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National Labor Relations Board v. New Enterprise Stone and Lime Co.


decided: June 26, 1969.


Freedman, Seitz and Aldisert, Circuit Judges.

Author: Per Curiam

The National Labor Relations Board has applied for enforcement of its order against New Enterprise Stone and Lime Company, Inc.*fn1 The Board found that the Company, Inc.*fn1 The Board found that the Company violated section 8(a)(5) and (1) of the National Labor Relations Act*fn2 by refusing to recognize and bargain with a union previously certified as the exclusive bargaining representative of the Company's employees at a plant unit.*fn3 The Company resists enforcement of the order on the basis that the single plant unit selected by the Board was not appropriate; that because of the intermingling of employees and business functions among several plants, a larger and broader segment of the Company should have been chosen by the Board as the unit in which to conduct an election.

To decide whether the Company was in violation of the Act, it therefore becomes necessary to ascertain whether the Board abused its discretion in the selection of the single plant as a "unit appropriate for the purposes of collective bargaining."*fn4

We are mindful that the burden was on the Company to demonstrate that the Board abused its discretion in determining the appropriateness of the bargaining unit in question, and that one undertaking this burden "wages an uphill fight." NLRB v. Schill Steel Prods., Inc., 340 F.2d 568, 574 (5 Cir. 1965). The burden becomes especially onerous where, as here, a single-plant unit was certified; the Board has working in its favor a presumption that a plant unit is appropriate absent a bargaining history on a multi-location basis or a showing of company-wide integration sufficient to negate the autonomy of the single unit.*fn5

In rebuttal, the Company urges that the work of the various plants is integrated to such an extent that the identity of the local plants as autonomous units is negated. As evidence of such integration, the Company emphasizes that a significant number of employees are regularly transferred from unit to unit within the multi-plant area. Further factors relied on by the Company to demonstrate this integration are the central handling of sales, billings, purchases and payroll operations, some uniform management policies, and integrated operations and common ownership of the plants.

After considering the voluminous testimony which was presented on the issue of integration, the Board found that the unit so certified at the Concrete Products Division plant included pre-stressed concrete employees, and essentially excluded other employees. It also concluded that the workers transferred in and out of this plant were not the type of employee represented by the Board-certified union. The Board also placed emphasis on the substantial authority vested in each local facility, the different working conditions and different wages for work performed under the same classifications, and the complete absence of a prior bargaining history on a multi-plant basis.*fn6 It is also significant that in the case of the so-called "Eastern" plants, previously organized and not involved in this suit, the representation has always been on a single-plant basis.

Because section 9(c) vests the Board with discretion in its power to make certifications, we should not lightly overrule its decision; only when its determination is shown to be unreasonable and arbitrary should the reviewing court interfere. Westinghouse Elec. Corp. v. NLRB, 236 F.2d 939, 942 (3 Cir. 1956). "In performing its function . . . [pursuant to section 9(b)], the Board has wide discretion . . . The determination of the appropriate unit is a difficult and complex decision and may seriously affect not only the employer and the employees, but rival unions. . . ." NLRB v. Sun Drug Co., 359 F.2d 408, 412 (3 Cir. 1966).

We conclude that the Company has not met its burden. At best it has shown the possibility that another unit could be appropriate. This does not amount to a showing of an abuse of discretion.*fn7

Accordingly, the order of the Board will be enforced.

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