Speedrack Products Group Ltd.

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 VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00609 Fmt 0610 Sfmt 0610 D:\NLRB\325.076 APPS10 PsN: APPS10 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 VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00610 Fmt 0610 Sfmt 0610 D:\NLRB\325.076 APPS10 PsN: APPS10 611 SPEEDRACK 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. VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00611 Fmt 0610 Sfmt 0610 D:\NLRB\325.076 APPS10 PsN: APPS10