APPOLLO SYSTEMS, INC.

National Labor Relations Board - Board Decisions

Apr 24, 2014

360 N.L.R.B. 687 (N.L.R.B. 2014)

APPOLLO SYSTEMS, INC. 687
360 NLRB No. 80
Appollo Systems, Inc. and International Brotherhood
of Electrical Workers, Local 292. Case 18–UC–
000423
April 24, 2014
DECISION ON REVIEW AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
The issue presented is whether the Board should clari-
fy a bargaining unit created by the parties’ agreement
under Section 8(f) of the Act,1 in order to confirm an
assertedly purposeful exclusion of certain employees
from that unit. Having carefully considered the matter,
we find, contrary to the Regional Director,2 that the reso-
lution of this particular issue is best left to the parties’
contractual grievance and arbitration procedure. Accord-
ingly, we reverse the Regional Director’s decision clari-
fying the bargaining unit and dismiss the underlying peti-
tion.3
I. BACKGROUND
Appollo Systems, Inc., the Employer, is an electri-
cal/energy contractor that has served residential custom-
ers in Minnesota for many years. In 2004, the Employer
added a commercial division to its business by acquiring,
under the name “Focis, Inc. d/b/a Appollo Systems,” a
commercial electrical operation then known as Connec-
tivity Solutions, Inc. of Minnesota.
Shortly after the acquisition, the Employer agreed to
recognize the Union as the representative of the employ-
ees in the commercial operation, thereby continuing a
voluntary arrangement that had previously existed be-
tween Connectivity Solutions and the Union. The Em-
ployer and the Union further agreed that their collective-
bargaining relationship would not encompass the Em-

1 Sec. 8(f) permits unions and employers in the building and con-
struction industry to enter into collective-bargaining arrangements
without first establishing the Union’s majority status, as ordinarily
required by Sec. 9(a) of the Act.
2 The Regional Director issued a Decision and Order on December
3, 2009, granting the Employer’s petition for unit clarification. There-
after, in response to the Union’s request for review, the Board remand-
ed the case to the Regional Director “for a determination of whether the
contract between the parties was made pursuant to Section 8(f) or Sec-
tion 9(a)” of the Act. On remand, the Regional Director issued a Sup-
plemental Decision and Order adopting the parties’ stipulation that the
contract was an 8(f) agreement. The Regional Director otherwise ad-
hered to the determinations in his earlier Decision and Order, and the
Union once again sought Board review of those determinations. On
June 30, 2010, the Board granted review. Both parties have filed briefs
over the course of the review proceedings.
3 Although the Regional Director issued two decisions in this case,
as described above in fn. 2, we refer here only to the initial Decision
and Order, in which the Regional Director made findings with regard to
the unit clarification petition.
ployer’s residential employees, who had never been rep-
resented by any labor organization.
Consistent with those agreements, the Employer
signed a letter of assent binding “Focis, Inc. d/b/a Appol-
lo Systems” to the Minnesota Limited Energy Agreement
between the Union and area chapters of the National
Electrical Contractors Association, a multiemployer as-
sociation. The letter of assent created an 8(f) agreement
between the parties, and the Employer began contrib-
uting to the Union’s benefit funds for the commercial
employees and generally treating the Union as the repre-
sentative of those employees.
About 3 years later, in late 2007, the Employer ceased
using the name “Focis, Inc. d/b/a Appollo Systems” for
its commercial operation and began referring to it as
“Appollo Systems Commercial Services,” while referring
to its residential operation as “Appollo Systems Residen-
tial Services.” In mid-2009, the Union filed a contractual
grievance asserting that “the two divisions” had become
“one company,” and therefore the residential employees
should be included in the bargaining unit represented by
the Union.4 In response, the Employer provided the Un-
ion with documentation supporting its position that the
commercial and residential aspects of its business re-
mained separate, notwithstanding the name change. The
Union was not persuaded by this evidence and opted to
proceed with its grievance.
The Employer then filed the present petition for unit
clarification, seeking a determination from the Board that
the residential employees are excluded from the bargain-
ing unit. The Union opposed the petition, contending
that (1) the Board’s unit clarification procedure is not
available where, as here, the collective-bargaining rela-
tionship is governed by Section 8(f), and the parties
should instead settle the dispute through the contractual
grievance and arbitration procedure; and (2) in any event,
a clarified unit must include the residential employees,
because their previous exclusion was predicated on the
understanding that they would work in an operation en-
tirely separate from the commercial operation, and the
Employer breached that understanding by changing its
corporate identity in 2007.
II. THE REGIONAL DIRECTOR’S DECISION
The Regional Director rejected the Union’s contention
that the Board cannot entertain and determine unit clari-
fication issues when they arise in the context of an 8(f)
relationship. Noting the Board’s broad statutory authori-
ty over representation matters, the Regional Director
found that this authority may be exercised regardless of

