Arcadian Shores, Inc. v. N.L.R.B.
| Decision Date | 10 July 1978 |
| Docket Number | No. 77-1717,77-1717 |
| Citation | 580 F.2d 118 |
| Parties | 99 L.R.R.M. (BNA) 2035, 84 Lab.Cas. P 10,725 ARCADIAN SHORES, INC., d/b/a Myrtle Beach Hilton, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Donald G. Mayhall, Atlanta, Ga. (Branch & Swann, Atlanta, Ga., Charles R. Brown, Greensboro, N. C., on brief), for petitioner.
Peter M. Bernstein, Atty., NLRB, Washington, D. C. (John S. Irving, Gen. Counsel, John E. Higgins, Deputy Gen. Counsel, Carl L. Taylor, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, NLRB, Washington, D. C., on brief), for respondent.
Before WINTER and WIDENER, Circuit Judges, and THOMSEN, * District Judge.
The petition of Arcadian Shores, Inc., a South Carolina corporation doing business as the Myrtle Beach Hilton (Hotel), seeks to review and to set aside an order of the Board finding it guilty of an unfair labor practice for refusing to bargain with Hotel, Motel, Restaurant Employees and Bartenders International Union, Local 270 (Union), and directing it to bargain. The Board seeks enforcement.
Hotel does not dispute the fact that Union was certified as the employees' bargaining representative after it won a Board-supervised election conducted on July 22, 1976, and that Hotel refused to bargain with Union after the election and certification. Hotel's sole defense is to attack the appropriateness of the bargaining unit. The unit consists of Hotel's housekeeping, maintenance and bell stand employees, but excludes Hotel's food and beverage employees and its receiving clerks.
We grant enforcement.
Section 9(b) of the National Labor Relations Act, 29 U.S.C. § 159(b), grants to the Board the power to determine "the unit appropriate for the purposes of collective bargaining . . . ." The Supreme Court has long subscribed to the view that the Board is possessed of the widest possible discretion in determining the appropriate unit. "The issue as to what unit is appropriate for bargaining . . . 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). Accord, South Prairie Construction Co. v. Local No. 627, Int'l Union of Operating Engineers, AFL-CIO, 425 U.S. 800, 805, 96 S.Ct. 1842, 48 L.Ed.2d 382 (1976). It is likewise well established that there may be more than one appropriate bargaining unit within the confines of a single employment unit and that the Board is free to select any one of these appropriate units as the bargaining unit. Atlas Hotels, Inc., v. N.L.R.B., 519 F.2d 1330, 1334 (9 Cir. 1975); N.L.R.B v. Stone & Thomas, 502 F.2d 957, 959 (4 Cir. 1974).
An employer who challenges a unit determination, therefore, has a heavy burden to convince a reviewing court that the bargaining unit selected is inappropriate. It must establish either that there exists no community of interests among the members of the unit selected or that the unit selected runs afoul of the congressional proscription against allowing the extent of union organization to control the determination of the bargaining unit. 29 U.S.C. § 159(c)(5).
Hotel contends that the most appropriate bargaining unit for a large integrated resort hotel is the entire non-supervisory work force (excluding some clerical personnel). Even if we were to agree with this contention, we would not be justified in disturbing the Board's decision that a smaller unit one excluding food and beverage employees is also appropriate. Surely, if there exists a community of interest among all the hotel's non-supervisory employees sufficient to support a bargaining unit, the same community of interest exists among members of the smaller representational unit. It is the employer's burden to convince us, not that another unit is more appropriate, but that the unit selected is utterly...
To continue reading
Request your trial
-
FedEx Freight, Inc. v. Nat'l Labor Relations Bd.
...Hosp. v. NLRB,24 F.3d 450, 455 (2d Cir.1994) ; NLRB v. Saint Francis Coll.,562 F.2d 246, 249 (3d Cir.1977) ; Arcadian Shores, Inc. v. NLRB,580 F.2d 118, 119 (4th Cir.1978) ; NLRB v. Bogart Sportswear Mfg. Co.,485 F.2d 1203, 1206 (5th Cir.1973) ; NLRB v. First Union Mgmt., Inc.,777 F.2d 330,......
-
Kmart Corp. v. N.L.R.B.
...must establish "not that another unit is more appropriate, but that the unit selected is utterly inappropriate." Arcadian Shores, Inc. v. NLRB, 580 F.2d 118, 120 (4th Cir.1978). Furthermore, the Court may not substitute its judgment for a rationally supported position adopted by the NLRB, s......
-
Fair Oaks Anesthesia Associates, P.C. v. N.L.R.B., s. 91-1250
...measure of informed discretion, and the decision of the [N.L.R.B.], if not final, is rarely to be disturbed." Arcadian Shores, Inc. v. N.L.R.B., 580 F.2d 118, 119 (4th Cir.1978) (quoting Packard Motor Car Co. v. N.L.R.B., 330 U.S. 485, 491, 67 S.Ct. 789, 793, 91 L.Ed. 1040 (1947)). Accord, ......
-
Overnite Transp. Co. v. N.L.R.B., 01-1388.
...29 U.S.C. § 159(b), and the Board enjoys broad discretion in determining the appropriate bargaining unit. See Arcadian Shores, Inc. v. NLRB, 580 F.2d 118, 119 (4th Cir.1978). Section 9(c)(5) of the Act, however, imposes a statutory constraint on the Board's In determining whether a unit is ......