08/14/2025: Five Regional Election Decisions
Two emails in one day!
Highline Warren LLC, 06-RC-354972 (Regional Election Decision)
This Second Supplemental Decision addresses five challenged ballots in a representation election at Highline Warren LLC's Glen Dale, West Virginia facility. The Petitioner (Teamsters Local 697) challenged five voters, claiming they were office clerical employees excluded from the bargaining unit. These challenged voters included two Department Coordinators, two Warehouse Office Clerks, and an MRO Buyer.
The Regional Director applied the three-prong test from Caesar's Tahoe to determine whether these employees should be included in the unit. First, the Director found the stipulated unit description ambiguous because none of the Employer's job titles matched the stipulated unit description, which included "production and maintenance employees, drivers, and yard jockeys." Second, the Director found insufficient extrinsic evidence to determine the parties' intent regarding these classifications.
Moving to the third prong, the Director analyzed whether each challenged voter shared a community of interest with unit employees, examining factors such as functional integration, common supervision, skills and functions, interchange and contact, work site, working conditions, and administrative organization.
For Department Coordinators, the Director found their work functionally integrated with packaging line workers, significant contact with unit employees, similar working conditions, and inclusion in the same administrative unit. For the MRO Buyer, the Director noted common supervision with maintenance employees, performance of some maintenance technician duties, and regular interaction with unit employees. For Warehouse Office Clerks, the Director found functional integration with warehouse operations, common supervision with material handlers, regular interaction with unit employees, and inclusion in the same administrative department.
Based on this analysis, the Regional Director overruled the challenges to all five ballots and ordered them opened and counted.
Significant Cases Cited
Caesar's Tahoe, 337 NLRB 1096 (2002): Established the three-prong test for determining unit placement of challenged voters in stipulated election agreements.
Bell Convalescent Hospital, 337 NLRB 191 (2001): Established that the Board will find a clear intent to include classifications that match express language in the stipulated unit.
USF Reddway, Inc. 349 NLRB 329 (2007): Applied the Caesar's Tahoe framework to find a stipulated unit ambiguous.
CVS Albany, LLC d/b/a CVS, 364 NLRB 141 (2016): Demonstrated consideration of changes in language from original petition to stipulated unit as extrinsic evidence.
Casino Aztar, 349 NLRB 603 (2007): Outlined community of interest factors, including functional integration and contact among employees.
Printpro, Inc. D/B/a Seven Corners Print & Promo, 18-RC-362022 (Regional Election Decision)
This decision addresses whether a screen-printing manager at the Employer's Minneapolis facility is a supervisor under Section 2(11) of the Act and therefore excluded from the petitioned-for bargaining unit. The International Union of Painters and Allied Trades, Local 880 Sign and Display sought to represent all employees who perform screen-printing on fabric at the facility. Historically, only two employees worked year-round in the department: a screen-printing manager and a screen-printing operator.
The Regional Director analyzed whether Will Cushman, the screen-printing manager, possessed any of the supervisory indicia enumerated in Section 2(11) of the Act. The decision examined evidence regarding hiring authority, assignment and responsible direction, transfer authority, promotion/reward authority, layoff authority, and disciplinary authority.
On hiring, the Regional Director found insufficient evidence that Cushman could effectively recommend hires, noting his role was limited to screening for technical skills and compatibility. Regarding assignments, the evidence showed Cushman worked collaboratively with other employees rather than independently assigning work. The decision found no evidence Cushman was held accountable for directions given to employees, no authority to effectively transfer employees, no authority to conduct performance evaluations affecting wages, and no involvement in layoff decisions or disciplinary actions.
After examining all potential supervisory indicia, the Regional Director concluded the Employer failed to establish that Cushman possessed any of the authorities listed in Section 2(11). Consequently, Cushman was found to be a statutory employee included in the bargaining unit, and an election was directed in the petitioned-for unit.
Significant Cases Cited
Oakwood Healthcare, Inc., 348 NLRB 686 (2006): Defined key terms in Section 2(11) including "assign," "responsible direction," and "independent judgment."
Golden Crest Healthcare Center, 348 NLRB 727 (2006): Established that conclusory statements without supporting evidence do not establish supervisory authority.
NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706 (2001): Outlined the three requirements for establishing supervisory status under Section 2(11).
Tracy Toyota, 372 NLRB No. 101 (2023): Found that assignments carried out in collaboration with employees subject to the assignment lack independent judgment.
J.C. Penney Corp., 347 NLRB 127 (2006): Explained that effective hiring recommendations require more than mere screening of applications or ministerial participation.
Atlantic Recovery Services, Inc., 04-RC-367692 (Regional Election Decision)
This decision addresses a petition by the International Union of Operating Engineers Local 542, AFL-CIO, seeking to represent a unit of CDL drivers at the Employer's Morrisville, Pennsylvania facility. The Employer contested the unit's appropriateness, arguing that technicians (non-CDL drivers) and employees from multiple yards should be included.
The Regional Director analyzed whether the petitioned-for unit of CDL drivers at a single facility constituted an appropriate unit. Applying community of interest factors, the decision found that CDL drivers share sufficient commonalities in licensing, training, job duties, and working conditions to constitute an appropriate unit. All CDL drivers have commercial driver licenses, receive specific training, perform similar duties involving truck operation, and earn similar wages.
