National Labor Relations Board v. Metropolitan Life Insurance Company

PETITIONER:National Labor Relations Board
RESPONDENT:Metropolitan Life Insurance Company
LOCATION:United States District Court for the Eastern District of Louisiana

DOCKET NO.: 98
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: United States Court of Appeals for the First Circuit

CITATION: 380 US 438 (1965)
ARGUED: Jan 21, 1965
DECIDED: Apr 05, 1965

Facts of the case

Question

Audio Transcription for Oral Argument – January 21, 1965 in National Labor Relations Board v. Metropolitan Life Insurance Company

Earl Warren:

Very well.

Number 98, National Labor Relations Board, Petitioner, versus Metropolitan Life Insurance Company, Number 98.

Mr. Friedman.

Daniel M. Friedman:

Mr. Chief Justice, may it please the Court.

This case which is here under writ of certiorari to the Court of Appeals for the First Circuit brings before the Court the standards which the National Labor Relations Board follows in determining what is an appropriate unit for purposes of collective bargaining by Insurance Agents.

More specifically the question is whether in selecting as an appropriate unit a single district office of the Metropolitan Life Insurance Company in Woonsocket, Rhode Island, the Board violated Section 9 (c) (5) of the National Labor Relations Act.

That is a section that was added to the statute in 1947 and states that in selecting the appropriate unit the Board shall not treat the extent to which the employees have organized as controlling.

The Court of Appeals in this case held that the Board in selecting this unit had violated that standard, not as we read the opinion because it was anything in the Board’s decision in this case to show that it had treated the extent of organization as controlling but because of the fact that in six other cases also involving the selection of appropriate units for Insurance Agents.

In each case, the unit which the Board ultimately selected in some instances a single district office and other instances I shall explain a combination of offices.

In each case, the unit which the Board selected as appropriate was the same unit that the union had requested and the Court of Appeals stated it was unable to reconcile this conflicting decisions of the Board and it therefore drew the inference that in all of these cases including this one, the thing that had controlled the Board’s selection of the appropriate unit was the extent of organization.

Now, our position is this, we think we can show and I’ll attempt to show that in selecting this particular unit, that is a single district office, the Board applied its settled principles which it had consistently applied in various fields in selecting appropriate units.

But there was no abuse of discretion in so doing that its various decisions dealing with insurance agents are consistent and all of these come down basically to the question of statutory interpretation which is what does it meant when — if the Congress says that the extent of organization shall not be controlling.

We say all that it meant was that the Board could not base its decision solely on the fact of extent of organization but the Board may in deciding these questions consider the extent of organization.

Arthur J. Goldberg:

Mr. Friedman, did it mean it is something underlying and that is a sense of the Congress that the Board in decision-making prior to that time is following a practice which the Congress did not approved?

Daniel M. Friedman:

I — I think that’s right Mr. Justice and as I will develop, we think the legislative history shows that despite this limitation nevertheless the Congress did recognized that the Board could select small units if they were appropriate under the standard criteria.

I’d like to just mention before coming to the facts that this decision of the Court of Appeals of the First Circuit is contrary to the decisions of three other circuits, each of which has upheld a Board determination of this appropriate unit on the same basis that the Board went on in this case.

Now, there’s no basic dispute over the facts in this case.

The record which is before the Court has read a long document consist primarily of the record in another case involving the selection of appropriate units in Delaware and the facts developed in that case relate to the general operation of the company and I — whereby stipulation included in the record in this case.

The company sells insurance throughout the United States and Canada.

Its operations admittedly are very highly centralized in the main office of the company in New York City and in the main office under the main office procedures very detailed standards and methods of operation are provided, the company details in great specificity just how the business is to be conducted at the local level.

The company for operational purposes divides its business into 14 large territories.

Each of which includes a number of states and each of which is under the direct supervision of a company official called the superintendent of agencies.

Now, within each one of these 14 territorial districts there are in turn a large number of district offices and it is to the district offices to which the individual agents who sell the insurance are attached.

The particular office with which we’re here dealing in Woonsocket, Rhode Island is in the company’s New England territory which embraces five states and the State of Rhode Island itself has eight district offices and this particular district office employs 23 agents.

Each of the district offices of the company is under the supervision of a district manager who may have one or more assistants.

And the district manager in turn is directly responsible to the superintendent of agencies.

In other words, the chain of command within this company is from the superintendent of agencies in the main office in New York directly to the district manager at the local level.

As the vice-president of the company explained, he characterize, he says the district manager is the chief executive in his particular district.

And this man as the chief executive has immediate supervisory authority over all the agents in his district.

The actual hiring of the agents is done by the home office but the responsibility for recruiting new agents is placed upon the district manager and it’s up to the district manager to solicit applicants for openings as they arise and if he finds a man is suitable and sends — and sends the recommendation forward to the home office and the record shows that approximately three quarters of his recommendations are accepted.

Daniel M. Friedman:

When a new agent is selected, he gets his initial training for two weeks period in the home office and then he reports to his district where he undergoes further training both in the office and in the field under the supervision of the district director and more — manager and more directly under the assistant manager.

The manager among other things regularly reviews the agent’s performance and although he has no power to fire just like his power to hire, he may recommend to the home office that the agent be fired.

The evidence shows that there is virtually no shifting of agents from one office to the other.

It’s very little almost no transfer at all.

The agents generally go to one office and they stay there.

And in addition to that, there are no businesses or social contacts among agents except at the particular office level.

Earl Warren:

We’ll recess.

Mr. Friedman you may continue.

Daniel M. Friedman:

Mr. Chief Justice and may it please the Court.

When the Court rose, I was pointing out that within the district there is virtually no social or business contact except — I’m sorry, except within the district.

The agents generally do not have any social business contacts among the district.

And it’s just one other fact I’d like to emphasize which is that when an agency becomes vacant and they — they use the word ‘agency’ to mean the particular group of customers that an agent has.

When an agency in a particular district becomes vacant only the agents in that particular district under the company practice are illegible to bid to get that agency.

Potter Stewart:

There are eight district offices in the State of Rhode Island?

Daniel M. Friedman:

Eight district offices plus one or two what are known as the detachable offices.

That is an office that is a separate little office but it’s under the supervision of manager of the district office (Voice Overlap) yes.

Potter Stewart:

And Rhode Island is a pretty small state of (Voice Overlap)

Daniel M. Friedman:

Geographically, yes sir.

Potter Stewart:

How — how far a product of Woon — this is Woonsocket?

Daniel M. Friedman:

This is Woonsocket, and the next closest office is at Pawtucket 12 miles away.

