N.L.R.B. v. Magna Corp.
| Decision Date | 22 June 1984 |
| Docket Number | No. 83-4195,83-4195 |
| Citation | 734 F.2d 1057 |
| Parties | 116 L.R.R.M. (BNA) 2950, 101 Lab.Cas. P 11,086 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MAGNA CORPORATION, Respondent. Summary Calendar. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Elliott Moore and Susan Tepper Papadopoulos, Deputy Associate Gen. Counsel, N.L.R.B., for petitioner.
Bruce Fickman and Chris Dixie, Houston, Tex., for intervenor.
Fulbright & Jaworski, A. Martin Wickliff, Jr., Houston, Tex., for respondent.
Louis V. Baldovin, Jr., Director, Reg. 23, N.L.R.B., Houston, Tex., for other interested parties.
Application for Enforcement of an Order of the National Labor Relations Board.
Before BROWN, HIGGINBOTHAM and DAVIS, Circuit Judges.
In this case, the National Labor Relations Board (NLRB) seeks enforcement of its order of September 16, 1982, compelling respondent Magna Corporation (Magna) to bargain with the Oil, Chemical and Atomic Workers Local Union 4-367, AFL-CIO (the Union) regarding the new position of plant storeroom specialist. Magna has refused to bargain collectively with the Union in order to test the Board's clarification of the existing bargaining unit to include the position. For the reasons that follow, we find that the Board abused its discretion when it failed to follow its own precedent in analyzing whether the changed position should be added to the bargaining unit. On this basis, we decline to enforce the Board's order. We affirm, however, the Board's determinations that the situation presented a unit clarification question and that deferral to the arbitrator's decision was not required in this case.
On September 2, 1977, the Union was certified by the NLRB as the exclusive bargaining representative of certain of Magna's employees. The bargaining unit was defined as:
Subsequent to this certification, Magna and the Union executed a collective bargaining agreement that incorporated the bargaining unit defined above and was to be effective for two years beginning January 8, 1980. In November, 1980, Magna created a new position known as "Plant Storeroom Specialist," which was occupied by a non-bargaining unit employee. On January 15, 1981, the Union filed a grievance seeking to include the new position within the bargaining unit as a plant clerical position.
Pursuant to the grievance 1 and arbitration 2 procedures contained in the parties' written agreement, the Union submitted the grievance to arbitration. The arbitrator found that the plant storeroom specialist did not share a "community of interest" with bargaining unit employees and that the duties required by the position could not be considered bargaining unit work. The arbitrator therefore denied the Union's grievance. On September 18, 1981, the Union filed a unit clarification petition with the NLRB, again seeking inclusion of the plant storeroom specialist within the bargaining unit. The Regional Director of the NLRB held a formal hearing and on November 2, 1981, dismissed the petition, thereby affirming the result of the arbitrator's decision. 3
On review, the Board reversed the Regional Director's decision, clarified the bargaining unit to include the plant storeroom specialist, and directed Magna to bargain with the Union as the exclusive representative for that job classification. In reviewing the Regional Director's decision, the Board specifically rejected the community of interest analysis applied by the Regional Director. The Board concluded that although the job classification at issue had "subsumed" the previous part-time receiver/stocker position, the previously-existing job had undergone a substantial change since it became a permanent position. The Board therefore concluded that the job classification at issue clearly presented a unit clarification question.
To obtain judicial review of the unit clarification proceeding, Magna has refused to bargain with the Union regarding the plant storeroom position. 4 In response, the Union filed the unfair labor practice charge that is the subject of this appeal on April 22, 1982. 5 Finding that no material issues of fact remained following the representation proceeding, the Board granted summary judgment for the Union, holding that Magna's refusal to bargain violated Sec. 8(a)(5) and (1) of the National Labor Relations Act. The case is now before this Court on the NLRB's application for enforcement of its order.
