Friendly Ice Cream Corp. v. N.L.R.B.

• Decision Date: 26 April 1983
• Docket Number: No. 82-1616,82-1616
• Citation: 705 F.2d 570
• Parties: 113 L.R.R.M. (BNA) 2409, 97 Lab.Cas. P 10,065 FRIENDLY ICE CREAM CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — First Circuit

Page 570

705 F.2d 570

113 L.R.R.M. (BNA) 2409, 97 Lab.Cas. P 10,065

FRIENDLY ICE CREAM CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 82-1616.

United States Court of Appeals, First Circuit.

Argued Feb. 2, 1983.

Decided April 26, 1983.

Samuel Leiter, Boston, Mass., with whom Widett, Slater & Goldman, P.C., Boston, Mass., was on brief, for petitioner.

W. Christian Schumann, Washington, D.C., with whom William A. Lubbers, General Counsel, John E. Higgins, Jr., Deputy General Counsel, Robert E. Allen, Associate General Counsel, Elliott Moore, Deputy Associate General Counsel, and Peter Winkler, Washington, D.C., were on brief, for respondent.

Before ALDRICH, BOWNES and BREYER, Circuit Judges.

BOWNES, Circuit Judge.

Petitioner, Friendly Ice Cream Corporation (Friendly), seeks review of an order of the National Labor Relations Board (the Board), N.L.R.B. No. 112 (July 16, 1982), finding that Friendly violated Sections 8(a)(5) and 8(a)(1) of the National Labor Relations Act (the Act). 29 U.S.C. Secs. 158(a)(5) and 158(a)(1). This violation occurred when Friendly refused to bargain with the Hotel, Restaurant, Bartenders and Institutional Employees Union, Local 26, AFL-CIO (the Union), the certified bargaining representative of a unit of employees at a Friendly restaurant in Weymouth, Massachusetts. There are two issues: whether the employees of this one restaurant constitute an appropriate bargaining unit; and whether the election which resulted in union representation was valid.

FACTS

Friendly, a Massachusetts corporation, owns and operates a chain of 605 restaurants in sixteen states. The eastern region of the chain is headquartered in Wilbraham, Massachusetts. Executive personnel at Wilbraham formulate standard policies applicable to all restaurants in the chain, covering such matters as: menus, pricing, food preparation, formulas, interior and exterior decor, employee uniforms, maintenance, marketing, advertising, purchasing, inventory, cash accounting, security, hours of operation and personnel. ¹ The eastern region is divided into twelve divisions, each supervised by a Division Manager. Division I, covering portions of eastern and southern Massachusetts, is further subdivided into nine districts. Each district comprises from four to nine restaurants, for a total of sixty-five restaurants within Division I. A District Manager supervises the operations of the restaurants within each district, and reports to the Division Manager.

The store involved in this proceeding, the Weymouth restaurant, is part of a district comprised of eight restaurants. The restaurant employs approximately twenty-four part-time and three full-time employees. The supervisory hierarchy of the Weymouth restaurant begins with the Shift Supervisor, who acts as the Store Manager's delegate when she or he is not present. The Store Manager, who works between fifty and fifty-five hours per week, bears overall responsibility for the day-to-day operation of the restaurant. The Store Manager is supervised by the District Manager, who regularly visits the eight restaurants within the district. While at a restaurant, the District Manager checks the supplies, sales, service, cleanliness and employees. Estimates of the frequency of the District Manager's visits range from one to three times per week, and estimates of the length of the visits range from fifteen minutes to several hours. The District Manager reports to the Division Manager, located in Braintree, Massachusetts, who visits the Weymouth restaurant about once a month.

On April 5, 1979, the Union filed a representation petition seeking certification as the collective bargaining representative of specified employees at the Weymouth restaurant. ² Friendly did not dispute the composition of this unit, but argued that the scope of the unit was inappropriate because it covered only a single restaurant within the chain. Friendly argued that the most appropriate unit would be one encompassing all of its restaurants in the United States. Four alternative units were also proposed: a unit composed of all restaurants within the Boston Standard Metropolitan Statistical Area; all restaurants within Division I; all restaurants within a county; or a cluster of restaurants within a defined geographical area.

The Board's Regional Office held a comprehensive fourteen-day representation hearing at which both parties presented exhaustive testimony, exhibits and arguments concerning the appropriate scope of the bargaining unit. On May 30, 1980, the Regional Director determined that the petitioned-for single store unit was appropriate and directed that an election be held. Friendly's request for review of this decision was denied by the Board on the ground that it raised no substantial issues warranting review.

