The May Department Stores Company v. National Labor Relations Board

454 F.2d 148 79 L.R.R.M. (BNA) 2433 , 67 Lab.Cas. P 12,388 The MAY DEPARTMENT STORES COMPANY, Plaintiff-Appellant, v. NATIONAL LABOR RELATIONS BOARD, Defendant-Appellee. No. 26790. United States Court of Appeals, Ninth Circuit. Jan. 20, 1972. Rehearing Denied March 20, 1972. David A. Maddux, Los Angeles, Cal. (argued), George R. Richter, Jr., of Sheppard, Mullin, Richter & Hampton, Los Angeles, Cal., for appellant. William F. Wachter (argued), Daniel M. Katz, Peter G. Nash, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Washington, D. C., Ralph E. Kennedy, Reg. Director, NLRB; Brundage, Neyhart, Miller, Ross & Reich, Los Angeles, Cal., for appellee. Harry L. Browne, Howard F. Sachs, Spencer, Fane, Britt & Browne, American Retail Federation, Kansas City, Mo., amicus curiae. Before WRIGHT and TRASK, Circuit Judges, and BYRNE, District Judge. * EUGENE A. WRIGHT, Circuit Judge: 1 This case is before us on petition to review and cross-application for enforcement of an order of the National Labor Relations Board. This court has jurisdiction under Section 10(e) and (f) of the National Labor Relations Act, 29 U.S.C. Sec.…

This case is before us on petition to review and cross-application for enforcement of an order of the National Labor Relations Board. This court has jurisdiction under Section 10(e) and (f) of the National Labor Relations Act, 29 U. S.C. § 151, et seq.

The board ordered an election among the employees at a service facility owned by the May Company in Los Angeles. At issue is the appropriateness of the bargaining unit certified by the board. The board’s order appears at 186 NLRB No. 17 (1970).

Because the board gave controlling weight in determining the bargaining unit to the extent of unionization, in violation of Section 9(c) (5) of the Act; and because the board failed to distinguish its decision in this case from its many inconsistent decisions in cases involving substantially identical fact situations, we grant the petition to set aside the order and deny the cross-application for enforcement.

May Department Stores (Mays) operates a chain of department stores in Southern California — one major store in downtown Los Angeles, seventeen branch stores in that part of the state, and a service facility three miles from the downtown store.

The service facility is the subject of…

(dissenting):

I respectfully dissent.

Contrary to my Brothers, I do not deem it “incumbent” upon the Board to explain its approval of bargaining units different in scope at the same warehouse facility. As noted by the Fourth Circuit, “In many eases there is no ‘right’ unit. . . . ” NLRB v. Quaker City Life Insurance Co., 319 F. 2d 690, 693 (4th Cir. 1963). Under such circumstances, the Board is not required by the Act “to choose the most appropriate unit, but only to choose an appropriate unit, within the range of several appropriate units in a given factual situation.” State Farm Mutual Automobile Insurance Co. v. NLRB, 411 F. 2d 356, 358 (7th Cir. 1969), cert, denied, 396 U.S. 832 , 90 S.Ct. 87 , 24 L.Ed.2d 83 (1969). Accord, Gallenkamp Stores Co. v. NLRB, 402 F.2d 525 (9th Cir. 1968); NLRB v. Deutsch Co., 265 F.2d 473 (9th Cir. 1959), cert, denied, 361 U.S. 963 , 80 S.Ct. 592 , 4 L.Ed.2d 544 (1960). Here the Board was confronted by two unions, on separate occasions, seeking to represent different segments of the working population at May’s warehouse facility. Local 986 petitioned for a comprehensive unit, thus leaving unresolved, until the petition two years later by Local…