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Otherwise permanent operators temporarily sent to power plant not within plant’s bargaining unit

By Kathleen Kapusta, J.D.

The phrase “employed at” a specific location generally means permanent or consistent occupation in the place, not a temporary assignment. Thus, given a unit definition’s clarity, the Sixth Circuit explained that it “could understand the Board’s desire not to say more.”

Denying an employer’s petition for review of an NLRB order and granting the Board’s cross-application for enforcement, the Sixth Circuit found that a bargaining unit certified by the Board properly excluded operators assigned to a municipal power plant for brief stints and the Board did not need to resolve more clearly the status of future temporary workers (American Municipal Power, Inc. v NLRB, March 11, 2019, Sutton, J.).

When the company’s Smithland hydroelectric plant came online in 2017, it sent four operators from another facility to the plant to work a handful of days training new employees. It also sent a fifth operator to work at the plant five days a week for approximately four months and then one day a week until mid-January 2018.

Certified bargaining unit. In late January 2018, the union filed to represent operators working at Smithland and after a hearing, the Board’s regional director certified the following bargaining unit: “All full-time and regular part-time Operator I and Operator II employees employed by American Municipal Power, Inc. at its facility located at 1297 Smithland Dam Road…, excluding office clerical employees, professional employees, confidential employees, guards, and supervisors as defined in the [National Labor Relations] Act.”

Company’s objection. The company objected, claiming the definition improperly included operators it assigned to Smithland on a temporary basis. It asked the director to exclude temporary assignees by name by limiting the unit to “employees primarily assigned to the Smithland facility.” While the union agreed that the unit should not include temporarily assigned workers, it felt the definition already accomplished this goal. Agreeing, the regional director found the company “has no scheduled plans for any employees from other facilities to perform temporary work” at Smithland. Thus, the director found the definition constituted an appropriate and unambiguous unit and he did not need to determine the status of all temporary workers at that point.

The Smithland operators then voted to join the union but the company refused to bargain. When the Board ordered it to do so, it petitioned the court to review the bargaining unit and the Board cross-petitioned for enforcement.

Those word say a lot. While the parties agreed that the temporary operators did not share a community of interest with full-time and regular part-time Smithland operators, they disagreed over whether the union definition properly excluded operators assigned to Smithland for brief stints and whether the Board needed to resolve more clearly the status of future temporary workers. Finding that the Board permissibly chose not to say any more in its order, the Sixth Circuit pointed out that the unit contains only those “full-time and regular part-time [operators] employed… at” Smithland. “Those words say a lot,” the appeals court observed, noting that a future temporary assignee who covers for a staff shortage is not employed at Smithland but rather his home location even if he pinch-hits elsewhere. “Given the definition’s clarity, we can understand the Board’s desire not to say more,” the court stated.

Unseen future events. Further, the regional director found that the company lacked plans to assign other operators to Smithland on a temporary basis, the appeals court noted, pointing out that rulings premised on contingent event create contingent law and here the regional director reasonably decided to avoid drawing lines based on unseen future events.

Employed. While the employer argued that the word “employed” in the unit definition meant working for the company, and thus an operator “employed at Smithfield” meant an operator working there, the appeals court noted that in common parlance, the phrase “employed at” a specific location generally means permanent or consistent occupation in the place, not a temporary assignment.

Meaningful choice. The employer further argued that because the Board did not fully articulate the meaning of “employed at,” the appeals court should remand the matter to amend the regional director’s opinion. Finding no need for that, the court noted that not only did the Board announce its interpretation in the court, the director chose the phrase “employed … at Smithland” to replace the union’s proposed phrase “performing work at… Smithland” and although he may have “implied only the reading the Board now makes explicit, the regional director nonetheless made an intentional and meaningful choice.”

Clarified. And while the employer pointed to the regional director’s observation that he could leave the temporary operators’ “status unanswered for now” so that the parties could bargain later—arguing that the Board has taken inconsistent positions by initially refusing to determine whether temporary operators fall within the Smithland unit and now arguing that they are not included—the appeals court noted that both it and the Board need to ensure that a bargaining unit includes only workers with a common interest. And that’s why, said the court, the Board clarified the regional director’s remark and cited case law showing it always excludes from elections workers assigned to a temporary location for a finite duration. “With this clarification in mind, the Board simply didn’t prejudge the status of other workers—such as a non-Smithland operator working regularly at Smithland—who might have fallen within the company’s proposed exclusion.”