NLRB v. JM Wood Manufacturing Company, 71-2677.

• Decision Date: 13 November 1972
• Docket Number: No. 71-2677.,71-2677.
• Citation: 466 F.2d 201
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. J. M. WOOD MANUFACTURING COMPANY, INC., Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

466 F.2d 201 (1972)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. J. M. WOOD MANUFACTURING COMPANY, INC., Respondent.

No. 71-2677.

United States Court of Appeals, Fifth Circuit.

August 23, 1972.

Rehearing and Rehearing Denied November 13, 1972.

Marcel Mallet-Prevost, Asst. Gen. Counsel, N. L. R. B., Washington, D. C., Elmer P. Davis, Director, Region 16, N. L. R. B., Fort Worth, Tex., Douglas S. McDowell, Atty., N. L. R. B., Washington, D. C., for petitioner.

Jacob Sheinkman, New York City, for Southwest Reg. Joint Bd., etc.

Edward F. Seligman, Herbert I. Meyer, New York City, for respondent.

Before AINSWORTH, GODBOLD and MORGAN, Circuit Judges.

Rehearing and Rehearing En Banc Denied November 13, 1972.

GODBOLD, Circuit Judge.

We grant an enforcement order against the company for refusal to bargain.¹

The most important issue is whether the company has shown sufficient reason for us to overturn the determination of the Regional Director that an appropriate bargaining unit is the company's plant at Waco, Texas.² The company contends that the evidence compelled a finding that the only appropriate unit was a multiplant unit which included its other three plants in other Texas cities. We attach as an appendix to this opinion findings of the Regional Director which set out the facts on this issue.

The Board's discretion in making unit determination is very broad, and our standard of review is narrow. NLRB v. Schill Steel Products, Inc., 340 F.2d 568 (5th Cir. 1965). The fact that a multiplant unit might also have been appropriate is not a basis for overturning the Board's determination. NLRB v. Fidelity Maintenance & Construction Co., 424 F.2d 707, 709 (5th Cir. 1970). The Board need choose only an appropriate unit, not the most appropriate unit. State Farm Mutual Auto. Ins. Co. v. NLRB, 411 F.2d 356 (7th Cir. 1969).

There are a multitude of factors which the Board and the courts have employed as indicia in cases where the issue has been single versus multi units, including: operational integration of the units; geographical proximity; authority of the local unit supervisor, especially with regard to matters that traditionally are the subject of collective bargaining, such as hiring, firing, discipline, rates of pay, hours of employment, and benefits; type of work done by the employees in the unit; numerical size of the units; uniformity of wages, hours, working conditions and benefits; contact between employees at one unit and those at other units; interchange of employees; centralization of labor relations and collective bargaining. One case will emphasize one or more factors, the next will place more importance upon other factors, and what is emphasized in one may be deemphasized or distinguished in another. Harmonizing the cases into a uniform pattern is not wholly feasible, because of the factual nature of the determination, the broad discretion in the agency in making one of several acceptable choices, and the limited scope of correctly applied judicial scrutiny.

In this instance we are not able to say that the Regional Director was required to designate a multiplant unit or that he abused his discretion in designating the Waco plant as the unit. The Waco plant is not merely a sewing line like the other three plants, although it includes a sewing operation with a manager therefor. As the Regional Director pointed out, Waco is also the company's principal office and place of business. Some of the operations located at Waco and not at the other plants are these: overall management; cutting of material; pressing and shipping assembled garments; central purchasing and warehousing of materials; technical service department for sewing machinery and equipment and techniques; central research and development department for new machinery and equipment; central maintenance for plants and sewing machinery; central fabrication of samples; central manufacture and repair of furniture and other wood equipment; central storage for machinery and equipment; central personnel department which maintains personnel files (with appropriate duplicate files at each plant), establishes hiring tests and termination standards; quality control; central training department for sewing machine operators; central industrial engineering department which classifies jobs and determines and schedules overtime. The character of these operations, serving all plants to some degree, tends to integrate the business. But at the same time the presence of these numerous operations and departments, located at Waco, tends to establish the character of the Waco plant as much more than another sewing line.

