United Parcel Service

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 346 NLRB No. 49 484 Teamsters United Parcel Service National Negotiating Committee on behalf of International Brother- hood of Teamsters1 and its affiliated Local Un- ion No. 89 (United Parcel Service) and Porter Lady and Kelly Southworth and Melissa Curry and Tom Moxley. Cases 9–CB–10817,2 9–CB– 10818, 9–CB–10821, and 9–CB–10851 February 17, 2006 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER AND WALSH On January 19, 2005, Administrative Law Judge Law- rence W. Cullen issued the attached decision. The Gen- eral Counsel filed limited exceptions and a supporting brief. The Union filed cross-exceptions, a supporting brief, and an answering brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions, cross-exceptions, and briefs and has decided to affirm the judge’s rulings, findings, and conclusions as modified below and to adopt the rec- ommended Order as modified and set forth in full below. I. INTRODUCTION The issue presented is whether the Union violated Sec- tion 8(b)(1)(A) and (2) of the Act by executing and main- taining a collective-bargaining agreement with UPS in 2002, which extended the existing UPS nationwide bar- gaining unit it represents to include all ODC/FDC clerks and international auditors (clerk auditors). The General Counsel’s theory of the violation is that the clerk auditors had been historically excluded from the bargaining unit and therefore could not lawfully be accreted to the unit. The judge found that the addition of the clerk auditors employed at UPS’ Louisville, Kentucky facility consti- tuted an unlawful accretion to the bargaining unit be- cause the General Counsel established that they in fact had been historically excluded from the unit. In his limited exceptions, the General Counsel requests that the Board clarify that the violation is nationwide in 1 We have amended the caption to reflect the disaffiliation of the In- ternational Brotherhood of Teamsters from the AFL–CIO effective July 25, 2005. 2 The judge granted the General Counsel’s motion to sever the fol- lowing cases against the Respondent Employer United Parcel Service (UPS) based on a settlement with the Board’s Regional Office: Cases 9–CA–39862; 9–CA–39863; 9–CA–39868; and 9–CA–39981. The only remaining allegations are against the Respondent Teamsters United Parcel Service National Negotiating Committee on behalf of International Brotherhood of Teamsters and its affiliated Local Union No. 89 (the Union). We have amended the caption accordingly. scope, encompassing not only Louisville, but also nearly 1000 UPS locations where the General Counsel asserts that clerk auditors also have never been represented by the Union. We find that the General Counsel did not present sufficient evidence to establish a nationwide vio- lation. However, the record evidence shows that the clerk auditors employed at four additional UPS locations have been historically excluded from the unit. Accord- ingly, we find merit in the General Counsel’s exceptions only to the extent that we also find a violation as to these four locations. II. THE APPLICABLE LAW It is settled Board law that previously unrepresented employees may not lawfully be accreted to an existing bargaining unit where “the group sought to be accreted has been in existence at the time of recognition or certifi- cation, yet not covered in an ensuing contract, or, having come into existence, has not been part of the larger unit to which their accretion is sought or granted.” Laconia Shoe Co., 215 NLRB 573, 576 (1974). Accord: United Parcel Service, 303 NLRB 326, 326–327 (1991), enfd. 17 F.3d 1518 (D.C. Cir. 1994), cert. denied 513 U.S. 1076 (1995). Thus, upon finding that a group of em- ployees has been in existence and historically excluded from a unit, the Board will find a violation where parties to a collective-bargaining agreement attempt to include these employees in the unit without an “expression of a desire by a majority of those employees to be repre- sented.” Kaiser Foundation Hospitals, 343 NLRB 57, 66 (2004). It is the fact of historical exclusion that is determinative, and not whether the union has acquiesced in that exclusion or whether the excluded group has some common job-related characteristic distinct from unit em- ployees. United Parcel Service, 303 NLRB at 327. III. THE PRESENT CASE The record evidence establishes the following history and treatment of the clerk auditors at UPS. UPS em- ployed clerk auditors for the first time in about 1985 when it commenced international shipment of packages from its location in Louisville. Clerk auditors are re- sponsible for checking the adequacy of documentation on packages for international shipment from the United States. It is undisputed that the clerk auditors working at Louisville have never been represented by the Union. In the late 1980s, UPS opened additional hubs for in- ternational shipping in Ontario, California, and Philadel- phia, Pennsylvania. UPS Managers Robert Roundtree and James Bolton testified, and the Union concedes, that clerk auditors at these two locations likewise have never been represented by the Union. TEAMSTERS LOCAL 89 (UNITED PARCEL SERVICE) 485 In about 1994, UPS opened three test sites, in Buffalo, New York, in Hialeah, Florida, and (again) in Ontario for the decentralization of its international shipping opera- tions.3 Each site employed clerk auditors. UPS Manag- ers Roundtree and Bolton testified, without contradiction, that the clerk auditors at these sites also have never been represented by the Union. Between 1994 and 1998, UPS opened about 117 ODC international shipping sites employing clerk auditors. Between 1998 and about 2002, UPS expanded its inter- national shipping operations and its concomitant em- ployment of clerk auditors to some 1000 locations na- tionwide.4 The judge found that UPS used a “myriad” of assignment practices in staffing the clerk auditor posi- tions at these locations, including assigning the work to bargaining unit employees. The foregoing evidence establishes that the clerk audi- tors working at Louisville have been historically ex- cluded from the bargaining unit. Accordingly, the judge properly found that they could not lawfully be accreted to the unit, and that the Union unlawfully accepted rec- ognition as the representative of these employees and applied the collective-bargaining agreement to them. Similarly, the evidence establishes that the clerk audi- tors working at Buffalo, Hialeah, Ontario, and Philadel- phia have never been represented by the Union. UPS Managers Roundtree and Bolton testified to the historical exclusion of the clerk auditors at these locations, and there is no record evidence to the contrary. Therefore, we find