Executive Resources Associates

National Labor Relations Board - Board Decisions

Jan 29, 1991

301 N.L.R.B. 400 (N.L.R.B. 1991)

400
301 NLRB No. 50
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are 1988 unless otherwise specified.
2 The Acting Regional Director described the appropriate unit as follows:
All employees employed by the Employer under the Echo Range con-
tract including, but not limited to, Instrumentation Technicians A, Instru-
mentation Technicians B, Instrumentation Technicians C, Electronic Tech-
nicians A, Electronic Technicians B, Electronic Technicians C, Digital
Engineers and Radar Engineers but excluding office clerical employees,
professional employees, administrative assistant, program manager, pro-
gram coordinator, guards and supervisors as defined in the Act.
No issue concerning unit composition is before the Board now.
3 The election was held September 8, 1988, in the unit found appropriate
by the Acting Regional Director. The ballots were impounded.
4 A ‘‘range’’ is a large geographical area with controlled airspace.
5 This uniformity in personnel policies and benefits applies nationwide to all
of the Employer’s employees.
6 The Employer has four operating centers, each of which has an executive
director.
7 Initial interviews at Echo Range were conducted by the Range Support
Service’s program manager because the program manager for Echo Range had
not yet been hired.
Executive Resources Associates, Inc. and Miscella-
neous Warehousemen, Drivers and Helpers
Local 986, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers
of America, AFL–CIO, Petitioner. Case 31–RC–
6335
January 29, 1991
DECISION ON REVIEW AND ORDER
REMANDING
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On August 12, 1988,1 the Acting Regional Director
for Region 31 issued a Decision and Direction of Elec-
tion in which he found the petitioned-for unit to be an
appropriate unit2 and directed an election.3
On August 26, the Employer filed a timely request
for review, on the grounds that the decision departed
from precedent. The Employer contended that the only
appropriate unit consisted of certain employees cov-
ered by both of the Employer’s contracts in effect at
the Naval Weapons Center at China Lake, California.
By telegraphic order dated September 8, the Board
granted the request for review.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the entire record in light
of the request for review and supporting brief, and has
decided to affirm the Acting Regional Director’s rul-
ings, findings, and conclusions, as modified below.
Facts
The Employer, with headquarters in Arlington, Vir-
ginia, provides technical support services throughout
the country to various government and commercial en-
tities. Two separate contracts covering such services
are in effect at the Naval Weapons Center at China
Lake in California: the ‘‘Echo Range’’ contract and the
‘‘Range Support Services’’ contract.
The Petitioner seeks to represent a unit consisting of
approximately 48 employees covered by the Employ-
er’s Echo Range contract. The Employer contends that
the only appropriate unit must include its employees
working under both its Echo Range and Range Support
Services contracts.
The Range Support Services contract has been in ex-
istence since September 1986, the Echo Range contract
since March 1988. Both contracts are for 5 years. Em-
ployees under both contracts maintain and operate
equipment in support of flight operations at China
Lake. Equipment differs and is not interchanged be-
cause the Range Support Services employees handle
the conventional weapons delivery range and the Echo
Range employees cover primarily an electronics war-
fare range.4
The employees covered by the two contracts have
similar educational backgrounds, i.e., high school di-
plomas and military or trade school training in elec-
tronics or electromechanical work. The same personnel
policies and same benefits apply to employees covered
by both contracts.5 Payrolls for these and all its other
contracts are handled at the Virginia headquarters. The
salary range at Echo Range is $20,000–$38,000 and at
Range Support Services is $11,000–$29,000. Echo
Range employees work 10-hour days, 4 days a week;
Range Support Services employees work 8-hour days,
5 days a week.
There are separate program managers for Echo
Range and Range Support Services. They exercise im-
mediate supervision over their respective ranges and
report to the same executive director. That executive
director’s office is in Virginia; he is also responsible
for eight other contracts at five other locations in the
country.6 The program manager for the Echo Range
contract works from a trailer on the Echo Range. The
program manager for the Range Support Services con-
tract works from the main base of the Naval Weapons
Center, which is approximately 35 miles from the con-
trol point for Echo Range.
