Workshop Incorporated

National Labor Relations Board - Board DecisionsDec 14, 1979

246 N.L.R.B. 962 (N.L.R.B. 1979)

I)t-.(ISIONS OF NA'I IONAI. I.,ABOR REKI.AII()NS BOARI) The Workshop. Ilncorporated, Employer-Petitioner and lcwal 200, General Services FmploIoees UJnion, SEII , AFI,-CIO. ('ase 3 U(' 137 Diecember 14, 1979 DECISION ON RF VIEF\ AN) ORI)ER By ('tAIRSts I \ANNI N(i AND) MI\1 lI RS JI:NKINS ANI) IR I Sl)A I:i On September 14. 1978, the Regional I)irector Ior Region 3 issued a DIecision, Order and C(larilicatit n of Bargaining Unit in the ahove-entitled proceedilng in which he e chluded ('TA employees from a unit of the Empl(o er's emiplo \ ees. 1 'Ihereafter, in accorda nce with Section 102()67 of' the National I.abor Relations Board Rules and Regulations, Series 8, as amended. the nion filed a tiniiel requ est tfor review 'f the Re- gional D)irector's decision on grounds that he made finding s o' fact w hich are clearl\ erroneous and that he departed from officiall\ reported precedent. tb telegraphic order dated November 29. 1978. the Board granted the nion's request f'or review. Pursuant to the provisions oft Section 3(b) of' the National I.abor Relations Act, as amended, the N a- tional I ahor Relations Board has delegated its au- thorit\ in this proceeding to a three-member panel. The Board has considered the entire record in this case and makes the fillowing findings: As reported in the Regional D[irector's I)ecision is- sued on September 14. 1978: The investigation disclosed that the indlivid- uals employed under the CETA program are re- ferred to the Employer through the New York State Employment Service but CETA sets the eligibility standards for selection of such persons. CETA employees have a normal job tenure of 12 months. The ('ECFA employees are paid by the Employer with federal funds disbursed by the lo- 'IThe Ulnion was certified in the unit described below on D)ecember . 1977 See 233 NLRB 237 (1977)1: Voring (Group B All regular full-time and regular part-time emplosees of' the Employer, including hourly supervisors, teacher's aide, mainte- nance aide, warehouse aide, truckdriver. bxokkeepers. secretaries and recepnionists but e.cluding all professional employees. the sales engi- neer, general production supervis)r. salaried production supervisors. su- pervlslr of food services, warehouse supervisor. maintenance supervi- wsor eecutive director. assistant executive director. director of professional services, director of' production and training, office man- ager, assistant office manager, assistant production manager. adminis- tralive assistant, administrative secretary. production control supersi- sors. nd all managerial employees. confidentia emploees. guards, and supervisors as defined in the Act. the mployver-Petiltner proposes to clarif'y the bargaining unit bv ex- cluding: and all persons employed at The Workshop, Inc., who have been as- signed Io I he Workshop Inc. under the (Comprehensise Emplosment lraining Act and whose w:ages are reimbursed to he Workshop. Inc hby prime sponsors under the said ('omprehensie mplo nient Training Act. cal count,, ('FIA administration (T'11A lfund- ing is handled on a contract basis fr a specific period of' time. The ('ETA employees are paid a salar comparable to that of the Employer's other ermplo ees and receive the same benefits same hours of work, hlidays and vacations. The parties agreed onl negotiations in Article 24- Wages, to exclude (' LI'A employees from the 5';,: negotiated wage increase. he ('Ef'IA emplo\ees havie access to a special grievance procedure once the contract grievance man;chiner\ is ex- hausted under the regulations and guidelines adopted hby the U.S. l)epartment of Labor.' The Regional D[irector found thlat the B,30ard has consistentlv e.clulded from the hargaining utit those indi iduals wsho :are cImploqed under ('t. 1A pro- grams.' In its reqrest for review. the 'nion contends. itlc'r alia. that there is no discernible difference in the conditions of' ('E'A employees and other bargainin unit employees: that they are suhject to the same regulations., supervision. and policies of' the workshop as other bargaining unit emploNees: and Ihat they share the same colnmmunit ofl interest and should therefore continue to be included in the present bar- gaining unit. We find merit in the Union's position. In Zlon ['a1ley Lev 'nic'd Itela/th ,Sc'vricc.. hnc..4 issued on September 29. 