Judge & Dolph, Ltd.

National Labor Relations Board - Board Decisions

Jan 31, 2001

333 N.L.R.B. 175 (N.L.R.B. 2001)

JUDGE & DOLPH, LTD. 175
Judge & Dolph, Ltd., a Division of Wirtz Corp. and
Teamsters Local Union No. 325. Case 33–CA–
11482
January 31, 2001
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
HURTGEN AND WALSH
The issues raised in this case,1 which involves the
Board’s accretion doctrine, is whether the judge correctly
found that the Respondent violated Section 8(a)(1) and
(2) of the Act by compelling employees, as a condition
of employment, to withdraw membership from their un-
ion and to join another union that represented an existing
unit of the Respondent’s employees, and by thereafter
applying to these employees the terms of an existing col-
lective-bargaining contract between the Respondent and
incumbent union.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge's rulings, findings, and conclusions and
to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Judge & Dolph, Ltd., a Divi-
sion of Wirtz Corporation, Rockford, Illinois, its officers,
agents, successors and assigns, shall take the action set
forth in the Order.

Debra L. Stefanik, for the General Counsel.
Scott A. Gore and Arthur B. Muchin (Laner, Muchin, Dom-
brow, Becker, Levin & Tominberg), of Chicago, Illinois, for
the Respondent.
Marc M. Pekay, of Chicago, Illinois, for the Charging Party.
DECISION
STATEMENT OF THE CASE
WILLIAM J. PANNIER III, Administrative Law Judge. I
heard this case in Rockford, Illinois, on November 14, 1996.1
On June 26 the Regional Director for Region 33 of the National
Labor Relations Board (the Board) issued a complaint and no-
tice of hearing, based on an unfair labor practice charge filed on
January 19, alleging violations of Section 8(a)(1) and (2) of the
National Labor Relations Act (the Act). All parties have been
afforded full opportunity to appear, to introduce evidence, to
examine and cross-examine witnesses, and to file briefs. Based
on the entire record, on the briefs which were filed, and on my
observation of the demeanor of the witnesses, I make the fol-
lowing

1 On May 6, 1997, Administrative Law Judge William J. Pannier III
issued the attached decision. The Respondent filed exceptions and a
supporting brief. The General Counsel filed a brief in support of the
judge’s decision and an answering brief.
1 Unless stated otherwise, all dates occurred during 1996.
FINDINGS OF FACT
I. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
This case presents allegations that Section 8(a)(1) and (2) of
the Act have been violated. Those allegations arise from the
sale of certain assets by Continental Distributing Co., Inc.
(Continental) to Judge & Dolph, Ltd., a Division of Wirtz Cor-
poration (Respondent), a Delaware corporation with an office
and place of business in Rockford, engaged in the business of
wholesale selling and distributing alcoholic liquors and wines
to retailers.2 Among those assets was a warehouse facility lo-
cated in Rockford. Respondent began conducting operations
there on January 9. Prior to that sale, warehouse employees
working in Rockford for Continental had been represented by
Teamsters Local Union No. 325 (the Union).3
Since 1989 Respondent had been operating from a smaller
facility in Rockford. For over a decade prior to January 9,
however, it had not employed at that facility any warehouse
employees who were permanently assigned to Rockford. In
contrast, truckdrivers had been assigned to work out of that
smaller facility and they had been represented by Teamsters
Local Union No. 705. The smaller facility was closed when
Respondent began Rockford operations at the one acquired
from Continental.
Prior to January 9 Respondent had been conducting its ware-
house operations at two other northern Illinois facilities: at a
full-service distribution center located in Elk Grove Village and
at a warehouse located in Rolling Meadows. Warehouse em-
ployees were employed at both facilities. They were being
represented, in a single combined bargaining unit, by Liquor
and Wine Sales Representatives, Warehousemen, Clerical,
Distillery, Rectifying, Tire, Plastic and Allied Workers’ Union
Local No. 3 (Local 3).4
Respondent had initially intended to conduct the same type
of operation at the newly acquired Rockford facility as it had
been conducting at the smaller one in Rockford. That is, it did
not intend to permanently assign any warehouse employees to
work there. But, prior to January 9 it changed direction in that
regard. Its officials decided to employ warehouse employees at
Rockford. They also decided to accrete those warehouse em-
ployees into Local 3’s then-existing two-facility bargaining
unit, so that warehouse employees at all three facilities—Elk
2 Respondent acknowledges that, at all material times, it has been
engaged in commerce within the meaning of Sec. 2(2), (6), and (7) of
the Act, based on the admitted facts that, in conducting the above-
described operations during calendar year 1995, it derived gross reve-
nues in excess of $500,000 and, further, purchased goods valued in
excess of $50,000 which it received in Rockford directly from points
outside of Illinois.
3 At all material times the Union has been a labor organization
within the meaning of Sec. 2(5) of the Act.
4 The parties stipulated that, at all material times, Local 3 has been a
labor organization within the meaning of Sec. 2(5) of the Act. Though
served with a copy of the Order setting date, time, and place of hearing
(G.C. Exh. 1(g)), Local 3 did not enter an appearance at the hearing.
333 NLRB No. 19
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 176
Grove Village, Rolling Meadows, and Rockford—would be
encompassed by a single bargaining unit represented by a sin-
gle bargaining agent. The Rockford-based truckdrivers would
continue to be represented by Teamsters Local Union No. 705.
On January 9, Respondent began operating from the newly
acquired Rockford facility with three warehouse employees:
Thomas F. Bessert, Randy Bredeson, and Scott Cornelius.
Respondent does not dispute that those three employees had
been told that, to be hired, they would each have to withdraw
from membership in the Union and become members of Local
3. Proof of withdrawal from the Union’s membership had to be
submitted to Respondent. Later during January, representatives
of Local 3 journeyed to Rockford and were allowed to meet
with the three warehouse employees on company time and
premises. They secured membership applications and checkoff
authorizations from Bessert, Bredeson, and Cornelius.
Respondent contends that its actions amounted to no more
than a lawful accretion of Rockford warehouse employees to an
already existing bargaining unit, based on a community of in-
terest shared by all employees following the acquisition. The
General Counsel and the Union dispute that conclusion. The
complaint alleges that Respondent unlawfully accreted Rock-
ford warehouse employees to the formerly two-facility unit
represented by Local 3 and, moreover, that Respondent unlaw-
fully compelled Bessert, Bredeson, and Cornelius to withdraw
from membership in the Union and to become members of
Local 3. For the reasons set forth post, I conclude that a pre-
ponderance of the credible evidence supports those allegations.
B. The Pretransfer Situation
Continental had been a wholesale distributor of liquor and
wine products with facilities, at least, in Rosemont, Illinois, a
suburb of Chicago, and in Rockford, approximately 80 miles
from the Rosemont facility. The one at Rockford had offices
and a warehouse with docks. It was operated by Continental as
a full-service warehouse. All products sold from there were
either warehoused on the premises or were ordered for delivery
to Rockford and, eventually, to customers.
During the period immediately preceding the facility’s trans-
fer to Respondent, two full-time warehouse employees and
approximately eight truckdrivers worked there for Continental.
As dictated by business, truckdrivers would sometimes work in
the warehouse, helping and performing the same duties as
warehousemen.
All operations at Continental’s Rockford facility were under
the immediate supervision of the general manager located there.
That had been Ken Kotlarz for the last few years of Continen-
tal’s operation of that facility. Kotlarz was responsible for such
matters as hiring, firing, sales, and purchasing. In short, that
facility operated under Continental pretty much as a self-
contained one.
As set forth in subsection A, prior to January 9 Respondent
had operated at three northern Illinois locations. At Elk Grove
Village it operated a distribution center which was its headquar-
ters and administrative and sales center. There, also, Respon-
dent operated a warehouse. A conveyor system runs through it.
Warehouse operations, as described more fully in subsection D,
infra, are divided into four areas: split aisle, full-case flow rack
or speed line, yellow rack or odd ball, and bulk warehouse stor-
age. Also located there during January had been a bond room
for storage of imported spirits.
The Rolling Meadows facility, located about a 15-minute
drive from Elk Grove Village, was opened by Respondent dur-
ing September 1995, about 4 months before Respondent ac-
quired the Rockford facility from Continental. Only bulk
warehouse storage is located at Rolling Meadows. Apparently,
no products are shipped directly to customers from that loca-
tion. Instead, product is shipped from there to Elk Grove Vil-
lage from which it, then, is shipped to retailers.
During 1989 Respondent acquired certain assets of Janenicke
Distributing. Included was a facility in Rockford. Initially,
warehouse employees were sent there by Respondent from Elk
Grove Village. They worked at closing down the warehouse
storage operation that had been conducted there. Thereafter,
Respondent employed no warehouse employees at Rockford.
The only operation conducted there was cross-docking: each
day merchandise was delivered there from Elk Grove Village,
the merchandise was unloaded on the dock and allocated for
delivery to Rockford-area customers. It then was loaded onto
smaller vehicles and their drivers made those local deliveries.
Respondent’s truckdrivers, including those stationed at
Rockford, were represented by Teamsters Local Union No.
705, while Local 3 represented Respondent’s warehouse em-
ployees at Elk Grove Village and, since September 1995, at
Rolling Meadows. Collective-bargaining contracts between
those parties were negotiated, with the most recent one between
Local 3 and Respondent having a stated term of October 1,
1995, through September 30, 1997, with provision for annual
renewal absent notice by one of the parties of desire to termi-
nate or modify that contract. Its recognition provision, article
1, states that Local 3 is recognized “as the sole and exclusive
bargaining agent for all warehouse employees of [Respondent]
including but not limited to general warehouse workers, truck
helpers, checkers, truck movers, picker operators, and forklift
operators,” excluding “office and clerical employees, teamsters,
salesmen, guards, watchmen and professional and supervisory
employees as defined in the” Act.
