04/26/2024: A Multi-Facility Unit Gets an Election

Also the Tenth Circuit seems to have made a procedural error.

VTCU Corp., 27-CA-320744, (Board Appellate Brief, DC Circuit)

In the underlying case, the Board certified a representation election over the objections of VTCU who alleged, but did not provide proof of, misconduct in the administration of the election. VTCU has appealed that decision into the DC Circuit. In this document, the Board defends its decision to certify the election.

Among other things, the Board argues in its brief that many of the arguments in the appeal are barred because they were not raised in the Board proceeding. It also argues that the Board did not abuse its discretion when rejecting the objections. Under prevailing standards of review, the employer is unlikely to prevail as the court’s review is “extremely limited” and the court overturns elections only in “the rarest of circumstances.”

Coreslab Structures (Tulsa) Inc., 14-CA-248354 (Board Appellate Brief, Tenth Circuit)

Coreslab Structures appealed the remedies provided for in a Board order against the employer. In the initial proceeding, the court upheld most of the NLRB's findings that Coreslab committed unfair labor practices and approved most of the remedies ordered by the NLRB. It only rejected two aspects of the remedy: the directives to make back payments to the pension fund and employees without offsets, and to maintain the profit-sharing program unless the union requests rescission.

Despite upholding much of the Board’s decision, the court stated it was denying the Board’s cross-petition for enforcement outright. The Board argues that the court should instead have enforced the order in part and denied the order in part, which is also called partial enforcement. Failure to provide this partial enforcement would mean that the employer would have no legally binding obligation to comply with any aspect of the order, including provisions the court upheld like the requirements to provide requested information to the union and recognize and bargain with the union.

In this petition, the Board asks the court to provide a rehearing of the decision so that it can change the decision from a total denial to a partial enforcement.

Bloodworks Northwest, 19-RC-334190 (Regional Election Decision)

The employer has 12 facilities in Washington state. The union sought to represent a unit consisting of employees at 6 of the facilities. The employer argues that another 3 of its facilities should be included in the unit.

The Regional Director applied AT&T Mobility Services to conclude that the petitioned-for multi-facility unit was appropriate. Under this test, the appropriateness of a petitioned-for unit is analyzed using the community of interest test, examining the following factors: employees' skills and duties; terms and conditions of employment; employee interchange; functional integration; geographic proximity; centralized control of management and supervision; and bargaining history. The critical question is whether the petitioned-for unit has a distinct community of interest from the excluded facilities.

The Regional Director found that geographic proximity, interchange, and functional integration weighed heavily in favor of finding a distinct community of interest for the 6 petitioned-for facilities. The facilities were all located in King County in close proximity to each other. There was significantly more interchange of employees among the petitioned-for facilities (15%-47% of shifts) compared to the excluded facilities (1%-8% of shifts). The petitioned-for facilities were more functionally integrated based on the employee interchange.

Other factors like skills/duties, terms and conditions of employment, and centralized control weighed in favor of a broader unit, but were not determinative, as they applied to some degree to all of the employer's Washington facilities, even those no party sought to include. Bargaining history was neutral.

Based on all the factors, with weight given to the high degree of interchange and integration among the petitioned-for facilities, the Regional Director found the petitioned-for unit appropriate.

Sysco Portland, 19-RC-338632 (Regional Election Decision)

The union sought to represent a unit of fleet technicians, material handling equipment technicians, facilities technicians, and maintenance utility workers at Sysco Portland's Wilsonville, Oregon facility. The employer argued that the unit must also include driver check-in associates, cycle counters, and quality assurance inspectors.

The Regional Director applied American Steel to conclude that the petitioned-for unit had the necessary community of interest and that the workers excluded from that unit do not share an “overwhelming community of interest” such that they must be included. The additional classifications were in a separate department (Finance) and sub-department (Inventory Control and Quality Assurance) with separate supervision. They had fundamentally different job functions relating to inventory control rather than fleet and facility maintenance. There was little evidence of regular interaction between the two groups.

Thus, an election was directed of just the petitioned-for unit.