N.L.R.B. v. American Printers and Lithographers
| Decision Date | 26 May 1987 |
| Docket Number | No. 85-2795,85-2795 |
| Citation | 820 F.2d 878 |
| Parties | 125 L.R.R.M. (BNA) 2593, 90 A.L.R.Fed. 1, 106 Lab.Cas. P 12,384 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. AMERICAN PRINTERS AND LITHOGRAPHERS, Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Frederick Havard, Deputy Associate Gen. Counsel, N.L.R.B., Washington, D.C., for petitioner.
William S. Ryza, Pop, Ballard, Shepard & Fowle, Ltd., Chicago, Ill., for respondent.
Before COFFEY and FLAUM, Circuit Judges, and ESCHBACH, Senior Circuit Judge.
The petitioner National Labor Relations Board (the "Board") in this action seeks enforcement of its bargaining order issued to respondent employer, American Printers and Lithographers ("American Printers"). American Printers has responded with a cross-petition that asks us to deny enforcement and vacate the order. American Printers argues that the Board erred in its determination that the pressroom floor helpers were an appropriate unit to add to the existing bargaining unit, which includes lithographic pressroom workers of several employers in a multiemployer bargaining unit.
We uphold the Board's determination of the appropriate unit and therefore grant the petition for enforcement of the bargaining order and deny American Printer's petition for review.
On June 4, 1984, the Graphic Communications International Union, Local No. 458, filed a petition seeking certification as the collective bargaining representative of floor helpers in the pressroom at American Printers. The other employees in the pressroom were already represented by the Union in a multiemployer bargaining unit. The floor helpers in the pressroom and in the other departments of the American Printers plant were unrepresented. A Hearing Officer of the NLRB presided at a hearing regarding the petition, and following the hearing the Regional Director of the NLRB ordered a self-determination election among the pressroom floor helpers to determine if they wished to be included in the multiemployer bargaining unit already represented by the Union or if they wished to continue to be unrepresented. 1 Presently general pressroom helpers similar to those at American Printers are represented by the Union at some, but not all, of the other employers' facilities within the multiemployer bargaining unit.
In the ensuing election a majority of the pressroom floor helpers voted to join the existing multiemployer bargaining unit. The Regional Director issued a "Certification of Results of Election," which certified that the pressroom floor helpers had indicated their desire to be added to the extant bargaining unit. The Union thereupon requested bargaining, and American Printers declined to recognize the Union as the representative of the pressroom floor helpers on the grounds that the direction of election and the subsequent certification were based on an inappropriate bargaining unit.
The Union filed a charge with the NLRB alleging that American Printers's refusal to bargain constituted an unfair labor practice within the meaning of sections 8(a)(1) and 8(a)(5) of the National Labor Relations Act (codified at 29 U.S.C. Secs. 158(a)(1), 158(a)(5)). The Regional Director issued a complaint based upon this charge and the parties filed a joint motion to transfer the proceeding to the Board without a hearing, relying solely on the stipulated record. The Board delegated its authority to a three-member panel, which found American Printers had refused to bargain with the employee's duly authorized representative, and entered a bargaining order. The Board petitions this court to enforce the Board's bargaining order, and American Printers has filed a cross-petition asking us to deny enforcement and to vacate the order. The Graphic Communications International Union, AFL-CIO, Local 458, has filed a brief in support of the Board's petition for enforcement.
