               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 16a0475n.06

                                          No. 14-2606                                 FILED
                                                                                Aug 16, 2016
                          UNITED STATES COURT OF APPEALS
                                                                            DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT


NATIONAL LABOR RELATIONS BOARD, )
                                )
     Petitioner,                )
                                                           ON PETITION FOR REVIEW
                                )
                                                           FROM THE NATIONAL LABOR
v.                              )
                                                           RELATIONS BOARD
                                )
KLOCHKO EQUIPMENT RENTAL        )
COMPANY,                        )
                                                                   OPINION
                                )
     Respondent.                )
                                )


Before: BATCHELDER, MOORE, and McKEAGUE, Circuit Judges.

       KAREN NELSON MOORE, Circuit Judge. This case concerns Brian Miller, the sole

mechanic at an equipment rental company’s satellite office. Miller wanted to join the collective-

bargaining unit of mechanics and truck drivers at the company’s main office, but the company

opposed his efforts. In a series of decisions, the National Labor Relations Board (“NLRB”)

allowed Miller to join the collective-bargaining unit and then concluded that the company was

violating federal labor laws by refusing to recognize and bargain with the unit once Miller joined

it. The NLRB now applies for enforcement of its final decision pursuant to 29 U.S.C. § 601(e).

For the reasons set forth below, we ENFORCE the NLRB’s final decision.
No. 14-2606, NLRB v. Klochko Equipment Rental Co.


                                      I. BACKGROUND

A. Facts

       Klochko Equipment Rental Company (“Klochko”) is a Michigan-based company that

rents and repairs construction equipment. Joint Appendix Vol. I (“J.A. Vol. I”) at 20 (Hr’g at 19)

(Page ID #26); id. at 236 (Decision and Direction of Election at 1) (Page ID #242). Its main

office is in Melvindale, a southwest suburb of Detroit. See id. at 236 (Decision and Direction of

Election at 1) (Page ID #242). This office is divided into an administrative space and an

equipment repair shop. Id. at 238 (Decision and Direction of Election at 3) (Page ID #244); see

also id. at 53 (Hr’g at 52) (Page ID #59). Local 324 of the International Union of Operating

Engineers (“the Union”) represents a unit of mechanics and truck drivers who work in the

equipment repair shop. Id. at 236 (Decision and Direction of Election at 1) (Page ID #242).

       In 2010, Klochko opened a satellite office in Saginaw, 111 miles north of Melvindale.

Id. at 238, 240 (Decision and Direction of Election at 3, 5) (Page ID #244, 246). At first, only a

sales employee worked in the satellite office. Id. at 238 (Decision and Direction of Election at 3)

(Page ID #244). But in 2012, Klochko hired Brian Miller as the Saginaw location’s sole

mechanic. Id. This appeal concerns Miller’s efforts to join the collective-bargaining unit in

Melvindale.1

       The collective-bargaining unit at issue consists of six mechanics and two truck drivers.

Because the central question in this case is whether Miller and the six mechanics “share a

       1
        Klochko also has a small rental office in Fairhaven, Michigan, staffed by a single
employee, which is not at issue in this appeal. See J.A. Vol. I. at 236 (Decision and Direction of
Election at 1) (Page ID #242); see also id. at 40, 52 (Hr’g at 39, 51) (Page ID #46, 58).

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No. 14-2606, NLRB v. Klochko Equipment Rental Co.


community of interests sufficient to justify their mutual inclusion in a single bargaining unit,”

see Kindred Nursing Ctrs. E., LLC v. NLRB, 727 F.3d 552, 560 (6th Cir. 2013) (quoting NLRB v.

ADT Sec. Servs., Inc., 689 F.3d 628, 633 (6th Cir. 2012)), there is little information in the record

about the two truck drivers other than that they are responsible for the transportation of

equipment to and from jobsites. J.A. Vol. I. at 238 (Decision and Direction of Election at 3)

(Page ID #244); see also id. at 20 (Hr’g at 19) (Page ID #26). Instead, the record focuses on the

six mechanics.

