In analyzing whether employees should be accreted into an existing bargaining unit, the Division uses the following three-step test.
- The Division determines whether the disputed position was included in the original certification or recognition of the bargaining unit.
- If the disputed position was not included in the original certification or recognition of the existing bargaining unit, the Division examines the parties' subsequent conduct, including bargaining history, to determine whether the employee classifications were considered by the parties to be included in the unit.
- If the parties' subsequent conduct does not demonstrate whether the employee classifications were considered by the parties to be included in the unit, the Division examines whether the positions sought to be included in the unit share a community of interest with the existing positions. If the Division determines that the requisite community of interest exists, it accretes the petitioned-for employee into the existing bargaining unit.
In some cases, the outcome of the third part of the test, community of interest, may be affected by whether the incumbent in the disputed position is a supervisory employee. When examining whether an employee is a supervisor, the Division considers factors like:
- the independent judgment and authority to assign and to direct the work of employees;
- the authority to initiate and to recommend discipline;
- the authority to adjust grievances; and
- the independent authority to make, or the power to recommend effectively, personnel decisions like hire, transfer, suspend, promote or discharge employees.
- Examples of Evidence
The parties should provide the Division with a copy of the original certification or, if unavailable, the number of the case in which the Division certified the bargaining unit. If the disputed position is not new, the recognition and duration clauses of the collective bargaining agreements that were in effect since the position's creation should be submitted. To ascertain community of interest, the parties should submit job descriptions of other employees in the bargaining unit in which the party claims the disputed position shares a community of interest. Additionally, the parties should provide the Division with information related to the skills and functions, similarity of pay and working conditions, common supervision, work contact and similarity of training and experience between the disputed position and other positions in the existing bargaining unit.
If the supervisory status of the disputed position is at issue, the parties should describe what work, if any, the incumbent may assign to others and whether the recipients of the work assignments are members of the existing bargaining unit. The parties should indicate whether the incumbent in the disputed position evaluates the performance of other employees. If so, the parties should explain whether the employees who are evaluated are members of the existing bargaining unit and whether the performance evaluations affect pay. The parties also should indicate whether the incumbent in the disputed position recommends or imposes discipline. If so, the parties should disclose the level of discipline (e.g., oral reprimand, written reprimand, suspension, and termination) that the employee can impose without prior approval and/or can recommend. The parties should detail what involvement, if any, the incumbent in the disputed position has had in the hiring and promotional processes and provide specific examples of that involvement.
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