that the Union’s unlawful conduct extended to these facilities as well. In contrast, we are unable to find on the record before us that the Union violated the Act at any of UPS’ other locations. As mentioned, the judge found that UPS util- ized a “myriad” of assignment practices for the clerk auditor function at its numerous other locations, includ- ing assigning it to employees represented by the Union. The General Counsel has not excepted to this finding. Thus, it is unclear from the record before us which of the remaining facilities historically excluded clerk audi- tors from the unit and which did not. The General Coun- sel presented no employee witness from any of the Re- spondent’s approximately 1000 other locations to testify that clerk auditors at these locations have been histori- cally excluded from the unit.5 The General Counsel also did not present any documentary evidence to suggest that clerk auditors were never represented by the Union at these other UPS locations, and the record shows that, at 3 These locations were termed “ODC” sites. 4 These locations were termed “FDC” sites. 5 The testimony of UPS Managers Roundtree and Bolton was limited to the five locations discussed above. least as to some of those facilities, clerk auditors were included in the bargaining unit. The record evidence thus fails to establish the key contention of the General Counsel: that clerk auditors at UPS locations nationwide have been previously unrepresented by the Union.6 In sum, we find that the record evidence establishes only that the clerk auditors at the following five locations have been historically excluded from the bargaining unit represented by the Union: Louisville, Kentucky; Buf- falo, New York; Hialeah, Florida; Ontario, California; and Philadelphia, Pennsylvania. Accordingly, we find that the Union violated the Act only as to these five loca- tions. Compare United Parcel Service, supra, 303 NLRB 326 (entire group of previously unrepresented operations clerks did not constitute a lawful accretion to the UPS nationwide bargaining unit where all employees at issue had always been excluded from the unit).7 ORDER8 The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge as modified and set forth in full below and orders that the Respondent, Teamsters United Parcel Service National Negotiating Committee, on behalf of International Brotherhood of Teamsters, and its affiliated Local Union No. 89, Louisville, Kentucky, its officers, agents, and representatives, shall 6 The evidence does not show that clerk auditors worked as nonunit employees at all ODC sites, as suggested in the judge’s decision. Chairman Battista notes that the Board is not declaring that the clerk auditors in these other locations are appropriately in the unit. Rather, the Board is holding only that the General Counsel has not shown, by a preponderance of the evidence, that they have been historically ex- cluded. In view of this limited holding, an appropriately filed petition (e.g., UC) could raise the issue as to the inclusion or exclusion of these employees in the nationwide unit. 7 The Union argues that this case should be analyzed under Sun, 329 NLRB 854 (1999). The argument is premised on its view that the bargaining unit here is defined functionally. In fact, the unit descrip- tion here contains traditional job classification language. The Board’s treatment of functionally described units in Sun is thus inapposite. The Union’s reliance on Lockheed Martin Tactical Aircraft Systems, 331 NLRB 1407 (2000), is also misplaced. The Board majority there specifically pointed out that the General Counsel was not alleging that the parties were attempting to expand the unit description by including a historically excluded classification. Id. at 1408. Here, however, the General Counsel has made that allegation. Chairman Battista did not participate in Lockheed Martin and does not pass on the validity of that case. 8 We have modified the judge’s recommended Order to conform to the violation found, to provide a complete remedy, to accord with our decision in Indian Hills Care Center, 321 NLRB 144 (1996), and to correct certain inadvertent errors. We have substituted a new notice to comport with these modifications. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 486 1. Cease and desist from (a) Accepting exclusive recognition as the representa- tive of previously unrepresented United Parcel Service (UPS) international auditors and ODC/FDC clerks at UPS facilities located in Louisville, Kentucky; Buffalo, New York; Hialeah, Florida; Ontario, California; and Philadelphia, Pennsylvania, at a time when a majority of these employees have not designated the Union as their exclusive representative, and entering into a contract with UPS as the collective-bargaining representative of these previously unrepresented employees. (b) Applying the terms of its collective-bargaining agreement with UPS of August 1, 2002, or any other agreement with UPS, to previously unrepresented inter- national auditors and ODC/FDC clerks at UPS facilities located in Louisville, Kentucky; Buffalo, New York; Hialeah, Florida; Ontario, California; and Philadelphia, Pennsylvania, unless and until it has been duly certified by the Board as the exclusive representative of those employees. Nothing in this Order shall authorize or re- quire the withdrawal or elimination of any wage increase or other improved benefits or terms of employment es- tablished pursuant to such contract. (c) In any like or related manner restraining or coerc- ing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Reimburse all previously unrepresented interna- tional auditors and ODC/FDC clerks at UPS facilities located in Louisville, Kentucky; Buffalo, New York; Hialeah, Florida; Ontario, California; and Philadelphia, Pennsylvania, for any initiation fees, dues, or other mon- eys involuntarily exacted from them pursuant to applica- tion of a union-security clause in the August 1, 2002 Teamsters-UPS collective-bargaining agreement, or any other agreement with UPS, and make them whole for any loss of earnings and other benefits (including insurance benefits) sustained by them as a result of the Respon- dent’s unfair labor practice, with interest as set forth in the remedy section of the judge’s decision. (b) Make whole any previously unrepresented interna- tional auditors and ODC/FDC clerks at UPS facilities located in Louisville, Kentucky; Buffalo, New York; Hialeah, Florida; Ontario, California; and Philadelphia, Pennsylvania, who were required to terminate their em- ployment rather than follow the work into the unit and suffered loss of earnings and other benefits as a result, with interest as set forth in the remedy section of the judge’s decision. (c) Notify UPS, in