       The collective-bargaining unit’s governing agreement classifies the six mechanics as

class-A, class-B, class-C, or preventative-maintenance mechanics—with class-A mechanics

being the most skilled and preventative-maintenance mechanics being the least skilled. Id. at

22‒23 (Hr’g at 21‒22) (Page ID #28‒29); see also id. at 183‒84 (Union Agreement at 34‒35)

(Page ID #189‒90). The agreement further classifies class-A mechanics who travel to jobsites as

“field mechanic[s]” (and, because of this additional travel, requires that Klochko pay them

more). Id. at 23 (Hr’g at 22) (Page ID #29). Two of the collective-bargaining unit’s mechanics

are field mechanics and the remaining four are either class-B, class-C, or preventative-

maintenance mechanics. Id. at 238 (Decision and Direction of Election at 3) (Page ID #244).

The Melvindale equipment repair shop where they work, which is 5,000 square feet, is capable

of handling a wide range of repairs. Id.

       Because Miller is not part of the collective-bargaining unit, he is not classified as a class-

A, class-B, class-C, or preventative-maintenance mechanic. But Timothy Korthals, Klochko’s

general manager, testified that although Miller performs some preventative-maintenance work on


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No. 14-2606, NLRB v. Klochko Equipment Rental Co.


the side, Miller “predominantly is on the road as a field mechanic.” Id. at 19, 42 (Hr’g at 18, 41)

(Page ID #25, 48). That the bulk of Miller’s work is at jobsites as opposed to in the Saginaw

facility is unsurprising, because, although Miller has the technical skills to do the work of a

class-A mechanic, the Saginaw repair shop is only 100 square feet. Id. at 33 (Hr’g at 32) (Page

ID #39); id. at 238 (Decision and Direction of Election at 3) (Page ID #244).

       As one of only two employees in Saginaw, Miller has some additional responsibilities

that the unit mechanics do not have. The other employee in the satellite office, Paul Daugharty,

works in sales as an “area field representative[].” Id. at 238 (Decision and Direction of Election

at 3) (Page ID #244); see also id. at 55‒56 (Hr’g at 54‒55) (Page ID #61‒62). When Daugharty

is out of the office, Miller has to fill in for him and respond to customer requests to rent or buy

equipment. Id. at 240 (Decision and Direction of Election at 5) (Page ID #246). Miller has had

to do this only once, when he executed a rental agreement with a customer (a Melvindale

manager emailed Miller the contract). Id. The whole process took thirty minutes. Id.

       The Melvindale mechanics all report to Frank Snyder, Klochko’s service manager. Id. at

238 (Decision and Direction of Election at 3) (Page ID #244). The unit mechanics work from

7:30 A.M. to 4:00 P.M., plus overtime as needed. Id. at 241 (Decision and Direction of Election

at 6) (Page ID #247). Their wages range, based on skill, from $16.31 an hour to $24.54 an hour.

Id.; see also id. at 24 (Hr’g at 23) (Page ID #30); id. at 183‒185 (Union Agreement at 34‒36)

(Page ID #189‒91). Like the unit mechanics, Miller reports to Snyder. Id. at 238 (Decision and

Direction of Election at 3) (Page ID #244). And like the unit mechanics, Miller works from 7:30

A.M. to 4:00 P.M., plus overtime as needed. Id. at 241 (Decision and Direction of Election at 6)


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No. 14-2606, NLRB v. Klochko Equipment Rental Co.


(Page ID #247). Miller earns $18.08 an hour, which is less than what field mechanics earn, and

less than what class-A mechanics earn, but within the range for unit mechanics generally. Id.

Unlike unit mechanics, however, Miller does not earn more when he travels to jobsites. Id. at 23,

84 (Hr’g at 22, 83) (Page ID #29, 90).