Continental and the Union had also been parties to a collec-
tive-bargaining contract at the time that the Rockford facility
was transferred to Respondent. That contract had an effective
term which ended on March 30, 1997, with provision for an-
nual renewal absent notice by one of the parties of desire to
terminate, amend, or modify it. Article I(1) of that contract
states that Continental “recognizes the Union as the exclusive
representative of all liquor drivers, relief drivers, helpers, ware-
housemen, and platform men employed by” it. Despite the
seeming breadth of that language, John D. Calhoun, the Un-
ion’s president, testified that none of Continental’s other loca-
tions were covered by that contract and there is no evidence
contradicting that testimony.

C. Transfer of the Rockford Facility to Respondent
By letter of November 30, 1995, Continental’s vice president
notified the Union that Continental was planning to sell most of
its assets to Respondent on December 30, 1995, after which it
JUDGE & DOLPH, LTD. 177
would cease operations in Rockford. The letter further states
that Continental understood that Respondent “INTENDS TO
OPERATE [the Rockford] LOCATION AND PROVIDE
EMPLOYMENT OPPORTUNITIES FOR MOST, IF NOT
ALL OF CONTINENTAL’S EMPLOYEES.”
Warehouse employee Bessert testified that on December 29,
1995, he had been summoned to Kotlarz’ Rockford office
where Kotlarz said that he wanted Bessert and the other full-
time warehouse employee, Randy Bredeson, as well as then-
truckdrivers Scott Cornelius and John Rewerts, to work for
Respondent “in the warehouse as warehousemen.”5 According
to Bessert, Kotlarz said that, to work for Respondent, Bessert
would have to take a drug test, fill out a new job application
“and then I would have to go and get the withdrawal card from
[the Union] and we would be required to join Local 3 out of
Chicago.” Though he appeared as a witness for Respondent,
Kotlarz did not deny having made those remarks to Bessert on
December 29, 1995.
Nor did Kotlarz deny Bessert’s testimony that when Bre-
deson and Rewerts had arrived in the office that day, as Kotlarz
was speaking to Bessert, Kotlarz “brought both of those men
into . . . his office and sat down and told them exactly what he
told me and we all three agreed to” take the drug test, fill out
applications, withdraw from the Union, and join Local 3. On
the following day, however, Kotlarz informed the three em-
ployees that “an agreement on the lease for the warehouse had
not been reached and that we were to continue working for
Continental . . . until the agreement would be reached on the
building.”
Calhoun testified that, during December 1995, he had spoken
with Kotlarz about sale of the Rockford facility. At some point
Kotlarz faxed Calhoun the card of Chris Mueller, Respondent’s
vice president operations manager, who was in charge of all
functions at Elk Grove Village and of its satellite warehouse in
Rolling Meadows. “[I]n late December,” he testified, Calhoun
tried to telephone Mueller, at the number shown on the card,
but was told that Mueller was not available. Calhoun left his
telephone number, requesting that Mueller call him. Instead,
Calhoun received a call from someone who identified himself
as Respondent’s attorney. Calhoun testified that he told the
attorney that the Union should represent the Rockford ware-
house employees and he requested a meeting. The attorney
responded that a meeting did not seem necessary and, if there
was a dispute about representation of employees at Rockford,
that Calhoun should contact Local 705.
Respondent did not acquire Continental’s assets until, ac-
cording to a stipulation of the parties, January and did not begin
operating at the former Continental facility until January 9.
Mueller testified that initially “we believed [there] was going to
be a January 2nd closing.” But, due to a problem with the
quantity and value of inventory at Continental’s Rosemont

5 As pointed out in subsection B, Continental’s Rockford truckdriv-
ers occasionally worked in the warehouse, performing the same work
as warehouse employees. Cornelius and Rewerts had been the truck-
drivers who had done so the most.
facility,6 the final documents were not signed until Tuesday,
January 9. On that same date, according to Mueller, Respon-
dent began operating a self-sufficient distribution center, appar-
ently like that at Elk Grove Village, in Peoria, Illinois. How-
ever, in contrast to what occurred at Rockford, Local 3 was not
recognized as the bargaining agent of warehouse employees
working at the Peoria facility. Apparently, that was because
Peoria lies outside of the territorial jurisdiction of Local 3.
Mueller testified that Respondent had initially planned to
send Elk Grove Village warehouse employees to Rockford
temporarily, to clear out the inventory and equipment there
which had not been sold to Respondent, so that it could be sent
to Continental’s Rosemont facility. Thereafter, only cross-
docking operations would be conducted at the newly acquired
Rockford facility, as had been conducted at the smaller former-
Janenicke Rockford warehouse, which Respondent would
close. However, claimed Mueller, business picked up at Elk
Grove Village and, due to the delay in acquiring Continental’s
assets, no Elk Grove Village personnel were available to work
in Rockford. So, Respondent’s officials reversed direction and
decided to hire former Continental warehouse employees to
clear out the facility which Continental had been operating.
They also decided to utilize those warehouse employees in the
cross-docking operation which would be relocated there from
the former Janenicke warehouse.
Kotlarz, who became Respondent’s general manager at the
Rockford facility, testified that, from Tuesday, January 9
through Thursday, January 11, Respondent’s newly hired per-
sonnel began inventorying and preparing to return to Continen-
tal the assets in the facility which Respondent had not acquired.
Cross-docking operations began there on Friday, January 12.
Kotlarz further testified that on January 9 he had told
Bessert, Bredeson, and Cornelius that “a position was available
to them based on the fact that they use Local 3 employees and
that they would have to get a withdrawal card from the Union
and sign up with Local 3.” The three employees were allowed
to go to the Union’s hall, while on Respondent’s payroll, to
obtain withdrawal cards. They were obliged to produce those
withdrawal cards and permit Kotlarz to inspect and to photo-
copy them. The copies were then transmitted by Kotlarz to
Respondent’s Elk Grove Village headquarters.
Respondent’s officials never explained why it had insisted
that Bessert, Bredeson, and Cornelius obtain and produce with-
drawal cards from the Union. Nor is a legitimate explanation
advanced in Respondent’s brief. Even assuming arguendo that
a legitimate accretion had occurred, there seems no valid reason
for Respondent to have intervened and insisted that withdrawal
cards be obtained and, then, be produced for Respondent to
inspect and copy them. Absent such a legitimate explanation,
the only explanation suggested by the record is that Respondent
wanted to eliminate any possibility of a competing claim to
representation based on membership in a labor organization
other than Local 3. Of course, as discussed in section II, infra,
that hardly is a reason which is legitimate under the Act.
6 It appears that Respondent purchased Continental’s Rosemont
merchandise, but not the facility, itself, since Respondent later leased
space from Continental in that facility.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 178
On January 22, well before expiration of the 30-day period
specified in the union-security provisions of Respondent’s con-
tract with Local 3, that labor organization’s representatives
appeared at Rockford. Kotlarz ushered Bessert, Bredeson, and
Cornelius from their work stations into the salesmen’s room
where they met with Local 3’s representatives who said,
Bessert testified without contradiction, “they would be repre-
senting us.” That statement, of course, reinforced what Kotlarz
had said during the preceding month, as described above. The
three warehouse employees signed applications for membership
in Local 3 and, also, checkoff authorizations produced by Local
3’s representatives.
D. Operations After January 9
By the end of January, Respondent was operating facilities at
Elk Grove Village, Rolling Meadows, Rockford, and Peoria.
During February it leased commercial warehouse space from a
firm called Quality House at a location approximately 5 min-
utes driving time from Elk Grove Village. The bond room was
relocated to Quality House. During March it leased additional
warehouse space in Continental’s Rosemont facility.
On July 1 Respondent opened a 140,000-square-foot bulk
warehouse in Wood Dale, a suburb of Chicago which is ap-
proximately a 5-minute drive from Elk Grove Village. That
allowed it to conclude its lease with Continental. As of the
hearing, Respondent was continuing to lease space at Quality
House, though it intended to relocate the bond room to Rolling
Meadows and, presumably, terminate the lease with Quality
House. In any event, by the time of the hearing, it was operat-
ing facilities at Elk Grove Village, Rolling Meadows, Wood
Dale, Rockford, Quality House, and Peoria.
There is scant evidence as to what type of operation is con-
ducted by Respondent at Peoria, other than that it is a distribu-
tion center similar to that operated by Respondent at Elk Grove
Village. At the latter, a two-tier conveyor system runs through
the warehouse which is divided into four areas. One is desig-
nated the split aisle. Handled there are orders involving less
than a case of spirits. Bottles are picked from a four-pod carou-
sel which holds them. The bottles are placed in cases for each
customer and the cases are loaded onto the conveyor for
movement to the area from which they will be loaded on trucks
and shipped.
The second warehouse area is designated the full case flow
rack or speed line. Cases of product are picked and loaded onto
the conveyor for movement to the loading and shipping loca-
tion. The third area is designated as the bulk warehouse. In
that area, Respondent stores on pallets an approximately 3-day
supply of cases of its fastest moving products. As ordered,
pallets are loaded onto the conveyor. Unclear is whether those
pallets move to the yellow racking or speed line areas to be
allocated by order or, instead, whether that occurs in the load-
ing and shipping location.
The final warehouse area at Elk Grove Village is designated
yellow rack or odd ball. There, Respondent stores on steel
racks cases of products which are the slowest moving full-case
items. As with the other three areas, whenever one of those
items is ordered, it is pulled from the rack, loaded onto the
conveyor, and moves to the loading and shipping location.
By the time of the hearing there were three warehouse shifts
at Elk Grove Village. Mueller estimated that, at any given
time, “probably 95 to 100” warehouse employees are employed
there, about 25 of whom work on day shift. According to
Mueller, four to six warehouse employees ordinarily work in
the bulk warehouse area during the day shift and one-to-four
employees will work there during the night shift, with “none”
working there during the intervening shift. However, whenever
an unusually high number of loads arrives at Elk Grove Village,
as many as 15 warehouse employees may be assigned to the
bulk warehouse area to unload and store that merchandise.
Both Wood Dale and Rolling Meadows are bulk storage
warehouses, apparently similar to the bulk storage warehouse
area at Elk Grove Village. Stocked at each of those satellite
warehouses is merchandise for which there is no room at Elk
Grove Village. That merchandise is then fed to Elk Grove
Village as needed for shipment from that distribution center.
