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Work-Release Prisoners Eligible to Vote on Union Representation

Apanel of the National Labor Relations Board (NLRB), upon reconsideration of its original determination, has held that four work-release employees share a sufficient "community of interest" with the regular "free-world" unit employees, so they are eligible to vote in union representation elections.

This matter arose in May 1991, when the United Steelworkers of America, AFL-CIO-CLC (Union) filed a petition seeking a representation election for a unit composed of all production and maintenance employees at the Speedrack Products Group (Speedrack), Hamilton, Alabama manufacturing facility. At the time, four of the unit employees were on work-release from the Alabama Department of Corrections.

An election was held on July 21, 1991, but the Union challenged eight ballots, including the four ballots cast by the work-release prisoners. Without the challenged ballots, the tally was 56 for and 51 against the Union. On October 31, 1991, a NLRB hearing officer issued a report finding that rejected the Union's ballot challenges. The hearing officer found the work-release employees were eligible to vote in the election, but the Union filed exceptions to these conclusions.

On December 29, 1995, the NLRB reversed the hearing officer regarding the work-release employees by holding that these employees did not share the required "community of interest" with the regular "free-world" unit employees; thus, declaring them ineligible to vote on union representation. 320 NLRB 627 (1995). After counting the other four ballots, the vote was now 56 to 55 in favor of the Union, and the NLRB certified the Union as the exclusive bargaining representative of the unit employees.

Speedrack, however, refused to recognize or bargain with the Union because the work-release employees votes were not counted. The NLRB subsequently issued an order holding that Speedrack committed unfair labor practices, 321 NLRB 143 (1996), and the parties appealed.

On appeal, the court recognized that an employee is eligible to vote in a representation election if he or she shares "a community of interest" with other unit employees. Speedrack Products Group, Ltd. v. N.L.R.B. , 114 F.3d 1276 (D.C. Cir. 1997). Although the court acknowledged the NLRB's "broad discretion in making unit determinations," it noted that "the Board cannot ignore its own relevant precedent," unless it explains why.

The test for determining whether work-release employees share a community of interest with their fellow, "free-world" employees depends upon their status while in the employment relationship, not what ultimate control is exerted by prison authorities. Winsett-Simmonds , 164 NLRB 611 (1967). The court concluded that the NLRB's determination ignored this longstanding precedent without valid explanation, and was, therefore, unreasonable.

In its original decision, the NLRB panel majority attempted to re-write NLRB policy by applying ad hoc reasoning that was clearly contrary to established precedent. on remand, the panel solicited statements of position from the parties, but yielded to the appellate court's thoughtful analysis. On reflection, the panel recognized that the hearing officer had correctly applied the test enunciated in Winsett-Simmonds to the facts, and it adopted the hearing officer's original findings and recommendations. As a result, the prior certification of the Union was vacated, and the Board directed that the ballots of the four work-release employees be opened and counted. See: Speedrack Products Group Limited and United Steelworkers of America, AFL-CIO , 325 NLRB 109 (1998).

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Related legal case

Speedrack Products Group, Ltd.

Speedrack Products Group Limited and United Steelworkers of America, AFL-CIO, Petitioner

Cases 10-CA-29200, 10-RC-14124 n1

n1 The representation case number has been included in the caption hconsis-tent with the subject of the court's remand.


325 N.L.R.B. 609; 158 L.R.R.M. 1001; 1997-98 NLRB Dec. (CCH) P16,464; 325 NLRB No. 109

April 9, 1998

SUBSEQUENT HISTORY: As Corrected April 17, 1998.


By William B. Gould IV, Chairman; Sarah M. Fox, Member; Peter J. Hurtgen, Member.

NOTICE: This opinion is subject to formal revision before publication in the Board volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

[*609] This case, on remand from the United States Court of Appeals for the District of Columbia Circuit, pre-sents the issue of whether four work-release inmates (WRs) share a community of interest with other unit employees and are thus eligible voters in the unit found appropriate. The Board's original decision, reported at 320 NLRB 627 (1995), held that the WR employees did not share a community of interest with the regular "free-world" unit employees, and they were, therefore, ineligible to vote. The challenges to their ballots were accordingly sustained. The Union, hav-ing received the majority of the then valid votes, was certified by the Board as the collective-bargaining representative of the unit employees. n2 Thereafter, [**2] on August 23, 1996, the Board issued a Decision and Order, 321 NLRB No. 143 (not reported in Board volumes), finding that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the Union and ordered the Respondent to bargain with the Union.

n2 Id. at 629.

The Respondent filed a petition for review with the court of appeals and the General Counsel filed a cross-petition for enforcement of its Order. On June 20, 1997, the court issued its decision granting the Respondent's petition for re-view and denying the Board's cross-petition for enforcement. n3 In remanding the case to the Board, the court directed the Board to reconsider its decision because it ignored applicable Board precedent, in particular, Winsett-Simmonds En-gineers, Inc. n4 and its progeny. n5

n3 114 F.3d 1276 (D.C. Cir.).
n4 164 NLRB 611 (1967).
n5 See Georgia-Pacific Corp., 201 NLRB 760 (1973).

