By Kathleen Kapusta, J.D. An employer that unilaterally removes a job title from a bargaining unit mid-contract violates the NLRA, held the Fifth Circuit, enforcing an NLRB order finding that an electric company committed an unfair labor practice when it modified the scope of the bargaining unit by reclassifying two categories of employees as supervisors during the life of the contract without Board approval and with express disapproval from the union. Further, the Board’s finding that the company’s unit clarification petition—filed more than four months after execution of the new contract—was untimely was supported by substantial evidence, said the court, denying the company’s petition to review (Dixie Electric Membership Corp. v. NLRB, February 25, 2016, Southwick, L.). For more than 40 years, the union represented employees at Dixie Electric’s Baton Rouge, Louisiana, facility and the collective bargaining agreement included chief systems operators and systems operators (collectively, systems operators) among employees in the bargaining unit. Systems operators assign field personnel to address power outages and other problems; they monitor and control certain electrical systems, analyze outages, prioritize work assignments, and maintain records. Plans to reclassify. Several months before the CBA was to expire, Dixie began making plans to adjust the duties of systems operators and reclassify them as supervisors, despite the union’s objections. Although the parties subsequently agreed on a new contract, the union reserved its objection to the reclassifications. A month later, it filed a charge alleging that Dixie committed an unfair labor practice by unilaterally removing employees from the bargaining unit. Dixie filed a unit clarification petition concurrently with its answer to the charge seeking a final resolution as to whether the positions could be lawfully excluded under the new contract, and weeks later, it filed a separate unit clarification petition. Board decision. An administrative law judge found that Dixie violated the NLRA by modifying the scope of the bargaining unit, and in the alternative, transferring work out of the unit without bargaining over the subject. Because it found the unit clarification petitions untimely, it did not consider them. Affirming the decision, the NLRB ruled that Dixie violated Section 8(a)(5) and (d) when it eliminated the systems operator positions mid-contract and gave those employees new positions outside the bargaining unit. Although Dixie focused primarily on whether the systems operators were supervisors, the Board did not make a factual finding on this issue. Because Dixie Electric voluntarily chose to include them in the unit, whether they were supervisors was irrelevant, reasoned the Board. Unit modification. The Board has long held that the scope of a unit, once established, cannot be unilaterally modified while a contract is in effect, observed the court, noting that other circuits recognize that “if an employer could vary unit descriptions at will, it would have the power to sever the link between a recognizable group of employees and its union as the collective bargaining representative of these employees,” which would render a contract meaningless. Agreeing, the appeals court found that an employer who unilaterally removes a job title from a bargaining unit mid-contract violates the NLRA. It was undisputed that Dixie unilaterally modified the scope of the unit. The contract expressly included systems operators and Dixie admittedly made the decision to remove those job titles from the unit during the life of the contract without Board approval and with the union’s express disapproval. Agreeing with the NLRB that such action is an unfair labor practice, the court found that by unilaterally removing those classifications of employees from the bargaining unit during the term of the contract, Dixie violated the NLRA. Unit clarification petition. As to the unit clarification petition, the Board has held that unit clarification petitions may not be filed mid-contract to upset an established CBA between a union and employer. And while petitions may be entertained if filed “shortly after” a contract is executed, the outer limit of “shortly after” recognized so far is 79 days, the court observed. Because the petition here was filed more than four months after execution of the new contract, and Dixie failed to offer any convincing explanation for its late filing, the court found that considering it now would inappropriately disrupt the parties’ bargaining relationship. Therefore, the Board’s conclusion that the petition was untimely also was reasonable.
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