At the time of the hearing only one warehouse employee was
working at Rolling Meadows, according to Mueller, “because
there is not a lot of activity going on, but prior to right now
there . . . were three or four employees working there.” “I think
four or five,” he further testified, warehouse employees work at
Wood Dale. Mueller testified that Respondent had no employ-
ees working at Quality House at the time of the hearing.
From January 9 through September 30 Respondent had only
the three initially hired warehouse employees assigned to work
at Rockford. For approximately 45 days, they, as well as em-
ployees occasionally dispatched from Elk Grove Village to help
them, had worked at clearing out the Rockford facility.
Bessert, Bredeson, and Cornelius also performed cross-docking
during that period and, after it, through September 30. How-
ever, as of October 1, Respondent made two changes in opera-
tions at Rockford. First, it began warehousing there, Mueller
testified, “approximately 300, 350 of the fastest moving, what
we call SKU’s [sic] which are brand codes which are individual
items.” Those items are picked from the warehouse and added
to other products still arriving from Elk Grove Village each
day, after which the consolidated orders are then delivered to
retailers.
Second, a night shift was added at Rockford on October 1.
To staff it, two warehouse employees—Marc Brennan and Rick
Nelson—were transferred from Elk Grove Village, where they
had been hired and were being trained in warehouse operations
as conducted by Respondent. Bredeson also was moved from
day to night shift at Rockford. The night-shift warehouse em-
ployees pick merchandise which has been ordered, move it to
the loading dock and, then, combine it with merchandise arriv-
ing from Elk Grove Village, now at approximately 10:30 p.m.
The combined orders are then loaded on the vehicles whose
drivers continue to make deliveries to Rockford-area retailers.
According to Mueller, the two day-shift warehouse employees
“would be receiving merchandise and putting it away” in the
Rockford warehouse, although they also will help the night
shift complete staging and loading merchandise in the morn-
ings, whenever that work has not been completed by the time
that Bessert and Cornelius arrive for work.
JUDGE & DOLPH, LTD. 179
II. DISCUSSION
As set forth in section I,C, above, Respondent insisted that
Bessert, Bredeson, and Cornelius withdraw from membership
in the Union, and prove that they had done so, as a condition of
employment with Respondent. Section 8(a)(1) of the Act
makes it an unfair labor practice “to interfere with, restrain or
coerce employees in the exercise of the rights guaranteed in
section 7” of the Act. Two rights guaranteed employees by
Section 7 are “to . . . join . . . labor organizations” and “to bar-
gain collectively through representatives of [employees’] own
choosing[.]” Obviously, those statutorily guaranteed rights are
interfered with whenever an employer insists that, to obtain
employment, applicants must withdraw from membership in a
particular labor organization. More specifically, such insis-
tence deprives those employees of their statutory right to re-
main members of a labor organization which they have chosen
to join.
Furthermore, like authorization cards, union membership is a
long established means for showing that a labor organization is
authorized to represent and bargain on behalf of employees
who are its members. Campbell Machine Co., 3 NLRB 793,
798 (1937). More recently, see NLRB v. Rayel Electric Co.,
709 F.2d 939 fn. 4 (5th Cir. 1983). The natural effect of insist-
ing that Bessert, Bredeson, and Cornelius withdraw from mem-
bership in the Union is to have deprived them of one means of
proving that the Union continued to be their desired bargaining
agent. In turn, such action naturally restricted, if not deprived,
the Union’s ability to claim recognition on their behalf as those
three warehouse employees’ bargaining agent. That is, by in-
sisting that Bessert, Bredeson, and Cornelius withdraw from the
Union, Respondent eliminated their membership in the Union
as a means by which the latter could prove that it continued to
be their designated bargaining agent. Therefore, by insisting
that those three warehouse employees withdraw from the Un-
ion’s membership as a condition of obtaining employment,
Respondent interfered with, restrained, and coerced them in the
exercise of rights guaranteed by Section 7 of the Act, thereby
violating Section 8(a)(1) of the Act.
Beyond that, Respondent’s insistence that Bessert, Bredeson,
and Cornelius withdraw from the Union’s membership had
been an integral aspect of its accretion of Rockford warehouse
employees to the unit represented by Local 3. Even assuming,
arguendo, that Respondent properly accreted those employees
to that unit, there has been no showing that the Union would
have necessarily insisted that those three employees obtain
membership withdrawals as a consequence of having to ob-
serve the union-security obligations of Local 3’s contract with
Respondent. In short, Respondent usurped a choice which
belonged in that respect to the Union.
In the process of usurping that choice, Respondent naturally
advanced the cause of Local 3’s representation situation. As set
forth above, union membership is one means by which a labor
organization may demonstrate its designation of bargaining
agent status. Withdrawals from membership eliminate the pos-
sibility of membership’s use as a basis for claiming representa-
tive status. To the extent that Local 3 benefited from elimina-
tion of that basis for a potentially competing claim to represent
the Rockford warehouse employees, it received assistance from
Respondent.
Section 8(a)(2) of the Act provides, in pertinent part, that it is
an unfair labor practice “to . . . interfere with the . . . admini-
stration of any labor organization or contribute . . . other sup-
port to it[.]” Here, by imposing withdrawal from the Union as
a condition of hiring Bessert, Bredeson, and Cornelius, Re-
spondent not only inherently interfered with the Union’s ability
to continue representing Rockford warehouse employees, but it
naturally strengthened—supported—Local 3’s situation in what
has become a dispute over whether its representation of Re-
spondent’s warehouse employees should have been extended to
the Rockford warehouse employees formerly employed by
Continental.
In that respect, it matters not whether Respondent’s assis-
tance to Local 3—by insisting that Bessert, Bredeson, and Cor-
nelius withdraw from the Union—had been malevolently moti-
vated by an actual intention to eliminate the potentially compet-
ing representation claim of the Union to represent Rockford
warehouse employees. “We find nothing in the statutory lan-
guage prescribing scienter as an element of the unfair labor
practice here involved.” Garment Workers (Bernhard-
Altmann) v. NLRB, 366 U.S. 731, 738–739 (1961). Accord-
ingly, “neither good faith nor lack of intent to violate the Act
are of significance . . . for it is the effect, and not the motivation
of an action, which determines whether the Act has been vio-
lated.” Double A Products Co., 134 NLRB 222, 228 (1961),
and cases cited in footnote 5.
Respondent’s insistence that Bessert, Bredeson, and Corne-
lius withdraw from membership in the Union, as a condition for
being hired by it, naturally supported Local 3’s representation
position at Rockford. Therefore, by having done so, Respon-
dent unlawfully assisted Local 3 and violated Section 8(a)(2) of
the Act.
Beyond unlawful insistence that Bessert, Bredeson, and Cor-
nelius withdraw from the Union, Respondent also insisted that
they become members of Local 3, to be employed by Respon-
dent. It made its facility and the paid time of those three em-
ployees available on January 22, so that Local 3 could enroll
the three Rockford warehouse employees as members and, also,
secure checkoff authorizations from each of them. Of course,
January 22 is less than 30 days from the time that Bessert, Bre-
deson, and Cornelius had begun working for Respondent.
There is no allegation that Respondent had violated Section
8(a)(3) of the Act, though Respondent’s above-reviewed con-
duct had an obvious affect of depriving Bessert, Bredeson, and
Cornelius of their statutory 30-day period to decide whether or
not to comply with the union-security requirements of Respon-
dent’s collective-bargaining contract with Local 3. In addition,
by insisting that those three employees become members of
Local 3, Respondent deprived them of rights to which they are
entitled under the principles enunciated in Communications
Workers v. Beck, 487 U.S. 735 (1988), and California Saw &
Knife Works, 320 NLRB 224 (1995).
Even so, absence of allegation that Section 8(a)(3) of the Act
was violated does not bar consideration of that same conduct
under Section 8(a)(1) and (2) of the Act. By insisting that
Bessert, Bredeson, and Cornelius become members of Local 3,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 180
Respondent rendered support to the latter by enabling it to fa-
cially perfect a claim to representation of those three employees
and, concomitantly, to strengthen its position against any com-
peting representation claim by the Union. In so doing, Respon-
dent injected itself into a situation where it should have “kept
[its] hands off, and completely.” NLRB v. Thompson Products,
130 F.2d 363, 368 (6th Cir. 1942). Further, its conduct inher-
ently deprived those three warehouse employees of the statu-
tory right to decide whether or not to become members of Local
3. Therefore, Respondent violated Section 8(a)(1) and (2) of
the Act by insisting, as a condition of employment, that Bessert,
Bredeson, and Cornelius become members of Local 3 and by
assisting Local 3 in ensuring that those three employees did
become its members.
As to Respondent’s accretion of the Rockford warehouse
employees to the then-existing bargaining unit of Elk Grove
Village and Rolling Meadows warehouse employees, prior to
January 9 Continental’s Rockford warehouse employees had
been included in a single or combined bargaining unit with
Rockford-based truckdrivers. Employees in that single or com-
bined unit had been represented historically by the Union. That
historic Rockford unit was bifurcated following transfer of the
Rockford facility from Continental to Respondent, with the
warehouse employees being assigned representation by Local 3
and Rockford truckdrivers being represented by Teamsters
Local Union No. 705.
In actuality, there was no change in Rockford truckdrivers’
representation. For, since it had begun operating from the for-
mer Janenicke facility during 1989, Respondent’s truckdrivers
there had been represented by Teamsters Local Union No. 705.
Those were the only truckdrivers who continued driving for
Respondent out of Rockford on and after January 9. As to them
the lone difference was the facility from which they delivered
merchandise: from the former Janenicke facility prior to Janu-
ary 9 and from the former Continental one on and after that
date. Accordingly, no accretion of Rockford-based truckdrivers
occurred as a result of Respondent’s initiation of operations
from the former Continental facility in Rockford. Respondent’s
Rockford truckdrivers had been and continued to be repre-
sented by Teamsters Local Union No. 705.
There was an allegation in the complaint that Respondent
unlawfully refused to consider for employment former Conti-
nental truckdrivers. However, that allegation was withdrawn
based on a settlement of it. More importantly, so far as the
record discloses, there never was an allegation that Respondent
had violated the Act when it continued recognizing Teamsters
Local Union No. 705 as the bargaining agent of Respondent’s
Rockford employees. In consequence, the unlawful accretion
allegation is confined to warehouse employees whom Respon-
dent has been employing at Rockford.