1978. shortly atter the Regional I)i- rector issued his decision herein, the Board included Manpower employees in a unit of' the Employer's regular work force because "these employees [havel substantially the same communitN ot interest as do the other employees involved in this proceeding." In so finding, the Board relied on the fact that "their wages. fringe benefits, and working conditions are identical to those of the Frmployer's regular employ- ees." In addition, the Board found that the Man- power employees' indefinite length of employment due to financial constraints facing the Manpower pro- grams is not a sufficient basis for excluding the Man- ? [he (ETA emplo)ees are funded under I tle VI. Emergenct Jobs Pro- gram of the (omprehensive Employment and Training Act As also reported by the Regional Director. the parties entered into a collectile-bargaining agreement on Jul: 5. 1978 D)uring negotiations of that contract, the 'm- ployer-Pelttioner proposed that the employees employed at the Employer's racllity under ('CEIA funding be e.cluded from the bargaining unit. The parties did not reach agreement on that issue in negotiatins. hut the Em- ploer e.pressed its intention to pursue the issue vith the National l.abor Relations Board. his intention as eident in "Article 23. Estoppel Clause." below: ARIIt I 2? ISIOPP I ( I Al S1 Neither the making of this co,ntract or ans of the provisions thereof. shall be construed as a walser oit the exclusion from the unit of an employees assigned to The Workshop. Inc from (ElA it the National Labhor Relations Board orders such exclusion at a later date. The ClarA (ounri Mental Health Center. d h/a he r enta/ Health and Frmih Seriei (enter. 225 N I.RB 78X( 11976): The Kent (oun 4 iniatitl, /or Retarded (iri:eni d/b/a J rrthur Trudeau (enter. 227 NIRB 1439. 1440 (1977): .Naionarl G South In ttr a[. dhiu : emnrrtal Ifcldial, 20 NI.RB 976 ( 19771 4238 NL.RB 916. 246 NlRB No. 145 962 tilli \O)RKSHOP. IN(')RP)R X Il) power emplo ees from the hargaining unit. The Board noted that the assi mil tin o tile unemiplo ed and underemplosed into the Nation's work lorce is a fundamental a;im of' Manlpover progra ms in general land thatj no usetul purpose \ %ould he] served h\ excluding such emlplo ee, plarticularl\ in lighl of tilhe substantial work interests the share .ith other unit emplo\ees." W' further note that in M1o I llc the Board ackno),l edged that. "in the past lit had] e.cluded emploees who ere in, olved in similar training programs... . It is clear that the (11I A emplo ees here. like hte Mlanpo\ver enIplo cos i lhin I 1/cl. slhare a ihst.ii- tial ork interest ith other unit emlplo. ecs. I hu,, S.. 2 s1 N R .,t ' the C[ I'A emplosees are paid a sa lar con mparahle to that of the emploer's other e plo>,ees and the\ re- cei ve te same bencfits an d \%ork the sa e hours. We tilld IIo clrcLlIl.tAlnces here tlhat require tli te llit he clarified to c.ciude the ('1 A\ c mplo ccs. Nor do .e see a usetill purpose served hb' .cludiTg slluch e1m- plo ees. Accordlinigl \c finld no merit in the 1Fm- plovyer- Ptitioner's petition to claril t e unit h ex- eluding the CETA emplo\ecs and we shall den' it." ()1) R It is llcelb\ Odered thi tltl petition bhe ;nd it herlb. I,,. denied. S', I ......... / , ,,,; , ,,, , '44, M R[i 964 1 9`6