Armco Steel Co.

National Labor Relations Board - Board Decisions

Sep 21, 1993

312 N.L.R.B. 257 (N.L.R.B. 1993)

257
312 NLRB No. 57
ARMCO STEEL CO.
1 At an earlier stage of the proceeding, in an unpublished Order,
the Board granted review of the Regional Director’s analysis under
the law prior to Gitano Distribution Center, 308 NLRB 1172 (1992),
and remanded the case to the Regional Director for further consider-
ation under Gitano.
2 The matter is disputed by the Employer and the Petitioner. The
Employer contends that two, who were transferred in 1986, per-
formed exclusive work for the Ashland plant and were out of the
unit before the 1987 consolidation. On the other hand, the Petitioner
argues that nine were transferees from the unit but that one was sub-
sequently replaced by a nonunit employee.
3 The Employer contends that one of the transferees performed un-
related work when in the salaried unit.
Armco Steel Company, L.P. and Salaried Employ-
ees Auxiliary of the Armco Employees Inde-
pendent Federation, Inc., Petitioner. Case 9–
UC–356
September 21, 1993
DECISION ON REVIEW AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On January 11, 1993, the Regional Director for Re-
gion 9 issued a Supplemental Decision and Order in
which he dismissed the petition for unit clarification.
In accordance with Section 102.67 of the National
Labor Relations Board’s Rules and Regulations, the
Petitioner filed a timely request for review. The Em-
ployer filed a brief in opposition.
The Petitioner’s request for review of the Regional
Director’s Supplemental Decision and Order is granted
as it raises substantial issues warranting review.
The Petitioner seeks to clarify the existing bargain-
ing unit of clerical and technical employees at the Em-
ployer’s Middletown, Ohio steel works, commonly
known as the salaried unit, to include certain job clas-
sifications which, either in form or substance, were
within the unit at one time but were moved by the Em-
ployer to its general offices complex elsewhere in Mid-
dletown. The sole issue now presented1 is whether the
Board’s decision in Gitano Distribution Center, supra,
limits unit clarification procedures to a determination
of the unit status of relocated employees vis-a-vis the
unit from which they came, i.e., their inclusion or ex-
clusion, and precludes a determination of their appro-
priateness as a separate unit in their own right. For the
following reasons, and contrary to the Regional Direc-
tor, we find that Gitano is not so limited.
The Petitioner represents salaried employees at the
Employer’s Middletown, Ohio steel plant but not those
at the Employer’s Ashland, Kentucky plant. As a result
of a 1985 efficiency study, the Employer decided to
combine traffic office employees for both plants at its
general offices complex, located in Middletown, 1-1/2
miles from the steel plant. Employees at the general
offices have historically been excluded from the sala-
ried bargaining unit. The Regional Director found that
the consolidation began in 1986 and was completed in
1987. In 1988, the Employer decided to establish the
‘‘Outside Processing Inventory Administration’’
(OPIA) at its general offices.
The traffic office employees are responsible for
scheduling inbound deliveries of raw material and out-
bound deliveries of finished steel, arranging interplant
shipments, and overseeing payment of freight invoices.
Traffic office employees work in a large room parti-
tioned into separate cubicles, have frequent face-to-
face contact with other transportation employees, and
have phone contact with salaried bargaining unit em-
ployees. The Regional Director found that 8 of the 14
traffic office employees came from the Middletown
salaried unit and 6 from the general offices.2 In his ini-
tial decision, the Regional Director found that they
perform the same type of work as was previously done
by unit employees.
OPIA coordinators and clerks monitor steel shipped
to subcontractors. The coordinators reconcile inven-
tories and oversee the disposition of scrap metal; the
clerks assist the coordinators. OPIA employees have
daily contact with other employees at the general of-
fices, but little with employees in the salaried unit. The
Regional Director found that four of the nine OPIA
employees came from bargaining unit positions and
that the other five came from the general offices.3 In
his earlier decision, the Regional Director found that
the work done by OPIA employees is the same as that
done by unit employees prior to 1988.
