Northland Hub, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 1991

304 N.L.R.B. 665 (N.L.R.B. 1991)

665
304 NLRB No. 84
NORTHLAND HUB, INC.
1 We agree with the judge’s finding that the Respondent Employer’s transfer
of the Aurora operation to the Cushman facility constituted a relocation of the
same operation for the period between February and October 1988. We also
agree with her finding that, after October 1988, the former Aurora operation
was combined with and integrated into the Cushman operation, so that the
former Aurora employees no longer retained a separate group identity distinct
from the Cushman employees.
In this regard, we note that the judge, in describing this functional integra-
tion of the two operations, referred to it as a merger of operations. The issue
presented, however, is whether the employees working in the relocated Aurora
operation became an accertion to the Cushman facility unit represented by the
Respondent UFCW Local 1496. The term ‘‘merger,’’ as a representational
concept, is usually used to describe the process by which an employer and
union agree, either expresly or through practice, to combine separate appro-
priate bargaining units represented by that union into a single overall unit. See,
e.g., Gibbs & Cox, 280 NLRB 953 (1986). By contrast, the term ‘‘accretion’’
generally refers to a legal conclusion that two groups of employees constitute
one bargaining unit. We find, however, that the judge’s references to merger
did not affect the validity of her analysis or conclusions.
We further agree with the judge’s finding that, because of the integration
of the Respondent Employer’s operations, a prospective bargaining order to
remedy its refusal to bargain is inappropriate. Accordingly, we find that back-
pay should be tolled as of the effective date when full integration of the
former Aurora operation into the Cushman operation was achieved, which the
judge found to be no earlier than October 1988. We defer to the compliance
proceeding the determination of the exact date of this integration, with the bur-
den on the Respondent Employer to show when the integration of the oper-
ations became effective.
2 In her decision, the judge recommended a make-whole remedy for Re-
spondent Northland Hub’s 8(a)(5) violations. The recommended Order, how-
ever, inadvertently omitted these make-whole provisions. Accordingly, we
modify the recommended Order to include such provisions.
Amounts due employees as a result of Respondent Northland’s failure to ad-
here to its contract with Teamsters shall be computed as prescribed in Ogle
Protection Service, 183 NLRB 682, 683 (1970). The recommended remedy er-
roneously provided for interest to be paid on the make-whole amounts, as pre-
scribed in Florida Steel Corp., 231 NLRB 651 (1977). The appropriate method
for computation of interest is that set forth in New Horizons for the Retarded,
283 NLRB 1173 (1987).
Northland Hub, Inc. and General Teamsters Local
959, affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL–CIO
United Food and Commercial Workers Inter-
national Union, Local No. 1496, AFL–CIO and
General Teamsters Local 959, affiliated with
International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, AFL–CIO. Cases 19–CA–19897 and
19–CB–6347
August 27, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND RAUDABAUGH
On June 15, 1990, Administrative Law Judge
Earldean V.S. Robbins issued the attached decision.
The Respondent Employer, the Respondent Union, the
General Counsel, and the Teamsters filed exceptions
and supporting briefs, and the Respondent Employer
and the Respondent Union filed briefs in opposition to
the General Counsel’s and the Teamsters’ exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order as
modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, United
Food and Commercial Workers International Union,
Local No. 1496, AFL–CIO, its officers, agents and
representatives shall, take the action set forth in the
Order, and the Respondent, Northland Hub, Inc., Fair-
banks, Alaska, its officers, agents, successors, and as-
signs, shall take the actions set forth in the Order as
modified.
1. Insert the following as paragraphs 2(c)–(e) and re-
letter the subsequent paragraphs.
‘‘(c) Make whole, with interest, Donald Evans, Den-
nis Carey, John Garben, Bradford King, James Ruther-
ford, Terrence Reese, Timothy Ryan, Daniel Chase,
Ezekiel Landis, Timothy Gunderson, and Steven Hat-
field for any loss of earnings they may have suffered
as a result of Respondent’s failure to give them non-
discriminatory consideration for employment.
‘‘(d) Expunge from its files any reference to the
above-named employees’ unlawful discharges and/or
refusal to transfer, rehire, or recall them, and notify
them that this has been done and that evidence of this
unlawful conduct will not be used against them in any
way.
‘‘(e) Make whole, with interest, the employees in
the appropriate unit for any financial losses they may
have suffered as a result of the Respondent’s failure
and refusal to adhere to the terms of its collective-bar-
gaining agreement with the Teamsters.’’
2. Substitute the attached Appendix A for that of the
administrative law judge.
APPENDIX A
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
violated the National Labor Relations Act and has or-
dered 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
666 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT withdraw recognition from, or repudi-
ate our collective-bargaining agreement with, Team-
sters Local 959 at a time when Teamsters Local 959
is the exclusive bargaining representative of the em-
ployees in the involved appropriate unit.
WE WILL NOT recognize UFCW Local 1496 or give
effect to any collective-bargaining agreement with
UFCW Local 1496 at a time when UFCW Local 1496
does not represent a majority of the employees in the
involved appropriate unit.
WE WILL NOT discharge or fail to transfer, rehire, or
recall employees to a relocated facility because they
are represented by Teamsters Local 959.
WE WILL NOT give effect to provisions of a collec-
tive-bargaining agreement with UFCW Local 1496
which require employees to become or remain mem-
bers of UFCW Local 1496 and us to give effect to
dues-checkoff authorizations in favor of UFCW Local
1496 at a time when UFCW Local 1496 does not rep-
resent a majority of the employees in the involved
unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL offer Donald Evans, Timothy Ryan, Eze-
kiel Landis, Timothy Gunderson, Bradford King, and
James Rutherford immediate and full reinstatement at
our Cushman facility to their former jobs or, if those
jobs no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or any other
rights or privileges previously enjoyed.
WE WILL offer Dennis Carey, John Garben, Terrence
Reese, Steven Hatfield, and Daniel Chase employment
at our Cushman facility in the same positions in which
they would have been employed absent the discrimina-
tion against them, discharging if necessary any em-
ployees hired after their date of application. In the
event that there are insufficient positions for all
discriminatees, we will place the names of those not
hired on a preferential hiring list and offer them the
first positions that become available in which we
would have employed them absent the discrimination
against them.
WE WILL make whole Donald Evans, Dennis Carey,
John Garben, Bradford King, James Rutherford, Ter-
rence Reese, Timothy Ryan, Daniel Chase, Ezekiel
Landis, Timothy Gunderson, and Steven Hatfield for
any loss of pay they may have suffered by reason of
the discrimination against them, with interest.
WE WILL notify each of the above-named employees
that we have removed from our files any reference to
his unlawful discharge and/or refusal to transfer, rehire,
or recall him and that our unlawful conduct will not
be used against him in any way.
WE WILL make whole the employees in the unit
found appropriate herein for any losses they may have
suffered as a result of our repudiation of our collec-
tive-bargaining agreement with Teamsters Local 959.
