07/01/2025: Grad Student Election Ordered at University of Pennsylvania

Guards, supervisors, joint employers. A full day of regional election decisions.

Central Hudson Gas and Electric Corporation, 03-RC-365557 (Regional Election Decision)

This NLRB Regional Director decision dismissed a petition by IBEW Local 320 to include Central Hudson Gas & Electric Corporation's 26 Line Supervisors in the existing bargaining unit, finding they are statutory supervisors excluded from NLRA coverage.

Central Hudson operates as a utility company serving New York's Mid-Hudson River Valley. The Line Supervisors oversee approximately 155 bargaining unit employees in groups of 3-13 workers each, including utility workers, service workers, splicers, and power line technicians.

The Regional Director applied the Section 2(11) supervisory test, finding the employer proved supervisory status through multiple indicia. Line Supervisors assign and responsibly direct employees by creating monthly work plans, managing variables like emergent situations and rollover work, and assigning specific jobs to crews. They are held accountable for outcomes, as demonstrated when one supervisor received a negative evaluation after his crew caused customer property damage.

Line Supervisors effectively recommend hiring through participation on interview committees that determine whether candidates are recommended or not recommended, with the employer only hiring from the recommended list. They adjust grievances under the collective bargaining agreement and reward employees through safety recognition awards and company credit card purchases.

The evaluation function was established through Line Supervisors' authority over probationary employees, conducting evaluations that directly affect job status by recommending termination, extension, or conversion to regular status. However, disciplinary authority was found insufficient since Line Supervisors typically present pre-drafted disciplines from HR rather than exercising independent judgment.

Secondary indicia included company credit cards and supervisor-to-employee ratios supporting the organizational structure. The Regional Director declined to find managerial status, noting Line Supervisors implement but do not formulate employer policies.

Significant Cases Cited

• NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706 (2001): Established burden of proof for supervisory status and that possession of any one statutory function suffices for supervisor classification.

• Oakwood Healthcare, Inc., 348 NLRB 686 (2006): Defined "assign" and "responsible direction" supervisory functions, requiring accountability for subordinate performance.

• Croft Metals, Inc., 348 NLRB 717 (2006): Clarified preponderance of evidence standard and independent judgment requirements for supervisory functions.

• The Republican Company, 361 NLRB No. 15 (2014): Defined "effective recommendation" as recommendations followed without independent management investigation.

• Golden Crest Healthcare Center, 348 NLRB 727 (2006): Part of trilogy establishing modern framework for analyzing supervisory assignment and direction functions.

Trustees of the University of Pennsylvania, 04-RC-364372 (Regional Election Decision)

In a June 27, 2025 decision, NLRB Regional Director Kimberly Andrews ruled that approximately 1,500 postdoctoral researchers at the University of Pennsylvania constitute an appropriate bargaining unit and directed an election. The case involved a petition by Research Associates and Postdocs United at Penn (RAPUP-UAW) seeking to represent all postdoctoral researchers, including Postdoctoral Researchers, Postdoctoral Fellows, National Research Service Award (NRSA) Fellows, and Research Associates.

The University opposed the petition on multiple grounds, arguing: (1) the Region lacked authority due to the Board's quorum issues; (2) the employees were temporary workers ineligible for collective bargaining; (3) the Board should decline jurisdiction due to the temporary nature of the positions; and (4) the petitioned-for unit was inappropriate due to lack of community of interest among various classifications.

Regional Authority Despite Board Quorum Issues

The Director rejected the University's argument that the Region lacked authority due to the Board having only two members (less than the three-member quorum required under New Process Steel). Citing multiple Circuit Court decisions, the Director held that Regional Directors retain their delegated authority to process representation cases even when the Board lacks a quorum. This authority stems from the Board's 1961 delegation and has been upheld by numerous courts.

Temporary Employee Status

The Director determined that despite the finite nature of the postdoctoral positions (generally capped at five years for Postdocs and three years for Research Associates), their temporary status did not preclude their eligibility for collective bargaining. Following Columbia University, the Director found that the positions constitute "a recurring, fundamental unit of the research operations of the university" and that the University continuously employs these researchers with some carryover between years.

Jurisdiction

The Director rejected the University's argument that the Board should decline jurisdiction. Under Management Training Corp., the only relevant factors for deciding whether to exercise jurisdiction are whether the employer meets the definition of "employer" under the Act and meets the applicable monetary jurisdictional standards, both of which the University satisfied.

