By: Kenneth R. Dolin, Esq.
The Board recently reversed a Regional Director and found that four disputed home-based delivery and install employees did not belong in the contractual unit at the employer’s Grand Rapids, Michigan facility. It reasoned that the four disputed employees did not work at the Grand Rapids facility, were not covered by the recognition language contained in the CBA, and did not share an overwhelming community of interest with the Grand Rapids Service Technicians who were in the bargaining unit, even though they were assigned to pick up loads at the Grand Rapids facility where the unit employees worked. Thus, the Board clarified the unit to exclude these home-based delivery and install employees.
Unit clarification is the appropriate method for resolving ambiguity concerning the unit placement of employees who come within newly established classifications. A valid accretion exists only where the additional employees have little or no separate group identity and they cannot be considered to be a separate appropriate unit and when the additional employees share an overwhelming community of interest with the pre-existing unit to which they were accreted. See Safeway Stores, Inc., 256 NLRB 918 (1981). However, once it is established that a new classification is performing the same basic functions as a unit classification historically had performed, the new classification is properly viewed as “already belonging in the unit” rather than “being added to the unit” by accretion. Developmental Disabilities Institute, Inc., 334 NLRB 1166, 1168 (2001). See also Premcor, 333 NLRB 1365 (2001).
Since 2007, the employer had centralized all delivery and install functions in the Market Equipment Operation Center (MEOC) operation located first in Lansing and then in Flint, removing it from the Grand Rapids facility as well as 16 other locations. The Grand Rapids field service technicians had performed delivery and install functions, but had not done so since 1997. In November 2009, when the MEOC moved to Flint, it established the Grand Rapids drop and hook operation, and assigned the four disputed MEOC delivery and install employees to operate out of the Grand Rapids parking lot.
The disputed employees remained part of the MEOC operations; they kept the same supervisor, seniority opportunities, and wages and benefits, and continued to receive their assignments through the MEOC (not the call center which routed the field service technician assignments); performed their functions in a larger geographic service area; and attended meetings as needed in the Flint operation. The work of delivery and install employees had been completely separate from that of the Grand Rapids field service technicians since 1997, unlike the pre-1997 period when the field service technicians also performed delivery and install functions. Indeed, the Grand Rapids drop and hook delivery and install employees had remained part of the MEOC operations and the only change that had occurred was that the four disputed employees began picking up their loads in the Grand Rapids parking lot instead of at Flint.
The Regional Director had found traditional accretion analysis was unwarranted in these circumstances because the case did not involve “the placement of employees at the new facility who perform work that was never performed by employees in the existing bargaining unit.” Instead, he found (1) the delivery and install employees performed the same basic delivery and install functions that historically had been performed by unit employees at the Grand Rapids facility, in that employees at the Grand Rapids facility previously delivered and installed equipment as part of the unit work, and (2) the unit description in the CBA covering the facility had never been altered and continued to encompass the work assigned to the delivery and install employees, (3) this work had not changed such that it should be severed from the unit, and (4) the delivery and install employees shared a sufficient community of interest with the field service technicians who worked at the Grand Rapids facility to warrant inclusion. He concluded that the delivery and install work was not eliminated from the Grand Rapids operation, but was merely relocated from Grand Rapids to Lansing, and then returned to the Grand Rapids location and that the Board is reticent to overturn long-existing historical units.
Contrary to the Regional Director, however, the Board (Pearce, Hirozawa and Johnson) did not find the delivery and install employees belonged in the contractual unit because: (1) for the past 12 years, the delivery and install employees had been part of an operation based in a different location and not the Grand Rapids facility where the bargaining unit employees worked; (2) the delivery and install employees at issue had been historically excluded from the CBA for this 12-year period; and (3) the evidence failed to establish that the delivery and install employees had little or no separate identity from, or that they shared an overwhelming community of interest with, the Grand Rapids field service technicians in the bargaining unit.
The Board found significant the evidence that the delivery and install functions were removed from the Grand Rapids field service technician duties for 12 years. If the bargaining unit field service technicians had continued to perform delivery and install functions as part of the unit work for the past 12 years, it is possible, if not likely, that the Board would have applied Developmental Disabilities Institute to find the new classification as “already belonging in the unit,” as opposed to “being added to the unit” by accretion, irrespective of the “traditional” accretion standard.
This case is a good example of how employers confronted with an accretion issue must first determine whether the new classification “already belongs in the bargaining unit” because employees in that job classification are performing the same basic function that a unit classification has historically performed (Developmental Disabilities Institute, supra); and whether the unit description in the CBA encompasses the work at issue. If the answer to both of these threshold questions is no, then the employer should apply “traditional” accretion analysis and determine whether the additional employees should be added to the unit by accretion because they have little or no separate group identity and can be considered a separate appropriate unit or whether they share an overwhelming community of interest with the pre-existing unit to which they can be accreted. Significantly, however, this third question, i.e., the traditional accretion test, is irrelevant if the case involves the placement of employees at a new facility who perform work that was performed by employees in the existing bargaining unit.