Mass. Soc. for Prevention of Cruelty v. N.L.R.B.
| Decision Date | 01 August 2002 |
| Docket Number | No. 01-2260.,01-2260. |
| Citation | 297 F.3d 41 |
| Parties | MASSACHUSETTS SOCIETY FOR THE PREVENTION OF CRUELTY TO CHILDREN, Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner, and Service Employees International Union, Local 509, AFL-CIO, Intervenor. |
| Court | U.S. Court of Appeals — First Circuit |
Barry S. Pollack, with whom Macon P. Magee, Kay H. Hodge, and Stoneman, Chandler & Miller LLP, were on brief, for petitioner, cross-respondent.
Fred L. Cornnell, Supervisory Attorney, with whom Siobhan M. Kelly, Attorney, Arthur R. Rosenfeld, General Counsel, John E. Higgins, Jr., Acting Deputy General Counsel, John H. Ferguson, Associate General Counsel, and Aileen A. Armstrong, Deputy Associate General Counsel, were on brief, for respondent, cross-petitioner.
David R. Rome, with whom Pyle, Rome, Lichten & Ehrenberg, P.C., was on brief, for intervenor.
Before TORRUELLA, Circuit Judge, CAMPBELL and CYR, Senior Circuit Judges.
Petitioner Massachusetts Society for the Prevention of Cruelty to Children ("MSPCC") seeks review of a decision of the National Labor Relations Board ("NLRB" or "Board"). In the proceedings below, the Board concluded that MSPCC committed unfair labor practices under the National Labor Relations Act ("NLRA" or "Act"), 29 U.S.C. §§ 151-169, by failing to negotiate with the duly elected representative of a bargaining unit comprising the employees at a single facility of MSPCC's operations. MSPCC contests, inter alia, the appropriateness of the unit certified by the Board for purposes of collective bargaining. Given the deference we show to the Board in such matters, however, we conclude that the unit determination must be sustained. Accordingly, we deny MSPCC's petition for review and grant the Board's cross-petition for enforcement of its order.
MSPCC is a nonprofit corporation that is engaged in providing mental health care services, child welfare services, and behavioral programs to children and families within Massachusetts. It has an office and a place of business in the Jamaica Plain section of Boston and maintains approximately thirty other facilities throughout the state.
On January 22, 2001, the intervenor, Service Employees International Union, Local 509, AFL-CIO ("Union" or "Local 509"), filed a petition pursuant to § 9(c) of the Act, 29 U.S.C. § 159(c), with the First Region of the NLRB. The Union sought to represent all employees in MSPCC's Jamaica Plain office. MSPCC contested representation on the ground that the single location was an inappropriate bargaining unit. The Regional Director of the NLRB investigated and, on March 13, 2001, entered a decision approving the single-facility unit and ordering an election.
On March 23, 2001, MSPCC requested that the Board review the decision and stay the election. The Board denied the request on April 4, 2001, and an election was conducted on April 11, 2001. The tally of ballots showed that the employees at the Jamaica Plain facility voted in favor of representation by the Union by a margin of thirty-nine to ten. The Regional Director then issued a Certificate of Representation on April 23, 2001.
Despite certification of the Union as the collective-bargaining representative, MSPCC refused to bargain. The Union then filed an unfair labor practice charge alleging that MSPCC had violated §§ 8(a)(1) and 8(a)(5) of the Act, 29 U.S.C. § 158(a)(1) & (5).1 The Regional Director issued a complaint, and MSPCC filed an answer defending its actions on the ground that the bargaining unit was inappropriate. Instead of first taking the case before an administrative law judge, the Board's General Counsel moved to transfer the proceeding directly to the Board for summary judgment. The Board granted the transfer. In opposition to the General Counsel's motion for summary judgment, MSPCC argued that the single-facility bargaining unit was inappropriate. In addition, MSPCC argued for the first time that the Union was disqualified from representing the employees at MSPCC's Jamaica Plain facility because of a conflict of interest.
The Board issued a Decision and Order granting the General Counsel's motion for summary judgment. Mass. Soc'y for the Prevention of Cruelty to Children, 334 N.L.R.B. No. 141, 2001 WL 946529 (2001). The Board upheld the appropriateness of the Regional Director's bargaining unit determination. Id., slip op. at 1. Furthermore, the Board found that MSPCC waived the issue of the Union's disqualifying conflict of interest. Id., slip op. at 1 n.1. Accordingly, the Board found that MSPCC had committed an unfair labor practice and ordered it to commence bargaining with the Union. Id., slip op. at 2-3. MSPCC then filed the instant petition for review.
