N.L.R.B. v. H. M. Patterson & Son, Inc., 80-7081
| Decision Date | 09 February 1981 |
| Docket Number | No. 80-7081,80-7081 |
| Citation | 636 F.2d 1014 |
| Parties | 106 L.R.R.M. (BNA) 2543, 90 Lab.Cas. P 12,548 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. H. M. PATTERSON & SON, INC., Respondent. Summary Calendar. . Unit B |
| Court | U.S. Court of Appeals — Fifth Circuit |
Elliott Moore, Deputy Associate General Counsel, N.L.R.B., Washington, D.C., for petitioner.
Smith, Curry & Hancock, Frank E. Specht, Atlanta, Ga., for respondent.
Curtis L. Mack, Atlanta, Ga., for other interested party.
Application for Enforcement of an Order of the National Labor Relations Board.
Before TJOFLAT, VANCE and THOMAS A. CLARK, Circuit Judges.
This is a petition for the enforcement of an order of the National Labor Relations Board arising out of a finding by the Board that the respondent company had violated section 8(a)(5) and (1) of the National Labor Relations Act, 1 29 U.S.C. § 158(a)(1) and (5), by refusing to bargain with the union certified by the Board. The company, H. M. Patterson & Son, Inc., a funeral home business with four mortuary facilities in Atlanta, Georgia, refused to bargain, arguing that the Board's determination of the appropriate bargaining unit arbitrarily departs from established Board precedent that an all-employee unit is the only appropriate unit in the funeral home industry. Additionally, the company contends that the Board's decision that the four sons of a twenty percent shareholder were not eligible voters was erroneous.
H. M. Patterson & Son, Inc., founded in Atlanta in the last century, is a closed corporation, entirely owned by relatives of the late Fred W. Patterson, Jr. The business is managed exclusively by Brannon Lesesne, president and thirty percent shareholder, and Dan Allen, vice president, secretary and twenty percent shareholder.
On June 6, 1978 General Teamsters Local Union No. 528 filed a representation petition for an election in a unit consisting of licensed funeral directors, licensed embalmers and apprentice embalmers. The company opposed the union's petition on the ground that the unit sought by the union was inappropriate and that the appropriate unit should consist of all employees, including attendant-receptionists, office clericals, maids, porters, yard staff, drivers, maintenance men and organists. Following a hearing held on June 20 and 21, the regional director included attendants-receptionists in the unit, 2 concluding that all of these employees work together in the preparation of the body for final burial. The director rejected the company's contention that all the employees of the firm should be included in the bargaining unit. Although recognizing that there was some occasional, minor overlap of duties between the included and excluded employees, the director concluded that the unit sought by the union, as modified, shared a community of interest and was therefore an appropriate bargaining unit.
In a representation election held on August 3, 1978, there were eighteen ballots in favor of the union, fourteen against, and five were challenged; a number sufficient to affect the results of the election. The challenged ballots included those of the four sons of Dan Allen and the grandson of Brannon Lesesne. A hearing on the challenges was held on September 11. The evidence at the hearing, in addition to showing the family ownership of the firm, also disclosed that the four Allen sons had all been in college until June 19, 1978, with a major part of their expenses paid by their father. They lived at home with their parents until mid-July when they moved to a cabin owned by their father, for which they pay one hundred dollars monthly rent, including utilities. Based on this evidence, on September 27 the hearing officer issued his report, recommending that the four challenges to the Allen children be sustained, that the Lesesne challenge be overruled, and that the union be certified. Thereafter, respondent filed exceptions and a supporting brief. The Board adopted the hearing officer's recommendations, without reaching the challenge to Lesesne, because the remaining challenge was no longer determinative of the election.
In reviewing the Board's determination of the appropriate bargaining unit, we note that "the Board is not by statute required to choose the most appropriate bargaining unit, only to select a unit appropriate under the circumstances," NLRB v. Southern Metal Service, Inc., 606 F.2d 512, 514 (5th Cir. 1979) (citing NLRB v. Bogart Sportswear Manufacturing Co., 485 F.2d 1203, 1206 (5th Cir. 1973)) (emphasis in original). Our standard for reviewing a Board determination of the collective bargaining unit is "exceedingly narrow." NLRB v. Fidelity Maintenance & Construction Co., 424 F.2d 707, 709 (5th Cir. 1970). "Board unit determinations involve of necessity a large measure of informed discretion and should not be set aside unless the reviewing court finds that the Board has exercised its discretion in an arbitrary or capricious manner." Spartan Industries v. NLRB, 406 F.2d 1002, 1005 (5th Cir. 1969).
Applying this standard of review, the Board's determination of the bargaining unit does not justify denial of enforcement of the bargaining order. The employees found by the Board to share a "substantial community of interest" are all directly involved in working with the body of the deceased. The funeral directors and embalmers, along with the assistant funeral directors and registered apprentices, embalm and cosmetize the remains, dress them, and place them in a casket. The attendants-receptionists style the hair of female remains and manicure their nails. Accordingly, they work together on a common task with which the other employees have little or no involvement. In this case the Board has selected a unit "appropriate under the circumstances." NLRB v. Southern Metal Services, 606 F.2d at 514.
The company argues that we are faced with an exception to the general rule of deference to the Board's decision, because the Board is not following its own precedents, contending that "(W)here the Board makes an unexplained departure from its established criteria for unit determination we should deny enforcement ...." NLRB v. WGOK, Inc., 384 F.2d 500, 503 (5th Cir. 1967). The company cites four prior Board cases involving funeral homes that it asserts establish that only an all-employee unit is appropriate. Riverside Memorial Chapel, Inc., 226 N.L.R.B. 2 (1976); W. W. Chambers Co., 124 N.L.R.B. 984 (1959); D.W. Newcomer's Sons, 117 N.L.R.B. 565 (1957); Utter-McKinley Mortuaries, 98 N.L.R.B. 450 (1952). These cases, however, do not establish a...
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