As to that allegation, the only contention pertains to Respon-
dent’s recognition of Local 3 as the collective-bargaining agent
of those employees. There is no allegation that Respondent
should have recognized the Union as the bargaining agent of
the newly hired Rockford warehouse employees. As a result,
the only issue presented here is whether, instead of recognizing
Local 3 as the bargaining agent of Rockford warehouse em-
ployees, Respondent should have regarded those employees as
unrepresented or, at least, petitioned for a representation elec-
tion under Section 9(c)(1)(B) of the Act or, alternatively, for
unit clarification under the Board’s Rules and Regulations,
Section 102.60(b) and Statements of Procedure, Section 101.17.
See Firemen & Oilers IBF&O, 145 NLRB 1521–1524 (1964);
Shop Rite Foods, 247 NLRB 883 (1980); and Holly Hill Fruit
Products, 256 NLRB 209 fn. 1 (1981).
A violation of Section 8(a)(2) of the Act, of course, can exist
even though, absent unlawful recognition of a labor organiza-
tion, employees would be left without representation. For,
underlying Section 8(a)(2) of the Act is the fundamental policy
that employees “should be given an opportunity to determine
for themselves which union they wish to represent them, or
whether they wish to reject union representation entirely.”
Sheraton-Kauai Corp. v. NLRB, 429 F.2d 1352, 1354 (9th Cir.
1980). Accordingly, to establish that Respondent unlawfully
extended historic representation of Local 3 to Rockford ware-
house employees, the General Counsel is not required to allege
or establish that the Union, or any other labor organization, had
instead to be recognized. “Under [Sec.] 7 of the Act the em-
ployees have ‘the right to refrain from any or all’ concerted
activities relating to collective bargaining . . . as well as the
right to join a union and participate in those concerted activi-
ties.” NLRB v. Textile Workers Local 1029 (International Pa-
per), 409 U.S. 213, 216 (1972).
Existence of that statutory right does not bar altogether,
without an election, the ability of employers and labor organi-
zations to add to an existing bargaining unit newly created clas-
sifications or employees of newly acquired or expanded facili-
ties. For, even if employees are not accorded a right to partici-
pate in an election of representative, nor a right to demonstrate
their support of a particular representative by some other
means, such as signed authorization cards or union member-
ship, they still may be included in an already existing unit un-
der the doctrine of accretion. That doctrine is essentially a
“process through which the Board has added new employees to
an existing group without holding an election.” Westinghouse
Electric Corp. v. NLRB, 440 F.2d 7, 11 fn. 3 (2d Cir. 1971),
cert. denied 404 U.S. 853 (1971).
“An accretion is simply the addition of a relatively small
group of employees to an existing unit where these additional
employees share a sufficient community of interest with the
unit employees and have no separate identity.” Lammart In-
dustries v. NLRB, 578 F.2d 1223, 1225 fn. 3 (7th Cir. 1978).
Accord: NLRB v. R. L. Sweet Lumber Co., 515 F.2d 785, 794
(10th Cir. 1975), cert. denied 432 U.S. 986 (1977); and West-
inghouse Electric Corp. v. NLRB, supra at 10. It is to that doc-
trine which Respondent points in arguing that the Rockford
warehouse employees have no separate identity and, con-
versely, shared a sufficient community of interest with Respon-
dent’s Elk Grove Village and Rolling Meadows warehouse
employees, as of January 9, to be regarded as a proper accretion
to the historic warehouse employee unit represented by Local 3.
Unlike the situation with Rockford-based truckdrivers, there
is no basis for concluding that Local 3 had been representing
warehouse employees working regularly for Respondent at
Rockford. When it began operating out of the former Janenicke
facility there during 1989, Respondent had dispatched a crew of
JUDGE & DOLPH, LTD. 181
Elk Grove Village Local 3-represented warehouse employees to
Rockford. There, they worked for approximately 2 or 3
months, essentially clearing out that facility. However, accord-
ing to Mueller, “There was minimal warehouse work that had
to be done at that [Rockford] facility after December ‘89.”
What occasional warehouse work had to be performed there
was done by warehouse employees sent from Elk Grove Vil-
lage on what Mueller characterized as an “ad hoc” basis to
“work on your unsaleables.” Of course, those warehouse em-
ployees were represented by Local 3 while working at Elk
Grove Village and Respondent continued to recognize Local 3
as their bargaining agent during the brief periods—“3/4 days,”
Mueller testified—while they would work in Rockford. None-
theless, for over half a decade no warehouse employees had
regularly worked for Respondent at Rockford.
By January 9 Respondent also had been operating a ware-
house facility at Rolling Meadows for approximately 4 months.
It had recognized Local 3 as the bargaining agent of the one
warehouse employee working there at the time of the hearing
and, also, of the three or four warehouse employees who had
worked there from September 1995 until Respondent reduced
the warehouse-employee complement to a single employee,
shortly before the hearing in the instant proceeding. However,
in contrast to what would occur on January 9 at Rockford, the
three or four warehouse employees at Rolling Meadows had
been transferred there from Elk Grove Village and, presumably,
had been represented by Local 3 at the time that they began
working at Rolling Meadows.
The Board has concluded that it will apply the accretion doc-
trine to situations where separately represented units of em-
ployees have been consolidated and merged into a single work
force and, thereafter, one of those bargaining agents has repre-
sented the overwhelmingly predominant number of the now-
consolidated work force. See Custom Deliveries, 315 NLRB
1018, 1020 (1994), and cases cited therein. Here, there were 95
to 100 warehouse employees at Elk Grove Village and an addi-
tional three or four such employees at Rolling Meadows as of
January 9 and for several months thereafter. Obviously the
three warehouse employees hired at Rockford constituted less
than the “30 percent or more of the bargaining unit” which the
Board concludes would be needed to establish a substantial
claim of interest by the Union among all warehouse employees
employed by Respondent as of January 9.
Custom Deliveries and the cases cited in it, however, each
presented situations where all employees began working in the
same or in immediately adjacent locations following the con-
solidation or merger of previously separate operations. That is
not the situation presented here. Rockford warehouse employ-
ees work at a location approximately 70 to 80 miles from Elk
Grove Village and Rolling Meadows. Similar distances appear
to separate Rockford from the locations of the subsequently
opened warehouse facilities at Quality House and at Wood
Date.
To be sure, such a distance is hardly immense and prohibi-
tive to transit. Indeed, one Elk Grove Village employee daily
commutes to work there from the Rockford area. Even so,
geographic separation is one factor which tends to create a
separate and distinct community of interest between employees
at different locations. For, “there is apt to be a bond of interest
among all persons employed by the same employer in connec-
tion with the same enterprise at the same locus.” NLRB v. Liv-
ing & Learning Centers, 652 F.2d 209, 213 (1st Cir. 1981).
Presence or absence of geographic proximity between employ-
ees also can affect ability of employees at separate locations to
participate in unit activities. NLRB v. Carson Cable TV, 795
F.2d 879, 886 (9th Cir. 1986). See also NLRB v. Bogart
Sportswear Mfg. Co., 485 F.2d 1203, 1206 (5th Cir. 1973) (in-
volving plants separated by 25 and 65 miles).
Of course, geographic separation is not the sole, nor even a
predominant, factor in evaluating an issue of accretion. Still, it
is a factor which differentiates cases such as the instant one
from cases such as Custom Deliveries, and it also is a factor
which tends to show that Rockford warehouse employees pos-
sess a community of interest which is naturally different and
distinct from similarly classified employees at Respondent’s
warehouse facilities clustered in and near the Elk Grove Village
distribution center. Additional factors to which the Board has
given weight in making accretion determinations include “inte-
gration of operations, centralization of managerial and adminis-
trative control . . . similarity of working conditions, skills and
functions, common control of labor relations, collective-
bargaining history, and interchange of employees.” (Footnote
omitted.) Gould, Inc., 263 NLRB 442, 445 (1982). See also
Lammart Industries v. NLRB, supra 578 F.2d at 1225; GHR
Energy Corp., 294 NLRB 1011, 1016 (1989).
Here, prior to January 9, there was a relatively prolonged
bargaining history for warehouse employees working in a unit
confined to a single location in Rockford. Similarly, there ap-
pears to have been a relatively lengthy separate bargaining
history confined to warehouse employees working at Respon-
dent’s Elk Grove Village distribution center and, more recently,
at warehouse facilities located relatively proximate to Elk
Grove Village. Of course, prior to January 9 the Rockford
warehouse employees had been included in a combined unit
with truckdrivers based in Rockford. And those truckdrivers
had occasionally worked in the Rockford facility, performing
many of the same duties as the warehouse employees who were
working there. But, there is no evidence that, since January 9,
truckdrivers have performed warehouse functions at Rockford.
Units separating warehouse employees from truckdrivers, even
ones who make only local deliveries, have long been concluded
by the Board to be appropriate. See, e.g., H. P. Wasson & Co.,
153 NLRB 1499, 1501 (1965); Cal-Maine Farms, 249 NLRB
944 (1980) (dockworkers); and NLRB v. Crockett-Bradley, Inc.,
523 F.2d, 449–451 (5th Cir. 1975). Accordingly, it cannot be
said that departure of truckdrivers from the historic Rockford
unit somehow destroyed any possibility of continued separate
community of interest among warehouse employees working at
that single location.
Respondent argues that its own bargaining history with Lo-
cal 3 also must be considered in situations where it has em-
ployed warehouse employees in locations other than Elk Grove
Village. Indeed, it must. But, the evidence of such history is
somewhat limited.
Until September 1995 there is no evidence that Respondent
employed any warehouse employees outside of the Elk Grove
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 182
Village distribution center on a permanent basis. During that
month a few warehouse employees became employed perma-
nently at the Rolling Meadows facility. But, they were ware-
house employees who had been sent the relatively short dis-
tance there from the Elk Grove Village distribution center and
who, presumably, were already being represented by Local 3.
