M. C. Decorating

National Labor Relations Board - Board Decisions

Mar 24, 1992

306 N.L.R.B. 816 (N.L.R.B. 1992)

816
306 NLRB No. 176
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The name of the Petitioner has been changed to reflect the new
official name of the International Union.
2 All dates herein are in 1991 unless otherwise indicated.
3 In the absence of exceptions, we adopt, pro forma, the hearing
officer’s recommendation to overrule the challenge to Gueho’s bal-
lot. In view of our decision, however, his vote is no longer deter-
minative and we do not order that his vote be counted. We need not
resolve the challenge to Yumul’s ballot because it is no longer deter-
minative. Member Raudabaugh finds it unecessary to pass on the
challenge to the ballot cast by Silvert because it is no longer deter-
minative.
4 The unit consists of all regular, full-time production, and mainte-
nance employees, excluding, among others, ‘‘clerical employees.’’
M. C. Decorating, Inc. and Teamsters Union Local
No. 115 a/w International Brotherhood of
Teamsters, AFL–CIO,1 Petitioner. Case 4–RC–
17632
March 24, 1992
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
The National Labor Relations Board, by a three-
member panel, has considered determinative challenges
and objections to an election held July 12, 1991,2 and
the hearing officer’s report recommending disposition
of them. The election was conducted pursuant to a
Stipulated Election Agreement. The tally of ballots
shows 15 for and 11 against the Petitioner, with 4
challenged ballots.
The Board has reviewed the record in light of the
exceptions and briefs and has decided to adopt the
hearing officer’s findings and recommendations and to
sustain the challenges to the ballots of Diana DeLeon
and Robert Silvert as amplified below. Since the chal-
lenged ballots of Washington Gueho and Lorenzo
Yumul are no longer determinative,3 we find that a
certification of representative should be issued. In view
of our decision, we need not consider the Petitioner’s
objections to the conduct of the election.
(1) The Petitioner challenged Diana DeLeon’s ballot
on the ground that she is the Employer’s personnel
manager and is a confidential employee or a super-
visor. The Employer argues that she is a dual-function
employee whose ballot should be counted. The hearing
officer found that DeLeon is not a statutory supervisor
or a confidential employee. He also found, however,
that DeLeon is not a dual-function employee because
she had ceased regular work in the unit before May
31, 1991, the payroll eligibility date, and was there-
after employed as a clerical employee, a classification
that is specifically excluded from the unit.4 He rec-
ommended that the challenge to DeLeon’s ballot be
sustained.
The Employer excepts to the hearing officer’s find-
ing that DeLeon was not a dual-function employee.
For the following reasons, we adopt the hearing offi-
cer’s recommendation and sustain the challenge to
DeLeon’s ballot.
The Employer hired DeLeon in May 1988 as a
packer in its factory, a unit job. Within a few months,
it assigned her to part-time duties as the office recep-
tionist. Gradually, her office duties increased until by
April 1991 she was spending about 40 percent of her
time on office clerical work and 60 percent in the fac-
tory. In late April, a month before the payroll eligi-
bility date, one of two full-time office-clerical employ-
ees resigned and, rather than hire an outside replace-
ment, the Employer assigned DeLeon to full-time cler-
ical duties in the office.
The Employer contends that, notwithstanding
DeLeon’s reassignment to a full-time office clerical
position, she continued to maintain a sufficient com-
munity of interest with the unit employees to warrant
a finding that she is a dual-function employee and is
eligible to vote in the election. The Employer relies
primarily on (1) its requirement that DeLeon perform
unit work during production line emergencies, and (2)
DeLeon’s temporary job on the second shift in the fac-
tory during the summer of 1991, following the payroll
May 31, 1991 eligibility date. We find the Employer’s
reliance on these factors to be misplaced.
As to the first factor, the question is whether
DeLeon was ‘‘regularly employed for sufficient peri-
ods of time to demonstrate that [she] ha[d] a substan-
tial interest in the unit’s wages, hours, and conditions
of employment.’’ Oxford Chemicals, 286 NLRB 187
(1987). In our view, the evidence is insufficient to
show that DeLeon’s emergency work in the unit was
any more than de minimis. The record contains some
general testimony that after DeLeon began full-time
office clerical work, the Employer required her to per-
form unit work during emergencies on the production
line. The record is devoid of evidence, however, speci-
fying the number, frequency, and duration of DeLeon’s
emergency stints in the factory and the percentage of
her worktime they represent. We know from the testi-
mony of Controller Samuel Pollack that DeLeon re-
ceived her regular office clerical wage when she per-
formed emergency work on the production line, rather
than the lower factory wage, and that management and
supervisory employees similarly worked on the factory
floor during emergencies. In view of these facts which
militate against finding that DeLeon had a community
of interest with the unit employees, and in the absence
of more specific evidence about DeLeon’s post-April
assignments to unit work, we find that there is insuffi-
cient evidence in the record for us to conclude that
DeLeon is a dual-function employee.
We also do not agree with the Employer’s conten-
tion that DeLeon was a dual-function employee by vir-
tue of her summer job on the second shift in the fac-
817M. C. DECORATING
5 We do not rely on the hearing officer’s finding that Silvert had
the ability to leave and return to employment status without dif-
ficulty.
6 See Wilkes-Barre Wholesale, 246 NLRB 491, 497 (1979). After
the petition was filed, the Employer began requiring Silvert to clock
in and out at starting and quitting time. It did not require him to
clock in and out at lunchtime.
tory. DeLeon testified that, unable to find a second job
elsewhere, she took advantage of her child’s summer
visit with relatives to work an additional shift. From
June to late August, DeLeon worked on the Employ-
er’s production line each day, after she had completed
her regular, full-time clerical job in the office. Thus,
she held this job on a short-term, limited basis from
the outset and, insofar as the record shows, she per-
formed this additional work only for one summer, after
the payroll eligibility date. We conclude that DeLeon
was a temporary employee as to the second-shift job
and, accordingly, is excluded from the unit.
(2) The Petitioner challenged Robert Silvert’s ballot
on the ground that he is the brother-in-law of the Em-
ployer’s part-owner and president, Joe Majowicz. The
Petitioner argued that Silvert’s family relationship af-
fords him a special status and thus that he lacks a
community of interest with the employees in the unit.
The hearing officer found, and we agree, that the chal-
lenge to Silvert’s ballot should be sustained.5
A relative of an employer’s owner may be an em-
ployee and nonetheless be excluded from the unit if he
enjoys special benefits as a result of that relationship
or if his special status aligns his interests more closely
with management than with unit employees. NLRB v.
Action Automotive, 469 U.S. 490 (1985).
Silvert’s working conditions differed from those of
the unit employees in several significant respects. Prior
to the filing of the petition, Silvert recorded his work
hours for payroll purposes and submitted his account-
ing directly to Majowicz. He was not required to clock
in and out at starting and quitting time and before and
after lunch.6 He unilaterally determined when he
would work overtime. No other employee had these
privileges.
We find that Silvert’s family relationship with
Majowicz afforded him certain privileges not shared
by other employees in the unit. By virtue of his special
status, Silvert does not share a sufficient community of
interest with the unit employees. Accordingly, we sus-
tain the challenge to his ballot.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots
have been cast for Teamsters Union Local No. 115 a/w
International Brotherhood of Teamsters, AFL–CIO,
and that it is the exclusive representative of the em-
ployees in the following appropriate unit:
All regular full-time production and maintenance
employees employed by the Employer at its Cape
May County Airport, Rio Grande, New Jersey fa-
cility, excluding all other employees, including
clerical employees, guards, and supervisors as de-
fined in the Act.