WE WILL jointly and severally with UFCW Local
1496 reimburse, with interest, the employees or former
employees in the appropriate unit set forth below for
initiation fees and dues paid to UFCW Local 1496 pur-
suant to the union-security provisions of its agreement
with UFCW Local 1496.
The appropriate unit from February 1, 1988, to at
least October 1988 is:
All dry grocery warehousemen and drivers em-
ployed by Respondent Employer at its Cushman
facility in Fairbanks, Alaska, but excluding all
other employees, guards and supervisors as de-
fined by the Act.
NORTHLAND HUB, INC.
Eduardo Escamilla, Esq., for the General Counsel.
Jerome L. Rubin, Esq. (Stoel, Rives, Boley, Jones & Grey),
of Seattle, Washington, for the Respondent Employer.
William K. Jermain, Esq. (Jermain, Dunnagan & Owens), of
Anchorage, Alaska, for the Respondent Union.
James Witt, Esq., of Anchorage, Alaska, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
EARLDEAN V.S. ROBBINS, Administrative Law Judge. This
case was tried before me in Fairbanks, Alaska, on June 27,
28, and 29, 1989. The charges in Cases 19–CA–19897 and
19–CB–6347 were filed by General Teamsters Local 959, af-
filiated with International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, AFL–CIO
(the Teamsters), on June 30, 1988, and copies thereof were
served respectively on Northland Hub, Inc. (Northland Hub
or Respondent Employer), and on United Food and Commer-
cial Workers International Union, Local No. l496, AFL–CIO
(Respondent Union or UFCW). An amended charge in Case
19–CA–19897 was filed by the Charging Party and served on
Respondent Employer on March 7, 1989. An amended
charge in Case 19–CB–6347 was filed by the Charging Party
and served on Respondent Union on March l3, 1989. An
order consolidating cases and a consolidated complaint,
which alleges violations of Section 8(a)(1), (2), (3), and (5)
and Section 8(b)(1)(A) of the National Labor Relations Act
(the Act), issued on March 14, 1989. The principal issues
herein are:
(1) Whether Respondent Employer and Respondent Union
violated Sections 8(a)(1), (2), and (3) and 8(b)(1)(A) of the
Act respectively by applying the terms of their collective-bar-
gaining agreement to employees in the relocated dry grocery
operation.
667NORTHLAND HUB, INC.
1 Picking is the removal of merchandise from its storage area to fill a par-
ticular order.
(2) Whether Respondent Employer unlawfully discharged
and/or refused to hire/transfer employees in the Teamsters-
represented dry grocery unit to its Cushman Street facility
because of their affiliation with or membership in Teamsters
Local 959.
(3) Whether Respondent Employer violated Section 8(a)(1)
and (5) of the Act by withdrawing recognition from, and re-
pudiating its collective-bargaining agreement with, the Team-
sters.
On the entire record, including my observation of the de-
meanor of the witnesses, and after due consideration of the
briefs filed by the parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
Northland Hub, Inc., an Alaska corporation, with an office
and places of business in Fairbanks, Alaska, is engaged in
the business of, inter alia, wholesale dry grocery ware-
housing and distribution. During the l2-month period preced-
ing the issuance of the consolidated complaint herein, North-
land Hub, in the course and conduct of its business oper-
ations, had gross sales of goods and services valued at in ex-
cess of $500,000. During that same period, which period is
representative of all times material herein, it purchased and
caused to be transferred and delivered to its facilities within
the State of Alaska goods and materials valued at in excess
of $50,000 directly from sources outside said State, or from
suppliers within said State which in turn obtains such goods
and materials directly from sources outside said State.
The complaint alleges, Respondents admit, and I find that
Northland Hub is, and at all times material herein has been,
an employer engaged in commerce and in operations affect-
ing commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
II. LABOR ORGANIZATION
The complaint alleges, Respondents admit, and I find that
Teamsters Local 959 and UFCW Local 1496 each is, and has
been at all times material herein, a labor organization within
the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Northland Hub’s Operations and Collective-
Bargaining History Prior to the Decision to Reorganize
Northland Hub is engaged in the wholesale and retail sale
and distribution of groceries and related products in Fair-
banks and Anchorage, Alaska, under various names, includ-
ing Hub Foods, Northland Dairy, South Gate Hub, Market
Basket, Super Value, and Northland Hub Grocery Company.
Only the Fairbanks facilities are involved herein.
In the fall of 1987 Respondent conducted its Fairbanks’
operations from three locations. A warehouse and distribution
facility located on Peger Road handled dairy products and a
limited inventory of dry groceries such as potato chips, insti-
tutional cleaning supplies, bread, cookies, jerkies, and paper
products. Another warehouse and distribution facility located
on Aurora Street handled dry groceries, some produce, and
some chilled meats. A facility on South Cushman Street
housed a bakery production and wholesale distribution oper-
ation, a retail liquor store, a wholesale banana ripening room
and a retail grocery store, known as Southgate Hub.
Southgate Hub was a no-frills, low-price, low service, bag-
your-own warehouse-type operation which featured full-case
promotions. The Aurora facility was 5 to 6 miles from the
Cushman facility. The Peger facility was about miles from
the Aurora facility and 2-1/2 to 3 miles from the Cushman
facility.
In the fall of 1987 Dan Gavora was the general manager
of the wholesale operations. Joe Klu was assistant manager.
Dennis Mongold was warehouse manager at the Aurora facil-
ity. Steve Joswiak was the day foreman and Daniel Wood
was the swing shift foreman at Aurora. Rick Lorenz was the
foreman at the Peger facility. Peter Hanson was the bakery
foreman. It is undisputed that the liquor store operation and
the Southgate Hub were retail operations. It is also undis-
puted that the wholesale operations—Peger, Aurora, and the
Cushman bakery—had the same customers including
Southgate Hub and the Market Basket Stores. They simply
handled different products, although there was a minor over-
lap of products at the Aurora and Peger facilities.
All three facilities had employees who performed the func-
tions of truckdriving, stocking, picking,1 loading, unloading,
driving a forklift, and moving pallets around in the respective
facilities. However, there was no interchange of employees.
Further, there was no consolidation of deliveries or other op-
erations except that occasionally a grocery driver making a
long-distance delivery would pick up dairy orders destined
for the same customer or area. The employees at each facil-
ity performed all of the unloading, stocking, picking, and de-
livering of freight at their respective locations. Neither the
Aurora nor the Peger employees worked at the Cushman fa-
cility. Their only contact with that facility was to drop off
trailers that were source loaded in Washington or to make
deliveries of product from their respective facilities. In that
event, they merely unloaded products onto the dock. The
Cushman facility employees removed the products from the
dock except occasionally, when Cushman employees were
not readily available, a driver would use a forklift to move
products onto a pallet.
