472 F.2d 293 (6th Cir. 1972), 72-1002, Michigan Hosp. Service Corp. v. N.L.R.B.

Docket Nº:72-1002.
Citation:472 F.2d 293
Party Name:MICHIGAN HOSPITAL SERVICE CORP., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Intervenor.
Case Date:December 19, 1972
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 293

472 F.2d 293 (6th Cir. 1972)

MICHIGAN HOSPITAL SERVICE CORP., Petitioner,

v.

NATIONAL LABOR RELATIONS BOARD, Respondent and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Intervenor.

No. 72-1002.

United States Court of Appeals, Sixth Circuit.

December 19, 1972

Robert S. Rosenfeld, Southfield, Mich., for petitioner; James DiMeglio, Keywell & Rosenfeld, Southfield, Mich., on brief.

Paul J. Spielberg, Washington, D. C., for respondent; Peter G. Nash, Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Kenneth B. Hipp, Atty., N. L. R. B., Washington, D. C., on brief; Jerome H. Brooks, Director, Region 7, N. L. R. B., Detroit, Mich., of counsel.

Stephen I. Schlossberg, John A. Fillion, Edwin G. Fabr›1‹e, Detroit, Mich., for intervenor.

Before PHILLIPS, Chief Judge, and CELEBREZZE and PECK, Circuit Judges.

CELEBREZZE, Circuit Judge.

This case is before us on the Company's petition for review and the Board's cross-application for enforcement of the latter's order, reported at 194 N.L.R.B. No. 7, directing the Company to cease and desist its refusal to bargain with the Union (Intervenor herein) as the exclusive representative of the Company's Westside (Detroit) district office sales representatives. The Company concedes that it refused to bargain but challenges the propriety of the bargaining unit. The sole question for review, therefore, is whether the Board abused its discretion by recognizing the sales representatives at the Company's Westside district office as an appropriate bargaining unit.

Section 9(b) of the Act, 29 U.S.C. § 159(b) provides in part that:

"[t]he 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 purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof. . . ."

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It is well established that a determination under this section "involves of necessity a large measure of informed discretion, and the decision of the Board, if not final, is rarely to be disturbed." Packard Motor Car Co. v. N. L. R. B., 330 U.S. 485, 491, 67 S.Ct. 789, 793, 91 L.Ed. 1040 (1947). See also N. L. R. B. v. Lou DeYoung's Market Basket, 406 F.2d 17, 23-24 (6th Cir.) remanded on other grounds, 395 U.S. 828, 89 S.Ct. 2125, 23 L.Ed.2d 737 (1969); N. L. R. B. v. Winn-Dixie Stores, Inc., 341 F.2d 750, 756 (6th Cir.) cert. denied, 382 U.S. 830, 86 S.Ct. 69, 15 L.Ed.2d 74 (1965).

It is also established that in reviewing the Board's determination under Section 9(b), a court is merely to consider whether the designated unit is an appropriate unit, and not whether it is the appropriate unit or if another unit may have been more suitable. N. L. R. B. v. Pinkerton's, Inc., 428 F.2d 479, 487 (6th Cir. 1970) (dissenting opinion); State Farm Mutual Automobile Ins. Co. v. N. L. R. B., 411 F.2d 356, 358 (7th Cir. 1969); N. L. R. B. v. Lou DeYoung's Market Basket, Inc., supra, 406 F.2d at 24. Recognizing this limited scope of judicial review, we turn to the facts relevant to the propriety of the bargaining unit designated by the Board in the present case.

The Company, a non-profit Michigan corporation, is engaged in marketing and servicing "Blue Cross" and "Blue Shield" prepaid hospital care to group and individual subscribers throughout that State. It employs approximately 2000 employees, including 64 sales representatives which constitute the Marketing Division's General Sales Group. The General Sales Group divides the State into three geographic regions, with a total of 13 district...

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