St. Thomas-St. John Cable TV

National Labor Relations Board - Board Decisions

Nov 30, 1992

309 N.L.R.B. 712 (N.L.R.B. 1992)

712
309 NLRB No. 106
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The National Labor Relations Board, by a three-member panel,
has considered the determinative challenges in an election held on
April 23, 1992, and the hearing officer’s report recommending dis-
position of them. The election was conducted pursuant to a Stipu-
lated Election Agreement. The tally of ballots shows 4 for and 4
against the Petitioner, with 2 challenged ballots.
2 In finding that the dispatcher position should be included in the
customer service employees unit, we find no need to rely on the fac-
tor of bargaining history in the service and installers unit represented
by the Petitioner. We also note the following factual misstatements,
which do not affect the validity of the hearing officer’s findings and
recommendation as to King:
(1) The hearing officer incorrectly stated that King worked in an
office on the second floor of the Employer’s building throughout the
approximately 18 months of her employment as a dispatcher. In fact,
her office was in another building during her first 7 months on the
job.
(2) The hearing officer stated that the service and installer employ-
ees’ contractual benefits were ‘‘totally different’’ from those of the
customer service employees and the dispatcher. The only differences
specifically proven related to vacation benefits.
3 The hearing officer erroneously stated that the clerks from Work-
ing World were hired and the project completion estimate was made
in August 1991.
Caribbean Communications Corp. d/b/a St. Thom-
as-St. John Cable TV and United Steelworkers
of America, Local 8249, AFL–CIO, CLC. Case
24–RC–7465
November 30, 1992
DECISION, DIRECTION, AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
Questions presented in this representation election
proceeding concern the hearing officer’s recommenda-
tion to overrule the Employer’s challenges to ballots
cast by Patricia King and Sandra Lawrence.1 The hear-
ing officer found that King, the Employer’s dispatcher,
shared a sufficient community of interest with the unit
employees to warrant inclusion in the unit. He found
that Lawrence was a unit employee with a reasonable
expectation of continued future employment, rather
than a temporary employee.
The Board has reviewed the record in light of the
exceptions and brief and has adopted the hearing offi-
cer’s findings and recommendation with respect to
King’s ballot.2 For the reasons which follow, we re-
verse the hearing officer and find that Sandra Law-
rence was a temporary employee who lacked a suffi-
cient community of interest with unit employees to be
an eligible voter. Accordingly, we shall sustain the
challenge to Lawrence’s ballot.
The Employer provides cable television service in
the United States Virgin Islands. The Petitioner seeks
to represent customer service representatives and
clerks. For several years, the Employer has employed
a student as a temporary filing clerk working with unit
employees in the customer service department. Each
student’s job tenure was limited to 1 year, after which
the student usually departed for college study.
The Employer hired Sandra Lawrence on November
13, 1990, as a temporary file clerk in the work-study
program. Lawrence expected to leave the Employer to
attend college in September 1991. On August 16,
1991, however, she informed the Employer’s vice
president, Andrea Martin, that she would not be going
to college. Lawrence asked Martin if she could become
a permanent employee. Martin told Lawrence that no
permanent file clerk position was available but that the
Employer ‘‘would keep her on at the same hourly rate
until the filing backlog was completed.’’ Lawrence
agreed. A January 29, 1992 performance appraisal,
signed by Lawrence, specifically identified her con-
tinuing clerkship as a temporary position and advised
her to ‘‘concentrate on improving her knowledge and
performance if she wants to be considered for perma-
nent employment.’’ There is no evidence that Law-
rence was ever promised or considered for a permanent
job.
The filing backlog which was Lawrence’s primary
job responsibility after August 1991 resulted from dev-
astation of the Employer’s operations by Hurricane
Hugo in September 1989. In restoring its operations,
the Employer had to recreate and revise its customer
files. This substantial undertaking resulted in an enor-
mous filing backlog. In October or November 1991,
Customer Service Manager Debra Thomas decided that
Lawrence needed assistance in completing the filing
project. She obtained two more clerks from Working
