Wyandotte Sav. Bank v. N.L.R.B., 80-1484

• Decision Date: 07 July 1982
• Docket Number: No. 80-1484,80-1484
• Citation: 682 F.2d 119
• Parties: 110 L.R.R.M. (BNA) 2929, 94 Lab.Cas. P 13,666 WYANDOTTE SAVINGS BANK, Petitioner, v. The NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 119

682 F.2d 119

110 L.R.R.M. (BNA) 2929, 94 Lab.Cas. P 13,666

WYANDOTTE SAVINGS BANK, Petitioner, v. The NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 80-1484.

United States Court of Appeals, Sixth Circuit.

July 7, 1982.

Conrad W. Kreger, Stringari, Fritz, Kreger, Ahearn & Hunsinger, Detroit, Mich., for petitioner.

Elliott Moore, Deputy Associate Gen. Counsel, Jolane A. Findley, N. L. R. B., Washington, D. C., for N. L. R. B.

Before ENGEL and MERRITT, Circuit Judges, and WEICK, Senior Circuit Judge.

PER CURIAM.

Following our order refusing enforcement of an NLRB order to bargain on the ground that the bargaining unit found by the Board was inappropriate, Wyandotte Savings Bank v. NLRB, 669 F.2d 386 (6th Cir. 1982), the petitioner applied to this Court for an award of costs and attorney fees pursuant to Rule 39, Fed.R.App.P. and the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. The EAJA requires the awarding of attorney fees to the prevailing party against the United States or an agency thereof under certain circumstances. However, a court may not award attorney fees if it finds that "the position of the United States was substantially justified." 28 U.S.C. § 2412(d)(1)(A) & (d)(3). We find that the NLRB's position in seeking enforcement of its order was substantially justified and, therefore, we deny this application.

In this case the NLRB found that employees in nine of the petitioner's branch banks constituted appropriate bargaining units. The petitioner refused to bargain with the union which was elected at several of these branch offices. The NLRB ordered the petitioner to bargain and the petitioner sought review in this court and the Board cross-applied for enforcement of its order. We refused enforcement on the grounds that the case raised the same basic facts and issue as in Wayne Oakland Bank v NLRB, 462 F.2d 666 (6th Cir. 1972). In Wayne Oakland we held that the designation of a branch bank as an appropriate bargaining unit constituted an abuse of the Board's discretion.

The mere fact that the NLRB was the losing party or the fact that the NLRB's position was contrary to prior Sixth Circuit precedent does not mean that the Board was not substantially justified in seeking enforcement of its order. It is well recognized that the Board enjoys broad discretion in the choice of appropriate bargaining units and that its unit determination should not be upset unless it constitutes an abuse of discretion. E.g. Packard Motor Car Co. v. NLRB, 330 U.S. 485, 491, 67 S.Ct. 789, 793, 91 L.Ed. 1040 (1947); NLRB v. Winn-Dixie Stores Inc., 341 F.2d 750, 756 (6th Cir.), cert. denied, 382 U.S. 830, 86 S.Ct. 69, 15 L.Ed.2d 74 (1965). Moreover, the Board has operated under a presumption that a single location in a multiple location business is an appropriate bargaining unit and this presumption has been recognized by this circuit. See NLRB v. Forest City Enterprises, Inc., 663 F.2d 34, 35 (6th Cir. 1981); Meijer, Inc. v. NLRB, 564 F.2d 737 (6th Cir. 1977). And at least two other circuits have enforced NLRB designation of a single branch of a bank as an appropriate bargaining unit. Alaska Statebank v. NLRB, 653 F.2d 1285 (9th Cir. 1981); Banco Credito y Ahorro Ponceno v. NLRB, 390 F.2d 110 (1st Cir.), cert denied, 393 U.S. 832, 89 S.Ct. 101, 21 L.Ed.2d 102 (1968).

The Board, in its decision on review, recognized the factual similarity of the instant case and Wayne Oakland, supra :

Admitting that factually this case is not significantly different from the Wayne-Oakland case, we respectfully hazard the hope that the United States Court of Appeals for the Sixth Circuit, should it have occasion to consider the matter, will defer to the Board's delegated discretion in making bargaining...