Speedrack Products Group Ltd.

National Labor Relations Board - Board Decisions

Apr 9, 1998

325 N.L.R.B. 609 (N.L.R.B. 1998)

609
325 NLRB No. 109
SPEEDRACK PRODUCTS GROUP LIMITED
1 The representation case number has been included in the caption
consistent with the subject of the court’s remand.
2 Id. at 629.
3 114 F.3d 1276 (D.C. Cir.).
4 164 NLRB 611 (1967).
5 See Georgia-Pacific Corp., 201 NLRB 760 (1973).
6 Contrary to our concurring colleague, we do not believe there is
a need to expand the factors that comprise our traditional commu-
nity-of-interest analysis beyond those that are significant to the em-
ployee relationship. Therefore, we do not find it relevant that the
WR employees are subject to certain other DOC restrictions unre-
lated to working conditions by virtue of their participation in the
work-release program. We note that most of them take effect after
the WRs complete their work shifts and are no longer in an em-
ployee relationship. Chairman Gould has set forth additional views
on this matter.
7 Raymond Irvin, Danny Blackstock, Wilbert Smith, and Phil
Kelly.
Speedrack Products Group Limited and United
Steelworkers of America, AFL–CIO, Petitioner.
Cases 10–CA–29200 and 10–RC–141241
April 9, 1998
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HURTGEN
This case, on remand from the United States Court
of Appeals for the District of Columbia Circuit, pre-
sents the issue of whether four work-release inmates
(WRs) share a community of interest with other unit
employees and are thus eligible voters in the unit
found appropriate. The Board’s original decision, re-
ported at 320 NLRB 627 (1995), held that the WR em-
ployees did not share a community of interest with the
regular ‘‘free-world’’ unit employees, and they were,
therefore, ineligible to vote. The challenges to their
ballots were accordingly sustained. The Union, having
received the majority of the then valid votes, was cer-
tified by the Board as the collective-bargaining rep-
resentative of the unit employees.2 Thereafter, on Au-
gust 23, 1996, the Board issued a Decision and Order,
321 NLRB No. 143 (not reported in Board volumes),
finding that the Respondent violated Section 8(a)(5)
and (1) of the Act by refusing to bargain with the
Union and ordered the Respondent to bargain with the
Union.
The Respondent filed a petition for review with the
court of appeals and the General Counsel filed a cross-
petition for enforcement of its Order. On June 20,
1997, the court issued its decision granting the Re-
spondent’s petition for review and denying the Board’s
cross-petition for enforcement.3 In remanding the case
to the Board, the court directed the Board to reconsider
its decision because it ignored applicable Board prece-
dent, in particular, Winsett-Simmonds Engineers, Inc.4
and its progeny.5
On September 25, 1997, the Board advised the par-
ties that it had accepted the court’s remand and solic-
ited statements of position on the remanded issue from
the parties.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has reconsidered its original determina-
tion regarding the WR employees in light of the
court’s remand and the parties’ statements of position.
In agreement with Chairman Gould’s dissent in the un-
derlying representation case, we have decided to apply
Winsett-Simmonds, supra, in which the Board held that
the existence of a shared community of interest be-
tween WR employees and other employees will be de-
termined solely on the status of the WR employees
while in the employee relationship and not on what ul-
timate control the WR employees may be subjected to
by prison authorities at other times. Under this stand-
ard, we find, for the reasons set forth below, that the
WR employees share a sufficient community of inter-
est with the unit employees and accordingly are eligi-
ble voters.
It is undisputed that the WR employees are com-
pletely integrated into the Respondent’s work force
and enjoy the same wages, hours, and other terms and
conditions of employment, including fringe benefits, as
the ‘‘free-world’’ unit employees. It is also undisputed
that the WR employees work alongside the ‘‘free-
world’’ employees and are subject to the same super-
vision while performing bargaining unit work. To these
facts, the hearing officer correctly applied the test
enunciated in Winsett-Simmonds, supra, and correctly
concluded that the WRs shared a sufficient community
of interest with the ‘‘free-world’’ unit employees to be
included in the bargaining unit.6
We also find no merit in the contention that the De-
partment of Corrections (DOC) policy, as it relates to
restrictions on union activities, precludes an adequate
community of interest between the WRs and ‘‘free-
world’’ employees. In finding no such inherent con-
flict, we rely on the formal opinion letter approved by
a DOC commissioner, stating that WRs are allowed to
vote in Board representation elections and to work
within a bargaining unit with union representation. In
view of this statement, we need not decide whether
any attempt by corrections authorities or by state stat-
utes to bar lawful Section 7 activities by inmates work-
ing with other employees under the Board’s jurisdic-
tion is preempted.