       Klochko typically receives two types of customer calls: requests for renting equipment

and requests for servicing equipment. Id. at 28‒29 (Hr’g at 27‒28) (Page ID #34‒35). Requests

for renting equipment are tracked in the “request log,” which is displayed on a television monitor

in the Melvindale location’s equipment repair shop, so employees can see what equipment they

need to prepare for customers. Id. Requests for servicing equipment are logged in the “service

call log.” Id. at 29 (Hr’g at 28) (Page ID #35). This log is not displayed on the television

monitor but instead is maintained by Snyder, the service manager. Id. Snyder notes customer

requests for servicing equipment and then assigns mechanics (including Miller) to the requests,

tracking the jobs from start to finish. Id. at 239 (Decision and Direction of Election at 4) (Page

ID #245); see also id. at 29 (Hr’g at 28) (Page ID #35). Because Snyder is based in Melvindale,

he usually assigns unit mechanics to different customer requests in person. Id. at 29 (Hr’g at 28)

(Page ID #35). If the unit mechanics are on the road, Snyder calls them on their cell phones to

give them their next assignment. Id. In contrast, Snyder speaks to Miller only over the phone;

they do not interact in person. Id. at 29, 118 (Hr’g at 28, 117) (Page ID #35, 124). Indeed,

Snyder has been to Saginaw only once, and Miller has been to Melvindale only once—for

training. Id. at 66, 118 (Hr’g at 65, 117) (Page ID #72, 124). If Snyder and Miller cannot reach

each other over the phone, the “request log” and the “service call log” are also kept as Google


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No. 14-2606, NLRB v. Klochko Equipment Rental Co.


Documents (or “Google Docs”),2 to which Miller has access. Id. at 239‒40 (Decision and

Direction of Election at 4‒5) (Page ID #245‒46); see also id. at 29 (Hr’g at 28) (Page ID #35).

Miller can see whether there are outstanding jobs and can update the logs when he has completed

an assignment.

       Though Saginaw is 111 miles north of Melvindale, some of the unit mechanics have

traveled to Saginaw for work. During one three-month period, when Miller was laid off, unit

mechanics were sent to Saginaw to respond to service calls. Id. at 241 (Decision and Direction

of Election at 6) (Page ID #247); see also id. at 71‒72, 82 (Hr’g at 70‒71, 81) (Page ID #77‒78,

88). More recently, Miller has had jobs that have required more than one mechanic, and the unit

mechanics have driven up to Saginaw to assist him. Id. at 241 (Decision and Direction of

Election at 6) (Page ID #247); see also id. at 68‒69 (Hr’g at 67‒68) (Page ID #74‒75).

B. Procedure

       The Union filed an election petition with the NLRB, seeking to add Miller to the

collective-bargaining unit of mechanics and truck drivers in Melvindale. Id. at 142 (Election

Petition) (Page ID #148). Specifically, the Union sought an Armour‒Globe election (named

after Armour & Co., 40 NLRB 1333 (1942), and Globe Mach. & Stamping Co., 3 NLRB 294

(1937)), which permits an employee sharing a community of interest with an already-represented

unit of employees to vote to join that unit. See id. at 236 (Decision and Direction of Election at




       2
         Google Documents is an Internet-based application that allows users to upload, edit,
store, and download any type of document. Users can also give other users access to documents.

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No. 14-2606, NLRB v. Klochko Equipment Rental Co.


1) (Page ID #242). In response to the petition, the NLRB’s Regional Director conducted a

hearing and then issued an opinion. Id.

         The opinion compared Klochko’s Melvindale location to its Saginaw location, focusing

on how each office functions. Id. at 238 (Decision and Direction of Election at 3) (Page ID

#244).     The opinion also compared the six unit mechanics’ responsibilities to Miller’s

responsibilities. Id. at 239‒40 (Decision and Direction of Election at 4‒5) (Page ID #245‒46).