The Board is assigned many functions in furtherance of its duty to effectuate the policies of the NLRA. Among them is its responsibility under § 9(b) of the Act to define the composition and scope of "unit[s] appropriate for the purposes of collective bargaining." 29 U.S.C. § 159(b). Appropriate bargaining units are the very building blocks of the federal system of labor relations. Congress thus expressly directed the Board to exercise its power under § 9(b) with the purpose of "assur[ing] to employees the fullest freedom in exercising the rights guaranteed by this subchapter." Id.
In this case, MSPCC makes a two-fold challenge to the Board's rulings concerning its duty to bargain with Local 509. MSPCC argues first that the Board erred in determining that the employees at a single facility of MSPCC's multi-facility operations constitute an appropriate unit for collective bargaining. Second, MSPCC argues that, in any event, Local 509 suffers from a conflict of interest that precludes it from representing MSPCC's employees. We address each of these arguments in turn.
It is now well settled that "the selection of an appropriate bargaining unit lies largely within the discretion of the Board, whose decision, `if not final, is rarely to be disturbed'...." S. Prairie Constr. Co. v. Local 627, Int'l Union of Operating Eng'rs, 425 U.S. 800, 805, 96 S.Ct. 1842, 48 L.Ed.2d 382 (1976) (quoting Packard Motor Car Co. v. NLRB, 330 U.S. 485, 491, 67 S.Ct. 789, 91 L.Ed. 1040 (1947)); see also Friendly Ice Cream Corp. v. NLRB, 705 F.2d 570, 575 (1st Cir.1983) (). Nonetheless, MSPCC asks us to take the unusual step of upending the Board's unit determination. We decline to do so.
In making its determination, "[t]he 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." Friendly Ice Cream, 705 F.2d at 574 (emphasis in original). Thus, an employer seeking to disturb 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." Id. (emphasis added).
We review unit determinations only to assure that they are not "unreasonable, made arbitrarily or capriciously, or unsupported by substantial evidence." Id.; see also Nightingale Oil Co. v. NLRB, 905 F.2d 528, 535 (1st Cir.1990). In recognition of the Board's expertise in this area, we may affirm the Board's action, even though we might not have reached the same unit determination. See Marriott In-Flite Servs. v. NLRB, 652 F.2d 202, 207-08 (1st Cir.1981).
The critical inquiry in determining the appropriateness of a proposed unit is whether the employees comprising the unit share a "community of interest." Friendly Ice Cream, 705 F.2d at 575. When considering the appropriateness of a single-facility bargaining unit in a multi-facility operation, the Board is also aided by its policy that a single facility is "presumptively an appropriate unit for bargaining." Id. (quoting Haag Drug Co., 169 N.L.R.B. 877, 878, 1968 WL 19094 (1968)). Once this presumption is invoked, the employer bears the burden of demonstrating that the single facility is so effectively merged into a more comprehensive unit, or is so functionally integrated, that it lacks a separate identity. See Rental Unif. Serv., Inc., 330 N.L.R.B. No. 44, slip op. at 2, 1999 WL 1208418 (1999); D & L Transp., Inc., 324 N.L.R.B. 160, 160, 1997 WL 453115 (1997). To determine whether such a strong shared interest between facilities exists to rebut the single-facility presumption, the Board considers several factors, with no single one being determinative. These factors include: 1) geographic proximity of the facilities in relation to each other; 2) level of employee interchange between various facilities; 3) degree of autonomy exercised by the local managers, especially with respect to labor relations; 4) extent of union organization; 5) history of collective bargaining; 6) desires of the affected employees; 7) employer's organizational framework; and 8) similarity in skills, employee benefits, wages, and hours of work. See Friendly Ice Cream, 705 F.2d at 576.
Our review is "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 Dep't Stores Co. v. NLRB, 326 U.S. 376, 380, 66 S.Ct. 203, 90 L.Ed. 145 (1945) (citations and internal quotation marks omitted). Thus, "[w]hile we must assure that the Board fairly and reasonably considered all relevant factors, the weight assigned by the agency to each factor it has fairly considered is a matter for it to determine." Friendly Ice Cream, 705 F.2d at 575 (citations and internal quotation marks omitted). We turn now to the principal factors disputed by the parties to determine if they were fairly and reasonably considered.
1. Geographic proximity. MSPCC...
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