Appropriate Bargaining Unit

The Director analyzed the community of interest among the petitioned-for employees using the Specialty Healthcare factors and found:

1. Postdocs and Research Associates share a community of interest despite some differences in terms and conditions. Their day-to-day work is virtually identical, they work side-by-side in labs, share equipment, have similar degree requirements, and often have the same direct supervisors.

2. NRSA Fellows are statutory employees despite differences in tax treatment. They perform services for the University under its control in exchange for compensation, meeting the common-law agency test for employment.

3. NRSA Fellows share a community of interest with other Postdocs, as their work and responsibilities are identical despite differences in funding sources.

4. Senior Postdocs (in their fourth or fifth years) share a community of interest with more junior Postdocs, as they perform essentially the same functions despite greater experience.

5. The University failed to prove that any Research Associates are statutory supervisors under the Act, as there was insufficient evidence they possessed authority to assign significant overall duties or responsibly direct other employees with potential adverse consequences.

Based on these findings, the Director directed an election to be held July 16-17, 2025, for a unit including "All postdoctoral researchers who provide services to the University of Pennsylvania, including Postdoctoral Researchers, Postdoctoral Fellows, NRSA Postdoctoral Fellows, and Research Associates."

Significant Cases Cited

• New Process Steel, LP v. NLRB, 560 U.S. 674 (2010): Determined that the statutory language requires the Board to have at least three members to act.

• Columbia University, 364 NLRB 1080 (2016): Established that student assistants with finite employment terms can share a community of interest and engage in meaningful collective bargaining.

• Management Training Corp., 317 NLRB 1355 (1995): Held that in deciding whether to assert jurisdiction, the Board only considers whether the employer meets the definition of "employer" under the Act and applicable monetary jurisdictional standards.

• Specialty Healthcare, 357 NLRB 934 (2011): Outlined the factors for determining whether employees share a community of interest.

• Oakwood Healthcare, Inc., 348 NLRB 686 (2006): Clarified the standards for determining supervisory status under Section 2(11) of the Act.

Inter Con Security Systems, 29-RC-338819 (Regional Election Decision)

This NLRB Region 29 decision addresses a petition filed by Local 1013 United Security Officers of America seeking to represent security personnel employed by Inter-Con Security Systems, Inc. at JFK International Airport. The petition was filed on March 27, 2024, while an existing collective bargaining agreement between Inter-Con and Service Employees International Union Local 32BJ was in effect (May 1, 2021 through April 30, 2024).

Key Parties and Background

• Employer: Inter-Con Security Systems, Inc.

• Petitioner: Local 1013 United Security Officers of America

• Party in Interest: Service Employees International Union Local 32BJ (incumbent union)

• Intervenors: International Union, Security, Police & Fire Professionals of America (SPFPA) and Law Enforcement Officers Security & Police Benevolent Association (LEOSPBA)

The petitioned-for unit contained approximately 250-355 employees who were part of a larger established multi-location bargaining unit of about 1,396 employees covered under the "New York City Collective Bargaining Agreement."

Central Issue

The primary issue was whether the existing collective bargaining agreement constituted a bar to the election. The Employer and Local 32BJ asserted that an election was inappropriate because their contract barred the petition. The Petitioner and LEOSPBA contended that the contract was not a bar because it covered a mixed unit of guards and nonguards.

Analysis of Guard Status

Section 9(b)(3) of the National Labor Relations Act prohibits the Board from certifying a unit that includes both guards and nonguards. The decision analyzes whether certain job classifications at the World Trade Center constituted "guards" within the meaning of the Act.

The Regional Director analyzed several job classifications whose guard status was disputed:

1. Credentialers (31 employees): Found to be guards because they enforce rules to protect the World Trade Center campus by screening vehicles seeking access, verifying credentials, and preventing unauthorized entry.

2. Wayfinders (4 employees): Found to be guards because, despite their customer service functions, they have ongoing "observe and report" responsibilities, monitor for security issues, report crimes directly to the Port Authority Police, and participate in evacuation plans by directing crowds away from danger.

3. Fire and Life Safety Directors (24 employees): Found to be guards because they enforce rules protecting the facility from damage and protect people's safety. They work in the Operations Control Center alongside security personnel, monitor alarm panels, dispatch Fire Inspection Team members, execute emergency evacuation plans, and manage emergency situations.

