McDonnell Douglas Corp.

National Labor Relations Board - Board Decisions

Feb 28, 1994

313 N.L.R.B. 868 (N.L.R.B. 1994)

868
313 NLRB No. 147
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 312 NLRB 373.
2 311 NLRB 459 (1993).
3 312 NLRB 257 (1993).
4 312 NLRB 400 (1993).
5 Thus, for example, the unit descriptions of the employees in
question in this case are computing analysts, computing engineers,
computing specialists, and senior computing specialists.
6 Indeed, in arguing that its unilateral reassignment of unit work
out of the unit in Antelope Valley was lawful, the employer in that
McDonnell Douglas Corporation; McDonnell Doug-
las Electronic Systems Company, a Division of
McDonnell Douglas Corporation; and McDon-
nell Douglas Aerospace Information Services
Company, a Division of McDonnell Douglas
Corporation, Single and/or Joint Employers
and Southern California Professional Engineer-
ing Association and McDonnell Douglas Tulsa,
a Division of McDonnell Douglas Corporation;
McDonnell Douglas Space Systems Company, a
Division of McDonnell Douglas Corporation;
and Douglas Aircraft Company, a Division of
McDonnell Douglas Corporation, Parties to the
Contract. Case 21–CA–27479
February 28, 1994
ORDER DENYING MOTION
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND TRUESDALE
On September 24, 1993, the National Labor Rela-
tions Board issued a Decision and Order1 in which the
Board found that the Respondent violated Section
8(a)(5) and (1) of the Act by unilaterally, without the
Union’s agreement (1) removing bargaining unit em-
ployees from the unit on their change of assignment
from one to another of the Respondent’s component
companies and, approximately 3 months later, (2) re-
turning these employees to the unit for approximately
5 days, and then removing them again from the unit.
On November 29, 1993, the Respondent filed a mo-
tion for reconsideration of the Decision and Order,
pursuant to Section 102.48(d)(1) of the Board’s Rules
and Regulations. No opposition to the motion was
filed.
The Respondent contends that the decision in this
case is inconsistent with the Board’s decisions in Ante-
lope Valley Press,2 Armco Steel Co.,3 and Rock Bottom
Stores.4
The Board, having duly considered the matter, finds
that the cases relied on by the Respondent are inap-
posite, and that they do not warrant reconsideration of
the Board’s Decision and Order.
In Antelope Valley, supra, the bargaining unit in the
collective-bargaining agreement was described in terms
of work assignments, rather than job classifications.
During negotiations for a renewal contract, the em-
ployer proposed—and the union opposed—a contrac-
tual provision that would permit the employer unilater-
ally to assign certain specified kinds of unit work to
persons outside of the contractual bargaining unit. The
employer and the union bargained to impasse over this
proposal. The employer thereafter unilaterally imple-
mented it, and subsequently assigned certain unit work
to be performed by persons outside the unit.
The issue before the Board in Antelope Valley,
supra, was whether the employer’s proposal was essen-
tially for the reassignment of unit work outside of the
unit (a mandatory subject of bargaining, about which
the employer could lawfully bargain to impasse and
then unilaterally implement) or essentially for a change
in the scope of the bargaining unit (a permissive sub-
ject of bargaining, about which the employer could not
lawfully bargain to impasse and then unilaterally im-
plement).
The Board noted that resolution of this issue is par-
ticularly difficult in cases such as Antelope Valley
where the bargaining unit is defined in terms of work
performed because any proposal relating to work as-
signments affects the scope of the bargaining unit.
Consequently, as the Board explained in the case con-
solidated with Antelope Valley for oral argument, the
Board ‘‘formulated a new test for determining under
what circumstances, if at all, a party may lawfully in-
sist to impasse on changes in work assignments when
the previously agreed-upon bargaining unit description
is based on descriptions of work performed.’’ Bremer-
ton Sun Publishing Co., 311 NLRB 467, 468 (1993).
The new test is as follows:
The Board [in Antelope Valley] held that when
unit descriptions are couched in those terms, an
employer may, after reaching impasse, insist on
transferring work of a type contained within the
description to employees other than those cur-
rently performing it. The employer may not, how-
ever, either change the unit description itself or
insist that nonunit employees to whom the work
is transferred will remain outside the unit. [Id.]
First, unlike in Antelope Valley, the contractual bar-
gaining unit in the instant case is described in terms
of job classifications, rather than work assignments.5
Thus, the Board in the instant case was not confronted
at the outset with the difficult legal question it faced
in Antelope Valley.
Second, unlike the employer in Antelope Valley, the
Respondent here did not propose in advance to take
the action in question. Rather, as fully discussed in the
Board’s decision, it simply and unilaterally took the
action.
Third, but perhaps most important, and unlike in An-
telope Valley, the unilateral action in question in the
instant case is not the reassignment of work from the
unit, but instead the removal of employees from the
unit.6 As fully discussed in the Board’s decision, the
869MCDONNELL DOUGLAS CORP.
case emphasized, inter alia, that the implementation of its proposal
did not take any employee out of the unit. 311 NLRB 559. Simi-
larly, the Board stressed that, under its new approach, an employer
‘‘will not be able to decide, unilaterally, questions regarding the
scope of the unit.’’ Id.
7 312 NLRB 373.
8 For essentially the same reason, the Respondent’s reliance also
on Transport Service Co., 282 NLRB 111 (1986), and NCR Corp.,
271 NLRB 1212 (1984), in support of its instant motion is equally
unavailing. As noted in the Board’s decision, those cases (like Ante-
lope Valley) involve the reassignment of unit work—not the removal
of unit employees—from the unit.
Respondent’s unilateral removal of unit employees
from the unit necessarily affected the rights of those
employees to be represented by the Union.7 Unlike the
right of the employer in Antelope Valley to reassign
unit work out of the unit, the rights of the employees
in the instant case to be represented by the Union are
fundamental statutory rights which are beyond the le-
gitimate scope of unilateral action on the part of the
Respondent.8
The Respondent’s reliance on Armco, supra, and
Rock Bottom, supra, in support of its motion is also
unavailing. The issues in both of those cases involved
the unit placement of employees following their phys-
ical relocation to a new work location. As fully dis-
cussed in the Board’s decision in the instant case, the
Respondent’s removal of the employees from the bar-
gaining unit was not accompanied by any physical re-
location of them to a new workplace. Rather, unlike in
Armco and Rock Bottom, the employees here were
simply administratively reassigned from one to another
of the Respondent’s component companies, without
any change in the nature or location of their work, and
indeed without any interruption of it.
For the above reasons, the Respondent’s motion for
reconsideration is denied.
ORDER
The Respondent’s motion for reconsideration is de-
nied.