V.I.P. Movers, Inc.

National Labor Relations Board - Board Decisions

Sep 16, 1977

232 N.L.R.B. 14 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V.I.P. Movers, Inc. and Freight Construction, Gen-
eral Drivers, Warehousemen and Helpers Local
Union No. 287, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, Petitioner Case 20-RC-14014
September 16, 1977
DECISION ON REVIEW
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On March 25, 1977, the Regional Director for
Region 20 issued her Decision and Direction of
Election in the above-entitled proceeding, in which
she found appropriate the Petitioner's requested unit
of full-time and regular part-time drivers, helpers,
and packers, but excluded five "oncall" employees as
casual or irregular part-time employees. Thereafter,
in accordance with Section 102.67 of the National
Labor Relations Board Rules and Regulations, Series
8, as amended, the Employer filed a timely request
for review of the Regional Director's decision on the
grounds, inter alia, that, in finding ineligible the
oncall employees, she made erroneous findings as to
substantial factual issues and departed from officially
reported precedent.
By telegraphic order dated April 19, 1977, the
Board granted the Employer's request for review and
the election was stayed pending decision on review.
Thereafter, the Employer filed a brief on review.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the entire record in this
case with respect to the issue under review, including
the Employer's brief, and makes the following
findings:
The Employer is engaged in the moving and
storage of household and commercial items, operat-
ing out of a facility located in San Jose, California. In
connection with this business, the Employer employs
approximately 18 persons classified as drivers,
packers, and/or helpers.'
The Petitioner seeks to represent a unit comprised
of drivers, packers, and helpers, excluding oncall
employees,2 the dispatcher (also classified as a
driver), subcontractors and their employees, office
clerical employees, guards, and supervisors. The
Employer contends that oncall employees should be
i Some employees function in more than one of these classifications.
2 The five oncall employees, who are the only employees at issue in this
decision, are Henry Cortez, Tom Garcia, Gerald Jaster, Cherri Keeney, and
Harold McGowen, Sr.
:3 While the Employer's president testified that oncall employees accrue
sick leave and vacation time at the same rate as other employees, we do not
232 NLRB No. 3
included as they share a community of interest with
other employees in the unit. There is no collective-
bargaining history for the employees, and no labor
organization seeks to represent these employees in a
broader unit.
In concluding that oncall employees should be
excluded from the unit, the Regional Director found
that these employees, unlike others in the unit sought
by the Petitioner, could take personal leave at will,
accept or reject employment, or vary the number of
hours of work in any day or week according to their
personal choice. We disagree with those subsidiary
findings.
Oncall employees are employed as helpers and
packers and receive the same wages and work under
the same supervision as other employees in these
classifications. In hiring oncall employees, the
Employer attempts to find individuals who are
willing to work at least 15 hours per week on short
notice. The five individuals at issue here have all
performed work at the Employer's facility for
subcontractors as well as for the Employer, although
Cortez and McGowen perform such work most
regularly; at such times, they are paid by the
Employer who is then reimbursed by subcontractors.
Some oncall employees have also been involved in
other work away from the Employer's facility;
however, the Employer's president testified that, for
the most part, their work for other employers has not
interfered with their work for the Employer. He
testified that, while a commitment to work for
another employer would be an acceptable reason for
declining work on any particular day, an employee
who gave that excuse would be less likely to be
recalled on subsequent days if any other employee
was available. Other acceptable excuses, which are
also accepted from other employees, include illness,
doctors' appointments,3 and time off for personal
reasons.4
By agreement of the parties, after the close of the
hearing the Employer was permitted to submit its
payroll records for the 6 months preceding the date
of hearing. Those records indicate that, in the 6
months covered by the records (or the fraction
thereof during which an employee was employed),
after deduction of hours worked for subcontractors
which are reflected in the Employer's records, each
oncall employee averaged at least 4 hours of work
per week; and between December 1, 1976, and the
date of the hearing (the last calendar quarter
preceding the hearing) each oncall employee aver-
rely on this testimony in concluding that oncall employees should be
included in the unit, as the record shows that no oncall employee has
received either sick pay or vacation pay even when said employee has
declined work due to illness or has arranged for time off.
4 For example, Harold McGowen, one of the oncall employees, arranged
to take unpaid personal leave to visit his family in another city.
14
V.I.P. MOVERS, INC.
aged at least 5 hours of work per week and three
averaged over 10 hours per week.5
Although, as indicated above, there are some
differences in the conditions of employment of oncall
employees and the Employer's other employees,
these differences are insufficient to warrant the
exclusion of oncall employees who work on a
frequent, though unscheduled, basis, perform the
same tasks in the same areas and under the same
supervision as other employees, and therefore share a
community of interest with the Employer's other
employees. 6 We therefore find that oncall employees
are regular part-time employees and include them in
the unit found appropriate.
With respect to the eligibility of the oncall
employees to vote in the election, we note that, in
previous cases involving part-time and oncall em-
5 Including hours of work for subcontractors at the Employer's facility,
the total work hours for oncall employees dunng the time period for which
payroll records were submitted ranged from nearly 6 hours per week for
Jaster to approximately 27 hours per week for Cortez. While work for other
employers might ordinarily decrease the contact between part-time
employees and the Employer's work force, the work for subcontractors
reflected in the Employer's records, although not performed as an employee
of the Employer, was performed in the same work area as that utilized by
the Employer's other employees and therefore may tend to strengthen the
ployees, the Board has found such employees eligible
to vote if they regularly averaged 4 hours of work per
week in the quarter preceding the election.7 There-
fore, we shall direct that those oncall employees who
have averaged a minimum of 4 hours of work per
week in the quarter immediately preceding the date
of issuance of this Decision on Review 'shall be
eligible to vote.
Accordingly, we shall remand the case to the
Regional Director for the purpose of conducting an
election pursuant to her Decision and Direction of
Election, as modified herein, except that the payroll
period for determining eligibility shall be that ending
immediately before the date of issuance of this
Decision on Review. [Excelsior footnote omitted
from publication.]
attachment of oncall employees to the rest of the Employer's work force. We
find, however, that even without considering the work performed for
subcontractors the record shows that these oncall employees perform a
substantial amount of work for the Employer.
s Newton-Wellesley Hospital, 219 NLRB 699 (1975); Scoa, Inc., 140
NLRB 1379(1963).
? Davison-Paxon Conmpany, a Division of R. H. Macy & Co., Inc., 185
NLRB 21 (1970): The May Departmern Stores Contpany d/b/a The M.
O'Neil Company, 175 NLRB 514(1969).
15