United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 5, 2000 Decided October 27, 2000
No. 99-1529
Country Ford Trucks, Inc.,
Petitioner
v.
National Labor Relations Board,
Respondent
International Association of Machinists and
Aerospace Workers, AFL-CIO, Local 1528,
Machinists District Lodge No. 190,
Intervenor
On Petition for Review and Cross-Application for
Enforcement of an Order of the
National Labor Relations Board
Michael K. Perkins argued the cause for petitioner. With
him on the briefs was Ned A. Fine. Michael C. Towers
entered an appearance.
Steven B. Goldstein, Attorney, National Labor Relations
Board, argued the cause for respondent. With him on the
brief were Leonard R. Page, General Counsel, Linda Sher,
Associate General Counsel, Aileen A. Armstrong, Deputy
Associate General Counsel, and Fred L. Cornnell, Jr., Super-
visory Attorney.
David A. Rosenfeld was on the brief for intervenor Interna-
tional Association of Machinists and Aerospace Workers,
AFL-CIO, Local No. 1528, District Lodge No. 190.
Before: Ginsburg, Sentelle and Henderson, Circuit
Judges.
Opinion for the Court filed by Circuit Judge Sentelle.
Sentelle, Circuit Judge: Country Ford Trucks, Inc. peti-
tions for review of a ruling by the National Labor Relations
Board ("NLRB" or "the Board") that petitioner violated
section 8(a)(5) and (1) of the National Labor Relations Act
("NLRA"), 29 U.S.C. s 158(a)(5), (1) (1994), by refusing to
bargain with or provide requested information to a certified
union. Country Ford challenges primarily the Board's deter-
mination that a collective bargaining unit consisting of service
technicians and lube workers at one of its facilities was
appropriate under section 9 of the NLRA, 29 U.S.C. s 159
(1994). Because petitioner fails to demonstrate that NLRB
abused its discretion in making the unit determination, and
because there are no grounds upon which petitioner could
rightfully refuse to provide the union with the requested
information, we affirm the NLRB.
I. Background
A.
Country Ford Trucks, Inc. ("Country Ford") is a truck
dealership in Ceres, California that sells, modifies, and ser-
vices light-duty and heavy-duty trucks. Country Ford oper-
ates two facilities. The main facility, referred to as the "Old
Building," is the primary location for sales and service of
trucks. The second, known as the "Annex," is across the
street and operates under the name of Ceres Truck Equip-
ment. Country Ford opened the Annex approximately two
years ago because the Old Building was not large enough to
accommodate Country Ford's expanding business. Since that
time, the Annex has specialized in servicing, equipping, and
modifying trucks. The central issue in dispute is whether an
appropriate collective bargaining unit under the NLRA may
consist of selected employees with defined functions at one of
the two facilities.
At the main facility, the service department consists of
several service advisors who deal with customers seeking
truck service, approximately fourteen service technicians who
diagnose and repair trucks, and two lube workers who per-
form lubes, oil and filter changes, and the like, as well as
detailers, shuttle drivers, a booker, cashier, and janitor. The
parts department consists of approximately thirteen employ-
ees who service retail customers, obtain parts for repairs and
pick up, and deliver warehouse parts. At the main facility
employees work in one of two shifts: 7:00am to 4:00pm and
3:30pm to midnight.
The service technicians at the main facility work either day
or evening shifts. They are the employees primarily respon-
sible for the actual servicing and repair of customer vehicles.
Several are certified by Ford or Automotive Service Excel-
lence ("ASE"), and at least two are master mechanics. Ser-
vice technicians are paid an hourly wage, receive commissions
based upon their efficiency and can receive "upsell commis-
sions" for additional work authorized by a customer that was
recommended by a technician. Unlike other workers at the
main facility, service technicians are required to provide their
own tools, which can be worth between $750 and $30,000.
The technicians wear blue uniforms with a red stripe and
Ford logo. The company holds regular meetings for service
technicians at 3:30pm.
The lube workers also work either day or evening shifts.
