Engineered Storage Products Co.

National Labor Relations Board - Board Decisions

Aug 10, 2001

334 N.L.R.B. 1063 (N.L.R.B. 2001)

ENGINEERED STORAGE PRODUCTS CO. 1063
Engineered Storage Products Co., a Division of CST
Industries, Inc. and Teamsters Local 330, Inter-
national Brotherhood of Teamsters, AFL–CIO–
CLC, Petitioner. Case 33–RC–4605
August 10, 2001
ORDER DENYING REVIEW
BY MEMBERS LIEBMAN, TRUESDALE, AND
WALSH
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel,
which has considered the Employer’s request for review
of the Regional Director’s Decision and Direction of
Election (pertinent portions of which are attached as an
appendix). The sole issue presented for review is
whether the Regional Director erred in finding appropri-
ate a unit of the Employer’s solely employed employees,
excluding employees supplied by Tandem Staffing
Agencies. The request for review is denied as it raises no
substantial issues warranting review. We agree with the
Regional Director that the petitioned-for unit constitutes
an appropriate unit. However, we do so for the following
reasons.
In denying review, we do not rely on the Regional Di-
rector’s finding that the agency-supplied temporary em-
ployees do not share a community of interest with the
petitioned-for unit of the Employer’s solely employed
employees. Since, as the Regional Director found, the
temporary employees and the regular employees work
side by side at the same facility performing the same
work, under the same supervision, and under common
working conditions, they may share a community of in-
terest. Swift & Co., 129 NLRB 1391, 1394 (1961),
Kalamazoo Paper Box, 136 NLRB 134, 138-139 (1962).
Although a unit including the temporary employees may
be appropriate, we find that they do not share such a
strong community of interest that their inclusion in the
unit is required, and therefore conclude that the peti-
tioned-for unit of solely employed employees is appro-
priate. See Holiday Inn City Center, 332 NLRB No. 128
(2000). Cf. Outokumpu Copper Franklin, 334 NLRB
No. 39 (2001) (inclusion of agency-supplied employees
is mandated).
In applying the community of interest test to determine
the scope and composition of bargaining units, the Board
has consistently held that Section 9(a) of the Act requires
only that a unit sought by a petitioning labor organization
be an appropriate unit for purposes of collective bargain-
ing. There is nothing in the statute which requires that
the unit for bargaining be the only appropriate unit, or
the most appropriate unit. Morand Brothers Beverage
Co., 91 NLRB 409, 418 (1950). Therefore, contrary to
the Employer’s contentions, the fact that the jointly em-
ployed employees supplied by Tandem Staffing may
share a community of interest with the petitioned-for
employees does not mean that they must be included in
the unit or that the petitioned-for unit is inappropriate.
Rather, the test is whether the community of interest they
share with the solely employed employees is so strong
that it requires or mandates their inclusion in the unit.
See e.g. Overnite Transportation Co., 322 NLRB 723,
726 (1996). Clearly the facts here do not meet this test.
Among other facts discussed by the Regional Director,
Tandem Staffing hires and fires the employees it supplies
to the Employer and sets their wages and benefits (which
are lower than those of the Employer’s regular employ-
ees). See Holiday Inn City Center, 332 NLRB No. 128,
slip op. at 5-6. Accordingly, the facts support a finding
that the jointly employed temporary employees supplied
by Tandem Staffing do not share such a strong commu-
nity of interest that their inclusion in the unit found ap-
propriate is required.1
APPENDIX
DECISION AND DIRECTION OF ELECTION
The Employer, a Delaware corporation, is engaged in the busi-
ness of producing storage products and agricultural unloaders at
its facility at 345 Harvestore Drive, Dekalb, Illinois. During
the past 12 months, a representative period of time, the Em-
ployer purchased and received goods and materials in excess of
$50,000 directly from vendors located outside the State of Illi-
nois. Based upon the foregoing facts, I find the Employer
herein is engaged in commerce within the meaning of the Act.
The approximate number of employees in the unit found appro-
priate herein is 68.