The 12 to 15 employees at the Peger facility were rep-
resented by UFCW with the exception of one driver rep-
resented by the Teamsters under a line haul contract. The 14
to 16 employees at the Aurora facility were represented by
the Teamsters. The 20 to 25 production and delivery employ-
ees, including 2 drivers and 2 warehousemen, in the bakery
operation and the 2 employees in the retail liquor operation
were represented by UFCW, as were the 400 to 450 employ-
ees at the Southgate Hub and the Market Basket stores. Each
of the operations in the Cushman facility was a separate bar-
gaining unit except, although not absolutely clear from the
record, it appears that the employees in the liquor store were
covered under the UFCW retail contract. The record is not
clear as to the banana ripening room. Thus, Northland Hub
had four separate collective-bargaining agreements covering
employees at the Aurora, Peger, and Cushman facilities.
The employees at the Aurora facility were covered by a
collective-bargaining agreement (the 1986–1989 Aurora
agreement), between Northland Hub and Teamsters Local
668 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
959 effective by its terms from May 1, 1986 to April 30,
1989. The recognition clause of that agreement provides:
ARTICLE 3
RECOGNITION
3.01 The Employer [Northland Hub] recognizes the sec-
ond party as the collective bargaining agency for such
of his employees as may be employed as Teamsters,
Drivers, Chauffeurs, Warehousemen, or as employees
under any classification within the jurisdiction of the
Union.
However, the classifications set forth in the contract are fore-
man, lead warehouseman, freezer man, drivers, helpers, and
pallet jack operator.
The employees at the Peger facilities were covered by a
collective-bargaining agreement between Northland Dairies
and UFCW Local 1689 (the 1984–1987 dairy agreement), ef-
fective by its terms from September 1, 1984, through Sep-
tember 1, 1987. The recognition clause of that agreement
provides:
1.01 Northland Dairies hereby recognizes United Food
& Commercial Workers, Local l689, as the sole and ex-
clusive collective bargaining agency for a unit consist-
ing of all employees employed in the Employer’s
present and future units including concessions under the
direct control of the Employer party to this Agreement,
located in the City of Fairbanks and the State of Alas-
ka. All work of handling, selling, and distributing of all
merchandise sold or distributed by the Employer shall
be performed only by employees of the Employer with-
in the unit referred to above for which United Food &
Commercial Workers, Local 1689 is recognized as the
sole and exclusive collective bargaining agency by the
Employer.
The Bakery production and warehouse employees of the
Cushman facility were covered by a collective-bargaining
agreement (the 1986–1987 Cushman agreement), between
Hub Foods and UFCW effective from May 1, 1986, to Au-
gust 1, 1987. The recognition clause of that contract pro-
vides:
ARTICLE I
RECOGNITION AND BARGAINING UNIT
1.01 Hub Foods recognizes United Food and Commer-
cial Workers Union Local #1496 as the sole and exclu-
sive collective bargaining agency for a unit consisting
of all employees employed in the Employer’s present
and future warehouses, including concessions under the
direct control of the Employer party to this Agreement,
located in the City of Fairbanks and vicinity, in the
State of Alaska. . . .
The contract also provides:
8.08 In the event of a sale or closure of any unit cov-
ered by this Agreement, affected employees with six (6)
months continuous service at the time of sale or closure
shall have the right to be placed in a another location
of the Employer and retain their Company seniority in
accordance with Article III of this Agreement. . . .
The Southgate Hub liquor store and banana ripening room
employees were covered by an agreement between Fairbanks
Retail Grocers and UFCW Local 1689 (the retail agreement),
which covered all employees in the Employer’s present and
future grocery stores in Fairbanks and was effective until Au-
gust 1, 1987.
B. Northland Hub’s Decision to Reorganize its
Operations and the Collective-Bargaining
Negotiations Thereafter
In 1986, following a severe downturn in the economy and
a price war among retail grocers exacerbated by the aggres-
sive marketing posture of Southgate Hub, Respondent began
experiencing severe economic problems. In about April 1987
Northland Hub retained Super Value, its primary supplier, to
evaluate the Fairbanks operations, retail and wholesale, and
make recommendations to improve profits. The Super Value
consultant concluded that the Fairbanks retail market could
not support the number of retail stores in the area and that
the newly opened Southgate Hub represented the over-capac-
ity. They advised Paul Gavora, the owner of Northland Hub,
to reduce the price pressure by closing the Southgate Hub,
which would leave him with three of the remaining six retail
stores in the area. It was further recommended that, since the
Southgate Hub was the highest volume store, aggressive
steps should be taken to recapture as much of that volume
as possible. Accordingly, in conjunction with the closing of
the Southgate Hub, Gavora planned to reformat, reprice, re-
name, and remodel the three Market Basket stores. When the
store closed in August 1987, 120–130 employees at the
Southgate Hub were terminated. The three Market Basket
stores, which had been renamed Super Value, were able to
employ 60 of these terminated employees. Because 2 sepa-
rate corporations were involved the 60 employees had to fill
out new applications and assume new seniority.
As to Northland Hub’s wholesale operations, the Super
Value consultants concluded that many of the problems
stemmed from the inefficiencies of doing distributions from
three different locations. Based upon this advice, Northland
Hub decided to consolidate its wholesale operations into one
location. The Cushman facility was selected as the site of the
consolidated operation for two reasons. One, the bakery,
which was located in the Cushman facility, would be phys-
ically difficult to relocate; and two, the Cushman facility was
large enough to accommodate all of the wholesale oper-
ations.
The decision to implement the recommendations of the
Super Value consultants was made in April 1987. In May
1987 Paul Gavora and Jerry D’Ambrosio, a labor consultant
for grocery companies, discussed the possibility of
D’Ambrosio representing Northland Hub in collective bar-
gaining. According to D’Ambrosio, he had developed a good
relationship with the unions in the industry which he wished
to maintain. He therefore questioned Gavora closely as to
whether Northland Hub’s interests were compatible with it
remaining a union company. Gavora assured D’Ambrosio
that it was his intention to remain unionized, but that he was
in serious financial difficulty and had a number of collective-
669NORTHLAND HUB, INC.
2 UFCW was informed in mid-November that the Aurora Street facility
would be closed. D’Ambrosio did testify that around November 20 he told
someone from the Teamsters that he would be contacting them in the future
regarding closing the Aurora facilities but that a timetable had not been deter-
mined. There is no contention that any mention was made of a relocation or
a consolidation of operations.
bargaining agreements to renegotiate. D’Ambrosio agreed to
represent Northland Hub; and he and Gavora reviewed the
recommendations made by the Super Value consultants.
During a later meeting, Paul Gavora told D’Ambrosio that
once the remodeling of the three Market Basket stores was
concluded, he was hoping to recapture much of the retail
market that would be freed by the closing of the Southgate
Hub. He further stated that after the reorganization of the re-
tail operations concluded, the wholesale operation would be
consolidated into one location on South Cushman and an in-
stitutional cash-and-carry operation would be instituted at
that location. D’Ambrosio suggested that closure of
Southgate Hub was critical to enhance the sales at the Mar-
ket Basket stores, so it was decided to do that first. It was
determined that the next crucial step would be to renegotiate
the retail agreement since, if union negotiations in a unit of
300 to 400 employees did not improve Respondent’s cash
flow, any concession in the wholesale units covering about
100 employees would not make any difference. The final
step would be to concentrate on the wholesale operation.