The lube workers work alongside the service technicians and
are primarily responsible for oil and filter changes, lubes, and
basic service, such as installing truck hitches. The lube
workers are not certified, and the company does not offer any
sort of apprenticeship program. Nonetheless, lube workers
occasionally assist the service technicians with repairs, and
will help align transmissions or replace clutches. Lube work-
ers are paid hourly. One lube worker owns his own tools, the
other does not. The lube workers and the service technicians
report to the same supervisor.
At the Annex there are several installer/fabricators, a parts
employee, and an estimator. The installer/fabricators are
technically part of Country Ford's service department. The
Annex employees are primarily responsible for installing cus-
tom beds and other features on trucks sold by Country Ford
and those brought in for service or other work. Sometimes
work will be performed on the same truck at both locations,
as when modifications are made to trucks bought at the main
location-and some of the work performed at the Annex, such
as air conditioner and hitch installation, and transmission and
brake work is also performed at the main facility.
Installer/fabricators employed at the Annex must be able to
weld and are administered a welding test prior to employ-
ment. Like the service technicians, the installer/fabricators
are required to provide their own tools. There is only one
shift at the Annex, however, and Annex workers have a
separate supervisor than the service department employees.
Annex employees have a different uniform and are paid an
hourly wage without any commission or bonuses.
Country Ford employs one human resources manager for
both facilities. Country Ford's Parts and Service Director
also interviews all applicants for either facility. Employees at
both facilities are on the same payroll and have the same
vacation and benefit policies, as well as use the same break
room (though there is an additional break room in the An-
nex). Employees are rarely transferred from one facility to
the other. All Country Ford employees attend occasional
safety meetings and company functions.
B.
On April 27, 1999, Machinists District Lodge No. 190, Local
1528 of the International Association of Machinists and Aero-
space Workers ("the Union") filed an election petition with
the NLRB Regional Director. The Union sought to repre-
sent a unit of employees at Country Ford Trucks consisting
of "All Journeyman and Apprentice Technicians and Lubrica-
tors." After conducting a hearing, the NLRB's Regional
Director for Region 32 accepted the Union's petition and, on
June 16, 1999, directed an election of:
All full-time and regular part-time service technicians
and lubricators employed by [Country Ford Trucks] at
its Ceres, California location excluding all other employ-
ees, office clerical employees, guards, and supervisors as
defined in the Act.
The Regional Director found that 16 employees at Country
Ford Trucks met this definition. Country Ford filed a Re-
quest for Review with the NLRB, which was denied. One
Board member, Peter Hurtgen, noted that the Regional
Director's conclusion may be in tension with prior NLRB
precedent, but nonetheless concurred because Country Ford
failed to contest the Regional Director's findings.
An election was held on July 13, 1999. The Union won by a
vote of 9 to 7 and was certified on July 29. Upon certifica-
tion, the Union requested collective bargaining with Country
Ford and submitted a request for information "for the pur-
poses of bargaining." Among other things, the Union re-
quested a list of current employees, with their date of hire,
job classification and pay rate, details on Country Ford's
benefit plans and employment policies, and shift schedules.
Country Ford responded with a letter refusing to bargain or
supply the requested information on the grounds that the
company would be challenging the unit determination in
federal court.
On September 1, 1999, the Union filed a complaint alleging
that petitioner's refusal to bargain and to supply the request-
ed information were unfair labor practices. Country Ford
acknowledged its refusal to bargain and maintained that the
information request should not be dealt with until the validity
of the bargaining unit was determined. Country Ford fur-
ther complained that the Union failed to explain the request-
ed information's relevance to its representation of the bar-
gaining unit and that the request was overbroad in that it was
not limited to unit employees. On September 28, the Union
wrote Country Ford's counsel explaining that its request
"applie[d] to bargaining unit employees." While the Union
originally requested information covering the prior three
years, the September 28 letter stated the Union was willing
to limit its request to one-year's worth of information.
On November 30, 1999 the NLRB issued a summary
judgment on behalf of the Union. See 330 N.L.R.B. No. 42
(1999). The Board found, as a matter of law, that Country
Ford's refusal to bargain with and provide requested informa-
tion to the Union violated section 8(a)(5) and (1) of the
NLRA. Country Ford petitioned this Court for review, and
the Board cross-petitioned for enforcement.
