Special Machine & Engineering, Inc.

National Labor Relations Board - Board Decisions

Feb 23, 1987

282 N.L.R.B. 1410 (N.L.R.B. 1987)

1410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Special Machine & Engineering, Inc. and Interna-
tional Union , United Automobile, Aerospace
and Agricultural Implement Workers of Amer-
ica (UAW) and its Local 157. Case 7-RM-290
23 February 1987
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
On 29 May 1986 the Regional Director issued a
Decision and Order in the above-entitled proceed-
ing dismissing the petition on the ground that the
Union's claim that the Respondent's transferred
employees are an accretion does not raise a ques-
tion concerning representation, and on the ground
that the transferred employees are an accretion.
Thereafter, in accordance with Section 102.67 of
the Board's Rules and Regulations, the Employer
filed a timely request for review of the Regional
Director's decision on the basis that the Regional
Director departed from Board precedent in dis-
missing the petition, asserting that the transferred
employees are not an accretion to the existing unit
as neither group is sufficiently predominant to
remove any question concerning representation.
The Union filed a statement in opposition in which
it contended that no question concerning represen-
tation exists because the accreted group is smaller
than the represented group, and the two affected
groups share a community of interest.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
We have considered carefully the arguments of
the, parties, and for the reasons set forth below, we
deny review of the Regional Director's dismissal of
the Employer's petition.
The following relevant facts as found by the Re-
gional Director are undisputed. The Union has rep-
resented the Employer's production and mainte-
nance employees at its Southfield, Michigan facility
for 30 years. The bargaining unit consists of ap-
proximately 50 employees. In early December
1985, the Employer announced its intention to con-
solidate operations with its corporate subsidiary,
Quality Craft Die, Tool & Mold, Inc. (QCI), locat-
ed in Novi, Michigan. At the time, QCI employed
approximately 28 unrepresented production em-
ployees. In mid-January 1986, the Employer began
to transfer QCI production employees and equip-
ment to its Southfield plant. By May 1986, when
the hearing was conducted, the Employer had
transferred 20 of the 28 QCI employees.' Upon
transfer, the Southfield and QCI production em-
ployees merged into a single productive entity as
both groups of employees use the same equipment
and machines, require the same skills, work on the
same projects under common supervision, and
work under the same terms and conditions of em-
ployment.
This case is substantially similar to our recent de-
cision in Central Soya Co., 281 NLRB No. 173
(Oct. 21, 1986), in which we found an accretion
under similar circumstances. Our decision in Cen-
tral Soya thus controls the result here. Neverthe-
less, our dissenting colleague has repeated, some of
the contentions he made in his dissent in Central
Soya.
The dissent contends that the Board's decision in
Martin Marietta Chemicals, 270 NLRB 821-(1984),
requires that we find , that the 20 unrepresented
QCI employees are not an accretion to the 50-em-
ployee, union-represented Southfield, Michigan
unit because the Southfield employees are not suffi-
ciently predominant in number over the QCI em-
ployees. The dissent, however, has applied the
wrong standard.
In Martin Marietta, the employer consolidated
two units historically represented by different labor
organizations. The Board, citing published prece-
dent, stated that, under those circumstances; it
would not impose one of the unions on the consoli-
dated unit by accretion unless the group the union
previously represented was "sufficiently predomi-
nant to remove the question concerning overall
representation." 270 NLRB at 822 (citation omit-
ted). The fact that one of the groups was slightly
larger than the other was insufficient.
Here, unlike Martin Marietta, the two groups
have not historically been represented by different
unions; the QCI employees are unrepresented. In
Central Soya we explained that an accretion exists
in these circumstances, "even when the represented
employees barely constitute[] a majority of the
combined work force." 281 NLRB No. 173, slip
op. at 6 (citations omitted). Accordingly, Martin
Marietta does not by its terms apply to this case.
Our dissenting colleague nevertheless would
apply Martin Marietta here and would consider
whether the Southfield employees are "sufficiently
predominant." He argues, "Inasmuch as Section 7
of the Act expressly protects the employees' right
to refrain from as well as the right to engage in
union activities, I see no reason for applying a dif-
ferent standard to consolidation cases in which one
employee group was previously represented and
' The Employer expected at the time of the hearing to transfer the re-
maining eight employees to Southfield by September 1986 The Regional
Director, however, made no findings with respect to those eight as the
Union did not claim that they were an accretion to the bargaining unit
282 NLRB No. 172
SPECIAL MACHINE & ENGINEERING 1411
the other was not." Insofar as that argument may
suggest that the absence of union activity is to be
automatically equated with a conscious decision to
refrain, we disagree with its factual premise. Even
more importantly, contrary to the dissent's sugges-
tion, Martin Marietta is not clearly founded on a
concern for the smaller group's representation
choice. Rather, as explained in National Carloading
Corp., 167 NLRB 801, 802 (1967), the Board has
ordered elections in cases in which both employee
groups are represented, and neither sufficiently pre-
dominant, in order to ensure that the disruptive in-
fluence that conflicting representation claims might
have on industrial peace and harmonious bargain-
ing relationships is eliminated. There is no such po-
tentially disruptive influence here.
Accordingly, as in Central Soya, we will again
apply the general rule that, where sufficient other
accretion factors are present,2 we will not permit
an employer to capitalize on its decision to consoli-
date a smaller group with its larger, represented
group to justify terminating its long-term bargain-
ing relationship with the majority representative.3
We will instead accrete the smaller group to the
larger.
Accordingly, review is denied.