In his supplemental decision, the Regional Director
found that once it has been determined that the relo-
cated employees no longer remain in the existing unit
a UC proceeding is, pursuant to Gitano, no longer
available to resolve the unit placement of the relocated
employees.
In Gitano we rejected the spinoff doctrine and held
(308 NLRB 1172, 1173):
Rather, we will begin with the Board’s long-held
rebuttable presumption that the unit at the new fa-
cility is a separate appropriate unit. Assuming that
that presumption is not rebutted, we will then
apply a simple fact-based majority test to deter-
mine whether the respondent is obligated to rec-
ognize and bargain with the union as the rep-
resentative of the unit at the new facility. If a ma-
jority of the employees in the unit at the new fa-
cility are transferees from the original bargaining
unit, we will presume that those employees con-
tinue to support the union and find that the em-
ployer is obligated to recognize and bargain with
the union as the exclusive collective-bargaining
representative of the employees in the new unit.
Absent this majority showing, no such presump-
258 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tion arises and no bargaining obligation exists.
[Footnotes omitted.]
Also relevant is footnote 21 at the end of the above-
quoted portion of the Gitano decision:
Because the new facility is presumptively a
separate unit, we would view as irrelevant to the
analysis the question of whether or to what extent
the employees at the new facility are performing
work that previously was performed by the unit
employees at the old facility.
The issue of whether an existing contract would
be applicable to the new facility is not before us
in the present case. However, if the new facility
is a separate unit, it would appear that the con-
tract would not apply, without an agreement that
it would apply. See Kroger Co., 219 NLRB 388
(1975).
In his supplemental decision, the Regional Director
found that the general offices complex, at which the
former unit employees were relocated, is a separate fa-
cility even though it is only 1-1/2 miles from the Mid-
dletown plant and even though the general offices, as
part of corporate headquarters, are inherently involved
to some extent in the operations of the production fa-
cilities. The Regional Director further found that the
traffic office and OPIA employees are managed and
supervised separately from the unit employees, that
there is no interchange with salaried unit employees,
and that there is no regular face-to-face contact with
unit employees. Specifically, the Regional Director
found that labor relations matters, such as hiring, dis-
cipline, benefits, and training, are handled by the gen-
eral offices supervisors, whose authority does not ex-
tend to unit employees at the Middletown plant. Ac-
cordingly, the Regional Director found the single-plant
presumption has not been rebutted.
In its request for review, the Petitioner contends that
the single-plant presumption has been rebutted, citing
comparable terms and conditions of employment, geo-
graphical proximity, operational integration, and histor-
ical inclusion, adding that Gitano did not decisively re-
ject reliance on historical inclusion. The Petitioner,
however, does not refute the Regional Director’s find-
ing that the relocated employees have significant su-
pervision separate from, do not interchange with, and
have little face-to-face contact with unit employees.
We agree with the Regional Director, for the reasons
he set forth, that the single-location presumption has
not been rebutted. Thus, we agree that the existing sal-
aried employees unit cannot be clarified, as requested
by the UC petition, to include the relocated employees.
This, however, does not end our inquiry.
The Regional Director further found that—even as-
suming (1) that the relocated employees could con-
stitute a separate appropriate unit and (2) that the relo-
cated employees were a majority in that unit—the Peti-
tioner’s representative status in such a unit could not
be determined in this UC proceeding. He concluded
that this issue could be resolved only in an unfair fair
labor practice case or through an election. Citing the
Board’s Rules and Regulations, Section 102.60(b), the
Regional Director stated that a UC proceeding is avail-
able only for the purpose of defining the composition
of an existing unit, not for the purpose of establishing
bargaining rights in a new, separate unit.