Potter Stewart:

12 miles away.

Daniel M. Friedman:

And if I may — may say right here and now Mr. Justice Stewart that as we see this case the basic issue isn’t where the all eight of the offices in Rhode Island could’ve been combined into an appropriate unit.

The question is whether the Board who was justified in selecting this particular district because it’s well settled but there maybe many different units that would be appropriate for purposes of collective bargaining.

Byron R. White:

But what precisely reflected in what the factory is determined.

Daniel M. Friedman:

Yes, our —

Byron R. White:

Including only one office.

Daniel M. Friedman:

That — that is correct —

Byron R. White:

And the next office is 12 miles away?

Daniel M. Friedman:

Is 12 miles away but if I may put it — if — if I may refine still further Mr. Justice.

The question is whether in selecting this particular office, the Board treated the extent of organization is controlling and our position is that the Board plainly did not that this particular district office maybe justified on the basis of the Board’s traditional criteria.

Byron R. White:

Well, that maybe thought if you only have Rhode Island to look at.

This was the first case that ever happened.

Daniel M. Friedman:

I’m — I’m sorry I don’t understand your question.

Byron R. White:

Well, you’ve got to look at what the Board did in this case, don’t you, in connection with what is then another case?

Daniel M. Friedman:

Well, yes Mr. Justice and —

Byron R. White:

Because they do it in the first time, this place has ever come out?

Daniel M. Friedman:

No, and — and as I shall attempt to show what we think what the Board has done and the Board’s decisions in all of these cases are fully consistent with a rationale that does not give controlling effect to the extent of union organization.

Byron R. White:

You mean any particular case is always consistent with the (Voice Overlap)

Daniel M. Friedman:

Well, I —

Byron R. White:

— a lot of them was the — there was a lot of factors, but how about the whole bunch of cases together?

Daniel M. Friedman:

Well, we think we have to look at each particular case because what the Board does is —

Byron R. White:

All by itself?

Daniel M. Friedman:

Well, you certainly can see what the Board has done in other cases but I suggest Mr. Justice that everyone of these cases is fully justifiable, on a rationale that does not show that the Board has again controlling wide to the extent of all the cases.

Byron R. White:

What about all of the cases together though you still haven’t answer my question?

Daniel M. Friedman:

Well, I — I think you — you have to look — you can’t look at all the cases together in other words because —

Byron R. White:

Yes, but you can look at every case on its own merit in connection with all of the other cases (Voice Overlap) —

Daniel M. Friedman:

Yes, but —

Byron R. White:

— and you have to consider the other cases when you are considering one case.

Daniel M. Friedman:

Yes, we — we have no quarrel.

We’re happy to have you look at all of the cases that the Board is handling in this field.

We think —

Byron R. White:

— I’m glad you are.

Daniel M. Friedman:

That they all consistent we think.

We think they are all fully consistent with the theory that the Board has expound and follow in this case.

Byron R. White:

But you don’t want us to stop at looking at the result in each of the other cases?

Daniel M. Friedman:

Well, we — we have no —

Potter Stewart:

There’s no issue with the other cases.

It seems to be a unit with five dots, in other words obviously at least some indication that’s the only organization.

Daniel M. Friedman:

Well, I’ve missed in it.

Potter Stewart:

Because in that organization —

Daniel M. Friedman:

Well —

Potter Stewart:

In the (Inaudible) rather large in each of the other states.

Daniel M. Friedman:

The extent of an organization did play a part and we think the statute does not, but let me — if I may Mr. Justice —

Potter Stewart:

And then while you’re doing it give us one of these cases, this other cases where you’ve ever bearing in this organization —

Daniel M. Friedman:

Well, in every —

Potter Stewart:

In the narrower or broader case?

Daniel M. Friedman:

In everyone of these cases the unit which the Board selected was the unit for which the union petition.

Now, let me — if — if I may just explain the basis before its basic theory in this area which has been spelled out most fully in a recent decision which we’ve set forth in the appendix to our brief involving some district offices in Connecticut.

Arthur J. Goldberg:

Mr. Friedman, before you you’ve given as to does — does the only development of the facts of this case the footnote on page 15 (a) of the record, footnote 2, is that all that the Board said about the particular facts and certain standard in this case?

Daniel M. Friedman:

Yes, that’s all it said but that they — they referred —

Arthur J. Goldberg:

First to another case —

Daniel M. Friedman:

To the Metropolitan Life Insurance case which is a Wilmington case.

Which is the case in which the full record was developed and which either takes and which it explains a greater detail, the reasons which later to adopt the ruling per — perhaps it would be better Mr. Justice if I explain what the Board held in Wilmington and I think from then it will follow into some of the other questions I’ve had.

The Board in the Wilmington case concluded that the individual district office of the company is in effect a separate administrative unit through which the company conducts its business.

And they of course said it was inherently appropriate for purposes of collective bargaining.

It then went on to say that the fact that the particular unit the particular single district is inherently appropriate doesn’t mean that a combination would be inappropriate.

And in the Wilmington case, it selected as an appropriate unit, the two district offices that the company had in the City of Wilmington, Delaware and it exclude a third district office which is located in Delaware, Delaware approximately 46 miles away from the City of Wilmington.

And as we interpret the Board’s statement at page 15 (a) of the record Mr. Justice Goldberg to which you referred all that they are saying there is, well, they say that since there is no recent history of collective bargaining, no unions seeking a larger unit and the district office sought is located in a separate and distinct geographical area, what they are really saying is that this case therefore, is an appropriate one to apply the basic principle announced in Wilmington that a single district office is inherently an appropriate unit.

That’s what they said here.

There was no and as the Board explained that the Board has often taken the position.

And that when a union comes in and asks for a unit that is inherently appropriate the union — there is no reason why the union should be required to operate and try to organize employees collectively in a larger unit.

And this — this it seems to us is illustrated in these cases that what I like to come to what the Board does.

The Board has basically two approaches here.

When a single district office is sought and the union asked for a single district office the Board treats that as inherently appropriate.

When the union asked for a combination of district offices the Board will grant that combination provided there is a degree, a reasonable degree of geographic coherence in the unit that it is sought.

That is in some instances it may be the city itself, in other instances it may be broader, it may be the Metropolitan area.

Well, the question maybe is what kind of a unit would not be considered appropriate in the insurance industry?

Well, I think I could give the Court a very clear illustration of that which is the Wilmington case itself.

The Board treated the two district offices in Wilmington as appropriate because they were physically in the city.

