Allied Services, LLC, d/b/a Republic Services of Dexter

National Labor Relations Board - Unpublished Board Decisions

Sep 11, 2017

14-RC-192027 (N.L.R.B. Sep. 11, 2017)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
ALLIED SERVICES, LLC, d/b/a REPUBLIC
SERVICES OF DEXTER
Employer
and Case 14-RC-192027
TEAMSTERS LOCAL 600
Petitioner
ORDER
The Employer’s Request for Review of the Acting Regional Director’s Decision
and Order is denied as it raises no substantial issues warranting review.1

1In denying review, we reject the Employer’s contention that the scale operator,
who voted subject to challenge, may be included in the unit only upon a showing that
she shares an overwhelming community of interest with the drivers and heavy
equipment operators. Throughout the proceeding, the Petitioner consistently sought the
inclusion of the scale operator in the unit. By entering into a stipulated election
agreement that provided for the scale operator to vote subject to challenge, the
Petitioner in no way abandoned that position. Accordingly, the Acting Regional Director
correctly found that the Petitioner’s burden of proof is to show only that the scale
operator shared a community of interest with the employees in the stipulated unit. As
the Acting Regional Director noted, adoption of the Employer’s position that the effect of
the challenge provision was that the scale operator classification could be included in
the unit only upon a showing that it shares an overwhelming community of interest with
the stipulated inclusions would provide a disincentive for petitioners to enter into
stipulated election agreements, because it would put them in a worse position than had
they insisted on a pre-election hearing. We also find the Employer’s reliance on
Odwalla, Inc., 357 NLRB 1608 (2011), is misplaced. Odwalla’s admonition--that the
Board should treat the stipulated unit as the petitioned-for unit for purposes of applying
Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934, enfd. sub nom.
Kindred Nursing Centers East, LLC v. NLRB, 727 F.3d 552 (6th Cir. 2013)--applies only
where, as in Odwalla, it is the nonpetitioning party that seeks the inclusion of the
classification(s) voting subject to challenge. See Odwalla, Inc., 357 NLRB at 1608,
1611 & n.27 (where the parties enter into a stipulated election agreement providing for
an additional group of employees (“merchandisers”) to vote subject to challenge and it
is the nonpetitioning party that contends that the additional group must be added to the
unit sought by the petitioner for the unit to be appropriate, we treat the stipulated unit as
the petitioned-for unit for purposes of the analysis).
We also find that the Acting Regional Director correctly applied the two-step
framework in Specialty Healthcare, in finding the petitioned-for unit, which included

operations employees and excluded maintenance employees, to be an appropriate unit.
Under that framework, which adheres to well-settled precedent that the Board need find
“only that the unit proposed is an appropriate, rather than the most appropriate unit,”
Specialty Healthcare, supra at 940 (emphasis in original), the Board first determines
whether the petitioned-for employees are readily identifiable, and whether they share a
community of interest. In appraising community of interest, the Board applies the
following traditional factors: whether the employees are organized into a separate
department; have distinct skills and training; have distinct job functions and perform
distinct work, including inquiry into the amount and type of job overlap between
classifications; are functionally integrated with the Employer's other employees; have
frequent contact with other employees; interchange with other employees; have distinct
terms and conditions of employment; and are separately supervised. If the Board finds
that the petitioned-for unit has a community of interest, the Employer has the burden of
demonstrating that the additional employees it seeks to include share an “overwhelming
community of interest” with the petitioned-for employees, such that there “is no
legitimate basis upon which to exclude” the additional employees from the unit. Id. at
944-946.
In this case, the petitioned-for unit includes operators who operate heavy
equipment at the Employer’s landfill, drivers who collect and transport waste to the
landfill, and a scale operator who weighs and records the waste before drivers continue
on to the landfill. These employees constitute a single department, work the same
hours and operate out of the same building, share supervisors, regularly interact with
each other, and all perform steps in the basic operation of the landfill. The excluded
maintenance employees, conversely, perform a separate role by repairing the
Employer’s trucks and heavy equipment. The maintenance employees constitute a
separate department with their own building and supervisors, work separate hours,
have no interchange with unit employees, and only interact with unit employees in order
to get basic information about equipment malfunction. We therefore find that the
petitioned-for operations employees share a community of interest, and that the
Employer has not established an overwhelming community of interest between the
petitioned-for employees and the maintenance employees outside the petitioned-for
unit. We note that applying the overwhelming community of interest standard to the
maintenance employees, which the Employer concedes is the appropriate analysis,
puts the Employer in the same position it would have been in had it declined to enter
into a stipulated election agreement and the matter had been determined following a
pre-election hearing, given that the petitioned-for employees are readily identifiable as a
group and share a community of interest.
Chairman Miscimarra disagrees with the Specialty Healthcare standard. See
Macy's, Inc., 361 NLRB No. 4, slip op. at 25-32 (2014) (Member Miscimarra,
dissenting). Thus, Chairman Miscimarra does not join in or rely on any aspect of the
majority’s discussion of Specialty Healthcare and standards arising under that case. He
nevertheless finds that the petitioned-for employees, including the operators, drivers
and the scale operator (but excluding the maintenance employees) constitute an
appropriate unit under traditional community-of-interest principles. Accordingly,
PHILIP A. MISCIMARRA, CHAIRMAN
MARK GASTON PEARCE, MEMBER
LAUREN McFERRAN, MEMBER
Dated, Washington, D.C., September 11, 2017.

Chairman Miscimarra joins his colleagues in denying the Employer's Request for
Review.