Stеphen M. GLASSER, Regional Director of the Seventh Region of the National Relations Board, for and on behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner-Appellant, v. ADT SECURITY SERVICES, INC., Respondent-Appellee.
No. 09-1829.
United States Court of Appeals, Sixth Circuit.
June 2, 2010.
483
I disagree with the majority that the new rule of Blakely runs in favor of Henley only after the date on which the Ohio courts recognized and applied it in their sentencing scheme rаther than after Blakely itself was decided. Henley‘s counsel had a clear duty to raise Blakely at sentencing and was ineffective for failing to do so. We should not need to be reminded of the elementary principle that generally we may not “require attorneys to foresee changes in the law [but] once a change—particularly an important and relevant change—does come about, we do expect counsel to be aware of it.” Ballard v. United States, 400 F.3d 404, 408 (6th Cir. 2005) (holding that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), must be immediately applied and the failure of counsel to raise the issue on appeal was ineffective assistance of counsel). Blakely was an important change for it ameliorates unnecessarily long sentences based on an authoritаrian judge‘s sentencing enhancement policies. It gives the defendant the right to a jury trial on the elements of the crime that produce his sentence. Our court should not resist applying very clear law in an unpublished opinion based on another unpublished opinion that was simply wrongly decided.
HELENE N. WHITE, Circuit Judge.
Stephen Glasser, Regional Director of the Seventh Region оf the National Relations Board (Director), appeals from the judgment of the district court denying his petition for a temporary injunction under
I.
The underlying facts are not in dispute. ADT sells, installs and maintains alarm and security systems for residential and business customers. It has offices throughout the United States аnd Canada, and employs personnel to install, maintain and repair its alarm and security systems (service techs). Service techs are supervised from regional offices but do not often report to those offices. They drive company vans, which they park at home. They receive assignments from ADT‘s national dispatch center in Rochester, New York, and leave from and return to their homes. To minimize travel time, service techs work almost entirely within the geographic region in which they live, although they occasionally work in neighboring areas on an as-needed basis. All service techs have roughly the same basic skills and training, and can perform their functions interchangeably.
ADT has a practice of entering into collective bargaining agreements on an office-by-office basis. The present dispute arises from the consolidation of its Kalamazoo and Grand Rapids, Michigan offices on June 2, 2008. At the time of the consolidation, Local 131, International Brotherhood of Electrical Workers, AFL-CIO (Union) was the designated exclusive collective-bargaining representative of the Kalmazoo service techs, as it had been for the previous twenty-nine years. The Kalmazoo unit consisted of fourteen service techs. The Grand Rapids office had twenty-seven service techs, who were not organized.
ADT announced the consolidation to Kalamazoo service techs on Mаy 19, 2008. On the same day, ADT sent a letter to the Union stating that it was withdrawing recognition of Local 131 as bargaining agent for the Kalamazoo unit as of June 2, because the Union would not have the support of the majority of the service techs supervised out of the consolidated Grand Rapids office. The Union filed an unfair labor practice charge with the Board, challenging the withdrawal of recognition. After reviewing the charge, the Director issued an unfair labor practice complaint alleging that ADT had violated
On December 30, 2008, the administrative law judge (ALJ) presiding over the administrative рroceedings found that ADT had committed the unfair labor practices alleged. The ALJ determined that the Kalamazoo unit retained a separate identity and remained an appropriate bargaining unit due to its long bargaining history and the lack of change in the service techs’ day-to-day functions. The ALJ issued a proposed order to remedy the unfair practices, which remains pending before the Board.
The Director filed a petition with the district court on March 12, 2009, seeking a temporary injunction under
II.
A.
The purpose of a
Sixth Circuit precedent establishes that before issuing a
Ahearn establishes as well that the director‘s obligation to show reasonable cause is a “relatively insubstantial” burden that “requires only that the Board‘s legal theory underlying the allеgations of unfair labor practices be ‘substantial and not frivolous’ and that the facts of the case be consistent with the Board‘s legal theory.” Ahearn, 351 F.3d at 237 (citations omitted). The “just and proper” inquiry “turns primarily on whether a temporary injunction is necessary to protect the Board‘s remedial powers under the [NLRA].” Id. at 239 (quoting Schaub v. Detroit Newspaper Agency, 154 F.3d 276, 279 (6th Cir. 1998)).
A district court‘s determination whether the Director‘s theory is substantial and not frivolous is a question of law, which this court reviews de novo; its determination whether the facts are consistent with the director‘s legal theory is reviewed for clear error. Nixon Detroit Diesel, 859 F.2d at 29. In making its factual determination, “the district judge need not resolve conflicting evidence between the parties.” W. Mich. Plumbing & Heating, 250 F.3d at 969. The Eleventh Circuit, employing the same reasonаble cause/just and proper analysis, explained that to satisfy its burden on the factual component of reasonable cause, “the Board must present enough evidence in support of its coherent legal theory to permit a rational factfinder, considering the evidence in the light most favorable to the Board, to rule in favor of thе Board.” Arlook v. S. Lichtenberg & Co., Inc. 952 F.2d 367, 371 (11th Cir. 1992). This standard is consistent with our precedent. See, e.g., W. Mich. Plumbing & Heating, 250 F.3d at 969 (stating that where reasonable cause is found by the district court, “so long as facts exist which could support the Board‘s theory of liability, the district court‘s [factual] findings cannot be clearly erroneous.“).
