Cemetery Workers and Greens Attendants Union, Local 365, Service Employees Intern. Union, AFL-CIO v. Roman Catholic Diocese of Newark

Decision Date21 March 1974
Docket NumberAFL-CIO
Citation317 A.2d 363,127 N.J.Super. 277
Parties, 86 L.R.R.M. (BNA) 2547, 73 Lab.Cas. P 53,311 CEMETERY WORKERS AND GREENS ATTENDANTS UNION, LOCAL 365, SERVICE EMPLOYEES INTERNATIONAL UNION,, an unincorporated association, Plaintiff-Respondent, v. ROMAN CATHOLIC DIOCESE OF NEWARK, a New Jersey corporation, Defendant-Appellant.
CourtNew Jersey Superior Court — Appellate Division

Joseph A. Clarken, Jr., Newark, for defendant-appellant (Fox, Schackner, Neagle, Mastrangelo & Gassert, Newark, attorneys).

Abraham L. Friedman, Newark, for plaintiff-respondent (Rothbard, Harris & Oxfeld, Newark, attorneys; Emil Oxfeld, Newark, of counsel).

Before Judges KOLOVSKY, FRITZ and CRANE.

The opinion of the court was delivered by

KOLOVSKY, P.J.A.D.

Defendant Roman Catholic Diocese of Newark owns and operates seven cemeteries within the geographic limits of the Diocese. Plaintiff is a labor union representing production and maintenance employees of defendant at defendant's Holy Cross Cemetery in North Arlington, New Jersey. After the Regional Director of the National Labor Relations Board refused to assert jurisdiction and dismissed plaintiff's representation petition, plaintiff filed a verified complaint in the Chancery Division seeking a judgment requiring defendant to bargain collectively with it.

The matter came before the trial court on the adjourned return date of the order to show cause which issued on the filing of the complaint. Both counsel expressly disclaimed any need for oral testimony on the critical issue of whether the unit plaintiff allegedly represented was an appropriate unit for the purpose of collective bargaining. After hearing argument, the court resolved that issue in plaintiff's favor on the basis of a record consisting only of the verified complaint, defendant's answer and answering affidavit and interrogatories propounded by plaintiff and answered by defendant. An order was entered on October 24, 1972 adjudging that:

The following employees of defendant constitute a unit appropriate for the purposes of collective bargaining, to wit:

All production and maintenance employees, including grave diggers, mechanics, all machine operators, chauffeurs and greens keepers employed by the defendant in the conduct of the Holy Cross Cemetery at 340 Ridge Road, North Arlington, New Jersey, and excluding all office clerical employees, professional employees, guards and supervisors.

and directing that a secret ballot election be conducted among those employees by the New Jersey State Board of Mediation to determine whether or not they desired 'to be represented for collective bargaining purposes' by plaintiff.

After an application for a stay was denied, the election was held, with plaintiff being certified by the Mediation Board as having received a majority of the votes cast. The judgment entered on March 2, 1973 repeated the determination quoted above as to what constituted an appropriate bargaining unit, certified plaintiff as 'the sole and exclusive bargaining representative of the employees' in that bargaining unit and directed defendant to 'bargain with plaintiff as the sole and exclusive representative of its employees in the aforesaid bargaining unit.'

Defendant appeals, contending that the trial court erred in concluding that defendant's production and maintenance employees at Holy Cross Cemetery constituted a 'unit appropriate for the purposes of collective bargaining.' Defendant argues that the proofs before the court do not support that conclusion. Defendant recognizes that 'the test is not whether the unit sought is The most appropriate unit possible, but rather whether said unit is in fact an appropriate unit,' Bowman et al. v. Hackensack Hospital Assoc., 116 N.J.Super. 260, 277, 282 A.2d 48, 57 (Ch.Div.1971), but argues that the proofs mandated the inclusion in the unit of the production and maintenance employees at all seven cemeteries owned and operated by it in order for the unit to be in fact an appropriate unit for collective bargaining with defendant.

While decisions of the National Labor Relations Board (N.L.R.B.) and of the federal courts in cases arising under the Labor Management Relations Act of 1947, 29 U.S.C.A. sec. 141 et seq. are not binding when our courts are called upon to decide cases in the area of labor relations, Cooper v. Nutley Sun Printing Co., Inc., 36 N.J. 189, 200, 175 A.2d 639 (1961), we may properly look to those decisions for guidance in resolving questions arising in that area, and particularly the question of what constitutes an appropriate bargaining unit. This is true even in cases of employment which are expressly excluded from the jurisdiction of the N.L.R.B., e.g. employments in a non-profit hospital, see Johnson v. Christ Hospital, 84 N.J.Super. 541, 202 A.2d 874 (Ch.Div.1964), aff'd 45 N.J. 108, 211 A.2d 376 (1965) and Bowman et al. v. Hackensack Hospital Assoc., 116 N.J.Super. 260, 282 A.2d 48 (Ch.Div.1971).

