Printer Friendly Version

RHOADS & SINON LLP ATTORNEYS AT LAW
ONE SOUTH MARKET SQUARE
P.O. BOX 1146
HARRISBURG , PA 17108-1146
www.rhoads-sinon.com

David F. O’Leary’s Direct Dial: 717-231-6633
FAX: 717-231-6637

Email: doleary@rhoads-sinon.com

Employment & Labor Law Group

TO: Clients, Friends and Colleagues of Rhoads & Sinon

FROM: David F. O’Leary

RE: Employment Law Note #7. NLRB War Story. How To Defeat A Union Organizing Drive Without Even Having an NLRB Election -- Part 2 of 2 (December 2003)

Periodically (no more than once a month), I write a brief essay on an employment law issue in which I am interested. I try to provide practical advice. Please do not hesitate to contact me if you have any questions or comments, or have a need for my services.

NLRB War Story. How To Defeat a Union Organizing Drive Without Even Having an NLRB Election (Part 2 of 2)

In Employment Law Note #6, I discussed the general rule of the National Labor Relations Board (NLRB) that a union may attempt to organize and represent a group of employees at one location of an employer, even if the employer operates out of multiple locations. This general rule that a particular employer location can be an appropriate unit of employees for a union to represent is based on the assumption that the employees’ day‑to‑day working conditions (hiring, firing and discipline) at the particular employer location are controlled by the autonomous decisions of management at that location, independent from the control of management somewhere else, and that the employees do not share much, if any, interest with employees employed at other employer locations because employees seldom transfer temporarily among the employer’s locations.

The NLRB will disregard this general rule only if an employer proves that central management (located elsewhere) and not local management controls the day‑to‑day working conditions of the employees and there is significant temporary transfers of employees among the employer’s various locations.

Earlier in the year, my colleague, Kevin Gold, and I represented a company which had 5 manufacturing plants in central Pennsylvania, within a 45-mile radius, employing nearly 900 employees. A union began an organizing campaign at one of the employer’s plants in Lancaster, PA and filed a petition for an election with the NLRB to represent the approximately 160 production and maintenance employees in Lancaster.

We objected to the union’s proposed bargaining unit on the grounds that the Lancaster plant did not have a separate identity but was thoroughly integrated with the other employer plants in central Pennsylvania. The NLRB conducted a hearing at its regional office in Philadelphia at which we presented the testimony of three employer witnesses: the CEO, the head of human resources, and the Lancaster plant manager. They testified truthfully that all material matters regarding hiring, compensation, significant discipline and termination were controlled by management at the corporate headquarters and not by management in Lancaster. Lancaster management made recommendations but they had no autonomy to make decisions. Our witnesses also testified that there were significant temporary transfers of employees among the company’s central Pennsylvania locations, and produced the data to back up their testimony. The employer explained that centralized control over hiring, compensation, discipline, and firing helped ensure that the employees received fair and consistent treatment throughout the company regardless of where they worked, and that transferring employees from one location to another was necessary to manage work flows and diminish the necessity of layoffs.

The NLRB upheld our objections to the union’s petition for an election and decided that in this case, the general rule did not apply and that if the union wanted to represent our client’s employees, it would have to organize employees at all five of the employer’s locations in central Pennsylvania and not just the plant in Lancaster. Since the union had conducted its organizing campaign only in Lancaster, it could not prove that there was a sufficient number of employees at the employer’s other plants who wanted an NLRB election. Accordingly, the union withdrew the election petition and walked away. There was no election! We had defeated the union’s organizing drive without even having an NLRB election!

Conclusion and Recommendation

The NLRB’s general rule about employers doing business at multiple locations and union organizing campaigns applies across the board to all employers in the private sector – industrial, manufacturing, transportation, and retail service businesses, such as banks, restaurants, hotels/motels. Employers that operate out of multiple locations should be aware of the general rule that a union which seeks to organize an employer’s employees does not have to organize all or none. The union can try to get a foothold at one location. Steps can be taken to prevent that. But these steps – centralizing hiring, compensation, firing and discipline and transferring employees among the employer’s facilities – are not insignificant. These steps should be adopted only if they are consistent with the employer’s overall business plan and objectives.