Sandvik Rock Tools v, Nat'l Labor Relations Bd.
| Decision Date | 10 June 1999 |
| Docket Number | No. 98-2692,CA-17991,No. 98-2533,98-2533,98-2692 |
| Citation | 194 F.3d 531 |
| Parties | (4th Cir. 1999) SANDVIK ROCK TOOLS, INCORPORATED, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SANDVIK ROCK TOOLS, INCORPORATED, Respondent. (11-). . Argued: |
| Court | U.S. Court of Appeals — Fourth Circuit |
COUNSEL ARGUED: Charles I. Cohen, MORGAN, LEWIS & BOCKIUS, L.L.P., Washington, D.C., for Sandvik. Rachael Irene Gartner, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Board. ON BRIEF: Linda A. Way-Smith, MORGAN, LEWIS & BOCKIUS, L.L.P., Washington, D.C., for Sandvik. Frederick L. Fein stein, General Counsel, Linda Sher, Associate General Counsel, John D. Burgoyne, Acting Deputy Associate General Counsel, Margaret Ann Gaines, Supervisory Attorney, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Board.
Before LUTTIG and KING, Circuit Judges, and BUTZNER, Senior Circuit Judge.
Petition for review denied and cross-application for enforcement granted by published opinion. Judge King wrote the opinion, in which Judge Luttig and Senior Judge Butzner joined.
Pursuant to 29 U.S.C. § 160(f), Sandvik Rock Tools, Inc. ("Sandvik") petitions this court for review of the September 20, 1998 Decision and Order of the National Labor Relations Board ("NLRB" or "Board") that certified union representation of a group of Sandvik's employees. The NLRB has filed a Cross-Application for Enforcement of the Board's September 20, 1998 Decision and Order (the "Board's Order"). Because we hold that the Board did not exceed its discretion in determining the appropriate bargaining unit, we deny Sandvik's petition for review and grant enforcement of the Board's Order.
On February 23, 1998, the Shopmen's Local No. 753 of the International Association of Bridge, Structural, Ornamental, and Reinforcing Iron Workers ("Union") filed a Petition for Certification of Representation with the NLRB. The Union sought to represent the workers in Sandvik's Chemical Products Division ("CPD") and its associated warehouse. Those workers comprise approximately onehalf of the production and maintenance employees at Sandvik's Bristol, Virginia facilities. The Union narrowly won the ensuing election.
Subsequently, the Union filed an unfair labor practices claim against Sandvik, alleging Sandvik had violated the National Labor Relations Act ("NLRA") by refusing to bargain with the Union. Sandvik admitted it had refused to bargain, but defended its refusal on the ground that the NLRB had directed the election in an inappropriate bargaining unit. The Board rejected Sandvik's argument and, on September 20, 1998, ordered Sandvik to cease and desist from refusing to bargain, to bargain upon request, and to provide the Union with requested information. These proceedings followed.
Sandvik, a Delaware corporation, owns and operates a threebuilding fabrication business in an industrial park in Bristol. Sandvik operates two divisions at this facility, the Mineral Tools Division ("MTD") and the CPD. Each division occupies its own building. A third Sandvik building serves as a warehouse. All three buildings are located in close proximity to one another.1 Although separate signs identify the MTD and the CPD at the entrance to the industrial park, the three buildings share a common entrance and a common parking lot. The MTD and the CPD each employ approximately sixty persons.
The CPD and the MTD produce substantially different products. The MTD manufactures carbide insert tool products used in mining and construction rehabilitation. The CPD manufactures polyester resin cartridges that provide structural integrity to mined-out rock surfaces, and also manufactures sealants that form air barriers on cinder block walls. Sandvik maintains separate budgets and balance sheets for the two Bristol divisions. The divisions have separate managers, supervisors, and foremen, who report to the same Sandvik executive. The MTD and the CPD share common administrative and upper management personnel, and there is a single Human Resources Department. All Sandvik employees at Bristol, regardless of division, are governed by the same employee handbook and rules of conduct. All employees also receive identical benefits and operate on virtually identical pay scales. Both divisions use the same common carriers and company vehicles for shipping and receiving.
Job qualifications for new employees are similar for both the MTD and the CPD; however, the employees are trained in different skills and use different equipment once on the job. The two divisions also work on different shift schedules, with the MTD operating three eight-hour shifts per day and the CPD operating two twelve-hour shifts.