They decided to tackle the dairy operations first because the
dairy contract would be open by September as would the
Cushman agreement. Further, Gavora wanted to get the cool-
ers and freezers needed for the dairy operation built before
winter. Once these steps were concluded and the necessary
remodeling done at the Cushman facility, the Aurora facility
would be closed. Therefore, Northland Hub asserts, despite
the fact that the reorganization plan was designed in April
or May 1987, UFCW was not notified until October 1987
and the Teamsters Union was not notified of the decision to
close the Aurora Street facility until January 1988.2
Towards the end of October Respondent became con-
cerned about moving the coolers so, despite the fact that the
retail agreement had not been concluded, D’Ambrosio in-
formed UFCW by letter dated October 22, 1987, of Re-
spondent’s intent to close its Peger facility effective Novem-
ber 1, 1987, and offered to meet to discuss the impact of the
closure. Northland Hub and UFCW did meet on November
17. During this meeting Respondent’s representatives stated
that the Peger Street facility would be closed on November
20. He apologized for the short notice but stated that winter
was there and it was taking longer than anticipated to con-
clude the retail negotiations. At this meeting UFCW Presi-
dent Robert Freimuth suggested that the Peger facility remain
open and a new agreement be negotiated in which UFCW
would make concessions. D’Ambrosio explained that conces-
sions would not influence the decision, that under Respond-
ent’s reorganization plan it would consolidate its wholesale
operations into one facility. He said Respondent’s intent was
to terminate the employees at the Peger facility and give
them the same rights they had given the employees termi-
nated from Southgate Hub, i.e., to submit applications for
employment at the new facility.
D’Ambrosio further explained that there would be a new
cash-and-carry wholesale operation at the Cushman facility.
He explained the general reorganization plan, that the Peger
Street Dairy operation and the Aurora Street operation would
be closed and those operations combined at the Cushman fa-
cility. Freimuth said any work in the Cushman facility,
whether wholesale or retail, would be claimed by UFCW
under either the wholesale agreement or the retail agreement.
Freimuth asked how many employees would be transferred
from Peger Street. D’Ambrosio said roughly 10 to 15.
Freimuth said, since there were already about 30 employees
at the Cushman facility, he would claim the work under the
accretion clause of the contract covering that facility. He
then counterproposed that Respondent not terminate the dairy
contract or employees but rather, to bring the employees over
to Cushman with the dairy contract in place since UFCW
had a ‘‘wall to wall’’ contract at the Cushman facility. Re-
spondent inquired if conditions would be the same as they
were currently paying in the warehouse. UFCW said they
would recommend to the 14 or 15 employees that they
should take a $5.50-an-hour reduction in pay because of the
economic situation. D’Ambrosio said, if the employees were
willing to take a wage decrease from roughly $20.45 an hour
to $15, Northland Hub would consider it. Freimuth said they
were. After a caucus, D’Ambrosio and Gavora agreed to the
UFCW proposal but stated that any new hires at the
Cushman facility would be covered under the Cushman
warehouse agreement since the UFCW was claiming the
work at the Cushman facility under that accretion clause.
D’Ambrosio emphasized that time was of the essence and
said if the agreement was not ratified by November 20, Re-
spondent would close the Peger facility and terminate the
employees. The agreement was ratified on November 18 and
19.
During that same meeting they reached agreement which
covered final agreement on changes in the retail agreement
covering the three retail stores and on a new Cushman agree-
ment covering the wholesale and production operations at the
Cushman facility. They also agreed that the liquor operation,
which had been an addendum to the retail agreement, would
be addended to the new Cushman agreement. The new
Cushman Street agreement was signed on December 1 be-
tween Hub Foods and UFCW for a term from August 1,
1987, to August 1, 1989. The recognition clause of that
agreement (the 1987–1989 Cushman agreement), provides:
1.01 Hub Foods hereby recognizes United Food and
Commercial Workers Union Local 1496 as the sole and
exclusive collective bargaining agency for a unit con-
sisting of all employees employed in the Employer’s
present warehouse located at 160l South Cushman, in-
cluding concessions under the direct control of the Em-
ployer party to this Agreement, located in the City of
Fairbanks and vicinity, in the State of Alaska. . . .
The agreement also set forth wage rates for five departments:
1. Production Bakery—wage rates ranging from $7
to $15 an hour and $18 for the Head Baker;
2. Cash and Carry Drivers (Meat, Produce, Dry and
Frozen Groceries, Dairy)—wage rates ranging from
$6.75 an hour to the first 1,040 hours to $14.97 for
Journeyman (after 5 years).
3. Cash and Carry Warehouse—includes Sales
(Meat, Produce, Dry and Frozen Groceries, Dairy)—
670 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 The dairy operation inventory consisted of about 500 different types of
items.
with a wage rates ranging from $5.67 for the first 520
hours to $9.34 for journeymen (after 3 years).
4. Inside Liquor—wage rates same as Cash and
Carry Warehouse.
5. Merchandisers—wage rates same as Cash and
Carry Warehouse.
The agreement provides for pension contributions of 85
cents an hour, and health and welfare contributions of $1.205
an hour with a provision for an increase of up to 45 cents
an hour if needed to maintain benefits. A letter of under-
standing between Northland Hub Dairy and UFCW 1496,
which was addended to the 1987–1989 Cushman agreement
sets forth the agreement reached as to the employees trans-
ferred from the Peger facility. It provides for a journeyman
rate of pay of $15 for the transferred Peger employees and
for the same health and welfare contribution rate as paid
under the retail agreement. It further provides that new em-
ployees hired after November 1, 1987, be paid under the
1987–1989 Cushman agreement.
On November 20 Respondent was forced to seek shelter
under Chapter 11 of the Bankruptcy Act. According to
D’Ambrosio, this slowed Respondent’s timetable for nego-
tiating with the Teamsters regarding the impact of the closure
of the Aurora facility. By letter dated January 2, 1988,
D’Ambrosio informed Local 959 that the Aurora facility
would close on or about January 24, 1988, and suggested a
meeting to discuss the impact of the closure on the bargain-
ing unit. D’Ambrosio did meet with the Teamsters on Janu-
ary 12. According to him, Teamsters Secretary-Treasurer
Robert Sinnett inquired as to what concessions would be
needed to keep the Aurora facility open. It was explained
that it was not a matter of concessions, that Northland Hub
was committed to consolidate its operations into one loca-
tion. The union negotiators said they did not want to talk
about the impact of the closure. They wanted to talk about
jurisdiction. D’Ambrosio said that was a different issue.
Sinnett said he would talk to UFCW and get back to Re-
spondent. D’Ambrosio indicated his availability at any time
and emphasized that they needed to know the Teamsters’ po-
sition by the time of the closure which was scheduled for
January 24. After Respondent agreed to extend the deadline
for the closure to February 1, Sinnett said he would talk to
UFCW and get back to Respondent on January 22 or 23.
