N.L.R.B. v. J.C. Penney Co., Inc., Store No. 29-9

• Citation: 620 F.2d 718
• Decision Date: 01 May 1980
• Docket Number: No. 78-3329,78-3329
• Parties: 105 L.R.R.M. (BNA) 2649, 89 Lab.Cas. P 12,157 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. J. C. PENNEY COMPANY, INC., STORE NO. 29-9, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 718

620 F.2d 718

105 L.R.R.M. (BNA) 2649, 89 Lab.Cas. P 12,157

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. J. C. PENNEY COMPANY, INC., STORE NO. 29-9, Respondent.

No. 78-3329.

United States Court of Appeals Ninth Circuit.

May 1, 1980.

Allison W. Brown, Jr., Atty., N. L. R. B., Washington, D. C., argued for petitioner; Elliott Moore, Washington, D. C., on brief.

David W. Byers, Buena Park, Cal., for respondent.

On Application for Enforcement of An Order of The National Labor Relations Board.

Before TANG and FARRIS, Circuit Judges, and BEEKS, ^* District Judge.

FARRIS, Circuit Judge.

The National Labor Relations Board petitions this court to enforce its order requiring J. C. Penney, store No. 29-9, to bargain with the company's auto center employees' bargaining representative. The company contends that its auto center employees do not constitute an appropriate bargaining unit. We disagree and enforce the Board's order.

J. C. Penney's store No. 29-9 is a retail department store located in Spokane, Washington. The store is located in a shopping mall and consists of a main store building and an auto center. On June 22, 1977, Local 582 ¹ filed a petition with the Board seeking a representation election in a unit composed of only the auto center employees. On August 3, the Regional Director determined that the auto center employees constituted an appropriate unit and directed that an election be held. The company filed a request for review of the Regional Director's decision with the NLRB which the Board denied because the company raised no substantial issue warranting review. On September 2, the union won the representation election and was certified as the auto center employees' bargaining representative.

On November 7, the company refused the union's request to bargain collectively on the ground that its auto center employees did not constitute a proper bargaining unit. On November 15, the union filed an unfair labor practice charge with the Board alleging that the company's failure to bargain violated Sections 8(a)(5) and (1) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(5) and (1). On August 23, 1978, the Board issued a decision finding that the company had violated Sections 8(a)(5) and (1) of the NLRA and ordered the company to bargain with the union. The NLRB petitions this court to enforce its order.

Because the issue of bargaining unit determination is within the particular expertise of the NLRB, we will not overturn a decision of the Board unless there has been an abuse of discretion. Beck Corp. v. NLRB, 590 F.2d 290, 292 (9th Cir. 1978). See also NLRB v. Don Burgess Const. Corp., 596 F.2d 378, 386 (9th Cir.), cert. denied, --- U.S. ----, 100 S.Ct. 293, 62 L.Ed.2d 306 (1979); NLRB v. Morse Shoe, Inc., 591 F.2d 542, 545 (9th Cir. 1979). The Board is not required to select the most appropriate bargaining unit; "it is sufficient if the unit chosen is within the range of units appropriate under the circumstances." Beck Corp. v. NLRB, supra, at 292. Because unit determinations are dependent on slight variations of facts, the Board decides each case on an ad hoc basis, Pacific Southwest Airlines v. NLRB, 587 F.2d 1032 (9th Cir. 1978), and it is not strictly bound by its prior decisions. NLRB v. Albert Van Luit & Co., 597 F.2d 681, 686 n.3 (9th Cir. 1979).

The critical consideration in determining the appropriateness of a bargaining unit is whether the employees in the unit share a "community of interest." See Allied Chemical & Alkali Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157, 172-73, 92 S.Ct. 383, 394, 30 L.Ed.2d 341 (1971). In determining whether the requisite "community of interest"...