06/25/2024: At What Point Does a Nascent Worker Group Become a "Labor Organization"?
A Bruegger's Bagels regional election decision rehearses the relevant law.
Bruegger's Enterprises, Inc., 18-RC-343494 (Regional Election Decision)
This is a Regional Director decision directing an election in a petitioned-for unit of employees at two Bruegger's Bagels locations. The key legal issue was whether the petitioner, Bruegger's Workers United, qualified as a labor organization under Section 2(5) of the NLRA.
Key points of the legal analysis:
The Regional Director applied the broad statutory definition of "labor organization" from Section 2(5) of the NLRA.
The decision analyzed whether the petitioner met the three-part test for labor organization status: (1) employee participation, (2) purpose of dealing with the employer, and (3) dealing with terms and conditions of employment.
The Regional Director found all three elements were met, even though the petitioner was a nascent organization that had not yet engaged in formal bargaining.
The lack of formal structure (no constitution, bylaws, dues, etc.) did not preclude finding labor organization status for an incipient union.
The Regional Director concluded the petitioner qualified as a labor organization and directed an election in the stipulated unit.
Key cases applied:
Electromation, Inc., 309 NLRB 990 (1992): Established that the statutory definition of "labor organization" should be interpreted broadly.
Coinmach Laundry Corp., 337 NLRB 1286 (2002): Held that an incipient union that has not yet represented employees can still qualify as a labor organization if formed for that purpose.
Yale New Haven Hospital, 309 NLRB 363 (1992): Found that structural formalities like a constitution or bylaws are not prerequisites to labor organization status.
Vencare Ancillary Servs., Inc., 334 NLRB 965 (2001): Established a three-part test for determining labor organization status, including the requirement of a "pattern or practice" of dealing with the employer.
Butler Manufacturing Company, 167 NLRB 308 (1967): Held that lack of a constitution or officers does not preclude finding labor organization status.
Indy Core, Inc., 373 NLRB No. 70, 25-CA-307386 (Published Board Decision)
The primary legal issue in this case is whether Indy Core, Inc. (the Respondent) complied with the terms of a settlement agreement by providing the requested information to the union as required by Sections 8(a)(5) and (1) of the National Labor Relations Act.
Background
Union's Charge: The union alleged that Indy Core, Inc. violated Sections 8(a)(5) and (1) by refusing to furnish requested information regarding wages and benefits of bargaining unit employees and compliance with subcontracting provisions.
Settlement Agreement: An informal settlement agreement was reached, requiring Indy Core to provide the requested information and to post a notice to employees.
Non-compliance Allegation: The General Counsel alleged that Indy Core failed to comply with the settlement agreement by not providing adequate information. Specifically, the union requested contact, payroll, and benefit information for laborers, which Indy Core claimed not to employ.
Legal Analysis
Default Judgment Motion: The General Counsel sought a default judgment, asserting that Indy Core's response was inadequate and non-compliant with the settlement agreement.
Respondent's Argument: Indy Core contended that it did not employ laborers during the relevant period and had provided all available information, asserting full compliance with the settlement agreement.
NLRB Decision
The Board denied the General Counsel's motion for default judgment, finding that:
Material Fact Dispute: There are genuine issues of material fact regarding whether Indy Core complied with the terms of the settlement agreement.
Need for ALJ Hearing: The case is remanded for a hearing before an Administrative Law Judge (ALJ) to determine whether the complaint should be dismissed based on Indy Core’s compliance with the settlement agreement.
Key Cases Cited
ThyssenKrupp Stainless USA, LLC, 362 NLRB 621 (2015) — The NLRB denied a default judgment motion due to genuine issues of material fact regarding whether a settlement agreement had been breached.
Vocell Bus Co., 357 NLRB 1730 (2011) — The NLRB denied a default/summary judgment motion due to a factual dispute about compliance with a settlement agreement.
The Verland Foundation, 06-RM-340272 (Regional Election Decision)
This is a Regional Director decision dismissing an RM petition filed by The Verland Foundation (Employer) seeking an election to determine if AFSCME Council 13 (Union) still represents a majority of employees at the Employer's Verland North facility. The key legal analysis focuses on whether there is a successor bar precluding an election.
Key points of the legal analysis:
The Employer is a successor employer, having hired a majority of the predecessor's employees and continuing operations in substantially unchanged form.
The Regional Director applied the successor bar doctrine from UGL-UNICCO, 357 NLRB 801 (2011), which provides that an incumbent union is entitled to represent employees for a reasonable period without challenge to its status.
To determine if a reasonable period had elapsed, the Regional Director applied the five Lee Lumber factors: a) Initial contract bargaining b) Complexity of issues and bargaining process c) Time elapsed and number of bargaining sessions d) Progress made and proximity to agreement e) Presence or absence of impasse
The Regional Director found all five factors weighed in favor of finding a successor bar still in effect, despite the parties reaching a tentative agreement:
Initial Contract Bargaining: This is an initial contract negotiation, which tends to be more complex than renewal negotiations.
