05/06/2024: Union Election Coming at Legoland California
There is also a new board case involving an employer refusing to furnish information.
Commonwealth Electric Company of the Midwest, 373 NLRB No. 50, 14-CA-295606 (Published Board Decision)
The union requested information from the employer regarding the wages of unit employees. The Employer refused to furnish this information, which violated Section 8(a)(5) and 8(a)(1) of the NLRA.
Some key points of the legal analysis are:
Presumptively Relevant Information: The Board affirmed the Administrative Law Judge's finding that the requested information regarding the individual overscale wages of the unit employees is presumptively relevant and necessary for the union to perform its statutory collective-bargaining duties. This is well-settled under cases like King Broadcasting Co. and Retlaw Broadcasting Co.
Confidentiality Defense: The Board agreed the employer failed to sustain its confidentiality defense, finding the defense was untimely raised and the employer failed to establish a legitimate and substantial confidentiality interest in the information requested by the union. The Board clarified the union was under no obligation to engage in accommodative bargaining since the employer failed to establish a valid confidentiality defense.
ZM Parent Holding, LLC, d/b/a Total Line Refrigeration, LLC, 08-RC-310348 (Regional Election Decision)
This is a decision and direction of election (DDE) issued by the Regional Director for Region 8 of the NLRB. The key points of the legal analysis in this DDE are:
Appropriate Bargaining Unit: The Regional Director found that the petitioned-for unit of all full-time and regular part-time Installation Technicians employed by ZM Parent Holding, LLC d/b/a Total Line Refrigeration, LLC (TLR) is an appropriate unit for collective bargaining.
The Regional Director applied the Board's current standard from American Steel Construction. Under this standard, the Regional Director found that the petitioned-for Install Techs:
Share an internal community of interest
Are readily identifiable as a group
Are sufficiently distinct from the excluded Service Techs
The employer, TLR, wanted to include the Service Techs in the bargaining unit, but failed to meet its burden of demonstrating the Service Techs share an "overwhelming community of interest" with the Install Techs, as required by American Steel.
Exclusion of Business Development Manager: The Regional Director found insufficient evidence that Business Development Manager Christofer Cornet is a managerial employee. However, the Regional Director concluded that Cornet does not share an overwhelming community of interest with the Install Techs and therefore could be excluded from the bargaining unit, as the Union preferred.
Status of Project Manager: The Regional Director found insufficient evidence that Project Manager Michael Kokinda is a statutory supervisor under Section 2(11) of the NLRA. However, the record suggests Kokinda may perform dual functions, so the Regional Director is directing that Kokinda be permitted to vote subject to challenge, pending resolution of his eligibility.
Inclusion of Install Tech Jared Cornet: The Regional Director concluded that Install Tech Jared Cornet, which the Union maintains is actually a Service Tech that should be excluded, should be included in the bargaining unit, as he performs sufficient Install Technician work to have a substantial interest in the unit's terms and conditions of employment.
Legoland California, LLC, 21-RC-325975 (Regional Election Decision)
This is a decision and direction of election (DDE) issued by the Regional Director for Region 21 of the NLRB. The key points of the legal analysis in this DDE are:
Appropriate Bargaining Unit: The Regional Director found that the petitioned-for unit of all full-time and regular part-time employees working in the Ride Maintenance Department, including rides engineers and water quality technicians, is an appropriate unit for collective bargaining.
The Regional Director applied the Board's current standard from American Steel Construction. Under this standard, the Regional Director found that the petitioned-for Ride Maintenance Department employees:
Share a community of interest
Are readily identifiable as a group
Are sufficiently distinct from the excluded Facilities Department employees
The employer, Legoland, wanted to include the Facilities Department employees in the bargaining unit, but failed to meet its burden of demonstrating the Facilities Department employees share an "overwhelming community of interest" with the petitioned-for Ride Maintenance Department employees, as required by American Steel.
Separate Department and Supervision: The Regional Director found the Ride Maintenance Department and Facilities Department are separate departments with distinct supervision, job functions, and qualifications. This weighed against finding an overwhelming community of interest.
Lack of Interchange: The Regional Director found limited interchange between the Ride Maintenance Department and Facilities Department employees, with the Facilities employees unable to work on the rides and water areas exclusively maintained by the Ride Maintenance employees. This also weighed against finding an overwhelming community of interest.
Alltown Bus Service, 25-RC-338698 (Regional Election Decision)
This is a decision and direction of election (DDE)issued by the Regional Director for Region 25 of the NLRB. The key points of the legal analysis in this DDE are:
Burden of Proof for Supervisory Status: The Regional Director found that the employer, Alltown Bus Service, LLC, bore the burden of proving the Lead Mechanics are statutory supervisors under Section 2(11) of the NLRA by a preponderance of the specific, detailed evidence. This is consistent with the Board's precedent in cases like NLRB v. Kentucky River Community Care and Croft Metals.
Independent Judgment Standard: The Regional Director analyzed whether the Lead Mechanics exercised independent judgment in performing the alleged supervisory functions, as required under the Board's decision in Oakwood Healthcare. The Regional Director found the employer's evidence was vague, conclusory, and contradicted by the Lead Mechanic's testimony.
Specific Examples of Alleged Supervisory Authority: The Regional Director thoroughly analyzed the evidence regarding the Lead Mechanics' alleged authority to adjust grievances, assign work, discipline/discharge, and hire, finding the employer failed to provide the required specific, detailed evidence to establish they possessed any of these supervisory indicia under the Act.
Reliance on Secondary Indicia: The Regional Director acknowledged the employer presented some secondary indicia of supervisory status, but found these were insufficient to confer supervisory status in the absence of primary supervisory indicia under cases like DirecTV U.S. DirecTV Holdings LLC.
Starbucks Corporation, 07-RD-332441 (Regional Election Decision)
This is a decision and order dismissing petition issued by the Regional Director for Region 7 of the NLRB. The key points of the legal analysis in this are:
Dismissal of Decertification Petition: The Regional Director dismissed the decertification petition filed by Alyssa Marie Smith, subject to reinstatement, based on pending unfair labor practice complaints against the employer, Starbucks Corporation.
Rieth-Riley Standard for Merit-Determination Dismissals: The Regional Director relied on the Board's decision in Rieth-Riley Construction Co., which held that the 2020 Election Protection Rule did not impact the ability of Regional Directors to make "merit-determination dismissals" of petitions when there are concurrent unfair labor practice allegations that, if proven, would taint the petition and any related election.
Causal Connection and Bargaining Order/Certification Year Extension: The Regional Director found that the pending 8(a)(5) allegations against Starbucks, if proven, would warrant a bargaining order and extension of the certification year under Mar-Jac Poultry Co. and Big Three Industries This would preclude the existence of a question concerning representation at the time the decertification petition was filed, warranting dismissal of the petition.
The Regional Director relied on the Board's recent order in Starbucks Corporation, where the Board affirmed the dismissal of a decertification petition based solely on pending 8(a)(5) allegations that, if proven, would result in a bargaining order and certification year extension, without requiring a separate analysis of the causal connection under Master Slack Corp.