The respective program managers interview em-
ployee applicants and submit recommendations to the
executive director.7 If the forms are in order and the
applicants meet the requisite qualifications, the execu-
tive director authorizes the respective program man-
ager to release an ‘‘offer.’’ The program managers rec-
ommend pay raises, bonuses, and discipline, and they
complete performance reviews for their respective em-
ployees. The record shows that the executive director
exercises approval authority on these matters. How-
ever, the record offers no indication of how often the
executive director refuses to go along with the rec-
ommendations of the respective program managers or
how the executive director might go about exercising
any independent review. At most, the record shows
that the executive director talks with the respective
401EXECUTIVE RESOURCES ASSOCIATES
8 The record indicates that Echo Range employees may go to the main base
to pick up equipment or to go to the lab and that Range Support Services em-
ployees could perform work in the Echo Range area.
9 Friendly Ice Cream Corp. v. NLRB, 705 F.2d 570 (1st Cir. 1983); NLRB
v. J. C. Penney Co., 620 F.2d 718, 719 (9th Cir. 1980); Morand Bros. Bev-
erage Co., 91 NLRB 409, 418 (1950), enfd. 190 F.2d 576 (7th Cir. 1951).
10 As the court stated in Spring City Knitting Co. v. NLRB, 647 F.2d 1011,
1015 (9th Cir. 1981): ‘‘The frequency of employee interchange is a critical
factor in determining whether employees who work in different [groups] share
a ‘community of interest’ sufficient to justify their inclusion in a single bar-
gaining unit.’’
program managers daily and that either he or a vice
president visits the respective sites once a month.
Employees covered by one of the two contracts in-
volved here would not be directly affected by the can-
cellation or reduction in the other contract; there are no
‘‘bumping’’ rights from one contract to the other.
There have been two transfers from Range Support
Services to ‘‘non-unit’’ Echo Range jobs and one re-
cent temporary transfer. Otherwise, the record reveals
no other interchange or interaction by the employees
covered by the respective contracts.8 Indeed, while em-
ployees may perform work on the same naval test mis-
sion at China Lake, the Range Support Services pro-
gram manager testified that ‘‘our people would not
work, would not coordinate with the Echo people. But
the government would do the coordination and assign
us our positions.’’
Discussion
In finding that certain employees covered by the
Echo Range contract constitute an appropriate unit, the
Acting Regional Director concluded that the evidence
was not sufficient to rebut the single ‘‘plant’’ presump-
tion favoring the petitioned-for Echo Range contract
unit. He relied on the lack of significant interchange
or interaction among the employees in the two contract
groups, noting that they work on different equipment
under two separate service contracts with different ex-
piration dates. He also relied on an absence of any bar-
gaining history concerning the employees and the fact
that no labor organization seeks to represent the em-
ployees on a broader basis. In addition, he relied on
evidence that employees in the requested unit perform
their day-to-day work under the immediate supervision
of their contract’s program manager, who rates their
performance and affects their job status and pay
through his recommendations, and that the record fails
to disclose the extent to which the executive director
follows the program manager’s recommendations con-
cerning such matters.
In its brief in support of the request for review, the
Employer challenges the Acting Regional Director’s
application of the single plant presumption to the gov-
ernment services contract here. Instead the Employer
contends that the Acting Regional Director should
have applied a community-of-interest analysis.
It has been a longstanding rule that the Act does not
require that the bargaining unit approved by the Board
be the only appropriate unit, or even the most appro-
priate unit; it is only required that the unit be an ap-
propriate unit.9 Even putting aside the presumption re-
lied on by the Acting Regional Director, we are satis-
fied that the petitioned-for unit of employees covered
by the Echo Range contract is an appropriate unit.
