Pen Mar Packaging Corporation

National Labor Relations Board - Board Decisions

May 13, 1982

261 N.L.R.B. 874 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pen Mar Packaging Corporation and Teamsters,
Chauffeurs, Warehousemen & Helpers Local
#453 a/w the Interntional Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Petitioner. Case 5-RC-
11640
May 13, 1982
DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, a three-
member panel has considered a determinative chal-
lenge to an election held on October 21, 1981,1 and
the Hearing Officer's report recommending disposi-
tion of same. Having reviewed the record in light
of the exceptions and brief, the Board hereby
adopts the Hearing Officer's findings only to the
extent consistent herewith.
The ballot of Robert Blucker was challenged by
the Board agent conducting the election. The Em-
ployer contends that Blucker was a temporary em-
ployee who lacked sufficient community of interest
with unit employees to be an eligible voter. The
Petitioner contends that Blucker was a regular
part-time employee who had a reasonable expecta-
tion of becoming a regular full-time employee.
Blucker admitted in his testimony that he and
employee Ed Jones were hired by the Employer
on July 14, 1981,2 with the express understanding
that they would work only for the summer months,
with no possibility of permanent employment.
Blucker and Jones were hired primarily to perform
tasks which did not require specialized training, but
they did occasionally fill in for full-time employees.
Jones and Blucker were paid $4 per hour, whereas
all full-time employees were paid $5.40 per hour.
They also did not receive the hospitalization bene-
fits or the uniform which the regular force re-
ceived.
The election eligibility date was August 27. In
early September, Jones quit and returned to col-
lege. Blucker continued to work because the Em-
ployer had more work than expected and because
the Employer and the Petitioner had agreed, prior
to signing the stipulation in mid-September, for an
election, that Blucker would not be laid off until
after the election. At this time, Blucker, who still
admittedly considered himself a temporary employ-
' The election was conducted pursuant to a Stipulation for Certifica-
tion Upon Consent Election. The tally of ballots was six votes for and six
against the Petitioner, with one challenged ballot. The challenged ballot
was sufficient in number to affect the results of the election.
2 All dates hereinafter refer to 1981.
261 NLRB No. 127
ee, began making inquiries about whether he could
get a permanent position. On approximately Sep-
tember 25, the Employer's production manager in-
dicated to Blucker that permanent employment was
a possibility. On November 9, almost 3 weeks after
the election, Blucker was terminated.
The Hearing Officer found that Blucker was
hired on the express condition that he was to leave
as soon as the busy summer season ended. Since
Blucker continued to work until November,
worked the same hours and occasionally performed
the same jobs as regular employees, and at the time
of the election had no definite or contemplated
date of termination, the Hearing Officer further
found that Blucker was a regular part-time employ-
ee who shared a sufficient community of interest
with other unit employees. Accordingly, the Hear-
ing Officer recommended overruling the challenge
to Blucker's ballot. We do not agree with this rec-
ommendation.
It is established Board policy that a temporary
employee is ineligible to be included in the bargain-
ing unit3 and that an employee's eligibility status is
determined by his status as of the eligibility payroll
date. 4 Here, it is clear that Blucker was hired as a
temporary employee inasmuch as he was informed
that he was being hired only for the summer with
no expectancy of permanent employment. Contrary
to the Hearing Officer, we find the prospect of ter-
mination at summer's end to be sufficiently finite to
dispel reasonable contemplation of continued em-
ployment after that season. There is no evidence to
indicate that Blucker's employment status changed
between the time he was hired and the eligibility
date of August 27. Indeed, Blucker testified that as
of early September he still considered himself to be
a temporary employee. We, therefore, find that
Blucker was a temporary employee as of the deter-
minative August 27 eligibility date. It is irrelevant
that due to unforeseen circumstances Blucker sub-
sequently worked until November and may have
even been considered for a permanent position, be-
cause such events occurred after the eligibility
date.
Based on the foregoing, we find Blucker to be a
temporary employee who does not share a commu-
nity of interest with any of the unit employees. Ac-
cordingly, we shall sustain the challenge to
Blucker's ballot and issue a Certification of Results
of Election.
I See Hygeia Coca-Cola Bottling Company, 192 NLRB 1127 (1971);
Owens-Corning Fiberglass Corporation, 140 NLRB 1323 (1963); and E. F
Drew & Co.. Inc., 133 NLRB 155 (1961).
4 Belcher Towing Company, 122 NLRB 1019 (1959).
874
PEN MAR PACKAGING CORPORATION
CERTIFICATION OF RESULTS OF
ELECTION
It is hereby certified that a majority of the valid
ballots have not been cast for Teamsters, Chauf-
feurs, Warehousemen & Helpers Local #453 a/w
The International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, and that said labor organization is not the ex-
clusive representative of all the employees in the
unit herein involved, within the meaning of Section
9 (a) of the National Labor Relations Act, as
amended.
875