West Michigan Dock and Market Corp.

National Labor Relations Board - Board Decisions

Oct 5, 1976

226 N.L.R.B. 239 (N.L.R.B. 1976)

W. MICHIGAN DOCK & MARKET CORP. - 239
West Michigan Dock and Market Corporation, Em-
ployer-Petitioner and Local 815,• International
Longshoremen's Association, -AFL-CIO. Case 7-
RM-1054
October 5, 1976
DECISION ON REVIEW
BY CHAIRMAN MURPHY AND MEMBERS PENELLO
AND WALTHER
On April 30, 1976, the Regional Director for Re-
gion 7 issued a Decision and-Direction of Election in
the above-entitled proceeding in which he included
in the unit of the Employer's employees certain "ex-
tra men," as regular part-time employees, if they met
the eligibility formula 'of having worked "a minimum
of 15 days or 120 hours in either of the two 3-month
periods immediately preceding the date of issuance"
of his decision.' Thereafter, in accordance with Sec-
tion 102.67 of the National Labor Relations Board
Rules and Regulations, Series 8, as amended, the
Union filed a timely request for review of the Re-
gional Director's decision contending, inter alia, that
his eligibility formula departed, from established
Board precedent in that it failed to take into account
either the seasonal nature of the Employer's opera-
tions or the atypical nature of the 1975 season due to
a lengthy strike which deprived the extra men of their
usual work opportunities.
On May, 24, 1976, the National Labor Relations
Board by telegraphic order granted the request for
review and stayed the election pending- decision on
review. The Employer thereafter filed a brief on re-
view. The Union also filed a brief-on review, includ-
ing a motion to strike the Employer's brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the entire record in this
case, including the'briefs of the,parties, with respect
to the issues under' review, and makes the following
findings:
The Employer, a wholly'owned subsidiary of San
Products Corporation, is a Michigan corporation en-
The unit is described as follows-
All full-time and regular part -time longshoring senior crane operators.
Junior crane operators , engineers , refrigeration system men , senior
maintenance mechanic, junior maintenance mechanic , hilift and fork
lift operators, automobile handlers and general dock and warehouse
laborers employed- by the Employer at its facility located in Muskegon,
Michigan , but excluding all office employees , office maintenance em-
ployees , casual employees , guards and supervisors as defined in the
Act
gaged -in warehousing and stevedoring. operations at
its facilities located on the-shores of Muskegon Lake.
In providing these services-the Employer employs 17
full-time employees. During periods of high demand
for its services,-i.e., the shipping season from April
through early December and certain fruit seasons
which occur within the period from July-through De-
cember, the Employer utilizes additional employees,
referred to as "extra men," for loading and unload-
ing the ships, among other duties .2
Based on the record evidence, the Regional Direc-
tor found that the "extra men" shared a sufficient
community of interest with the Employer's full-time
employees to be included in the unit.' He also found
that there was some recurrence of employment
among the extra men and that some had worked a
substantial amount of hours while others worked
only a minimal number during annual periods since
1970 for which evidence of employment history was
submitted 4 The Regional Director acknowledged
that, in applying the formula-he devised, none of the
extra men who worked during the year 1975 would
qualify for eligibility, as he had found that-of the 34
extra men used that year the maximum number of
hours worked by any of them was 36 hours. He noted
that 1975 was not representative of the Employer's
operation due to "a lengthy strike at its facility" 5
which affected employment opportunities. However,
he concluded that under his formula, extra men who
had worked in calendar year 1976 and/or future
years may become eligible for inclusion -in the unit.
The Union contends, in' essence, that the ' formula
provided by the Regional Director unfairly disen-
franchises extra men and fails to take into account
the abnormal employment situation occasioned by
2 The record evidence discloses that the Employer 's full-time employees
have been represented by the Union herein since about 1937 The most
recent collective-bargaining agreement was effective from January 1, 1973,
through January 1, 1975, and for, successive years ,thereafter absent timely
notice by either party . The Regional Director found that "there is some
indication that the parties may have intended extra-men to be covered by
the terms of this contract , although it was unclear to what extent , if at all,
they received benefits under
,
the contract or who, from among the extra's
[sic], was so covered "
3 The Employer's contention in its brief that the extra men should not be
included in the unit is untimely as the Employer did not file a request for
review of the Regional Director's decision and the only issue as to which
review was granted is the propriety of the eligibility formula devised by the
Reponal Director
The Regional Director found that the Employer seldom utilizes more
than "two gangs" of extra men at a time, each gang consisting of from 6 to
12 men In the year 1974, dunng which time the Employer employed ap-
proximately 122 extra men, the maximum number of hours worked by any
I employee was 521-1/2 hours , while the minimum hours were I and 2-1/2
hours These extra men are called by the Employer if their names appear on
the Employer's list which it prepares annually listing the prospective extra
men in chronological order of the date of their application.
5 Although the Employer disputes this characterization , 'it is unnecessary
to decide the exact nature of the labor dispute -as it is clear that employment
opportunities were adversely affected Note that only four ships docked at
Employer's facility during 1975 and these dockings occurred before the