II. Discussion
A. The Unit Determination
The National Labor Relations Act delegates to the National
Labor Relations Board the power to determine what consti-
tutes an "appropriate" employee unit for collective bargaining
purposes. Under section 9(a) of the Act, union elections are
held by "a unit appropriate for such purposes." 29 U.S.C.
s 159(a). Section 9(b) provides that "[t]he Board shall decide
in each case whether, in order to assure to employees the
fullest freedom in exercising the[ir] rights ... the unit appro-
priate for the purposes of collective bargaining shall be the
employer unit, craft unit, plant unit, or subdivision thereof."
29 U.S.C. s 159(b). Once a unit is selected, a majority vote
of the employees in that unit can designate a union as the
exclusive bargaining representative for all employees within
the unit. See 29 U.S.C. s 159(a).
This court will uphold an NLRB bargaining unit determi-
nation unless it is arbitrary or not supported by substantial
evidence in the record. See Cleveland Constr., Inc. v. NLRB,
44 F.3d 1010, 1014 (D.C. Cir. 1995). In reviewing the record,
"[w]e owe substantial deference to inferences drawn from the
facts" as well as to "the reasoned exercise of [the Board's]
expert judgment." Avecor, Inc. v. NLRB, 931 F.2d 924, 928
(D.C. Cir. 1991) (internal quotes omitted). Determining what
constitutes an appropriate unit "involves of necessity a large
measure of informed discretion, and the decision of the
Board, if not final, is rarely to be disturbed." Packard Motor
Car Co. v. NLRB, 330 U.S. 485, 491 (1947). "The Board is
entitled to deference on its selection of an appropriate unit."
Cleveland Constr., 44 F.3d at 1014.
Petitioner's primary claim is that the Board erred in its
unit determination because other potential units, such as a
pure "craft" unit of service technicians or a broader unit
encompassing all parts and service department employees at
both facilities, would have been more appropriate. However,
"the existence of alternative units which are 'appropriate' will
not alone warrant reversal if the Board has chosen some
other unit which is also appropriate." Local 1325, Retail
Clerks Int'l Ass'n v. NLRB, 414 F.2d 1194, 1202 (D.C. Cir.
1969). It is well established that "[m]ore than one appropri-
ate bargaining unit logically can be defined in any particular
factual setting." Local 627, Int'l Union of Operating Eng'rs
v. NLRB, 595 F.2d 844, 848 (D.C. Cir. 1979). The NLRA
does not establish an "absolute rule of law" as to what
constitutes an appropriate bargaining unit. Packard Motor
Car, 330 U.S. at 491. Rather, it delegates to the Board the
responsibility to make a reasonable determination supported
by its own precedent and evidence in the record. That this
Court, or other reasonable people, may prefer a bargaining
unit with different contours is immaterial as "a reviewing
court may not substitute its own judgment for a rationally
supported position adopted by the Board." Local 627, 595
F.2d at 848. Only those unit determinations that are truly
inappropriate will be struck down.
Petitioner argues that the NLRB's Regional Director erred
by combining service technicians and lube workers into a
single "craft" unit. Petitioner notes the Board has approved
units consisting of craft technicians and their helpers, train-
ees, or apprentices. In such cases a single craft unit is
appropriate because the helpers, trainees, or apprentices
"interface" with the technicians and may themselves receive
training to become skilled craft technicians over time. See,
e.g., Fletcher Jones Chevrolet, 300 N.L.R.B. 875, 876 (1990).
The lube workers at Country Ford, on the other hand, have
limited responsibilities and do not receive technician training.
While these are reasonable arguments for excluding the lube
workers from a bargaining unit of service technicians, there is
no binding precedent from this Court or the NLRB itself that
dictates such a conclusion.
In deciding that the lube workers were "akin" to the sorts
of "helpers or trainees" included in craft units in prior cases,
the Board's Regional Director noted that the lube workers,
unlike other parts and service employees in the main facility,
"engaged in mechanical work" alongside the service techni-
cians. This finding is supported by substantial evidence in
the record. For example, while Country Ford claims that
lube workers only perform lube jobs, oil and filter changes,
and the like, there is testimony in the record indicating that
lube workers also install hitches and assist technicians with
other repairs. There is also testimony in the record indicat-
ing that whatever assistance or interaction the service techni-
cians have with other employees, such as the service advisors,
the lube workers are the only employees in the service
department that provide hands-on, manual assistance with
repairs and service. Petitioner is unable to identify any
evidence in the record demonstrating that other workers
perform equivalent assistance to the service technicians.
