United Telecontrol Electronics

National Labor Relations Board - Board Decisions

Dec 27, 1978

239 N.L.R.B. 1057 (N.L.R.B. 1978)

UNITED TELECONTROL ELECTRONICS
United Telecontrol Electronics, Inc., U.T.E. Micro-
wave, Inc., and U.T.E. Consumer Products, Inc. and
Local 2066, International Brotherhood of Electrical
Workers, AFL-CIO, Petitioner. Case 22-RC-7519
December 27, 1978
DECISION ON REVIEW AND ORDER
By MEMBERS JENKINS, PENELLO. AND MURPHY
On June 28, 1978, The Regional Director for Re-
gion 22 issued a Decision and Direction of Election
in the above-entitled proceeding. Thereafter, the Em-
ployer timely filed a request for review of said Deci-
sion and Direction of Election on the ground that the
Regional Director erred in classifying as seasonal
and including in the unit the employees employed in
the Employer's "Char-B-Que" operation at Asbury
Park, New Jersey. On July 20, 1978, the National
Labor Relations Board granted the request for re-
view. The election has not yet been held because of
the seasonal nature of the "Char-B-Que" operation,
and the Regional Director has scheduled it to take
place during the peak of the operation in 1979, if the
operation is resumed.
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 reviewed the entire record ' in this
proceeding with respect to the issues under review
and makes the following findings.
Petitioner seeks to include in the production and
maintenance unit sought the employees engaged in
the "Char-B-Que" operation and is unwilling to par-
ticipate in an election unless they are included in the
unit.
The Employer primarily is engaged in the manu-
facture of electronic components for the computer
and microwave industries. For the past 6 years the
Employer also has engaged in the manufacture,
painting, packaging, and shipping of an electric grill
called a "Char-B-Que", pursuant to annual contracts
secured through successful bidding. During those
years, the bidding has taken place in November or
December, a contract requiring a specific number of
grills to be manufactured has been awarded in De-
cember or January, and production has commenced
in February or March. For the last several years, pro-
duction has been based on a 6-hour workday and has
continued for approximately 27 weeks.2
IPertinent portions of the Regional Director's Decision and Direction of
Election have been attached hereto as an appendix
The 26 to 28 positions in the operation are filled by
unskilled employees hired predominantly from state
unemployment rolls. They are utilized solely for
"Char-B-Que" work, perform all of the work con-
nected therewith except painting but including ship-
ping from a separate shipping area, and are terminat-
ed at the conclusion of the contract run, except for
several who are terminated after taking inventory.
Inasmuch as no skills or previous experience is neces-
sary, the Employer makes no attempt to recall for-
mer employees, does not keep records of former em-
ployees who may be interested in rehire, and gives no
hiring preference to former employees.
Some former employees have been rehired, how-
ever, primarily through the state unemployment rolls.
In 1978, there were 11 rehires included in the approx-
imateiy 54 employees hired to fill the 26 to 28 "Char-
B-Que" operation positions and who worked for pe-
nods ranging from 2 to 27 weeks. Of those I I, how-
ever, only 4 had worked during the 1977 contract
run. In 1977, out of 69 employees hired and who
worked for periods of time varying from 2 to 27
weeks, 9 were rehires, but again only 4 had worked
the previous season. In 1976, 9 of the 45 employees
hired were rehires, but only 3 of them had worked
the previous reason. Thus, 17.26 percent of the em-
ployees hired for the operation during the past 3
years were repeaters, but, of those repeaters, only one
who worked in 1978 and two who worked in 1977
were employed both in the previous year and in I
year prior thereto.
The "Char-B-Que" work, essentially an unskilled
assembly operation, is housed in a building which
also houses certain other of the Employer's opera-
tions. It is performed, as are all of the Employer's
operations, under separate immediate supervision,
subject to the general direction of the plant manager
who also has responsibilities with regard to certain
other operations. The employees sought punch a
timeclock and receive the same benefits (except
profit sharing) as do most of the Employer's perma-
nent employees. In addition, they are paid wages
comparable to those paid the Employer's permanent
unskilled employees and, in the sense that unskilled
functions generally are comparable, perform work
comparable to that performed by the permanent
unskilled employees. Except for four "Char-B-Que"
employees who have attained permanent positions
with the Employer during the past 6 years, there has
been no employee interchange from the "Char-B-
Que" operation into the Employer's other operations.
Such functional and operational integration as has
occurred has been into the "Char-B-Que" operation
: Prior thereto. the uorkday wlas 8 hours. and production continued for
16 19 weeks
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and consists of a painter who routinely performs his
function for all of the Employer's operations; the
sporadic and infrequent assignment of a few perma-
nent employees to "Char-B-Que" work during emer-
gency situations; the performance of such work by
permanent employee Sampoli in December 1977 and
on sporadic occasions when he had no work; and the
performance of an interim production run in Decem-
ber 1977, between the 1977 and 1978 seasons, by the
painter, Sampoli, possibly another permanent em-
ployee, and a few newly hired employees who were
retained for the next season.
