Employment Law Daily UPS Ground fails in bid to challenge appropriateness of single-facility bargaining unit
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Tuesday, April 23, 2019

UPS Ground fails in bid to challenge appropriateness of single-facility bargaining unit

By Ronald Miller, J.D.

Because UPS Ground failed to identify a defect in the NLRB’s decision to certify a union as bargaining representative for a unit of drivers at a distribution facility, the D.C. Circuit denied its petition for review and granted the Board’s cross-application for enforcement.

In view of the “significant evidence of local autonomy over labor relations matters at a UPS Ground facility, and the considerable distance between the facility and other facilities,” the NLRB General Counsel reasonably found that a single-facility bargaining unit was appropriate, ruled the D.C. Circuit. Further, the Board reasonably determined that a driver was an “employee” under the NLRA, and not a statutory supervisor, where he lacked authority to require other employees to accept a particular route, and merely administered road tests to new hires and reported results to management. Moreover, an acting regional director properly directed a mail-ballot election after determining that travel distances, traffic and weather conditions might hinder employees from voting (UPS Ground Freight, Inc. v. NLRB, April 19, 2019, Srinivasan, S.).

Representation election. Teamsters Local 773 filed a petition with the NLRB seeking an election among all drivers at the distribution facility. An acting regional director scheduled a pre-election hearing, at which the parties presented evidence on the supervisory status of one of the drivers. The regional director directed a mail-ballot election at the facility without ruling on the driver’s supervisory status.

By a vote of 27-1, the employees voted in favor of the union. The Board denied the employer’s petition for review, finding that the driver was not a statutory supervisor and that, in the alternative, he did not engage in objectionable conduct if he were a supervisor.

Subsequently, the union made a formal request to bargain. UPS Ground refused, and the General Counsel issued an unfair labor practice complaint. The Board rejected the employer’s challenges to the union’s certification and then determined that it committed unfair labor practices by refusing to bargain. UPS Ground filed a petition for review; the Board filed a cross-application to enforce its order.

Single-facility unit was appropriate. The D.C. Circuit first determined that the Board certified an appropriate bargaining unit. The bargaining unit was selected “by a majority of the employees in a unit appropriate for [collective bargaining] purposes.” Here, the regional director reasonably found that factors such as “geographic proximity, employee interchange, and transfer, functional integration, administrative centralization, common supervision, and bargaining history” favored a single-facility bargaining unit, rather than a unit encompassing all of UPS Ground’s facilities.

Driver’s employee status. Further, the Board reasonably determined that the challenged driver was an “employee” under the NLRA and not a “supervisor” excluded from the Act’s protections. The employer contended that the driver performed four supervisory functions: assigning work, making hiring recommendations, directing employees, and adjusting grievances. However, the evidence supported the Board’s conclusion that he lacked authority to require a driver to accept a particular route. Also, he had input on hiring recommendations only insofar as he administered road tests to new hires and reported the results to management.

Because the Board properly concluded that the driver was not a supervisor, that finding rendered irrelevant the question of taint sparked by the alleged supervisor’s support for the union.

Mail-ballot election. The regional director also properly directed a mail-ballot election after determining that the employees traveled long distances and that traffic and weather conditions, particularly in the winter, might hinder them from returning to the facility in time to permit them to vote. UPS Ground’s alternative proposal—to arrange drivers’ work schedules so they could vote before leaving on their assigned routes—was reasonably rejected by the regional director since it ensured the ability to vote only of “most of [the drivers] before they go.” Moreover, the mail-ballot election did not impermissibly restrict the employer’s right to campaign.

Disputed job classifications. Finally, the regional director did not abuse his discretion by declining to decide before the election whether two employees in disputed job classifications (safety instructor and dispatcher) were part of the bargaining unit. The appeals court noted that it is common practice to permit such employees to vote under challenge. That practice did not imperil the bargaining unit’s right to make an informed choice so long as the election notice “alerts employees to the possibility of change” to the definition of the bargaining unit. This is what happened here.

Thus, UPS Ground’s petition for review of the Board decision was denied, and the Board’s cross-application for enforcement was granted.

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