After examining working conditions and considering whether there is sufficient contact among

the employees, the opinion concluded that there is a community of interest between Miller and

the Melvindale unit mechanics. Id. at 240‒42 (Decision and Direction of Election at 5‒7) (Page

ID #246‒48).      Though the opinion acknowledged there are differences between the unit

mechanics and Miller, it did not find these differences significant enough to prevent Miller from

voting to join the unit. Id. at 242‒43 (Decision and Direction of Election at 7‒8) (Page ID #248‒

49). Finally, the opinion noted that “if the petition for the self-determination election to add the

Saginaw mechanic to the existing unit is found not to be appropriate, then Miller would be

denied the opportunity to be represented in collective bargaining because there are no other

employees at the Saginaw facility which would constitute an appropriate separate unit”—an

outcome that the opinion noted the NLRB disfavored. Id. at 243 (Decision and Direction of

Election at 8) (Page ID #249).

         Klochko requested that an NLRB panel review the Regional Director’s decision, arguing

that Miller did not share a community of interest with the unit mechanics. Id. at 247 (Request for

Review) (Page ID #253). The NLRB panel denied Klochko’s request because it “rais[ed] no


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No. 14-2606, NLRB v. Klochko Equipment Rental Co.


substantial issues warranting review.” Joint Appendix Vol. II (“J.A. Vol. II”) at 260 (Denial of

Request for Review) (Page ID #270). The Armour‒Globe election proceeded, and Miller voted

to join the collective-bargaining unit in Melvindale. Klochko filed objections, alleging that the

Union had improperly influenced the election. Id. at 262 (Objs.) (Page ID #272). The NLRB

overruled the objections and certified the Union as Miller’s collective-bargaining representative.

Id. at 346 (Decision and Certification of Representative) (Page ID #356).

       Following certification, the Union asked Klochko to recognize and bargain with it,

specifically with respect to Miller. Miller was the only mechanic who did not have health

insurance or retirement benefits. J.A. Vol. I. at 241 (Decision and Direction of Election at 6)

(Page ID #247); see also id. at 128 (Hr’g at 127) (Page ID #134). Klochko refused. See J.A.

Vol. II. at 366 (Answer to Am. Compl. at 4) (Page ID #376). Based on a charge filed by the

Union, the NLRB’s General Counsel issued a complaint alleging that Klochko’s refusal violated

29 U.S.C. § 158(a)(1) and (5). Id. at 349 (Charge Against Employer) (Page ID #359); id. at 350

(Compl.) (Page ID #360); id. at 359 (Am. Compl.) (Page ID #369). Klochko maintained that the

NLRB’s certification of the Union as Miller’s collective-bargaining representative was improper.

Id. at 366 (Answer to Am. Compl. at 4) (Page ID #376). The NLRB’s General Counsel filed a

motion for summary judgment and Klochko responded. Id. at 369 (Decision and Order at 1)

(Page ID #379). The NLRB granted the motion. Id. Klochko now appeals.

                                        II. ANALYSIS

       The National Labor Relations Act (“NLRA”) vests the NLRB with the authority to

determine “the unit appropriate for the purposes of collective bargaining.” 29 U.S.C. § 159(b).


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No. 14-2606, NLRB v. Klochko Equipment Rental Co.


Because Congress recognized “the need for flexibility in shaping the bargaining unit to the

particular case,” the NLRA gives the NLRB broad discretion in making these determinations.

NLRB v. Action Auto., Inc., 469 U.S. 490, 494 (1985) (alteration omitted) (quoting NLRB v.

Hearst Publ’ns, Inc., 322 U.S. 111, 134 (1944)). Indeed, the NLRA requires only that the NLRB

select an appropriate bargaining unit, not the most appropriate bargaining unit. 29 U.S.C.

§ 159(b); American Hosp. Ass’n v. NLRB, 499 U.S. 606, 610 (1991).

       The NLRB “does not exercise this authority aimlessly.” Action Auto., 469 U.S. at 494.

