Petition to enforce an order of the National Labor Relations Board, 235 N.L.R.B. No. 28, finding that respondent had violated §§ 8(a)(5) and (1) of the National Labor Relations Act by refusing to bargain with a certified union. Enforcement denied.
Before Lumbard, Moore and Gurfein, Circuit Judges.
The petitioner, the National Labor Relations Board (the Board), seeks enforcement, pursuant to § 10(e) of the National Labor Relations Act (NLRA), 29 U.S.C. § 160(e) (1976), of its order dated March 17, 1978 and reported at 235 N.L.R.B. No. 28. The Board ordered the respondent, Meyer Label Company, Inc. (the Company) to cease and desist from refusing to bargain with Local One, Amalgamated Lithographers of America, affiliated with International Typographical Union, AFL-CIO (the Union), in violation of §§ 8(a)(5) and (1) of the NLRA, 29 U.S.C. §§ 158(a)(5) and (1) (1976).
The sole question in this enforcement proceeding is the propriety of the Board's decision to grant the Union's petition seeking a separate bargaining unit composed only of the Company's lithographic production employees. We hold, based on examination and consideration of the record as a whole, that the Board's order is not supported by substantial evidence and is arbitrary and unreasonable. We therefore deny enforcement of the Board's order.
The Company is a New York corporation engaged in specialty printing for customers throughout the world. Its principal place of business and its offices are located on various floors of three contiguous buildings on East 16th Street in New York City. The Company employs approximately thirty persons and is engaged primarily in printing labels and patches on fabrics, using letter presses, offset presses, and cutting and dyeing machines. Four employees in the art department (located on the seventh floor of 5 East 16th Street) perform the preparatory work, such as the designing of labels, filming, lithographic stripping, platemaking, and various other tasks preparing the product for either the offset or letter press. Fabric for the labels is cut by machines operated by about seven employees on the third and fourth floors of all three buildings. The cut fabric and lithographic plates are then sent to the printing area (located on the third floor of 5 and 7 East 16th Street), which contains seven or eight offset presses, seven letter presses, and seven cutting machines. Seventeen employees work in this area. After the labels have been printed on the fabric, the materials are sent to the shipping department (located on the fourth floor) for handling and packing.
The Union sought to certify as a collective bargaining unit employees performing duties primarily related to the offset (lithographic) presses. To this end, the Union filed a petition for an election of a unit of the Company's lithographic production employees. A full hearing on the petition was held before the Acting Regional Director of the NLRB, Region 2, to whom the Board had assigned the case for a hearing. On June 6, 1977, the Acting Regional Director dismissed the Union's petition for certification.
The Acting Regional Director found, Inter alia, that the Company's "production process is highly integrated"; that there is "some interchange and transfer among the employees"; that "all employees share the same facilities and are in constant contact with each other"; that "wage ranges are similar for all employees and hours, vacations and holidays are the same"; and finally, that there is "no separate supervision for the employees (the Union) seeks to represent". He therefore concluded that the requested unit was inappropriate for collective bargaining purposes.
The Board, after considering the entire record in the case, including a brief on review filed by the Company, made its own findings and reversed the decision of the Acting Regional Director. It found a bargaining unit consisting of eight of the Company's approximately thirty employees. Of the eight, six were employed as lithographic press operators in the seventeen-person printing operation and two worked in the four-person art department and were engaged in lithographic camera work and platemaking. The Board directed an election and the Union won. It was then certified as the exclusive bargaining representative of the eight lithographic production employees.
The Company refused to bargain with the Union, however, claiming that the Board's unit determination was improper. The Union filed a charge alleging that the Company violated §§ 8(a)(5) and (1) of the NLRA by refusing to bargain with the Union. The Board found the Company in violation of the NLRA and issued an order requiring the Company to cease and desist from its refusal to bargain and from interfering with employees' exercise of their Section 7 rights. Affirmatively, the order required the Company to bargain with the Union upon request, to embody any understanding reached in a signed agreement, and to post the appropriate notice. We must now consider whether the Board's order ought to be enforced.
Our authority to review Board findings is narrow. Niagara University v. NLRB, 558 F.2d 1116, 1118 (2d Cir. 1977). In determining an appropriate bargaining unit, the Board has wide discretion and its decision will rarely be disturbed. Packard Motor Car Co. v. NLRB, 330 U.S. 485, 491, 67 S. Ct. 789, 91 L. Ed. 1040 (1947). However, where the Board's order is not supported by substantial evidence in the record as a whole or is either arbitrary, capricious, or unreasonable, we will deny enforcement. Niagara University v. NLRB, supra, 558 F.2d at 1118. In addition, we recently held, in Szabo Food Services, Inc. v. NLRB, 550 F.2d 705, 709 (2d Cir. 1976), that if the "factors identified and relied on by the Board do not amount to the "substantial justification' required to "fractionate a multi-unit operation whose labor policy is centrally directed and administered,' " enforcement will be denied. (citations omitted).
We hold that the Board's order in the instant case should not be enforced. Viewing the record as a whole, we find no substantial evidence to support the conclusions reached by the Board. Moreover, the Board's order was arbitrary because it departed from Board precedents, the facts of which are indistinguishable from the facts present here. Amalgamated Clothing Workers of America v. NLRB, 491 F.2d 595, 598-99 (5th Cir. 1974). See Continental Can Co., 171 N.L.R.B. 798 (1968); Weyerhaeuser Co., 142 N.L.R.B. 1169 (1963); Pacific Press, Inc., 66 N.L.R.B. 458 (1946).
In Continental Can, supra, the Board determined that a separate unit composed of the company's lithographic production employees was inappropriate for collective bargaining purposes. In reaching that conclusion, the Board identified and relied on the following factors: (1) the lithographers were not separately supervised but instead worked under the same general and immediate supervision with all the other production employees; (2) the offset pressmen spent a substantial amount of time performing other nonprinting duties and directing operation of machinery other than lithographic equipment; (3) the lithographers did not work in a separate location, but, on the ...