The Petitioner contends that the Board’s remand for
reconsideration pursuant to Gitano strongly implies
that the Board intends that Gitano be fully applied in
UC proceedings. The Petitioner argues that, unless the
Board intends to make unit clarification ineffective, the
entire Gitano analysis must be applied. In its opposi-
tion, the Employer agrees with the Regional Director
that the single-plant presumption has not been rebutted
and that a UC proceeding is inappropriate to resolve
the issues in this case because the transferred employ-
ees are no longer part of the salaried employees unit.
The Employer does suggest that the Petitioner is not
without a remedy inasmuch as it presumably could
have litigated its rights in a timely filed unfair labor
practice charge.
The Employer alternatively argues that, even if a
UC proceeding is available, the petition must be dis-
missed because the employees who were transferred do
not constitute a majority of the 599 employees in the
general offices. The Employer contends that there is no
factual or legal basis for segregating the noncraft,
transferred employees from the rest of the general of-
fices employees because all general offices employees
work under virtually identical terms and conditions of
employment. The Employer states that there is no such
entity as a traffic office or an OPIA department. The
Employer contends that Gitano, supra at fn. 21, holds
that whether former unit employees are performing the
same work is irrelevant. However, the Employer con-
tends that, in any event, this case does not involve the
transfer of unit work: the traffic office employees han-
dle additional work, particularly former nonunion Ash-
land work, and only a minor fraction of OPIA work
was done by unit employees. Finally, the Employer ar-
gues that, even if traffic office and OPIA employees
could be considered as an appropriate unit, a majority
are not transferees: two of the traffic office employees
left the unit over a year prior to the consolidation to
do nonunit (Ashland) work and one OPIA employee,
although coming from the unit, had no involvement
with outside processors. See footnote 2, supra.
As evidenced by the Regional Director’s earlier de-
cision, UC proceedings were available prior to Gitano
to clarify the status of relocated unit employees. Since
Gitano, however, cases involving relocations will less
frequently result in a traditional accretion analysis be-
259ARMCO STEEL CO.
4 Sec. 102.60(b) states, ‘‘A petition for clarification of an existing
bargaining unit . . . may be filed. . . .’’ See also Sec. 102.61(d),
which sets forth the contents of a unit clarification petition.
cause the concept of ‘‘spinoff’’ has been discarded.
Nonetheless, we believe UC proceedings remain avail-
able to determine the unit status of relocated employ-
ees.
UC petitions, although most frequently used to clar-
ify unit placement issues, have also been used to clar-
ify unit scope issues. Thus, the Board has used UC
proceedings to determine that previously separate units
have, by the parties’ actions, been merged into a single
appropriate unit. See, e.g., Green-Wood Cemetery, 280
NLRB 1359 (1986), in which the Board found that the
parties’ entire course of conduct following recognition
of the office clerical unit established an intent to merge
the office clerical unit with the field employees unit.
Accordingly, the Board found that a single unit of both
office clerical and field employees was appropriate.
Similarly, the Board has clarified historical units
into two or more appropriate units. In Lennox Indus-
tries, 308 NLRB 1237 (1992), the Board clarified the
existing historical unit into two separate units because
of the employer’s restructuring of its operations. See
also Ameron, Inc., 288 NLRB 747 (1988), which clari-
fied the certified unit to constitute two separate units,
one at Ameron and one at TAMCO, which had be-
come a separate company, and Rock-Tenn Co., 274
NLRB 772 (1985), in which the historical unit was
clarified into appropriate separate units at two plants
because the historical unit no longer conformed to nor-
mal standards of appropriateness.
