11/28/2025: ArtCenter Provided Adequate Notice for Effects Bargaining
Union's request for self-determination election rejected in favor of standalone election.
ArtCenter College of Design, JD-85-25, 31-CA-325485 (ALJ Decision)
In this case, Administrative Law Judge Andrew S. Gollin dismissed a complaint alleging that ArtCenter College of Design violated federal labor law by failing to provide adequate notice and opportunity to bargain over the effects of creating two new managerial positions. The college implemented a realignment plan that created assistant chair and associate chair positions, which absorbed duties previously performed by faculty directors who were part of the bargaining unit.
The union claimed the college presented them with a fait accompli by moving forward with implementation despite requests to delay, and by refusing meaningful effects bargaining. However, Judge Gollin found that the college provided adequate notice (six weeks) and genuinely offered to bargain over effects. The critical finding was that while the college had no duty to bargain over its managerial decision to create these positions, it did fulfill its obligation to offer effects bargaining.
The judge determined that the union effectively abandoned effects bargaining after initially engaging. Despite the college’s repeated offers to continue negotiations through early 2024, the union stopped pursuing discussions after October 2023. Under Board precedent, particularly Berklee College of Music, the union was obligated to test the employer’s willingness to bargain rather than discontinue negotiations, especially since implementation was ongoing and resolution remained possible for the affected faculty directors who lost stipends and course releases.
The decision emphasizes that employers must provide pre-implementation notice for effects bargaining but can proceed with implementation if adequate notice is given. The burden then shifts to the union to pursue bargaining in good faith. Here, the union’s pivot to demanding decisional bargaining (which wasn’t required) and subsequent abandonment of effects bargaining proved fatal to its case.
Significant Cases Cited
First National Maintenance Corp. v. NLRB, 452 U.S. 666 (1981): Effects bargaining must be conducted in a meaningful manner and at a meaningful time, even when no duty exists to bargain over the decision itself.
Berklee College of Music, 362 NLRB 1517 (2015): A union cannot discontinue effects bargaining when implementation is ongoing and resolution remains possible; the union must test the employer’s intent to bargain.
Comau, Inc., 364 NLRB 523 (2016): Employers must provide pre-implementation notice sufficient to avoid presenting the union with a fait accompli at the bargaining table.
Frontier Communications, 370 NLRB No. 131 (2021): Once timely notice is provided, the onus shifts to the union to both request and pursue effects bargaining.
NLRB v. Yeshiva University, 444 U.S. 672 (1980): Faculty may be excluded from bargaining units when they exercise managerial authority in academic governance.
Albertson’s LLC, 27-RC-373560 (Regional Election Decision)
Regional Director Matthew S. Lomax denied the United Food and Commercial Workers Local 555’s request for an Armour-Globe self-determination election that would have allowed meat department employees at Albertson’s Kuna, Idaho store to vote on joining an existing multistore bargaining unit. Instead, the Regional Director directed a standalone election for just the Kuna store employees.
The union sought to add these unrepresented meat department workers to its existing 15-store bargaining unit covering similar employees in Boise, Nampa, and Caldwell. While acknowledging that the Kuna employees constitute an appropriate standalone bargaining unit, the Regional Director found they lack sufficient community of interest with the existing unit to warrant a self-determination election.
The decision turned on the community of interest analysis. Despite identical skills, training, and job functions between the groups, the Regional Director found the lack of functional integration, employee interchange, common supervision, and contact between the Kuna employees and existing unit members outweighed the similarities. Notably, there was zero evidence of employees working at locations outside their home store in the preceding year, and the stores operate autonomously under different district managers.
The Regional Director distinguished this case from the parties’ recent practice of stipulating to Armour-Globe elections at other stores, noting that stipulated units don’t bind the Board. The geographic distance (20 miles from Boise) and organizational structure differences proved decisive. The decision emphasizes that while meat department employees share professional commonalities, operational separation can defeat the community of interest necessary for adding employees to existing units through self-determination elections.
Significant Cases Cited
Armour & Co., 40 NLRB 1333 (1942): Established the self-determination election procedure allowing unions to add unrepresented employees to existing bargaining units.
Warner-Lambert Co., 298 NLRB 993 (1990): A self-determination election is proper for adding unrepresented employees if they share community of interest with the existing unit and constitute an identifiable segment.
United Operations, Inc., 338 NLRB 123 (2002): Sets forth comprehensive factors for determining community of interest including departmental organization, skills, supervision, and employee interchange.
Executive Resources Associates, 301 NLRB 400 (1991): The lack of significant employee interchange between groups is a strong indicator of separate communities of interest.
Public Service Company of Colorado, 365 NLRB 1017 (2017): Differences in employment terms resulting from collective bargaining don’t mandate exclusion in the Armour-Globe context.
American Rock Products, Inc., 19-RC-364040 (Regional Election Decision)
Regional Director Ronald K. Hooks upheld a Hearing Officer’s recommendation to overrule American Rock Products’ objection to a Teamsters Local 760 election victory. The employer challenged the election results, arguing that Steven Wagg, who served as the union’s observer, was a statutory supervisor whose presence improperly influenced the election. The union won by a narrow margin (9-7) among 17 eligible voters.
