NLRB v. Groendyke Transport, Inc.
| Decision Date | 25 November 1969 |
| Docket Number | No. 8571,150-69.,8571 |
| Citation | 417 F.2d 33 |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. GROENDYKE TRANSPORT, INC., Respondent. GROENDYKE TRANSPORT, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Lynn D. Poole, Atty., N. L. R. B. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Glen M. Bendixsen, Michael F. Rosenblum, Attys., N. L. R. B., on the brief), Washington, D. C., for National Labor Relations Board.
Payne H. Ratner, Atty., Wichita, Kan., for respondent Groendyke Transport Inc.
Before MURRAH, Chief Judge, and PHILLIPS and HICKEY, Circuit Judges.
Rehearing En Banc Denied November 25, 1969.
ON SUPPLEMENTAL PETITION FOR ENFORCEMENT OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD (No. 8571)
This is a proceeding to enforce a typical cease and desist and bargain upon request order of the National Labor Relations Board. Respondent does not deny failure to bargain with the union but asserts as a defense that the designated bargaining unit is not appropriate.
When this case was here in 372 F.2d 137, cert. denied 387 U.S. 932, 87 S.Ct. 2054, 18 L.Ed.2d 993, we upheld the validity of the representation election but remanded the case with directions to reconcile an apparent inconsistency of the Board in holding that a three terminal grouping was an inappropriate bargaining unit in 1951 and the instant finding that a single unit consisting of the Denver terminal employees of the same employer is now an appropriate bargaining unit. In the first enforcement proceeding, the Board did not attempt to distinguish the two situations or to reconcile the factual differences if any. We thought the integrity of the administrative process required it. And we were unwilling to accept counsel's attempted ad hoc rationalization.
Upon reconsideration of all the proceedings on the whole record, the Board found no reason to modify the unit holding in this case. In arriving at that decision, the Board was careful to point out that the factors which militated against the three terminal grouping found inappropriate in the previous case are not present in this single terminal unit. Specifically, the Board found that the single terminal unit avoids the wide geographic separation existing in the 1951 proceeding, the Denver terminal does not experience frequent interchange of employees with other terminals, there is no system-wide scale for wages and the Denver terminal manager has substantial authority in matters of daily concern to the drivers.
These findings are supported by substantial evidence and afford a rational basis for distinguishing the two proceedings. The scope of our review as to the appropriateness of a bargaining unit has been met. And we sustain the Board's holding that a unit consisting of Groendyke's Denver drivers is appropriate.
Respondent pleads the six month statute of limitations. 29 U.S.C. Section 160(b). The argument runs like this: The Board's Supplemental Decision on remand was issued April 28, 1967. The duty to bargain commenced anew at that time. Enforcement was not sought for more than six months thereafter and is therefore barred. The contention is wholly without merit. Nothing more is involved than enforcement of a Board order after remand. And the six month limitation period has no application to a petition for enforcement.
Failing in the statutory limitations claim, respondent invokes the doctrine of laches. The obvious answer to this defense is that Groendyke could have sought review of the order. 29 U.S.C. Section 160(f). It did not have to wait for the Board to act to contest this matter. The procedure for review was readily available. And Groendyke is not in a position to complain because the Board did not seek immediate enforcement.
It is further contended that respondent should have been allowed to show that the union no longer has a majority among the drivers at the Denver terminal. We do not agree.
A Board conducted election established the drivers' choice of the union as their bargaining representative. And Groendyke failed to bargain with that representative in violation of 29 U.S.C. Section 158(a) (5). As a remedial measure, the Board seeks to compel respondent to bargain with the union upon request.
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