Hastings, Chief Judge, and Knoch and Fairchild, Circuit Judges.
The National Labor Relations Board has petitioned this court for enforcement of its order directing Krieger-Ragsdale & Company, Inc., of Evansville, Indiana, to cease and desist from refusing to bargain collectively with the International Brotherhood of Bookbinders, AFL-CIO, and with Local 73 L, Lithographers and Photoengravers International Union, AFL-CIO.*fn1 The decision and order of the Board, upholding the trial examiner's findings of 8(a)(5) and 8(a)(1) violations of the Labor Management Relations Act, 29 U.S.C.A. § 158(a)(5) and (1), is reported at 159 NLRB No. 53.
In May, 1965, the unions involved in this case petitioned the Board for certification as bargaining representatives of the company's employees in two different units, a lithographic unit and a bindery, shipping and receiving unit. A hearing was held, and testimony taken, with respect to the propriety of the suggested units.
Upon the record of the hearing, the Board's regional director found the two separate units appropriate for bargaining and directed that an election be held for the employees deemed eligible. A number of employees were not found eligible for either unit and did not participate in the election. The company filed a request for review with the Board, which the Board denied.
On September 2, 1965, a representation election was held. In the lithographic unit, the employees voted 5-4 in favor of the union; in the bindery unit, the vote was 9-4 in favor. Thereafter the unions were certified as bargaining representatives.
In October and November, the unions filed charges that the company had refused to bargain. Complaints issued, and in its answers the company admitted its refusal to bargain, but challenged the appropriateness of the units and the propriety of the certification of the unions.
The Board's general counsel moved for summary judgment, which was granted. As stated, the Board adopted the report of the trial examiner.
On this petition for enforcement, the company reasserts its challenge to the unit determinations.
The Board takes the position that it has discretion in unit determinations. The company, on the other hand, contends that Board unit determinations are subject to review under the substantial evidence rule. The difference between the opposing positions is not trivial, for the result on review may well turn out to be different under the two standards. Unfortunately, the case law, which derives from Packard Motor Car Co. v. National Labor Relations Board, 330 U.S. 485, 67 S. Ct. 789, 91 L. Ed. 1040 (1947), is not clear, for both standards are stated to apply generally, although it is not made explicit how each is to enter into consideration on review.
Section 9(b) of the Labor Management Relations Act, 29 U.S.C.A. § 159(b), gives the Board discretion to determine appropriate bargaining units; and the Board's informed exercise of discretion is rarely to be disturbed. E.g., Packard, supra; NLRB v. Weyerhaeuser Company, 7 Cir., 276 F.2d 865 (1960). The same cases state that substantial evidence is also an applicable standard of review.
These standards, however, are not merely alternative formulations of a single standard. They differ in substance as well as form, and in the instant case, it is necessary to distinguish them in order to express clearly the functions of this court on review of unit determinations.
The discretion which the Board is entitled to exercise lies in the area of establishing, case by case, those facts which it deems generally relevant, but not conclusive, in the drawing of inferences. The discretion is exercised when the Board finds some set of relevant facts determinative in a particular case. Cf. Jaffe, Judicial Control of Administrative Action 555-56 (1965). The determination is discretionary because the relevancy and import of similar facts may shift from case to case.
Unit determinations fall into this category of discretionary decisions. Unit determinations are not findings of fact, but judgments upon the facts in accordance with varying guidelines of relevancy or rules of inference based upon experience and the purpose of the statute being administered. Because the exercise of discretion is a judgment and application of relevancy in a particular case, prior Board unit determinations in other cases ...