The Regional Director's unit determination was also consis-
tent with prior NLRB precedent in which lube workers or
other helpers were included in a bargaining unit along with
skilled technicians. In Fletcher Jones Chevrolet, for example,
the NLRB included lube workers (there labeled "quick ser-
vice technicians") in a craft unit of service technicians because
they performed simple repairs and worked closely with the
other technicians in the unit. 300 N.L.R.B. at 876. Similar-
ly, in Dodge City of Wauwatosa, Inc., the Board recognized a
unit of auto mechanics, including technicians that specialized
in oil and lube work, as appropriate under the NLRA. 282
N.L.R.B. 459-60 (1986).
Petitioner cites language in Worthington Chevrolet, Inc.,
indicating that a broader bargaining unit would be more
appropriate. 271 N.L.R.B. 365, 366 (1984) ("Where as here
all employees in the service and parts department of an
automobile sales and service establishment perform functions
related to the service and repair of automobiles, the Board
has long held that a unit of all employees in the service
department is appropriate."). However, the Board has ex-
plicitly disavowed such statements as "overbroad and not
entirely accurate," Dodge City of Wauwatosa, 282 N.L.R.B. at
460 n.6. In Dodge City, the Board distinguished between
cases in which "all employees" in the service and parts
department perform similar functions and those in which the
mechanics form a "distinct and homogenous group." Id. at
460.
NLRB concedes that there are other cases in which it
found a broader unit of service department employees to
constitute an appropriate unit. Yet this fact does not compel
a different result, as there is no need to harmonize all NLRB
decisions into a "uniform pattern." NLRB v. DMR Corp.,
795 F.2d 472, 475 (5th Cir. 1986) (internal quotes omitted).
At bottom, the cases cited by the Company do not "form
precedent so inconsistent with the Board's decision as to
mandate reversal." Local 627, 595 F.2d at 850.
While the company contends that the unit should include all
other parts and service employees, including those at the
Annex, it offers no convincing reason why the Board was
required to reach that conclusion under the law or prece-
dents. The workers at the Annex perform different functions
than the technicians and lube workers and are required to
have different skills. They also do not share work hours (i.e.,
they lack a night shift) or compensation (i.e., they do not
receive any commissions). Other factors, such as those con-
sidered in Mallinckrodt Chem. Works, 162 N.L.R.B. 387
(1966), do not mandate a different result. There is no "hard
and fast definition or an inclusive or exclusive listing" of the
factors to consider. Id. at 398. Rather, unit determinations
must be made only after "weighing ... all relevant factors on
a case-by-case basis." Id. Based upon the record of this
case, consideration of all relevant factors reinforces our judg-
ment that the NLRB's Regional Director reached a reason-
able conclusion.
Petitioner also charges that the Regional Director's deci-
sion was too deferential to the Union's proposed unit determi-
nation. Even if proven, this charge would be irrelevant. As
the Supreme Court made clear in NLRB v. Metropolitan Life
Insurance Co., "the language and legislative history of
s 9(c)(5) demonstrate that the provision was not intended to
prohibit the Board from considering the extent of organiza-
tion as one factor, though not the controlling factor, in its
union determination." 380 U.S. 438, 441-42 (1965) (footnotes
omitted). Indeed, the NLRB may simply look at the Union's
proposed unit and, if it is an appropriate unit, accept that unit
determination without any further inquiry. See Cleveland
Constr., 44 F.3d at 1013.
NLRB is expected to make unit determinations on a case-
by-case basis. The Board's unit determinations are upheld so
long as the identified unit is appropriate and the decision is
consistent with precedent and is supported by substantial
evidence. The Board's unit determination meets this defer-
ential test. That other potential unit determinations appear
equally or more appropriate is insufficient to justify reversal.