Now, if the union had come in and said it wanted a unit composed of just one of those two districts in Wilmington plus the office in Dover, 46 miles away, I think this is a case where the Board would say those are not — do not have sufficient connection in geographical contiguity to make them a separate unit.

Daniel M. Friedman:

And we think — we think there is nothing in the statute that was looking at the purpose of it that prohibits the Board from doing this.

And I like to turn to the statute which is set forth on page 30 of our brief.

Now, the basic statutory provision is Section 9 (b) which defines the Board’s authority to select the appropriate unit and then I would admit when it come to the modifications in that which Section 9 (c) (5) provided.

Section 9 (b) says that the Board shall decide in each case whether in order to assure through employees the fullest freedom in exercising the rights guaranteed by this Act, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, was subdivision thereof.

In other words this statute makes it clear that you don’t define an appropriate unit in a vacuum.

You define what unit is appropriate in terms of the basic policy for which units are designated, that is in order to assure the employees the fullest freedom in exercising the rights guaranteed under the Act.

And indeed 9 (c) (5) specifically recognizes that that is the purpose for which appropriate units are to be selected because it says, in determining whether a unit is appropriate for the purposes specified in subsection (b) that is coming back to repeating to assure the employees the fullest freedom in the exercise of their rights.

The extent to which the employees have organized shall not be controlling.

Now, just what was the Congress find to get out of this provision and just what limitations does this provision put upon the Board’s power to establish appropriate units.

Prior to 1947, there had been a number of Board decisions including many in the insurance field in which the Board had created small units, primarily on the ground that if the employees were required to wait until there have been organization on a broader basis the effect of that would be to deny this particular group of employees their rights to collective bargaining.

It’s safe to say that so explicitly the Court to frequently uphold these facts.

In other words these were cases basically in which under the Board’s traditional unit criteria you could not sustain them weren’t not for the fact that this is what the employees were seeking.

And it was this practice that Congress wished to put a hold to.

In other words, to prevent the Board from selecting an appropriate unit solely because this was the extent to which the employees had been organized.

But we think the legislative history makes it very clear that Congress did not intend to prevent the Board from giving effect to the extent of organization only to prevent the Board from treating it as controlling.

The opponents of the legislation criticized this provision because they said that it would prevent among other things the organization of insurance companies and other firms which are organized on a scattered basis which have widely dispersed operations.

And Senator Taft explained why the effect of the statute would not be that and we’ve set out at page 13 of our brief a rather lengthy quotation which is from the supplementary analysis that Senator Taft made of the bill six days after it had been passed and to put them in Congressional records and I just like to read two or three sentences because we think it plainly indicates that what the Board is doing in these insurance cases is not something that 9 (c) (5) was intended to prohibit.

And Senator Taft stated, opponents of the bill have stated that it prevent the establishment of smaller operational units and effectively prevents organization of public utilities, insurance companies and other businesses who’s operations are widespread.

It is sufficient answer to say that the Board has evolved numerous tests to determine appropriate units and he goes on and list these tests, community of interest of employees involved, extent of common supervision, interchange of employees, geographical consideration, etcetera, anyone of which may justify the finding of a small unit.

I may just afford here for a minute to say that these various tests which are the test that the Board has had applied in the past and still applying it seems to me are clearly met by the selection of this particular district in this case.

Arthur J. Goldberg:

Well, Mr. Friedman, do I remember correctly the fact in recordings the Board used to find the single district offices inappropriate but would come to the sustain them on the extent of organization doctrine?

Daniel M. Friedman:

Well, I — I think back in the 40’s the Board did not find a single district inappropriate, it didn’t have to get that far because as the statute was then being interpreted it looked only to the extent of organization.

Arthur J. Goldberg:

Then there was this change?

Daniel M. Friedman:

Then in 1944 in another case involving the Metropolitan Life Insurance Company the Board said that it was changing its rule so that organization of insurance companies was proceeding very nicely and rapidly toward a statewide basis and in these circumstances the Board concluded that it would not deny employees of insurance companies the effectuation of their rights under the statute to make them wait until there have been organization on a statewide basis.

And that announced in 1944 that henceforth in the insurance field absence among exceptional circumstances it would not consider units less than statewide and that it follow that rule for 17 years.

Abe Fortas:

61 (Voice Overlap)?

Daniel M. Friedman:

Until 61 and then it shifted.

And during that period it frequently dismissed petitions of seeking units less than a single let’s say as in statewide.

Abe Fortas:

Now, recently has the Board ever turn the union down on this unit that is organized in the insurance bill?

Daniel M. Friedman:

No, it has not Mr. Justice and I — let me explain why that has been.

Daniel M. Friedman:

In their appendix to their brief the other side cites 46 cases that the Board has decided since Quaker City in all of which the unit selected as appropriate with the unit for which the union petitioned.

Thirty two of those, 32 of those, roughly two thirds involved single districts.

The remainder involves some combination, either citywide, Metropolitan area wide.

Again, in each one of these cases we think that they are consistent with the Board’s basic rationale but you may combine, you may combine geographically coherent districts into a single appropriate unit.

Arthur J. Goldberg:

What was the basis for that case which said that the district office in the City of Iowa, and the office as far as North Dakota and Sioux Fall, South Dakota?

Daniel M. Friedman:

Well, those are two detached offices.

Well, that is at a single district which the company decided apparently that was not sufficient business of whatever reason to set up separate districts in the other states.

So, it attached those two districts to that particular district office.

Arthur J. Goldberg:

As an administrative (Voice Overlap)

Daniel M. Friedman:

As in administrative (Voice Overlap)

Arthur J. Goldberg:

Sort of a satellite?

Daniel M. Friedman:

That’s right.

And the Board always treats this satellite attached offices is part of the single district.

Byron R. White:

Does the district offices — where we have any autonomy in labor matters?

Daniel M. Friedman:

No, it — it has — it has no autonomy in labor matters.

Collective bargaining agreements are negotiated at the home office and in addition to that old grievances which involve questions under the collective bargaining agreement are taken up with the stress with the superintendent —

Byron R. White:

(Voice Overlap) whether the unit was statewide for the district or –?

Daniel M. Friedman:

That’s correct.

And so the collective bargaining under the company practices would take place with the home office.

I — I might say Mr. Justice incidentally that under the company’s theory, under the company’s theory it’s difficult to see how they come out and ask for a statewide unit.

Byron R. White:

That’s right.

Daniel M. Friedman:

Because they say that the adminis —

Byron R. White:

It has to be companywide.

I mean there’s a logical conclusion.

For them its companywide bargaining?