The Regional Director has correctly set forth the
general principles applicable to the unit placement
issues but nevertheless has concluded that the "Char-
B-Que" employees are drawn from the same labor
market area and, hence, have sufficient interest to
warrant the conclusion that they have a community
of interest and are eligible to vote. We disagree with
his conclusion that said employees in fact are drawn
from the same labor market.3 We also find that he
has not given appropriate weight to the fact that, as
previously set forth, few of the disputed employees
return from year to year. In view of the source from
which the "Char-B-Que" employees are drawn; the
Employer's policies of not attempting to recall for-
mer employees, not giving hiring preference to for-
mer employees, and not maintaining records con-
cerning former employees who may be interested in
rehire; the insubstantial number of former employees
rehired and the very insubstantial number of former
employees rehired from year to year; the separate
immediate supervision over the employees involved-
who also perform work which is separate and distinct
from other of the Employer's operations; the mini-
mal degree of functional and operational integration
and employee interchange; and the termination of
the employees at the conclusion of the production
year, we find that the "Char-B-Que" employees are
temporary employees without a reasonable expecta-
tion of substantial future employment from year to
year. We find, therefore, contrary to the Regional
Director, that these employees do not possess suffi-
cient interests in employment conditions to warrant
their inclusion in the unit.4
As noted supra, Petitioner has stated that it will not
participate in an election unless the "Char-B-Que"
employees whom we have excluded are included in
the unit. Accordingly, we shall dismiss the petition
before us.
3 Contrary to the Regional Director, we find that a statewide group of
unemployed people is so vast and everchanging as to preclude it from being
classified as an identifiable labor market area from which the Employer
"draws the same labor force."
4Cf. Knapp-Sherrill Company, 196 NLRB 1072, 1075 (1972).
ORDER
It is hereby ordered that the petition filed in Case
22-RC-7519 be, and it hereby is, dismissed.
APPENDIX
The Char-B-Que Employees.
A Char-B-Que is a specific type of electronic grill
which is manufactured, painted and packaged by the
Employer, pursuant to a contract with Contempra
Industries. For each of the past six years, the Em-
ployer has successfully bid for a contract with Con-
tempra Industries to perform the Char-B-Que opera-
tion. The contract specifies a set number of grills to
be manufactured, rather than a time duration for the
operation. The practice has been that the Employer
has bid for the contract in November or December,
been awarded the contract in December or January
and commenced production in February or March.
The production has continued for from 16 to 19
weeks, based on an eight-hour workday; production
extended to 27 weeks in 1977, when the workday was
shortened to six hours. In 1978 as in 1977, the Em-
ployer has shortened the workday for the majority of
the Char-B-Que employees to a six-hour shift and it
now projects that it will complete the 1978 produc-
tion run in August. In approximately November or
December 1977, long after performance of the 1977
contract was completed and prior to the award of the
1978 contract, Contempra Industries contracted for
an interim small production run of Char-B-Que grills
which the Employer made by utilizing its year-round
production staff which was augmented by hiring a
few employees, some of whom were retained for the
performance of the 1978 Char-B-Que contract. The
Char-B-Que operation employees are hired predomi-
nantly from state unemployment rolls. No attempt is
made to recall former employees, nor is any record
kept of former employees who may be interested in
rehire. No special skills or prior experience are re-
quired and no preferences are given to former em-
ployees.
The Employer's payroll records show that four of
its current Char-B-Que employees were employed by
the Employer last year in Char-B-Que production;
severn additional Char-B-Que employees who had
worked in 1978 before they were laid off, also
worked for the Employer in prior years. In 1978, ap-
proximately 54 employees worked for between 2 to
27 weeks to fill the approximately 26 to 28 employee
positions in the Char-B-Que operations. Of these 54
employees, I 1 previously worked for the Employer in
the Char-B-Que department. In 1977, out of 69 em-
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UNITED TELECONTROL ELECTRONICS
ployees hired to fill the 26 to 28 Char-B-Que posi-
tions, 9 had been previously employed by the Em-
ployer as Char-B-Que employees and, in 1977 they
worked for periods of time varying from 2 weeks to
27 weeks. In 1976, out of 45 employees hired for the
26 to 28 Char-B-Que positions, 9 had been previously
employed by the Employer in Char-B-Que opera-
tions and they worked periods of time varying from 2
weeks to 22 weeks in 1976.
As of the time of the hearing, there were approxi-
mately 4 Char-B-Que employees who work eight
hours a day; the remainder work approximately five
hours a day. All are paid the same relative pay rates
as are the other unskilled employees of the Em-
ployer, that is, $3.00 per hour to $5.00 per hour. The
Employer's year-round employee complement re-
ceives benefits which include paid vacations, Blue
Cross-Blue Shield Medical Benefits, life insurance,
profit-sharing and paid holidays. The full-time Char-
B-Que operation employees receive the same benefits
except for profit-sharing. The part-time Char-B-Que
operation employees receive no benefits except for
paid holidays. Some Char-B-Que operation employ-
ees moved from full-time to part-time work and lost
all benefits but paid holidays. The record does not
disclose whether the Employer has other part-time
employees. The Char-B-Que employees punch a
timeclock, as do most of the Employer's year-round
employees.