labor dispute arose
226 NLRB No. 40
240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the labor dispute in 1975 and the effect of the contin-
ued presence-of a picket thereafter. Further, it points
out that the requirement for eligibility in 1976, i.e., 15
days or 120 hours of employment during either of the
two quarters immediately preceding the April 30 is-
suance date of the Regional Director's decision, falls
largely within the slack season rather than the April
to December shipping season when extra men are
primarily employed. The Union asserts that it sug-
gested a formula which looks back to the employ-
ment of extra men during the past several years "in
order to compensate for the seriously distorting fac-
tor of the abnormal 1975 season." In its request for
review, the Union proposes a slightly modified for-
mula for eligibility which is as follows: Any extra
man who has performed 64 hours of work in each of
2 years during the period 1970 through 1975. Howev-
er, because of the exceptional character of the 1975
season an adjustment is required, according to the
Union, and it suggests that, because no men appear
to have worked more than 30 or more hours in 1975,
30 hours in 1975 be deemed the equivalent of 64
hours in another year.
The Employer, while recognizing that the Board
has on occasion developed formulas which take into
consideration an uncharacteristic seasonal hiring his-
tory of an employer, viz Daniel Construction Compa-
ny, Inc.,' urges, inter alia, that the Union's suggested
formula does not satisfy the criteria of length, regu-
larity, and currency adhered to by the Board, partic-
ularly inasmuch as it would allow employees to vote
"regardless of their present eligibility." The Employ-
er states that, subsequent to the hearing in this mat-
ter, the new annual list of available extra men has
been compiled in accordance with past practice. It
therefore urges that no extra employee should be eli-
gible to vote whose name does not appear on the new
list for the present year. It contends that the most
liberal "look back" to previous years by the Board
was in Daniel, supra, ,where it went back 1 year be-
yond the then current year but still required "some"
employment during the exceptional year in that case.
The Employer suggests the following formula as
being consistent with Board precedent:
Any extra man whose name appears on the
"1976" availability list and whose name also ap-
pears on the "1975" availability list who has
worked a minimum of thirty (30) hours in 1975,
as well as those men whose names appear on
both the 1976 and 1975 lists who have had some
employment in 1975 and a total of 120 hours in
the past two years, i.e., 1974, 1975.
The Union urges that the Board not consider any
newly compiled annual list allegedly prepared subse-
quent to the hearing and further argues that the
Employer's formula which uses the 1976 list would
be equally deficient as the Regional Director's for-
mula.
We agree that, in view of the abnormal situation
which existed in the 1975 season due to the labor
problems which commenced then and are apparently
continuing to some extent to the present, and be-
cause of the seasonal nature of the Employer's opera-
tions running largely from April to December, a for-
mula should be devised which takes such factors into
account.' We have attempted to establish such a for-
mula.
In the circumstances, weighing the evidence of em-
ployment history of extra men by the Employer in
the -light of the factors of length, regularity, and cur-
rency of employment, as well as the seasonality of
their employment and the probable impact of the la-
bor dispute which commenced in 1975, we. shall es-
tablish for this case the following formula:
Eligible to vote in the election shall be those ex-
tra men who have worked a total of 240 hours
for the Employer from April 1, 1974, to the eligi-
bility payroll period immediately preceding the
date of issuance of this decision and who were
listed on either the Employer's 1975 or 1976 ex-
tra men lists and have worked a total of at least
30 of those hours since the beginning of 1975.
By utilizing a period beginning on April 1, 1974,
and extending to the eligibility cutoff date, we are
providing more- than a 2-year period for the attain-
ment of the 240 hours of employment. Such a period
commences with the normal April seasonal period in
which extra men would be employed. In addition, by
using the more than 2-year period, we are taking into
account the abnormally low employment opportuni-
ties which existed in 1975 for extra men, who would
possibly be disenfranchised if only a 1-year period
were considered. Furthermore, a period of more than
2 years' duration will enable those extra men who
have had sufficient employment in those past years
to achieve eligibility assuming they meet the other
requirements of the above formula. This period gives
consideration to the factor of length of employment.
In requiring that eligible extra men must have been
listed either on the Employer's 1975 or 1976 lists and
have worked at least 30 of the 240 hours since the
beginning of 1975, we have provided for the factors
of regularity of employment as well as currency. In
addition, by requiring that their names have ap-
6 133 NLRB 264 (1961) 7 See C T L Testing Laboratories, Inc, 150 NLRB 982 (1965).
W. MICHIGAN DOCK & MARKET CORP.
peared on either list rather than on both lists, we
again have considered the unusual lack of work op-
portunities which existed in 1975. Considered overall,
we are of the view that the formula provided is equi-
table in extending the franchise to those extra men
who share a community of interest with the full-time
employees.
241
Accordingly, we hereby remand the case to the Re-
gional Director for the purpose of conducting an
election pursuant to his Decision and Direction of
Election, as modified herein, except that the payroll
period for determining eligibility shall be that imme-
diately preceding the date of issuance of this Deci-
sion. [Excelsior footnote omitted from publication.]