4. Fire Inspection Team (3 employees): Found NOT to be guards because their functions were primarily fire and safety-related rather than security-focused. The Board has previously held that enforcement of fire and safety rules is not inherently a guard duty.

5. Fire Inspection Team Supervisors/Manager (3 employees): Also found NOT to be guards due to insufficient evidence that they performed traditional police or security functions beyond their fire safety duties.

The Regional Director concluded that out of approximately 1,396 employees in the bargaining unit, only 6 employees (0.4% of the unit) were nonguards.

Contract Bar Doctrine Application

The petition was filed during the "insulated period" (the 60 days preceding the contract's expiration), making it untimely and subject to dismissal if the contract was of "bar quality." While the Board would not establish a mixed guard-nonguard unit as appropriate when exercising its affirmative powers, the Regional Director found that the "coincidental inclusion of a small group of nonguards" (0.4% of the unit) did not warrant disrupting the stable collective bargaining relationship between the Employer and Local 32BJ.

Decision

The Regional Director dismissed the petition, finding that the contract bar doctrine applied. No question concerning representation existed concerning the representation of the employees within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act.

Significant Cases Cited

• American Dyewood Co., 99 NLRB 78 (1952): Held that coincidental inclusion of a small group of guards in an otherwise appropriate unit did not warrant disruption of a stable bargaining relationship.

• Burns Security Services, 300 NLRB 298 (1990): Established that where employees enforce only fire and safety rules incidentally to their other duties, they are not guards under Section 9(b)(3).

• The Boeing Company, 328 NLRB 128 (1999): Clarified that protection of property from fire and enforcement of fire safety regulations are not inherently guard responsibilities.

• Rhode Island Hospital, 313 NLRB 343 (1993): Determined that the nature of guard duties, not the percentage of time spent on such duties, is controlling in determining guard status.

• Portland Museum of Art, 370 NLRB No. 113 (2021): Found that employees who monitor visitors and enforce rules aimed at protecting exhibits were guards despite also performing customer service functions.

REM Services, Inc. And Transdev Services, Inc., as Joint Employers, 16-RC-367048 (Regional Election Decision)

In this case, Teamsters Local Union No. 988 filed a representation petition seeking to represent bus operators and customer service representatives employed at a facility in Houston, Texas. The key issue was whether REM Services, Inc. and Transdev Services, Inc. should be considered joint employers.

The case involves shuttle bus operations at George Bush International Airport in Houston. Transdev holds the contract with the airport to provide shuttle services between the airport and the Rental Car Center. Transdev subcontracted with REM to provide personnel, including bus operators and customer service representatives.

The Regional Director analyzed the joint employer relationship under the Board's 2020 Joint-Employer Rule, which requires that two entities "share or codetermine the employees' essential terms and conditions of employment." The Rule defines essential terms as "wages, benefits, hours of work, hiring, discharge, discipline, supervision, and direction."

Under the Rule, a joint employer relationship exists when one employer possesses and exercises "substantial direct and immediate control" over essential terms of employment to the extent that it "meaningfully affects matters relating to the employment relationship." The Rule requires examining the totality of circumstances, with the burden of proof on the party asserting joint employer status.

The Regional Director methodically analyzed each factor:

1. Wages: REM ultimately determines wage rates, weighing against joint employer status.

2. Benefits: While Transdev offers some incentive benefits, REM provides primary benefits like health insurance and retirement plans, weighing against joint employer status.

3. Hours of Work: REM determines regular schedules, though Transdev can offer overtime and controls when breaks occur, weighing against joint employer status.

4. Hiring: REM handles all hiring with no meaningful Transdev involvement, weighing against joint employer status.

5. Discharge: REM has full authority over terminations, weighing against joint employer status.

6. Discipline: Both entities play roles in discipline, with Transdev monitoring performance and adding points to attendance records, though this factor was found inconclusive.

7. Supervision: Transdev conducts all training sessions, monitors operators through cameras, and addresses performance issues directly, weighing in favor of joint employer status.

8. Direction of Work: Transdev exercises extensive control through detailed standard operating procedures, direct assignment of routes, constant communication, and supervision of daily tasks, strongly weighing in favor of joint employer status.

