Unions commonly utilize clarification petitions to invoke accretion principles and try to bypass election procedures. However, the National Labor Relations Board’s recent decision in Recology Hay Road and Teamsters Local 315 illustrates how employers can avoid employee accretion into existing bargaining units by emphasizing the lack of interchange between bargaining unit employees and the non-bargaining unit employees at issue. Interchange occurs when employees alternate or transfer between positions.

Accretion – through clarification petitions filed with the Board – allows unions to add employees to an existing bargaining unit without a representation election. The purpose of this tool is to help preserve industrial stability by allowing adjustments in bargaining units when new jobs are created, without requiring an adversarial election. However, the Board has maintained a longstanding policy of applying the doctrine restrictively because of its tension with an employee’s right to freely choose a bargaining unit. The Board set forth the accretion standard in Safeway Stores, articulating that it will find “a valid accretion only when the additional employees have little or no separate group identity and thus cannot be considered to be a separate appropriate unit and when the additional employees share an overwhelming community of interest with the preexisting unit to which they are accreted.” The Board has long recognized that accretion analysis requires consideration and a balancing of several factors, including interchange and contact among employees, degree of functional integration, geographic proximity, similarity of working conditions, similarity of employee skills and functions, supervision, and collective-bargaining history. While the Board has previously specified that the two most important factors in accretion analysis are employee interchange and common day-to-day supervision – and that the absence of those two factors will ordinarily preclude an accretion – the Board’s analysis in Recology Hay Road demonstrates that employee interchange is the most critical factor and that its absence will prevent a finding of accretion. More specifically, the Board’s decision indicates that establishing an overwhelming community of interest requires some evidence of employee interchange.

In Recology Hay Road, the Employer operated a solid waste disposal facility and employed members of a bargaining unit comprised of seven classifications of workers. In response to two theft schemes perpetrated by bargaining unit employees, the Employer created a new classification of employee known as the Material Receiving Coordinator (“MRC”).The Employer specifically created this classification outside of the bargaining unit to protect itself against theft during business hours by having MRCs serve as the management’s eyes and ears and to observe and report the unit employees’ infractions. The Employer employed two MRCs and maintained that the MRC position was not covered by the collective bargaining agreement.

Upon learning of the MRC position, the union sought to clarify the existing bargaining unit to include the MRCs. The Regional Director found that the MRCs were an accretion to the existing bargaining unit, but the Board reversed the Regional Director’s decision, dismissing the union’s clarification petition and concluding that the union could not meet its heavy burden showoff demonstrating accretion, given the absence of employee interchange. Despite evidence of common day-to-day supervision, integration of operations, and shared terms and conditions of employment, the Board found the evidence was not sufficient to establish an overwhelming community of interest between the bargaining unit employees and the MRCs.  Specifically, the Board found this to be the case because there was no evidence of permanent or temporary interchange between the MRCs and the bargaining unit employees, since the MRCs and unit employees do not alternate positions and there was no history of transfer between the MRCs and bargaining unit employees. Moreover, the Board noted that the absence of interchange appeared intentional, since the Employer had purposefully established the new classification to prevent theft and costly errors by the bargaining unit employees.

In sum, the NLRB’s decision shows that an accretion finding generally requires some evidence of the critical factor of employee interchange and employers may defeat employee accretion into an existing bargaining unit by intentionally avoiding interchange between the employees it seeks to keep outside the scope of the collective bargaining agreement and the bargaining unit employees.