Employment Law Daily NLRB: Accretion into unit improper where new position was created as a check on existing unit members’ work
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Monday, March 4, 2019

NLRB: Accretion into unit improper where new position was created as a check on existing unit members’ work

By Lisa Milam, J.D.

The new post was established in response to theft schemes perpetrated by bargaining unit employees, weighing sharply against a finding of an overwhelming community of interest.

Material receiving coordinators (MRCs) who perform checks on the work of weighmasters at a solid waste disposal facility are not an appropriate accretion to an existing bargaining unit comprised of weighmasters and other job classifications. The MRCs work in close proximity to unit members, they share supervision, and their work is functionally integrated, but they have a separate identity and a complete lack of interchange with bargaining unit members—presumably by design, an NLRB panel surmised, since the position was created to serve as management’s “eyes and ears” in response to theft schemes carried out by (since discharged) unit members, causing a $2 million loss to the company (Recology Hay Road, February 27, 2019).

Teamsters Local 315 represents a 40-member bargaining unit at the facility, in the job classifications of weighmaster, equipment operators, equipment servicers, spotter/traffic control/load checker, and landfill laborers. In 2016, the company created two MRC positions and two employees were hired into those jobs. The union petitioned for a unit clarification with respect to the MRCs, and the Regional Director found they are an accretion to the existing unit. The Board reversed.

Workflow. Weighmasters are the initial point-of-contact for customers at the waste disposal facility. Customers make their first stop at the facility’s scale house, where the weighmaster inspects and weighs their waste load, then prepares a weight ticket and collects payment. Customers then must undergo a second, separate inspection by an MRC at an observation tower, a newly created step in the process. The purpose of the second inspection is to identify and correct discrepancies made by weighmasters in ensuring all of the customers’ debris is accounted for. When the MRCs identify an error on a weight ticket, they inform the weighmaster and record the discrepancy in a log that is reviewed by managers, who will decide whether to discipline the weighmaster for the error.

Burned by thefts. This was undisputed: The employer created the MRC position in response to theft schemes carried out by several unit employees. One involved weighmasters not issuing weight tickets in exchange for cash kickbacks; the other involved a unit foreman falsifying weight tickets in exchange for kickbacks. The employer fired the wrongdoers and hired two MRCs, a non-bargaining unit position, to serve as management’s “eyes and ears” by observing and reporting weighmasters’ infractions.

Accretion analysis. Accretion is proper only when the employees a party seeks to add to an existing bargaining unit have little or no separate identity from unit members, and where the two groups share an overwhelming community of interest. The two important factors are the extent of employee interchange and whether there is common day-to-day supervision. Here, both unit employees and MRCs are directly supervised by the site supervisor and generally supervised by its general manager. Also, there is daily interaction and communication between the MRCs, weighmasters, and spotters, and the MRCs’ job is an integral part of the operational chain, as the Regional Director noted. But “functional integration” is different from “interchange,” the Board explained, and MRCs do not have “significant interchange” with other members of the bargaining unit, as even the Regional Director acknowledged.

Separate identity. MRCs perform a brand new job function—reviewing weight tickets issued by weighmasters—a role that was added to prevent theft and costly errors by unit employees. And while the MRCs work in close proximity, they work on an observation tower, installed specifically to enable the MRCs to perform this review function. As such, the union could not establish that the MRCs have little or no separate group identity. Another factor in this regard: their health insurance benefits and retirement package differ from those received by bargaining unit employees.

Overwhelming community of interest. Despite shared supervision, integration of operations, and some common terms and conditions (they wear the same uniforms, have a common break room, and clock in and out the same way) this was not enough to find an overwhelming community of interest between the MRCs and bargaining unit employees, the Board concluded. They do not perform work in other classifications or vice versa, and there is no history of transfers between the MRC position and any bargaining unit position. That there is no evidence of permanent or temporary interchange between the MRCs and the bargaining unit employees is “critical,” said the Board, and weighs heavily against an accretion finding.

Adversarial nature is key. The complete absence of interchange “appears quite intentional given that the Employer purposefully established the new MRC classification to prevent theft and costly errors by other employees,” the Board pointed out in a footnote. Given that the MRCs’ primary role is to review and report weighmaster errors, a job not performed by unit members, means a finding of an overwhelming community of interest is particularly unwarranted. “The adversarial nature of the MRCs’ monitoring and reporting function further buttresses our finding that they do not share an overwhelming community of interest with bargaining unit employees.”

Heavy burden not satisfied. Because the MRCs have at least some separate identity from the bargaining unit members and do not share an overwhelming community of interest with them, the union could not meet its heavy burden of establishing that accretion is appropriate.

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