By letter dated January 15, 1988, Teamsters Local 959
General Counsel James A. Witt requested that Northland
Hub furnish certain financial information to assist the Team-
sters in responding to ‘‘Gavora’s needs.’’ Within several
days, according to D’Ambrosio, he telephoned Witt and re-
minded him that certain of the requested information had
been given to the Teamsters during the January 12 meeting
and promised to make immediate arrangements for the other
information to be provided. D’Ambrosio further said that the
nature of the requested information indicated that Witt did
not understand Respondent’s position, that Respondent was
not requesting concessions, but was asking for a discussion
as to the impact on the employees of the closure of the Au-
rora facility.
During the first week of February, UFCW and Teamsters
959 had discussions regarding a possible jurisdictional agree-
ment covering Respondent’s operations and employees. How-
ever, the discussions were not fruitful.
C. The Conversion of the Cushman Facility and the
Closing of the Peger Facility
On August 18 or 19, 1987, Northland Hub closed the
Southgate Hub. Until the closure of the Peger facility, the
only operations in the 70,000-square foot Cushman facility
were the 20,000–25,000-square foot bakery, the 2000–3000-
square foot liquor store, and the 1000 square foot banana rip-
ening room. Some of the Southgate Hub employees were re-
tained to box the inventory and distribute it to the three
Super Value retail stores. This process took a month. The
crew then started ripping out the retail equipment, produce
cases, meat and deli cases, fish cases, retail shelving, and
light-duty warehouse shelving needed for a retail operation.
Once that was done, the crew assembled and set up heavier-
duty warehouse racks. It was the end of December before the
merchandise was all boxed up and moved out. Some of the
warehouse racks were in place by mid-October but the set-
ting up of racks was not completed until March 1988.
The Peger Street facility closed on November 20, 1987.
All of the trucks at the Peger facility—5 refrigerated trucks
and 4 nonrefrigerated trucks—a 2500-square foot dairy cool-
er, all inventory3 and all equipment such as forklift jacks and
pallets were transferred from the Peger facility to the
Cushman facility. Also, all of the Peger employees—eight to
nine drivers and three to four warehousemen—were trans-
ferred without loss of seniority and they continued to be cov-
ered by the dairy agreement which had been extended to
1989.
Construction of an outside dairy freezer with inside access
began in mid-December and was finished around the first
week of January. The wholesale bakery was in operation
throughout this remodeling period which caused a bakery
production problem due to the cold temperature, so a wall
was erected across the back end of the bakery to close it off
from the loading dock/warehouse area.
D. The Closing of the Aurora Facility and the
Termination and Rehire of Aurora Employees
The last day of operation of the Aurora facility was Janu-
ary 29. Mongold testified that in mid-December 1987 Dan
Gavora told him the Peger facility had been closed and the
employees moved to the Cushman facility and that the Au-
rora Street facility would also be closed and the employees
moved to the Cushman location.
During either this same conversation or shortly thereafter
Gavora also told Mongold that the Aurora employees would
have to ‘‘go over to UFCW.’’ During the next 2 to 3 weeks,
according to Mongold, he and Dan Gavora had several con-
versations regarding the move of the Aurora Street operations
to Cushman Street. During one of these conversations
Gavora said he could not afford the Teamsters, that it cost
$20 an hour for a retail clerk versus approximately $34 an
hour for a Teamsters employee. Mongold further testified
that during another conversation he asked Gavora whether he
or Richard Lorenz, the former foreman at Peger Street, was
going to be in charge of the warehouse at the Cushman facil-
ity. Gavora said Mongold was to work with Lorenz at
Cushman for 2 to 3 weeks, find out what Lorenz knew about
what was going on and then Mongold was to run the ware-
671NORTHLAND HUB, INC.
4 Actually, Mongold had marked 10 employees as ‘‘good.’’
5 According to Mongold, Rutherford was misusing his authority as a union
shop steward. Nothing became a big issue unless it directly affected him, that
it had gotten to the point where the employees were going to request the
Union to remove Rutherford as shop steward because he was using his posi-
tion not so much for personal gain as for personal satisfaction. He considered
Rutherford a troublemaker in that he was not the type of shop steward that
would wait for an employee to complain regarding an infraction of the con-
tract. If he was angry with a supervisor then he would complain about some
infraction. There was no contention that his complaints did not involve actual
infractions of the contract.
6 The Odem dispute was a Teamsters’ dispute in Fairbanks 7 or 8 years pre-
vious.
7 The parties stipulated that Evans was present during the conversation with
Gavora to which Joswiak testified and that he would corroborate Joswiak’s
testimony.
house. Mongold asked if anything had been settled with the
Teamsters. Gavora said the Teamsters Union was playing
hardball, that the way it looked at that time was that
Mongold, one semidriver, and two warehousemen would be
transferred from Aurora to Cushman. Gavora asked Mongold
to look at the Aurora seniority list and tell him who was and
who was not good employees. Mongold said that by union
laws he could not tell Gavora who to hire and fire, but he
could mark on the list who was a good employee and who
was not a good employee. At that time Mongold did make
notations on the seniority list as to who was or was not a
good employee.
At a later time Mongold went to Dan Gavora’s office to
negotiate his wages. Mongold said he could not ‘‘run the
house’’ for $15 an hour. Gavora said he did not want
Mongold in the bargaining unit and they could discuss his
wages at a later date. Mongold said he wanted to discuss
them at that time so they sat down and worked out his
wages. At the end of that discussion Mongold asked who
would be transferred with him to the Cushman facility.
Gavora produced the seniority list with Mongold’s notations
and said, just take the seven you marked off as the best
workers.4 Mongold specifically asked about employee James
Rutherford. Mongold said, in his opinion Rutherford was an
excellent worker but was not worth taking because he was
also the biggest troublemaker.5 Gavora said he agreed they
had a lot of headaches with Rutherford, that he was real
prounion and they could just forget it. Mongold also specifi-
cally mentioned a second employee, Tom Behan. Mongold
said, ‘‘What about Tom, he is a good worker but he is metic-
ulous. He is a little bit slow and also with the deal that had
gone with Odem here years ago he was involved hot and
heavy with the labor dispute.’’ Mongold asked, ‘‘Do we real-
ly want him?’’ Gavora said, ‘‘No.’’6
Mongold further testified that during a January conversa-
tion with Dan Gavora he asked Gavora how many
semidrivers were going to be transferred to the Cushman fa-
cility. Gavora said he was only going to take one at that
time, that the Teamsters were being hard-headed. Mongold
said, ‘‘I’ve got two full-time hostling positions, you are al-
lowing me one driver, what am I supposed to do with the
rest?’’ Gavora said, ‘‘Contract it out to K & W or whoever
you have to, but just take one semidriver.’’
Dan Gavora admits he had a conversation with Wood con-
cerning people being shoved down his throat. He did not tes-
tify as to exactly what was said during this conversation but
did testify that he was blowing off steam regarding problems
in getting people from the hiring hall, that the hiring hall was
not sending qualified people and the Teamsters Union was
saying that Respondent did not have the right to interview
people. Gavora said he was tired of getting the stuff
crammed down his throat. According to him, he was frus-
trated and just blew up at Mongold.