Daniel M. Friedman:

Companywide or at least the territorial, the big territorial district because the say that’s the administrative unit by which the company has.

Byron R. White:

The regions or whatever they are?

Daniel M. Friedman:

The region, in this case five states that that would — that would seem to be under their theory the minimum size of the unit.

And that of course is contrary to the Metropolitan case.

Let — let me if I may just add something explain why the Board in 1961 departed from the Metropolitan and then I should say that the Metropolitan decision during the 17 years it was in existence how it was a very unusual thing because ordinarily throughout this period, the Board decided questions of representation on the basis of particular fact.

Daniel M. Friedman:

It didn’t have automatic Board rules.

And in 1961 when the Board overruled the Metropolitan case, it said that the experienced that it had under the Metropolitan rule indicated that organization of insurance agents had not taken place with the speed and effectiveness that have been anticipated.

And it therefore said that the effect of the Metropolitan rule of refusing to certify less than statewide units had been to arrest the organizational development of the agents.

And it therefore concluded there was no longer any basis for applying a different rule to insurance agents than it was applying to other industries and it therefore said we will henceforth apply our normal unit principles to the cases as they arise.

And we — we think that’s precisely what the Board has been doing in this field it has been applying its normal unit principles.

I just like again to stress because I think this is the factor that we think led the First Circuit into error in finding an inconsistency in the Board decision.

I’d like to stress that the question isn’t whether there are some other unit that might be more appropriate.

The question is whether the particular unit is an appropriate unit and the Board has frequently recognized in these cases that said that, “Well, perhaps a larger unit might be appropriate, perhaps a smaller unit might be appropriate,” but in all effect as we consider this particular unit is appropriate and that’s what we think the Board has done in this case and we think this was well within what this Court has acknowledged to be, to be broads Boards discretion in selecting (Voice Overlap)

Potter Stewart:

Well, the real question is whether or not the Board let the extent of organization be the determining factor, the controlling factor —

Daniel M. Friedman:

In the Board’s — in the Board’s decision and as the Third Circuit has pointed out Mr. Justice Stewart in upholding the Board’s decision in the Wilmington case the fact that this was the controlling consideration in the union’s decision.

To seek this unit is not the question.

The question is was the Board controlled by the extendable organization.

Potter Stewart:

And that is the question?

Daniel M. Friedman:

That is the question.

We think that in this case the Board is permitted to take into account the union’s request and it has however not made its decision solely depend on the point, it was not controlled by this.

It’s admittedly was influenced by it but that is we think no more than statute allows.

Potter Stewart:

Well Mr. Friedman, you say the Board has decided that this is — that the single offices inherently, inherently inappropriate unit.

I suppose the administrative agents is going to stop there with those federal agents, should they claim some (Voice Overlap)

Daniel M. Friedman:

Well, they — Mr. Justice the Board —

Potter Stewart:

It didn’t in this case, did they?

Daniel M. Friedman:

They didn’t in this case but they did in the Wilmington case.

Potter Stewart:

Well, that means — that means that just inherently this way no matter what state it’s located in, no matter what district office that’s in — that is involved with a particular case just inherently a (Voice Overlap)

Daniel M. Friedman:

Well, not — it’s not an (Voice Overlap)

Potter Stewart:

So it’s a big unit?

Daniel M. Friedman:

Perhaps, inherently is an unfortunate word in this context to —

Potter Stewart:

Oh, If it — if it isn’t an adequate word then I would think that in any particular case especially in view of the series of cases that Board has had that — that the Board ought to explain why the difference between this case in some other case where a multimember multidistrict unit has been — has been proved or why in this case the district office 12 miles away shouldn’t be included in the unit?

Daniel M. Friedman:

Well, —

Potter Stewart:

Other than that, I mean it inherently doesn’t carry that kind of phrase.

Daniel M. Friedman:

Well, if — if I may answer, I — I think that three part to your question Mr. Justice may I — I may try to answer it separately.

First, in the Wilmington case which was the basis of the Board’s decision in this case, the Court did explain the reasons why the single district office as a separate administrative unit of the company was an appropriate unit.

Daniel M. Friedman:

And — and the Board has also —

Potter Stewart:

I think if you — do you think that means everywhere now?

Daniel M. Friedman:

That’s right.

The Board says that where — wherever you have a — I — conceivably if you had a different factual record, if you had a different factual record in an unusual thing but there is no question in the case that all of these district offices throughout the country are operating the same way, I mean we have the record in this case, in the Wilmington case which has been stipulated in this case, stipulated (Voice Overlap)

Potter Stewart:

Well, tell me that if a — say that you’ve got a — you’ve got a case where this — they — they go through this routine and say that a single office, a single district office is the appropriate units inherently this way and in the next case I guess the unions organized two offices and so they say well so as a — so was our — the two district units, the — that’s appropriate too.

But the only difference between the two cases happens to be the extent of organization?

Daniel M. Friedman:

Well, no Mr. Justice.

The two —

Potter Stewart:

Well, different names of the district offices —

Daniel M. Friedman:

The two dist —

Potter Stewart:

There are different states —

Daniel M. Friedman:

The two districts would have to have something more than the fact that the union had organized them.

If — well let me —

Potter Stewart:

Did anyone ever explained what that is, other than inherently?

Daniel M. Friedman:

Yes, it’s a geographic coherence.

If I may illustrate with one — another case, let’s assume for the sake of argument —

Potter Stewart:

I think inherent is coherent?

Daniel M. Friedman:

Let’s assume there are ten offices in the District of Columbia, they are scattered all around and the union first organizes a single district office in the upper northwest.

It can’t organize any others except a single district office in the lower part of southeast but the opposite parts of the town I don’t think the Board could find that those two district offices constituted inappropriate unit, they are miles apart, these two are separate —

Potter Stewart:

Even though in Chicago, you had them 127 miles apart.

Daniel M. Friedman:

Well, it weren’t quite that far but again Mr. Justice they were about 30 —

Potter Stewart:

Well, how far was it?

Daniel M. Friedman:

— 33 miles from the upper — from the suburbs to the center of town.

But again in Chicago there — there was a geographic basis for it.

This was the city line, this was the line of the city.

Thank you.

Earl Warren:

Mr. Zorn.

Burton A. Zorn:

Mr. Chief Justice, may it please the Court.

I think the discussion up to this point would lead to this comment as to the nature of the question presented here for review.

I believe that in this case particularly when we’re dealing with the statute of this nature which prohibits certain kinds of conduct on the part of the Board it is perfectly obvious that the Board if it should ever violate the statute would never say so.

