Employment Law Daily NLRB: ‘Rideshare’ driver employees at Disney resort didn’t belong in bargaining unit of bus drivers
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Wednesday, January 30, 2019

NLRB: ‘Rideshare’ driver employees at Disney resort didn’t belong in bargaining unit of bus drivers

By Lisa Milam, J.D.

The Board reversed a Regional Director’s unit clarification to include a new group of employees who transport Walt Disney resort guests in rideshare fashion, using the Lyft app, among an existing bargaining unit of bus drivers.

“Ride Service Associates” (RSAs) hired by Disney to transport resort guests who hail “Minnie Vans” using the Lyft app were erroneously included among an existing bargaining unit of bus drivers, held a three-member panel of the NLRB. A Regional Director erred in applying Premcor, Inc. in clarifying the existing unit, the Board found. Also, an accretion finding was unwarranted under the Safeway Stores standard because the union did not establish that the RSAs had little or no separate group identity, or that they shared an overwhelming community of interest with employees in the existing unit (Walt Disney Parks and Resorts U.S. dba Walt Disney World Co., January 25, 2019).

“Minnie Vans.” Disney created a “Minnie Van” service for its resort guests in 2017—a point-to-point, individualized transportation service in which guests use the Lyft app to request on-demand rides to and from specific locations. Disney hired approximately 75 full-time “Minnie Van” drivers and created a new RSA job classification (notwithstanding the rideshare-like nature of the job, there was no independent-contractor misclassification question here, no dispute the RSAs were Disney employees).

Unlike the bus drivers at the resort, who have commercial driver’s licenses and transport guests among set routes on prescribed schedules, the RSAs do not require CDLs and have no set routes or schedules. Rather, in standard rideshare fashion, the RSAs pick up guests when requisitioned through the app, and deliver them to the specific locations of the guests’ choosing. The RSAs are trained to offer unique commentary to their passengers about the Disney experience. This “specialized unscripted guest interaction,” and the ability to answer questions or remedy guest problems, is considered a key function of the RSA’s role. (Bus drivers, in contrast, have little interaction with guests; they are not trained to resolve passenger complaints and are not authorized to do so.) Disney also has parking host/hostesses (PHHs) who direct traffic in guest parking lots and may drive open-air trams to transport guests from parking lot to park. PHHs also have little interaction with passengers; at most, they may deliver a prepared speech about the resort.

Bargaining unit clarification. A union representing Disney’s bus drivers and PHHs petitioned for a bargaining unit clarification seeking to include the RSAs in the existing bargaining unit. A Regional Director issued an order finding that the RSAs perform the same functions historically performed by unit employees and as such, are included in the unit under the principles set forth in Premcor, Inc., the Board’s 2001 decision.

Under Premcor, the Board views a new classification as already belonging in the bargaining unit (rather than being added to it by accretion) if workers in the new job classification perform the same basic duties historically performed by bargaining unit employees. If they do not, then the Board will add or “accrete” the new classification to the unit only if the employees sought to be added “have little or no separate identity and share an overwhelming community of interest” with preexisting unit employees. Disney petitioned for review, arguing that Premcor should not have been applied here because the new RSA classification did not already belong in the bargaining unit; moreover, it asserted, the facts here do not establish that the RSAs are an accretion to the existing unit. On review, the three-member Board panel (Democratic member McFerran included) agreed.

Different functions. The Regional Director applied Premcor after concluding that the RSAs perform the same basic functions as bus drivers. The Board rejected this finding (and also declined to find the RSAs performed the same functions as PHHs, for that matter). While RSAs drive minivans and SUVs, bus drivers operate commercial buses and require a CDL. RSAs respond to specific customer requests for pick-up and drop-off and drive wherever the customer dictates, while bus drivers operate on a predetermined route, and drive on that route even when they are not currently transporting customers. The differences in the respective job functions are reflected in the different training they receive: while bus drivers receive 14 weeks of training including CDL training), RSAs train for just two weeks, and much of that training is on guest interaction, which is not part of the bus drivers’ duties (and bus drivers are not imbued with the same authority to respond to customer complaints).

Moreover, the Board observed, there is no indication that the creation of the RSA position disrupted the purportedly-comparable unit classifications. Although nearly half the RSAs were former bargaining unit employees, only three were former bus drivers, and none appear to have been PHHs. This was not a situation in which unit classifications were displaced by the creation of the RSA position either. “RSAs perform brand-new functions using different equipment and different skills gained through different training to serve guests in a distinct manner, while unit employees continue to perform their functions as they did before,” the Board noted.

The Regional Director reasoned that the differences between RSAs and bus drivers was solely a function of technological advances, but the Board disagreed. “Although the development of applications such as Lyft has doubtlessly facilitated the type of service performed by the RSAs, and was apparently the Employer’s motivation for creating the RSA classification, the transportation part of the service—on-demand transport of passengers from one point to another—is not a new idea,” the Board said. “Indeed, the idea of individualized transport can be traced back to the role historically filled by taxi drivers long before ride-hailing applications.” And there was no indication here that any of the existing bargaining unit classification had provided taxi services. At any rate, the other key element of the RSAs’ role—the guest interaction and ability to remedy their complaints—had nothing to do with the Lyft technology used to summon the drivers. “Thus, the Employer did not create the RSA classification in order to utilize new technology in performing a function previously performed by a unit classification,” the Board concluded.

Accretion unwarranted. Having ruled out application of Premcor, the Board next concluded that an accretion finding was unwarranted in this case because the union failed to establish either that the RSAs have little or no separate group identity or that they share an overwhelming community of interest with the bus drivers and other bargaining unit employees.

The Board considered the usual community-of-interest factors and conceded that “[a]s is usually the case, some factors here may support an accretion finding,” but the two most critical factors—employee interchange and common day-to-day supervision—weighed against a community-of-interest finding. There was very limited evidence of interchange between the RSAs and unit employees, it concluded, pointing to the differences in job functions, licensing requirements, and training. Bus drivers can’t perform the RSA job and vice versa, given their different training and licensing requirements, the Board noted, so it was hardly surprising there was little temporary interchange between the two roles, which is a more significant indicator than permanent transfers (of which there were three, among 75 RSAs), the Board said. Nor was there evidence of shared day-to-day supervision.

Several other factors supported the conclusion that accretion was unwarranted, including that there was little functional integration with and minimal contact between RSAs and bus drivers. The “skills and functions” criteria did not favor accretion either since RSAs receive considerably more training on guest relations while bus drivers receive CDL training and RSAs do not. Nor did the bargaining history support accretion, as the RSA position was new and, as such, had never been bargained over or included in a collective bargaining agreement. Therefore, the union did not establish that RSAs have an overwhelming community of interest with bargaining unit employees.

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