In November, 1980, the new "plant storeroom specialist," Charles Carney, replaced a part-time employee who had been classified as receiver/stocker. The part-time employee had never been included in the bargaining unit. A grievance filed in 1979 sought inclusion of the position within the bargaining unit, but was settled by the parties' agreement that the position would be classified when and if it became full-time. 6
The majority of Carney's duties are performed in the plant storeroom, a building that is separate from the work area of bargaining unit employees. The plant storeroom houses inventory of all types of equipment, parts, and supplies. Carney performs an array of duties ranging from preparing and maintaining an inventory control system to inspecting and recharging fire extinguishers. Some of Carney's duties take him out into areas of the plant where bargaining unit employees work, and occasionally bargaining unit employees come into the plant storeroom to obtain needed supplies. However, Carney is under the supervision of the Chief Engineer, while bargaining unit employees are supervised by the maintenance supervisor. Carney's primary contact with Magna employees is with management, supervision and foremen. Only about 25% of Carney's time is spent performing inventory and receiving/stocking duties, the function of the part-time employee he replaced. Carney most frequently works without supervision, with his superiors merely signing orders based on his recommendations.
Furthermore, Carney's working hours, wages, and benefits are substantially different from those of the bargaining unit employees. Carney works a five-day week on no particular shift, is paid a salary, and the benefits he receives are not tied to seniority. No other employee replaces him when he is not at work. Bargaining unit employees work one of three eight hour shifts per day, are paid by the hour, and receive benefits proportionate to their seniority. Finally, Carney's job does not require the same training and skills required of bargaining unit employees. These facts are essentially undisputed.
The issues presented by this appeal are threefold: (1) whether this was a proper case for unit clarification, (2) if so, whether the NLRB's failure to apply the "community of interest" standard in adding the position to the existing bargaining unit was proper, and (3) if the community of interest standard was the proper focus, whether the Board should have deferred to the arbitrator's decision.
Magna's first contention on appeal is that a unit clarification proceeding was improper in this case. A petition for unit clarification is inappropriate during the term of an existing union contract where the classification at issue has been "historically excluded" from the bargaining unit. Boston Cutting Die Co., 258 NLRB 771, 772 (1981). Thus, Magna argues that the plant storeroom specialist classification is merely an expansion of the preexisting stocker/receiver classification that was never included within the bargaining unit. Magna therefore contends that because the position was "historically excluded" from the unit, the unit clarification proceeding was improper and Magna's refusal to bargain was not an unfair labor practice.
The Board responds that the plant storeroom specialist position has "subsumed" the former receiver/stocker classification. That classification was the subject of a grievance filed in 1979 which was settled by the parties' agreement that the position would be added to the bargaining unit as a "plant clerical" position if and when it became full time. The position, as it formerly existed, was therefore not "historically excluded" from the bargaining unit. Furthermore, the Board argues that the position has undergone such a substantial change since Carney assumed it that a clarification question was presented. We agree.
The NLRB has squarely defined the function of a unit clarification proceeding as follows:
[U]nit clarification is not appropriate for upsetting an agreement or established practice of a union and employer with respect to the unit placement of employees. Rather, unit clarification is appropriate, inter alia, for resolving disputes concerning the unit placement of employees who, for example, come within newly established job classifications or whose duties and responsibilities have undergone recent substantial changes which create real doubt as to whether their positions continue to fall in the category--excluded or included--that they occupied in the past.
Massachusetts Teachers Association, 236 NLRB 1427, 1429 (1978). See also Union Electric Co., 217 NLRB 666 (1975). Factual determinations by the NLRB such as whether a unit clarification question is "squarely presented" due to substantial change in a job classification should be sustained if they have " 'warrant in the record' and a reasonable basis in the law." NLRB v. DMR Corp., 699 F.2d 788 (5th Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 164, 78 L.Ed.2d 150 (1983), quoting NLRB v. Hearst Publications, 322 U.S. 111, 131, 64 S.Ct. 851, 860, 88 L.Ed. 1170, 1185 (1944). See also...
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