Burton A. Zorn:

And my friend has been arguing constantly that this Court should in effect be bound by what the Board said in justification of its decisions both with respect to what it calls a single administrative entity and with respect to the other doctrine of geographic coherence.

I submit that on the record of these cases where in every single interest — every single instance and every case involving this company the Board has found appropriate a unit which is precisely the unit which has been asked for by the union and exactly coextensive with the extent of union’s — the union’s organization at that time this Court will very properly look at the results of what the Board has actually done and not be bound by certain assertions made by the Board.

Now, with respect to the assertions here, I think we can get those very quickly.

Mr. Friedman argues that all the Board did in these cases was to apply settled established principles of the Board.

We say that we can demonstrate very shortly that that is absolutely not the fact, it is not so.

He says further that the Board applied its doctrine coherently.

A quick review of the facts which I will come to in a moment will demonstrate the most irrational kind of diversity with respect to all of the units found by this Board tailored to fit the union’s request and the only constant fact to Your Honors which appears throughout everyone of these cases and there is only one single factor which is constant or the common denominator for all and that is the union’s request and the limited extent to which the union has organized the employees at that particular time when its request is made.

Byron R. White:

But I suppose you could win all your other cases and lose this one —

Burton A. Zorn:

I don’t think so.

Byron R. White:

Even on your argument?

Burton A. Zorn:

I don’t think so because I will come in a moment —

Byron R. White:

Well, there are some units that’s —

Burton A. Zorn:

Yes.

Byron R. White:

There are some units that appropriated.

Burton A. Zorn:

May I come to that in a moment, because this administrative entity —

Byron R. White:

Because that’s this case?

Burton A. Zorn:

That’s this case but this case has another factor in it, Your Honor.

This case also has in it if the factor that the Board rejected the company’s request for the inclusion of seven other offices which the union had sought unsuccessfully to organize all or which were located in the Metropolitan area of Providence, Rhode Island and it rejected that because the nearest office was 12 miles away.

When I come to review the facts very briefly, the fact is that the farthest office was only 24 miles away when in fact in other cases in adopting its so-called Metropolitan area concept flowing from its geographic coherence doctrine, the Board included units which were 30 miles away, offices which are — and detached offices and I’ll come to that in a moment which are as far as 284 miles away and of course when we get to Chicago that is the most revealing of the consistency of the Board.

It shows so plainly how the Board jumped from failure to post in order to accommodate the extent of union of organizations.

Now, I don’t want to get into the facts nor do I have time to get into the facts with respect to the organization and the operation of a company and its administrative subdivisions.

All I think I need to point out here Your Honor is this, in every case despite the argument of my friend where every single factor with respect to the administration of the company, its operation and its control was absolutely identical with the facts upon which the Board has ruled in these cases.

The Board over the years has repeatedly and uniformly held that these single district office units and citywide units were completely inappropriate except on the basis of the limited extent of the union’s organization and if Your Honors will look at page 16 of my brief but I will not quote from, you will see contrary to what my friend has said that the only way those cases can possibly be read is to be read when the word — Board uses the word ‘solely’ on the basis of extent of organization controllingly on the basis of extent of organization.

The Board had all of these criteria well developed at the time it was deciding these cases and yet in every single one of them before they adopted the statewide rule in 1944 it held unequivocally that the only possible basis on the basis of Board test for establishing such units that was the extent of organization and as recently as 1959 one of the Board members who constitutes the present majority of this Board member, Fanning.

In the light of Virginia case who disagreed with its colleagues and that he wanted the statewide rule which had been established in 1944 set-aside.

Mr. Fanning analyzed the basic criteria or standards of the Board to be applied in unit cases and he found in that case as recently as 1959 that a single district office couldn’t conceivably fit within any of — it couldn’t qualify rather within any of the normal criteria of the Board and I think the asset test here is really what made a single district office inappropriate in the earlier and what factor has so changed as to make it appropriate today.

Now the Board’s entire argument rests on the assertion of two criteria.

One is the criteria of the administrative entity which is inherently appropriate for collective bargaining.

Now, a member, Fanning in 1959 took the Board’s administrative division test which is a normal test which the Board has applied for many years and he said, the administrative structure as the Board has used that term in every case over the years until this case.

The administrative structure is a grouping of a company’s administrative operation which consists in turn of a group of many small units and where the effect of authority and control is vested in this administrative division like the territorial divisions in this case.

Burton A. Zorn:

Never has this Board defined administrative entity or administrative structure and it’s a criterion which is used repeatedly over the years to apply to one of a group of small units within a larger unit.

Arthur J. Goldberg:

Well, Mr. Zorn you’re going to tell us as I take that in the course of your argument as to what in your view accepting the Board to establish criterion would be the appropriate unit?

Burton A. Zorn:

I’ll be glad to answer that question now Mr. Justice Goldberg —

Arthur J. Goldberg:

Do you think that every time that is —

Burton A. Zorn:

Our — our problem here of course is not that problem.

Our problem here is to determine whether the union violates or whether the Board has violated Section 9 (c) (5).

We have contended before the Board that in our view, in the insurance industry, the three possible appropriate units by reasons of the very peculiar nature of this industry which is totally different in its operations than any other would be the statewide unit which is justified not on the extent of organization but on the Board’s own decisions by reason of the fact that every insurance company including this company is very strictly regulated on a state by state basis, its agents are licensed on a state by state basis and in earlier cases years ago before the Board adopted the statewide rule as such.

It did find state units appropriate on the basis of state regulation more than that.

Arthur J. Goldberg:

But state — but state regulation has nothing to do with industrial relations in this area, does it?

Burton A. Zorn:

Well, if the Board had adopted a criterion of the method of regulation of an industry it might have been a fair criterion, I don’t know but beyond that Mr. Justice Goldberg I think another criteria in which it might well apply to the state unit and applies in this case is that there has been both in this industry and there has been in this company successful history of collective bargaining on a state by state basis and history of bargaining as you well know of course is a factor of some importance.

So I say a approximate extent of organization, a statewide unit might be appropriate.

Obviously, a territorial wide unit conforming to the real supervision and control because what has been said here about the extent of authority of a manager is minuscule already it is.

If you look at this record you’ll see there’s nothing to it.

That, a territorial unit I think would be appropriate and obviously a companywide unit is appropriate and the two major competitors of this company do bargain on a companywide basis.

William J. Brennan, Jr.:

What is the territorial unit that in the Metropolitan situation would deem appropriate?