We note that certain considerations relied on by the
Acting Regional Director in making the unit deter-
mination are relevant under either the presumption he
applied or the community-of-interest analysis urged by
the Employer. For example, the lack of significant em-
ployee interchange between the two groups of contract
employees is a strong indicator that the Echo Range
employees enjoy a separate community of interest.10
Similarly, despite being commonly located at the
China Lake complex, the record fails to show that the
two groups of employees work in close geographic
proximity or that they come in frequent contact with
each other. The Range Support Services contract em-
ployees work primarily from the main base of the
Naval Weapons Center, which is 35 miles from the
Echo Range control point; and although some of them
may at times work on the Echo Range, they do not
work with the Echo Range contract employees. Like-
wise, while on occasion certain Echo Range employees
may go to the main base or the lab, and some work
at sites located up to 20 miles from the Echo Range
control site, there is no evidence of interaction between
the Echo Range and Range Support Services employ-
ees while at work. To the contrary, the testimony of
the Range Support Services program manager estab-
lishes that ‘‘our people’’ do not coordinate with the
Echo Range employees.
The finding of a separate community of interest for
the Echo Range employees is also supported by the
fact that the service contract under which they work
expires approximately 1-1/2 years after the Range Sup-
port Services contract terminates. This significant time
difference gives rise to potentially divisive representa-
tional and bargaining concerns that not only dem-
onstrate a separate community of interest for the Echo
Range employees but might even suggest that those
employees could not share a collective community of
interest with their Range Support Services counter-
parts. To begin with, the earlier termination of the
Range Support Services contract would bring about a
sizable reduction in a unit consisting of the two groups
of China Lake employees early on in the bargaining
relationship with the Employer. More importantly, both
before and at the outset of the establishment of any
such relationship, the wide difference in the contracts’
expirations could put the Echo Range employees at
cross-purposes with the Range Support Services em-
ployees concerning the bargaining demands the two
groups of employees would want to make on the Em-
402 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 See Eschenbach-Boysa Co., 268 NLRB 550, 551 (1984). That he or the
executive vice president may once a month visit each contract site does not
invalidate this conclusion.
12 To the extent questions exist concerning the effectiveness of the program
managers’ recommendations, we resolve any ambiguity in the record against
the Employer, who had the burden of producing evidence that would enable
us to determine this issue. Moreover, there is no absolute rule that a single
plant unit cannot be appropriate unless the manager of that unit has the author-
ity to decide collective-bargaining issues. As the First Circuit stated in NLRB
v. Living & Learning Centers, 652 F.2d 209, 215 (1981): ‘‘To lay down such
an absolute rule would enable an employer, by centralizing all matters of labor
policy, to prevent the NLRB from selecting as appropriate a unit of smaller
dimensions than the employer’s whole enterprise even though that smaller unit
was the one which in light of all relevant factors the NLRB determined would
be appropriate under § 9(b) ‘in order to assure to employees the fullest free-
dom in exercising the rights guaranteed’ by the Act.’’
13 We also find no merit in the Employer’s reliance on NCR Corp., 236
NLRB 215 (1978), in which the Board dismissed the petition after finding a
branch unit to be inappropriate. There, the Board relied, inter alia, on the inte-
grated operation of the branch offices, the frequent interchange of employees,
and the fact that employee functions and terms and conditions are identical.
As described above, none of these factors are present here.
The Employer’s reliance on Ohio State Legal Assn., 239 NLRB 594 (1978),
is similarly misplaced. There the petitioner sought to represent the professional
and nonprofessional employees in all the employer’s offices. The employer
contended, inter alia, that the only appropriate unit was one limited to the em-
ployer’s individual offices. The Board found the petitioned-for employerwide
ployer or which ones should be given priority or in-
sisted on at the expense of others. For example, con-
flict between the two employee groups could develop
over the duration of the collective-bargaining agree-
ment and the desirability of having overall unit senior-
ity and ‘‘bumping’’ rights; and severance pay could be
more important as a term and condition of employment
to the Range Support Services employees facing earlier
contract and job termination than other fringe benefits
that might be of more immediate concern to the Echo
Range employees. In addition, although not highlighted
by the Acting Regional Director in his decision, there
are substantial differences in wages between the two
employee groups that would likely add to this potential
for disagreement in bargaining aims. In particular, the
$9000 differential in bottom and top salary levels fa-
voring the Echo Range employees could become a
prime source of friction, with the Range Support Serv-
ices employees wanting pay parity and the Echo Range
employees wanting pay increases for themselves.