On September 25, 1997, the Board advised the parties that it had accepted the court's remand and solicited state-ments of position on the remanded issue from the parties.
The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.
The Board has reconsidered its original determination regarding the WR employees in light of the court's remand and the parties' statements of position. In agreement with Chairman Gould's dissent in the underlying representation case, we have decided to apply Winsett-Simmonds, supra, in which the Board held that the existence of a shared com-munity of interest between WR employees and other employees will be determined solely on the status of the WR em-ployees while in the employee relationship and not on what ultimate control the WR employees may be subjected to by prison authorities at other times. Under this standard, we find, for the reasons set forth below, that the WR employees share a sufficient community of interest with the unit employees and accordingly are eligible voters.
It is undisputed that the WR employees are completely integrated into the Respondent's work force [**4] and en-joy the same wages, hours, and other terms and conditions of employment, including fringe benefits, as the "free-world" unit employees. It is also undisputed that the WR employees work alongside the "free-world" employees and are subject to the same supervision while performing bargaining unit work. To these facts, the hearing officer correctly applied the test enunciated in Winsett-Simmonds, supra, and correctly concluded that the WRs shared a sufficient community of interest with the "free-world" unit employees to be included in the bargaining unit. n6

n6 Contrary to our concurring colleague, we do not believe there is a need to expand the factors that com-prise our traditional community-of-interest analysis beyond those that are significant to the employee relation-ship. Therefore, we do not find it relevant that the WR employees are subject to certain other DOC restrictions unrelated to working conditions by virtue of their participation in the work-release program. We note that most of them take effect after the WRs complete their work shifts and are no longer in an employee relationship. Chairman Gould has set forth additional views on this matter.

We also find no merit in the contention that the Department of Corrections (DOC) policy, as it relates to restrictions on union activities, precludes an adequate community of interest between the WRs and "free-world" employees. In find-ing no such inherent conflict, we rely on the formal opinion letter approved by a DOC commissioner, stating that WRs are allowed to vote in Board representation elections and to work within a bargaining unit with union representation. In view of this statement, we need not decide whether any attempt by corrections authorities or by state statutes to bar law-ful Section 7 activities by inmates working with other employees under the Board's jurisdiction is preempted.
Accordingly, we adopt the hearing officer's findings and recommendations. Therefore, we shall vacate our 8(a)(5) and (1) finding and our prior certification of the Union. We shall also overrule the challenges to the four ballots cast by the WRs n7 and direct that they be opened and counted and a new tally of ballots issue. If the Union receives a majority of the votes, then the [*610] Regional Director shall issue the appropriate certification, but if the Union does not have a majority, then [**6] the election shall be set aside on the basis of the objectionable conduct committed by Speedrack during the first election, as previously found, and a second election shall be held when deemed appropriate by the Re-gional Director.

n7 Raymond Irvin, Danny Blackstock, Wilbert Smith, and Phil Kelly.

1. The Board's original Decision and Order in Case 10-CA-29200, finding a violation of an 8(a)(5) and (1) refusal to bargain on the part of the Respondent, is vacated.
2. The Board's original Decision and Certification of Representative in Case 10-RC-14124 is vacated.
IT IS DIRECTED that this proceeding is remanded to the Regional Director to take such action as is consistent with this Decision, Order, and Direction and any other further appropriate action.
Dated, Washington, D.C. April 9, 1998
William B. Gould IV, Chairman
Peter J. Hurtgen, Member


MEMBER FOX, concurring.
I am in agreement with my colleagues on the result reached in this decision based on the particular facts of this case. Contrary [**7] to my colleagues, however, I would modify the test set out in Winsett-Simmonds Engineers, Inc., 164 NLRB 611 (1967), and its progeny by expanding it beyond its narrow focus on factors defining the employment relationship while the WR employees are actually on the job. In my view, the presence or absence of correctional au-thority constraints on other employee activities related to working conditions is also relevant to the community-of-interest analysis. In particular, I would consider constraints, if any, on the WR's freedom to attend union meetings after working hours, to participate fully in the collective-bargaining process, and to engage in other collective efforts to affect workplace conditions. Employees who are prevented by the authorities who set their conditions of release from engag-ing in such activities are thereby set apart from the other unit employees in a way that may give them a distinctly differ-ent view of the employment relationship.
I am satisfied, however, that there is insufficient evidence of such actual constraints here to warrant a finding that the WR employees lacked a community of interest with the other employees, and I, therefore, [**8] join in the finding that they should be included in the unit.
Dated, Washington, D.C. April 9, 1998
Sarah M. Fox, Member
CHAIRMAN GOULD, further concurring.
I agree with the decision to apply the Board's decision in Winsett-Simmonds Engineers, Inc., 164 NLRB 611 (1967), and find that the four work-release employees share a sufficient community of interest with the "free-world" unit employees to be included in the unit and to overrule the challenges to their ballots. As I stated in my dissenting opinion in the underlying representation case, 320 NLRB 627, 629-630 (1995), the decisions in Winsett-Simmonds, supra, and Georgia Pacific Corp., 201 NLRB 760 (1973), represent the Board's determination that whether work-release employees share a community of interest with their fellow employees depends on their status while in the em-ployment relationship and not on the ultimate control they may be subjected to at other times. Citing my dissent, the Court of Appeals for the District of Columbia Circuit found that the "work release employees were 'completely inte-grated' into [**9] Speedrack's workforce," and "thus under Winsett-Simmonds and the Board's other cases, Speedrack's employees appear to share a community of interest and to be eligible to vote in the representation elec-tion." Speedrack Products Group, Ltd. v. NLRB, 114 F.3d 1276, 1282 (1997). As the court stated, the "emphasis on a work release employee's status on the job is eminently reasonable, since the focus of the community of interests test is on the interests of employees as employees, not their interests more generally." Id. at 1280 (emphasis in the original).
My concurring colleague, however, would expand the community-of-interest analysis to consider the presence or absence of correctional authority constraints on other employee activities related to working conditions. While I am unclear what "employee activities related to working conditions" she intends to include within her expanded commu-nity-of-interest analysis, I would find that such correctional authority constraints are irrelevant to the community-of-interest analysis where those constraints do not differentiate work-release employees from other employees [**10] in their relationship to their employer. n1