4/ The parties stipulated that the Petitioner is a labor organi-
zation within the meaning of the Act, and I so find. There is no
collective bargaining agreement covering any of the employees
in the unit sought in the Petition herein, and the parties are in
agreement that there is no contract bar. Furthermore, there is
no history of collective bargaining affecting these employees.
5/ The parties stipulated that an appropriate unit would in-
clude all full-time and regular part-time employees, including

1 Interstate Warehousing of Ohio, 333 NLRB (2001), is inapposite.
In that case, the Board denied review of the Regional Director’s finding
that a unit of solely and jointly employed employees was an appropriate
unit. There, the unit petitioned-for consisted of the solely employed
and jointly employed employees, and the Employer contended that the
jointly employed employees were required to be excluded from the
unit. Because the petitioner there sought a unit that included the jointly
employed employees, the issue before the Board was whether they
shared a sufficient community of interest that they could be included in
the petitioned-for unit. In contrast, the Petitioner here does not seek to
represent the jointly employed employees and the Employer seeks to
include them in the petitioned-for unit of solely employed employees.
Thus, the issue here is whether the jointly employed employees share
such a strong community of interest with the solely employed employ-
ees that they are required to be included in the unit.
334 NLRB No. 138
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1064
all production, maintenance, material handling, shipping and
receiving, quality, and plant clerical employees, but excluding
office clerical employees, confidential employees, sales order
coordinators, guards, professional employees and supervisors
as defined in the Act. Accordingly, I find that the above-
described unit constitutes an appropriate unit for collective
bargaining. The only issues raised herein are whether or not
leadman Brian Egland, Dan Kelm, Paul Mathis, Tim Parker,
Dave Martinson, Bob Pagliaro, and Ed Danielson, are supervi-
sors within the meaning of Section 2(11) of the Act and, conse-
quently, should be excluded from any appropriate bargaining
unit and whether or not four temporary employees, namely,
Mike Shady, Miguel Mireles, Fernendo Rico and Lorenzo
Kent, should be included in the unit found appropriate here-
in. . . . Regarding the temporary employees, the Employer
contends that the four temporary employees are jointly em-
ployed by the Employer and Tandem for an indefinite period of
time, share a community of interest with the Employer’s regu-
lar employees and, therefore, should be included in the bargain-
ing unit found appropriate herein. The Petitioner and Tandem
maintain that the temporary employees are not jointly em-
ployed by the Employer and Tandem, do not share a commu-
nity of interest with other employees of the Employer included
in the bargaining unit and should not be included in the bar-
gaining unit found appropriate herein.
. . . .

The record establishes that the employees solely employed
by the Employer, whom the Petitioner seeks to represent, ex-
cluding the four temporary employees supplied by Tandem,
constitute an appropriate unit for collective bargaining. Ac-
cordingly, and as discussed below, I find that the temporary
employees are jointly employed by the Employer and Tandem
but do not share a community of interest with the other em-
ployees included in the bargaining unit, and should be excluded
from the bargaining unit found appropriate herein.
. . . .
TEMPORARY EMPLOYEES
Since early May 2001, Tandem has supplied temporary gen-
eral labor to the Employer. Until June 29, 2001, there were 20
temporary employees. From June 29 until July 16, 2001, when
the second shift is scheduled to start up again, Tandem will
supply on an indefinite basis four temporary employees to the
Employer. The Employer takes the position that these four
temporary employees, Miguel Mireles, Fernando Rico, Lorenzo
Kent and Mike Shady, should be included in the bargaining unit
The temporaries supplied by Tandem perform the same jobs
as the Employer’s regular employees. The temporaries have
done glass line utility, assisted in press operations, assisted in
the machine shop and assisted in the assembly area. The su-
pervisors and leads employed by the Employer supervise the
temporary employees. Tandem has no supervisors on site at the
Employer’s plant. The temporaries goes through the same
orientation program as the Employer’s other employees. They
have the same hours, breaks and lunch time and use the same
restrooms and break rooms as the Employer’s other employees.