writing, that it has no objection to the reinstatement of any previously unrepresented inter- national auditors and ODC/FDC clerks at UPS facilities located in Louisville, Kentucky; Buffalo, New York; Hialeah, Florida; Ontario, California; and Philadelphia, Pennsylvania, who were required to terminate their em- ployment rather than follow the work into the unit, and request that UPS reinstate these employees to their for- mer jobs or, if those jobs no longer exist, to substantially equivalent positions. (d) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all payroll records, so- cial security payment records, timecards, personnel re- cords and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (e) Within 14 days after service by the Region, post at its business offices serving members at UPS facilities located in Louisville, Kentucky; Buffalo, New York; Hialeah, Florida; Ontario, California; and Philadelphia, Pennsylvania, copies of the attached notice marked “Ap- pendix.”9 Copies of the notice, on forms provided by the Regional Director for Region 9, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to insure that the notices are not altered, defaced, or covered by any other material. (f) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. APPENDIX NOTICE TO EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated Federal labor law and has ordered us to post and obey this notice. 9 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” TEAMSTERS LOCAL 89 (UNITED PARCEL SERVICE) 487 FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain on your behalf with your employer Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT accept exclusive recognition as the rep- resentative of previously unrepresented United Parcel Service (UPS) international auditors and ODC/FDC clerks at UPS facilities located in Louisville, Kentucky; Buffalo, New York; Hialeah, Florida; Ontario, Califor- nia; and Philadelphia, Pennsylvania, at a time when we are not designated as the exclusive representative by a majority of these previously unrepresented employees. WE WILL NOT apply the terms of our collective- bargaining agreement with UPS of August 1, 2002, or any other agreement with UPS, to previously unrepre- sented international auditors and ODC/FDC clerks at UPS facilities located in Louisville, Kentucky; Buffalo, New York; Hialeah, Florida; Ontario, California; and Philadelphia, Pennsylvania, unless and until we have been duly certified by the National Labor Relations Board as the exclusive representative of those employ- ees. WE WILL NOT in any like or related manner restrain or coerce you in the exercise of the rights set forth above. WE WILL reimburse all previously unrepresented inter- national auditors and ODC/FDC clerks at UPS facilities located in Louisville, Kentucky; Buffalo, New York; Hialeah, Florida; Ontario, California; and Philadelphia, Pennsylvania, for any initiation fees, dues, or other mon- eys involuntarily exacted from them pursuant to applica- tion of a union-security clause in the August 1, 2002 Teamsters-UPS collective-bargaining agreement, or any other agreement with UPS, and WE WILL make them whole for any loss of earnings and other benefits (includ- ing insurance benefits) sustained by them as a result of our unfair labor practice, with interest. WE WILL make whole any previously unrepresented in- ternational auditors and ODC/FDC clerks at UPS facili- ties located in Louisville, Kentucky; Buffalo, New York; Hialeah, Florida; Ontario, California; and Philadelphia, Pennsylvania, who were required to terminate their em- ployment rather than follow the work into the unit and suffered loss of earnings and other benefits as a result, with interest. WE WILL notify UPS, in writing, that we have no ob- jection to the reinstatement of any previously unrepre- sented international auditors and ODC/FDC clerks at UPS facilities located in Louisville, Kentucky; Buffalo, New York; Hialeah, Florida; Ontario, California; and Philadelphia, Pennsylvania, who were required to termi- nate their employment rather than follow the work into the unit, and WE WILL request that UPS reinstate these employees to their former jobs or, if those jobs no longer exist, to substantially equivalent positions. TEAMSTERS UNITED PARCEL SERVICE NATIONAL NEGOTIATING COMMITTEE ON BEHALF OF INTERNATIONAL BROTHERHOOD OF TEAMSTERS, AND ITS AFFILIATED LOCAL UNION NO. 89 Eric Oliver, Esq. and Linda Finch, Esq., for the General Coun- sel. David Hoskins, Esq., for the Respondent Employer. Michael T. Manley, Esq. and Gary Witlen, Esq., for the Re- spondent Union. DECISION STATEMENT OF THE CASE LAWRENCE W. CULLEN, Administrative Law Judge. This case was heard before me on October 5 and 6, 2004, in Louis- ville, Kentucky. The consolidated complaint is based on charges filed by Porter Lady, an individual, Kelly Southworth, an individual, Melissa Curry, an individual, and Tom Moxley, an individual, and contains allegations against both Teamsters United Parcel Service National Negotiating Committee on be- half of International Brotherhood of Teamsters, AFL–CIO and its affiliated Local Union No. 89 (the Teamsters or the Union) and United Parcel Service (UPS or the Employer). The com- plaint alleges that Respondent Teamsters and UPS unlawfully accreted the international auditors and ODC/FDC clerks into a nationwide bargaining unit1 at a time when the Union did not represent a majority of these employees. Pursuant to a contin- gent settlement reached between Region 9 the National Labor Relations Board (the Board) and UPS, a motion was made at 1 The complaint alleges, Respondent admits, and I find the appropri- ate unit is: Where already recognized, all feeder drivers, package drivers, sorters, loaders, unloaders, porters, office clerical, clerks, mechanics, mainte- nance personnel (building maintenance), car washers, [Respondent Employer’s] employees in [Respondent Employer’s] air operation, to the extent allowed by law employees in the export and import opera- tions performing load and unload duties, other employees of [Respon- dent Employer] for whom a signatory local of [Respondent Union] is or may become the bargaining representative. In addition, effective August 1, 1987, [Respondent Employer] recognized as bargaining unit members clerks who are assigned to package center operations, hub center operations, and/or air hub operations whose assignment in- volves the handling and progressing of merchandise, after it has been tendered to [Respondent Employer] to effectuate delivery. These jobs cover: package return clerks, bad address clerks, post card room clerks, damage clerks, rewrap clerks, the hub and air hub return clerks. This Agreement also governs the classifications covered in Article 39—Trailer Repair Shop. Effective no later than February 1, 2003, [Respondent Employer] recognizes as bargaining unit members “smart label” clerks and revenue auditors who work in the operations facilities. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 488 the hearing on October 5, 2004, to sever Cases 9–CA–39863, 9–CA–399868, and 9–CA–39981. I granted the motion and these cases were severed from the consolidated complaint. The complaint had alleged that Respondent UPS had violated Sec- tion 8(a)(1) and (2) of the National Labor Relations Act (the Act) by recognizing the Respondent Union as the collective- bargaining representative of the following group of employees: FDC/ODC clerks and international auditors who work in [Re- spondent UPS] operation facilities. and by applying, maintaining, and enforcing the terms of the collective-bargaining agreement between the Union and UPS to the foregoing unrepresented employees described above even though these employees had not designated the Union as their collective-bargaining representative, and by maintaining and enforcing the provisions of the collective-bargaining agreement that requires employees as a condition of employment, to be- come and remain members in good standing of the Union, and by deducting moneys from the wages of these employees and remitting those funds to Respondent Union as initiation fees and/or dues. The complaint alleges that by the foregoing con- duct UPS has encouraged its employees to join and support the Union, and has unlawfully accreted these employees into the bargaining unit. The complaint alleges that the Union engaged in conduct in violation of Section 8(b)(1)(a) by accepting moneys that UPS deducted from the wages of the aforesaid employees as initia- tion fees and/or dues and that the Union has been attempting to cause the employer to discriminate against the aforesaid em- ployees in violation of Section 8(b)(2) of the Act. The Respon- dent Teamsters has filed its answer to the complaint denying the commission of any violations of the Act. Upon consideration of the testimony of the witnesses, the exhibits received in evidence at the hearing and the briefs of the General Counsel and Respondent Union, I make the following FINDINGS OF FACT A. The Business of the Employer The complaint alleges, Respondents admit, and I find that at all times material herein, the Employer has been a corporation with offices and places of business in various States including its place of business in Louisville, Kentucky, and has been engaged in the interstate transportation of freight and distribu- tion of parcels, that during the past 12 months, the Employer in conducting its aforesaid operations performed interstate freight transportation services valued in excess of $50,000 and re- ceived gross revenues in excess of $500,000 as a link in the interstate movement of freight and has been an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. B. The Labor Organization The complaint alleges Respondent Union admits and I find that at all times material herein, the Union has been and is a labor organization within the meaning of Section 2(5) of the Act. I. FACTS The facts of this case are largely undisputed. The Union has been a party to a national contract with UPS since 1979. More than 1000 UPS facilities across the country are covered by the current labor agreement effective from August 1, 2002, through July 31, 2008. The UPS in Louisville, Kentucky, is the facility at which the Charging Parties were employed when the charges in this case were filed. In 1985, UPS opened its initial air hub in Louisville and used approximately 15 to 20 nonbargaining unit employees to perform international auditing work. International auditors (a.k.a. document auditors) at the Louisville hub were employed on the export work removing invoices from packages and insuring they contained sufficient information to ensure that the packages were shipped to their intended destinations. Michelle Darnel testified that she commenced work as an inter- national export auditor 15 years ago and that she and other international auditors were not represented by the Union until 2002. She testified that her auditing responsibilities included key entry as well as auditing. She worked as an international auditor until she was assigned invoice sort/ODC work in the late 1990s. Louisville employees who were assigned import auditing scanned packages to facilitate their release following customs inspections. During this process “released” and “held” labels were inserted on the packages and RF scanners were used to identify their status. From approximately 1985, until the Louisville international operations moved into the World Port building in July 2002, the import and export functions were housed in a facility and were divided by a concrete wall dividing the nonbargaining unit export and import personnel from the unit employees. Since July 2002, the import operation at the Louisville hub had been restricted to a secured area controlled by U.S. Customs and a special identification badge is required to enter it. The export operation is outside the secured area. Prior to their accretion to the bargaining unit the import employees had only limited con- tact with the unit employees. UPS established export hubs in Ontario, California, in 1987, and in Philadelphia, Pennsylvania, in 1989. The three hubs were the primary gateways used to export items to other counties. The export work at all three hubs was assigned to nonbargaining unit employees. UPS decentralized its export function by creating Origin Data Capture (ODC) sites in 1994. This facilitated the process of handling international packages at origin centers which were close to shippers. ODC clerks worked as nonbargaining unit employees performing the same duties as the international audi- tors at the primary export gateways did. Approximately 117 new ODC sites were established from 1994 to 1998 and docu- ment auditors and/or ODC key entry personnel were assigned the international auditing function. By 2000, the ODC centers were converted into flexible data capture (FDC) sites. The document auditor and key entry posi- tions were combined into one job function and there was a blending of functions between the bargaining unit and nonunit positions at some of the smaller ODC/FDC sites but this did not occur at the Louisville, Ontario, and Philadelphia hubs. The TEAMSTERS LOCAL 89 (UNITED PARCEL SERVICE) 489 import auditors at the Louisville hub did not work in the same area as the unit employees and former employee Kelly South- worth who worked in the import section of the Louisville hub testified she rarely had contact with unit employees prior to the 2000 accretion. Former employee Michelle Darnel testified that unit employees worked in the