Burton A. Zorn:

It would — that the territory of unit which would apply in this particular case in New England would be the territory which includes all of the states in New England.

William J. Brennan, Jr.:

How many officers?

Burton A. Zorn:

I — without looking at the record I can’t tell you how many officers, but as a matter of fact Your Honor this Board didn’t have to meet the company’s contention in this case because in all the other — in many of the other cases it was applying a Metropolitan area concept based on this geographic appearance theory and all of the officers in Rhode Island were located within the Metropolitan Providence area.

Now, had they — now, it’s conceivable, Justice Goldberg, that on the appropriate record a Metropolitan grouping of district offices could be found to be appropriate because at least there the Board has and we’re now talking about established and settled criteria on which the Board rest its case here because there the Board over the years has grouped in a retail industry has grouped a series of stores on a Metropolitan basis on the theory of economic integration on the community and so on that might be an inappropriate.

Might be, I’m not saying it would but those are the kind of units that might be appropriate.

Arthur J. Goldberg:

Now supposed (Inaudible)?

Burton A. Zorn:

It never has until this started with the Quaker City case in 1961, I think December 1961.

This case is a 1962 case.

Late in December of 1962 or September of 1962, the Board then proceeded to apply to reverse its policies in the retail food chain industry and then to Sav-on-Drugs case held, they didn’t used the term separate administrative entity which is essentially a verbalism could cover anything.

They said there in effect that they wanted to change their policy to make it easier for store employees to organize and therefore, they held for the first time that a single retail store was appropriate but that came after a series of these cases.

And very recently they’ve gone a step further and carved contrary to their own rules in the recent — the department store case, Allied Stores case contrary to the set of rule that a store or department storewide unit except for possible prepped carvings, the department storewide unit could now be separated into selling, none selling and restaurant with the same union petitioning for three separate unit.

So, the Board has been moving in change of policy very rapidly in this overall area.

I’d like to get back for a moment, if I may, just to some of the facts here which I think are sufficiently startling that I think they will convince this Court that regardless of what the Board has said here.

It was not applying its criteria consistently nor was it applying an established or settled criteria because in this case as I’ve pointed out the seven other officers were excluded.

This case, however, happened to be the fifth in the series of Metropolitan cases.

Burton A. Zorn:

The first involved Cleveland.

In Cleveland the Board said, that is the Board majority because there were two member dissents running through all of these cases and the dissents were based on proposition that in the view of the expert two Board members the Board was following the extent of organization — that extent of organization was controlling.

But in Cleveland adopting first this so called administrative entity inherently appropriate doctrine which is never used before and which equally could’ve — we applied to divide a department store not into three divisions but in a several hundred separate departments.

The Board said “First, this is a separate administrative entity; second, because of cogent geographically reasons we will include all because the union asked for it, we will include the officers in the city and the officers in the suburbs in one unit even though there the distance was 18 miles.”

The next case was the Wilmington case where they combined the two in the Metropolitan area of Wilmington on the same theory and rejected the company’s request for the inclusion of the Dover office 46 miles away.

Mr. Friedman says the Board never would’ve included it even if the union had requested it.

There’s no evidence in this record that it would not have.

The third was the Sioux City case.

Let me say a word about detached offices, in Sioux City, detached offices were in two different states, North Dakota and South Dakota, the district office was in Sioux City Island.

In that case the Board included all of them.

Now, a detached office on the reasoning of the Board that the manager of a district office is the immediate supervisory authority over the employees, that applies equally to a detached office case because with this distances apart it is the assistant manager who is the immediate supervisory authority and the record discloses that this virtually know, alright, the most only some occasional contact between the district office and the detached office and far more contract — contact as a matter of fact from the super intent of agency and his assistance than there ever is, with the manager.

In any event the fifth of them was this case, but then we came to Chicago and that I think as I said is the most revealing of all.

Here, the Board on this geographic coherence test has adopted what the regional director in Chicago thought was a test that you want to follow.

The union petitions only for the offices in the city within the political city limits of Chicago.

The regional director following what he thinks the Board has said includes not only the offices in the City of Chicago but the suburban offices.

There were 33 of them in the city and 14 in the suburb.

But “No” says the Board when a case comes before it.

We are going to exclude all of the suburban offices and we’re going to exclude them for the following reason.

That upon the physical location of the individual offices as the yardstick in determining the appropriate geographic appropriateness of the unit when in fact six of the city office had territories extending in those suburbs, three of the suburban offices had territories extending into the city and there was no more than a distance of six blocks between one city office and one suburban office.

So, the Metropolitan union cons — Metropolitan area concept goes out of the window and what this concept are physical yardstick can possibly mean I leave to Your Honors’ imagination.

Following that without going in anymore detail that’s all covered in our brief, I want to say that in 22 of the other cases in which the Board has — has held appropriately a single district office in at least ten of them the distance between the office certified and the nearest office was less than five miles, in some cases only one or two miles.

Now, I need to spend very little time and I don’t know how much time I do have left on the question of the statute itself.

The purpose of the statute is plain, it was intended to reverse a practice which the Board had engaged in, in this industry and other industries of forming units based on the extent of organization.

Now, whether you argue that it sole or controlling I think our brief covers that sufficiently and I think for purposes of this case it makes very little difference because our position here is that the test which the Board claims to have set up first with respect to this that single administrative entity are not valid test nor are they test which the Board has ever applied before and never in any situation applied before and when it comes to the application of those test and the geographic coherence test I think you’d arrive at one simple conclusion that you can’t possibly explain this irrationality and inconsistency of decision except on the basic ground of the one factor which is common and constant through all of these cases and that is the factor of the extent to which the Union has organized at that particular time.

Yes, Justice Black?

Hugo L. Black:

You came up to the factor to the last minute and you only discussed it in about a minute.

What do you understand the statute does require?

I’m not talking about its history, the language of the statute.

Burton A. Zorn:

I understand the statute —

Hugo L. Black:

To say?

Burton A. Zorn:

To say that in determining any unit, the Board shall not give, I’m paraphrasing Your Honor, but I think this is appropriate, shall not give the union’s extent organization or the extent to which the employees have been organized controlling weight in any unit determinations.

Hugo L. Black:

Suppose it gives it some weight then what is the standard (Voice Overlap) like to be?

I’m having trouble with your argument in the part of the Government’s argument is that it seems to me the statute did not intend for the Board try to set up permanent definition to determine the very broad power — under the very broad power given decide in each separate case, that’s direct in it, in each case on a case by case basis under what policy?