4 The Union asserts that it first learned of the alleged change in
2009.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD688
the avenue by which a union achieves its representative
status—that is, whether the union was selected by a ma-
jority of the unit employees pursuant to Section 9(a) of
the Act or became their representative pursuant to an 8(f)
agreement.
The Regional Director also rejected the Union’s con-
comitant argument that the unit placement of the residen-
tial employees was a contractual matter best left for reso-
lution through the parties’ contractual grievance and arbi-
tration procedure. The Regional Director relied on Board
decisions holding that “questions of representation, ac-
cretion, and appropriate unit do not depend upon contract
interpretation but involve the application of statutory
policy, standards and criteria” and that “[t]hese are mat-
ters for decision of the Board rather than an arbitrator.”
Marion Power Shovel Co., 230 NLRB 576, 577–578
(1977) (footnote omitted).
Turning to the merits, the Regional Director found that
the Employer’s action in 2007 amounted to a name
change and did not alter the historical bargaining unit.
Because the residential electricians had been historically
excluded from that unit, the Regional Director granted
the Employer’s petition and clarified the unit to exclude
the Employer’s residential work force.
III. ANALYSIS
We find it unnecessary to pass on the question whether
the Board should or should not, as a general matter, en-
tertain a unit clarification petition in the context of an
8(f) relationship, for we see no reason to exercise that
authority in the presence of what is, in fact, a contractual
dispute. In the particular circumstances of this case, we
reject the Regional Director’s analysis insofar as he sug-
gested that it would be improper or inconsistent with
Board law to defer to the parties’ contractual grievance
and arbitration procedure.5
As the Board has explained in decisions since Marion
Power Shovel, supra, it is not the case that the Board
“never defers to arbitration in cases involving representa-
tion issues.” McDonnell Douglas Corp., 324 NLRB
1202, 1204 (1997). Rather, the Board has held that “de-
ferral is appropriate ‘when resolution of the issue turns
solely on the proper interpretation of the parties’ con-
tract.’” Id. at 1205 (citing St. Mary’s Medical Center,

5 The Union implicitly contends that this dispute is covered by the
contractual grievance arbitration procedure, and the Employer does not
argue that it is not.
322 NLRB 954, 954 (1997)). This aptly describes the
situation here.
In a typical unit clarification proceeding, we consider
the disputed employees’ duties in relation to an existing
unit of employees.6 The present dispute, by contrast,
turns on whether there was a valid agreement between
the Employer and the Union as to their unit status, what
the terms of any such agreement were, and whether the
Employer subsequently breached that agreement. These
are classic questions of contract and are not the unique
province of the Board. Instead, they may reasonably be
left to the parties’ contractual grievance and arbitration
procedure. We accordingly defer to that procedure and
reverse the Regional Director’s findings in regard to the
merits of the unit placement question.
In so deferring, we emphasize that we are not abrogat-
ing our longstanding general policy against deferral of
representation issues that can be resolved only through
application of statutory policy—for example, through
examination of the community of interest between dis-
puted employees and those in the existing unit in cases
where community of interest is at issue. See McDonnell
Douglas Corp., 324 NLRB at 1205. We also emphasize
that any arbitral proceedings that do take place as a result
of our deferral will remain subject to postarbitral review
by the Board upon assertion by either party that the arbi-
tral proceedings or decision fail to satisfy our standards
for postarbitral deferral. See Olin Corp., 268 NLRB 573
(1984); Spielberg Mfg. Co., 112 NLRB 1080 (1955).
ORDER
The Regional Director’s Decision and Order clarifying
the unit is reversed, and the unit clarification petition is
dismissed.

6 See, e.g., Frontier Telephone of Rochester, Inc., 344 NLRB 1270,
1271 (2005) (examining disputed employees’ duties, day-to-day super-
vision, and relationship to existing unit in order to determine whether
they should be accreted to existing unit), enfd. 181 Fed. Appx. 85 (2d
Cir. 2006). See also Union Electric Co., 217 NLRB 666, 667 (1975)
(explaining that “[u]nit clarification . . . is appropriate for resolving
ambiguities concerning the unit placement of individuals who, for
example, come within a newly established classification of disputed
unit placement or, within an existing classification which has under-
gone recent, substantial changes in the duties and responsibilities of the
employees in it so as to create a real doubt as to whether the individuals
in such classification continue to fall within the category—excluded or
included—that they occupied in the past”).