Electronic Data Systems Corp. v. N.L.R.B.

• Decision Date: 29 July 1991
• Docket Number: No. 90-4251,90-4251
• Citation: 938 F.2d 570
• Parties: 138 L.R.R.M. (BNA) 2205, 119 Lab.Cas. P 10,879 ELECTRONIC DATA SYSTEMS CORPORATION, Petitioner-Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 570

938 F.2d 570

138 L.R.R.M. (BNA) 2205, 119 Lab.Cas. P 10,879

ELECTRONIC DATA SYSTEMS CORPORATION, Petitioner-Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner.

No. 90-4251.

United States Court of Appeals, Fifth Circuit.

July 29, 1991.

Andrew C. Meyer and Barton A. Bixenstine, Duvin, Cahn & Barnard, Cleveland, Ohio, and Martin T. Wymer, Deputy Gen. Counsel, Detroit Legal Affairs, Southfield, Mich., for petitioner-cross-respondent.

Fred L. Cornell, Jr., Aileen A. Armstrong and Judith A. Dowd, Deputy Associate Gen. Counsel, N.L.R.B., Washington, D.C., for respondent-cross-petitioner.

Robert H. Miller, Regional Director, N.L.R.B., Region 20, San Francisco, Cal., for other interested party.

Petition for Review and Application for Enforcement of an Order of the National Labor Relations Board.

Before HENLEY, ^* KING and GARWOOD, Circuit Judges.

KING, Circuit Judge:

Electronic Data Systems Corporation (EDS) petitions this court to deny enforcement of an order of the National Labor Relations Board (Board or NLRB) entered on March 21, 1990. The NLRB's order directed EDS to bargain with Local No. 150, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO (Union) in a bargaining unit composed of members of the workforce of EDS's Medi-Cal operation in Rancho Cordova, California. Finding no basis to reverse the Board, we enforce its March 21, 1990 order.

I.

EDS, a computer services and telecommunications company which provides data processing and related services, is under contract with the State of California to maintain an integrated computer services operation supporting California's Medi-Cal health care program. On December 8, 1988, the Union filed a representation petition seeking certification as the exclusive bargaining representative of the EDS employees at EDS's facility on Sunrise Park Drive (Sunrise facility) in Rancho Cordova, California. On December 19, the Union filed an amended petition. A hearing was held before an NLRB hearing officer to determine whether the petitioned-for unit was an appropriate unit for purposes of collective bargaining. At the hearing EDS took the position that the only appropriate unit consisted of the approximately 500 employees located at its two Medi-Cal facilities in Rancho Cordova--the Sunrise facility and another 1 1/4 miles away on Prospect Park Drive (Prospect facility). On July 31, 1989, the NLRB's Regional Director issued a "Decision and Direction of Election," finding that the employees at the Sunrise facility constituted an appropriate bargaining unit. EDS filed with the Board a timely request for review of the Regional Director's findings, and the Union filed an opposition to the request for review. On August 29, the Board denied EDS's request for review.

On September 7, after an election supervised by the NLRB, the NLRB's Regional Director certified the Union as the exclusive bargaining representative of the employees at EDS's Sunrise facility. On September 10, 1989, the Union requested that EDS commence bargaining, and since September 13, EDS has refused to bargain with the Union. On September 21, the Union filed an unfair labor practice charge with the NLRB, and on October 30, the NLRB's General Counsel issued a complaint alleging that EDS's refusal to bargain violated Sec. 8(a)(5) and (1) of the National Labor Relations Act (the Act), 29 U.S.C. Sec. 158(a)(5) and (1). On November 6, EDS filed an answer to the complaint in which it admitted its refusal to bargain, but denied that the unit was appropriate and that it had violated the Act.

On December 4, 1989, the General Counsel filed a motion for summary judgment with the Board. On December 13, the Board issued an order transferring the proceeding to itself and a notice directing EDS to show cause why the motion should not be granted. On January 16, 1990, EDS filed a response to the notice to show cause and a cross-motion for summary judgment, contending that the NLRB had improperly certified the Union as the representative of employees in a unit that was not appropriate for collective bargaining.

