National Labor Relations Board v. Pinkerton's, Inc.

Seventh Circuit

National Labor Relations Board v. Pinkerton's, Inc.

416 F.2d 627, 72 L.R.R.M. (BNA) 2155, 1969 U.S. App. LEXIS 10874

CourtCourt of Appeals for the Seventh Circuit

DecidedSeptember 9, 1969

Docket16775_1

StatusPublished

Cited by4 cases

This text of 416 F.2d 627 (National Labor Relations Board v. Pinkerton's, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

National Labor Relations Board v. Pinkerton's, Inc., 416 F.2d 627, 72 L.R.R.M. (BNA) 2155, 1969 U.S. App. LEXIS 10874 (7th Cir. 1969).

Pincite

Opinion

KERNER, Circuit Judge.

The National Labor Relations Board found Pinkerton’s, Inc. in violation of Section 8(a) (1) and (5) of the National Labor Relations Act for refusing to bargain with the Union certified by the Board. The Board petitioned this court for enforcement of its order.

The essential question before the court is whether the bargaining unit selected by the Board is an appropriate one. Section 9(b) of the Act provides that “The Board shall decide * * * in order to assure to employees the fullest freedom in exercising the rights guaranteed by this subchapter, the unit appropriate for the purposes of collective bargaining * * The Board has a wide latitude in the exercise of its discretion in this area and its determination of an appropriate unit must not be reversed merely because the court thinks that another unit is more appropriate. The Board’s obligation is to select an appropriate unit and not the most appropriate unit. State Farm Mutual Automobile Ins. Co. v. NLRB, 411 F.2d 356, 358 (7th Cir. 1969).

Pinkerton’s, Inc. is engaged in the business of providing protection and investigation services to industrial concerns in the United States. Pinkerton’s is incorporated under the laws of Delaware and is headquartered in New York City with regional and branch offices throughout the United States. One of its regional offices is located in Cleveland, Ohio. The Cleveland region has eight branches, one of which is in Indianapolis, 450 guards are assigned to 100 installations in the Indianapolis branch. There are three districts within the branch: one district includes the. area around Indianapolis while the other two comprise the area on either side of a line drawn north northwest through Indianapolis from the Ohio River on the south to a line through Fort Wayne and Warsaw, Indiana on the north. The Western District includes the border counties of Illinois.

The branch office in Indianapolis is the smallest administrative unit that the company maintains in the territory. All administrative functions are carried on in this office including determinations as to wages, hours, working assignments, working conditions and rules of conduct and the keeping of all employment records. The Indianapolis office is composed of a manager, assistant manager and three supervisors. One supervisor has jurisdiction over the Western District, another over the Eastern District and the third has undefined authority.

The International Union, United Plant Guard Workers of America, pursuant to Section 9(c) of the Act petitioned the *629 Board requesting an election for certification as the bargaining representative for the guards and guard sergeants employed by Pinkerton’s in Kokomo, Peru and Logansport, Indiana, all located in the Western District. Kokomo, Peru and Logansport form the following geographical triangle: Peru is about 22 miles from Kokomo, Logansport is about 25 miles from Kokomo and approximately 15 miles separate Peru and Logansport. (See Exhibit I.) There are thirty-five employees working at installations in the three cities. Kokomo has five installations and Logansport and Peru each have one.

Contact between the personnel in the Indianapolis branch office and the guards in Kokomo, Peru and Logansport is minimal. The manager of the branch visits the area semi-annually, the assistant manager visits quarterly, and the supervisor visits monthly. However, the guards in the area are supervised to some degree by Lieutenant Durbin.

Lieutenant Durbin is a guard at one of the installations in Kokomo but also acts as liaison between the guards in Kokomo, Peru and Logansport and the branch office. Besides performing his normal guard duties, Durbin acts as a personnel supervisor. He inspects plant installations and their guard personnel. Durbin also trains new employees and sends progress reports to Indianapolis. He has, in effect, ultimate hiring power since he can reject unqualified applicants but he cannot dismiss employees except in extreme cases such as drunkeness.

The Regional Director of the NLRB found that Pinkerton’s, Inc. tries to assign employees to facilities near their homes and not on the basis of branch seniority as claimed by respondent. Thirty-five guards work in Kokomo, Peru and Logansport and thirty-one of these are assigned to Kokomo and Peru. Of the thirty-one, eight Kokomo guards do not live in the same city in which they work. These eight live in the following cities outside Kokomo: Walton (14 miles), Sharpsville (8 miles), Russiaville (12 miles), Kempton (22 miles), Kirklin (35 miles), Tipton (20 miles), and Wabash (34 miles). (See Exhibit I.) Five of these eight guards live closer to another facility than to Kokomo.

The Regional Director also found a minimal amount of transfer outside the units found to be appropriate. 1 In the 16-month period prior to the filing of the Union’s petition, there were two permanent transfers: one out of Kokomo and one into Kokomo. However, there were 113 instances of temporary interchange: Peru has one installation and the two *630 guards working there also work part-time in Kokomo.

*629 Kokomo to Frankfort, Indiana (28 miles) —22 (one man two months)

Kokomo to Wabash, Ind. (34 miles) — 1

Wabash to Kokomo — 3

Kokomo to Marion, Ind. (30 miles) — 4

Kokomo to Indianapolis, Indiana (50 miles) —25 (five men over Memorial Day weekend)

Kokomo to Lafayette, Ind. (40 miles) — 4

Indianapolis to Kokomo — 4

Kokomo to Peru, Indiana (22 miles) —22

Peru to Kokomo — 23

(See Exhibit 1)

*630 The Regional Director on the basis of these facts concluded that the supervisory activities of Lieutenant Durbin were insufficient to justify Kokomo, Peru and Logansport as an appropriate unit. (See State Farm Mutual Automobile Ins. Co. v. NLRB, 411 F.2d 356 (7th Cir., 1969).) However, the Director held that Kokomo-Peru and Logansport were two geographical units because they were separate and independent and that they were inappropriate for a single three-city unit as desired by the Union. As to Kokomo and Peru, the Director held that since Peru was a part-time installation serviced by Kokomo employees, one unit for both cities would be appropriate. The Board denied a request to review the Regional Director’s decision. The Union withdrew its petition as to Logansport, but not as to Kokomo-Peru. The Union won the election at the Kokomo-Peru, unit but respondent refused to bargain claiming that the unit was inappropriate.

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