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917 F2d 1307 National Labor Relations Board v. Matheson Fast Freight Inc Rb

917 F.2d 1307

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

NATIONAL LABOR RELATIONS BOARD, Petitioner,
v.
MATHESON FAST FREIGHT, INC., a Wholly-Owned Subsidiary of
R.B. Matheson Postal Services, Inc., Respondent.

No. 89-70199.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 13, 1990.
Decided Nov. 7, 1990.

Before WALLACE, ALARCON and WIGGINS, Circuit Judges.

MEMORANDUM

1

The National Labor Relations Board (Board) petitions this court for enforcement of its order requiring Matheson Fast Freight, Inc. (Matheson) to bargain with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO, Local No. 287 (Union). The Board had jurisdiction over the unfair labor practice proceeding under section 10(a) of the National Labor Relations Act. 29 U.S.C. Sec. 160(a). We have jurisdiction under 29 U.S.C. Sec. 160(e). We enforce the Board's order.

2

Matheson operates an overnight freight delivery service out of seven shipping and receiving terminals, including one in San Jose, California. A majority of the drivers, dispatchers, and fuelers at the San Jose terminal voted to certify the Union as their bargaining representative. Since that time, Matheson has refused to bargain with the Union, claiming that the San Jose bargaining unit is inappropriate, and that the only appropriate bargaining unit is one which includes all seven of the company's terminals. At the unfair labor practice proceeding below, the Board rejected that claim.

3

The sole issue before us is whether the San Jose terminal comprises an appropriate bargaining unit. Our review of the Board's unit decision is "narrowly circumscribed." Spring City Knitting Co. v. NLRB, 647 F.2d 1011, 1013 (9th Cir.1981) (Spring City ). The Board has wide discretion in unit determinations, and "it is not the province of the courts to displace the Board's choice of a unit from among two or more appropriate bargaining units, even though the court might have made a different choice were the case here de novo." NLRB v. Lerner Stores Corp., 506 F.2d 706, 707 (9th Cir.1974) (Lerner Stores ). Within this framework, we review the record to determine whether the Board's unit determination is "arbitrary, capricious, or unsupported by the evidence." Spring City, 647 F.2d at 1016; 29 U.S.C. Sec. 160(e).

4

The Board has adopted a presumption that a single facility in a multi-facility operation is an appropriate bargaining unit. Lerner Stores, 506 F.2d at 707-08. In these cases, "the Board's determination that a [single] unit is appropriate will almost never be subject to challenge." NLRB v. Carson Cable T.V., 795 F.2d 879, 887 (9th Cir.1986) (Carson Cable ). However, the presumption may be rebutted by evidence establishing that the proposed unit "lacks meaningful identity" as a single unit. Lerner Stores, 506 F.2d at 708. In deciding whether the employer has shown that a single unit is inappropriate, the Board considers factors such as geographical proximity of the facilities, the amount of employee interchange, collective bargaining history, functional integration of the business, centralized control of management, similarity of working conditions, and local power to hire and fire. Spring City, 647 F.2d at 1014.

5

Applying this test, the Regional Director approved the San Jose bargaining unit because of the distance between Matheson's terminals, lack of employee interchange, supervisory authority of the San Jose manager, and lack of prior bargaining history. The Board agreed.

6

Matheson's terminals are located in San Jose, Redding, Santa Rosa, and Fresno, California, and Reno, Nevada. Thus, the San Jose terminal is as much as 200 miles away from other Matheson terminals. "Distance between the branches frustrates effective union activities, since employees would be greatly inconvenienced if not prohibited in attending union meetings hundreds of miles away." Alaska Statebank v. NLRB, 653 F.2d 1285, 1288 (9th Cir.1981) (Alaska Statebank ).