World, a temporary personnel service.
Thomas gave Working World an estimate of 3 to 4
months for completion of the temporary filing project.3
In fact, the clerks took about 6-1/2 months to complete
the project. On April 28, 1992, the Employer notified
Working World that the filing project was nearing
completion and that the two temporary clerks would
not be needed after May 15. On April 30, Vice Presi-
dent Martin notified Lawrence that her temporary job
would also end on May 15 due to the project’s com-
pletion.
There is no question that Lawrence performed work
in a classification in the stipulated unit. The Employer
contends, however, that the temporary nature of Law-
rence’s job made her ineligible to vote in the election.
The hearing officer found that Lawrence had no certain
termination date for her job until after the election,
when she received the Employer’s April 30 notice. The
hearing officer further found that the reference to
‘‘permanent employment’’ in Lawrence’s January 28,
1992 work appraisal suggested that she had some ex-
pectancy of future employment. The hearing officer
concluded that the lack of a ‘‘date certain’’ for termi-
nation, the expectation of future employment, and
713ST. THOMAS-ST. JOHN CABLE TV
4 NLRB v. New England Lithographic Co., 589 F.2d 29, 33–34 (1st
Cir. 1978); Lloyd A. Fry Roofing Co., 121 NLRB 1433, 1436–1438
(1958); Personal Products Corp., 114 NLRB 959, 960 (1955).
5 Pen Mar Packaging, supra at 874.
6 U.S. Aluminum Corp., 305 NLRB 719 (1991), is not to the con-
trary. In that case, the Board found an employee eligible to vote
where it was shown that the employee, who had been converted
from temporary to permanent status but was laid off for lack of
work, was in layoff status as of the eligibility date and had a reason-
able expectancy of recall. Here, Lawrence was at all times a tem-
porary employee without promise of conversion to permanent status
and without a reasonable expectation of continued employment.
Lawrence’s active employment in a unit position on
both the eligibility and election dates made her eligible
to participate in the election. Accordingly, he rec-
ommended that the challenge to Lawrence’s ballot be
overruled. We do not agree with the recommendation.
In Pen Mar Packaging Corp., 261 NLRB 874
(1982), the Board stated: ‘‘It is established Board pol-
icy that a temporary employee is ineligible to be in-
cluded in the bargaining unit and that an employee’s
eligibility status is determined by his status as of the
eligibility payroll date.’’ (Footnotes omitted.) The criti-
cal inquiry on this date is whether the ‘‘temporary’’
employee’s tenure of employment remains uncertain. If
so, the employee is eligible to vote.4
The hearing officer has apparently misconstrued the
foregoing ‘‘date certain’’ eligibility test for temporary
employees. This test does not require a party contest-
ing an employee’s eligibility to prove that the employ-
ee’s tenure was certain to expire on an exact calendar
date. It is only necessary to prove that the prospect of
termination was sufficiently finite on the eligibility
date to dispel reasonable contemplation of continued
employment beyond the term for which the employee
was hired.5 In this case, it is clear that the Employer
retained Lawrence as a temporary employee on August
16, 1991, to complete a specific filing backlog project
of several months duration. Although this project
lasted 2 to 3 months longer than estimated by the Em-
ployer, its ultimate completion was a sufficiently cer-
tain event as of the March 21, 1992 eligibility date.
The hearing officer also erred in finding that Law-
rence had an expectancy of employment beyond the
completion of the special filing project. Her January
29, 1992 appraisal merely identified areas for improve-
ment ‘‘if she wants to be considered for permanent
employment.’’ There is no evidence that the Employer
was considering Lawrence for an available permanent
unit position at that time or at any subsequent time
prior to the eligibility date. Once the special filing
project ended, she had no prospect of future employ-
ment.
Based on the foregoing, we find that Lawrence was
a temporary employee who did not share a community
of interests with unit employees. Accordingly, we shall
sustain the challenge to Lawrence’s ballot.6
DIRECTION
IT IS DIRECTED that the Regional Director shall,
within 10 days from the date of this Decision, Direc-
tion, and Order, open and count the ballot cast by Pa-
tricia King and prepare and serve on the parties a re-
vised tally of ballots. Thereafter, the Regional Director
shall issue the appropriate certification.
ORDER
IT IS ORDERED that the proceeding is remanded to
the Regional Director.