396 F2d 866 National Labor Relations Board v. Cumberland Farms Inc

396 F.2d 866

NATIONAL LABOR RELATIONS BOARD, Petitioner,
v.
CUMBERLAND FARMS, INC., Respondent.

No. 6732.

United States Court of Appeals First Circuit.

June 5, 1968, Certiorari Denied Nov. 12, 1968, See 89 S.Ct.
294.

Warren M. Davison, Washington, D.C., with whom Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Leonard M. Wagman, were on the brief, for petitioner.

Owen P. Reid, Providence, R.I., with whom Robert J. McGarry and Graham, Reid, Ewing & Stapleton, Providence, R.I., were on the brief, for respondent.

Before ALDRICH, Chief Judge, and McENTEE and COFFIN, Circuit Judges.

PER CURIAM.

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1

This matter comes to us for enforcement of a Labor Board order following a supplemental decision after our remand, NLRB v. Cumberland Farms, Inc., 1 Cir., 1966, 370 F.2d 54. We have considered the Board's supplemental decision and order and cannot say that its position is unjustified. As we noted at the oral argument of this case, the criteria relied upon by the employer to separate the in-plant production employees from the various out-of-plant employees would, in turn, tend to require the latter to be themselves subdivided into more than one unit. Under the circumstances recited by the Board we are not prepared to overrule its selection of a single unit for the entire group. At the same time we are obliged to agree with the respondent that the Board's effort to distinguish the factual situation here from that in E. H. Koester Bakery Co., 136 N.L.R.B. 1006(1962) (where the Board refused to include truck drivers with the in-plant employees) is not very convincing. On balance, however, we are of the opinion that the Board has wide discretion in choosing among appropriate units and that minor factual differences may be sufficient to justify opposite results.

2

The order will be enforced.