Although the solely employed employees of the Employer are
paid on Thursdays, the temporaries are paid by Tandem on
Fridays. The Employer does not sign the checks of the tempo-
rary employees. Their checks are signed by Tandem. The
temporaries do not use the time clock which the Employer’s
employees use. Although initially the Employer records their
time on the same time sheets on which it records the times of its
regular employees, the Employer sends the times to Tandem on
Tandem stationery.
Employees of the Employer receive medical and dental in-
surance and life and disability insurance and are eligible for a
401(k)plan. They also receives paid holidays and paid vaca-
tion. The temporary employees receive none of these benefits.
The temporaries are also not entitled to the Employer’s Work-
men's Compensation and Unemployment Insurance. Whereas
the Employer’s employees are paid $15 to $16 per hour, the
temporary employees are paid a base rate of approximately $8
per hour and an attendance incentive of $1.50 per hour. The pay
rates of temporary employees are set by Tandem. Tandem
recruits, interviews, selects and tests the employees. The par-
ties stipulated that Tandem handles all payroll and benefits for
the temporary employees assigned to the Employer, and I so
find. Although the Employer can request Tandem not to assign
a particular temporary to work for it, Tandem is responsible for
the discharge the temporary employees whom it furnishes to the
Employer. Under Tandem’s confirmation agreement with the
Employer, Tandem is designated as the employer of the tempo-
rary employees. If the temporary employees have grievances
on a job or concerns about a job, they are instructed to contact
their service coordinator at Tandem.
Tandem provides safety glasses to the temporary employees
and deducts from their paychecks the cost of those glasses. If
the temporary does not have their own steel toe work shoes,
Tandem provides them with toe caps. Upon request, Tandem
will also supply them with safety back belts.
On a daily basis, the temporary employees report to a super-
visor at Tandem’s office to let Tandem know that they are there
and ready to go to work at the Employer’s facility. They are
then assigned to the Employer’s account for that day.
Although it appears that the Employer has, in the past, hired
as regular employees temporaries supplied by employers other
than Tandem, no Tandem employees have ever been hired for
full-time employment with the Employer. Inasmuch as the
Employer has not hired any new employees for at least two and
one-half years, any temporaries whom it hired for full-time
employment appear to have been hired prior to that time. The
agreement between Tandem and the Employer provides that the
client shall not hire a Tandem service employee “for the first 90
days of such employee’s assignment to the client”. An addi-
tional agreement provides that the Employer will not hire an
employee supplied by Tandem for 30 days after that employee
last performs work for the Employer.
DISCUSSION OF THE TEMPORARY EMPLOYEES
Section 9(a) of the National Labor Relations Act provides
“[r]epresentatives designated or selected for the purposes of
collective bargaining by the majority of employees in a unit
appropriate for such purposes, shall be the exclusive representa-
tives of all the employees in such unit for the purposes of col-
lective bargaining in respect to rates of pay, wages, hours of
ENGINEERED STORAGE PRODUCTS CO. 1065
employment or other conditions of employment. . . . .” 29
U.S.C. Section 159(a). In making a determination as to
whether a petitioned for unit is appropriate, the Board has held
that Section 9(a) of the Act only requires that the unit sought by
the petitioning union be an appropriate unit for purposes of
collective bargaining. Nothing in the stature requires that the
unit be the only appropriate unit or the most appropriate unit.
See Morand Brothers Beverage Co., 91 NLRB 409, 418
(1950). The Act only requires that the unit sought be an appro-
priate unit for the purposes of collective bargaining. See Na-
tional Cash Register Co., 166 NLRB 173, 174 (1966).
Although the unit sought by a petitioning labor organization
is a relevant consideration in determining the scope of a bar-
gaining unit, a union is not required to seek representation in
the most comprehensive grouping of employees unless an ap-
propriate unit compatible to the unit that is requested does not
exist. See Overnite Transportation Company, 322 NLRB 723
(1996); Dezcon, Inc., 295 NLRB 109, 111 (1989). Although an
Employer may seek a broader unit and that unit may be appro-
priate, it does not necessarily render the petitioner’s unit inap-
propriate. See Overnite Transportation Co., supra.