7

In addition, Matheson has virtually no employee interchange. Matheson's vice president testified that in the year prior to the hearing, there were no permanent transfers between terminals in any of the job classifications included in the unit determination. There was only one temporary transfer. We have previously stated that "[t]he frequency of employee interchange is a critical factor in determining whether employees who work in different plants share a 'community of interest' sufficient to justify their inclusion in a single bargaining unit." Spring City, 647 F.2d at 1015.

8

The Regional Director also found that Matheson's local managers "engage in actual and effective day-to-day supervision." Although Matheson contests this finding, the record shows that the San Jose manager screens applications, recommends hires, evaluates employee performance, disciplines, and recommends employee discharge. In egregious circumstances, the terminal manager may discharge employees without prior approval. In addition, the terminal manager assigns employees to places on the work schedule. Because hours of work are a function of the routes driven, by assigning pick-up and delivery drivers to routes, the terminal manager has some influence over overtime assignments. Finally, the local manager schedules time off and vacations. Given this evidence of managerial autonomy, we do not agree with Matheson that the Regional Director's decision is completely discredited because the Director mistakenly concluded that terminal managers have authority to set line routes, and assign line drivers to routes. Rather, the record as a whole supports the determination that "local managers are not totally bereft of discretion in personal matters." Spring City, 647 F.2d at 1014.

9

Finally, there is no history of collective bargaining, and no union seeks to represent Matheson's employees on a multi-facility basis. This factor weighs in favor of the single unit determination. Id. at 1016.

10

Matheson argues the high degree of centralization requires a finding that a multi-facility bargaining unit is the only appropriate unit. However, we have previously stated that "tying a bargaining unit to the Company's administrative structure may be unduly prejudicial to the right of self-organization guaranteed by the Act." Lerner Stores, 506 F.2d at 708. Therefore, we have upheld a single facility bargaining units even in highly centralized companies. See Spring City, 647 F.2d at 1011 (despite centralization and identical wages, hours and working conditions in all units, geographic isolation of unit, low employee interchange, and degree of local managerial autonomy support single unit determination); Alaska Statebank, 653 F.2d at 1288 (same).

11

Matheson also argues that in accepting the Regional Director's conclusions, the Board failed to give adequate weight to the similarity of working conditions among all the Matheson terminals. In support of this argument, Matheson relies on our previous statement that "[t]he most reliable indicium of common interest among employees is similarity in their skills, duties and working conditions." Carson Cable, 795 F.2d at 885; Pacific Southwest Airlines v. NLRB, 587 F.2d 1032, 1042 (9th Cir.1978) (Pacific Southwest ). We agree that similarity of working conditions shows that employees share common interests. However, the Board is not bound to give this factor controlling weight when considering whether the San Jose unit is appropriate. Carson Cable and Pacific Southwest involved different challenges to a unit determination than the one we are concerned with here. In both cases the employer challenged a bargaining unit, claiming that it was too broad. Carson Cable, 795 F.2d at 884; Pacific Southwest, 587 F.2d at 1040. Therefore, we considered whether the working conditions were too dissimilar to justify including all the employees in the union's proposed bargaining unit. See Pacific Southwest, 587 F.2d at 1042. Here we are presented with the opposite situation. Although dissimilarity in employees' working conditions may make a unit clearly inappropriate, similarity of working conditions throughout the company does not require the Board to select a company-wide unit. See Spring City, 647 F.2d at 1014 (single unit appropriate despite identical working conditions at all facilities). As long as the employees at the San Jose unit have a community of interest, the Board's selection of this unit is not an abuse of discretion. See id. at 1014 (the Board has discretion to select a bargaining unit "so long as the unit chosen is within the range of units appropriate").

12

Under the circumstances of this case, we hold that the Board's unit determination was not "arbitrary, capricious, or unsupported by substantial evidence in the record as a whole." Spring City, 647 F.2d at 1016.

13

ORDER ENFORCED.

14

Note: This disposition is not appropriate for publication and may not be cited to or by the Courts of this Circuit except as provided by Ninth Circuit Rule 36-3.