Armored v. Nat'l Labor Relations Bd.

• Decision Date: 02 August 1999
• Docket Number: Nos. 98-4067,99-1046,s. 98-4067
• Citation: 186 F.3d 844
• Parties: (7th Cir. 1999) Dunbar Armored, Inc., Petitioner/Cross-Respondent, v. National Labor Relations Board, Respondent/Cross-Petitioner, and International Union, United Plant Guard Workers of America, Intervening Respondent/Cross-Petitioner
• Court: U.S. Court of Appeals — Seventh Circuit

Page 844

186 F.3d 844 (7th Cir. 1999)

Dunbar Armored, Inc., Petitioner/Cross-Respondent, v. National Labor Relations Board, Respondent/Cross-Petitioner, and International Union, United Plant Guard Workers of America, Intervening Respondent/Cross-Petitioner.

Nos. 98-4067, 99-1046

United States Court of Appeals, Seventh Circuit

Argued May 19, 1999

Decided August 2, 1999

On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board. Case No. 4 - CA - 27245

[Copyrighted Material Omitted] Before Harlington Wood, Jr., Flaum, and Manion, Circuit Judges.

Flaum, Circuit Judge.

We are asked to review and enforce an order of the National Labor Relations Board ("NLRB" or "Board") charging Dunbar Armored, Inc. ("Dunbar") with violating Section 8(a)(5) and (1) of the National Labor Relations Act ("NLRA" or "Act"), U.S.C. sec.158(a)(5) and (1), by refusing to bargain with the United Plant Guard Workers of America ("Union"), the certified representative of a unit of Dunbar employees. Dunbar admits refusing to bargain, but insists that the Board's unit determination was inappropriately narrow because it consisted of employees at only one of Dunbar's branch offices. Because the Board's unit determination was permissible, we now grant its application for enforcement.

Background

Dunbar operates a nationwide armored car courier service out of its headquarters in Baltimore, Maryland. Its primary business is the transport and safekeeping of money and other valuable items. The company's Mid-Atlantic Region consists of terminals and offices in Baltimore (the main regional office) and Timonium, Maryland; Cinnaminson and Kenilworth, New Jersey; Scranton, York and Allentown, Pennsylvania; and New York City.¹

In February 1998, the Union petitioned the NLRB seeking to represent a unit of eighty-five drivers, guards and vault employees at Dunbar's terminal in Cinnaminson. Dunbar objected, claiming that its Cinnaminson facility does not constitute an appropriate unit because its entire armored car operations are functionally integrated within the Region: employees from the different branch offices perform identical tasks, are governed by uniform company policies and procedures dictated by the regional headquarters in Baltimore and often work side by side with employees from different branches. Dunbar instead proposed a Region-wide unit--or one including just Cinnaminson, Kenilworth, Allentown, and Baltimore--as more suitable. After a hearing, the Board's Regional Director decided in favor of the Union. Dunbar Armored, Inc., 4-RC-19348. The Board then denied Dunbar's request to review the decision, and in early May 1998, a majority of the unit employees at Cinnaminson voted in favor of the Union in a secret-ballot election. The Regional Director then issued a Certification of Representation designating the Union as the collective bargaining representative of the Cinnaminson unit.

Following certification, Dunbar refused to bargain and the Union filed an unfair labor practice charge asserting violations of Section 8(a)(5) and (1) of the Act. While it concedes its refusal to bargain, Dunbar challenged the Union's certification on the ground that a single-site unit at Cinnaminson was inappropriately narrow. The Board rejected Dunbar's claim without reviewing the unit determination and, in its Decision and Order of September 30, 1998, ordered Dunbar to negotiate with the Union concerning the Cinnaminson workforce. Dunbar Armored, Inc., 326 NLRB No. 139, 1998 WL 700003 (1998)

Dunbar now appeals the Board's decision,² and the NLRB seeks enforcement of its Order.

Discussion

Standard of Review

While our review is meaningful, it is decidedly deferential: "The Board's reasonable inferences may not be displaced on review even though [we] might justifiably have reached a different conclusion . . . ." U.S. Marine Corp. v. NLRB, 944 F.2d 1305 1313-14 (7th Cir. 1991) (en banc). The NLRB's factual determinations are reviewed for substantial evidence in the record. 29 U.S.C. sec.160(e) ("The findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall be conclusive."); see Union-Tribune Pub. Co. v. NLRB, 1 F.3d 486, 491 (7th Cir. 1993). Substantial evidence has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support the Board's conclusion." Mary Thompson Hosp. v. NLRB, 943 F.2d 741, 745 (7th Cir. 1991) (quoting Roadmaster v. NLRB, 874 F.2d 448, 452 (7th Cir. 1989)). This standard applies to the Board's application of the facts to the law. See NLRB v. Winnebago Television Co., 75 F.3d 1208, 1212 (7th Cir. 1996)). We apply a similarly deferential standard in determining whether the Board's legal conclusions have a reasonable basis in law. Id.; see Universal Camera v. NLRB, 340 U.S. 474, 488 (1951).