Complexity of Issues: The transition from a public to a private sector agreement and the absence of a model contract added complexity. Layoffs and the change in facility operations further complicated negotiations.
Passage of Time and Bargaining Sessions: Six face-to-face meetings and additional email negotiations occurred over six months. However, many sessions focused heavily on layoffs without significant progress.
Proximity to Agreement: The parties reached a tentative agreement, but the employees had not yet ratified it, making further negotiation likely.
Presence of Impasse: There was no claim of impasse; the parties were not at a deadlock.
The petition was dismissed because a reasonable period for bargaining had not elapsed when it was filed.
Key cases applied:
Fall River Dyeing & Finishing Corp., 482 U.S. 27 (1987) — Established factors for determining successor employer status.
UGL-UNICCO, 357 NLRB 801 (2011) — Set forth the successor bar doctrine, providing an insulated period for bargaining without challenge to union's status.
Lee Lumber & Bldg. Mat. Corp., 334 NLRB 399 (2001) — Established the five-factor test for determining if a reasonable period for bargaining has elapsed.
Americold Logistics, LLC, 362 NLRB 493 (2015) — Held that a reasonable period of bargaining must include time for the union to conclude the agreement by holding a ratification vote.
Refugee & Immigrant Care Center for Education and Legal Services, 16-UC-315282 (Regional Election Decision)
This is a Regional Director decision dismissing a unit clarification (UC) petition filed by Refugee and Immigrant Care Center for Education and Legal Services (Employer) seeking to exclude Supervising Attorneys, Supervising Legal Assistants, and Refugee Resettlement Program Managers from a bargaining unit on the grounds that they are supervisors under Section 2(11) of the NLRA.
Key points of the legal analysis:
The Regional Director found the petition was not estopped or barred based on prior stipulations in the voluntary recognition agreement.
The Employer failed to meet its burden of establishing supervisory status for the disputed classifications under the three-part test from NLRB v. Kentucky River Community Care.
For hiring, the Regional Director found the disputed classifications' role was limited to participation in interviews, which is insufficient to establish supervisory authority.
For assignment, their role in assigning cases was based on capacity, rotation, or employee skills/preferences, which does not require independent judgment.
For discipline, they lacked independent authority to issue discipline, as HR was involved in nearly all disciplinary actions.
The Employer failed to establish supervisory authority for other indicia like suspension, discharge, rewards, responsible direction, etc.
Key cases applied:
NLRB v. Kentucky River Community Care, 532 U.S. 706 (2001) — Established the three-part test for supervisory status under Section 2(11).
Oakwood Healthcare, Inc., 348 NLRB 686 (2006) — Defined key terms related to supervisory status including "assign," "responsibly direct," and "independent judgment."
Golden Crest Healthcare Center, 348 NLRB 727 (2006) — Held that purely conclusory evidence is insufficient to establish supervisory status.
Neighborhood Legal Services, 236 NLRB 1269 (1978) — Held that attorneys directing legal assistants as part of professional responsibilities does not confer supervisory status.
Veolia Transportation Services, 363 NLRB No. 98 (2016) — Clarified standards for establishing disciplinary authority of putative supervisors.
Chen-Tech Industries, Inc. dba ATI Forged Products, Irvine Operations, 21-RC-322974 (Regional Election Decision)
This is a Regional Director decision directing an election in a petitioned-for unit of forge and heat treat employees at Chen-Tech Industries, with the addition of the forge shop clerk. The key legal analysis focuses on whether the petitioned-for unit is appropriate under the Board's community of interest test.
Key points of the legal analysis:
The Regional Director applied the community of interest test from American Steel Construction, Inc., examining factors like departmental organization, skills/training, job functions, functional integration, employee interactions, interchange, terms of employment, supervision, and extent of organization.
The Regional Director found that most factors supported finding a community of interest among the petitioned-for forge and heat treat employees, particularly their shared departmental organization, job functions, and supervision.
The Regional Director concluded the petitioned-for employees do not share an overwhelming community of interest with excluded employees, except for the forge shop clerk who was added to the unit.
The Regional Director rejected the employer's argument for a wall-to-wall unit of all production employees.
The Regional Director ordered a manual election rather than mail ballot, finding no special circumstances warranting mail ballots.
Key cases applied:
American Steel Construction, Inc., 372 NLRB No. 23 (2022): Reinstated the Specialty Healthcare standard for determining appropriate bargaining units.
Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011): Established the community of interest test for determining appropriate bargaining units and the "overwhelming community of interest" standard for adding employees to a petitioned-for unit.
Nissan North America, Inc., 372 NLRB No. 48 (2023): Clarified that functional integration requires employees to work together and depend on each other, not just be part of the same production process.
Wyman-Gordon Co., 117 NLRB 75 (1957): Found that clerical employees who support production operations can be included in a production unit.
London's Farm Dairy, Inc., 323 NLRB 1057 (1997): Established that mail ballot elections are allowed in "appropriate circumstances."