William J. Keller, Inc.

National Labor Relations Board - Board Decisions

Aug 30, 1972

198 N.L.R.B. 1144 (N.L.R.B. 1972)

1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
William J. Keller, Inc. and Buffalo Local No. 261,
Lithographers and Photoengravers International
Union, AFL-CIO, Petitoner . Case 3-RC-5361
August 30, 1972
DECISION ON REVIEW
BY CHAIRMAN MILLER AND MEMBERS
KENNEDY AND PENELLO
On March 23, 1972, the Regional Director for
Region 3 issued a Decision and Direction of Election
in the above-entitled proceeding in which he found
appropriate the Petitioner's requested unit of year-
round production and maintenance employees which
is currently represented by the Intervenor, Graphic
Arts Indepent Union, rejecting the Employer's
contention that unrepresented seasonal employees
have such a close community of interest with year-
round employees as to require their inclusion in the
unit. Thereafter, in accordance with 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
ground that, in concluding that seasonal employees
may be excluded from the unit, he made findings of
fact which are clearly erroneous and departed from
precedent.
On April 13, 1972, the National Labor Relations
Board by telegraphic order granted the request for
review and stayed the election pending decision on
review. The Employer and the Petitioner filed briefs
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 reviewed the entire record in this
case, including the briefs on review, and makes the
following findings:
As indicated, the Employer contends that the
bargaining history for a unit confined to its year-
round employees is not controlling with respect to
the issue of the unit placement of its seasonal
employees herein. We agree.
At its Buffalo, New York, plant the Employer is
engaged principally in the printing and publication
of school yearbooks. It also prints and publishes
college catalogs and admissions brochures and, on a
fill-in basis, does some commercial printing. The
yearbook production is seasonal, geared to the major
' The Employer tries to employ seasonals for at least 20 weeks so that
they may qualify for unemployment benefits following their layoff
2 Most recently no seasonals have been hired for summer work.
However, as indicated, the Employer's current policy entails an expansion
of production for the fall yearbook market
market at the end of the regular school year, in June,
and to a minor market for summer school yearbooks,
in October. In its fiscal year 1971, the Employer's
yearbook production accounted for 55 percent of its
sales volume. However, in August 1971 the Employer
was acquired by Herff Jones Co. and the new
management has decided to expand yearbook pro-
duction, especially for the fall market. It is estimated
that in fiscal 1972 the Employer's yearbook pro-
duction will contribute 66 percent of total sales.
The Intervenor was certified in 1947 as the
representative of a stipulated unit of year-round
employees. At that time there were but a half dozen
seasonal employees hired during the yearbook
production season . At present, during the major
yearbook production season, the Employer has about
60 year-round employees and approximately 40
seasonal employees. Seasonal employees are added
to the employee complement each year beginning in
late December or early January, and they work an
average of 25 weeks until May or June.' During this
peak production period up to 95 percent of the
Employer's work is devoted to yearbook production.
In the past a few seasonals were recalled during the
late summer for work on summer yearbook pro-
duction.2
All seasonals are females ; in the main, housewives
living in the neighborhood of the plant. Although the
Employer advertises for seasonal employees, it
obtains all but a few from a recall list, and virtually
all seasonals whose work has been acceptable in the
past return to work for the Employer from year to
year.3 Although they work in other departments the
seasonals are assigned mainly to the prepress
department to do the stripping of black and white
negatives. The seasonals work the same number of
hours per week and are under the same departmental
supervision as year-round employees. However, they
do not participate in certain fringe benefits received
by year-round employees, such as vacations, group
life and health insurance coverage, pension plan, and
jury duty compensation.
Upon the foregoing and the entire record in this
case, we conclude that the continued exclusion of
seasonals from the historical unit represented by the
Intervenor is not warranted. Although the Board is
reluctant to disturb a contract unit based on a
satisfactory bargaining history, it will not give
controlling weight to bargaining history to the extent
that it departs from statutory provisions or clearly
3 Two of the seasonals were formerly year-round employees, and 12 of
the latter were once seasonals . It may be noted that the Employer's new
management has reversed the previous policy of not laying off year-round
employees , and in late 1971 about 40 percent of the year-round complement
were laid off for an average period of almost 9 weeks
198 NLRB No. 172
WILLIAM J. KELLER, INC. 1145
established Board policy concerning the composition
and scope of bargaining units.4 In the instant case, in
view of the record evidence that seasonals work for a
substantial portion of the year, that they have a near
certain expectation of reemployment from year to
year, that when employed they work alongside yeat-
round employees under the same supervision, and
that the Employer under its new owners has
undertaken new policies which will tend to eliminate
distinctions previously existing between seasonal and
year-round employees, we believe that exclusion of
seasonals from the bargaining unit at this time would
be contrary to clear Board policy.5 We shall
therefore include the seasonals in the unit and we
find that those not employed at the time of the
election who have a reasonable expectation of recall
shall be eligible to vote.
Accordingly, the case is hereby remanded to the
Regional Director for Region 3 for the purpose of
holding an election pursuant to his Decision and
Direction of Election, as modified herein, except that
the payroll period for determining eligibility shall be
that immediately preceding the date of issuance of
this decision.6
4 See General Electric Company, 107 NLRB 70, 72
S See Baumer Foods, Inc, 190 NLRB No 137
6 In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their
addresses which may be used to communicate with them. Excelsior
Underwear Inc, 156 NLRB 1236, N LR B V Wyman-Gordon Co, 394 U S
759 Accordingly, it is hereby directed that a revised election eligibility list,
containing the names and addresses of all the eligible voters, must be filed
by the Employer with the Regional Director for Region 3 within 7 days of
the date of this Decision on Review . The Regional Director shall make the
list available to all parties to the election . No extension of time to file this
list shall be granted by the Regional Director except in extraordinary
circumstances Failure to comply with this requirement shall be grounds for
setting aside the election whenever proper objections are filed
Since the unit as found by the Board is larger and more comprehensive
than that requested by the Petitioner or that currently represented by the
Intervenor, both the Petitioner and the Intervenor have the option to
withdraw