same area as the export auditors, but were assigned nonauditing work. Former employee Melissa Curry testified that the administrative assistant, document audi- tor, and international auditor are different names for the same position. She testified that management began referring to her crew as international auditors when they moved into the World Port building. Employee Porter Lady and Kelly Southworth testified they worked in the imports section of the Louisville hub and were classified as administrative clerks. Lady testified that there were approximately 60 administrative clerks who performed scanning work in his section. I credit the foregoing testimony of Curry, Lady, and Southworth. International auditing work was a nonbargaining unit func- tion when the ODC sites were instituted. The accretion issue was not a matter of concern prior to the bargaining for the 2002 labor agreement when the parties agreed that effective no later than February 1, 2003, UPS international auditors and ODC/FDC clerks would be recognized as bargaining unit em- ployees. On December 12, 2002, UPS’ human resources repre- sentative, Mike Warner, conducted meetings at the Louisville hub and informed the nonunit import and export employees that they must either agree to be transitioned into the bargaining unit or resign. All of the Charging Party employees who testi- fied at the hearing elected to be transitioned into the bargaining unit rather than resign. As unit members they were informed that they were subject to union dues, their insurance was con- verted from Blue Cross/Blue Shield to Aetna and that Decem- ber 29, 2002, would be their new seniority date. Employees Lady and Darnel received a wage increase as a result and Southworth and Curry’s pay was red circled as their wage rates exceeded the union scale. As a result of fewer hours assigned to union employees, the employees received a decrease in earn- ings. Vacation benefits were also decreased as a result. Dues from the transitioned employees were received by the Respon- dent Union and the 2002 contract was applied to those employ- ees without a card check or a Board-conducted election. II. CONTENTIONS OF THE PARTIES 1. General Counsel’s position The General Counsel contends in brief as follows: The Board follows a restrictive policy in permitting accretions citing United Parcel Service, 303 NLRB 326 (1991), enfd. 17 F.3d 1518 (D.C. Cir. 1994), cert. denied 513 U.S. 1076 (1995), and prohibits the accretion of a classification of previously unrepre- sented employees in existence at the time of recognition or certification but not covered in an ensuing collective-bargaining agreement citing Laconia Shoe Co., 215 NLRB 573, 576 (1974). Parties are found to have acted timely where an accre- tion issue is dealt with prior to a successor agreement. A group of employees that have been excluded from an existing unit for a significant period of time can only gain entrance into the bar- gaining unit by a representation election or a card check. It is the historical exclusion of a disputed classification from the bargaining unit that is determinative in assessing the legality of an accretion, United Parcel, supra. It is inconsequential that the union in question may or may not have acquiesced to the his- torical exclusion. It is not necessary to apply a community of interest standard. In the instant case Ken Hall, the Union’s chief negotiator tes- tified that he was not aware of the ODC/FDC classification until 2000. However, the Union’s knowledge of the ODC clas- sification is established by an October 25, 1995 representation petition that was filed by Teamsters Local 63 and which sought a unit of ODC clerks. However, it was not until 2002, that the parties negotiated an agreement to place the ODC/FDC clerks into the unit without an election or card check. In view of the Union’s knowledge of the ODC classification by October 1995, it was obligated under Board policy, to address the ODC’s bar- gaining unit status before the 1997 contract was executed. Its failure to do so precludes a finding of a lawful accretion in 2002. UPS’ traditional treatment of the international auditing function as bargaining unit work at certain of its facilities, does not bar a finding of an unlawful accretion under circumstances in which other UPS’ facilities historically assigned the work to nonunit personnel. The Union presented evidence that export auditors at various UPS centers had traditionally been included in the bargaining unit. In reliance on Lockheed Martin Tactical Aircraft Systems, 331 NRLB 1407 (2000), the Union contends that the employees in the disputed classifications were not ac- creted but were given an opportunity to follow bargaining unit work that had seeped out of the unit. However, the international auditing function in Louisville, Ontario, and the original ODC sites was classified as nonbargaining unit work from its incep- tion. Therefore insofar as these facilities are concerned the inclusion of the international auditors and ODC/FDC clerks in the unit was not merely a way of reclaiming bargaining unit work. As in the prior United Parcel Service case, supra, the disputed classifications here consist of a combination of repre- sented and unrepresented employees who performed the same job functions at different UPS facilities. The historical exclu- sion of the international auditors and ODC/FDC clerks at some of the UPS facilities compels a finding that they, in the absence of an election or card check were the subjects of an unlawful accretion. 2. Respondent Union’s position The Respondent Union contends in brief as follows: An ac- cretion analysis is inappropriate. It argues that under Sun, 329 NLRB 854 (1999), the Board established a different test to be applied in situations such as the instant case, where the bargain- ing unit is defined primarily by the work performed, as opposed to job classifications or titles. The Board began its analysis by noting: Where, as here, the scope of a unit is defined by the work per- formed, it is necessarily that scope which is central to the Board’s analysis, and the Board and courts have accorded special significance to that unit scope. [329 NLRB at 857.] After an extensive review of prior precedent, the Board an- nounced the following standard: DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 490 Accordingly, we shall apply the following standard in unit clarification proceedings involving bargaining units defined by the work performed: if the new employees perform job functions similar to those performed by unit employees, as de- fined in the unit description, we will presume that the new employees should be added to the unit, unless the unit func- tions they perform are merely incidental to their primary