329 F.2d 200 (4th Cir. 1964), 8917, Singer Sewing Mach. Co. v. N. L. R. B.

Docket Nº:8917.
Citation:329 F.2d 200
Case Date:February 17, 1964
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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329 F.2d 200 (4th Cir. 1964)




No. 8917.

United States Court of Appeals, Fourth Circuit.

February 17, 1964

Argued June 14, 1963.

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Edward W. Scully, New York City (Winthrop, Stimson, Putnam & Roberts, New York City, W. Francis Marion, and Haynsworth, Perry, Bryant, Marion & Johnstone, Greenville, S.C., and Neil F. Twomey, New York City, on brief), for petitioner.

Lee M. Modjeska, Attorney, N.L.R.B. (Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, and Warren M. Davison, Attorney, N.L.R.B., on brief), for respondent.

Before SOBELOFF, Chief Judge, BOREMAN, Circuit Judge, and WINTER, District Judge.

WINTER, District Judge.

Petitioner, Singer Sewing Machine Company (hereafter 'Singer'), seeks, pursuant to § 10(f) of the National Labor Relations Act, 29 U.S.C.A. § 160(f), to set aside an order of the National Labor Relations Board (hereafter 'Board'), that Singer cease and desist from refusing to bargain collectively with Retail, Wholesale and Department Store Union, Local 101, AFL-CIO (hereafter 'Union'), as the exclusive representative of employees of Singer's Pittsburgh City District retail shops, and that Singer take certain affirmative remedial steps related thereto. The Board, pursuant to § 10(e) of the Act, 29 U.S.C.A. § 160(e), prays that its order be enforced in full.

The order to be reviewed, officially reported in 140 N.L.R.B., No. 97, is the outgrowth of a representation proceeding wherein the Board determined the appropriate bargaining unit, conducted an election, and certified the Union as the exclusive representative for certain employees. The representation proceeding is not officially reported. Singer refused to bargain so as to be in a position to challenge the validity of the certification, and this refusal served as a basis for a finding that Singer had engaged in an unfair labor practice and resulted in the cease and desist order referred to above. By § 9(d) of the Act, 29 U.S.C.A. § 159(d), the representation proceeding is subject to judicial review as a part of the review afforded an order based upon the finding of an unfair labor practice.

Singer attacks the finding that it engaged in an unfair labor practice by asserting the invalidity of the bargaining unit fixed by the Board. The Board fixed as a unit the employees in the stores comprising Singer's Pittsburgh City District. Singer contends that the record, in its present state, demonstrates that the only appropriate bargaining unit is the employees of its retail stores in the Pittsburgh Agency. 1 Additionally, Singer

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contends that during the unfair labor practice hearing it was improperly prevented from producing evidence to show that the controlling factor in the determination of the Pittsburgh City District as the appropriate bargaining unit was the extent to which the employees had organized, in violation of § 9(c)(5) of the Act, 29 U.S.C.A. § 159(c)(5).

We determine, first, whether the record, excluding any consideration of the evidence proffered by Singer to support its second contention, would support the determination that the Pittsburgh City District is an appropriate bargaining unit. Our function is not, as Singer apparently suggests, to determine what other units could be considered as appropriate ones, or what unit we in the first instance, would fix were the decision to be ours. Our function is to determine whether there has been a misapplication of law, lack of substantial evidence, or abuse of discretion in the determination made by the Board. If none of the latter are found, the Board's determination must stand, for it is the Board which has the discretion and the responsibility for deciding whether a unit is appropriate for purposes of collective bargaining; and its determination, if supported by substantial evidence and within the bounds of law, is binding on us, General Instrument Corporation v. N.L.R.B., 319 F.2d 420 (4 Cir. 1963); N.L.R.B. v. Quaker City Life Insurance Company, 319 F.2d 690 (4 Cir. 1963).