Rather, “in defining bargaining units, its focus is on whether the employees share a community

of interest.” Id. (internal quotation marks omitted). The community-of-interest test examines the

following five factors:    “(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 organization and supervisory structure; (4) the bargaining history; and (5) the

extent of union organization among the employees.” Kindred Nursing Ctrs. E., 727 F.3d at 560

(quoting ADT Sec. Servs., 689 F.3d at 633‒34). This ensures that “groups of employees in the

same bargaining unit share a community of interests sufficient to justify their mutual inclusion in

a single bargaining unit.” Id. (quoting ADT Sec. Servs., 689 F.3d at 633).

       The scope of our review of the NLRB’s unit determination is “exceedingly narrow.”

Multi-Flow Dispensers of Toledo, Inc. v. NLRB, 340 F. App’x 275, 280 (6th Cir. 2009) (quoting

NLRB v. Am. Seaway Foods, Inc., 702 F.2d 630, 632 (6th Cir. 1983)). We will uphold the

NLRB’s bargaining-unit determination “unless the employer establishes that it is arbitrary,

unreasonable, or an abuse of discretion.” Kindred Nursing Ctrs. E., 727 F.3d at 558 (quoting


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No. 14-2606, NLRB v. Klochko Equipment Rental Co.


Mitchellace, Inc. v. NLRB, 90 F.3d 1150, 1157 (6th Cir. 1996)). “Any factual findings made by

the Board in the course of a unit determination, if supported by substantial evidence, are

conclusive.” Bry-Fern Care Ctr., Inc. v. NLRB, 21 F.3d 706, 709 (6th Cir. 1994); see also Multi-

Flow Dispensers of Toledo, 340 F. App’x at 280. Because the NLRB has significant discretion

in determining an appropriate bargaining unit, and because this decision is closely tied to the

unique facts of a case, the NLRB’s orders defining bargaining units are “rarely to be disturbed.”

Action Auto., 469 U.S. at 496 (quoting Packard Motor Car Co. v. NLRB, 330 U.S. 485, 491

(1947)); see also Kindred Nursing Ctrs. E., 727 F.3d at 559 (“We have even gone so far as to say

that ‘[n]ormally the Board exercises a discretion bordering on finality in determining the unit

appropriate for bargaining.’” (alterations in original) (quoting Uyeda v. Brooks, 365 F.2d 326,

330 (6th Cir. 1966))).

       Klochko advances a number of arguments as to why the NLRB’s decision is arbitrary,

unreasonable, or otherwise an abuse of discretion. None of these arguments is persuasive. First,

Klochko contends that there is no substantial evidence of “employee interchange.” Resp’t Br. at

22. In support of this argument, Klochko states that “Miller was only in Melvindale for two

days” before starting working in Saginaw and that “Saginaw is 111 miles from Melvindale.” Id.

Though Klochko is correct that Miller was in Melvindale for only two days, the Melvindale

mechanics have traveled to Saginaw on more than one occasion. Before Miller was hired, the

unit mechanics were dispatched to the Saginaw area to perform repairs. J.A. Vol. I. at 241

(Decision and Direction of Election at 6) (Page ID #247). When Miller was laid off, they did the

same. Id. More recently, when Miller has had repair jobs that have required more than one


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No. 14-2606, NLRB v. Klochko Equipment Rental Co.


mechanic, the unit mechanics have traveled to Saginaw to help him. Id. This is substantial

evidence of employee interchange. And although geographic proximity is relevant, “[it] is not

dispositive.” Bry-Fern Care Ctr., 21 F.3d at 710. The NLRB did not abuse its discretion by

acknowledging the distance between Melvindale and Saginaw but concluding that, in light of

other factors—including employee interchange—the 111 miles were not enough to preclude a

finding of a community of interest. See J.A. Vol. I. at 240‒41 (Decision and Direction of

Election at 5‒6) (Page ID #246‒47).

