Fourth Circuit Rules Web Site Employees Cannot Accrete to Unit of Other Newspaper Employees

Ordinarily, the National Labor Relations Board (the “NLRB” or the “Board”) defines the size and scope of a potential bargaining unit in a representation proceeding and then orders an election in which the employees vote for or against union representation. In some cases, however, the NLRB may direct that a group of unrepresented employees be added (or “accreted”) to a preexisting bargaining unit without an election; this can occur where the Board finds that the accreted employees lack sufficient group identity to function as a separate unit and that their interests are closely aligned with those of the employees in the existing unit. In a recent case in which the Board was called upon to apply these traditional principles in the context of emerging internet technology, the U.S. Court of Appeals for the Fourth Circuit in Richmond, Virginia, reversing the Board, has ruled that employees working on the production of a newspaper’s web site should not be accreted to an existing unit of newspaper employees. Baltimore Sun v. NLRB, 2001 WL 810386 (4th Cir. July 18, 2001).

THE CASE

The Washington-Baltimore Newspaper Guild represents a wide variety of employees at the Baltimore Sun newspaper, including editorial, commercial, library, and mechanical employees. During the negotiation of a new collective bargaining agreement in June 1996, the newspaper rejected the union’s proposal that employees working on the newspaper’s new “SunSpot” website be included in the existing bargaining unit.

The NLRB’s Regional Director granted the union’s petition for unit clarification, seeking to accrete the website employees to the existing unit, and that decision was affirmed by the Board without explanation. After the newspaper refused to bargain over the website employees, the union filed an unfair labor practice charge. The Board entered summary judgment against the newspaper on the basis of the Board’s prior ruling in the unit clarification proceeding, and found that the newspaper had unlawfully refused to bargain.

THE COURT DECISION

The Court of Appeals reversed. The court noted that the Board’s standard for accretion decisions, as articulated in Safeway Stores, Inc., 256 N.L.R.B. 918 (1981), has two prongs: (1) whether the new employees “have little or no separate group identity and thus cannot be considered an appropriate unit,” and (2) whether the new employees “share an overwhelming community of interest” with the bargaining unit to which they would be accreted. Since the Board did not explain its decision to affirm the Regional Director’s ruling finding an accretion, the court focused on the reasoning given by the Regional Director.

First, the court found that the Regional Director skipped the first step of the Safeway Stores standard by failing to determine whether the website employees could constitute a separate appropriate unit. In determining whether a unit is appropriate, the NLRB looks to twelve factors tending to establish that a group of employees have a sufficient “community of interest” to constitute a bargaining unit. These factors are: (1) similarity in the scale and manner of determining the employees’ earnings; (2) similarity in employment benefits, hours of work, and other terms and conditions of employment; (3) similarity in the kind of work performed; (4) similarity in the qualifications, skills, and training of the employees; (5) frequency of contact or interchange among the employees; (6) geographic proximity; (7) continuity or integration of production processes; (8) common supervision and determination of labor-relations policy; (9) relationship to the administrative organization of the employer; (10) history of collective bargaining; (11) desires of the affected employees; (12) extent of union organization.

The court acknowledged that the Board’s discretion in selecting an appropriate unit is broad, that there is often more than one appropriate unit, and that the Board is free to select any one of those appropriate units as the bargaining unit, even if it is not the “most” appropriate. In this case, however, the court found that neither the Board nor the Regional Director considered whether the website employees could constitute an appropriate bargaining unit. Had they considered the issue, the court continued, they would have found that a website unit would be appropriate.

Specifically, the SunSpot employees operated as a separate department, with immediate supervisors that were dedicated to it and did not overlap with other departments. The employees prepared a website rather than a newspaper, and therefore both their duties and their qualifications differed from those of the employees in the existing unit. The website employees were compensated differently than the newspaper employees, they used different equipment and supplies, and their duties did not overlap. Although employees from the two departments interacted, the court found that the “degree of interaction is no different from that which is often found between separate appropriate units in any given business.”

Under these circumstances, the court ruled, the website employees could constitute their own appropriate bargaining unit. Therefore, they were not eligible for accretion to the existing newspaper unit.

The court also criticized the Regional Director’s finding that the SunSpot employees shared an “overwhelming community of interest” with the members of the existing unit. The court acknowledged that the two groups of employees shared some community of interest. However, it ruled, “[t]he inherent difference between the two sets of employees could not be overlooked.”

The court cautioned that accretion is a “drastic remedy for exceptional cases” because it denies the accreted employees the right to choose whether to be represented by a union. Because the principle of employee self-determination was at stake, the court concluded that any doubt about the issue should be resolved by an election.

The court’s decision is of note because it is relatively uncommon for Board determinations on the appropriateness of a bargaining unit to be overturned. The decision should be of particular interest, moreover, to employers whose operations include both employees working in internet-related positions and employees performing more traditional jobs.