CHAIRMAN DOTSON, dissenting.
Contrary to my colleagues, I would grant the
Employer's request for review and reverse the Re-
gional Director's Decision and Order dismissing
the petition.
The Employer, Special Machine & Engineering,
Inc. (SME), consolidated its operations with Qual-
ity Craft Die, Tool & Mold, Inc. (QCI), a corpo-
rate subsidiary. At the time of the hearing, 20 QCI
production employees had been reassigned to the
SME Southfield, Michigan facility where a unit of
50 production and maintenance employees was rep-
resented by UAW, Local 157. The remaining eight
QCI production employees were expected to be
transferred to Southfield shortly. The Regional Di-
rector determined that the "consolidation has ef-
fected virtually a complete integration of the QCI
and SME production workforces." The Regional
Director then found that the former employees of
QCI are governed by the unit's choice of bargain-
ing representative and, alternatively, that the
Union's claim of accretion does not raise a question
2 See Central Soya, supra, 281 NLRB 1308, 1309, fn 8
a Id at 1309 In Central Soya the employer withdrew recognition from
the union and the union filed charges pursuant to Sec 8(a)(5) and (1)
Here, as discussed in the Regional Director's decision , the Employer re-
fused to apply the recognition and union -secunty clauses of its contract
with the Union to the QCI employees It later fled an election petition
pursuant to Sec 9(c) for an election among all of its production and
maintenance employees The procedure the employers in the two cases
used differed, but the result was the same
concerning representation and that accretion has in
fact taken place.
In the circumstances of this case, I would find
the accretion doctrine to be inapplicable. In any ac-
cretion case, the Board must balance the right of
employees to express their desire concerning repre-
sentation against the policy favoring continuity in
collective-bargaining relationships. The Board has
held that "[w]hen an employer merges two groups
of employees who have been historically represent-
ed by different unions, a question concerning repre-
sentation arises, and the Board will not impose a
union by applying its accretion policy where nei-
ther group of employees is sufficiently predominant
to remove the question concerning overall repre-
sentation."' Inasmuch as Section 7 of the Act ex-
pressly protects the employees' right to refrain
from as well as the right to engage in union activi-
ties, I see no reason for applying a different stand-
ard to consolidation cases in which one employee
group was previously represented and the other
was not. In this case, the QCI employees had com-
prised a separate, distinct, and historically unrepre-
sented work force for approximately five years
prior to the Employer's consolidation. Following
the consolidation, the QCI employees increased the
total complement of employees at the Southfield
facility by more than one-half. In these circum-
stances, I would conclude that neither group is
"sufficiently predominant."2
A Federal circuit court has noted that "As a
general rule, the accretion doctrine should be ap-
plied restrictively since it deprives the new em-
ployees of their opportunity to express their desires
regarding memberships in the existing unit [cita-
tions omitted]. And when the relevant consider-
ations are not free from doubt, it would seem more
satisfactory to resolve such close questions through
the election process rather than seeking an addition
of the new employees by a finding of accretion [ci-
tations omitted]."3 Accordingly, I would find that
a question concerning representation exists and
would order an election in the merged unit4 of
i Martin Marietta Chemicals, 270 NLRB 821 (1984)
2 See also Boston Gas Co, 221 NLRB 628 (1975), Massachusetts Electric
Co, 248 NLRB 155 (1980)
a Westinghouse Electric Corp v NLRB, 440 F 2d 7, 11 (2d Ctr 1971)
While the court to Westinghouse put its imprimatur on the Board's use of
accretion, the court's concern over the extent to which the dynamics of
legal logic would, in the future, expand the use of the accretion doctrine,
with a concomitant effect on employee free choice, is clear This case is
well beyond that pale
4 My colleagues assert that the Employer will not be permitted "to
capitalize on its decision to consolidate a smaller group with its larger,
represented group to justify terminating its long-term bargaining relation-
ship with the majority representative " However, no unlawful motive to
the Employer's consolidation has been alleged in this case In their deter-
mination to see that the Employer does not-from their perspective-
Continued
1412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
SME and QCI employees to determine whether
the union represents a majority of the employees.
take advantage of the situation, my colleagues again fail to strike the cor-
rect balance between competing interests. (See fn 6 of my dissent in Cen-
tral Soya)
For another instance where a smaller group of employees has effectual-
ly been deprived of their statutory rights by the Board 's application of a
doctrine designed to forward its ideas of "industrial stability," see the dis-
sent of myself and former 'Member Dennis in Gibbs & Cox, Inc., 280
NLRB 953 (1986). There, the Board applied its so-called merger doctrine
to hold that a group of employees , which constituted an appropriate unit
at the time it sought representation , was later "merged" by agreement of
the employer and union into a larger unit . This "merger" effectively sti-
fled a later attempt by this group to withdraw from representative status.
This Board has resisted formal deferral to outside dispute resolution
mechanisms in the representation area. It nevertheless increasingly defers
de facto to the actions of faceless negotiators and corporate decision-
makers by its current use of so-called merger and accretion theories to
prevent exercise of Sec. 7 rights by employees involuntarily caught up in
these corporate and collective arrangements. Knowledgeable employees
will, in the future, hesitate to select a collective-bargaining representative
when they realize that they may be at-any time negotiated or transferred
out of their Sec 7 right to reject a current representative or select an-
other. In the instant case, even the initial selection of a bargaining repre-
sentative has been torn from employees' grasp. This is a high price to pay
for abstract goals of "industrial stability."