       Next, Klochko argues that the unit mechanics and Miller are not subject to similar

working conditions. Resp’t Br. at 23. There is substantial evidence to the contrary. Although

the Melvindale facility is larger than the Saginaw facility, and although it can handle more

complex repairs, the working conditions for the mechanics in the two facilities are similar. All

mechanics—including Miller—work from 7:30 A.M. to 4:00 P.M. J.A. Vol. I. at 241 (Decision

and Direction of Election at 6) (Page ID #247). And all mechanics—again including Miller—are

paid on an hourly basis. Id. The unit mechanics earn between $16.31 and $24.54.3 Id. Miller

earns $18.08, well within the unit mechanics’ pay scale. Id. The unit mechanics are responsible

for a range of work, from preventative maintenance to complex repairs. Id. at 238 (Decision and

Direction of Election at 3) (Page ID #244). Miller is also responsible for a range of work, also

       3
        Klochko, referencing a page from the hearing transcript, claims that “the Melvindale
mechanics” earn $32.88 an hour. Resp’t Br. at 14 n.8. The cited-to page does not support this
proposition. See J.A. Vol. I. at 44 (Hr’g at 43) (Page ID #50). The $32.88 figure appears to be
from the collective-bargaining agreement, and represents field mechanics’ base wage plus
retirement-related contributions and other benefits, not the base wage that Klochko pays the unit
mechanics—which is what the $16.31 and $24.54 figures refer to. See id. at 183‒85 (Union
Agreement at 34‒36) (Page ID #189‒91).

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No. 14-2606, NLRB v. Klochko Equipment Rental Co.


from preventative maintenance to complex repairs. Id. at 42 (Hr’g at 41) (Page ID #48). Though

Miller does earn less than field mechanics, or than class-A mechanics, id. at 241 (Decision and

Direction of Election at 6) (Page ID #247), this is likely either because he also is responsible for

preventative maintenance or because he does not have the benefit of collective bargaining.

All of the mechanics also report to Snyder. Id. at 238 (Decision and Direction of Election at 3)

(Page ID #244).

       Miller does have responsibilities that the unit mechanics do not. When Daugharty is out

of the office, Miller must respond to customer requests to rent or buy equipment. Id. at 240

(Decision and Direction of Election at 5) (Page ID #246). And when Snyder cannot reach him

by phone, Miller has to monitor the “request log” and the “service call log” on Google Docs. Id.

at 239 (Decision and Direction of Election at 4) (Page ID #245); see also id. at 29 (Hr’g at 28)

(Page ID #35). But Miller has filled in for Daugharty only once, and as the Regional Director’s

opinion noted, it took “about one-half hour.” Id. at 240 (Decision and Direction of Election at 5)

(Page ID #246). Miller’s reliance on Google Docs, though certainly different from the unit

mechanics’ experience (who use desktop computers only to log their time), see id. at 239

(Decision and Direction of Election at 4) (Page ID #245), is not so significant that it outweighs

other evidence of similar working conditions.        The NRLB did not abuse its discretion by

concluding that all of Klochko’s mechanics are subject to similar working conditions.

       Finally, Klochko argues that the unit mechanics and Miller have different benefits.

Resp’t Br. at 25. Although they have many of the same basic benefits (such as sick time,

vacation time, and paid days off), Klochko is correct that, unlike Miller, the unit mechanics have


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No. 14-2606, NLRB v. Klochko Equipment Rental Co.


health insurance as well as retirement benefits. J.A. Vol. I. at 241 (Decision and Direction of

Election at 6) (Page ID #247). These differences, however, are the result of the collective-

bargaining agreement. Id. To deny Miller’s request to join the collective-bargaining unit based

on differences that exist because Miller is not covered by the collective-bargaining agreement

would defeat the purpose of the NLRA. The NLRB did not abuse its discretion by rejecting

similar arguments. See id.

                                    III. CONCLUSION

       Because it is not arbitrary, unreasonable, or an abuse of discretion, we ENFORCE the

NLRB’s final decision.




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