The Regional Director was entitled to give weight to the distance between the plants.³ Other factors under-girding his conclusion are the effective participation by local plant managers in hiring and discharges, the small number of interplant transfers of employees, and the extent of organization so long as not controlling (no union had petitioned to represent the employees at all four plants).

The company places its strongest reliance upon NLRB v. Davis Cafeteria, 396 F.2d 18 (5th Cir. 1968), which rejected a Board-designated unit composed of two of eight cafeterias located in the vicinity of Miami, Florida. That case emphasized that the general office department of the company, located in Miami, determined labor policy, pay, hours and insurance benefits, while local managers had little authority over substantive subjects of collective bargaining. We agree with Continental Insurance Co. v. NLRB, 409 F.2d 727 (2d Cir. 1969), that Davis and its antecedents do not mean that centralizing final decisions on labor policies is alone a determinative factor and that Davis "showed an awareness of circumstances which would justify fractionating an employer's organization." Id. at 729. The present situation would more closely parallel Davis if the question were whether the plants at Temple, Hillsboro and Dublin were to be in one unit or fragmented into more than one. With each sewing line having the same general function, and labor policy primarily determined at a central office, plus the other factual nexuses tending to show community of interest, the sewing operations at different sites resemble the separate cafeterias in Davis. But whether the combined sewing line and central office at Waco may be in a single unit or is required to be put into a unit with all the other geographically separated sewing lines is another question.

Banco Credito y Ahorro v. NLRB, 390 F.2d 110 (1st Cir. 1968), sustained as appropriate a single unit composed of one of 29 bank branches located at various places in Puerto Rico, although policies including labor matters were centrally determined. Compare NLRB v. Frisch's Big Boy Ill-Mar Inc., 356 F.2d 895 (7th Cir. 1966), which found inappropriate a unit composed of one of a chain of 10 restaurants located in Indianapolis, Ind. and having a separate general office. Also the parties agreed that an eleventh restaurant located 60 miles away in another city could constitute a separate unit.

The present case is similar to NLRB v. Schill Steel Products, Inc., supra, insofar as company structure is concerned. The employer maintained its central office and warehouse in Houston, Texas, and branch warehouses at Dallas and Odessa, Texas and Tulsa, Oklahoma. We upheld the Board's determination of a single unit at Houston against the company's contention that a company-wide unit was required.

Thus we conclude that designation of Waco as a single-plant unit was within the Board's discretion. The only other issue deserving comment is the claim of the company that over-the-road (as distinguished from interplant) truck drivers should have been included in the unit. Four of the ten over-the-road (OTR) drivers voted, and their ballots were challenged and have been sealed. The vote was 389 to 385 in favor of the union, so these four votes, if unsealed and against the union, could force another election.

In resolving the challenges the Regional Director found that the OTR drivers did not share sufficient community of interest to warrant their inclusion in the unit consisting of production and maintenance employees at the Waco plant. Interplant drivers were included in the unit. They operate from the Waco plant, delivering merchandise from there to the other three plants and returning with garments that have been sewed at those three. They are paid hourly, punch a time clock, and return to the Waco plant each night. Thus they are in day to day contact with employees at Waco. The OTR drivers, on the other hand, drive between the Waco plant and the various suppliers of the company. They are separately supervised. Their trucks are maintained at and dispatched from a truck stop in Waco, since there are no accommodations for them at the plant. Their only contact with employees in the bargaining unit at Waco is approximately once a week for clerical purposes. They are paid a salary with overtime and are on the road for days at a time. Under these factual determinations, supported by substantial evidence, the Regional Director's decision may not be overturned.

We agree with the Board that the OTR drivers...