NLRB v. Alterman Transport Lines, Inc.

• Decision Date: 12 September 1972
• Docket Number: No. 71-2548.,71-2548.
• Citation: 465 F.2d 950
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner-Appellant, v. ALTERMAN TRANSPORT LINES, INC., Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

465 F.2d 950 (1972)

NATIONAL LABOR RELATIONS BOARD, Petitioner-Appellant, v. ALTERMAN TRANSPORT LINES, INC., Respondent-Appellee.

No. 71-2548.

United States Court of Appeals, Fifth Circuit.

September 12, 1972.

Marcel Mallet-Prevost, Asst. Gen. Counsel, N.L.R.B., Washington, D. C., Harold A. Boire, Director, Region 12, N.L.R.B., Tampa, Fla., Vivian Asplund Miller, Atty., N.L.R.B., Washington, D. C., Peter G. Nash, Gen. Counsel, Allison W. Brown, Jr., Atty., N.L.R.B., for petitioner-appellant.

Granville M. Alley, Jr., Tampa, Fla., William R. Radford, Michael E. Merrill, Radford & Merrill, P. A., Miami, Fla., for respondent-appellee.

Before TUTTLE, MORGAN and RONEY, Circuit Judges.

PER CURIAM:

This is an enforcement proceeding brought against an interstate trucking operation to enforce an Order to Bargain issued by the National Labor Relations Board for violations of Sections 8(a) (1) and 8(a) (5) of the National Labor Relations Act. An affiliate of the Teamsters Union was certified by the Board as the exclusive bargaining representative of certain of respondent's employees following a Board election. Since certification, the company has consistently refused to bargain with the union.

The company asserts that its refusal to bargain is not unlawful and presents several objections to both the Board's determination of the appropriate unit and the holding of the representation election. After careful consideration we find that the contentions of the company are without merit. One of the company's claims, that dealing with unit determination, warrants some further comment.

It has long been axiomatic that the National Labor Relations Board has wide discretion in the selection of the appropriate bargaining unit and that a decision by the Board will not be disturbed unless arbitrary or capricious. NLRB v. Jones & Laughlin Steel Corp., 331 U.S. 416, 67 S.Ct. 1274, 91 L. Ed. 1575 (1947); Packard Motor Car Co. v. NLRB, 330 U.S. 485, 67 S.Ct. 789, 91 L.Ed. 1040 (1947); May Department Stores Co. v. NLRB, 326 U.S. 376, 66 S.Ct. 203, 90 L.Ed. 145 (1945); NLRB v. Li'l General Stores, 5 Cir. 1970, 422 F.2d 571. Clearly here it is within the Board's discretion to rule that units at single terminals are more appropriate than the statewide unit sought by the company. Groendyke Transport, Inc., 171 NLRB No. 143, enforced 5 Cir. 1971, 438 F.2d 981.

Respondent Alterman's primary claim for an abuse of discretion in this case rests on the fact that this latest unit determination by the Board conflicts with an earlier determination involving the Teamsters and Alterman. In 1960 the NLRB held that the appropriate bargaining unit for one of respondent's terminals consisted of all the drivers operating from that terminal. This included both local drivers and over-the-road (salaried and owner-operated) drivers in the same unit. In 1964 the Regional Director, Region 12, entered an administrative decision again holding that both driver groups should be included in the proposed unit. Determination of such a unit in both instances resulted in a dismissal of the representation petition for lack of a sufficient showing of interest.

On October 3, 1967, the local affiliates of the Teamsters again filed a representation petition covering separate units at three of respondent's terminals. Again, a major controversy arose as to inclusion of the over-the-road drivers. The union sought to represent only certain local employees. The NLRB held full and complete hearings into this matter with...