NLRB: Newly Created Position For Ride Service Associates at Disney Resort Did Not Belong to Existing Bargaing Unit

Walt Disney Parks and Resorts U.S. d/b/a Walt Disney World Co. - NLRB

Facts:  Walt Disney World ("Disney") and the Services and Trades Council Union ("Union") are parties to two collective bargaining agreements:  one covering all regular full time employees and the other covering all regular part time employees, who are employed by Disney in specific job classifications listed Addendum A in the collective bargaining agreements.  Among the job classifications in Addendum A are bus drivers, whose primary function is to operate buses for Disney at the Walt Disney World Resort in Bay Lake, Florida.  These bus drivers operate along a specific route, stop at each assigned stop until the route is completed, have no authority to deviate from their assigned routes unless authorized to do so, play prerecorded audio messages over the public address system while carrying passengers to their next destination, among other tasks.  Also included in Addendum A are parking host/hostesses that direct traffic in Disney's parking lots.  Although these parking hosts/hostesses may drive an open air tram to transport guests, they do not regularly interact or speak with guests.

In March of 2017, Disney entered into a collaboration with Lyft.  Disney created a new position, Ride Service Associates ("RSAs") in conjunction with the collaboration with Lyft.  The functions of the RSAs are separate and distinct from the other transportation workers that work for Disney.  Notably, the RSAs are summoned on demand to a guest's location to transport the guest to a location of their choosing, are not required to follow a set route, and are also trained to engage in unscripted, impromptu conversations with guests, among other tasks. At the time the collective bargaining agreements were entered into, the RSA position did not exist and is not included in the list of classifications in Addendum A.

The Regional Director found that the RSAs performed the same basic functions that had historically been provided by the bargaining unit bus drivers.  Although there were some differences between teh work performed by RSAs and bus drivers due to technological advances, that was not found to preclude the RSAs from being a part of the unit when the functions performed were held to essentially be the same.  Consequently, the Regional Director found the RSAs were already included in the existing units.  Disney proceeded to file a request for review and contended that the Regional Director erred in applying the principles set forth in a 2001 NLRB decision, Premcor, Inc., and should have found that the RSAs were not a part of the existing unit.

Finding:  At the outset, the National Labor Relations Board ("NLRB") acknowledged that Premcor established that a new classification will be found to already belonging to a bargaining unit if that new classification performs the same basic functions historically performed by unit employees.  However, if the Premcor test is not satisfied, the NLRB will add or "accrete" the new classification to the unit only if the employees sought to be added "have little or no separate identity and share an overwhelming community of interest" with preexisiting unit employees.  In this instance, the NLRB found that the Regional Director should not have applied Premcor as the evidence did not establish that RSAs performed the same functions as bus drivers or parking hosts/hostesses.  As noted in the NLRB's decision, there were a host of differences among the positions, such that the RSAs could not be found to have been included in the Addendum A classifications.

Since the Premcor test was not applicable, the NLRB turned to whether the RSAs had "little or no separate identity" and shared "an overwhelming community of interest" with the employees already included in the Addendum A classifications.  An accretion claim is defeated either where the evidence fails to show "no separate identity" or the evidence does not establish an "overwhelming community of interest."  While there are several community of interest factors, the two most important are employee interchange and common day-to-day supervision.  As a result, the absence of these two factors "will ordinarily defeat" an accretion claim.  The burden to show that accretion is appropriate is "heavy" and falls on the requesting party.  The NLRB noted that although the Regional Director did not consider the accretion analysis, the undisputed facts established the standard could not be met.  Of relevance, the NLRB pointed out that the employee interchange and common day-to-day supervision factors had very little evidence to support their existence.

Decision:  The NLRB found that the Regional Director had improperly clarified the existing units of certain employees that work at a Disney location in Bay Lake, Florida to include Ride Service Associates ("RSAs"), such that the RSAs were not a part of the Addendum A classifications in the two collective bargaining agreements.

The Takeaway:  This was an interesting decision to read through, in part because of another employer friendly decision from the NLRB here, from Board Members McFerran, Kaplan, and Emanuel.  Would a more liberal/union friendly iteration of the NLRB have agreed with the Regional Director and upheld the finding that the RSAs were part of the Addendum A classifications (and therefore part of the existing bargaining unit)?  I would say that is probable, if not highly likely.  However, as we have seen from this more employer friendly version of the NLRB, this decision went the other way and found that the Premcor test could not be met nor could an accretion claim be established.

Date:  January 25, 2019

Decision:  http://hr.cch.com/ELD/WaltDisneyParks012519.pdf