04/23/2024: More Wright Line and American Steel
Exciting day for basic Board law.
Ski Lifts, Inc. d/b/a The Summit at Snoqualmie, 19-RM-338394 (Regional Election Decision)
The union sought to represent a unit of full-time seasonal ski instructors. The employer objected to the exclusion of part-time seasonal ski instructors from the unit. The regional director applied American Steel to conclude that the part-time seasonal ski instructors shared an overwhelming community of interest with the full-time seasonal ski instructors and that they should therefore be included in the unit.
Under Kelly Brothers Nurseries and Saltwater, Inc., seasonal employees are eligible to vote if they have a reasonable expectation of reemployment in the foreseeable future, which practically means that roughly 30 percent or more of them are rehired the subsequent season. Here, about 60 percent are rehired the subsequent season.
The regional director ordered an election in a unit of all ski instructors, with eligibility limited to those employed as of the eligibility date who worked at least 15 hours as instructors in either the 2023-2024 or 2024-2025 season.
DaVita West Elk Grove Dialysis, 20-RC-337173 (Regional Election Decision)
The union sought to represent single-facility units at two of the employer’s locations. The employer wanted to combine the two locations into one multi-facility unit.
Under Board law, there is a presumption that single-facility units are appropriate. To rebut the single-facility presumption, the opposing party must show that the day-to-day interests of the employees at the single location have merged with those of the employees at the other locations. Factors considered in determining whether the single-facility presumption has been rebutted include: centralized control over daily operations and labor relations, similarity of skills and functions, employee interchange, geographic proximity, functional integration, and bargaining history.
Applying these principles, the Regional Director found that:
While the facilities are subject to the same policies, the Facility Administrators at each facility have significant authority over daily operations and labor relations, including hiring, discipline, assignments, and scheduling.
Employees at the petitioned-for facilities do not perform the same home dialysis work or training as employees at other facilities in the Region.
There is no significant interchange of employees between the petitioned-for facilities and other facilities in the Region.
Geographic proximity favored a Region-wide unit, but this factor alone did not overcome the Employer's heavy burden.
There was no bargaining history.
Based on this analysis, the Regional Director concluded that the Employer failed to rebut the single-facility presumption and that the petitioned-for units were appropriate. He therefore directed mail-ballot elections in the petitioned-for units.
Navistar, Inc., JD-22-24, 07-CA-304439 (ALJ Decision)
The administrative law judge (ALJ) applied Murray American Energy to conclude that the union’s request for profit information from the company was relevant because it related to a profit-sharing plan for unit employees. The employer’s failure to furnish such information therefore violated Section 8(a)(5).
HSA Cleaning, Inc., 373 NLRB No. 46, 22-CA-298853 (Published Board Decision)
The Board affirmed the administrative law judge’s (ALJ) decision that the employer violated Section 8(a)(3) by discharging employees Jose Teran and Luis Varela for their union and protected concerted activities.
This is a very straightforward Wright Line case where the General Counsel showed (1) that Teran and Varela engaged in protected and union activity, (2) that the employer knew about the activity, and (3) that the timing of the firing as well as the pretextual reasons given for it show that the employer’s “animus toward the activity was a substantial or motivating reason for the employer’s action.”
The employer attempted to make the affirmative defense that it would have terminated Teran and Varela anyways for performance issues and because the employer was downsizing, but this defense was not persuasive. The employer’s claim that Teran and Varela were the lowest performers was belied by their prior records and Varela's recent promotion consideration, and its claim of downsizing was undermined by its hiring of new employees.
Eck Services, LLC, 14-RC-325992 (Regional Election Decision)
The union sought to represent a unit of commercial plumbers. The employer objected to the exclusion of its other employees from the unit, which included residential plumbers, electricians, and HVAC technicians. The regional director applied American Steel to conclude that the excluded employees do not share an overwhelming community of interest with the petitioned-for commercial plumbers. Therefore, it directed an election for a unit consisting of the commercial plumbers and their apprentices.