Tuscarawas Landmark, Inc.

National Labor Relations Board - Board Decisions

Jun 19, 1979

242 N.L.R.B. 1294 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tuscarawas Landmark, Inc. and General Truck Driv-
ers and Helpers Local No. 92, affiliated with the
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America Peti-
tioner. Case 8-RC 11617
June 19, 1979
DECISION AND DIRECTION
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELL.(
Pursuant to authority granted it by the National
Labor Relations Board under Section 3(b) of the Na-
tional Labor Relations Act, as amended, a three-
member panel has considered a determinative chal-
lenge in an election held January 25, 1978.' and the
Regional Director's Report on Challenged Ballots
recommending disposition of same. The Board has
reviewed the record in light ot the exceptions and
brief and hereby adopts the Regional Director's find-
ings and recommendations,2 with the following modi-
fications.
The sole issue before us is whether Marilyn Cope is
a regular part-time employee. The Regional Director
concluded that she was not. He found that in the 12-
month period preceding the month of the election,
she worked only 330 hours, while regular full-time
employees worked approximately 2,200 hours during
this same period. He further found that, although
Cope regularly worked as a substitute when other em-
ployees were off or reassigned, on two occasions she
was unable to work when so requested and no disci-
plinary action was taken against her, and that she did
not enjoy the fringe benefits received by the full-time
clerks, which include paid vacations, holidays, sick
leave, and coverage under the Employer's life and
health insurance programs. Based on these factors he
concluded that, on balance, Cope's current work his-
tory did not exhibit a sufficient degree of regularity to
classify her as a regular part-time employee and rec-
ommended that the challenge to her ballot be sus-
tained.
The Employer, in its exceptions, contends that (1)
the Regional Director erred in using Cope's average
IThe election was conducted pursuant to a Stipulation of Certification
Upon Consent Election. The tally was 13 fo-. and I 1 against, the Petitioner:
there were 2 challenged ballots.
2 No exceptions were filed to the Regional Director's finding that Earl
Burner, the other employee whose ballot was challenged, was a regular part-
time employee eligible to vote. In the absence of exceptions, we adopt, pro
forma, this finding.
hours of work over a 12-month period in determining
her eligibility as a part-time employee, (2) the record
does not support the Regional Director's inference
that Cope can reject work assignments without disci-
pline, and (3) Cope does share a community of em-
ployment interests with the full-time store clerks. In
support of its position, the Employer asserts that the
store manager's affidavit shows that Cope has never
refused work and that if she wanted to have the op-
tion to work or not, she would be replaced. The Em-
ployer also asserts that Cope is not covered by the
insurance programs because the plans cover only em-
ployees scheduled to work at least 20 hours a week,
but she does participate in the Employer's pension
plan, sales bonus point program, and employee dis-
count program, and she does attend the Employer's
annual Christmas dinner and Easter picnic.
We find merit in the Employer's contentions. The
Board normally determines eligibility for part-time
employees on the basis of a representative period,
usually a quarter which immediately precedes the eli-
gibility date.' Here, without suggesting any reason for
deviating from this principle, the Regional Director
considered Cope's employment record for the 12-
month period preceding the election. Absent a valid
reason for such deviation, we find such a test inappro-
priate and we shall therefor look to the 13-week pe-
riod immediately preceding December 15, 1978, the
eligibility date herein. During this period, the record
facts disclose that Cope worked 26 days for a total of
178 hours, thus averaging approximately 14 hours per
week during the 13-week period. In these circum-
stances, and absent any showing that Cope's failure
to work on two occasions was for other than valid
reasons, i.e., sickness, etc., we find that she is a regular
part-time employee having a sufficient community of
interest for inclusion in the unit4 and eligible to vote
in the election. We shall, therefore, overrule the chal-
lenge to her ballot and direct that both her ballot and
the ballot of Earl Burrier be opened and counted.
DIRECTION
The Regional Director is hereby directed to open
and count the ballots of Marilyn Cope and Earl Bur-
rier and serve on the parties a revised tally of ballots,
and to issue an appropriate certification based on the
count therein.
I Hard' Herpolsheimer's a Division of Allied Stores of Michigan, Inc, 227
NLRB 652 1976).
4 Mademoiselle Shoppe, Inc., 199 NLRB 983. 984 (1972). Davison-Paxon
Companv., a Division Rf'R. H Maoc and Conrpaty, Inc., 185 NlRB 21, 23
(1970).
242 NLRB No. 188
1294