Pacific Southwest Airlines v. N.L.R.B.

• Decision Date: 18 December 1978
• Docket Number: No. 77-1305,77-1305
• Parties: 100 L.R.R.M. (BNA) 2566, 85 Lab.Cas. P 11,080 PACIFIC SOUTHWEST AIRLINES, and Pacific Southwest Airmotive, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1032

587 F.2d 1032

100 L.R.R.M. (BNA) 2566, 85 Lab.Cas. P 11,080

PACIFIC SOUTHWEST AIRLINES, and Pacific Southwest Airmotive Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 77-1305.

United States Court of Appeals, Ninth Circuit.

Dec. 18, 1978.

Ronald G. Rickard (argued), of Meserve, Mumper & Hughes, Los Angeles, Cal., for petitioners.

Jesse I. Etelson, Atty. (argued), Washington, D. C., for respondent.

On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.

Before CHOY and ANDERSON, Circuit Judges, and PALMIERI, District Judge. ^*

J. BLAINE ANDERSON, Circuit Judge:

Fourteen previously unrepresented PSA ¹ employees were added to an existing bargaining unit after the Regional Director ² certified them as a proper addition to the unit. To obtain judicial review of the unit determination, the employer refused to bargain. ³

Unfair labor practice charges were filed. The Board found the unit was proper and that therefore PSA had violated §§ 8(a)(1) and (5) of the National Labor Relations Act (the Act), 29 U.S.C. §§ 158(a)(1) & (5), when it refused to bargain. Cross petitions for review and enforcement followed. This court has jurisdiction to review the unit determination and the unfair labor practices. 29 U.S.C. §§ 160(e) & (f).

As the parties have recognized, if the unit determination is upheld, the Board's Order should be enforced. ⁴ We find the unit determination was improper and deny enforcement.

I. PROCEEDINGS BELOW

Teamsters Local 2707 (the Union) petitioned the Board for certification as bargaining representative for 22 clericals employed at two PSA facilities. The Union sought to represent them as a distinct unit or, alternatively, to add them to the production unit ⁵ already represented by the Union.

Representation hearings were held to determine the appropriate unit. At the hearings, PSA presented evidence to support its contention that these employees should be grouped in a unit with all the office clericals employed at the two facilities. PSA's office clericals are not unionized.

The Regional Director ordered that an election be had among 14 of the 22 proposed unit members. ⁶ According to the Order of Election, if the employees voted in favor of the Union's representation, they were to be comprised in the production unit. If the employees voted against the Union's representation, they were to remain outside the production unit. Thus, the unit determination was a function of employee choice, but the employees could not choose to be represented as a separate unit.

The employees voted 11 to 2 to be represented by the Union and perforce to join the existing unit.

II. FACTS

The main office building at PSA's San Diego headquarters is utilized as follows:

first floor: aircraft maintenance hangar; shipping and receiving stockroom; foreman's office;

second floor: parts stockroom; upholstery shop; storage area; lunchroom; dispensary; and offices for personnel, maintenance, planning and records, purchasing and invoice control, engineering and finance, and avionics;

third floor: executive and administrative offices; computer room; office storeroom; and offices for sales, accounting, mail, public relations and keypunching.

Most of the production workers in the existing unit work on the first floor. Most of the office clericals, a group numbering approximately 100, work on the third floor; some work on the second floor, and a few work in different buildings. Ten of the fourteen disputed employees work on the second floor; ⁷ the other four work fifteen miles away at PSA's facility on Consolidated Way.

At the Consolidated Way facility, there are two floors:

first floor: engine overhaul area; administrative offices; stockroom;

second floor: inspection and records department; and offices for administrative functions, purchasing, clericals, and engineering personnel.

One hundred eighty employees work here; only a few are office clericals. The four disputed employees are evenly divided between the first and second floors.

PSA contends the evidence shows the disputed employees have much more in common with office clericals than they have in common with production employees. The Board contends the evidence shows the disputed employees are plant clericals and belong in the production unit, in accordance with established Board policy. The evidence may be summarized as follows:

1. all clericals ⁸ work the same eight-hour day, five days per week; production employees' work week consists of four ten-hour days;

2. production workers are uniformed, clericals are not;

3. all clericals are compensated under the same wage and benefit scheme; production workers are compensated under a different pay scheme, according to the collective bargaining agreement 4. wages for production workers are much higher than wages for clerical workers;

5. all clericals are hired as general clericals and then assigned a particular job;

6. the disputed employees work at desks in an office atmosphere, but are physically segregated from office clericals;

7. there is almost no interchange between office clericals and the disputed employees; there is some interchange between production workers and the disputed employees;

8. some of the disputed employees are supervised by accounting and finance personnel; some are supervised by production personnel;

9. similarly, some disputed employees are in the accounting and finance department; some are in the production department;

10. considered as a group, the disputed employees spend ten to fifteen percent of their time in contact with production employees, mostly by telephone; contact with office clericals is negligible;

11. use of secretarial skills is limited, but the bulk of the skills used (e. g., keypunching, handposting, typing, filing) are more closely related to clerical skills than they are to skills used in most production work;

12. the work performed by the disputed employees relates equally to the production and accounting departments: they compile, correlate, and record, often in final form, information concerning inventory, equipment, shippings, etc.; and

13. once recorded, the information is used primarily by the accounting department.