B. The Information Request
Petitioner further challenges the Board's determination
that it committed an unfair labor practice by failing to
provide the Union with the information it requested. The
Union's request, petitioner charges, was overbroad and bur-
densome, and failed to indicate the relevance of the informa-
tion sought. Petitioner further charges that the Union made
its request in bad faith. These factors, petitioner maintains,
justified a full hearing prior to the Board's determination that
it committed an unfair labor practice. None of these claims
has any merit.
The law is clear. An employees' bargaining representative
is entitled to the sort of information requested by the Union
in this case. Country Ford's failure to provide such informa-
tion is a violation of the NLRA. See Detroit Edison Co. v.
NLRB, 440 U.S. 301, 303 (1979) ("The duty to bargain
collectively, imposed upon an employer by s 8 (a)(5) of the
National Labor Relations Act includes a duty to provide
relevant information needed by a labor union for the proper
performance of its duties as the employees' bargaining repre-
sentative.") (footnote omitted). If the NLRB Regional Di-
rector's initial unit determination is upheld, there is no basis
for an employer to refuse a certified union's request for
presumptively relevant information about represented em-
ployees.
Employees' certified representative is entitled to informa-
tion that "will enable[ ] the union to negotiate effectively and
to perform properly its other duties as bargaining representa-
tive." Oil, Chemical & Atomic Workers Local Union No.
6-418 v. NLRB, 711 F.2d 348, 358 (D.C. Cir. 1983) (internal
quotes omitted). The information requested must be relevant
to the union's representation, but the threshold for relevance
is low. See NLRB v. Acme Industrial Co., 385 U.S. 432, 437-
38 (1967). Information related to the wages, benefits, hours,
working conditions, etc. of represented employees is pre-
sumptively relevant to collective bargaining. See Oil, Chemi-
cal & Atomic Workers, 711 F.2d at 359.
The Union sought such information stating that it was
needed "for bargaining purposes," and Country Ford deliber-
ately refused. Thus, NLRB properly concluded that the
Company committed an unfair labor practice. Because the
information requested was "presumptively relevant" for bar-
gaining purposes, no further explanation was required. As
this Court noted, "the rationale underlying the presumptive
relevance rule [is to] avoid[ ] ... 'potentially endless bicker-
ing ... over the specific relevance of information, the very
nature of which ought to render its relevance obvious.' " Id.
at 359 n.26 (quoting Emeryville Research Ctr., Shell Dev. Co.
v. NLRB, 441 F.2d 880, 887 (9th Cir. 1971)). Vague allega-
tions of a union's bad faith do not change the result. Under
NLRB precedent, the "good faith" requirement is met so long
as "at least one reason for the demand can be justified."
E.g., Island Creek Coal Co., 292 N.L.R.B. 480, 489 (1989)
(citing Hawkins Constr. Co., 285 N.L.R.B. 1313 (1987), enf.
denied on other grounds, 837 F.2d 1224 (8th Cir. 1988)),
enforced, 899 F.2d 1222 (6th Cir. 1990) (unpublished table
decision).
Even accepting, for the sake of argument, that the Union's
request was overbroad, this does not excuse the Company
from providing the requested information to which the Union
had an undisputed right. See, e.g., Oil, Chemical & Atomic
Workers, 711 F.2d at 361 (citing Fawcett Printing Corp., 201
N.L.R.B. 964, 975 (1973)). That petitioner knew that it could
satisfy the Union's information request by only providing
information about bargaining unit employees is beyond dis-
pute. After Country Ford initially refused to provide the
requested information, Union counsel clarified that its request
applied only to information about represented employees.
Yet petitioner still refused to provide any information. The
alleged overbreadth of the Union's information request is also
irrelevant because the Board only found that petitioner en-
gaged in an unfair labor practice by failing to provide infor-
mation about unit employees.
III. Conclusion
For the foregoing reasons, we deny the petition for review
on both grounds and grant NLRB's application for enforce-
ment of the Board's order of November 30, 1999 finding that
Country Ford Truck, Inc. committed an unfair labor practice
by refusing to bargain with, and provide requested informa-
tion to, a certified collective bargaining representative in
violation of the NLRA.
Country Ford Trucks, Inc. v. National Labor Relations Board
Court: Court of Appeals for the D.C. Circuit
Date filed: 2000-10-27
Citations: 229 F.3d 1184, 343 U.S. App. D.C. 336
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