Regarding technicians, the Regional Director found the Employer failed to demonstrate they share an "overwhelming community of interest" with CDL drivers that would mandate their inclusion. The decision noted clear distinctions: technicians lack CDL licenses but have confined space certification that CDL drivers don't possess; they perform different job functions; there is limited interaction between the groups; and technicians earn significantly less than CDL drivers.
The Regional Director also determined the Employer failed to rebut the single-facility presumption. Despite some centralized control over personnel policies, there was minimal employee presence overlap between yards, no integration of responsibilities, and limited interaction between employee groups.
Based on these findings, the Regional Director directed an election in the petitioned-for unit of CDL drivers at the Morrisville facility.
Significant Cases Cited
American Steel Construction, Inc., 372 NLRB No. 23 (2022): Returned to the "overwhelming community of interest" standard for determining appropriate bargaining units.
Specialty Healthcare & Rehab. Ctr. of Mobile, 357 NLRB 934 (2011): Established that the Board need only find an appropriate unit, not the most appropriate unit, and articulated the "overwhelming community of interest" standard.
Trane, 339 NLRB 866 (2003): Established the presumptive appropriateness of single-facility units and factors for rebutting this presumption.
United Operations, Inc., 338 NLRB 123 (2002): Set forth community of interest factors for determining appropriate bargaining units.
PCC Structurals, Inc., 365 NLRB No. 160 (2017): A decision that was overruled by American Steel Construction regarding the standard for determining appropriate bargaining units.
HBC Management Services, Inc., 05-RC-369948 (Regional Election Decision)
This decision addresses a petition filed by Governed United Security Professionals seeking to represent armed and unarmed sergeants and security officers employed by HBC Management Services at the Social Security Administration's National Support Center facility in Urbana, Maryland. During the administrative investigation, the Regional Director discovered that HBC had succeeded AmeriGuard Security Services as the contractor at the facility. AmeriGuard's employees had been represented by Union Rights for Security Officers (Intervenor), and a majority of employees hired by HBC were previously employed by AmeriGuard at the facility.
The Regional Director determined that HBC qualified as a successor employer under Board precedent and thus was obligated to recognize and bargain with the Intervenor. Under the successor-bar doctrine, a successor that recognizes an incumbent union is entitled to a reasonable period of bargaining during which no representation petitions may be processed. This insulated period ranges from six months to one year from the first bargaining meeting.
The Regional Director issued a Notice to Show Cause as to why the petition should not be dismissed under the successor-bar doctrine. The Petitioner responded but did not contest the factual findings. Instead, they argued that (1) the rule of law had changed several times, (2) they had a showing of interest from employees, and (3) there was sufficient time to conduct an election. The Regional Director rejected these arguments, noting that the successor-bar doctrine established in UGL-UNICCO remains current Board law, and dismissed the petition.
Significant Cases Cited
NLRB v. Burns International Security Services, 406 U.S. 272 (1972): Established principles for determining successor employer status and bargaining obligations.
UGL-UNICCO Service Co., 357 NLRB No. 76 (2011): Established the current successor-bar doctrine that protects an incumbent union's representative status for a reasonable period.
St. Elizabeth Manor, Inc., 329 NLRB 341 (1999): Earlier case setting forth the successor-bar doctrine that was later modified in UGL-UNICCO.
MV Transportation, 337 NLRB 770 (2002): Decision that was overruled by UGL-UNICCO regarding successor employers' bargaining obligations.
AmeriGuard Security Services, Inc., 05-RC-369355 (Regional Election Decision)
This decision involves a petition filed by Governed United Security Professionals seeking to represent armed and unarmed security officers employed by AmeriGuard Security Services at the Social Security Administration's National Support Center facility in Urbana, Maryland. Shortly after the petition was filed, the Regional Director learned that AmeriGuard had lost its contract to provide security services at the facility, had ceased operations there, and was replaced by another security contractor.
The Regional Director issued a Notice to Show Cause as to why the petition should not be dismissed, noting that the Board will dismiss a petition when it is "reasonably certain that conducting an election will serve no purpose," such as when an employer ceases operations or sells its business. When no party responded to the Notice to Show Cause, the Regional Director dismissed the petition and withdrew the Notice of Representation Hearing, as conducting an election would serve no useful purpose.
The decision explains that parties may request review of this action by filing with the Executive Secretary of the NLRB by August 27, 2025.
Significant Cases Cited
Retro Environmental, Inc./Green JobWorks, LLC, 364 NLRB 922 (2016): Established that the Board will dismiss a petition when conducting an election would serve no purpose.
Hughes Aircraft Co., 308 NLRB 82 (1992): Supported the principle of dismissing petitions when employer operations cease.
Martin Marietta Aluminum, 214 NLRB 646 (1974): Precedent for dismissing petitions when the employer ceases operations.
Cooper International, 205 NLRB 1057 (1973): Cited as supporting dismissal when conducting an election would serve no purpose.
Davey McKee Corp., 308 NLRB 839 (1992): Further precedent for dismissing petitions when employer operations fundamentally change.