Gavora further testified that he discussed the hiring hall
with a Teamsters representative in January 1988, that he told
him it wasn’t working, that they were not dispatching quali-
fied employees and he felt the Teamsters employees were
using the hiring hall as a vehicle to unload relatives and
friends of business agents. Gavora also testified that he re-
calls, in January or February, asking Mongold for a list with
regard to hiring Aurora employees. He does not recall any
other conversation with Mongold regarding hiring Aurora
employees. According to him, he did not instruct Mongold
to make union activities a criteria. Rather, he knew he was
going to have a tight budget so he asked him to pick the best
people.
Gavora also admits he had a conversation with Mongold
in late January. Mongold asked how things were going with
the negotiations with the Teamsters. Gavora made some re-
mark about the Teamsters playing hardball. However, he
does not recall the conversation with Mongold concerning
semidrivers, particularly the use of Joswiak, nor does he re-
call any conversation about how many semidrivers to hire.
He had budgeted one semidriver because prior to that time
they were using about one and a half drivers. According to
him, he thought that, through the consolidation, they would
be able to get by with only one since much of the work had
involved delivering trailers between the facilities. He does
not recall any conversation with Mongold in which he used
the word hard-headed. I credit Mongold with regard to these
conversations. I found him to be an honest witness who was
endeavoring to tell the truth. Further, Dan Gavora admits
some of the statements and does not deny the others.
Steve Joswiak, the day foreman at the Aurora facility, tes-
tified that in November 1987 he was outside Dan Gavora’s
office and overheard Gavora tell some unidentified person
that the UFCW employees were easier to deal with than the
teamsters. He said the Teamsters employees were paid quite
a bit more than the UFCW employees.
Joswiak also testified that on January 29, the last day of
operation of the Aurora facility, he, Dan Evans, and possibly
Tim Ryan asked Dan Gavora what was going on and what
they were supposed to do. Gavora said fill out applications
and he would select people he needed for the new operation.
He said he wouldn’t need everybody because he was consoli-
dating the operation and he would bring in the remainder of
the people as needed because he’d rather bring in experi-
enced help than someone off the street.7
Danny Wood, the swing shift foreman at Aurora, testified
that about 2 weeks before the closure of the Aurora facility
he had a conversation with Dan Gavora. Gavora said the Au-
rora facility would be closed down and the operation relo-
cated to the Cushman facility. He said he was tired of people
getting shoved down his throat and they wanted to be able
to hire who they wanted to hire. He did not specifically men-
tion the teamsters. I credit Joswiak and Wood as to these
statements.
At the end of January, according to Mongold, he wrote
termination slips for all of the employees at the Aurora facil-
ity and told them, if they wanted employment at the
672 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Some of the racking at Cushman came from Seattle and was put up as
much as a month in advance.
9 Joswiak was filling in for Dennis Carey, who was out on workers com-
pensation leave. Danny Wood was filling in for Terry Reese who was also
out on workers compensation leave.
Cushman facility, they would have to fill out an application;
and, if hired, would be working under a UFCW contract
making $15 an hour. At the time of the closure, employees
Dennis Carey, John Garvin, Bradford King, and Terrence
Reese were out on workmen’s compensation. All four of
them came in later and either verbally applied or filled out
an application. Daniel Chase, an on-call employee, was on
layoff but did come in and fill out an application. Steven
Hatfield was out of state on leave of absence but probably
filled out an application about 30 days after Aurora closed.
Garvin, King, and Carey applied 2 weeks to 30 days after
the closure. Don Evans, Ezekiel Landis, and Timothy
Gunderson filled out applications. Steve Joswiak and Danny
Woods also applied and were hired. Don Evans applied but
was not hired because he was not on Mongold’s list of 10
best employees. Initially Gavora told Mongold to hire seven
employees. Gavora determined the number and Mongold se-
lected the employees. However, during the course of the
move it was determined that three additional employees were
needed. This was a joint decision by Mongold and Gavora.
According to Mongold, these three were in the group he had
previously marked as not good employees. Mongold also tes-
tified that by characterizing these employees as not good he
did not mean that they were not hireable, just that they were
less desirable than others.
The employees who were hired for the Cushman facility
were not notified of their hire until Friday afternoon, January
29. Some of the racks and some of the products were moved
from the Aurora facility to the Cushman facility during the
2 weeks prior to January 29. However, the major move took
place over the weekend beginning at 6 p.m., Friday, when
the Aurora facility closed. Employees from both Cushman
and Aurora, as well as management employees, assisted in
the moving process. The moving continued around the clock
from Friday, at noon, until opening on Monday morning, and
at night for approximately 2 weeks thereafter.8
The parties stipulated that, shortly after the Aurora oper-
ations transferred to the Cushman facility, an agent of
UFCW informed the former Aurora employees that they
were now covered by the collective-bargaining agreement be-
tween UFCW and Respondent, that the initiation fees would
be waived for them and they would have to pay dues after
30 days of employment.
Additional employees were hired in February and March.
In mid-February, according to Mongold, he told Gavora the
freezer was a mess, that the employee working in the freezer
had no idea as to what he was doing and suggested that Tom
Behan be rehired to get the freezer set up. Gavora told him
to bring Behan back, try to keep him for only approximately
2 weeks and then lay him off once he had the freezers in
order because he did not want too many teamsters or ex-
teamsters around in case it came to a hearing. Behan was re-
employed and at the time of the hearing was still working
at the Cushman facility.
According to Gavora, Mongold said he needed some help
in the freezer and he wanted to bring Behan back. Gavora
said it was okay to bring Behan back, that, if it was a short-
term fix that was needed, Mongold should bring in additional
labor to get it done because under his budget he could have
only a certain number of employees. According to Gavora,
secured creditors were requiring a lot of budgeting in return
for their agreement to allow Respondent to use proceeds
from receivables for operational purposes. For the first 3 to
4 weeks after the move, management had to come in after
hours in order for them to operate with the budgeted em-
ployee complement. He denies saying he didn’t want too
many Teamsters employees around. According to him, he
only spoke to Mongold in the context of the budgeted num-
ber of employees and when Mongold requested additional
help, he was very reluctant to give it to him. I credit
Mongold. In this regard I note that Gavora had made similar
statements in the past.
Mongold further testified that in March he showed Assist-
ant Manager Joe Klu some overtime figures, told him labor
was outrageous, that they needed to hire additional help. Klu
said ‘‘fine’’ and asked how Mongold planned to proceed.
Mongold said he could use Job Service, newspapers, what-
ever. Klu instructed Mongold not to use Job Service because
he did not like the applicants. He further told Gavora to just
run an ad in the paper and hire people off the street. The
teamsters were not mentioned. Mongold did hire people off
the street.
Approximately 2 days later, according to Mongold, he
went to Dan Gavora with a stack of K & W Trucking bills
in the thousands of dollars for trailers they had moved for
Respondent that Respondent would normally have moved
with its own employees. He told Gavora that it was getting
ridiculous, that they were paying too much to have the trail-
ers moved when they could do it a lot cheaper. Mongold said
he needed to rehire a semidriver. Gavora agreed that K &
W was too expensive and told Mongold to go ahead and hire
a semidriver so Mongold hired someone off the streets to do
the work that Joswiak was doing and transferred Joswiak to
a driver position.
