AMR of Maricopa LLC

National Labor Relations Board - Unpublished Board Decisions

Jul 10, 2020

28-UC-223664 (N.L.R.B. Jul. 10, 2020)

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UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
AMR OF MARICOPA, LLC
Employer/Petitioner
and Case 28-UC-223664
AMERICAN FEDERATION OF STATE,
COUNTY AND MUNICIPAL EMPLOYEES,
LOCAL 2960, AFL-CIO
Union
and
INTERNATIONAL ASSOCIATION OF FIRE
FIGHTERS, LOCAL I-60, AFL-CIO
Union
and
INDEPENDENT CERTIFIED EMERGENCY
PROFESSIONALS, LOCAL R12-170,
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, SERVICE EMPLOYEES
INTERNATIONAL UNION
Union
AMR OF MARICOPA, LLC d/b/a AMR;
PROFESSIONAL MEDICAL TRANSPORT, INC.
d/b/a PMT, LIFE LINE, and AMR; and SW
GENERAL, INC. d/b/a SOUTHWEST
AMBULANCE and AMR
Employers/Petitioners
and Case 28-RM-234875
AMERICAN FEDERATION OF STATE,
COUNTY AND MUNICIPAL EMPLOYEES,
LOCAL 2960, AFL-CIO
Union
and
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INTERNATIONAL ASSOCIATION OF FIRE
FIGHTERS, LOCAL I-60, AFL-CIO
Union
and
INDEPENDENT CERTIFIED EMERGENCY
PROFESSIONALS, LOCAL R12-170, NATIONAL
ASSOCIATION OF GOVERNMENT EMPLOYEES,
SERVICE EMPLOYEES INTERNATIONAL UNION
Union
DECISION ON REVIEW AND ORDER REMANDING
The Employers/Petitioners’ request for review of the Regional Director’s Decision and
Order is granted as it raises substantial issues warranting review. On review, we affirm the
Regional Director’s dismissal of the Employers/Petitioners’ RM petition but remand the UC
petition for further appropriate action.
The three Employers/Petitioners1 provide ambulance services in Maricopa County,
Arizona. All three employ emergency medical service (EMS) and interfacility transfer (IFT)
employees. At the time the RM and UC petitions were filed, there were three bargaining units,
each containing the respective Employer’s EMS and IFT employees and each represented by a
different union.2 The Employer AMR of Maricopa filed a UC petition seeking to reorganize the
1 Hereinafter “the Employers.”
2 American Federation of State, County and Municipal Employees, Local 2960, AFL-CIO
(AFSCME) represents the IFT and EMS employees employed by AMR of Maricopa;
International Association of Fire Fighters, Local I-60, AFL-CIO (IAFF) represents the IFT and
EMS employees employed by SW General; and Independent Certified Emergency Professionals,
Local 412-170, National Association of Government Employees, Service Employees
International Union (ICEP) represents the IFT and EMS employees employed by PMT. At the
time the UC petition was filed (July 13, 2018), collective-bargaining agreements covering all
three units were in effect; the agreement covering the ICEP unit expired on September 4, 2018,
and thus only the agreements covering the AFSCME and IAFF units were in effect when the RM
petition was filed on January 25, 2019. The agreement covering the IAFF unit subsequently
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three existing bargaining units into two units, one comprised of all three Employers’ EMS
employees, the other of all three Employers’ IFT employees. The Employers subsequently
jointly filed an RM petition seeking an election in their proposed IFT unit. The Employers
argue, in effect, that both petitions should be processed due to the consolidation of their formerly
separate operations. The Regional Director dismissed both petitions. The Employers requested
review and AFSCME and ICEP filed oppositions.
In dismissing the RM petition, the Regional Director found that the record did not
demonstrate that any of the Unions presented a demand to be recognized as the bargaining
representative of any employees outside of their own bargaining units. We agree.3 Board
precedent clearly states that a RM petition must be predicated upon a union’s claim to be the
representative of certain employees and that the voting unit is generally the unit claimed by the
union to be appropriate. See, e.g., Carr-Gottstein Foods Co., 307 NLRB 1318, 1319 (1992); K.