There is no evidence of any other facility being opened by Re-
spondent which had been treated as an accretion to the ware-
house unit at Elk Grove Village.
Respondent points out that it treated warehouse employees
who worked in Rockford at the former Janenicke facility as part
of the bargaining unit represented by Local 3. However, there
never were any warehouse employees assigned permanently to
that facility by Respondent. The occasional warehouse work
which had to be performed there was done by Elk Grove Vil-
lage employees sent temporarily to the former Janenicke facil-
ity. Once they completed their warehouse duties there, those
warehouse employees returned to Elk Grove Village where
they resumed working permanently. Such occasional tempo-
rary assignments hardly suffice to establish a history of recog-
nizing Local 3 as the bargaining agent of Rockford warehouse
employees as part of a single-bargaining unit encompassing
Rockford and Elk Grove Village.
In contrast to the initial staffing of Respondent’s Rolling
Meadows facility, Bessert, Bredeson, and Cornelius never had
been employed by Respondent prior to its employment of them
on January 9. Furthermore, each of them had been a total
stranger to representation by Local 3 prior to that date. True,
they did become members of Local 3. As concluded above,
however, that occurred as a result of Respondent’s unlawful
conduct directed to each of those three employees. There is no
evidence whatsoever that, absent those unfair labor practices,
any one of those three warehouse employees would have with-
drawn from the Union’s membership and joined that of Local 3.
So, there is no basis for concluding that what had occurred in
connection with the former Janenicke facility and at Rolling
Meadows shows a history of bargaining which applies to what
occurred when Respondent took over the Rockford facility
from Continental.
In that connection, it should be pointed out that there is no
after-acquired provision in Respondent’s collective-bargaining
contract with Local 3. Article 29 provides that the contract
“shall inure to the benefit of and shall be binding upon the
heirs, executors, administrators, successors and assigns of the
parties,” as well as “upon, and assumed by, any entity which
shall be a purchaser or other transferee of the business assets
of” Respondent. But, neither that article, nor any other article
of Respondent’s 1994–1997 contract with Local 3 contains “a
clause requiring the Respondent to recognize [Local 3] and
apply the terms of the contract at all facilities, including those
that might be acquired in the future.” Ebon Services, 298
NLRB 219 fn. 3 (1990).
Of course, even had such a clause been included in that con-
tract, it would only “constitute a waiver of [Respondent’s] right
to insist upon a Board-conducted election when faced with a
demand for recognition but [would] not relieve [Local 3] of its
obligation to provide [Respondent] with proof of its majority
status among the employees in the group to be added to the
existing unit.” Joseph Magnin Co., 257 NLRB 656 (1981).
Not only did Local 3 not provide evidence of such support,
aside from that arising from Respondent’s unlawful assistance,
but from Mueller’s description of his conversations with Local
3, it appears that the intention to accrete the Rockford ware-
house employees originated with Respondent. It, then, notified
Local 3 of that intention. To the great surprise of probably no
one, Local 3 promptly endorsed Respondent’s suggestion.
However, that suggestion and the endorsement of it are not
based on any provision of the contract between Local 3 and
Respondent.
No doubt warehouse operations at Rockford changed follow-
ing Respondent’s acquisition of Continental’s facility there.
For approximately 9 months Respondent conducted only cross-
docking operations at Rockford, just as it had been conducting
at the former Janenicke facility. Previously, Continental had
operated that facility as a self-contained distribution center. As
a result of Respondent’s change in operations, the Rockford
facility was dependent completely upon receipt of product from
Elk Grove Village until October 1.7 Even so, the fact remains
that, prior to January 9, operations at the Rockford facility were
dependent on receipt of product from somewhere.
There is a high degree of centralization of administrative and
managerial functions at Elk Grove Village for all of Respon-
dent’s Northern Illinois facilities. During the first part of 1996,
all product being shipped from Rockford came from the Elk
Grove Village distribution center. All orders for product are
processed by personnel at Elk Grove Village. All billing origi-
nates from Elk Grove Village. Furthermore, it is there that all
ultimate determinations are made concerning Rockford ware-
house employees. Their timecards are submitted to Elk Grove
Village, their pay records are maintained there and their pay-
checks originate at Elk Grove Village. As is true of all other
northern Illinois facilities, warehouse employees at Rockford
are subject to ultimate supervision by Vice President Opera-
tions Manager Mueller and, below him, to supervision by
Rocky Ruane, head of shipping operations at Elk Grove Vil-
lage.
Still, the unit represented by Local 3 after the accretion is not
one which is employerwide in scope. As pointed out in section
I,D, above, on January 9 Respondent opened another distribu-
tion center in Peoria. But, Local 3 did not become the bargain-
ing agent for the warehouse employees, nor were those em-
ployees accreted to the historic Elk Grove Village-oriented
bargaining unit. From the testimony of Respondent’s wit-

7 As pointed out in sec. I,D, above, on and after October 1 Respon-
dent began warehousing a considerable portion of the merchandise
which it shipped to Rockford-area retailers. To handle that change in
operations, Respondent added a second shift at Rockford and assigned
two additional employees, as well as Bredeson, to work on that shift.
However, those events occurred well after Respondent had accreted
Rockford warehouse employees to the unit historically represented at
Elk Grove Village by Local 3. Moreover, there is no evidence that,
during January or during the months immediately thereafter, Respon-
dent had contemplated such a change at Rockford. Consequently, the
events of October are accorded little weight in evaluating the lawful-
ness of Respondent’s January accretion to the Elk Grove Village-
oriented warehouse employee bargaining unit.
JUDGE & DOLPH, LTD. 183
nesses, it appears that the reason for not having done so is that
Peoria lies outside the geographic jurisdiction of Local 3.
Thus, the less than employerwide unit which Respondent con-
tends should be regarded as appropriate—the one which com-
bines Rockford warehouse employees with those working in
and near Elk Grove Village—is one which is based on Local
3’s ability to organize employees in light of its territorial juris-
diction. If that is not the same as, it certainly is quite close to
contending that the Board should endorse a bargaining unit
based upon the extent to which a labor organization can organ-
ize employees. That, of course, would be a conclusion which is
contrary to the prohibition of Section 9(c)(5) of the Act. Even
if that is not so, however, the fact remains that the situation
presented here is not one where the competing unit choices are
between single location and employerwide bargaining units.
While the Rockford employees at issue are classified gener-
ally as warehouse employees, as are Respondent’s other em-
ployees whom Local 3 represents, “a generic classification may
not be the controlling factor,” Regency House, 171 NLRB
1347–1348 (1968), in evaluating community of interest. For
approximately 8 months Rockford warehouse employees, after
having cleared out Continental’s merchandise and equipment,
worked essentially as dockworkers at an empty warehouse:
they unloaded merchandise delivered by truck from Elk Grove
Village, allocated it on the dock among local retailers, and re-
loaded it for delivery to those customers. No split aisle, full-
case flow rack or yellow racking operations are performed at
Rockford by warehouse employees assigned there, in contrast
to operations at Elk Grove Village where such areas do exist
and are staffed by warehouse employees who rotate through
them, as well as through the bulk warehouse there.
Of course, the duties performed by Elk Grove Village em-
ployees classified as warehouse employees are similar to the
more limited duties performed at Rockford by similarly classi-
fied employees. Nevertheless, Mueller conceded that, even
with the October addition of bulk warehouse operations at
Rockford, warehouse “skills are lesser at the Rockford facility
than they are at Elk Grove.” Accordingly, though the differ-
ence in job skills may not be extensive, there is a distinction
between those which suffice to work as a Rockford warehouse
employee and the relatively greater skill necessary to work in
the split aisle, full-case flow rack, yellowing racking and bulk
warehouse areas at Elk Grove Village.
For at least the first 9 months of Respondent’s operation of
the former Continental Rockford facility, that facility’s contin-
ued operation was dependent on receipt of all product from Elk
Grove Village. That is, to conduct its exclusively cross-
docking operations, spirits had to be received daily from Elk
Grove Village, so that they could be unloaded and reloaded for
local delivery. But, there was an obvious difference between
the manner in which Respondent had been conducting cross-
docking in Rockford before January 9 and the manner in which
it did so after that date. For, no warehouse employees had been
employed regularly in Rockford by Respondent prior to Janu-
ary 9. In contrast, Bessert, Bredeson, and Cornelius were em-
ployed permanently there by Respondent after January 9. Con-
sequently, while Respondent conducted cross-docking opera-
tions at Rockford before and after that date, there was a differ-
ence between those cross-docking operations and that differ-
ence pertained directly to employment of warehouse employ-
ees.
In the course of performing their ordinary duties at Rock-
ford, there is no evidence that Bessert, Bredeson, and Cornelius
come into contact with warehouse employees from Respon-
dent’s other facilities. True, the three Rockford warehouse
employees have daily contact with truckdrivers making deliver-
ies from Elk Grove Village. Even so, those truckdrivers are
represented in a unit separate from the one to which Respon-
dent chose to accrete the three Rockford warehouse employees.
Consequently, such daily contact hardly serves to show any
community of interest with other employees in the unit to
which Respondent accreted Bessert, Bredeson, and Cornelius.
As to those other employees, they have no contact with the
warehouse employees who work regularly in Rockford.
Obviously, the foregoing distinctions between warehouse
employees working at Respondent’s various northern Illinois
facilities would be mitigated if there has been ongoing perma-
nent and temporary interchange of warehouse employees be-
tween Rockford and those other facilities. Movement of per-
sonnel between locations is a “most reliable indicium of com-
mon interests among employees [arising from] similarity of
skills, duties, and working conditions,” Pacific Southwest Air-
lines v. NLRB, 587 F.2d 1032, 1042 (9th Cir. 1978), inasmuch
as employees would be working together for significant periods
in the normal course of performing their duties. Absent com-
mon representation, interchange between employee groups may
breed “friction between employees and chaos in labor rela-
tions,” since “some employees [are] under union rules as to
wages, hours, seniority, grievance procedures, etc. when the
employees working beside them in the same category [are]
not.” NLRB v. Purity Food Stores, 379 F.2d 497, 501 (1st Cir.