n1 I recognize that work-release employees may be under restrictions which preclude the union from bar-gaining over certain terms and conditions of their employment, however, there remains a whole range of issues over which the union can bargain. Cf. Management Training Corp., 317 NLRB 1355 (1995) (in determining whether to assert jurisdiction over an employer, the Board stated that it would no longer base jurisdiction on its assessment of the quality and/or quantity of factors available for negotiation).

Member Fox notes, in particular, that a work-release employee's "freedom to attend union meetings after working hours, to participate fully in the collective-bargaining process, and to engage in other collective efforts to affect work-place conditions" are relevant to determining community of interest. In Winsett-Simmonds, supra, the Board specifically found that the requirement that work-release employees abide [**11] by certain rules of conduct and return promptly to their work-release facility did not preclude the existence of a community of interest with other employees even though these restrictions might prevent work-release employees from picketing in event of a strike or attending union meetings which occur in the evening. n2

n2 164 NLRB at 612. In other contexts, as the D.C. Circuit noted, the Board has long held that employees subject to the ultimate control of outside forces may be included as part of an appropriate bargaining unit if the usual community-of-interest criteria are satisfied. 114 F.3d at 1280 (citing Terri Lee, Inc., 103 NLRB 995 (1953) (soldiers on active duty in the United States Air Force found to have sufficient community of interest with other employees where they are scheduled for regular work and perform same general duties and subject to substantially the same working conditions as other employees), and Shepard's Uniform & Linen Supply Co., 274 NLRB 1423 (1985) (vocational student shares a community of interest with other employees where vocational school's rules did not require employer to treat student differently from other employees)). See also Evergreen Legal Services, 246 NLRB 964 (1979) (the Board found that employees employed pursuant to the Comprehen-sive Employment and Training Act (CETA) shared a sufficient community of interest with the employer's regu-lar employees despite the additional benefits available to the CETA employees and their indefinite length of em-ployment due to financial constraints facing the Federal employment assistance program).

Further, taking my concurring colleague's language at its most inclusive, her consideration of constraints on the right of work-release employees to strike as a factor in finding community of interest assumes an adversarial approach to industrial relations and ignores the movement toward workplace cooperation I have long supported. n3 To be sure, Sections 7 and 13 of the [*611] Act protect the employee's right to withhold his or her labor in order to resolve differ-ences with the employer. n4 In my view, however, the primary thrust of labor policy ought to be upon more rational and cooperative avenues for labor and management to pursue and that strikes and picket lines, while part of the statutory scheme, should be a measure of last resort as a practical matter. As I stated in my separate opinion in Keeler Brass Co., 317 NLRB 1110 (1995), the transformation of the employer--employee relationship from one of adversaries locked in unalterable opposition to one of partners with different but mutual interests who can cooperate with one another is nec-essary for the achievement of true democracy in the workplace. 317 NLRB at 1117.

n3 See, e.g., William B. Gould IV, Japan's Reshaping of American Labor Law (MIT Press, 1984); and Wil-liam B. Gould IV, Agenda for Reform: The Future of Employment Relationships and the Law (MIT Press, 1993).

n4 Sec. 7 provides:

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other con-certed activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right so refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condi-tion of employment as anthorized in section 8(a)(3).

Sec. 13 provides:

Nothing in this Act, except as specifically provided for herein, shall be construed so as either to interfere with or impede or diminish in any way the right to strike or to affect the limitations or qualifications on that right.

This is yet another reason why we should remain faithful to the thrust of both my dissent and the Court of Appeals' decision in the instant case and measure community of interest through integration into the employment relationship itself. Thus, the test is not whether the parties can wage conflict [**14] against one another but rather whether employ-ees have in fact been integrated into the work force itself.
Dated, Washington, D.C. April 9, 1998
William B. Gould IV, Chairman