Van Bourgondien & Sons, 294 NLRB 268, 268 & fn. 2 (1989).4 Here, the Employers have
predicated their RM petition on the fact that the recognition clauses covering the three extant
units include IFT employees. But all three recognition clauses cover units that include IFT and
EMS employees and there is no evidence that any of the Unions have made any claim to
expired on June 30, 2019. The agreement covering the AFSCME unit expires on March 31,
2022.
3 We therefore do not reach the Regional Director’s additional findings that the Employers had
not established a “good-faith reasonable uncertainty” in the unions’ continuing majority status in
their respective units and that the RM petition would in any event be barred by the contracts
covering the ASFCME and IAFF units.
4 See also Sec. 102.61(b)(3) of the Board’s Rules and Regulations (requiring a RM petition to
include a “brief statement setting forth that one or more individuals or labor organizations have
presented to the petitioner a claim to be recognized as the exclusive representative of all
employees in the unit claimed to be appropriate” (emphasis added)).
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represent all three groups of IFT employees in a single, separate unit.5 In the absence of any
present claim for recognition in the proposed IFT unit, no question of representation has been
raised, and the Regional Director correctly dismissed the RM petition.
In dismissing the UC petition, the Regional Director applied the Board’s accretion test
and found that the Employers’ actions in consolidating their operations did not warrant accreting
the EMS and IFT employees currently combined in three separate units (by Employer) into two
separate units (by EMS and IFT status). Under that test, the Board will accrete employees to an
existing bargaining unit without an election when the employees sought to be added “have little
or no separate identity and share an overwhelming community of interest with the preexisting
unit to which they are accreted.” E.I. DuPont de Nemours, Inc., 341 NLRB 607, 608 (2003),
quoting Ready Mix USA, Inc., 340 NLRB 946, 954 (2003). The Regional Director found that the
employees in each of the current units retained a separate group identity and did not share an
overwhelming community of interest across the unit divide.
Contrary to the Regional Director, we find that this case does not implicate the accretion
analysis. As the Regional Director stated, an accretion is the addition of a relatively small group
of employees to an existing unit. Here, however, the Employers do not seek to add any
employees to any existing unit; instead, they contend that the three existing units have been
rendered inappropriate by organizational changes and seek to reconfigure them into two new
5 The cases cited by the Employer are not to the contrary because in each case at least one union
claimed to represent the employees in the newly-merged unit or units. See Massachusetts
Electric Co., 248 NLRB 155, 156-157 (1980); Boston Gas, 221 NLRB 628, 629 (1975);
Westinghouse Electric Corp., 144 NLRB 455, 458 (1963). The same is also true of Martin
Marietta Co., 270 NLRB 821, 822 (1984), where one of the current bargaining representatives
expressed a willingness to represent a combined unit. Martin Marietta is also distinguishable
because in that case the historical units and the unit sought by the employer were all of the same
scope (production-and-maintenance), whereas here the proposed IFT unit would differ in scope
from the extant units, which also include EMS employees.
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units. That being the case, the applicable inquiry is set forth in Rock-Tenn Co., 274 NLRB 772
(1985). Under Rock-Tenn and its progeny, the Board will clarify a historical unit where, based
on recent, substantial changes, the historical unit no longer conforms to normal standards of
appropriateness. See Armco Steel Co., 312 NLRB 257, 259 (1993) (citing Lennox Industries,
308 NLRB 1237 (1992); Ameron, Inc., 288 NLRB 747 (1988)). Although this line of cases most
typically considers whether a single multilocation unit should be clarified into two separate units,
it is also applicable where, as here, a party seeks to divide a historical unit containing multiple
classifications into separate, classification-based units. See Sunoco, Inc., 347 NLRB 421, 424
(2006).