III. APPLICABLE LAW

The Act provides that the Board shall designate an appropriate unit for bargaining to secure employees the fullest freedom in exercising their rights. 29 U.S.C. § 159(b). As in other situations, ⁹ the Board balances individual freedom against the need for efficiency and stability in bargaining when determining an appropriate unit. See, e. g., Allied Chemical & Alkali Workers, Local Union 1 v. Pittsburgh Plate Glass Co., 404 U.S. 157, 172, 93 S.Ct. 383, 30 L.Ed.2d 341 (1971); Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 153, 165, 61 S.Ct. 908, 85 L.Ed. 1251 (1941). But as the statute expressly dictates, employee freedom must be paramount. 29 U.S.C. § 159(b); See Sheraton-Kauai Corp. v. NLRB, 429 F.2d 1352 (9th Cir. 1970); Retail, Wholesale and Department Store Union v. NLRB, 128 U.S.App.D.C. 41, 385 F.2d 301, 303-04 (1967).

The Act provides that the Board's findings of fact are conclusive if supported by "substantial evidence on the record considered as a whole."29 U.S.C. 160(f). But the factual disputes here are minimal; the legal conclusions to be drawn from the evidence are the heart of the controversy. NLRB v. Kostel Corp., 440 F.2d 347 (7th Cir. 1971). See generally Penasquitos Village, Inc. v. NLRB, 565 F.2d 1074 (9th Cir. 1977). Because this is an area where special expertise is needed, the Board has exceptionally broad discretion in determining an appropriate unit. NLRB v. Sunset House,415 F.2d 545, 548 (9th Cir. 1969); NLRB v. Swift & Co., 162 F.2d 575, 580-81 (3d Cir. 1947). Unless clearly arbitrary or capricious, the Board's legal conclusion that the unit is appropriate or inappropriate will be credited on appeal. NLRB v. Mercy Hospitals of Sacramento, Inc., 589 F.2d 968, 972 (9th Cir., 1978); NLRB v. Moss Amber Mfg. Co., 264 F.2d 107, 110 (9th Cir. 1959). Consequently, the burden is on PSA to demonstrate why the unit is clearly inappropriate. NLRB v. Doctors' Hospital of Modesto, Inc.,489 F.2d 772, 776 (9th Cir. 1973); Banco Credito y Ahorro Ponceno v. NLRB,390 F.2d 110, 112 (1st Cir. 1968), Cert. denied, 393 U.S. 832, 89 S.Ct. 101, 21 L.Ed.2d 102 (1968); Cf. NLRB v. Yutana Barge Lines, Inc., 315 F.2d 524 (9th Cir. 1963).

In determining whether a unit is appropriate, the Board considers:

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;

4. the employees' desires;

5. bargaining history; and

6. the extent of union organization among the employees.

See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. at 153, 61 S.Ct. 908; NLRB v. Security-Columbian Banknote Co., 541 F.2d 135, 140 (3d Cir. 1976); N.L.R.B., Fourteenth Annual Report 32-33 (1949); American Bar Ass'n, The Developing Labor Law 201, 231 (C. Morris ed. 1971). The critical determinant is whether the employees share a substantial community of interests sufficient to justify their mutual inclusion in a single bargaining unit. NLRB v. Adrian Belt Co., 578 F.2d 1304 (9th Cir. 1978); NLRB v. Ideal Laundry & Dry Cleaning Co., 330 F.2d 712, 716 (10th Cir. 1964); T. Kheel, Labor Law § 14.02(1) (1978); N.L.R.B., Fifteenth Annual Report 39 (1950).

Unit determinations are peculiarly dependent on slight variations of fact: thus, rigid rules are impossible to administer. See NLRB v. Mar Salle, Inc., 138 U.S.App.D.C. 135, 425 F.2d 566, 569 (1970); NLRB v. Swift & Co.,162 F.2d at 580.

Nonetheless, based on its practical experience over the years, the Board has adopted several general rules germane to the issues before us:

1. Office clericals will not be joined with either plant clericals or production workers in a single...