The opinion
WILLIAM M. BYRNE, Sr., District Judge
(dissenting):
I respectfully dissent.
Contrary to my Brothers, I do not deem it “incumbent” upon the Board to explain its approval of bargaining units different in scope at the same warehouse facility. As noted by the Fourth Circuit, “In many eases there is no ‘right’ unit. . . . ” NLRB v. Quaker City Life Insurance Co., 319 F. 2d 690, 693 (4th Cir. 1963). Under such circumstances, the Board is not required by the Act “to choose the most appropriate unit, but only to choose an appropriate unit, within the range of several appropriate units in a given factual situation.” State Farm Mutual Automobile Insurance Co. v. NLRB, 411 F. 2d 356, 358 (7th Cir. 1969), cert, denied, 396 U.S. 832 , 90 S.Ct. 87 , 24 L.Ed.2d 83 (1969). Accord, Gallenkamp Stores Co. v. NLRB, 402 F.2d 525 (9th Cir. 1968); NLRB v. Deutsch Co., 265 F.2d 473 (9th Cir. 1959), cert, denied, 361 U.S. 963 , 80 S.Ct. 592 , 4 L.Ed.2d 544 (1960). Here the Board was confronted by two unions, on separate occasions, seeking to represent different segments of the working population at May’s warehouse facility. Local 986 petitioned for a comprehensive unit, thus leaving unresolved, until the petition two years later by Local 196, the appropriateness of alternative groupings. Merely because the Board sanctioned an overall bargaining unit at May’s warehouse does not mean that such a unit is the only one which is appropriate. Indeed, that is the teaching of the three Board decisions relied upon by the majority to lend credence to the assertion of policy deviation. Actually, a close reading of these decisions reveals a “reaffirmation to” a long standing principle of labor law, rather than a “departure from” previous Board policy.
In H. P. Wasson & Co., 153 NLRB 1499 (1965), the Company owned four retail stores and two warehouses. The Union sought a bargaining unit composed of employees working at the two warehouses, including a rug cutter and clerical employees. Excluded from the Union’s proposed unit were the following employees: truckdrivers, carpenters, painters, electricians and appliance repairmen who were “housed” at the two warehouses. The Company opposed this proposed unit, arguing that only one which included “all employees in the stores and warehouses” could be deemed “appropriate.” Although the Board agreed that the Company’s suggested unit was appropriate, it maintained that its duty under the act was to choose only an appropriate unit, not the most appropriate unit. Under the circumstances of that case, the Board was of the view *153 that the unit sought by the Union was proper:
“Accordingly, on the entire record, particularly the facts that the requested unit comprises all the Employer’s separately located warehousing operations; that there is separate supervision and the lack of substantial interchange between the employees in the warehouse and those of other locations of the Employer; that there is no history of collective bargaining; and that no union requests a broader unit, we find . . . that a unit of employees in the two warehouses is appropriate.” 153 NLRB at 1501.
Similarly, in The May Department Stores dba Famous Barr Co., 176 NLRB No. 14 (1969), the Board was again confronted with a union attempting to organize warehouse employees. There, the Union sought to represent all the employees at the Company’s warehouse service facility save for office clerical employees, guards and supervisors. Over the Company’s objection, the Board found these employees to have a sufficient community of interest to constitute an appropriate bargaining unit:
“ . . . [I]t is well settled that there may be more than one way in which employees may be grouped for purposes of collective bargaining. (Footnote omitted). The fact that a given group of employees may have an identifiable community of interests separate and distinct from other employees of an employer does not mean that the various groups of employees do not also have a larger common community of interests. Indeed, Section 9(b) of the Act reflects this basic fact of industrial and mercantile life in establishing the presumptive appropriateness of an employer unit, craft unit, plant unit, or subdivision thereof. Quite obviously, the fact that a subdivision of a plant may be appropriate does not preclude a finding that such employees may also appropriately be included in one of the larger enumerated units. We therefore reject the Employer’s contention that our prior decisions preclude the establishment of the Facility-wide unit sought by the Petitioner.” (Emphasis supplied) .
Finally, in R. H. Macy Co., Inc., 180 NLRB No. 59 (1969) the Company opposed a unit of all warehouse employees, truckdrivers and garagemen at its service building on the ground that it was not limited to employees engaged in warehousing and delivery functions. The Board again rejected an attempt by an employer to supplant one appropriate unit with another: “. . . the fact that workshop employees are more skilled than warehousing employees no more suggests the inappropriateness of the building-wide unit than does the fact that a plant may have employees of varying skills suggest the inappropriateness of a plantwide unit.” In sum, in these decisions, the Board was not articulating policy guidelines establishing a proper warehouse bargaining unit, but was merely seeking to determine whether the units in question were appropriate.
The instant factual situation is remarkably similar to the one presented the court in NLRB v. Morganton Full Fashioned Hosiery Co., 241 F.2d 913 (4th Cir. 1957). There, the United Textile Workers of America was decerti-fied, pursuant to a Board election, as the bargaining representative of all the employers’ production and maintenance workers. Two years later, in 1955, the American Federation of Hosiery Workers was elected and duly certified as the bargaining representative of the employers’ knitters, knitter-trainees and helpers. The employers refused to bargain with this union, arguing that the limited scope of the bargaining unit represented Board approval of employee groupings to the extent of organization. Although the court condemned such a practice, it disagreed with the employers that it had been a controlling factor in the Board’s determination:
“The American Federation of Hosiery Workers, which applied to the Board in 1955 to certify the knitters as a *154 separate bargaining unit, was not the same union which several years before had represented all the production employees and had been decertified in 1953; and it made no effort in 1955 to organize the entire body. The record lacks the positive evidence, . . . that both the union and the Board chose the smaller bargaining unit only because organization of all production workers had failed.” 241 F.2d at 916 .
As was true in Morgcmton, the case before us is free of any “positive evidence” that the Board’s approval of the less encompassing unit was solely attributable to the extent of Union organization. Indeed, the majority point out that within the so-called “fragmented unit,” there was “no overwhelming union sentiment.” Accordingly, the only “compelling inference from the record” that I can make is that Local 196, some 24 months after another brotherhood had been rejected as the bargaining representative of all the employees of the facility, petitioned the Board to represent a cohesive, but less inclusive, group of workers employed at May's warehouse.
I would enforce the Board’s order.