Accordingly, we adopt the hearing officer’s findings
and recommendations. Therefore, we shall vacate our
8(a)(5) and (1) finding and our prior certification of
the Union. We shall also overrule the challenges to the
four ballots cast by the WRs7 and direct that they be
opened and counted and a new tally of ballots issue.
If the Union receives a majority of the votes, then the
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610 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 I recognize that work-release employees may be under restric-
tions which preclude the union from bargaining over certain terms
and conditions of their employment, however, there remains a whole
range of issues over which the union can bargain. Cf. Management
Training Corp., 317 NLRB 1355 (1995) (in determining whether to
assert jurisdiction over an employer, the Board stated that it would
no longer base jurisdiction on its assessment of the quality and/or
quantity of factors available for negotiation).
2 164 NLRB at 612. In other contexts, as the D.C. Circuit noted,
the Board has long held that employees subject to the ultimate con-
trol of outside forces may be included as part of an appropriate bar-
gaining unit if the usual community-of-interest criteria are satisfied.
114 F.3d at 1280 (citing Terri Lee, Inc., 103 NLRB 995 (1953) (sol-
diers on active duty in the United States Air Force found to have
sufficient community of interest with other employees where they
are scheduled for regular work and perform same general duties and
subject to substantially the same working conditions as other em-
ployees), and Shepard’s Uniform & Linen Supply Co., 274 NLRB
1423 (1985) (vocational student shares a community of interest with
other employees where vocational school’s rules did not require em-
ployer to treat student differently from other employees)). See also
Evergreen Legal Services, 246 NLRB 964 (1979) (the Board found
that employees employed pursuant to the Comprehensive Employ-
ment and Training Act (CETA) shared a sufficient community of in-
terest with the employer’s regular employees despite the additional
benefits available to the CETA employees and their indefinite length
of employment due to financial constraints facing the Federal em-
ployment assistance program).
3 See, e.g., William B. Gould IV, Japan’s Reshaping of American
Labor Law (MIT Press, 1984); and William B. Gould IV, Agenda
for Reform: The Future of Employment Relationships and the Law
(MIT Press, 1993).
Regional Director shall issue the appropriate certifi-
cation, but if the Union does not have a majority, then
the election shall be set aside on the basis of the objec-
tionable conduct committed by Speedrack during the
first election, as previously found, and a second elec-
tion shall be held when deemed appropriate by the Re-
gional Director.
ORDER
1. The Board’s original Decision and Order in Case
10–CA–29200, finding a violation of an 8(a)(5) and
(1) refusal to bargain on the part of the Respondent,
is vacated.
2. The Board’s original Decision and Certification of
Representative in Case 10–RC–14124 is vacated.
DIRECTION
IT IS DIRECTED that this proceeding is remanded to
the Regional Director to take such action as is consist-
ent with this Decision, Order, and Direction and any
other further appropriate action.
CHAIRMAN GOULD, further concurring.
I agree with the decision to apply the Board’s deci-
sion in Winsett-Simmonds Engineers, Inc., 164 NLRB
611 (1967), and find that the four work-release em-
ployees share a sufficient community of interest with
the ‘‘free-world’’ unit employees to be included in the
unit and to overrule the challenges to their ballots. As
I stated in my dissenting opinion in the underlying rep-
resentation case, 320 NLRB 627, 629–630 (1995), the
decisions in Winsett-Simmonds, supra, and Georgia
Pacific Corp., 201 NLRB 760 (1973), represent the
Board’s determination that whether work-release em-
ployees share a community of interest with their fellow
employees depends on their status while in the em-
ployment relationship and not on the ultimate control
they may be subjected to at other times. Citing my dis-
sent, the Court of Appeals for the District of Columbia
Circuit found that the ‘‘work release employees were
‘completely integrated’ into Speedrack’s workforce,’’
and ‘‘[t]hus under Winsett-Simmonds and the Board’s
other cases, Speedrack’s employees appear to share a
community of interest and to be eligible to vote in the
representation election.’’ Speedrack Products Group,
Ltd. v. NLRB, 114 F.3d 1276, 1282 (1997). As the
court stated, the ‘‘emphasis on a work release employ-
ee’s status on the job is eminently reasonable, since
the focus of the community of interests test is on the
interests of employees as employees, not their interests
more generally.’’ Id. at 1280 (emphasis in the origi-
nal).
