Daniel Ornamental Iron Co., Inc.

National Labor Relations Board - Board Decisions

Feb 7, 1972

195 N.L.R.B. 334 (N.L.R.B. 1972)

334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Daniel Ornamental Iron Co., Inc. and Shopmen's Lo-
cal Union #539 of the International Association of
Bridge, Structural & Ornamental Iron Workers,
AFL-CIO, Petitioner . Case 10-RC-8870
February 7, 1972
DECISION ON REVIEW
BY MEMBERS FANNING, JENKINS, AND KENNEDY
On October 8, 1971, the Regional Director for Re-
gion 10 issued a Decision and Direction of Election in
the above-entitled proceeding, in which he found ap-
propriate, and directed an election in, the Petitioner's
requested unit of production and maintenance em-
ployees at the Employer's Birmingham, Alabama,
plant, including, inter alia, certain intermittently em-
ployed welders as the equivalent of regular part-time
employees, if they met an eligibility formula devised by
him. Thereafter, in accordance with Section 102.67 of
the National Labor Relations Board Rules and Regula-
tions, Series 8, as amended, the Employer filed a timely
request for review of the Regional Director's decision
on the ground that in not excluding from the unit all
part-time welders as casual employees, he departed
from officially reported precedent. On November 4,
1971, the National Labor Relations Board by tele-
graphic order granted the request for review and stayed
the election pending decision on review.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Board
has delegated its authority in this proceeding to a three-
member panel.
The Board has considered the entire record in this
proceeding with respect to the issues under review and
makes the following findings:
As found by the Regional Director, the Employer is
engaged in fabricating ornamental iron, and at times its
business increases to the point where even with over-
time its regular full-time welder mechanics merely have
time to lay out the ornamental ironwork. When this
occurs the Employer makes use of a pool of some 27
welders, fully employed elsewhere, to complete this
work after day-shift operations end.' They do not work
any fixed schedule of hours, may work so many hours
as they wish, and when they work are unsupervised.
Nor do they receive any of the fringe benefits provided
for full-time employees. However, a number of such
welders, as revealed by the record, have histories of
substantial employment in this capacity by the Em-
ployer.
The record indicates that, aside from the pool of part-time welders, the
Employer employs 20 regular full-time welder mechanics, 4 truckdnvers, 6
to 20 laborers, 2 painters, and I part-time maintenance employee
The Regional Director rejected the Employer's con-
tention that all part-time welders are casual employees,
and he devised a formula whereby their inclusion in the
unit and eligibility to vote would be predicated on their
performance of some work for the Employer in at least
two calendar quarters of the year preceding October
1971 and in the period beginning July 1, 1971, to the
payroll period immediately preceding October 8, 1971,
the date he issued his decision. The parties had not
proposed any formulas of their own.
The Employer in its request for review contends that
the Regional Director erred in not excluding from the
unit all of the welders in question as casual employees.
In view of the fact that some of these welders have
substantial histories of employment by the Employer
and when employed perform work similar to that done
by regular full-time welder mechanics , we find no merit
in this contention.2
However, we believe that the eligibility formula de-
vised by the Regional Director is too broad as it could
confer eligibility on an employee who had worked as
little as 2 days in a 1-year period. Selection of an eligi-
bility formula for the part-time welders depends on a
careful balancing of the factors of length, regularity,
and currency of employment giving due regard to the
industry involved.' The Employer's principal custom-
ers are in the housing and construction industries, and
because of the seasonality of those industries business
usually experiences a slack period in the fall of the year,
beginning in September or October, during which
period its need for the part-time welders drops sharply.
In cases involving year-round operations with fluctuat-
ing need for extra or on-call employees, the Board has
found it equitable to include in the unit, on the basis of
available records of employment, all extra or part-time
employees who had worked a minimum of 15 days in
the calendar quarter preceding the eligibility date,` rea-
soning that devoting that much time to unit work evi-
denced a substantial and continuing interest in the unit.
Further, where such fluctuating need shows a seasonal
pattern-as in the instant case-and the timing of the
election may tend to exclude employees with substan-
tial records of employment during peak periods, the
formula has been modified to include employees who
worked a minimum of 15 days in either of the two
See Fresno Auto Auction, Inc., 167 NLRB 878, 879, Scoa, Inc., 140
NLRB 1379, 1381, Motor Transport Labor Relations, Inc., 139 NLRB 70,
72 See also N.L.R.B. v. Atkinson Dredging Company, 329 F 2d 158, 162
(C.A. 4) The case of Haag Drug Company, Incorporated, 146 NLRB 798,
relied on by the Employer, is inapposite as there the part-time employee
involved was not shown to have had a history of substantial part-time
employment
C.T.L Testing Laboratories, Inc., 150 NLRB 982, 985.
See Scoa, Inc, supra Motor Transport Labor Relations Inc., supra As
the Employer has a substantial year-round complement of regular full-time
employees , there are lacking some of the considerations which justify adop-
tion of more liberal eligibility standards in operations where the unit comple-
ment is made up predominantly of intermittent employees.
195 NLRB No. 55
DANIEL ORNAMENTAL IRON CO.
3-month periods immediately preceding the date of is-
suance of the direction of election.' We find the latter
formula appropriate herein. Therefore, part-time em-
ployees satisfying this criterion in either of the two
3-month periods immediately preceding the date below
shall be eligible to vote.
Accordingly, we shall remand the case to the Re-
gional Director for the purpose of conducting an elec-
tion pursuant to his Decision and Direction of Election,
as modified herein, except that the payroll period for
' C.T..L Testing Laboratories, Inc. supra; Robert W Hunt Company,
Inc, 150 NLRB 986
335
determining eligibility shall be that immediately
preceding the date of issuance.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 ad-
dresses which may be used to communicate with them . Excelsior Underwear
Inc, 156 NLRB 1236, NL.R.B. v Wyman-Gordon Co, 394 U.S 759
Accordingly , it is hereby directed that a corrected 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 10 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.