1967), cert. denied 389 U.S. 959 (1967).
Here, there is no evidence of either temporary or permanent
interchange between warehouse employees working ordinarily
at Respondent’s Rockford facility and similarly classified em-
ployees who work regularly for it at Rolling Meadows or at the
more recently opened Wood Dale bulk warehouse. That is, no
Rockford warehouse employee has ever worked, permanently
or temporarily, at Rolling Meadows or Wood Dale. And no
warehouse employee from either of those two facilities has ever
been assigned, permanently or temporarily, to work at Rock-
ford for Respondent.
No warehouse employee has ever been transferred perma-
nently from Respondent’s Rockford facility to its Elk Grove
Village distribution center. Conversely, on only a single occa-
sion has there been a permanent transfer of warehouse employ-
ees from that distribution center to Rockford. That did not
occur until Respondent initiated a second shift at Rockford,
over a half-year after the Rockford accretion had been effected.
There is no evidence which would show that, at the time of that
accretion, Respondent had contemplated starting a second shift
at Rockford.
When Respondent did decide to initiate a second Rockford
shift, two employees—Marc Brennan and Rick Nelson—were
transferred from Elk Grove Village to Rockford to staff that
shift, along with Bredeson who transferred from day-to-night
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 184
shift. It should not escape notice, however, that neither Bren-
nan nor Nelson was a senior Elk Grove Village warehouse
employee who had been offered an opportunity to bid for trans-
fer to Rockford, pursuant to article 26 of Respondent’s collec-
tive-bargaining contract with Local 3. Instead, testified Muel-
ler, “They were hired [by Respondent] because we needed their
help at Elk Grove and we knew that at some point in time we
were going to start up a night shift” at Rockford. Thus, their
eventual employment there did not arise from usual application
of the provisions of the contract with Local 3 to Rockford.
Rather than following that contract’s provisions, Respondent
hired two employees—who had worked for Continental at
Rockford prior to January 9—and utilized them at Elk Grove
Village until a second shift was initiated at Rockford. Then,
seemingly without regard to the contract with Local 3, Respon-
dent simply transferred those newly hired employees to Rock-
ford. Their one-time transfer there hardly supplies substantial
evidence of significant permanent interchange between the
Rockford warehouse and Respondent’s other warehouse facili-
ties.
That leaves for consideration temporary interchange: tempo-
rary transfers of warehouse employees between Rockford and
Respondent’s other facilities for only limited periods. There is
no evidence that any warehouse employees assigned to Rolling
Meadows or Wood Dale have ever been sent to work temporar-
ily at Rockford. Nor is there evidence that Rockford warehouse
employees have been sent to work temporarily at Rolling
Meadows or Wood Dale.
The evidence as to similar transfers from Elk Grove Village
to Rockford shows only infrequent occasions when that has
occurred. According to Mueller, two individuals were sent for
“a couple of nights after [Brennan and Nelson] started” at
Rockford to “walk[ ] them through what they needed to do at
the night shift at . . . Rockford,” and, in addition, a warehouse
employee is sent to Rockford, for “3/4 days” ideally “quar-
terly,” to check and prepare for shipment to Elk Grove Village
inventory which has become unsaleable. That latter situation,
of course, would not have been occurring before the second
shift had been initiated at Rockford. For, once Continental’s
inventory had been finally cleared from Rockford during late
February, no inventory was warehoused there until Respondent
created a second Rockford shift and began warehousing Rock-
ford-oriented product there.
There is evidence, from timecards discussed below, that
Brennan and Nelson had worked occasionally at Rockford,
before they had been transferred permanently there and while
they were still assigned to Elk Grove Village. For example,
both worked at Rockford on April 12, which appears to be the
first time that either had done so. Brennan then worked there
on May 22, 24, 30, and 31, on June 20, 27, and 28, on July 25
and 26, and with a fair degree of regularity during August and
September, immediately before the second shift started there.
After April 12, Nelson worked at Rockford on June 14, on Au-
gust 26 and 27, and fairly regularly during September. Yet,
both these employees had been hired for the specific purpose of
eventually transferring them to Rockford. So, though nomi-
nally assigned to Elk Grove Village, it is not surprising that
they would have spent some time working at Rockford and,
moreover, that the frequency with which they had done so
would increase as initiation of the second shift there ap-
proached. Significantly, since their permanent transfers to
Rockford, neither Brennan nor Nelson has performed any work
at Elk Grove Village, nor at any of Respondent’s other facili-
ties.
As to Bessert, Bredeson, and Cornelius, the record discloses
evidence that each has worked temporarily at Elk Grove Vil-
lage since January 9. But, not so much as would necessitate a
conclusion that such work created a community of interest be-
tween them and Elk Grove Village warehouse employees, and
destroyed any separate community of interest among those
Rockford warehouse employees.
Kotlarz testified that Ruane will make requests for ware-
house employees to work at Elk Grove Village based on,
“Availability. For example, overtime is available on a regular
basis. If there’s a specific situation, he will call me and request,
ask me . . . to notify personnel to report to Elk Grove Village.”
Still, so far as the evidence shows, such requests do not give
rise to obligations on the part of Rockford warehouse employ-
ees. That is, there is no evidence showing that Rockford em-
ployees must report to Elk Grove Village, or elsewhere, for
overtime work. In fact, not until Saturday, February 10—a
month after the accretion—did any one of the Rockford ware-
house employees, Randy Bredeson, work—on a Saturday—at
Elk Grove Village.
Seemingly, the most reliable evidence of work history since
January 9 would be the timecards of Bessert, Bredeson, and
Cornelius. Timecards for them were received into evidence (R.
Exh. 2), as well as for Brennan and Nelson. Those timecards
cover the period January 9 through the weekly pay period end-
ing Tuesday, November 5. However, review of them is not so
helpful in reaching firm conclusions as might be anticipated.
Initial testimony appeared to show that timeclock-stamped
entries could be relied on to show presence at Rockford, while
handwritten entries reflected presence at Elk Grove Village.
Thus, if an employee stamped in or out on a particular day and,
then, handwrote an out or in time, respectively, for that same
day, it could be concluded that such entries showed a workday
split between Rockford and Elk Grove Village. But, it turned
out that such a conclusion could not so readily be reached.
Occasionally, the Rockford timeclock malfunctions, leaving
warehouse employees there no choice but to handwrite their
arrival and departure times, sometimes both—such as for the
workweeks ending March 26 through April 16 when the time-
clock was inoperative for that entire period. Indeed, individual
handwritten entries for arrivals and departures on particular
days before and after that 4-week period are not reliable indica-
tors of work at Elk Grove Village. For example, Bessert’s and
Bredeson’s January timecards show handwritten entries for 2
days, while those of Cornelius show one handwritten entry.
Yet, Kotlarz testified that none of the Rockford warehouse
employees had worked at Elk Grove Village before Bredeson
had done so on one February Saturday. In fact, confusion as to
what could be discerned from the faces of those timecards
eventually led Respondent to abandon its effort, during the
hearing, to introduce an abstract prepared on the basis of the
timecards.
JUDGE & DOLPH, LTD. 185
From the timecards and the other evidence, four conclusions
seem fairly firm with regard to Rockford warehouse employees
working temporarily at other locations since January 9. First,
there is no evidence that any Rockford warehouse employee
ever worked at Rolling Meadows, Quality House, or, after it
opened mid-year, Wood Dale. Second, at most Bessert worked
a total of 3 days at Elk Grove Village from January 9 through
November 14. One of those days was for training on returns.
Third, at most Cornelius worked 2 days at Elk Grove Village.
One of those days, and 1 of the other 2 days that Bessert had
work there, had been due to, according to Kotlarz, “a problem
in the warehouse” at Elk Grove Village. As to that day, the
Board has held that it does not “find it significant
that . . . instances of transfer may arise as a result of emergency
conditions, since any community of interest created thereby . . .
is merely temporary.” Long Island College Hospital, 239
NLRB 1135, 1138 (1978). Finally, as pointed out above, nei-
ther Brennan nor Nelson has worked at Elk Grove Village since
being permanently transferred to Rockford.
That leaves for consideration one Rockford warehouse em-
ployee who did work fairly regularly at Elk Grove Village after
January. That is Bredeson. So far as the timecards and other
evidence reveals, he performed only overtime work at Elk
Grove Village. That is, having completed full workweek shifts
at Rockford, he worked overtime at Elk Grove Village on Sat-
urdays and Sundays, though Kotlarz testified that Bredeson had
also been working overtime there during Monday evenings
since the second Rockford shift had been created. The issue
which emerges from Bredeson’s overtime work is whether a
community of interest can be predicated on essentially a single
employee’s choice to regularly volunteer for overtime work at
another location when such work is not ordinarily required as
part of that employee’s, or any other employee’s, usual job.
To conclude that a community of interest arises as a result of
a single employee’s choice to work overtime at another location
is to effectively hold the temporary interchange factor hostage
to the whim of that employee. There is no evidence that Bre-
deson had been required by Respondent, as part of his duties as
a Rockford warehouse employee, to work overtime at Elk
Grove Village. So far as the record shows, his decision to vol-
unteer for that overtime had been for his own benefit and not
because he had been expected by Respondent to volunteer for
such work as part of his ordinary duties. Had he, like Bessert,
chosen not to volunteer for Elk Grove Village overtime work,
there is no evidence that he ever would have worked there and
there would be no issue of temporary interchange. Indeed,
should Bredeson suddenly decide to cease volunteering for
mostly weekend overtime work at Elk Grove Village, there
would no longer be any significant temporary interchange be-
tween the two facilities.
In evaluating community of interest, “the overriding policy
of the Act is in favor of the interest in employees to be repre-
sented by a representative of their own choosing for the pur-
pose of collective bargaining.” NLRB v. Western & Southern
Life Insurance Co., 391 F.2d 119, 123 (3d Cir. 1968), cert.
denied 393 U.S. 978 (1968). See also, Meijer, Inc. v. NLRB,
564 F.2d 737, 743 (6th Cir. 1977). Even so, the Board has long
held that subjective desires of particular employees are not
“generally relevant in Board unit determinations.” Ideal Laun-
dry & Dry Cleaning Co., 152 NLRB 1130–1131 fn. 6 (1965).