The Board, in concluding that the Pittsburgh City District was an appropriate bargaining unit, adopted the recommended finding of the Regional Director, viz.,

'Upon the record as a whole, including the geographical separation of the stores in the Agency, the existence of a degree of District autonomy in the matters of hiring and discharge, the administrative organization of the Employer, and the lack of any collective bargaining history * * * the employees in the Pittsburgh City District, which comprises an administrative subdivision of the Employer, as well as a supervisory area, constitutes an appropriate unit. * * *'

These findings are supported by substantial evidence and, in the absence of other infirmities in the proceedings, are, we believe, legally sufficient to support the Board's legal conclusion. A brief resume of the principal evidence so establishes:

Singer, initially a manufacturer of sewing machines is now engaged also in the selling and servicing of sewing machines, appliances and notions at retail throughout the United States through thirty-two administrative divisions called General Agencies. Each agency operates retail stores within the territory assigned it. The Pittsburgh Agency, which Singer contends is the appropriate bargaining unit, has its central office in Pittsburgh, Pennsylvania, and operates forty-two retail shops within the Pittsburgh Agency. The Pittsburgh Agency comprises a territory extending approximately two hundred sixty miles from north to south, and ninety-five miles from east to west. The northernmost store (Erie, Pennsylvania) is about one hundred forty miles from Pittsburgh, the southernmost store (Clarksburg, West Virginia) is about one hundred twenty miles from Pittsburgh, the westernmost store (Steubenville, Ohio) is about forty-five miles from Pittsburgh, and the easternmost store (Johnstown, Pennsylvania) is about fifty miles from Pittsburgh. A General Agent directs the operation of the Pittsburgh Agency from the central executive offices in Pittsburgh. The Pittsburgh Agency is subdivided, for administrative purposes, into two divisions-- the Northern Division and the Southern Division. Each division is in the charge of a Sales Supervisor, who operates out of the central office. Each division is, in turn, divided, again for administrative purposes, into three districts, each of which is supervised by a District Manager, who

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is responsible to the Sales Supervisor and to the General Agent.

The Pittsburgh City District, the unit found to be appropriate by the Board, consists of eight retail stores, six of which are within the City of Pittsburgh and two in suburban communities immediately adjacent thereto. It is part of the Southern Division of the Pittsburgh Agency. Until the commencement of these proceedings there has been no history of collective bargaining for any of the employees of the Pittsburgh City District or the Pittsburgh Agency.

Throughout the Pittsburgh Agency pay rates and commissions are uniform, excepting that starting rates for female employees vary according to the size of the community involved. Total hours of work are uniform throughout the Agency, the actual closing time of the stores varies according to local conditions. Vacations, holidays, pensions, and employee benefits are also uniform throughout the Agency.

The General Agent in charge of the Pittsburgh Agency makes up the annual budget plan, based upon the expected quota of sales, expenses, and authorized number of employees for each shop in the Agency. Sales promotion campaigns are conducted on an agency-wide basis. The General Agent can, and does, shift stores from one district to another according to the dictates of administrative convenience and necessity. All records-- personnel, sales, inventory, reports of district managers, collection, employment-- are maintained at the office of the General Agent. Payrolls for each store, however, are made up at a central office which services other agencies, as well as the Pittsburgh Agency. The bulk of the merchandise used in the Pittsburgh Agency is received from a warehouse located outside of the territorial confines of the Agency, and this warehouse services several agencies.

The District Manager has the responsibility of insuring that the policies, rules and regulations of the Agency are carried out in the stores in the district of which he is manager. In the performance of this function, the District Manager visits the stores, holds sales meetings, checks the store records, interviews job applicants, instructs and trains the store manager and store employees, makes necessary changes in the appearance of the store displays and, in general, supervises the operations of the individual stores in his district. While applications for employment are screened in the central office of the Agency, particularly for bonding purposes, the District Manager, or Sales Supervisor, makes the final disposition with respect to the hiring of employees. The District Manager may discharge or authorize the discharge of, employees for dishonesty. The District Manager may also make recommendations to the General Agent in regard to pay increases, transfers and promotions, but it is the latter who makes such decisions after consideration of the recommendation. The District Manager makes weekly written reports to the General Agent.

Thus, clearly there is a common interest or purpose among the employees of the Pittsburgh City District. The unit selected by the Board is one created by Singer in the first instance for its own purposes, and it is governed in part by a District Manager who has some degree of autonomy. 2 From the manner in which Singer has organized and operates its retail sales program, it may be...

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