NLRB v. Pinkerton's, Inc., 19164.

• Decision Date: 04 June 1970
• Docket Number: No. 19164.,19164.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PINKERTON'S, INC., Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

428 F.2d 479 (1970)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PINKERTON'S, INC., Respondent.

No. 19164.

United States Court of Appeals, Sixth Circuit.

June 4, 1970.

Baruch A. Fellner, Atty., N.L.R.B., Washington, D. C., for petitioner; Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Eugene Granof, Atty., N.L.R.B., Washington, D. C., on brief.

Eugene B. Schwartz, Cleveland, Ohio, for respondent; Carl H. Clark, David W. Byers, Stanley, Smoyer & Schwartz, Cleveland, Ohio, on brief.

Before McCREE and COMBS, Circuit Judges, and McALLISTER, Senior Circuit Judge.

McALLISTER, Senior Circuit Judge.

The National Labor Relations Board filed a petition in this court for enforcement of its order requiring Pinkerton's, Inc., the Respondent, to bargain collectively with the International Union, United Plant Guard Workers of America, as the exclusive representative of all employees in the unit found by the Board to be appropriate.

Respondent contends that the Board's determination of the bargaining unit was invalid in that the Board abused its discretion in determining what employees constituted the bargaining unit.

The evidence discloses that Pinkerton's, the Respondent, is a nationwide organization with headquarters in New York City, and with regional and district offices throughout the United States; that a regional office is located in Cleveland, and one of the eight districts, comprising the Cleveland region, is located in Columbus; that the Columbus District employs 480 guards and encompasses a 250-mile area which includes parts of Ohio, Kentucky, and West Virginia. One of the field jurisdictions within the Columbus District is composed of the Ohio cities of Mansfield, Shelby, and Crestline.

The Board determined that the appropriate bargaining unit, in this case, consisted of 31 guards in the Mansfield area. Respondent asserts that the bargaining unit in question, instead of being limited to the 31 guards in the Mansfield area, should have comprised the entire Columbus District which, as mentioned, was composed of 480 guards.

The issue in this case is whether the National Labor Relations Board exercised proper discretion in determining a bargaining unit for a certain number of employees in Pinkerton's, Inc., a detective and guard agency, or whether it abused that discretion. The Board contends that it did not abuse its discretion in its determination; and files a petition for enforcement of its order.

The problem raised by the Board's determination in this and similar cases depends upon the circumstances in each individual instance, and the issues of differentiation are sometimes difficult to discern.

The Board bases its petition for enforcement on the statute and the circumstances affecting the unit which it determined as the proper bargaining unit.

The provision of the statute which the Board claims is the justification of its action in determining the bargaining unit in this case, is Section 9(b) of the National Labor Relations Act, 29 U.S.C.A., Sec. 159(b), which sets forth that: "The Board shall decide in each case whether, in order to assure to employees the fullest freedom in exercising the rights guaranteed by this subchapter, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof."

In determining the authority of the Board, this court has said: "The Board has the authority under the Act to determine the appropriate unit for collective bargaining. It has wide discretionary powers in this respect. What is an appropriate unit is a question of fact to be determined by the Board upon the facts of each case. Its decision will not be disturbed except for an abuse of discretion or violation of the statute." N.L.R.B. v. Winn-Dixie Stores, Inc., 341 F.2d 750, 756 (1965), certiorari denied, 382 U.S. 830, 86 S.Ct. 69, 15 L.Ed.2d 74.

However, the above provision, while not intended to prohibit the Board from considering the extent of organization as one factor, was not intended to authorize the Board to consider the extent of organization as the controlling factor, N.L.R.B. v. Winn-Dixie Stores, Inc., supra. It, of course, is obvious that there may be more than one appropriate unit, and, if so, the determination of which is the appropriate unit is for the Board. In order to avoid enforcement of an order to carry out such determination, the Respondent must show that the Board has abused its discretion. We assume that to require a bargaining unit to comport to the employer's administrative organization would unduly restrict employees' freedom under Section 9(b) of the Act. See State Farm Mutual Automobile Ins. Co. v. N.L.R.B., 411 F.2d 356 (C.A.7, 1969). It is to be said that this opinion agrees with everything that is said in the accompanying opinion with regard to N.L.R.B. v. Winn-Dixie Stores, Inc., supra, and State Farm Mutual Automobile Ins. Co. v. N.L.R.B., supra.