work functions or are otherwise an insignificant part of their work. Once the above standard has been met the party seeking to exclude the employees has the burden to show that the new group is sufficiently dissimilar from the unit employees so that the existing unit, including the new group, is no longer appropriate. [329 NLRB at 859.] The Union has demonstrated that the work performed by employees now classified as ODC/FDC clerks or international auditors is the same work that either was performed by mem- bers of the bargaining unit in those locations in which the work was diverted during the 1999–2000 period or which has been performed consistently by members of the bargaining unit in those locations where the work remained in the bargaining unit throughout the transition to computers. The parties to the in- stant agreement agreed to clarify the contract to explicitly pro- vide that auditing of international packages was bargaining unit work, regardless of the titles UPS created to classify the indi- viduals performing that work. The question is whether the Gen- eral Counsel has met its burden to demonstrate that “the new group is sufficiently dissimilar from the unit employees” so as to negate their inclusion in the existing unit. Traditional com- munity-of-interest factors must be applied. However, “a show- ing that technological innovation has affected unit work will not suffice to exclude new classifications” unless the changes are such that the unit would no longer make sense if the dis- puted employees were included. The new employees would be added to the existing unit if the only significant differences in the work performed were the result of “improved methodology and increased efficiency brought on by computer technology.” Reliance on community-of-interest factors such as wage rates that are solely within the employer’s control are usually not appropriate to rebut the presumption. 329 NLRB at 859. The standard in Sun, supra, supports the inclusion of the Interna- tional auditors and ODC/FDC clerks in the existing unit repre- sented by the Teamsters. The language in the collective- bargaining agreement broadly defines the bargaining unit to include any clerical work that “involves the handling and proc- essing of merchandise, after it has been tenured to United Par- cel Service to effectuate delivery.” The evidence establishes that, when UPS initially decentral- ized the international audit function in the early 1990s it was the work of physically auditing the international package and the accompanying weigh bill and invoice which was assigned to bargaining unit members. In 1998 to 2000, UPS added duties requiring employees handling international packages to both physically inspect the package and weigh bill and enter ship- ping information into a computer. Some center managers, citing the additional duties, attempted to remove the work from the bargaining unit while other managers left the work with the unit. The work performed by bargaining unit members prior to 1998–2000, was functionally similar to the work performed by the newly created ODC clerk position. UPS initially referred to the new classification as “document auditor,” then “interna- tional auditor” and finally after further computer refinements, “ODC clerk.” The work performed by the new ODC position was identical to the work performed by bargaining unit mem- bers. The only differences between the work performed by ODC employees was the direct result of the improved method- ology and increased efficiency brought on by computer tech- nology. Thus the presumption that the new employees should be added to the bargaining unit is not overcome. There is a different standard for recapturing prior unit work. In Lockheed Martin, supra, the parties had been signatory to successive collective-bargaining agreements, all of which ex- cluded salaried professional and administrative employees (P&A) in the Graphic Arts department from the bargaining unit. The Union perceived that the employer was assigning bargaining unit work to P&A employees. The Union filed nu- merous grievances. During bargaining for a new contract in 1993, the parties agreed to conduct an audit of various jobs to determine whether the disputed tasks were bargaining unit work. An audit showed that 26 of 76 P&A jobs consisted pri- marily of unit work. These jobs were reclassified as bargaining unit positions. The nonbargaining unit employees who had been performing the work were permitted to “follow the work” and were offered an opportunity to transfer into the bargaining unit. The administrative law judge (ALJ) in Lockheed found the reclassification to be an unlawful accretion. The Board re- versed, finding accretion principles to be inapplicable because: The Respondent and the Union did not attempt to expand the unit by adding the P&A job classification to the unit. Rather, they sought to adhere to the scope of the bargaining unit to which they had agreed by returning unit work to the unit to be performed by employees in the job classification that, by their agreement, should have been performing the work all along. The Board rejected the argument that its conclusion ignored the Section 7 rights of the affected employees. As in Sun, supra, it equated the rights of affected employees to those of a newly hired employee accepting a position in an established appropri- ate bargaining unit represented by a union who does not have the “right to choose to perform bargaining unit work but be unrepresented by the union. . . . ” 331 NLRB at 1408 fn. 5. In both cases, work that had been previously assigned to bargain- ing unit employees was taken away and given to non-unit per- sonnel. In both cases numerous grievances were filed protesting the reassignment of unit work to nonunit personnel. In both cases the parties elected to resolve the issue by agreeing to return the work to the bargaining unit rather than terminating the nonunit employees who were performing the work, they were given the opportunity to transfer into the unit. In both cases the unit was not expanded by adding a previously unrep- resented classification but the unit work was returned to the unit. In the instant case the General Counsel does not dispute that bargaining unit members in certain cases previously performed or currently perform international audit work. General Counsel appears to argue that, even if UPS previously assigned interna- TEAMSTERS LOCAL 89 (UNITED PARCEL SERVICE) 491 tional audit work to unit employees, UPS and the Teamsters were not free to add the new ODC employees to the bargaining unit because, when UPS originally began performing the inter- national audit work, the specific classifications of employees involved were not part of the bargaining unit. This argument was