Although some employees have been permanently transferred from one division to the other, employees are not temporarily transferred between the MTD and the CPD. The employees of the two divisions participate in some activities together, such as safety meetings or company picnics, but they have separate facilities, break rooms, and cafeterias on the job.
The warehouse is physically connected to the CPD by a conveyor belt, and handles all of CPD's shipping and receiving functions. CPD and the warehouse routinely interchange employees, such as helpers, with each other. The MTD has its own shipping and receiving department and associated storage site that are located within the MTD building. Both divisions store their permanent records in the warehouse.
In 1984, the Union filed a petition to represent all of Sandvik's production and maintenance employees at the Bristol facility. The Union lost that election. Until this recent election, there has been no collective bargaining history at the facility.
Sandvik maintains here that, based on the apparent "community of interest" that exists between the MTD, CPD, and warehouse employees, the only plausible explanation for the Board's certification of a bargaining unit consisting solely of the CPD and warehouse employees is that the Board improperly relied on the extent of the Union's organization of those employees. Sandvik contends that, by placing such reliance on the extent of the Union's organization, the Board abused its discretion.
Section 9(b) of the NLRA, 29 U.S.C. § 159(b), grants the NLRB the power to "decide in each case whether, in order to assure to employees the fullest freedom in exercising the rights guaranteed by this subchapter, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof . . . ." 29 U.S.C. § 159(b). The Supreme Court has long subscribed to the view that the NLRB possesses the widest possible discretion in determining the appropriate bargaining unit. Arcadian Shores, Inc. v. NLRB, 580 F.2d 118, 119 (4th Cir. 1978) (citing Packard Motor Car Co. v. NLRB, 330 U.S. 485, 491 (1947)). This wide discretion reflects acknowledgment of the Board's expertise in such matters and its "need for `flexibility in shaping the [bargaining] unit to the particular case.'" NLRB v. Lundy Packing Co., 68 F.3d 1577, 1579 (4th Cir. 1995) (quoting NLRB v. Action Automotive, Inc., 469 U.S. 490, 494 (1985) (citation omitted)). It is also well established that there may be more than one appropriate bargaining unit within a single employment unit. Arcadian Shores, 580 F.2d at 119. As we have observed, "the Board is free to select any one of these appropriate units as the bargaining unit." Id. (citations omitted). An employer challenging the Board's selection has the burden to prove that the bargaining unit selected is "utterly inappropriate." Id. at 120.
Despite the grant of such wide discretion, the Board must still operate within its statutory parameters. Lundy Packing 68 F.3d at 1580. The NLRA mandates: "In determining whether a unit is appropriate . . . the extent to which the employees have organized shall not be controlling." Id. Therefore, although the Board may consider the extent to which the employees have organized as one of many factors in determining the appropriate bargaining unit, it may not give the employees' extent of organization "controlling" weight. Id.
Instead, to test a bargaining unit's appropriateness, the NLRB has historically relied on the "community of interest" test. Id. That test requires the Board to examine twelve equally important criteria in determining whether the employees seeking to be represented by the union share a sufficient community of interest to form an appropriate bargaining unit. Id. The twelve factors the Board must examine are the following:
(1) similarity in the scale and manner of determining the earnings; (2) similarity in employment benefits, hours of work, and other terms and conditions of employment; (3) similarity in the kind of work performed; (4) similarity in the qualifications, skills and training of the employees; (5) frequency of contact or interchange among the employees; (6) geographic proximity; (7) continuity or integration of production processes; (8) common supervision and determination of labor-relations policy; (9) relationship to the administrative organization of the employer; (10) history of collective bargaining; (11) desires of the affected employees; (12) extent of union organization.
Id. (citing I.T.O. Corp. of Baltimore v. NLRB, 818 F.2d 1108, 1113 (4th Cir. 1987)).
Applying the community of interest test in this case, the Board's Hearing Officer found that it was "readily apparent that the production and maintenance employees at the chemical and tool divisions share a community of interest." Sandvik Rock Tools, Inc. v. Shopmen's Local Union No. 753 of the Int'l. Assoc. of Bridge, Structural, Ornamental & Reinforcing Iron...
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