To Include or Not to Include in a Bargaining Unit; That is the Question

A union recently filed a petition seeking to represent a unit of truck drivers who drove company-owned vehicles at Golden State’s Sun Valley, California facility. The employer, Golden State, argued that some company-owned vehicle drivers should not be included in the bargaining unit because they do not share a community of interest with the other company-owned vehicle drivers. Conversely, drivers of personally-owned vehicles should be included in the proposed bargaining unit.

For example, employees who drive 53-foot tractor-trailers have distinct duties and responsibilities from drivers of other-sized vehicles. The tractor-trailer drivers perform line hauls, which carry large freight between the company’s hubs. The other drivers of company-owned vehicles deliver to offices and residences. The union countered that all company-owned drivers should be in the bargaining unit because they all receive the same five days of training, operate under Golden State’s insurance, have the same supervisors, have the same work rules, wear the same uniform, perform the same types of pickups and deliveries, and receive similar compensation, and are subject to the same drug testing policies.

Conversely, personally-owned vehicle drivers and the non-tractor-trailer company-owned vehicle drivers share an overwhelming community of interest which requires both groups to be included in a single bargaining unit. Per Golden State, both sets of drivers are given the same responsibilities for pickups and deliveries, are subject to the same supervisors, receive their routes through the same routers, interchange with each other when picking up and delivering receive similar training, work out of the same facility, record their work time using the same method and wear the same uniform, among other things. The union disputed that the community of interest between the company-owned vehicle drivers and the personally-owned vehicle drivers was not overwhelmingly enough to satisfy Specialty Healthcare.

So who should be included in the bargaining unit and have an opportunity to vote whether to join the union?

If you said that the 53-foot tractor-trailer drivers should be included in the bargaining unit, you’re right. Chalk this win up to the union. If you then said that the personally-owned vehicle drivers should also be included, then you would again be right. Chalk this win up to the employer.

The burning question now is whether the inclusion of the personally-owned vehicle drivers results in the union having authorization cards signed by less than 30% of the bargaining unit. If so, then there can be no election and thus no union at Sun Valley. Let this be a reminder to employers that they must closely and critically scrutinize the proposed bargaining unit immediately after receiving a notice of representation election. The company may be able to remain union-free without having to win a union election.

Matt Austin who owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 285-5342 or email him at Matt@MattAustinLaborLaw.com.

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