E. The Change in Operations After the Closing of
the Aurora Facility
1. The mode of operations at the Aurora and the
Peger facilities
The Aurora facility covered approximately half a city
block and warehoused around 10,000 different types of
items. There was a small office complex in one end and a
small computer office, restrooms, three small walk-in-type
freezers, a small cheese cooler, a small meat cooler, and a
larger produce cooler at the other end. One end of the build-
ing was fenced off for storage of nonfood inventory. The re-
mainder of the warehouse was dry groceries and paper prod-
ucts. All items were stacked on shelves, roller racks, or pal-
lets. There were three shifts at the Aurora facility. The night
shift had the basic responsibility for picking orders although
there were also two pickers on the swing shift. The basic re-
sponsibility of the swing shift was to unload freight and
stock it on shelves or pallets. Danny Wood, the temporary
swing shift foreman, had two full-time employees, and a
part-time on-call employee working under him. Steve
Joswiak was the temporary day foreman.9
673NORTHLAND HUB, INC.
10 Orders could also come in on customized order guides or catalog strips.
A salesperson would pick up a customized order guide made for a particular
customer and bring it into the office.
11 There was no one specific employee who handled all of the picking of
orders for the freezer, but there was one employee who handled exclusively
the stocking of the freezer, Tom Behan.
A customer would place an order for delivery with an of-
fice employee who would key the order in on a computer to
produce and print out a picking list.10 At the end of the day
Mongold would take the picking list—which included pickup
orders, delivery orders, orders to be sent by mail, or air
freight—determine the order in which the loads would go out
the following day, arrange the picking list in that load se-
quence, staple them together, and return them to the office.
Office employees would prepare loadsheets, listing customers
in the load sequence determined by Mongold. The loadsheet,
along with the picking list, would then be placed in the back
office for the night foreman. The night foreman would pick
up the loadsheet and have his crew start pulling orders. Once
the orders were picked, the night foreman would place the
loadsheets and picking lists in a basket for pickup by office
personnel. On the following day, office personnel would pre-
pare invoices from the loadsheets. Either Mongold or the
day-shift foreman would collect the loadsheets from the of-
fice and give it to the designated driver. The driver would
make sure his truck had been properly fueled and serviced
and then follow the loadsheet to deliver the groceries. Two,
and sometimes three, semitrucks operated out of the Aurora
facility. There were also three 8-foot box trucks called solo
trucks and a fourth solo truck that was used occasionally
when there was an overload or mail to haul to an airport.
Deliveries included frozen goods,11 fresh produce, bananas,
dry groceries, and nonfood items.
It is not clear from the record whether the Peger facility
followed this procedure for any of its orders. It is clear that
Peger operated somewhat differently in that many of the
drivers at Peger made route sales rather than delivering
preordered merchandise. The route truck would be loaded to
meet the anticipated needs of the customers on the route. It
was only upon arrival at the customer’s place of business
that an actual order would be given. The driver would fill
the order from his truck and prepare a handwritten invoice.
2. The Cushman facility operations on February 1
and thereafter
The Cushman facility covers approximately an entire city
block. In one end there are the shipping docks with three
loading doors. The trucks are loaded from this area. At that
end there is also the production bakery which is walled off
from the warehouse, a breakroom, two restrooms, and two
offices. At the other end of the warehouse there is a large
freezer, a large produce cooler, and a large mild cooler. The
coolers in the warehouse mostly came from Peger Road. No
freezers or coolers were moved from Aurora. The rest of the
facility is the warehouse area, the office complex, the receiv-
ing dock, bathrooms, the back door of the liquor store, and
the thrift shop. All of the employees eat in the same lunch-
room and use the same restroom facilities.
There appears to have been little change, if any, initially
in the mode of operation after the moves to the Cushman fa-
cility. The dry groceries formerly carried by Northland Dairy
at the Peger facility were not available in the Northland Hub
catalog so, in general, products were not preordered by cus-
tomers. In general, orders that had formerly been handled by
Northland Dairy continued to be distributed from a service
truck which traveled a set route, and operated in the same
manner as before the move. There were two dairy ware-
housemen, who worked the midnight shift, and either they or
the dairy driver continued to price and stock dairy products,
pick the orders for dairy goods, and load the dairy truck.
Most of the work involving products formerly carried at
the Aurora facility was done by two shifts. The picking of
items for dry grocery orders formerly stocked at Aurora
Street was done by the second shift. The manner of process-
ing and delivering orders continued the same as at the Au-
rora facility. Warehousemen handling the dry groceries
worked sometimes 12 to 16 hours a day. At the Aurora facil-
ity they worked probably a 10- or 11-hour day. The bakery
operation was separate and continued the same as before the
move. There were two bakery drivers with preset routes.
They came in at 4 to 4:30 a.m., loaded the bakery products,
and left on their routes. As of February 1 dairy products oc-
cupied approximately 15 percent of the warehouse, bakery
goods 5 percent, and goods formerly handled at the Aurora
facility occupied about 80 percent.
Dan Gavora admits that the cash-and-carry operation did
not open until mid-April. In this operation the customer picks
his own dry groceries except those that require equipment for
retrieval, warehousemen pick all chilled and frozen products
and dry groceries requiring equipment for retrieval. The
products are paid for at a single cash register. The employee
who operates the register does shelf tag changes when he is
not checking out customers. Pricing is updated on the com-
puter on a weekly basis and tags must be changed to reflect
the new prices. The difference between the cash-and-carry
operation and the will-call operation at the Aurora Street fa-
cility was that at Aurora the customer didn’t have the free-
dom to go into the warehouse to pull dry grocery products.
Dan Gavora continued as general manager. Peter Hanson
remained bakery foreman. Rick Lorenz, the former foreman
at the Aurora facility, continued as supervisor of the dairy
warehousemen and drivers until February 1. The record is
not completely clear as to the division of authority between
Lorenz and Mongold, the former Aurora foreman, after Feb-
ruary 1. However, it is clear that within a few weeks
Mongold was general warehouse foreman and it appears that
Lorenz was day shift foreman for the dairy operations. It is
unclear what, if any, responsibilities he had with regard to
the dry grocery operation.
According to Mongold, as of February 1, there was no
more consolidation of dairy goods and dry groceries than
there were before the move except that if a dairy driver re-
turned early from his route a few groceries might be loaded
on his truck for him to delivery but there was no actual con-
solidation of routes until July. Also from February to July a
small percentage of bakery good—perhaps 25 percent—was
placed in the same truck with the dry goods.
According to Mongold’s undisputed testimony, there were
no significant changes in the consolidation of products until
July. When Jeff Ruehle became warehouse operations man-
ager on June 7, he began to actually plan for the consolida-
tion. Ruehle and Mongold went over the routes, created new
routes where necessary and incorporated additional products
into existing routes. It took 3 to 4 months to complete the
674 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
consolidation. After the consolidation one truck would make
deliveries that had previously been made by several trucks.