My concurring colleague, however, would expand
the community-of-interest analysis to consider the
presence or absence of correctional authority con-
straints on other employee activities related to working
conditions. While I am unclear what ‘‘employee activi-
ties related to working conditions’’ she intends to in-
clude within her expanded community-of-interest anal-
ysis, I would find that such correctional authority con-
straints are irrelevant to the community-of-interest
analysis where those constraints do not differentiate
work-release employees from other employees in their
relationship to their employer.1
Member Fox notes, in particular, that a work-release
employee’s ‘‘freedom to attend union meetings after
working hours, to participate fully in the collective-
bargaining process, and to engage in other collective
efforts to affect workplace conditions’’ are relevant to
determining community of interest. In Winsett-
Simmonds, supra, the Board specifically found that the
requirement that work-release employees abide by cer-
tain rules of conduct and return promptly to their
work-release facility did not preclude the existence of
a community of interest with other employees even
though these restrictions might prevent work-release
employees from picketing in event of a strike or at-
tending union meetings which occur in the evening.2
Further, taking my concurring colleague’s language
at its most inclusive, her consideration of constraints
on the right of work-release employees to strike as a
factor in finding community of interest assumes an ad-
versarial approach to industrial relations and ignores
the movement toward workplace cooperation I have
long supported.3 To be sure, Sections 7 and 13 of the
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611SPEEDRACK PRODUCTS GROUP LIMITED
4 Sec. 7 provides:
Employees shall have the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or
other mutual aid or protection, and shall also have the right to
refrain from any or all such activities except to the extent that
such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment as au-
thorized in section 8(a)(3).
Sec. 13 provides:
Nothing in this Act, except as specifically provided for herein,
shall be construed so as either to interfere with or impede or di-
minish in any way the right to strike or to affect the limitations
or qualifications on that right.
Act protect the employee’s right to withhold his or her
labor in order to resolve differences with the em-
ployer.4 In my view, however, the primary thrust of
labor policy ought to be on more rational and coopera-
tive avenues for labor and management to pursue and
that strikes and picket lines, while part of the statutory
scheme, should be a measure of last resort as a prac-
tical matter. As I stated in my separate opinion in
Keeler Brass Co., 317 NLRB 1110 (1995), the trans-
formation of the employer—employee relationship
from one of adversaries locked in unalterable opposi-
tion to one of partners with different but mutual inter-
ests who can cooperate with one another is necessary
for the achievement of true democracy in the work-
place. 317 NLRB at 1117.
This is yet another reason why we should remain
faithful to the thrust of both my dissent and the Court
of Appeals’ decision in the instant case and measure
community of interest through integration into the em-
ployment relationship itself. Thus, the test is not
whether the parties can wage conflict against one an-
other but rather whether employees have in fact been
integrated into the work force itself.
MEMBER FOX, concurring.
I am in agreement with my colleagues on the result
reached in this decision based on the particular facts
of this case. Contrary to my colleagues, however, I
would modify the test set out in Winsett-Simmonds En-
gineers, Inc., 164 NLRB 611 (1967), and its progeny
by expanding it beyond its narrow focus on factors de-
fining the employment relationship while the WR em-
ployees are actually on the job. In my view, the pres-
ence or absence of correctional authority constraints on
other employee activities related to working conditions
is also relevant to the community-of-interest analysis.
In particular, I would consider constraints, if any, on
the WR’s freedom to attend union meetings after
working hours, to participate fully in the collective-
bargaining process, and to engage in other collective
efforts to affect workplace conditions. Employees who
are prevented by the authorities who set their condi-
tions of release from engaging in such activities are
thereby set apart from the other unit employees in a
way that may give them a distinctly different view of
the employment relationship.
I am satisfied, however, that there is insufficient evi-
dence of such actual constraints here to warrant a find-
ing that the WR employees lacked a community of in-
terest with the other employees, and I, therefore, join
in the finding that they should be included in the unit.
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