To allow the temporary interchange factor to be governed by
the discretionary overtime requests of a single employee is
effectively to allow that factor to be governed by the desire of
that particular employee. And it should not escape notice that
there is no evidence that, during his overtime work at Elk
Grove Village, Bredeson had performed other than bulk ware-
house work or had come into contact with any significant num-
ber of Elk Grove Village warehouse employees.
Even according weight to Bredeson’s volunteered overtime
work at Elk Grove Village, and to Brennan’s and Nelson’s
temporary work at Rockford before being permanently trans-
ferred there, whatever temporary interchange that shows is not
substantial enough to overcome the totality of the evidence
showing a lack of substantial interchange between Rockford
and Respondent’s facilities at Elk Grove Village, Rolling
Meadows, Quality House and Wood Dale. There is no evi-
dence that Bessert or Cornelius—nor Brennan or Nelson, once
transferred to Rockford—worked temporarily at Respondent’s
other facilities on a significant number of occasions. Nor is
there evidence of significant temporary work at Rockford by
warehouse employees from Respondent’s other facilities. No
warehouse employee has ever been transferred permanently
from Rockford to Respondent’s other warehouses. On only a
single occasion, in connection with a change in operations at
Rockford, have employees been transferred to Rockford from
one of Respondent’s other facilities. There is no evidence that
such a change in Rockford operations had been anticipated, or
could fairly have been anticipated, at the time of the accretion.
Further, those two employees did not begin working at Elk
Grove Village until Respondent began planning for a second
shift at Rockford and hired those two employees to eventually
staff that shift there.
Another factor significant in evaluating community of inter-
est is supervision. This factor is meaningful because, where
separate supervision exists at each of multiple locations, “day-
to-day problems and concerns among the employees at one
location may not necessarily be shared by employees who are
separately supervised at another location.” (Footnote omitted.)
Renzetti’s Market, 238 NLRB 174–175 (1978). A finding of
separate community of interest is not contingent on local super-
vision exercising the full extent of powers which a supervisor
can exercise as, for example, enumerated in Section 2(11) of
the Act. It does contemplate, however, “authority beyond mere
power to implement centrally formulated policies.” NLRB v.
Wolverine World Wide, Inc., 477 F.2d 969, 970 (6th Cir. 1973).
“[W]hat is most relevant is whether or not the employees at a
[single location or area] perform their day-to-day work under
the immediate supervision of one who is involved in rating
their performance and in affecting their job status and who is
personally involved with the daily matters which make up their
grievances and routine problems.” Ibid.
Here, there is considerable centralization of warehouse su-
pervision at Respondent’s Elk Grove Village distribution cen-
ter. Personnel policies and procedures are centrally formulated
and administered from that location for all warehouse employ-
ees. All warehouse employees are subject to ultimate supervi-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 186
sion by Mueller and, more directly, by Ruane. Between them,
the numbers of warehouse employees to be employed at each
facility are determined, work schedules for each facility are set,
the necessity for overtime at each location is evaluated, and
vacation requests are approved or denied.
Nevertheless, Mueller conceded that he had only “been to
Rockford twice in my career.” Further, while he claimed that
Ruane “is in contact with the other facilities on a daily basis,”
Mueller gave no testimony showing that Ruane had been to
Rockford on any regular basis, nor is there evidence that Ruane
had gone there even on a single occasion since January 9. To
the contrary, Bessert testified that he had never been introduced
or spoken to Ruane. Consequently, so far as the record shows,
Ruane and Mueller exercise their control over Rockford ware-
house employees from Elk Grove Village and “it would be an
extraordinary feat to exercise [such] control on a day to day
basis.” Prudential Insurance Co. of America v. NLRB, 529
F.2d 66, 68 (6th Cir. 1976), cert. denied 425 U.S. 975 (1976).
Obviously, Respondent’s warehouse jobs are fairly well-
defined and were especially so at Rockford while operations
there had been confined to cross-docking. Even so, Kotlarz, an
admitted statutory supervisor, is present at that facility on a
day-to-day basis. While his primary responsibility now appears
to pertain to sales, the record shows that he is able to exercise
some meaningful authority over Rockford warehouse employ-
ees, “beyond mere power to implement centrally formulated
policies.” Ibid.
Most significantly, Mueller testified that ordinarily Ruane in-
terviews prospective warehouse employees and brings his rec-
ommendations, based on those interviews, to Mueller for “the
final decision as to whether or not we will hire” them. But,
Ruane did not interview Bessert, Bredeson, or Cornelius. In-
stead, testified Kotlarz, “On the 29th of December, I had re-
ceived a call from Chris Mueller concerning the availability of
having them warehousemen work for [Respondent] and at that
time gave the recommendation to him” to hire Bessert, Bre-
deson, and Cornelius.
Even later, well after the Rockford warehouse employees
had been accreted to Local 3’s bargaining unit, it had been
Kotlarz who had recommended that Brennan and Nelson be
hired for the second shift then being planned for Rockford: “I
gave a recommendation to Chris Mueller when he had called
me and says we want to start up a night crew, and I gave rec-
ommendation as to personnel . . . for that.” Mueller also fol-
lowed that recommendation, Brennan and Nelson were hired by
Respondent, and those two employees were eventually assigned
to the Rockford warehouse night shift. All that occurred, so far
as the record discloses, with no role whatsoever being played
by Ruane. Nor is there any evidence that Ruane had been in-
volved in any way in the selection of Bessert, Bredeson, and
Cornelius for hire during January. There is no evidence that
Ruane ever interviewed any of those five employees. There is
no evidence that he made any recommendation in connection
with the selection of any one of them for employment with
Respondent. Instead, it had been the Rockford-based Kotlarz
who made the recommendations which were effective in con-
nection with hiring those five warehouse employees.
Beyond hiring, the record shows that Kotlarz possesses au-
thority, within limits, to authorize overtime work by warehouse
employees at Rockford. Ruane must approve overtime work on
Saturdays and Sundays. And Ruane must approve overtime
whenever more than 3 hours of it must be authorized. Within
those limitations, however, neither Mueller nor Ruane appears
to become involved whenever what Mueller referred to as
“general course of doing business” overtime—“an hour, an
hour-and-a-half of extra time to get the trucks done and out”
during a workday—is authorized. So far as the evidence dis-
closes, Kotlarz alone makes decisions in connection with that
overtime at the Rockford warehouse.
Such overtime at Rockford is not insignificant. For example,
the timecards show that for the weekly pay period ending Janu-
ary 30, Bessert and Bredeson each worked a total of 7-1/2
hours of overtime, while Cornelius worked a total of 6 hours of
overtime. Those figures are not unusual. During any particular
weekly pay period thereafter, overtime—varying between 1/2
hour and 2 to 3 hours at a time—have been worked by Rock-
ford warehouse employees. Accordingly, earnings from over-
time work appear to constitute a significant portion of the in-
come of warehouse employees who work there. Thus, the
power to authorize it cannot be disregarded as somehow insig-
nificant in its affects on those employees.
Kotlarz also approves at least some requests for time off. “If
it was just a day’s situation and it did not interfere with the
normal course of operations and we were covered,” he testified,
“I wouldn’t notify [Ruane] about it for a day.” Of course, such
notice represents no more than after-the-fact notification of
action already authorized and taken. A like situation prevails
regarding vacation requests. Ruane must approve them. But,
Kotlarz testified that, in practice, so long as vacations of two
Rockford warehouse employees do not overlap, or do not oth-
erwise interfere with Rockford operations, he can and does
approve vacation requests, without prior authorization by
Ruane.
The significance of that authority should not be minimized,
since the timecards show that Rockford warehouse employees
have taken both days off and vacations. No one from Elk
Grove Village, or from any of Respondent’s other facilities, has
been sent to replace those employees at Rockford whenever
they have taken off for a day or have gone on vacation. Ac-
cordingly, it would appear that all of those days off and vaca-
tions were approved locally by Kotlarz. Such approval is evi-
dence of the type of personal involvement by Kotlarz “with the
daily matters which make up . . . routine problems” of Rock-
ford warehouse employees. Renzetti’s Market, supra.
There is no evidence pertaining to such subjects as perform-
ance ratings and grievances. Perhaps such situations have not
arisen since January 9, else one or the other party would have
presented evidence addressing them. Even so, it is difficult to
ascertain how either Ruane or Mueller could evaluate and rate
the performances of Rockford warehouse employees, since
neither of those Elk Grove Village officials has been at Rock-
ford with any degree of regularity. Similarly, the infrequency
of visits there by them leaves it unlikely that either Elk Grove
Village official would be present whenever a lone Rockford
warehouse employee, or some of them, voiced the type of com-
JUDGE & DOLPH, LTD. 187
plaint which might “serve as both a natural prelude to, and an
efficient substitute for, the filing of a formal grievance.” NLRB
v. City Disposal Systems, 465 U.S. 822, 836–837 (1984). In the
circumstance, Kotlarz appears to be the first-line of supervision
who would receive and try initially to resolve such complaints.
In the final analysis, no supervisor or manager, save an
owner, exercises unbridled authority. Every one of them is
subordinated to higher authority exercised by someone else.
Every one of them possesses authority which to some degree is
circumscribed. Here, Kotlarz is subject to Respondent’s gen-
eral policies and, also, to the guidelines within which Mueller
and Ruane allow him to operate at Rockford. Within those
guidelines, however, Kotlarz appears to exercise meaningful
authority over employees whom he recommended be hired by
Respondent. As to yet untested areas, Kotlarz also appears to
be the logical official, as opposed to the infrequently present
Mueller and Ruane, to address, at least initially, situations
which arise at the Rockford warehouse. In consequence, he
possesses more than “mere power to implement centrally for-
mulated policies,” NLRB v. Wolverine World Wide, supra, and
exercises powers which affect Rockford warehouse employees
in a manner that “may not necessarily be shared by employees
who are separately supervised at,” Renzetti’s Market, supra,
Respondent’s other warehouse facilities.