Although Gitano refers to the employees at the
‘‘new facility’’ as a presumptively ‘‘separate unit’’ and
although Section 102.60(b) of the Board’s Rules limits
unit clarification to ‘‘existing’’ units,4 we find that unit
clarification proceedings remain available to determine
the unit placement of relocated employees. As set forth
above, UC proceedings are not limited to placement of
employees in existing units but have been applied to
unit scope issues as well. UC proceedings are available
to determine whether the historical unit or units are no
longer appropriate. In these UC proceedings, the Board
determines what bargaining unit or units exist in fact
after an employer’s reorganization or the parties’
agreement. Similarly, using UC proceedings to apply
the full Gitano analysis would result in the Board’s de-
termining what bargaining unit or units exist after an
employer’s reorganization resulted in the relocation of
employees. In such decisions, as in clarifications of
historical units, we would not be ‘‘creating’’ new
units, but would merely be recognizing and defining
the units that the parties themselves have created.
Thus, UC proceedings would clarify previously recog-
nized units by determining what units have come into
being by reason of the employer’s reorganization, and
hence are cognizable within Section 102.60(b) of the
Board’s Rules.
As a practical matter, a Gitano analysis lends itself
to application in a UC proceeding. Gitano, by its
terms, begins with a determination of whether certain
employees relocated by an employer remain a part of
the unit from which they came, depending on whether
the presumptive appropriateness of a single-location
unit has been rebutted. This issue, as the Regional Di-
rector observed, remains amenable to resolution in a
UC case. If the single-location presumption has not
been rebutted, Gitano provides that the next step is to
apply ‘‘a simple fact-based majority test.’’ For many
years, the Board has applied a simple majority test to
cases involving the merger of represented employees
with unrepresented employees. See, e.g., Central Soya
Co., 281 NLRB 1308 (1986), in which, although an
unfair labor practice case, the Board applied UC prin-
ciples to merged operations and included the unrepre-
sented employees in the unit as the unit employees
constituted a majority of the merged group. See also
Renaissance Center Partnership, 239 NLRB 1247
(1979); and South Coast Terminals, 221 NLRB 197
(1975), both unit clarification representation cases in
which the Board applied this same type of analysis.
Although not explicitly so stating, Gitano also re-
quires an analysis of whether the relocated employees,
together with any new employees, would constitute an
appropriate unit. Such unit scope issues are as readily
resolvable in UC proceedings as they are in any other
type of representation proceeding. And, resolution of
all the Gitano matters in a UC proceeding would fre-
quently be preferable to their resolution in an unfair
labor practice proceeding. UC proceedings are gen-
erally more expeditious, and will resolve the issues
without requiring the employer to commit a possible
unfair labor practice in order to have the Board resolve
what is, in essence, a representation matter.
In addition, as discussed above, there is clearly juris-
diction to decide, in a UC case, whether employees are
included in, or excluded from, an existing unit. If it is
decided that they are excluded, a related issue arises
as to what other existing unit may include them. Given
the clear jurisdiction to decide the former question, we
believe that there is also jurisdiction to decide, on the
same record, the closely related question.
Accordingly, we find that all Gitano issues can be
resolved in this proceeding. We have already affirmed
the Regional Director’s finding that the single-plant
presumption has not been rebutted. Beyond this,
whether the transferred traffic office and OPIA em-
ployees comprise a majority of the employees in the
unit or units at the general offices complex, and
whether the traffic office and OPIA employees would
themselves constitute a separate appropriate unit, or
some other configuration of appropriate units, are
260 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 The Employer has made a number of arguments including the
contentions that the traffic office and OPIA employees cannot con-
stitute a unit separate from the general offices employees and that,
in any event, a majority have not transferred from unit positions.
These matters, as well as other unanswered issues, are for the Re-
gional Director to resolve on remand.
issues amenable to resolution in this UC proceeding.
Contrary to the Regional Director, we see no legal im-
pediment to using this UC petition to resolve these
matters. Accordingly, we shall remand this proceeding
to the Regional Director to make a full Gitano analy-
sis.5
ORDER
This proceeding is remanded to the Regional Direc-
tor for further consideration in light of this Decision on
Review and Order, including a reopening of the record,
if necessary, and for the issuance of a supplemental
decision.