Finally, an important factor demonstrating that the
employees covered by the Echo Range contract enjoy
a separate community of interest is that they perform
their day-to-day work under the immediate supervision
of the contract’s program manager. It is he who rates
their performance and it is he who makes rec-
ommendations affecting their pay and job status and
tenure. In this regard, the executive director overseeing
the China Lake contracts testified that a separate
project manager for the Echo Range is required to pro-
vide onsite technical guidance and supervision because
of the large number of employees covered by the Echo
Range contract. Although the executive director has to
approve all hiring and personnel actions recommended
by this and all other program managers reporting to
him and in general has final authority over labor rela-
tions matters concerning the contract groups for which
he is responsible, the record is silent on the extent to
which he does or does not rely on the program man-
agers’ recommendations or how often and under what
circumstances he rejects them. Although the executive
director has corporate documents that were filled out
by the program managers to aid his review of their
recommendations, and in some instances consults with
them concerning the recommendations, the record does
not indicate whether approval of those recommenda-
tions is routinely given by him if the documents are
in order or, if not, what steps or methods are then
taken by him to conduct an independent investigation
to determine the merits of the recommended actions.
Nor does the fact that the executive director talks daily
with the respective program managers under his con-
trol, including the program managers for each of the
China Lake contracts, overcome this evidentiary void.
Because the executive director works out of the Ar-
lington, Virginia office, and because he has to oversee
10 contracts at 7 different locations, it would appear
that of necessity he must rely substantially on the rec-
ommendations of the program managers reporting to
him.11 Consequently, we find it reasonable to infer that
the program managers have significant input into mat-
ters involving the employment status of the employees
under their immediate supervision.12
In light of the foregoing factors demonstrating a sep-
arate community of interest among the Echo Range
employees, and the absence of any bargaining history
at the Employer’s China Lake operations or a labor or-
ganization seeking a broader unit there, the Employer’s
centralized administrative control and uniform em-
ployee benefits and personnel policies are insufficient
to establish that a merger of employment interests of
the Echo Range employees with the Range Support
Services employees has occurred so as to require find-
ing that the former employees have lost their separate
community of interest. Although centralized adminis-
tration and common benefits and personnel policies
may well support a finding that a broader unit, if
sought, also would be an appropriate unit, it is up to
the Employer to establish that the petitioned-for nar-
rower unit is inappropriate. NLRB v. Living & Learn-
ing Centers, supra at 213; Omni International Hotel,
283 NLRB 475, 476 (1987). This the Employer has
not done for the reasons explained above.
We find no merit in the Employer’s reliance on New
England Telephone Co., 280 NLRB 162 (1986), to
support its contention that a systemwide or multi-
facility unit is the appropriate unit in service-oriented
industries. The Board’s holding in that case that a sys-
temwide unit is optimal in the public utility industry
rested largely on the high degree of interdependence of
the various segments of a public utility. No such inter-
dependence has been shown here.13 Indeed, the evi-
403EXECUTIVE RESOURCES ASSOCIATES
unit to be an appropriate one. In so finding it did not have to decide whether
a unit limited to an individual office also might have been an appropriate unit.
dence indicates that the Echo Range and Range Sup-
port Services contracts do not constitute a separate ad-
ministrative or operational grouping of the Employer.
Thus these two contracts are but 2 of the 10 adminis-
tered by the executive director involved in this case,
and the two contract groups at China Lake do not
work together, notwithstanding that they may perform
work on the same naval mission at that site.
In sum we find that under either the presumption re-
lied on by the Acting Regional Director or under a
community-of-interest analysis, the record here shows
that the petitioned-for unit of Echo Range employees
constitutes a unit appropriate for the purposes of col-
lective bargaining. We, therefore, affirm the Acting
Regional Director’s unit determination and remand this
proceeding to the Regional Director for Region 31 for
further appropriate action.
ORDER
The Board orders this case be remanded to the Re-
gional Director for Region 31 for the purpose of open-
ing and counting the ballots impounded after the elec-
tion held on September 8, 1988, and for further appro-
priate action.