In sum, there are some community-of-interest factors which
would support an employerwide bargaining unit of Respon-
dent’s warehouse employees: centralized administrative, sales
and managerial control, similarly classified employees perform-
ing duties which are similar, some permanent and temporary
interchange of employees between warehouse facilities. How-
ever, an employerwide unit was not created when Respondent
accreted warehouse employees employed at Rockford to the
warehouse unit then being represented by Local 3. Instead, the
scope of the unit created was one which accommodated the
territorial jurisdiction within which Local 3 was able to repre-
sent employees and excluded employees employed at Respon-
dent’s Peoria distribution center. There is no evidence that
such a unit corresponds to any administrative division of Re-
spondent’s operation.
Beyond that, as described above, there is significant geo-
graphic separation between Rockford and the other facilities in
the unit created as a result of the accretion; warehouse opera-
tions at Rockford are not as extensive as those conducted at Elk
Grove Village; Rockford warehouse employees at Rockford do
not work in all of the areas in which similarly classified Elk
Grove Village employees work; warehouse employees at Rock-
ford perform less diverse duties which require lesser skills than
warehouse employees at Elk Grove Village where the prepon-
derant majority of Respondent’s northern Illinois warehouse
employees work; there is no daily or even regular contract be-
tween warehouse employees at Rockford and those at Respon-
dent’s other facilities; Rockford employees have been locally
recommended for hire and there has been only a single instance
of permanent transfer to Rockford of warehouse employees
from any of Respondent’s other facilities, with no transfer of
Rockford employees to any of Respondent’s other facilities;
what temporary interchange has occurred between Rockford
and other facilities has been insignificant, save for a single
Rockford employee who has volunteered for warehouse work
at Elk Grove Village which is not an incident of his ordinary
duties and which is performed in addition to his ordinary duties
at Rockford; there is meaningful separate immediate supervi-
sion of Rockford warehouse employees; and, there is a history
of bargaining for Rockford warehouse employees on a single-
facility basis. These factors show that, had it been afforded the
opportunity to do so, the Board likely would have concluded
that Respondent’s Rockford warehouse employees constitute a
separate appropriate bargaining unit within the meaning of
Section 9(b) of the Act.
The Board was not afforded that opportunity. Instead, Re-
spondent accreted the Rockford warehouse employees to the
somewhat distant bargaining unit represented by Local 3.
However, Local 3 had no claim to represent those Rockford
warehouse employees. There is no after-acquired provision in
its collective-bargaining contract with Respondent. Absent the
unlawful assistance of Respondent, it had no authorization by
Rockford warehouse employees to act as their collective-
bargaining agent. To the contrary, those employees had been
members of the Union until unlawfully forced to withdraw their
membership in order to become employed by Respondent at
Rockford. In the totality of the foregoing circumstances, a
preponderance of the credible evidence establishes that Re-
spondent unlawfully accreted Rockford warehouse employees
to the unit represented by Local 3, unlawfully recognized Local
3 as the bargaining agent of those employees, and unlawfully
applied Local 3’s contract to the Rockford warehouse employ-
ees, all in violation of Section 8(a)(2) and (1) of the Act.
CONCLUSION OF LAW
Judge & Dolph, Ltd., a Division of Wirtz Corporation has
committed unfair labor practices affecting commerce by accret-
ing newly hired warehouse employees at Rockford, Illinois, to a
bargaining unit of warehouse employees employed at other
northern Illinois facilities, by compelling those Rockford em-
ployees to withdraw their membership in Teamsters Local Un-
ion No. 325 and become members of Liquor and Wine Sales
Representatives, Warehousemen, Clerical, Distillery, Rectify-
ing, Tire, Plastic and Allied Workers’ Union, Local No. 3 as a
condition of being employed at Rockford, and by recognizing
and applying the terms of the contract with Local 3 to Rockford
warehouse employees at a time when Local 3 was not the des-
ignated collective-bargaining agent of those employees, in vio-
lation of Section 8(a)(2) and (1) of the Act.
REMEDY
Having concluded that Judge & Dolph, Ltd., a Division of
Wirtz Corporation has engaged in unfair labor practices, I shall
recommend that it be ordered to cease and desist therefrom and,
further, that it be ordered to take certain affirmative action to
effectuate the policies of the Act. With respect to the latter, it
shall be ordered to withdraw recognition of Liquor and Wine
Sales Representatives, Warehousemen, Clerical, Distillery,
Rectifying, Tire, Plastic and Allied Workers’ Union, Local No.
3 as the bargaining agent of warehouse employees working at
Judge & Dolph’s Rockford, Illinois facility and, further, to
cease applying its collective-bargaining contract with Local 3
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 188
to Rockford warehouse employees, provided that this remedy
does not require Judge & Dolph to withdraw or eliminate any
wages or benefits enjoyed by Rockford warehouse employees
as a result of application of that contract to them. In addition, it
shall be ordered to reimburse all former and present warehouse
employees whom it has employed in Rockford for dues, fees,
and any other money paid by them, or deducted from their pay,
to comply with the union-security provisions of the collective-
bargaining contract with Local 3 which was unlawfully applied
to them, with interest on amounts owing as computed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended8
ORDER
Judge & Dolph, Ltd., a Division of Wirtz Corporation, Rock-
ford, Illinois, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Demanding as a condition of employment that employ-
ees withdraw from membership in Teamsters Local Union No.
325, or any other labor organization.
(b) Accreting to an existing bargaining unit employees at a
newly acquired facility where that facility can constitute a sepa-
rate appropriate bargaining unit and where the employees at
that facility have not authorized the representative of that exist-
ing bargaining unit to act as their collective-bargaining agent.
(c) Demanding as a condition of employment at its Rock-
ford, Illinois facility that warehouse employees become and
remain members of Liquor and Wine Sales Representatives,
Warehousemen, Clerical, Distillery, Rectifying, Tire, Plastic
and Allied Workers’ Union, Local No. 3 unless and until it has
been certified by Board as the exclusive bargaining representa-
tive of Rockford warehouse employees in an appropriate bar-
gaining unit.
(d) Recognizing Local No. 3 as the exclusive collective-
bargaining agent of warehouse employees employed at its
Rockford, Illinois facility unless and until Local No. 3 has been
certified by the Board as the exclusive bargaining representa-
tive of Rockford warehouse employees in an appropriate bar-
gaining unit.
(e) Applying the terms of its collective-bargaining contract
with Local 3 to warehouse employees employed at its Rock-
ford, Illinois facility, provided that this does not require with-
drawal or elimination of wages or other terms and conditions of
employment established at Rockford as a result of application
of that contract to Rockford warehouse employees.
(f) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of rights guaranteed
them by the National Labor Relations Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.

8 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusion, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
(a) Withdraw recognition of Local 3 as the bargaining agent
of warehouse employees employed at its Rockford, Illinois
facility.
(b) Reimburse all warehouse employees employed at its
Rockford, Illinois facility since January 9, 1996, for dues, fees,
and other money which they have been compelled to pay to, or
which have been deducted from their pay for, Local 3 to com-
ply with union-security provisions of the collective-bargaining
contract unlawfully applied to Rockford warehouse employees,
in the manner set forth in the remedy section of this decision.
(c) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying all pay-
roll and other records necessary to analyze the amounts to be
reimbursed to Rockford warehouse employees under the terms
of this Order.
(d) Within 14 days after service by the Region, post at its
Rockford, Illinois facility copies of the attached notice marked
“Appendix.”9 Copies of the notice, on forms provided by the
Regional Director for Region 33, after being signed by its au-
thorized representative, shall be posted by Judge & Dolph, Ltd.,
a Division of Wirtz Corporation and be maintained by it for 60
consecutive days in conspicuous places, including all places
where notices to employees are customarily posted. It shall
take reasonable steps to ensure that the notices are not altered,
defaced or covered by any other material. In the event that,
during the pendency of these proceedings, it has gone out of
business or closed the Rockford facility involved in these pro-
ceedings, Judge & Dolph, Ltd., a Division of Wirtz Corporation
shall duplicate and mail, at its own expense, a copy of the no-
tice to all employees employed by it at Rockford at any time
since January 9, 1996.
(e) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to steps that it has
taken to comply.
9 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
JUDGE & DOLPH, LTD. 189
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.

WE WILL NOT as a condition of employment demand that
you withdraw from membership in Teamsters Local Union No.
325, or any other labor organization.
WE WILL NOT accrete to an existing bargaining unit em-
ployees at a newly acquired facility where that facility can con-
stitute a separate appropriate collective-bargaining unit and
where those employees have not designated the representative
of that existing bargaining unit to act as their collective-
bargaining agent.
WE WILL NOT demand as a condition of employment at
our Rockford, Illinois facility that warehouse employees be-
come and remain members of Liquor and Wine Sales Represen-
tatives, Warehousemen, Clerical, Distillery, Rectifying, Tire,
Plastic and Allied Workers’ Union, Local No. 3, unless and
until it has been certified by the Board as the exclusive bargain-
ing representative of Rockford warehouse employees in an
appropriate bargaining unit.
WE WILL NOT recognize Local No. 3 as the exclusive col-
lective-bargaining agent of warehouse employees employed at
our Rockford, Illinois facility unless and until it has been certi-
fied by the Board as the exclusive bargaining representative of
Rockford warehouse employees in an appropriate bargaining
unit.
WE WILL NOT apply the terms of our collective-bargaining
contract with Local No. 3 to warehouse employees employed at
our Rockford, Illinois facility, but this does not require with-
drawal or elimination of wages or other terms and conditions of
employment which have been established at Rockford as a
result of application of that contract to warehouse employees
working at our Rockford facility.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of your rights protected
by the National Labor Relations Act.
WE WILL withdraw recognition of Local No. 3 as the bar-
gaining agent of warehouse employees employed at our Rock-
ford, Illinois facility.
WE WILL reimburse all Rockford warehouse employees for
dues, fees, and other money which they have been compelled to
pay, or which have been deducted from their pay, to comply
with the union-security provisions of the collective-bargaining
contract with Local No. 3 which was unlawfully applied to
those employees, with interest to be paid on the amounts which
are owing.

JUDGE & DOLPH, LTD., A DIVISION OF WIRTZ
CORPORATION