N.L.R.B. v. Forest City Enterprises, Inc., 80-1378

• Decision Date: 10 November 1981
• Docket Number: No. 80-1378,80-1378
• Citation: 663 F.2d 34
• Parties: 109 L.R.R.M. (BNA) 2290, 93 Lab.Cas. P 13,315 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. FOREST CITY ENTERPRISES, INC., Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 34

663 F.2d 34

109 L.R.R.M. (BNA) 2290, 93 Lab.Cas. P 13,315

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. FOREST CITY ENTERPRISES, INC., Respondent.

No. 80-1378.

United States Court of Appeals Sixth Circuit.

Nov. 10, 1981.

Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., Barbara A. Atkins, Washington, D. C., for petitioner.

Andrew C. Meyer, Duvin, Flinker & Cahn Co., Frank W. Buck, Cleveland, Ohio, for respondent.

Before KEITH and MERRITT, Circuit Judges, and ALDRICH, District Judge. ^*

ORDER

In this case the NLRB seeks enforcement of its cease and desist order against respondent Forest City Enterprises' (the "Company") refusal to bargain with the certified union in violation of § 8(a)(5) and (1) of the National Labor Relations Act. The Company justifies its refusal to bargain on the grounds (1) that the Board's certification of a single store bargaining unit was inappropriate, and (2) that the representation election was invalid because certain actions of the NLRB agent conducting the election destroyed the integrity and neutrality of the Board's procedures. We find that the Board did not abuse its discretion in certifying a single store as a bargaining unit, and that the NLRB misconduct alleged by the company was not so substantial as to have affected the outcome of the representation election. We therefore affirm the order of the NLRB.

In August, 1978 the union filed a representation petition seeking to represent the Company's employees at one of the Company's two retail stores in Akron, Ohio. The Company unsuccessfully contested the designation of the single store (the "Rolling Acres" store) as an appropriate bargaining unit claiming that the bargaining unit must include employees from both the Company's Akron area stores.

The union won a representation election (36 to 22) on December 1, 1978; however, the Company filed objections to the election claiming that the Board agent who conducted the election was unfairly prejudiced in favor of the union. The Regional Director conducted an investigation but refused the Company's request for a hearing and overruled the Company's objections finding that they did not raise substantial and material issues of fact or law. The union was certified as the exclusive collective bargaining representative. The Company's request for review of the Regional Director's decision was denied by the Board on April 5, 1979.

Unfair labor practice proceedings were initiated by the newly certified union after the Company refused to bargain with it. The Board granted summary judgment against the Company, finding a violation of Section 8(a)(5) and (1), and ordered the Company to bargain with the union. 248 N.L.R.B. No. 5 (March 3, 1980). The Board now petitions this Court for enforcement of its order.

I.

The Company first argues that it should not be required to bargain with the union because the designation of a single store bargaining unit in this case was inappropriate. To justify its refusal, the Company must establish that the Board abused its discretion in designating the bargaining unit, Meijer, Inc. v. NLRB, 564 F.2d 737, 743 (6th Cir. 1977); and where the Board designates a single store bargaining unit, the Company has the additional burden of rebutting a presumption in favor of the designation, Haag Drug Co., 169 NLRB 899, 878 (1968). The Company has failed to overcome its burdens in this case.

Although Forest City Enterprises operates a multistate retail store chain with two stores in the Akron market area, the manager of the Rolling Acres store has significant control over the day to day operations and his decisions are rarely challenged by the central management. Moreover, there is little employee interchange between stores, and the attempts to organize a union and to initiate bargaining have occurred solely at the single store level. These factors support the view that the individual unit is able to deal with day to day issues of the bargaining relationship, Meijer, Inc. v. NLRB, 564 F.2d at 740. In light of the absence of broader union activity within the Company, the selection of a single store bargaining unit advances the policy of assuring employees the "fullest freedom" in exercising their rights under the NLRA. 29 U.S.C. § 159(b) (1976); Meijer, Inc., 564 F.2d at 742-43; Michigan Hospital Service Corp. v. NLRB, 472 F.2d 293, 296 (6th Cir. 1972).

There is thus ample basis for a finding that the designation of the single store bargaining unit was...