On March 21, 1990, the Board issued a decision and order granting the General Counsel's motion for summary judgment. The Board found that all issues raised by EDS were or could have been litigated in the prior representation proceeding and that EDS did not offer to adduce at a hearing any newly discovered and previously unavailable evidence and did not allege any special circumstances that would require the NLRB to reexamine its decision in the representation proceeding. Accordingly, the Board found that EDS had violated Sec. 8(a)(5) and (1) of the Act by refusing to bargain with the Union.

The Board's order requires EDS to cease and desist from the unfair labor practice found and from in any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Sec. 7 of the Act. Affirmatively, the NLRB's order requires EDS to bargain with the Union on request and to post an appropriate notice. EDS petitions this court to deny enforcement of this order.

II.

EDS contends that the Board erred in determining that a unit restricted to the 40 employees at the Sunrise facility was an appropriate bargaining unit. EDS argues that the geographic proximity, operational integration, and centralized control of labor policy of the Sunrise facility with the Prospect facility preclude the Sunrise facility from having a separate identity. EDS asserts that the Board was wrong in automatically relying on the "single plant presumption" and supports this argument by citation to this circuit's opinion in NLRB v. Purnell's Pride, Inc., 609 F.2d 1153, 1156 (5th Cir.1980).

This court's review of the Board's determination of an appropriate bargaining unit is "exceedingly narrow." NLRB v. Southern Metal Serv., 606 F.2d 512, 514 (5th Cir.1979). The Board's decision "involves of necessity a large measure of informed discretion" and "is rarely to be disturbed." Packard Motor Car Co. v NLRB, 330 U.S. 485, 491, 67 S.Ct. 789, 793, 91 L.Ed. 1040 (1947). As this court has stated, review of this decision is "limited to determining whether the decision is arbitrary, capricious, an abuse of discretion, or lacking in evidentiary support." NLRB v. J.C. Penney Co., Inc., 559 F.2d 373, 375 (5th Cir.1977). "It is the duty of the [Board] to select an appropriate unit; it need not delimit the most appropriate unit." Purnell's Pride, 609 F.2d at 1155. An employer who challenges the Board's determination has the burden of establishing "that the designated unit is clearly not appropriate." Id. at 1155-56.

In deciding whether a group of employees is an appropriate bargaining unit, this court has adopted a "community of interests" analysis. Id. at 1156; J.C. Penney Co., Inc., 559 F.2d at 375. Factors used to determine a "community of interests" include "bargaining history, operational integration, geographic proximity, common supervisor, similarity in job function, and employee interchange." Id. In assessing the employees' community of interests, "[t]he Board must consider the entire factual situation, and its discretion is not limited by a requirement that its judgment be supported by all, or even most, of the potentially relevant factors." NLRB v. DMR Corp., 795 F.2d 472, 475 (5th Cir.1986) (quoting International Association of Machinists and Aerospace Workers v. NLRB, 759 F.2d 1477, 1480 (9th Cir.1985)). ¹

With this standard in mind, we review the facts of this challenge. The bargaining unit approved by the Board includes "[a]ll full-time and regular part-time data control clerks, printing press operators, shippers and receiving clerks and word processors (publications group)" employed by EDS at the Sunrise facility. The approximately forty-two employees at the Sunrise facility produce and distribute manuals, bulletins, and claim forms used by health care providers who participate in the Medi-Cal program. These employees print, copy, collate, bind, store, and mail large volumes of these documents. The 460 employees at the Prospect facility, 1 1/4 miles away, also work on the Medi-Cal account. These employees, however, perform the technical functions necessary to process the Medi-Cal claims. The functions at the Prospect facility include routing the claims, filming them on microfilm, entering claims data in the EDS computer, and analyzing and resolving errors on the claims. In addition, employees at the Prospect facility communicate with Medi-Cal providers and assist them in resolving problems, implement...