mid-Jefferson County Hospital, 259
NLRB 831 (1981); Leaders-Nameoki, Inc., 237
NLRB 1269 (1978). Rather, the test for whether an
employee is a regular or a casual part-time employ-
ee takes into consideration such factors as regulari-
ty and continuity of employment, length of em-
ployment, and similarity of work duties. Muncie
Newspaper, 246 NLRB 1088 (1979). In short, the in-
dividual's relationship to the job must be examined
to determine whether the employee performs unit
work with sufficient regularity to demonstrate a
community of interest with remaining employees in
the bargaining unit. Mid-Jefferson County Hospital,
supra. Because LaCross worked a substantial
number of hours (i.e., 73) between her date of hire
in late August and the end of the eligibility period
on 30 September, and because during that period
5 Although LaCross worked for the Employer about 10 years previ-
ously while a high school student , we find , based on the substantial lapse
of time between the former and current employment , that for the pur-
poses of this case LaCross is a new employee
286 NLRB No. 94
PAT'S BLUE RIBBONS 919
she performed the same work under the same su-
pervision and received a rate of pay equivalent to
the rate received by full-time employees, we find,
contrary to the hearing officer, that LaCross en-
joyed a community of interest with the full-time
employees regarding wages, hours, and other terms
and conditions of employment.6 We conclude,
therefore, that LaCross was, at the time of the
election,7 a regular part-time employee eligible to
vote, and we shall overrule the challenge to her
ballot. Accordingly, we direct the Regional Direc-
tor to open and count the ballot of Lori LaCross.
Similarly, we find that Judy Mathews was a reg-
ular part-time employee, eligible to vote in the
election. The record establishes that Mathews
worked continuously as a shop employee from
February 1985 until 22 January. In January she
went on maternity leave and did no work for the
Employer for 9 months until September when she
began working at home . An accurate determination
of the regularity of her employment for the quarter
in which she resumed active employment, there-
fore, can be based only on those hours worked in
September.
During the month preceding the 30 September
eligibility cutoff date, Mathews worked 43 hours.8
Additionally, Mathews' hours in the months pre-
ceding her leave were substantial .9 Mathews, like
LaCross, was paid pursuant to a formula that re-
sulted in her receipt of the same nominal hourly
rate received by shop employees and, likewise, for
purposes of workmen's compensation and unem-
ployment compensation, vacation pay, and Federal
income tax and social security deductions, was
treated the same as the Employer's other employ-
ees.
6 In making a determination concerning an individual 's status as a
casual or a regular part-time employee, the Board considers not only the
length , but also the regularity of employment This is particularly true
when , as here, an individual is a recently hired employee Modern Food
Market, 246 NLRB 884 , 885 (1979) Regularity does not necessarily mean
a fixed schedule, rather this requirement can be satisfied by evidence, as
in this case , that an employee has worked a substantial number of hours
within the period of employment poor to the eligibility date and there is
no showing that such work has been only on a sporadic basis. See
Newton - Wellesley Hospital, 219 NLRB 699 , 703 (1975)
7 In the 5 -week period between the eligibility cutoff date and the elec-
tion, LaCross was paid for 92 hours of work . Although LaCross had
been told apparently in October that business was slowing down and she
performed no work in November poor to the 5 November election, the
Petitioner does not claim that LaCross no longer was an employee as of
the date of the election The Petitioner also makes no claim employment
would be of limited duration
8 Though not determinative , Mathews worked 16 5 hours in October,
after the eligibility cutoff date
She worked 140 hours in December 1985 and 108 hours in January
Mathews' preleave and reemployment hours and
her compensation establish such tenure, regularity,
and continuity of employment and similarity of
wages and working conditions to render her a reg-
ular part-time employee.10 Therefore, we overrule
the challenge to Mathews' ballot and we shall
order that her ballot be opened and counted.
In contrast we find that Dawn Branco worked
an insufficient number of hours during the quarter
preceding the eligibility cutoff date to be consid-
ered as other than a casual employee, and that she
was not eligible to vote in the election. The Em-
ployer's time and payroll records indicate that
Branco was employed from October 1984 through
April 1985, and that she did not work for the Em-
ployer again until September. At some point during
this apparent 16-month hiatus, Branco was consid-
ered to be on maternity leave." On resuming em-
ployment in September, she worked 14 hours prior
to the eligibility cutoff date. Further, in the 2
months prior to her cessation of active employ-
ment, Branco worked 4.5 hours in March and
April 1985, respectively. Consequently , Branco's
preleave and reemployment hours indicate that her
status is that of a casual part-time employee.12 Ac-
cordingly, we conclude that Branco was ineligible
to vote in the election, and we sustain the chal-
lenge to her ballot.
DIRECTION
It is directed that the Regional Director for
Region 19 shall, pursuant to the National Labor
Relations Board Rules and Regulations, within 10
days from the date of this decision, open and count
the ballots of Kitty Amos, Dawn Holz, Lori La-
Cross, and Judy Mathews. The Regional Director
shall further prepare and cause to be served on the
parties a revised tally of ballots and thereafter issue
the appropriate certification.
10 May Department Stores, 175 NLRB 514 (1969), and Davison-Paxon
Co, 185 NLRB 21 (1970)
11 Despite apparent inconsistencies in the record and briefs, no party
contends that the record is in error As stated above, time and payroll
records establish that Branco did not work from April 1985 to September
1986 Although the Employer states on brief that Branco was "placed on
a maternity leave in April of 1985," Branco testified that her child was
born on 12 April 1986.
12 The hours Branco worked on resuming employment and her hours
poor to taking leave-none of which are disputed-conclusively establish
the casual nature of her employment This is so notwithstanding the in-
consistencies noted in fn 11 above, and regardless of whether Branco's
leave was for 16 months or 5, and whether it was maternity leave, an-
other type of leave, or a combination of the two