In N.L.R.B. v. Solis Theatre Corp., 403 F.2d 381 (C.A.2, 1968), where there was a chain of 15 theatres located in Manhattan, the Bronx, Brooklyn, Queens, Long Beach, and West Haverstraw, New York, the Board found one theatre located in Brooklyn to be an appropriate bargaining unit, basing such unit determination on the role of the local manager of that theatre, where the evidence showed his authority was limited to little more than overseeing the daily activities of the employees. "For example, he disciplines and reprimands employees, initially interviews job applicants, although the final decisions on hiring and firing are made by Interboro, and prepares and submits vacation schedules for approval by Interboro. It appears, therefore, that instead of being in a decision making position, the `manager' has little or no authority on labor policy but is subject to detailed instructions from the central office." The court, for these reasons, denied enforcement.

In N.L.R.B. v. Davis Cafeteria, Inc., 396 F.2d 18, 21 (C.A.5, 1968), the Board found that the appropriate unit included only two of the eight cafeterias in the Miami area which were in the employer's administrative district. The court denied enforcement, saying:

"In the circumstances of this case, labor policy is centrally determined, and where local managers do not have authority to decide questions which would be subjects of collective bargaining, the two respondent cafeterias do not constitute an appropriate bargaining unit."

In N.L.R.B. v. Purity Food Stores, Inc., 376 F.2d 497, 501 (C.A.1, 1967), the Board conducted an election of only one store out of seven within a 30-mile radius of the central office of Chelmsford, Massachusetts, and certified the Union as the bargaining agent for that unit. The evidence showed central control of operation and of labor relations, and the court found that there were no more than a few miles of physical separation between the bargaining unit, which the Board had determined, and another store, and the "consequent" separation of a few ministerial duties, saying this was far from enough. Moreover, the court stated as a principle of law, governing the Board's determination of bargaining units, that it was required to "articulate substantial reasons for its unit determination," and that an employer was entitled to "reasonably adequate protection from the `disruptive effects of piecemeal unionization.'"

We look to the Board's own recognition of its discretionary limitations in determining the appropriateness of a bargaining unit. In Kalamazoo Paper Box Corp., 136 NLRB 134 (1962), the Board said:

"* * * Because the scope of the unit is basic to and permeates the whole of the collective bargaining relationship, each unit determination, in order to further effective expression of the statutory purpose, must have a direct relevancy to the circumstances within which collective bargaining is to take place. For, if the unit determination fails to relate to the factual situation with which the parties must deal, efficient and stable collective bargaining is undermined rather than fostered." (136 NLRB at 137)

The Board further said that an erroneous decision with respect to the scope of a bargaining unit:

"* * * would result in creating a fictional mold within which the parties would be required to force their bargaining relationship. Such a determination could only create a state of chaos rather than foster stable collective bargaining and could hardly be said to `assure to employees the fullest freedom in exercising the rights guaranteed by this Act\' as contemplated by Section 9(b)." (136 NLRB at 139)

In N.L.R.B. v. Pioneer Natural Gas Company, 397 F.2d 573, 576 (C.A.5, 1968), the court said:

"We are mindful that our review of the Board\'s unit determination is narrowly limited * * * but nevertheless conclude that where the Board makes an unexplained departure from its established criteria for unit determination we should deny enforcement * * *." (Emphasis supplied.)

The Board has found in many cases that District-wide units of Respondent company have constituted the appropriate units for collective bargaining. It appears that the Detroit District Office was found by the Board (once in a certification case, and once in a decertification case) to be the appropriate bargaining unit; that the Grand Rapids District Office was agreed by the parties to be the appropriate unit; that the Cleveland District Office was found to be the appropriate bargaining unit; and that the history of Company-Union collective bargaining has been almost always on a District Office-wide basis, such as the Portland District, as well as the Districts of Los Angeles, San Francisco, Louisville, New York City, Boston, and Chicago.

An examination of the record discloses that the supervision of the Columbus District Office over all guard operations in the District is a close supervision; that wages, hours, and working conditions...