Based on Transdev's substantial direct and immediate control over supervision and direction of work, the Regional Director found that REM and Transdev are joint employers. The decision ordered an election to be held on July 11, 2025, for the unit of full-time and regular part-time bus operators and customer service representatives.

Significant Cases Cited

• Cognizant Tech. Sols. U.S. Corp., 372 NLRB No. 108 (2023): Explained that a joint-employer relationship exists where one employer retains sufficient control over terms and conditions while contracting with an otherwise independent company.

• Walter B. Cooke Inc., 262 NLRB 626 (1982): Established precedent for joint employer relationships based on retained control of employment terms.

• Ampersand Publishing, LLC d/b/a Santa Barbara News-Press, 370 NLRB No. 119 (2021): Clarified that parties cannot rely upon self-serving or conclusory statements to meet burden of proof.

Blueoval Sk, LLC, 09-RC-358016 (Regional Election Decision)

This case involves a petition filed by the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) seeking to represent production and maintenance employees at BlueOval SK's electric vehicle battery plant in Glendale, Kentucky. BlueOval SK is a joint venture between SK and Ford Motor Company that produces EV batteries for Ford.

The primary issue was whether the employer had a "substantial and representative complement" of employees and was in normal operation when the petition was filed in January 2025. At that time, the facility employed approximately 754 employees, though it was not yet in full production.

The employer argued the petition was premature because: 1) there wasn't yet a substantial and representative complement of employees, and 2) the facility wasn't yet in normal operation as production hadn't begun. The employer requested dismissal or postponement of the election.

Regional Director Eric Taylor analyzed the case using the Board's multi-factor test for determining whether a substantial and representative complement existed. The factors included:

1. Size of the workforce at the time of the hearing (865 employees)

2. Size of the workforce eligible to vote (same as above)

3. Size of the expected ultimate workforce (1,402 by May 2025, with less certain projections beyond)

4. Time before full workforce would be present (4 months until May 2025)

5. Rate of expansion (39% increase from January to May 2025)

6. Certainty of expansion (certain through May 2025, less certain beyond)

7. Job classifications currently filled (all classifications were filled)

8. Additional job classifications expected (none)

9. Nature of the industry (EV battery production)

The Regional Director found that the employer employed 61% of its projected May 2025 workforce at the time of the hearing, substantially exceeding the Board's guideline that 30% of the eventual complement in 50% of job classifications is typically sufficient. Additionally, all job classifications were filled, employees were performing job duties consistent with their classifications, and the basic nature of the work would not change once production began.

While the employer claimed it would eventually employ 2,500 workers, the Director found this projection speculative given the lack of supporting evidence and uncertainty about demand beyond May 2025.

Regarding normal operations, while full production had not yet begun, employees were performing substantial work consistent with their job classifications, including machine maintenance, quality testing, and preparations for production. The Director distinguished this case from precedents where employees were either not yet working or performing entirely different duties than they would after operations began.

Based on this analysis, the Regional Director concluded that BlueOval SK employed a substantial and representative complement of employees and was engaged in normal operations. He therefore directed an election for the petitioned-for unit, which included all full-time and regular part-time production and maintenance employees at the Glendale, Kentucky facility, excluding office clerical employees, professional employees, guards, and supervisors as defined by the Act.

Significant Cases Cited

• Toto Industries (Atlanta), Inc., 323 NLRB 645 (1997): Established that there is no hard and fast rule for determining whether an employee complement is substantial and representative, requiring case-by-case analysis of relevant factors.

• In re Yellowstone Int'l Mailing, Inc., 332 NLRB 386 (2000): Held that an existing complement is substantial and representative when approximately 30% of the eventual employee complement is employed in 50% of anticipated job classifications.

• Walnut Ridge Mfg. Co., Inc., 80 NLRB 1196 (1948): Found uncertainty about when expansion will occur is a reason to provide for an election in the near future rather than delay.

• Elmhurst Care Center, 345 NLRB 1176 (2005): Distinguished case where a nursing home was not in normal operations because employees worked limited hours and were not yet caring for patients.

• General Cable Corp., 173 NLRB 251 (1968): Established that it is immaterial whether some employees are considered trainees when assessing whether a substantial and representative complement exists.

The Akron Art Museum, 08-RC-359410 (Regional Election Decision)

The NLRB Regional Director ruled on a petition by Teamsters Local #348 to represent employees at the Akron Art Museum. Two key issues were addressed: (1) whether security personnel qualified as "guards" under the Act, and (2) whether Learning and Engagement Department employees shared a community of interest with other museum workers.