It is even more desirable that we seek guidance from those decisions in cases where, as here, the controversy is within the jurisdiction of the N.L.R.B. but that Board, in the exercise of the discretion granted it and for reasons unrelated to the merits of the dispute, has refused to assert jurisdiction.

We may start with the analysis made in N.L.R.B. v. Metropolitan Life Insurance Company, 380 U.S. 438, 85 S.Ct. 1061, 13 L.Ed.2d 951 (1965) of the applicable provisions of the Federal statute:

Section 9(b) of the National Labor Relations Act, 49 Stat. 453, as amended, 29 U.S.C. § 159(b) (1958 ed.) provides:

'The Board shall decide in each case whether, in order to insure to employees the fullest freedom in exercising the rights guaranteed by this subchapter, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof * * *.'

This broad delegation of authority, see Pittsburgh Glass Co. v. National Labor Relations Board (313 U.S. 146, 61 S.Ct. 908, 85 L.Ed. 1251 (1941)), was limited in 1947 by the enactment of § 9(c)(5) of the Act, 61 Stat. 144, 29 U.S.C. § 159(c)(5) (1958 ed.), which provides that '(i)n determining whether a unit is appropriate for the purposes specified in subsection (b) of this section the extent to which the employees have organized shall not be controlling.'

Although it is clear that in passing this amendment Congress intended to overrule Board decisions where the unit determined could only be supported on the basis of the extent of organization, both the language and legislative history of § 9(c)(5) demonstrate that the provision was not intended to prohibit the Board from considering the extent of organization as one factor, though not the controlling factor, in its unit determination. (380 U.S. at 441--442, 85 S.Ct. at 1063).

The federal cases involving review of N.L.R.B. decisions

recognize that in determining appropriate bargaining units 'a wide discretion has been bested in the Board,' N.L.R.B. v. Belcher Towing Co., 5 Cir. 1960, 284 F.2d 118, 120, and that this court may not 'displace the Board's choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo,' Universal Camera Corp. v N.L.R.B., 1951, 340 U.S. 474, 488, 71 S.Ct. 456, 465, 95 L.Ed. 456. (N.L.R.B. v. Davis Cafeteria, Inc., 396 F.2d 18, at 19--20 (5 Cir. 1968)).

However, where the court finds that the Board's decision is not supported by substantial evidence, or fails to clearly articulate the basis of its determination as to an appropriate unit, Cf. N.L.R.B. v. Metropolitan Life Insurance Co., Supra, its order will not be enforced.

Further, an N.L.R.B. determination as to an appropriate unit will be deemed invalid where it appears that, contrary to the proscription of 29 U.S.C.A. sec. 159(c)(5)--referred to in the quotation from N.L.R.B. v. Metropolitan Life Insurance Co., Supra--the Board improperly allowed the extent of the employees organization to be controlling. Cf. N.L.R.B. v. Western and Southern Life Insurance Company, 391 F.2d 119, 121 (3 Cir. 1968), cert. den. 393 U.S. 978, 89 S.Ct. 445, 21 L.Ed.2d 439 (1968).

As is noted in 48 Am.Jur.2d, Labor and Labor Relations, sec. 446, p. 326 (1970):

In applying (the statutory guide as to what constitutes an appropriate bargaining unit) the NLRB has traditionally looked to such factors as the community of interest among the employees sought to be represented; whether they comprise a homogeneous, identifiable, and distinct group; whether they are interchanged with other employees; the extent of common supervision; the previous history of bargaining; and the geographic proximity of various parts of the employer's operation.

* * * (B)ut the NLRB's decisions on appropriate bargaining units cannot be generalized, and no generalizations should be attempted. There may be more than one way in which employees of a given employer may appropriately be grouped for purposes of collective bargaining. Moreover, the NLRB is not bound by its statements in earlier cases as to the appropriateness of a particular bargaining unit. Prior NLRB unit determinations in other cases have precedential value only in the sense that they disclose facts that the NLRB has previously considered relevant.

Where the situation is one in which an...

To continue reading

Request your trial
4 cases

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT