Saratoga County Chapter NYSARC

National Labor Relations Board - Board Decisions

Jul 28, 1994

314 N.L.R.B. 609 (N.L.R.B. 1994)

609
314 NLRB No. 108
SARATOGA COUNTY CHAPTER NYSARC
1 1The hearing officer inadvertently placed the tally for the ‘‘chal-
lenged ballots’’ next to the line for ‘‘valid votes counted.’’ The tally
set forth above is the correct tally.
2 Kathryn Prunier, who substituted as a bus driver, was challenged
by the Board agent because her name did not appear on the eligi-
bility list. The Regional Director, in his report on challenged ballots,
recommended that the challenge to her ballot be overruled. No ex-
ceptions were filed to the Regional Director’s recommendation, and
it was adopted in the Board’s October 22, 1993 decision.
3 Trump Taj Mahal Casino, 306 NLRB 294, 295 (1992).
Saratoga County Chapter NYSARC, Inc. and Com-
munications Workers of America, Local 1118,
AFL–CIO, Petitioner. Case 3–RC–9987
July 28, 1994
DECISION AND DIRECTION
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
The National Labor Relations Board, by a three-
member panel, has considered the determinative chal-
lenges in an election held June 18, 1993, and the hear-
ing officer’s report recommending disposition of them.
The election was conducted pursuant to a Decision and
Direction of Election issued by the Regional Director
on May 21, 1993. The tally of ballots shows 18 ballots
cast for, and 17 against, the Petitioner, with 5 chal-
lenged ballots,1 a number sufficient to affect the elec-
tion results.
The Board has reviewed the record in light of the
Employer’s exceptions and brief and makes the fol-
lowing findings.
The primary issue before the Board is whether the
four on-call substitute bus drivers, David Dudley, Ro-
land Dumas, James Mayette, and Susan Potter, worked
a sufficient number of hours during the period prior to
the election to demonstrate a community of interest
with the unit employees. The four ‘‘on-call’’ substitute
drivers were challenged by the Employer on the basis
that they are irregular part-time or casual employees
lacking a sufficient community of interest with the unit
employees to be eligible to vote in the election. The
hearing officer found that they were eligible to vote on
the basis that they averaged at least 4 hours of work
per week during the calendar year prior to the election.
We do not agree with the formula used by the hearing
officer and conclude, on the basis of the formula we
find applicable, that none of the four employees was
eligible to vote.
The Employer, Saratoga County Chapter NYSARC,
Inc., is a not-for-profit social services agency that pro-
vides educational, vocational, residential, and custodial
services to persons with mental retardation and devel-
opmental disabilities. Within its organizational struc-
ture, the agency’s transportation department is respon-
sible for transporting its client population to and from
work and treatment sites.
The Petitioner seeks to represent a unit of all full-
time, part-time, and substitute bus drivers, monitors,
mechanics, and the dispatcher employed in the Em-
ployer’s transportation department. At the time of the
election, the transportation department had approxi-
mately 43 employees.
As a supplement to its regular drivers, the Employer
uses ‘‘on-call’’ substitute drivers.2 The on-call sub-
stitutes all work as full-time bus drivers for the area
school districts. They are called to work by the Em-
ployer on an as-needed basis to cover for regular driv-
ers who are absent. They are usually available to drive
for the Employer only when the public school district
is not in session. Specifically, they are available in the
summer from the latter part of June to the early part
of September, for a period of about 2 weeks over the
Christmas–New Year’s holidays, and for a period of
about 1 week in about February and 1 week in about
April.
The Employer recruits its on-call substitute drivers
from the five public school districts in the area by
posting its request or by notification to the districts’
transportation managers. Dudley, Dumas, and Mayette
were recruited in the summer of 1992, while Potter
was recruited in the summer of 1990.
Because the on-call substitutes are employed on an
as-needed basis to cover for planned and unplanned
absences of regular drivers, they can decline work op-
portunities without consequence. Conversely, there is
no guarantee of work opportunities made to them. The
on-call drivers receive no fringe benefits and work at
the lowest wage rate maintained by the Employer with
no wage increase for seniority.
In determining whether on-call employees who per-
form work should be included in the bargaining unit,
the Board considers the regularity of their employment.
Employees are considered to have been regularly em-
ployed when they have worked a substantial number of
hours within the period of employment prior to the eli-
gibility date. Under the Board’s longstanding and most
widely used test for voter eligibility in these cir-
cumstances, an on-call employee is found to have a
sufficient regularity of employment to demonstrate a
community of interest with unit employees if the em-
