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Law360 (November 9, 2020, 5:24 PM EST) -- A National Labor Relations Board regional official has ruled that workers for an Indiana auto parts manufacturer can vote to join the United Auto Workers union, saying short-term extensions of a collective bargaining agreement between the workers' current union and the company are not enough to trigger a bar on elections.
In a decision issued Friday, NLRB Indianapolis office head Patricia Nachand ordered a vote on the United Auto Workers' petition to represent Cummins Inc. employees to be conducted by mail later this year. The workers are currently represented by the Diesel Workers Union.
Nachand said that a series of short-term extensions to an agreement between the Diesel Workers Union and Cummins were aimed at accommodating the difficulties of negotiating during a pandemic and not a substantive amendment to the deal. Under board precedent, such a circumstance does not trigger the so-called contract bar that prevents union elections during a valid CBA, Nachand said.
"[T]he extension agreements as well as the rest of the record herein likewise demonstrate the intent of the employer and [the Diesel Workers Union] to commence negotiations for a successor CBA in the near future and do not establish that the employer and [the Diesel Workers Union] engaged in substantive negotiations for substantial terms and conditions of employment deemed sufficient to stabilize the bargaining relationship," Nachand wrote.
United Auto Workers petitioned to represent about 841 workers at Cummins' plants in Columbus and Seymour, Indiana, in September, some five months after a five-year deal Cummins and the Diesel Workers Union struck in 2015 was set to expire.
The Diesel Workers Union and Cummins were going to hammer out a new CBA starting in March but instead agreed to two short-term extensions after they could not meet in person for negotiations due to the pandemic. Other than pushing back the expiration date of the CBA, the extensions laid out the employees' paid holidays and said that any future agreed-upon wage increases would be retroactive.
The contract bar generally prevents a union election from being held during the terms of a collective bargaining agreement, subject to certain exceptions, including for deals that are for less than 90 days or those that have been active for more than three years.
The deal between Cummins and the Diesel Workers Union was indisputably older than three years when United Auto Workers filed its petition, but the company and the Diesel Workers Union argued that the contract bar applied because the two short-term extensions to the CBA represented significant changes to the workers' terms of employment, according to the decision.
But Nachand said the provision about retroactively increased wages was contingent on the two sides striking a future CBA, meaning that it is not, by itself, a change to the workers' terms of employment. The holiday pay provision likewise did not touch any other significant topic of negotiation, Nachand said.
Because the other terms of the extensions simply gave the parties more time for negotiation, they were not amendments that triggered the contract bar, Nachand said. In reaching this conclusion, Nachand cited the board's decision in a case called Union Bag, in which the board said the contract bar was not triggered with a memorandum of agreement that extended the terms of a contract until the parties could reach a revised deal.
After finding that the contract bar does not apply, Nachand said she agreed with the United Auto Workers' view that the election should be conducted by mail because of the rise in COVID-19 cases in Indiana.
Counsel and representatives for United Auto Workers, Cummins Inc. and the Diesel Workers Union did not immediately return a request for comment.
The UAW is represented by Robert Hicks and Jeffrey Macey of Macey Swanson Hicks & Sauer LLP.
Cummins Inc. is represented by Rebekah Ramirez, Carita Austin and Brian Garrison of Faegre Drinker Biddle & Reath LLP.
The Diesel Workers Union is represented by David Vlink of the Vlink Law Firm LLC.
The case is Cummins Inc. and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, case number 25-RC-266363 before the National Labor Relations Board.
--Editing by Steven Edelstone.
For a reprint of this article, please contact reprints@law360.com.