In the instant case, the district court concluded that the Director had not shown reasonablе cause to believe that an unfair labor practice had occurred; the court did not reach the issue whether an injunction would be just and proper.
B.
In determining whether a unit has retained a separate identity, the Board typically looks at a set of factors indicating a “community of interest” among the workers. As this court noted in Armco, the factors include:
(1) similarity in skills, interests, duties, and working conditions; (2) functional integration of the plant, including interchange and contact among the employees; (3) the employer‘s organizational and supervisory structure; (4) the bargaining history; and, (5) the extent of union organization among the employees.
The Armco court also observed that where a unit has a lengthy bargaining history, “[t]his fact alone suggests the appropriateness оf a separate bargaining unit.” Id. Similarly, the Board has found that “‘compelling circumstances’ are required to overcome the significance of bargaining history.” Fisher Broadcasting, Inc., 324 N.L.R.B. 256, 262 (1997) (quoting Marion Power Shovel Co., 230 N.L.R.B. 576, 579 (1977)).
C.
1.
In the instant case, the Director‘s legal theory in support of his
2.
The district court rejected the contention that bargaining history should be accorded significant weight, and instead performed its own analysis of the Armco factors. It found that factors one through three favored a single, consolidated unit, while factors four and five were neutral. The court proceeded to reject several other arguments made by the Director or contained in the ALJ‘s decision, before concluding that
neither the Regional Director nor the ALJ has considered the factors that even the Regional Director says must be considered. Instead, they have simply
found that there was a long bargaining history for service techs who used to report to Kalamazoo. In the Court‘s judgment, this is not a “substantial and not frivolous justification requiring the continued recognition of [the Union] in light of the remaining community of interest factors“.
III.
A.
The district court appears to have misconstrued the Director‘s legal theory. Although the Director does argue that the long bargaining history should be accorded significant weight, his legal theоry is not that this history makes consideration of other factors unnecessary. Rather, the Director asserts that this bargaining history is significant, and that other factors normally considered in evaluating community of interest are of less importance here because the unit experienced minimal change in the consolidation.3
As noted, bargaining history has been recognized as a strong indication of the appropriateness of a unit. Armco, 832 F.2d at 363. In addition to the language from Armco quoted above, the Director relies on decisions of the Board holding that where there has been a long bargaining history, compelling circumstances are required to overcome the significance of that history. Fisher Broadcasting, 324 N.L.R.B. 256, 262 (1997).4 In light of Armco and the Board‘s prior decisions, the Director‘s legal theory is substantial and not frivolous.
The Director‘s legal theory must also find support in the facts. Here, the district court did not determine whether the Director‘s legal theory was sufficiently supported by the facts, but instead undertook its own analysis of the merits of the underlying unfair labor practice charge by applying the Armco factors as the court deemed appropriate. The district court analyzed each of the five Armco factors based on its own conclusions regarding which facts are relevant and how the balancing test should be applied to the facts. In doing so, the district court substituted its own legal theory for the Director‘s and measured the sufficiency of the factual support using the wrong yardstick. Our precedents foreclose this searching inquiry at this stage of the judicial and administrative process. Nixon Detroit Diesel, 859 F.2d at 28.
Properly viewed, the Director‘s legal theory is supported by the facts. It is undisputed that the Union has a twenty-nine year history of collectively bargaining on behalf of the Kalamazoo unit. It is also undisputed there has been virtually no change in the work performed by the Kаlamazoo unit since the administrative consolidation. Although the Kalamazoo unit employees were consolidated under the management of ADT‘s Grand Rapids
We therefоre conclude that the Director met his “relatively insubstantial” burden to demonstrate reasonable cause.
B.
The district court did not reach the issue whether an injunction would be just and proper. Although this inquiry is ordinarily “committed to the discretion of the trial judge,” Calatrello, 55 F.3d at 214 (citing Gottfried, 818 F.2d at 493-94),5 the Director urges this court to consider the issue on appeal and grant the injunction. However, we see no reason the district court should not make this determination, and remand for the court to do so. We express no opinion regarding whether the issuance of an injunction is just and proper.
We REVERSE and REMAND for further proceedings consistent with this opinion.
UNITED STATES of America, Plaintiff-Appellee, v. Ivey J. MAYBOU, Defendant-Appellant.
No. 08-4732.
United States Court of Appeals, Sixth Circuit.
June 2, 2010.