Burton A. Zorn:

It is 95, yes —

Hugo L. Black:

— decide in each case in all of it this is not this — the supreme criterion which they have to follow in order to assure its employees the fullest freedom in exercising rights guaranteed by the Act.

Isn’t that the supreme test?

Burton A. Zorn:

No, the supreme test on this case, if I may disagree —

Hugo L. Black:

I’m talking about isn’t that the supreme test that Congress set out so far as the Board’s power within —

Burton A. Zorn:

The effectuation of self organization, yes.

Hugo L. Black:

To assure to employees the fullest freedom in exercising their rights, all the rights guaranteed by the Act?

Burton A. Zorn:

That is correct, Mr. Justice Black.

Hugo L. Black:

In effect to the employee?

Burton A. Zorn:

That’s correct sir.

Hugo L. Black:

Well, how can they make a definite decision and say that we always going to consider this is it without regard to — to anything else?

This has to be in it, how can they do that and comply with — with that, with these?

Burton A. Zorn:

Well, but that general purpose was limited by the enactment of 9 (c) (5) to stop the Board from doing (Voice Overlap) —

Hugo L. Black:

What 9 (c) (5) says in determining whether the union is appropriate for the purposes specified the extent to which the employees have organized shall not be controlling.

Burton A. Zorn:

That’s clear, I think.

Hugo L. Black:

That’s right?

Burton A. Zorn:

That’s clearly right.

Hugo L. Black:

But does that say it shall not be given any weight?

Burton A. Zorn:

No, I have not made that argument.

Hugo L. Black:

It must be given weight then after all how you ever going to get one — any one case, I have listen to you carefully because I — I might not have at all hear later in this case.

But it looks to me that you have been arguing that if they have held in one city it’s got to be citywide as the rule.

If they held it’s got to be statewide, that’s the rule.

Why is it not perfectly in line with what the Congress has told?Instead all of the circumstances of each case do not in any instant go only on the basis that the unit, the extent to which the employers have organized don’t go on that, don’t go on that anytime but go only with basis of all of the facts and all of the circumstances and you have attempted up to date, I have — I haven’t heard any argument shows.

Burton A. Zorn:

I’m sorry I’ve failed but may I summarize it to answer your question?

Hugo L. Black:

Yes.

I’ve — I’ve been bothered a little by the Government’s side because it seems to me like that it was taking the position.

If the Board has power despite the fact that they are commended to decide according to circumstances in each case to establish criteria in which those bind them all of the time, I’m bothered by that argument.

Burton A. Zorn:

May I try?

Hugo L. Black:

Yes.

Burton A. Zorn:

We have not said that the extent of organization is entitled to no weight whatsoever.

It’s entitled to some weight but it cannot be the basis or the controlling factor in the decision, this is what the statute said.

Now, how do we arrive at the question as to whether the statute was right?

Hugo L. Black:

You say as I understand if you permit?

Burton A. Zorn:

Yes sir.

Hugo L. Black:

You said that the Board didn’t say that and they never would say that (Voice Overlap) I agree with you for that.

You say that I have estab — I have proof here that that’s exactly what they’ve done and that’s what your issue finally comes down to.

Burton A. Zorn:

And the proof consists of two separate bases.

Hugo L. Black:

It has to be solely on that?

Burton A. Zorn:

But the proof consists of two pieces and we meet the Government ahead on.

The proof is that the Board is — the Board must in defending this choice he limited to the grounds, get itself involved.

This is a settled doctrine in this Court (Voice Overlap) so we say —

Hugo L. Black:

Why should it?

Burton A. Zorn:

This is what this Court has decided many times, Your Honor, unless they want to change, its fine.

(Voice Overlap) the basis on which an administrative agency (Voice Overlap) —

Hugo L. Black:

In another case?

Burton A. Zorn:

— makes the decision shall be tested on the basis of the reasons asserted by the agency.

Now, if I’m wrong about that, I’m wrong about a certain city but I just like to say these two things.

We say that judicial review to determine whether or not extent of organization has in fact and in truth and the controlling factor in this decision and the other decisions is supported by two basic propositions.

First, that the criteria or the standards of principles announced by the Board are inconsistent with standards which they have announced over the past and second, that when you get a formula of geographic coherence and it is applied with such inconsistency that it makes utterly no sense then you must look behind that to find out what the Board has done, that’s my position in and of itself.

Hugo L. Black:

Now, what bothers me about is maybe it’s altogether wrong that I was looking to it, when you say the Board having established the criteria is that to stay right within it but what bothers me about that is it is very much like this broad power that’s given to them, it’ is very much like the power of a jury to decide in some nebulous and it is nebulous, broad standards like what’s good for the person or what was negative.

Bringing in your imaginary people and you are saying as I understand that they’ve got to have stand that would be using every case.

Burton A. Zorn:

Well, I — I don’t say, don’t misunderstand me (Voice Overlap) —

Hugo L. Black:

— the Board has the power, I doubt if the Board has the power either.

Burton A. Zorn:

I don’t say sir that the Board has no authority ever to change a policy of a rule but I do say that with the existence of Section 9 (c) (5) if it when it does that, that that change of policy should be carefully scrutinized to determine what its purpose was and I say further that in this case, the Board has found what it has said in this case and that is that mistakenly or otherwise.

It thought it was applying its normal criteria which in fact it was.

Hugo L. Black:

I fully understand your argument (Voice Overlap) if it’s shown —

Burton A. Zorn:

Yes sir.

Hugo L. Black:

It if shown that they did you had controlling consideration under this which you said there should not have violated the law and we should say so.

The problem is that you add to that when you make the argument on that pages, consideration is heard and that you want to limit them considerations they’ve given in this case to considerations they’ve given in other cases.

Burton A. Zorn:

You can disregard my comment entirely, Mr. Justice Black, and I think you would come out with the same result because all you need to do is look at the visible results of what the Board has done in these cases to arrive at your own conclusion of what it did.

Thank you, sir.

Byron R. White:

Mr. Zorn I supposed that (Voice Overlap) and if your position is that if you did have a case, two cases, which had absolutely similar circumstances other than the extent of organization that the Board couldn’t come out with different results with the two — in the two circumstances which means — let’s assume that there were two district offices in the north end of Rhode Island and two district offices in the south end.

Both offices were organized in the south end and only one of the offices in the north end and as far and both of them were 12 miles away from each other and all of the factors you would think would indicate to be the same result in both of them except that — but the Board comes out with different results and if it answers you correctly, all the other factors were equal but the extent of organization was not.

Now, we’re permitted to give some weight, some weight.

In this case it happens to be controlling way.