The Director determined that security guards and the Security Shift Coordinator were statutory "guards" under Section 9(b)(3) because they controlled facility access, monitored security cameras, conducted patrols, and enforced museum rules. Despite not wearing traditional uniforms or carrying weapons, their primary security functions required their exclusion from the unit.

However, the Director rejected the museum's attempt to exclude Learning and Engagement employees (gallery teachers, Public Engagement Coordinator, Educator Youth and Family Programs, and Project Manager: Creative Aging Institute). Analyzing traditional community of interest factors, the Director found these employees shared:

• Similar working conditions and policies

• Regular contact with other employees

• Functional integration in museum operations

• Comparable skill requirements for most positions

The Director concluded the museum failed to prove these employees' interests were so disparate from other workers that they couldn't be in the same bargaining unit, and directed an election for July 2025.

Significant Cases Cited

• Kalamazoo Paper Box Corp., 136 NLRB 134 (1962): Established that wall-to-wall units are presumptively appropriate.

• Airco, Inc., 273 NLRB 348 (1984): In wall-to-wall unit cases, employers must prove certain employees' interests are too disparate for inclusion.

• Portland Museum of Art, 370 NLRB No. 113 (2021): Museum gallery ambassadors were statutory guards despite not wearing traditional uniforms.

• United Operations, Inc., 338 NLRB 123 (2002): Outlined community of interest factors for bargaining unit determinations.

• International Bedding Co., 356 NLRB 1336 (2011): Inclusion appropriate where employees shared working conditions and exclusion would create a residual unit.

Town & Country Foods, 19-RM-366341 (Regional Election Decision)

This NLRB Region 19 decision, issued June 30, 2025, dismisses an employer's RM petition challenging a union's majority status. Town & Country Foods (the Employer-Petitioner) purchased a Helena, Montana grocery store from Van's Thriftway in December 2024 and began operations in February 2025. The Employer-Petitioner hired a majority of the predecessor's employees but implemented its own terms and conditions of employment.

United Food and Commercial Workers Union Local 1889 (the Union) had represented the store's meat department and clerk employees in separate bargaining units under collective bargaining agreements with Van's Thriftway that expired on February 3, 2024. On May 2, 2025, the Union demanded recognition and bargaining with Town & Country Foods as a successor employer. Instead of recognizing the Union, the Employer-Petitioner filed an RM petition on May 23, 2025, claiming good-faith uncertainty of the Union's majority status.

The Regional Director determined that the "successor bar" doctrine applies in this case. This doctrine, reestablished by the Board in UGL-UNICCO, provides that when a successor employer is required to recognize an incumbent union, that union is entitled to represent employees for a reasonable period without facing challenges to its majority status. Since Town & Country Foods did not adopt the predecessor's terms and conditions, the reasonable bargaining period would be six months to one year from the first bargaining meeting, which had not yet occurred.

The Regional Director rejected the Employer-Petitioner's arguments that UGL-UNICCO should be overruled in favor of a "good-faith uncertainty standard" and that a purported merger between two UFCW locals created a question of representation. The decision noted that arguments to overturn Board law must be directed to the Board itself, and that there was no record evidence supporting the alleged merger. Additionally, the Regional Director cited Raymond F. Kravis Center for the Performing Arts, which abandoned the requirement of showing "due process" for union mergers if there is substantial continuity.

The petition was dismissed, with instructions for filing a request for review by July 15, 2025.

Significant Cases Cited

• UGL-UNICCO Service Co., 357 NLRB No. 76 (2011): Reestablished the successor bar doctrine, entitling incumbent unions to represent employees for a reasonable period without challenge.

• St. Elizabeth Manor, 329 NLRB 341 (1999): Originally established the successor bar doctrine before being overruled by MV Transportation.

• MV Transportation, 337 NLRB 770 (2002): Temporarily overruled the successor bar doctrine before UGL-UNICCO restored it.

• Franks Bros. Co. v. NLRB, 321 U.S. 702 (1944): Established the principle that a bargaining relationship once rightfully established must be permitted to function for a reasonable period.

• Raymond F. Kravis Center for the Performing Arts, 351 NLRB 143 (2007): Abandoned the requirement of showing "due process" for union mergers if substantial continuity exists.