Bargaining unit determinations are firmly committed to the Board's discretion. See 29 U.S.C. sec.159(b);³ see also NLRB v. Aaron's Office Furniture Co., 825 F.2d 1167 (7th Cir. 1987) (Board's unit determination "reviewed under an abuse of discretion standard"). While this court will not engage in fact finding or in re- weighing the evidence, id. at 1169, "we will conduct 'a thorough review of the record to ensure that the unit determination is not unreasonable, arbitrary or capricious, or unsupported by substantial evidence.'" Winnebago Television Co., 75 F.3d at 1212 (quoting NLRB v. Joe B. Foods, Inc., 953 F.2d 287, 293 (7th Cir. 1992)). Additionally, while the Board's chosen unit must be appropriate, it need not be the only nor even the most appropriate unit. American Hospital Assoc. v. NLRB, 499 U.S. 606, 610 (1991). Thus it is not enough for the employer to suggest a more suitable unit; it must "show that the Board's unit is clearly inappropriate." Aaron's Office Furniture, 825 F.2d at 1169.

Under these standards, Dunbar obviously faces an uphill battle in reversing the Board's unit determination as inappropriate: "(T)he issue as to what unit is appropriate for bargaining is one for which no absolute rule of law is laid down by statute, and none should be by decision. It 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. NLRB, 330 U.S. 485 (1947).

Single-Site Unit Determination

For employers who operate multiple facilities, the Board has long maintained that a single facility (or site) is a "presumptively appropriate" unit for collective bargaining purposes. See Aaron's Office Furniture, 825 F.2d at 1169 (citing Walgreen Co. v. NLRB, 564 F.2d 751, 753 (7th Cir. 1977)); J&L Plate, 310 NLRB 429 (1993) (citing Dixie Belle Mills, 139 NLRB 629, 631 (1962)); Bowie Hall Trucking, 290 NLRB 41, 42 (1988). However, this presumption may be overcome by a showing of functional integration among the multiple facilities so substantial that it negates the separate identity of the single facility as a unit. Courier Dispatch Group, 311 NLRB 728 (1993); see Globe Furniture Rentals, 298 NLRB 288 (1990); Esco Corp., 298 NLRB 837, 839 (1990). The Board has identified a number of factors relevant to determining whether the single-site presumption has been rebutted. These factors include: (1) central control of labor relations as opposed to local autonomy; (2) similarity in employee skills, functions and working conditions; (3) degree of employee interchange; (4) distance between locations; and (5) bargaining history, if any. See Esco Corp., 298 NLRB at 839; Aaron's Office Furniture, 825 F.2d at 1169; NLRB v. Chicago Health & Tennis Clubs, 567 F.2d 331, 335 (7th Cir. 1977).

Initially, Dunbar asserts that, regardless of the factors, the Board impermissibly ignored its own practice of rejecting single-site units in the armored car industry. See American Courier Corp., 184 NLRB 602 (1970); Purolator Courier Corp., 265 NLRB 659 (1982). We are not convinced by this claim. Nothing in the cases cited by Dunbar suggests that the Board has abandoned its single-site presumption for this industry, and we must review the Board's decision in light of the factors listed above. Moreover, we have previously emphasized that, given the fact- intensive nature of the unit determination, the Board's previous decisions do not become hard and fast rules, and the Board is afforded some leeway in applying its announced standards to the unique facts of each case. See Laidlaw Waste Systems, Inc. v. NLRB, 934 F.2d 898, 899 (7th Cir. 1991). Thus while the Board must obviously apply its standards consistently, that the Board has approved multi-site bargaining units in other cases involving the armored car industry does not undermine its decision here. Magic Pan, Inc. v. NLRB, 627 F.2d 105, 108 (7th Cir. 1980) (per curiam) ("Apparent inconsistent prior decisions by the Board are washed out with the divergence of the facts of each case involved.").

Single-Site Factors

In claiming that the single-site presumption has been rebutted, and that the Regional Director therefore erred in approving the Cinnaminson unit, Dunbar focuses on two of the relevant factors: central control of labor relations as opposed to local autonomy and degree of employee interchange among the branches. However, having reviewed the record evidence, we believe the Regional Director's decision is sustainable. While the Cinnaminson facility may not be the only suitable bargaining unit, we do not believe it is an inappropriate one.

Degree of Centralized Control/Local Autonomy

Dunbar's first claim is that its evidence of the centralized management by the Mid-Atlantic Region headquarters undercuts the Director's conclusion that the Cinnaminson branch was sufficiently autonomous. The employer relies primarily on the fact that all ultimate personnel decisions (including hiring, firing, serious discipline and transfers) are made by the regional manager in...