American Printers attacks the Regional Director's determination of the bargaining unit, upheld by the Board, along two lines of argument. American Printers first contends that the pressroom floor helpers did not have a community of interest with the other already represented lithographic workers, but instead had a community of interest with other floor helpers at the American Printers facility in question. American Printers also contends that even if the pressroom floor workers were correctly determined to have a community of interest with the other pressroom workers, the appropriate election unit was all the pressroom workers at all of the employers' facilities represented by the multiemployer representative, the Chicago Lithographer's Association ("CLA"). 2 In reviewing both of these claims regarding the Board's determination of the appropriate bargaining unit, we are constrained to uphold the Board's determination if it is supported by substantial evidence in the record. South Prairie Construction Co. v. Local No. 627, 425 U.S. 800, 805, 96 S.Ct. 1842, 1844-45, 48 L.Ed.2d 382 (1976); Packard Motor Car. Co. v. NLRB, 330 U.S. 485, 491, 67 S.Ct. 789, 793, 91 L.Ed. 1040 (1947); NLRB v. Indianapolis Mack Sales & Service, Inc., 802 F.2d 280, 283 (7th Cir.1986); see also NLRB v. Action Automotive, Inc., 469 U.S. 490, 496-97 105 S.Ct. 984, 988-89, 83 L.Ed.2d 986 (1985). The Board carries the ultimate responsibility under the National Labor Relations Act for determining the appropriate bargaining unit, see 29 U.S.C. Sec. 159(b); South Prairie Construction Co., 425 U.S. at 805, 96 S.Ct. at 1844-45; Packard Motor Car. Co., 330 U.S. at 491, 67 S.Ct. at 793, and this is as true in multiemployer bargaining units as in any other, South Prairie Construction Co., 425 U.S. at 805, 96 S.Ct. at 1844-45; NLRB v. Truck Drivers Local No. 449, 353 U.S. 87, 96, 77 S.Ct. 643, 647, 1 L.Ed.2d 676 (1957). 3 In each case the Board looks to the bargaining history and the "community of interest," or lack thereof, to fashion an appropriate bargaining unit. E.g., Indianapolis Mack Sales & Service, Inc., 802 F.2d at 283. In making a determination regarding multiemployer representation the Board (and an appellate court on review) looks on a case-by-case basis to the duties of the employees, the bargaining history, and the controlling collective bargaining agreement, if any, and makes its decision in light of the congressionally established statutory policies of the labor laws. See, e.g., NLRB v. Johnson Sheet Metal, 442 F.2d 1056, 1060 (10th Cir.1971); NLRB v. Miller Brewing Co., 408 F.2d 12, 15 (9th Cir.1969); Retail Clerks Union v. NLRB, 330 F.2d 210, 212-16 (D.C.Cir.1964); St. Lukes Hospital, 234 N.L.R.B. 130, 130 (1978); Chrysler Corporation, 173 N.L.R.B. 1046, 1047 (1968). 4
The Regional Director's decision directing an election provides a detailed set of findings regarding the duties of American Printers's represented lithographic pressroom workers, the floor helpers within the pressroom, and the other floor helpers in other departments at American Printers. These findings rest on significantly more than substantial evidence in the record to support the conclusion, affirmed by the Board, that the pressroom floor helpers had the community of interest with the other lithographic pressroom employees necessary to justify their addition to the bargaining unit, should they so choose in an election.
The Regional Director's findings specifically established that the lithographic pressroom floor helpers regularly performed work substantially related to the work performed by the already represented lithographic pressroom employees. The floor helpers take direction in performing their daily tasks from members of the already represented lithographic pressroom unit. Except on rare occasions when the floor helpers are assigned to other units to make up for absentees they perform all their work with the pressroom unit. Specifically, they arrange material into proper loads for the presses, "turn loads" by transporting and arranging material to be printed on the other side, "air" the loads so they may dry, and load them onto skids for delivery to other departments. They also perform various tasks related to the press machinery itself: they clean dampers and grain rollers by placing them into racks and scrubbing them with brushes after they are removed by unit members; they place bars around cylinders enclosed by rubber blankets to secure the cylinders for mounting on the presses; they tie sleeves onto rollers to ready them for the presses; and they sometimes assist the regular unit members in washing the presses. When the employer is short a regular unit member, a floor helper is assigned to one of the lowest regular unit positions, and these assignments are made once or twice a week. On one shift the lowest level regular unit members also fill in for absent floor helpers when needed.
The Regional Director also found that one-third to one-half of the represented pressroom employees were promoted from positions as pressroom floor helpers, and that none of the represented employees were promoted directly from floor helper positions in other departments. The pressroom floor helpers are under the same supervisory management within the facility as are the represented employees. The pressroom superintendent interviews applicants for floor help positions and makes shift assignments for both regular unit members and the floor helpers. The pressroom floor helpers' daily job assignment tags are hung on a board with those of the regular unit. Vacation schedules for the pressroom floor helpers are determined by the pressroom's unit supervisors and approved by the pressroom superintendent. Floor helpers in other departments are not under this pressroom supervisory management.
The Regional Director also found that some floor helpers in the lithographic pressroom department assist regular unit members in ...
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