An election was held on June 27, 1980, but the results proved inconclusive. Of the twenty-seven votes cast, the Union received nine and eight were cast against the Union. Of the remaining nine ballots, five were challenged by the Union, two were challenged by the employer, and two were challenged In October 1981, the Union requested collective bargaining, was refused, and filed an unfair labor practice charge. The Regional Director issued a complaint alleging that Friendly had refused to bargain with the Union in violation of Sections 8(a)(5) and 8(a)(1) of the Act. While Friendly acknowledged its refusal to bargain, it raised as an affirmative defense the invalidity of the Board's certification of the Union. ³ The Board's General Counsel moved for summary judgment, alleging that all of the issues raised by Friendly in the unfair labor practice proceeding were or could have been litigated in the representation proceeding and thus the employer was not entitled to further proceedings before the Board. Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162, 61 S.Ct. 908, 917, 85 L.Ed. 1251 (1941). The Board granted this motion and issued an order requiring Friendly to cease and desist from interfering with its employees' collective bargaining rights. The company was ordered to bargain collectively with the Union and to post copies of an appropriate remedial notice. Friendly now petitions for review of the Board's order, alleging that it is invalid for the following reasons:

by the Board. The Regional Director conducted an investigation of the ballot challenges and of twenty-three election objections filed by the Union. Following two administrative hearings, the Acting Regional Director issued a supplemental decision sustaining the Board's challenge to one of the ballots, the Union's challenges to three of the ballots, and six of the Union's objections. A final tally of the ballots, including five additionally validated ballots, resulted in an eleven to ten victory for the Union. On September 30, 1981, the Union was certified as the exclusive bargaining representative of the employees at the Weymouth restaurant.

(1) the Weymouth store is an inappropriate unit for bargaining;

(2) the Board improperly sustained the challenges to the ballots of four employees; and

(3) the Board improperly sustained six objections to Friendly's conduct during the election.

The Board cross-petitions for enforcement of its order.

UNIT DETERMINATION

Standard of Review

Primary responsibility for determining the appropriateness of a collective bargaining unit has been vested in the Board. Because this is an area requiring expertise, the Board is given extraordinarily broad discretionary power, subject only to the statutory direction that the chosen unit "assure to employees the fullest freedom in exercising the rights guaranteed by [the Act]." 29 U.S.C. Sec. 159(b); see also Big Y Foods, Inc. v. NLRB, 651 F.2d 40, 45 (1st Cir.1981).

The Board is not required to select the most appropriate unit in a particular factual setting; it need only select an appropriate unit from the range of units appropriate under the circumstances. NLRB v. J.C. Penney Co., Inc., 620 F.2d 718, 719 (9th Cir.1980); NLRB v. Chicago Health & Tennis Clubs, Inc., 567 F.2d 331, 334 (7th Cir.1977), cert. denied, 437 U.S. 904, 98 S.Ct. 3089, 57 L.Ed.2d 1133 (1978); NLRB v. St. Francis College, 562 F.2d 246, 249 (3d Cir.1977); Szabo Food Services, Inc. v. NLRB, 550 F.2d 705, 707 (2d Cir.1976). An employer seeking to challenge the Board's unit determination cannot merely point to a more appropriate unit. Rather, the burden of proof is on the employer to show that the Board's unit is clearly inappropriate. NLRB v. Living and Learning Centers, Inc., 652 F.2d 209, 213 (1st Cir.1981); Banco Credito y Ahorro Ponceno v. NLRB, 390 F.2d 110, 112 (1st Cir.) (per curiam), cert. denied, 393 U.S. 832, 89 S.Ct. 101, 21 L.Ed.2d 102 Under Section 10(e) of the Act, we, as the reviewing court, are given the power to "enter a decree enforcing, modifying, ... or setting aside in whole or in part" any order of the Board. 29 U.S.C. Sec. 160(e). Our role is not " 'to stand aside and rubber stamp' Board determinations that run contrary to the language or tenor of the Act." NLRB v. Weingarten, Inc., 420 U.S. 251, 266, 95 S.Ct. 959, 968, 43 L.Ed.2d 171 (1975) (quoting NLRB v. Brown, 380 U.S. 278, 291, 85 S.Ct. 980, 988, 13 L.Ed.2d 839 (1965)). Rather, we must assure that the Board's unit determinations are not unreasonable, made arbitrarily or capriciously, or unsupported by substantial evidence. Packard Motor Car Co. v. NLRB, 330 U.S. 485, 491, 67 S.Ct. 789, 793, 91 L.Ed. 1040 (1947); Pacific Southwest Airlines v. NLRB, 587 F.2d 1032, 1037 (9th Cir.1978); NLRB v. Chicago Health & Tennis Clubs, Inc., 567 F.2d at 335; Ochsner Clinic v. NLRB, 474 F.2d 206, 209 (5th Cir.1973). This judicial review, however, is afforded "not for the purpose of weighing the evidence upon which the Board acted and perhaps to overrule the exercise of its discretion but to 'guarantee against arbitrary action by the Board.' " May Department Stores Co. v. NLRB, 326 U.S....