The central issue was whether Wagg, a batch plant supervisor, possessed supervisory authority under Section 2(11) of the Act. The Regional Director agreed with the Hearing Officer that Wagg lacked the independent judgment necessary for supervisory status. While Wagg made recommendations about driver assignments based on experience and terrain familiarity, ultimate decisions rested with centralized dispatch or Supervisor West. His schedule modifications were routine responses to absences or equipment issues rather than exercises of discretionary authority.
Critically, the employer failed to demonstrate that Wagg could be held accountable for subordinates’ performance—a key requirement for “responsibly directing” employees under Oakwood Healthcare. The employer’s evidence consisted primarily of hypothetical scenarios and generalized testimony lacking documentary support. Even when Wagg recommended scheduling changes (like spacing drivers five minutes apart on large pours), his suggestions weren’t implemented, undermining claims of effective recommendation authority.
The Regional Director affirmed the Hearing Officer’s credibility determinations, noting the Board’s policy against reversing such findings absent clear preponderance of contrary evidence. The certification of representative was issued, establishing the Teamsters as the exclusive bargaining representative for drivers, loaders, batch plant workers, and mechanics at the East Wenatchee facility.
Significant Cases Cited
Oakwood Healthcare, Inc., 348 NLRB 686 (2006): To “responsibly direct” employees, a putative supervisor must be accountable for subordinates’ performance and have authority to take corrective action if tasks aren’t performed properly.
Cook Inlet Tug & Barge, Inc., 362 NLRB 1153 (2015): Proper to consider lack of examples when evaluating claims of supervisory authority; assignments based on employee capability don’t necessarily involve independent judgment.
KGW-TV, 329 NLRB 378 (1999): Assignments based on well-known employee skills are considered routine and don’t demonstrate supervisory discretion.
Golden Crest Healthcare Center, 348 NLRB 727 (2006): Authority to verify timecards or perform similar administrative tasks is routine and clerical, not supervisory.
Stretch-Tex Co., 118 NLRB 1359 (1957): Board policy requires clear preponderance of relevant evidence to overturn a Hearing Officer’s credibility resolutions.
Mid-Town Petroleum Acquisition, LLC a Subsidiary of Reladyne, LLC, 13-RC-367070 (Regional Election Decision)
Regional Director Angie Cowan Hamada directed an election for a unit of fuel and oil (lube) drivers employed by Mid-Town Petroleum at three Illinois and Indiana locations, rejecting the employer’s argument that warehouse shipping/receiving employees, blender operators, and equipment technicians must be included. The Teamsters Local 705 petitioned to represent approximately 26 delivery drivers across these locations.
The Regional Director applied the American Steel Construction three-element test, finding the petitioned-for unit appropriate because it: (1) shares an internal community of interest, (2) is readily identifiable as a group, and (3) is sufficiently distinct from excluded employees. The employer bore the burden of proving an “overwhelming community of interest” between the drivers and excluded employees—a standard it failed to meet.
Key distinctions centered on specialized licensing requirements. All delivery drivers must hold at minimum a Class B CDL, with fuel drivers additionally requiring HAZMAT endorsements. The excluded employees generally don’t need commercial licenses for their primary duties. While all warehouse employees share basic conditions (uniforms, handbooks, benefits), the drivers’ distinct skills, job functions, and mobility requirements set them apart. The drivers spend their days on delivery routes while excluded employees work primarily at the Chicago Heights warehouse.
The decision rejected the employer’s “warehouse team” argument, finding only minimal functional integration and limited interchange between classifications. Though some overlap exists (emergency deliveries by warehouse staff 2-3 times yearly, occasional driver assistance with loading), these sporadic interactions don’t create the overwhelming community of interest required to mandate inclusion. The Regional Director emphasized that more than one appropriate unit configuration may exist, and the Board need only find that the petitioned-for unit is “an” appropriate unit, not the “most” appropriate one.
Significant Cases Cited
American Steel Construction, Inc., 372 NLRB No. 23 (2022): Established the current three-element test for unit appropriateness: internal community of interest, readily identifiable group, and sufficient distinction from excluded employees.
United Operations, Inc., 338 NLRB 123 (2002): Sets forth traditional community of interest factors including departmental organization, skills, job functions, integration, contact, interchange, employment terms, and supervision.
Home Depot USA, Inc., 331 NLRB 1289 (2000): Lack of functional integration exists where employees don’t spend substantial time working alongside each other; specialized licensing requirements distinguish employee groups.
Overnite Transportation Company, 322 NLRB 723 (1996): The Act requires only that a unit be “appropriate,” not the optimum or most appropriate unit for collective bargaining.
DTG Operations, Inc., 357 NLRB 2122 (2011): Infrequent and limited interchange doesn’t preclude finding that a petitioned-for unit has a distinct community of interest.