Woodward Detroit CVS, LLC

National Labor Relations Board - Board Decisions

Sep 16, 2010

355 N.L.R.B. 1115 (N.L.R.B. 2010)

WOODWARD DETROIT CVS, LLC
355 NLRB No. 181
1115
Woodward Detroit CVS, LLC and Local 876, United
Food and Commercial Workers International
Union (UFCW). Case 7–RC–23299
September 16, 2010
DECISION AND DIRECTION
BY CHAIRMAN LIEBMAN AND MEMBERS BECKER
AND PEARCE
The National Labor Relations Board, by a three-
member panel, has considered a determinative challenge
in an election held on February 4, 2010, and the hearing
officer’s report recommending disposition of it. The
election was conducted pursuant to a Stipulated Election
Agreement. The tally of ballots shows 6 for and 5
against the Petitioner, with 1 determinative challenged
ballot.
The Board has reviewed the record in light of the ex-
ceptions and briefs and has decided to adopt the hearing
officer’s findings and recommendations only to the ex-
tent consistent with this Decision and Direction.
The Employer has excepted to the hearing officer’s
recommendation that the challenge to the ballot of Obi-
ageri Opara be sustained. For the reasons set forth be-
low, we find merit in this exception.1
The sole issue here is whether employee Obiageri
Opara is a regular part-time employee. The standard for
determining eligibility of regular part-time employees, in
the absence of special circumstances, is set forth in Davi-
son-Paxon Co., 185 NLRB 21 (1970). In that case, the
Board held that an employee is eligible to vote if that
employee “averages 4 hours or more per week for the
last quarter prior to the eligibility date.” Id. at 24. The
hearing officer applied the Davison-Paxon eligibility
formula, but found that Opara was ineligible to vote be-
cause she did not work an average of 4 hours per week
for the “calendar quarter” before the January 16, 2010
eligibility date. The Employer excepts to the hearing
officer’s use of the calendar quarter rather than the 13-
week period immediately before the eligibility date.2 We
find merit in the Employer’s exception.

1 In the absence of exceptions, we adopt, pro forma, the hearing offi-
cer’s recommendation to grant the Petitioner’s unopposed request to
withdraw its conditional objections.
2 At the hearing, the parties stipulated that Opara performs the same
duties as other full- and part-time clerk/cashiers, and has similar wages,
benefits, and working conditions. The parties also stipulated that if
Opara’s hours were sufficient to classify her as a regular-part time
employee, then she would be included in the unit. Although the Peti-
tioner appears to argue, in part, that Opara is a casual employee, her
unit inclusion is not at issue because there are no exceptions to the
hearing officer’s implicit finding that she was a part-time employee.
Further, there are no exceptions to the hearing officer’s use of the Davi-
son-Paxon eligibility formula. Accordingly, the only issue before the
The Board has explicitly held that the “last quarter
prior to the eligibility date” refers to the 13-week period
immediately before the eligibility date. Hardy Herpol-
sheimer’s, 227 NLRB 652 (1976).3 The Board has more
recently applied the same rule in other cases.4 This ap-
proach allows for an employee’s eligibility to be evalu-
ated based on a period that is closer in time to the elec-
tion eligibility date, which in turn provides a more accu-
rate and up-to-date assessment of the unit’s composition.
Under the calendar quarter approach, in contrast, the time
between the end of the quarter and the eligibility date
may vary by up to 3 months. Consequently, we find that
Opara’s eligibility should have been calculated using the
13-week period immediately before the eligibility date
rather than the calendar quarter.
Applying the above standard, Opara worked a total of
60.75 hours, or an average of 4.67 hours during the 13-
week period immediately before the election eligibility
date. Accordingly, she is a regular part-time employee
who is eligible to vote. We overrule the challenge to her
ballot and direct that it be opened and counted.

Board is the meaning of “last quarter prior to the eligibility date” under
Davison-Paxon.
3 The Petitioner filed no exceptions to the use of the Davison-Paxon
formula. In its answering brief, however, as an alternative to using the
calendar quarter, the Petitioner urges the Board to apply the eligibility
formula set forth in Scoa, Inc., 140 NLRB 1379 (1963). In that case,
the Board determined that eligible employees were those who worked a
minimum of 15 days in the 90 days before the election. That case was
decided before Davison-Paxon. It has since been established that Davi-
son-Paxon is the standard typically used by the Board, in the absence of
special circumstances. See, e.g., Steppenwolf Theatre Co., 342 NLRB
69, 71 (2004). Here, the Petitioner has failed to establish special cir-
cumstances justifying departure from the Davison-Paxon standard.
4 See Ansted Center, 326 NLRB 1208, 1210, 1212 (1998) (adopting
Regional Director’s findings based on calculations using the 13 weeks
before the eligibility date); Saratoga County Chapter NYSARC, 314
NLRB 609, 610 fn. 5 (1994) (finding on-call employees ineligible
because they did not average 4 hours per week during the 13 weeks
before the eligibility date); Sisters of Mercy Health Corp., 298 NLRB
483, 483–484 (1990) (calculating employees’ hours during the 13
weeks before the eligibility date).
The Petitioner cites Mediplex of Connecticut, Inc., 319 NLRB 281,
299 (1995) (adopting, without comment, a judge’s decision calculating
eligibility based on two calendar quarters, one of which went beyond
the eligibility date) and BB&L v. NLRB, 52 F.3d 366, 369 (D.C. Cir.
1995) (summarizing the Board’s decision as adopting the hearing offi-
cer’s recommendation to sustain a challenge to an employee ballot
because the employee “averaged fewer than four hours of work per
week in the first quarter of 1992, the last full quarter before the elec-
tion”). It does not appear that the issue raised here was litigated in
either of those cases, however, and neither case offered any explanation
for the decision to use the calendar quarter rather than the 13 weeks
before the eligibility date as the appropriate period for determining
eligibility under Davison-Paxon. Although the Board has periodically
used the phrase “calendar quarter” in its decisions, we do not construe
this phrase as a repudiation of the principles set forth in Hardy Herpol-
sheimer’s.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1116
DIRECTION
IT IS DIRECTED that the Regional Director for Region 7
shall, within 14 days from the date of this Decision and
Direction, open and count the ballot of Obiageri Opara,
prepare and serve on the parties a revised tally of ballots,
and issue the appropriate certification.