Whether or not the temporary employees supplied by Tan-
dem to the Employer should be included in the petitioned for
voting unit is governed by the Board’s decision in M. B. Stur-
gis, Inc., 331 NLRB [1298 ] (August 25, 2000). Under Sturgis,
temporary employees can only be included in a unit with em-
ployees who are solely employed by the user employer if the
user employer and supplier employer are joint employers and
the employees share a community of interest. See M. B. Stur-
gis, Inc., 331 NLRB at 1305.
In order to establish that two or more employers are joint
employers, the entities must share or codetermine matters gov-
erning essential terms and conditions of employment. See M.
B. Sturgis, Inc., 331 NLRB at 1301 citing NLRB v. Browning
Ferris Industries, 691 F.2d 1117, 1123 (3d Cir. 1982); River-
dale Nursing Home, 317 NLRB 881, 882 (1995). There can be
no finding of joint employer status unless the two employers
jointly and meaningfully affect matters that relate to the em-
ployment relationship of the jointly employed employees, such
as hiring, firing, disciplining, supervising and directing.” See
Riverdale Nursing Home, 317 NLRB at 882.
The record evidence shows that Tandem is responsible for
interviewing, selecting and hiring all employees supplied to the
Employer and establishes that Tandem is solely responsible for
discharging the temporary employees.
The record establishes that the Employer assigns, directs and
oversees the daily work of the employees supplied by Tandem.
In addition, the employees supplied by Tandem perform the
same duties and share the same employee facilities as the em-
ployees exclusively employed by the Employer. While the
Employer may not be able to discharge a Tandem temporary
employee, it clearly can have the employee removed from its
service. The Employer also monitors the time worked by the
temporary employees in its service.
Based upon the above, it is apparent that the Employer and
Tandem affect and codetermine essential terms and conditions
of employment of the temporary employees supplied by Tan-
dem to the Employer. Accordingly, I find that the Employer
and Tandem are joint employers regarding the employees sup-
plied by Tandem to the Employer. See Riverdale Nursing
Home, 317 NLRB at 882.
Having found that the Employer is a joint employer with
Tandem, I must determine whether or not the jointly employed
employees of Tandem and the Employer and the solely em-
ployed employees of the Employer share a community of inter-
est. In determining whether a unit is appropriate, a major de-
terminate is the community of interest and duties of the em-
ployees involved. In applying a community of interest test, the
Board analyzes bargaining history, functional integration, em-
ployee interchange, employee skills, work performed, common
supervision and similarity in wages, hours, benefits and other
terms and conditions of employment. See J. C. Penney Co.,
328 NLRB 766 (June 18, 1999); Armco, Inc., 271 NLRB 350,
351 (1984).
The record clearly discloses that the jointly employed em-
ployees share some interest with the solely employed employ-
ees of the Employer whom the Union seeks to represent. The
two employee groups work side-by-side, perform identical
work under the same supervision and working conditions, work
essentially the same hours and are scheduled in the same man-
ner by common supervision. The Employer monitors the time
of temporary employees furnished by Tandem which it for-
wards to Tandem for payroll purposes. Although the above
establishes that the jointly and solely employed employees of
the Employer have many common interests, there are also some
major differences in their terms and conditions of employment.
The jointly employed employees are hired by Tandem without
any input by the Employer. Tandem establishes and controls
the wages received by the temporary employees, and these
temporary employees are carried on the payroll of Tandem.
Tandem is also responsible for taxes and Workmen’s Compen-
sation for the employees whom it supplies the Employer. The
jointly employed employees are not entitled to benefits fur-
nished by the Employer for its solely employed employees, and
fringe benefits, if any, enjoyed by the temporary employees are
provided by Tandem. Although it appears that the Employer
can have a jointly employed employee removed from service,
Tandem has the sole responsibility to discharge the employees
whom it supplies the Employer. The employees supplied by
Tandem do not automatically become regular employees of the
Employer. The Employer has not hired any temporary employ-
ees for over two and one-half years, has never hired a Tandem
supplied employee, has not informed any Tandem employees
that it has plans to hire them in the future and appears to have
no intent on hiring Tandem employees at this time. Indeed, the
Employer is specifically prohibited by its contract with Tandem
from hiring any of the temporary employees for the first 90
days of such employee’s assignment to the Employer. Thus, it
appears, that no employees could be hired at this time by the
Employer even if there was a need for employees.