You would say that, you would say that the — in that circumstance you couldn’t give even any weight to the extent of organization.

Burton A. Zorn:

No, I would not.

Byron R. White:

Well then, you would say that Board could come out with different results in those positions?

Burton A. Zorn:

I would — I would answer you two ways, I would say first of all, you would first have to determine because you see I haven’t made this argument here because I think it’s unnecessary.

But you could make the argument based on this Court’s decisions in many administrative cases that what — when the Board acts inconsistently and irrationally in certain cases it may be guilty of such arbitrary conduct that even with this broad discussion and apart from Section 9 (c) (5) this Court could reverse.

I haven’t made that argument simply because I think it’s unnecessary but I think it applies here.

But in your case, I think you got to look at the facts of the group of cases because how else under this statute could you ever possibly show what the Board has done?

Byron R. White:

Well, the trouble is that the Board where there’s great mistake, but in other cases or not does not deal — it has not dealt with the case as a single office that it’s concluded to single office and it’s an appropriate unit and that — and apparently it intends to hold that and whatever you might say about the other cases what about this one?

Burton A. Zorn:

Well, I’d say —

Byron R. White:

How about this one what if it says that —

Burton A. Zorn:

Yes.

Byron R. White:

— and it says I think these are — this is an appropriate unit.

Burton A. Zorn:

No, but I say further that there was in this case a request by the company for inclusion of the other seven offices in Metropolitan Providence and I say that since that was rejected you can’t decide this case alone on whether this administrative entity inherent theory is a proper test or not.

You’ve got to decide also whether the Board was —

Byron R. White:

That the citywide base — that the statewide basis isn’t good?

Burton A. Zorn:

Whether the Board was consistent and rejecting offices in the Metropolitan area of Providence much closer to get than offices was taken by in another city.

I mean you cant — it’s — it’s on both grounds.

Hugo L. Black:

(Inaudible) but it doesn’t seems to — Congress doesn’t seems to authorize the Board to consider this case on the basis of what’s best for the company but only on issuing an order which assures the employees to call this freedom.

Am I right in thinking is it only (Voice Overlap) —

Burton A. Zorn:

You’re entirely right Mr. Justice Black in thinking that (Voice Overlap) —

Hugo L. Black:

It’s rather on unusual.

Burton A. Zorn:

— of the organization of employees is one of the basic policies they had but that we don’t argue.

Hugo L. Black:

But as far as the assurance to the employees not to the company?

Burton A. Zorn:

Well, the Act is not — but the Board has frequently over the years following the statutory purpose, when it has found a company request to be proper and the union request to be improper granted a company (Voice Overlap).

Hugo L. Black:

Well, I think this is (Voice Overlap) —

Burton A. Zorn:

It should be — it’s that’s their way to apply, they should apply it seems to me.

Hugo L. Black:

But it can in any basis.

I have been asking this, are you (Voice Overlap) —

Burton A. Zorn:

Of course it can and that has to be —

Hugo L. Black:

But it can base it on what’s for them is convenient to the company rather than what’s best to assure their employees for them not to strike?

Burton A. Zorn:

It’s not really — not really a matter of convenience Mr. Justice Black.

What the Board has done repeatedly over the years is to weigh the two positions of the parties of the employer and the union and this has gone back since the beginning of the Board and still goes on today and determine which of the things best fits within the test which the Board has established.

Hugo L. Black:

But the test of the statute is, the only test what’s best for the employees in aiding them to organize.

Burton A. Zorn:

Not quite because on test statute —

Hugo L. Black:

What I’m trying to get to say and what Voice Overlap).

Burton A. Zorn:

The test of the statute is a further test and that is what will best effectuate collective bargaining.

Hugo L. Black:

Well what if it say, where does it make the test with reference to this, maybe it does, I’m not (Voice Overlap) —

Burton A. Zorn:

It does, Your Honor.

Hugo L. Black:

Does that make it —

Burton A. Zorn:

That is quite another factor and what the Congress was interested when this Act was passed was in not merely in giving employees freedom of organization and collective bargaining but it was also interested in preserving industrial piece in eliminating industrial strike.

Hugo L. Black:

I agree to that but I’m talking about with reference to this particular provision which is especially written.

What — what does the Board have a right to consider except what revealed the employees the fullest freedom in exercising their right?

Burton A. Zorn:

What do you mean?

Hugo L. Black:

I’m not talking about the general purpose of the Act, I’m — by familiarity with it is why I was surprise to find that it is written this way when on — when we inspect.

Burton A. Zorn:

Well, it does have in it when I thought it had obviously and that is that the assurance of full freedom is also coupled with the fact that these rights a full freedom are granted for the purposes of collective bargaining.

Hugo L. Black:

Okay.

Burton A. Zorn:

And the Board in every case makes a finding that whatever unit it decides is appropriate for collective bargaining and my only thought on your question is simply this, that the Board has a right and a duty.

Not only to consider desires of employees which is precisely what Congress outlaw in 1947 that it also has a duty to consider which unit aside from the desires of the employees is a unit that will effectuate successful collective bargaining and that is the other branch of its obligation.

Hugo L. Black:

You read section, the section this way?

Burton A. Zorn:

I not only read the section this way but I read — in over the years I have made many — many of the decisions and that’s what the Court has said.

Hugo L. Black:

All with reference to this section?

Burton A. Zorn:

Yes.

Burton A. Zorn:

Well, the general section with respect to, the Board as the court has never passed on Section 9 (c) (5) the Board has never met it ahead on.

I’m talking about the general Section 9 with respect to the discretion of the Board in finding units appropriate.

Arthur J. Goldberg:

The Board doesn’t criticize the evidence (Inaudible) are going to determine.

You say that under 9 (b) well, in connection with this five questions in order to define it clearly and the way you did and that prior to 9 (c) (5) the Board in order to use the employees the fullest freedom the next (Inaudible) said that that organization affected that full freedom and we therefore have to extend more organization doctrine.

Burton A. Zorn:

Right.

Arthur J. Goldberg:

And that’s carried on to purposes that they have set.

Many times these cases involves (Inaudible) that provides them, it says that, this different employees would argue shall be not controlling but rather than the medications come up, rather inquires that.

Isn’t what you are saying is that the purpose of the Board effected the said area shows that the Board is making seriously room from the full view of this different organization is controlling them and (Inaudible) cannot leave these cases without allowing to do the Labor Board have said the Board has acted to perpetuate as the controlling doctrine instead of organization?

Burton A. Zorn:

You — you put that so much better than I did and that was the basis of the decision below as well.

Thank you.