In order to stock the line, the full-time Char-B-Que
employees were hired several weeks before the Char-
B-Que assembly line commenced production. They
perform the same assembly work as do the part-time
Char-B-Que employees when the Char-B-Que assem-
bly line is functioning, as it is between 5 and 6 hours
daily. In addition, they perform receiving and mate-
rial handling functions for the Char-B-Que opera-
tions, such as bringing components from the ware-
house to the line and feeding these parts to the line as
needed. It is anticipated that all Char-B-Que employ-
ees will be laid off in approximately August 1978
when the contract is completed, although the full-
time employees will be retained for an extra week to
take inventory of the Char-B-Que supplies.
The Char-B-Que employees were hired by the Em-
ployer's plant manager, assisted by a personnel em-
ployee. Both were instructed by the president of the
United Telecontrol Electronics, Inc. to tell the Char-
B-Que employees at the time of their hire that they
were being hired as tempoarary employees to per-
form a specific contract and that the duration of
their employment would be until June or July 1978.
The record reveals no evidence that these employees
have ever been so informed or that they may or may
not be recalled from layoff. However, the record
does reveal that the plant manager informed employ-
ees that he would try to keep three or four of the best
Char-B-Que employees throughout the year if there
was work available.
The Employer has assigned the Char-B-Que work
to its U.T.E. Consumer Products section where it is
performed in a building in which several other
U.T.E. products are also made. However, the Char-
B-Que operation has its own shipping area.
The record reveals that, in emergency situations,
the Employer's year-round employees are assigned to
perform Char-B-Que work and that four Char-B-Que
employees, over the past several years, have been
transferred to year-round positions. Further, one em-
ployee, a painter, routinely performs painting work
for all facets of the Employer's operations, including
Char-B-Que. Another year-round employee per-
formed Char-B-Que work for approximately one
month in late 1977 and has continued to perform
such work periodically to date whenever year-round
work was slow.
The Char-B-Que operations are under the direc-
tion of the Employer's plant manager who also di-
rects the U.T.E. Consumer Products, Inc. machine
shop, maintenance crew and material control em-
ployees. The Char-B-Que operation has separate im-
mediate supervision as do each of the other U.T.E.
operations.
The Board has held that employees, who are
drawn from the same labor market area each year to
perform seasonal work and who have a substantial
expectation of substantial future employment, have a
sufficient interest in employment conditions to justi-
fy their inclusion in a unit with year-round employ-
ees.3 In that case, the Board noted that 19 of the 29
seasonal employees had worked 2 months or more in
the previous year and that at least 10 of the 29 had
worked for the employer in that case in preceding
years. In a later case 4 the Board held that where
there is a relatively stabilized demand for, and de-
pendence on, a group of seasonal employees and,
likewise, a reliance on such employment by a sub-
stantial number of employees in the labor market
who return to work each season, those seasonal em-
ployees share sufficient interest in employment con-
ditions with the other employees to warrant their in-
clusion in the unit. In that case, approximately
one-third of the seasonal workers had worked the
previous year, all seasonal employees came from the
immediate vicinity of this Employer's operations and
all performed substantially the same work as the
other employees under the same supervisors. The
3 P. G. Gray, 128 NLRB 1026 (1960).
4Kelley Brothers N'urseries, Inc.. 140 NLRB 82 (1962). See also Millbrook,
Inc., 204 NLRB 1148 (1973).
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board has included seasonal employees in an overall
unit although no recall list is maintained; the signifi-
cant factors in this regard are whether or not a pat-
tern exists as to the number of employees returning
each year and whether or not the employer draws
from the same labor market each year.5 In another
case, the Board held that seasonal employees who
were paid on a different basis than, and do not re-
ceive the same fringe benefits as, the other employees
do and who were each given an identification card
stamped "Temporary Employee" because they work
"only on a need basis" should not thereby be exclud-
ed from a unit of year-round employees. 6
In the instant case, the Char-B-Que operation is
not the only one performed by the Employer as a
result of its obtaining a contract pursuant to bidding
5Baumer Foods, Inc., 190 NLRB 960 (1971). See also Knapp-Sherril Corm-
pany, 196 NLRB 1072, 1075 (1972).
The Julliard School, 208 NLRB 152 (1974).
procedures. Further, it has done Char-B-Que work
on a seasonal basis for the past six years and, last
year, it had a special production run of Char-B-Que
grills in the late fall.
Based upon the foregoing and the record as a
whole, noting that the Char-B-Que operations are
seasonal, that the Employer draws from the same la-
bor force area each year to perform these operations,
that a number of the Char-B-Que employees return
each year, that some have obtained employment as
year-round employees, and that they work under the
same overall supervision as do the year-round em-
ployees in the same building with them doing sub-
stantially the same type of work, I find that the Char-
B-Que employees are seasonal employees who share
sufficient interests in employment conditions to war-
rant their inclusion in a unit with the year-round em-
ployees.'
7 The Julliard Schoo, supra. See also The Wackenhur Corporation, 224
NLRB 1142.
1060