The Employer’s reliance upon Outokumpu Copper Franklin,
Inc., 334 NLRB (June 6, 2001), to support its position that the
jointly employed employees share a community of interest with
the Employer’s regular employees and should be included in
the unit with the regular employees is misplaced. In Outo-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1066
kumpu, the Board held that the temporary employees supplied
to Outokumpu from three staffing agencies shared a community
of interest and should be included in the voting unit because the
temporary employees worked side-by-side with the employer’s
production and maintenance employees in all areas of the plant,
the employer’s supervisors had full authority to discipline, dis-
charge and send home the temporaries, the employer’s supervi-
sors evaluated temporaries for future employment, the tempo-
raries were the sole source for the employer’s regular produc-
tion and maintenance employees, and the employer exclusively
determined the wage rates the temporary employees would
receive. See Outokumpu, supra. Many of the facts present in
that case are not present in the instant case. For instance, here,
temporaries are not the sole source for the Employer’s regular
work force, and Tandem’s hiring of the temporaries whom it
supplies to the Employer is not based on criteria determined by
the Employer. In Outokumpu, the Board found that “dissimilar
terms and conditions of employment are substantially out-
weighed by the many common terms and conditions of em-
ployment shared by the regular and temporary employees.”
Outokumpu, supra. In the instant matter, the dissimilar terms
and conditions of employment of the temporary employees
supplied by Tandem and the Employer’s solely employed em-
ployees are not outweighed by the common terms and condi-
tions of employment.
The facts in Interstate Warehousing of Ohio, LLC, 333
NLRB (2001), also relied upon by the Employer, are distin-
guishable from the facts of the instant case. In that case, the
employer obtained all of its permanent employees by hiring
from its temporary employees. In the instant case, the Em-
ployer has never hired from Tandem’s supplied employees and,
in fact, has hired no new employees for two and one-half years.
As the Regional Direct found in Interstate Warehousing of
Ohio, LLC, 333 NLRB at, “a significant number of temporary
employees are converted to permanent employees of the Em-
ployer after completing a probationary period”. Here, the
jointly employed employees of Tandem and the Employer
share a common work function, hours and supervision with the
Employer’s permanent employees while working side-by- side
with them, and these factors, as they did in Interstate Ware-
housing of Ohio, demonstrate a high degree of functional inte-
gration and interchangeability and work related contact be-
tween the temporary and permanent employees. Unlike that
case, though, these community of interest factors cannot be
considered in conjunction with the temporary employees’ ex-
pectations of conversion to permanent employees of the Em-
ployer. While in Interstate Warehousing of Ohio the status of
temporary employees was analogous to the status of a proba-
tionary employee with a reasonable expectation of permanent
employment in the bargaining unit, in the instant case, the
jointly employed employees of Tandem and the Employer do
not have an expectation that they will be offered permanent
status, and they are not akin to probationary employees.
In view of the above and the record as a whole and having
carefully considered the traditional community of interest fac-
tors relied on by the Board, I find that the temporary employees
supplied by Tandem to the Employer do not share a community
of interest with the Employer’s regular hourly employees , and
I conclude that the employees solely employed by the Em-
ployer whom the petitioner seeks to represent, excluding the
employees supplied by Tandem, constitute an appropriate unit
for collective bargaining. There are sufficient dissimilarities
between the two groups of employees to warrant a finding that
the employees employed solely by the Employer constitute an
appropriate unit. For all of these reasons, I will exclude from
the bargaining unit the temporary employees furnished by Tan-
dem to the Employer. See Overnite Transportation Co., 322
NLRB at 724–725; M. B. Sturgis, Inc., 331 NLRB at 1306.