Applying these principles to the particular circumstances of this case, we find that there
have been recent and substantial organizational changes in the Employers’ operations. In
October 2015, AMR Holdco, AMR of Maricopa’s parent company, acquired the other two
Employers, and since then it has centralized several key personnel functions (including human
resources, labor relations, and payroll), restructured managerial and supervisory authority to
provide more separate oversight of EMS and IFT operations, instituted a common dispatch
center for all three Employers, and created two stations at which IFT employees of all three
Employers start and end their shifts and perform various logistical tasks (including vehicle
servicing and maintenance, drug checkouts, and uniform services).
The remaining question is whether these recent organizational changes have rendered the
three separate units inappropriate under normal standards of unit appropriateness. This inquiry
requires application of the Board’s traditional community-of-interest test,6 rather than accretion
analysis, to determine whether the changes have rendered the three units inappropriate. See
6 See, e.g., United Operations, Inc., 338 NLRB 123, 123 (2002).
6
Rock-Tenn, supra at 773 (citing changes that have “negate[d] any community of interest that may
have existed previously among” unit employees); Sunoco, supra at 424 (phrasing Rock-Tenn
inquiry as “whether the Employer’s restructuring resulted in significant organizational changes
that offset the community of interest previously existing among [the classifications at issue]”).
We therefore reinstate the UC petition and remand it to the Regional Director for further
consideration consistent with this decision. In applying the community-of-interest factors to
determine whether the three units remain appropriate, the Regional Director shall be mindful that
many existing distinctions among the three units have resulted from collective bargaining and
that such differences should be accorded less weight in a community-of-interest analysis.7 If the
Regional Director concludes that the recent and substantial changes have rendered the existing
units inappropriate, he shall proceed to consider whether the Employers’ proposed separate EMS
and IFT units or other alternative units would be appropriate.8
Accordingly, this case is remanded to the Regional Director for further appropriate action
consistent with this Decision, including reopening the record, if necessary, and the issuance of a
Supplemental Decision.9
7 Cf. Public Service Co. of Colorado, 365 NLRB No. 104, slip op. at 1 fn. 4 (2017) (in self-
determination context, stating the differences in employment terms do not mandate exclusion
and may reasonably be expected where they are the result of collective bargaining); Frontier
Telephone of Rochester, Inc., 344 NLRB 1270, 1273 fn. 12 (2005) (then-Member Liebman,
concurring) (in accretion context, stating that disparity in terms and conditions resulting from
collective bargaining should not be a separate basis for excluding employees from unit who
would otherwise meet accretion standard); Oxford Chemicals, Inc., 286 NLRB 187, 188 fn. 5
(1987) (excluding employee from a unit based on wage and benefit disparities due to collective
bargaining would be “a patent form of circular reasoning”).
8 In clarifying historical units, including under Rock-Tenn, the Board can consider unit
configurations beyond those proposed by the petition. See Lennox Industries, supra at 1238.
9 If the Regional Director concludes that the existing units are inappropriate, after he has
determined what unit or units are now appropriate he shall, in light of that determination,
reconsider his finding that the UC petition was barred by the contracts in effect at the time the
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ORDER
Case 28-UC-223664 is reinstated and the case is remanded to the Regional Director for
further action consistent with this Decision.
JOHN F. RING, CHAIRMAN
MARVIN E. KAPLAN, MEMBER
WILLIAM J. EMANUEL, MEMBER
Dated, Washington, D.C., July 10, 2020.
petition was filed, and in doing so shall consider the effect of the subsequent expiration of two of
those contracts.
In addition, we are unable to discern the Regional Director’s basis for apparently finding
that the principles of multiemployer bargaining units preclude the UC petition. On remand, if
the Regional Director finds that the existing units are inappropriate, he shall—at minimum—
provide the parties with further opportunity to state their positions on this issue and provide a
fuller explanation for why and how these principles apply here.