made by General Counsel in Lockheed and ignores the fact that it is the “work” that was lawfully recaptured by the union and returned to the bargaining unit, not the individual employ- ees or classification of employees who were offered the oppor- tunity to follow their work into the bargaining unit. The Board’s decision in United Parcel Service, supra, con- cerned the appropriateness of an agreement between the Team- sters and UPS to extend the bargaining unit to include all opera- tions clerks working for UPS nationwide. The evidence in that case had established that prior to 1979, Teamsters’ locals en- tered into individual bargaining relationships with UPS facili- ties operating within each local’s jurisdiction. Operations clerks were included in some, but not all of these bargaining units. In 1979, when the Teamsters and UPS bargained their first na- tional master agreement, the recognition clause included opera- tions clerks, “where already recognized.” The Union attempted to expand the unit to include all operations clerks during nego- tiations for a successor master agreement in 1982, but was un- successful. During the 1987 negotiations, UPS agreed to mod- ify the recognitional language to include the remaining opera- tions clerks. There with the operations clerk job remained the same between 1979 and 1987. The Board found the addition of the previously unrepresented operation clerks to be an unlawful accretion. The Board cited and relied on earlier decisions which held that accretion is inappropriate where the group sought to be added either existed at the time of the original recognition or certification or came into existence during the term of an agreement but was not subsequently included in the larger unit. The Board amplified this principle: The limitations on accretion discussed above and applied in Laconia Shoe and related precedent require neither that the union have acquiesced in the historical exclusion of a group of employees from an existing unit, nor that the excluded group have some common job-related characteristic distinct from unit employees. It is the fact of historical exclusion that is determinative. [303 NLRB at 327.] Since the operations clerks at issue had historically been ex- cluded from the unit and there was no evidence that the Team- sters had ever demonstrated majority support among these clerks, the Board found the 1987 agreement to be unlawful. Respondent Teamsters contends that the earlier UPS case is distinguishable from the instant case before me as although the bargaining unit in the earlier UPS case included some opera- tions clerks, the particular clerks it sought to add had histori- cally been excluded from the unit. In the instant case before me, Respondent contends that international audit work had histori- cally been assigned to bargaining unit employees at different UPS centers scattered throughout the country. While UPS sought to remove this work from some centers in 1999, at other centers bargaining unit members continued to perform interna- tional work up to the date of the hearing in the instant case. However, the operations clerks in the earlier UPS case had never been part of the unit. They had been excluded by a unit definition the parties had voluntarily agreed to when the multi- union master agreement was formed. The Union eventually changed its view and sought to expand the unit to include the previously excluded clerks. Thus an argument could not be made that the Teamsters were seeking to recapture work that “seeped out” or had otherwise been lost from the unit. However in the instant case before me the work here had initially been assigned to the bargaining unit in recognition of the fact that the work “involves the handling and processing of merchandise,” which is the functional description of the bargaining unit in the contract. When UPS then attempted to move this work as in Lockheed, supra, the Teamsters sought to retain and recapture what was already theirs. As in Lockheed, supra, the effect of the agreement between the parties was to transfer the work performed by auditors, as opposed to the classification itself, back into the unit. In the early 1990s, when UPS began assigning international work to the bargaining unit, it did not reclassify the members to whom the work was assigned. The bargaining unit members who testi- fied indicated they were classified by various titles such as “clerk,” “international auditor,” “air personnel,” “package han- dlers,” “international clerk,” “counter clerk,” “evening clerk,” “air recovery and ADG auditor,” or “unloader and clerk.” When UPS removed the work from the unit in 1999, it did not lay off the bargaining unit members who had been handling international packages, but simply reassigned them to other tasks. When the parties agreed to return the work to the unit, the nonunit employees who had been performing the work were afforded the opportunity to follow the work into the unit. Therefore it was the work and not the classification that was incorporated into the unit. This fact distinguishes the instant case from the Board’s recent decision in Kaiser Foundation Hospitals, 343 NLRB 57 (2004). In Kaiser, supra, the Board found the parties’ agreement to add the classification of re- search assistant to the existing unit to be an unlawful accretion. The Board found that unlike Lockheed, supra, the parties did not conduct any audit of the research assistants’ duties, but simply transferred the entire classification into the unit. In the instant case no audit was necessary, since bargaining unit members had been doing the work and union officials were well aware, through the numerous grievances filed, of the na- ture of the work being performed. Respondent contends that the General Counsel’s focus on the prior UPS case is misplaced as it involved the traditional accre- tion scenario, where parties attempt to expand the unit to in- clude employees performing the work that had never been per- formed by bargaining unit members. In the instant case, the work that was added to the unit was work that had historically been performed by bargaining unit members. Under these cir- cumstances, the Board has held that the parties to a collective- bargaining agreement can reasonably decide that a bargaining unit, defined by the nature of the work performed, includes additional specified job classifications and duties, and includes employees performing the work that had never been performed by bargaining unit members. In the instant case, the work that was added to the unit was work that had historically been per- formed by bargaining unit members. Under these circum- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 492 stances, the Board has held that the parties to a collective- bargaining