N.L.R.B. v. American Seaway Foods, Inc.
| Decision Date | 16 March 1983 |
| Docket Number | No. 81-1543,81-1543 |
| Citation | 702 F.2d 630 |
| Parties | 112 L.R.R.M. (BNA) 3136, 96 Lab.Cas. P 14,123 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. AMERICAN SEAWAY FOODS, INC., Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Elliott Moore, Deputy Associate Gen. Counsel, Jolane Findley, N.L.R.B., Washington, D.C., for petitioner.
Andrew C. Meyer, Duvin, Flinker & Cahn, Cleveland, Ohio, for respondent.
Before KENNEDY, CONTIE and WELLFORD, Circuit Judges.
The National Labor Relations Board (Board) has applied for enforcement of an order finding that American Seaway Foods, Inc., (Seaway) has violated section 8(a)(1) and (5) of the National Labor Relations Act by refusing to bargain with the Office and Professional Employees International Union, Local 17. Seaway has refused to bargain in order to contest the appropriateness of the bargaining unit approved by both the Regional Director and the Board. We enforce the Board's order.
Seaway is engaged in the wholesale distribution of food and grocery products from its principal facility in Bedford Heights, Ohio. The facility, a single building covering approximately 800,000 square feet, houses the company's corporate headquarters and central warehouse. Seaway employs 112 clerical workers, some of whom work in the main office and some of whom function in offices scattered throughout the warehouse. The main office clericals work in areas such as personnel, payroll, purchasing, sales, data processing, receptionist and switchboard operations. The warehouse clericals work in the transportation, receiving, will call, Stations 1 and 3, food service, freezer, print shop and health and beauty aids departments.
On January 24, 1980, the Union filed a representation petition, seeking certification as the exclusive bargaining representative of Seaway's warehouse clerical workers. Seaway objected on the ground that no appropriate bargaining unit could exclude the main office clericals. After a hearing on February 14, 1980, the Regional Director ordered an election in the following bargaining unit:
All plant clerical employees employed by the Employer at its Bedford Heights, Ohio facility, including freezer clerks, transportation clerks, collection and will call clerks, receiving office clerks, food service warehouse clerks and Station 1 and Station 3 clerks, but excluding all office clerical employees, confidential employees, managerial employees, and all professional employees, guards and supervisors as defined in the Act, and all other employees.
Thus the main office clerical employees were excluded from the bargaining unit. For reasons not made clear in the record, the print shop and health and beauty aids clericals, who worked in warehouse offices, also were excluded. 1
Seaway asked the Board to review the Regional Director's decision because the unit was inappropriate and because the Regional Director had permitted the Union to amend its bargaining unit description at the beginning of the hearing. 2 The Board refused to review the case because Seaway's request raised no substantial issues. At the subsequent election, the Union prevailed by a vote of 41 to 5 with 3 challenged ballots.
Since April 7, 1980, Seaway has refused to bargain in order to obtain review of the bargaining unit decision. On November 17, 1980, the Board issued an opinion and order stating both that Seaway's arguments had been addressed during the certification proceeding and that the refusal to bargain violated section 8(a)(1) and (5) of the Act. The Board therefore granted the General Counsel's motion for summary judgment. The Board now seeks enforcement.
Since selecting an appropriate bargaining unit lies within the Board's discretion "whose decision, if not final, is rarely to be disturbed," South Prairie Construction Co. v. Local 627, International Union of Operating Engineers, 425 U.S. 800, 805, 96 S.Ct. 1842, 1844, 48 L.Ed.2d 382 (1976), this court's review of such a decision is "exceedingly narrow." North American Soccer League v. NLRB, 613 F.2d 1379, 1383 (5th Cir.), cert. denied, 449 U.S. 899, 101 S.Ct. 267, 66 L.Ed.2d 128 (1980). The Board's determination should be upheld unless it is arbitrary, unreasonable or an abuse of discretion. See Packard Motor Car Co. v. NLRB, 330 U.S. 485, 491, 67 S.Ct. 789, 793, 91 L.Ed. 1040 (1947); Wyandotte Savings Bank v. NLRB, 682 F.2d 119, 120 (6th Cir.1982); B. Siegel Co. v. NLRB, 670 F.2d 64, 65 (6th Cir.1982); L.M. Berry & Co. v. NLRB, 668 F.2d 249, 251 (6th Cir.1982); Meijer, Inc. v. NLRB, 564 F.2d 737, 743 (6th Cir.1977). While the Board's discretion is not unlimited, see Kalamazoo Paper Box Corp., 136 NLRB 134, 137 (1962), it need select only an appropriate bargaining unit rather than the most appropriate unit. See, e.g., NLRB v. Fuelgas Co., Inc., 674 F.2d 529 (6th Cir.1982); Michigan Hospital Service Corp. v. NLRB, 472 F.2d 293, 294 (6th Cir.1972).
We hold that the Board's determination that the warehouse clericals constituted an appropriate separate bargaining unit was not arbitrary, unreasonable or an abuse of discretion. The hearing officer's decision referred to the warehouse clerical employees as being "plant clericals." Clerical workers who perform duties in close association with the production process are "plant clericals." See Gordonsville Industries, Inc., 252 NLRB 563, 590 (1980). Since the hearing officer, as affirmed by both the Regional Director and the Board, found that Seaway's warehouse clericals performed duties which were closely related to the warehouse operations, the use of the term "plant clericals" was not error.
The Board's long-standing policy is that absent agreement between the parties, office and plant clerical employees are not to be joined in the same bargaining unit. See, e.g., The Kroger Co., 204 NLRB 1055 (1973); Fisher Controls Co., 192 NLRB 514, 515 (1971); Weyerhauser Co., 173 NLRB 1170, 1171 (1968); The Rudolph Wurlitzer Co., 117 NLRB 6 (1957). This policy is grounded upon the fact that office and plant clericals generally do not share the "community of interests" necessary for employees who are to be joined in one unit. Mosler Safe Co., 188 NLRB 650 (1971). Under the facts of this case, we see no reason to reject the Board's policy, which serves as a guide in defining appropriate bargaining units.
This conclusion is supported by a direct application of the community of interests test. Several factors are relevant in deciding whether two groups of employees share a "community of interests sufficient to justify their mutual inclusion in a single bargaining unit:"
1. Similarity in skills, interests, duties, and working conditions;
2. Functional integration of the plant, including interchange and contact among the employees; ...
3. The employer's organizational and supervisory structure;
....
5. Bargaining history; and
6. The extent of union organization among the employees.
Pacific Southwest Airlines v. NLRB, 587 F.2d 1032, 1038 (9th Cir.1978). 3
The hearing officer did find that Seaway's office and plant clericals share similar skills, working conditions, pay and fringe benefits. The company argues that this point not only helps to demonstrate a community of interests between the two groups, but also tends to show that the results of future negotiations between the warehouse clericals and management will as a practical matter affect the salaries and working conditions of non-union clericals. See Pacific Southwest Airlines, supra at 1045; NLRB v. Harry T. Campbell Sons' Corp., 407 F.2d 969, 978-79 (4th Cir.1969).
Pacific Southwest Airlines is distinguishable on this point, however,...
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