ployee regularly averages 4 or more hours of work per
week for the last quarter prior to the eligibility date.
Davison-Paxon Co., 185 NLRB 21 (1970). Although
no single eligibility formula must be used in all cases,
the Davison-Paxon formula is the one most frequently
used, absent a showing of special circumstances.3
The hearing officer found that application of the for-
mula set forth in Davison-Paxon would not account for
the demand patterns of the employer that concentrate
on-call hours during the summer. He found that using
the usual Davison-Paxon formula would exclude em-
ployees who had substantial records of employment
610 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Accordingly, we find distinguishable C.T.L. Testing Laboratories,
150 NLRB 982 (1965), and Daniel Ornamental Iron Co., 195 NLRB
334 (1972), both of which addressed the status of casual employees
in a seasonal industry in which peaks and valleys of overall employ-
ment are the norm.
5 During the 13-week period prior to the May 14, 1993 eligibility
date, Dudley averaged 3.4 hours of work per week; Dumas averaged
1 hour of work per week; Mayette averaged 1 hour of work per
week; and Potter averaged 2.3 hours of work per week.
during the peak periods solely because of the timing
of the election. The hearing officer found that equity
dictates a modification of the formula. The hearing of-
ficer proposed that, in the special circumstances of this
case, a 4-hour-per-week average be used but that the
entire year prior to the eligibility date be taken into
consideration. Taking into consideration the entire
year, the hearing officer found that Dudley, Dumas,
Mayette, and Potter all averaged 5 to 6 hours of work
per week, thereby meeting the 4 hours-per-week
threshold. The hearing officer thereupon recommended
that the challenges to their ballots be overruled.
The Employer contends that the challenges to the
ballots of Dudley, Dumas, Mayette, and Potter should
be upheld because: (1) they did not work a sufficient
number of hours under the Davison-Paxon guidelines;
and (2) the average number of hours they worked es-
tablishes that they are, at best, irregular part-time em-
ployees.
In disagreement with the hearing officer, we find
that there is no showing of special circumstances here
which would warrant not applying the Davison-Paxon
eligibility formula. The on-call drivers are used to sub-
stitute for absent drivers. The Employer needs the
same number of drivers throughout the year to fulfill
its obligations to the client population it serves. Thus,
the need for substitutes is determined entirely by the
number of employees who are absent as a result of va-
cations or illness. While the record is somewhat un-
clear, it appears that the Employer experiences an in-
creased demand for substitutes during the summer
months while unit employees are on vacation. In these
months, the substitute drivers are available because
they are not required to drive for the school districts
where they are employed during the rest of the year.
During that period, there is a convenient confluence
between the Employer’s demand and the on-call em-
ployees’ availability and neither seems to be the con-
trolling factor as to how many hours the on-call em-
ployees work. For the rest of the year, the on-call em-
ployees will work for the Employer to the extent that
they are needed to substitute and they are available.
Thus, at all times, the on-call employees will work for
the Employer based on these two factors. It is simply
that these two factors tend to be highest during the
summer months.
Contrary to the hearing officer, we do not find that
these facts are evidence of special circumstances that
warrant modification of the Davison-Paxon formula.
We have found that the Employer’s overall require-
ment for drivers does not fluctuate. Thus, although it
is clear that the Employer has an increased need for
substitute drivers during the summer vacation period,
we have found that its requirement for the on-call sub-
stitute drivers is determined entirely by the number of
regular drivers who are absent as a result of vacations
or illness.4 In this circumstance, far from being a spe-
cial case, the Employer is in no different situation
from any other business that permits employees to con-
centrate their vacations during the summer months and
hires temporary help to fill in during these absences.
Accordingly, we find that the Davison-Paxon formula
applies here. We further find that under that formula
the four on-call substitutes are ineligible to vote in the
election because they did not work the requisite 4
hours per week for the last quarter prior to the eligi-
bility date.5 We therefore conclude that the challenges
to their ballots should be upheld.
DIRECTION
IT IS DIRECTED that this case is remanded to the Re-
gional Director for Region 3, who shall, within 14
days from the date of this Decision and Direction,
open and count the ballot of Kathryn Prunier and pre-
pare and serve on the parties a revised tally of ballots.
Thereafter, the Regional Director shall issue the appro-
priate certification.