agreement can reasonably decide that a bargaining unit, defined by the nature of the work performed, includes additional specified job classifications and duties, citing Ante- lope Valley Press, 311 NLRB 459 (1993); Sun, supra. The parties to a collective-bargaining agreement should not be compelled to utilize a unit clarification procedure in order to legitimatize their mutual agreement over the work functions covered by the contract. Pall Biomedical Products Corp., 331 NLRB 1674, 1677 (2000). In Antelope Valley, supra, and a companion case, Bremerton Sun Publishing Co., 311 NLRB 467 (1993), the Board held that an employer may, upon reach- ing impasse, insist on transferring work out of the bargaining unit to nonunit employees so long as the employer does not either insist on changing the actual unit description or insist that the nonunit employees to whom the work is transferred remain outside of the unit. The Board held that, in such situations, the unit placement of the nonunit employees could be determined in either an unfair labor practice or unit clarification proceed- ing. Analysis The parties in their briefs have discussed in detail their re- spective positions as set out above concerning the bargaining unit issues with respect to the placement of nonbargaining unit employees in the unit in order to “follow the work” of the in- ternational import and/or export work. They have discussed the historical context of UPS’ movement into the business of inter- national shipment of packages, the historical original placement of this work in the three large hubs of Louisville, Kentucky; Ontario, California; and Philadelphia, Pennsylvania; and the subsequent decentralization of the international work to several regional hubs. Based on my review of the record I find that this case may be decided along factual patterns set by the historical events as viewed in the light of the prior UPS case. With respect to the Charging Parties Porter Lady, Kelly Southworth, Melissa Curry, and Tom Moxley, I find the prior UPS case is control- ling as contended by the General Counsel. The evidence dis- closed that these nonunit employees had performed the interna- tional work at the Louisville, Kentucky center from its incep- tion. Thus, this work had never been placed in the unit and these employees had never been in the unit. I find in agreement with General Counsel, that the historical exclusion of these classifications of employees performing the international work is the determinative factor in assessing the legality of the accre- tion of these employees into the unit. I find that since this group of employees had been excluded from the unit for a significant period of time, it can only gain legal entrance into the bargain- ing unit by a representation election or a card check, Laconia Shoe, supra. I thus find that the Respondent violated Section 8(b)(1) and (2) of the Act by unlawfully accreting these nonunit employees into the unit and by causing the Employer to with- hold union dues from their wages and remitting these dues to the Teamsters Union and by causing the Employer to fail to remit these sums to the then existing health and insurance bene- fits. With respect to the practices at other of the UPS facilities, the Respondent produced evidence showing a myriad of prac- tices at these facilities. In some cases the international work was originally assigned to and performed by the unit employ- ees, subsequently removed from the unit employees and as- signed to and performed by nonunit employees and later this work was assigned to the unit and the nonunit employees were permitted to follow the work into the unit and were accreted into the unit. CONCLUSIONS OF LAW 1. The case against Respondent UPS was severed from this case and I make no findings of violations concerning the Em- ployer. 2. The Respondent Union, by accepting exclusive recogni- tion as the representative of a group of previously unrepre- sented UPS international auditors and ODC/FDC clerks, at a time when a majority of these employees had not designated the Union as their representative, and by entering into a con- tract with the employer as the collective-bargaining representa- tive and by receiving dues from the pay of certain previously unrepresented international auditors and ODC/FDC clerks, has engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) and (2) of the Act. The employees who were unlawfully required to transfer into the unit and subjected to the terms of the collective-bargaining agreement or who were required to terminate their employment rather than follow the work into the unit shall be made whole for any loss of wages or benefits incurred by them as a result thereof. Kaiser, supra, see American Tempering, Inc., 296 NLRB 699, 709 (1989), enfd. 919 F.2d 731 (3d Cir. 1990). Nothing in the recommended Order should be construed to authorize or require the withdrawal or revocation of any bene- fits that have been granted to the affected employees as a result of the imposition of the contract and the unlawful acceptance of recognition of the Respondent Union as the affected employ- ees’ representative. See Brooklyn Hospital Center, 309 NLRB 1163, 1164 (1992), enfd. 9 F.3d 218 (2d Cir. 1993); King Radio Corp., 257 NLRB 521, 527 (1981). 3. The aforesaid unfair labor practices are unfair labor prac- tices within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent Union engaged in certain un- fair labor practices, I shall order that it cease and desist there- from and take certain affirmative actions designed to effectuate the purposes of the Act. Having found that Respondent Union, violated the Act by accepting recognition of a group of previ- ously unrepresented international auditors and ODC/FDC clerks and applying the collective-bargaining agreement to these employees, I shall order Respondent Union to cease ac- cepting such recognition and applying to these employees the terms of the 1997 collective-bargaining agreement, or any ex- tension, renewal, modification, or superseding agreement, unless or until the Respondent Union is certified by the Board as such representative. I shall also order that the Respondent Union reimburse the previously unrepresented international auditors and ODC/FDC clerks, present and former, for dues and initiation fees and any health and insurance premiums involun- tarily exacted from them as a result of the unlawful application TEAMSTERS LOCAL 89 (UNITED PARCEL SERVICE) 493 of the union-security clause in the collective-bargaining agree- ment, and on any loss of benefits sustained by them as a result of the unfair labor practices, with interest to be computed in the manner prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987). [Recommended Order omitted from publication.]