Prior to the consolidation there were nine trucks servicing the
same store. After, there were only two—one for bakery prod-
ucts and one for other products. The bakery remained mostly
independent. According to Mongold, a major obstacle to con-
solidation was getting the products presold on the dairy
route. Although much of the dairy product was on the com-
puter, which made it technically possible to process dairy
product in the same manner as dry groceries, the problem
was getting someone to go out and presell the product to
customers. In about August the company went to a system
of merchandising which remedied this situation.
Mongold further testified that, in his opinion, from the
way the warehouse operated at the time of the hearing herein
it would not be possible to physically separate dry grocery
operations from bakery, dairy, produce, or banana room. You
have one person now pulling nonfood, two people pulling
cooler products, two people pulling freezer products, and the
rest of the crew working in dry groceries. The loader is the
only one to go into the bakery to get the bakery product to
go into the truck. According to Joswiak, who was an order
entry clerk at the time of hearing herein, two of the bakery
drivers are integrated into the system presently in operation.
However, there is still a donut run that just handles donuts
in the morning. This is a carryover from the old bakery oper-
ation. Today when a customer calls in, everything—dairy,
dry grocery, and bakery—is placed on one truck.
F. Post-February 1 Grievances and Negotiations
On February 8 the Teamsters filed about 15 grievances,
mostly concerning the use of nonbargaining unit employees
incident to the move. D’Ambrosio responded to the griev-
ance by letter dated February 16 in which he recapped the
correspondence and discussions between Respondent and the
Teamsters and stated that the grievances were denied since
the work claimed is covered under agreement with UFCW.
By letter dated March 7, the Teamsters requested a meet-
ing to negotiate concerning Northland Hub and renewed its
January 15 request for information. On April 18 D’Ambrosio
sent Witt a letter stating that in response to the Teamsters’
March 7 letter he left a telephone message for a representa-
tive of the Union to call to set up a meeting but that his call
was never returned. D’Ambrosio’s letter requested a meeting
and set forth suggested dates.
On May 2 Respondent again met with the Teamsters. The
Teamsters stated they wanted to negotiate a contract covering
the Cushman facility. D’Ambrosio asked what would happen
to the former clerks and the new hires under such a contract.
The union representatives stated their position, that they
wanted all of the Aurora employees brought back in order
of seniority and then, if there were openings left, to fill them
by seniority with the employees represented by UFCW.
D’Ambrosio asked if UFCW was agreeable to that. The
union representatives said they were working on it.
D’Ambrosio said he’d be willing to meet with UFCW and
the Teamsters to discuss this proposal.
D’Ambrosio also pointed out that Respondent had hired a
substantial majority of the Aurora Street employees and that
those that were not hired were mostly not available because
they were out of the country or on workers compensation
leave. They then went over a list of the Aurora employees
and Dan Gavora stated which ones were rehired, on leave of
absence, on workers compensation leave, or otherwise un-
available. D’Ambrosio then gave them a copy of the 1987–
1989 Cushman agreement and asked how that compared with
the agreement the Teamsters had in mind. The Teamsters
representatives said they would take a look at it.
Northland Hub met with the Teamsters and UFCW on
June 6. Sinnett said the Teamsters were claiming the work
on the inside of the warehouse. Freimuth said UFCW could
not agree to that because of the pension effects it would have
and because of the layoff of employees represented by
UFCW. After a caucus of the union representatives, Sinnett
said the Teamsters Union would deal with UFCW on the ju-
risdictional issue but it continued to want to negotiate a suc-
cessor contract. D’Ambrosio suggested starting with the
clerks’ agreement and asked what in that agreement was not
acceptable to the Teamsters. Sinnett said they had not looked
at the Cushman contract. D’Ambrosio reminded him that the
Teamsters’ general counsel received the Cushman contract in
January. Sinnett said they wanted to get together with North-
land Hub at a later date to negotiate a new contract.
By letter dated June 10, Jerry Atwood, Teamsters business
manager, requested a meeting with Northland Hub to nego-
tiate a new contract. D’Ambrosio responded by letter dated
June 17 in which he states that the Southgate Hub located
on Cushman has been under contract with UFCW 1496 for
more than 5 years and that, following the remodeling and ex-
pansion of that facility into a wholesale cash-and-carry oper-
ation, both UFCW and the Teamsters have claimed jurisdic-
tion. The letter further stated that Northland Hub had no ob-
jections to joint jurisdiction if certain problem areas could be
worked out. He then set forth three specific areas of concern:
a clean split on jurisdiction so as to avoid future disputes;
the employer’s need for a contract no more restrictive or ex-
pensive than the 1987–1989 Cushman agreement with
UFCW which would involve a $7- to $9-an-hour reduction
in wage and benefits costs from the 1986–1989 dry grocery
agreement; and Northland Hub’s interest in retaining its
present crew consisting of about 10 former Aurora facility
employees with the remainder being employees previously
represented by UFCW. He further reiterated his June 6 re-
quest that the Teamsters outline its specific objections to the
1987–1989 Cushman agreement.
Shortly thereafter Atwood and D’Ambrosio scheduled an-
other meeting. Following the filing of the charges herein on
June 30, 1988, D’Ambrosio telephoned Atwood and asked
whether there was any need to meet. Atwood said he did not
know but would speak to Witt and get back to D’Ambrosio,
which he never did. There were no further meetings during
1988.
IV. CONCLUSIONS
A. The Procedural Issues
UFCW’S basic argument is that the underlying charge
herein is barred by Section 10(b) of the Act and therefore
the complaint should be dismissed. Northland Hub also al-
leges this as an affirmative defense. Basically, UFCW con-
tends that the critical event identified in the original and
amended charges was that it had ‘‘entered into a collective-
bargaining agreement’’ and that the alleged unlawful conduct
is predicated upon that event which occurred outside the Sec-
675NORTHLAND HUB, INC.
tion 10(b) period. For that reason, and because ‘‘the com-
plaint identifies conduct which is representational in nature,’’
UFCW argues that the complaint should be dismissed.
The original charge herein filed against UFCW on June
30, 1988, alleges:
Within the last six months, Local 1496 entered into a
collective bargaining agreement for employees em-
ployed at 1701 South Cushman Street, by Northland
Hub, Inc. at a time when Local 1496 did not have ma-
jority status.
An amended charge filed on March 10, 1989, alleges:
Within the past 6 months, UFCW Local 1496 has en-
tered into a collective bargaining agreement with North-
land Hub, Inc. which said contract has been applied to
employees performing wholesale grocery warehouse
work, even though said employees are represented by
Teamsters Local 959 and are covered by a valid exist-
ing contract between Teamsters Local 959 and North-
land Hub, Inc. Said employees have been required to
maintain membership in good standing in UFCW Local
1496, as a condition of employment with Northland
Hub, Inc.
Thus, according to UFCW, the critical event is the enter-
ing into the collective-bargaining agreement on December 1,
1987—conduct which is clearly outside the 6-month 10(b)
period. Therefore UFCW contends the complaint must be
dismissed.
I find no merit in this argument. UFCW relies upon Ma-
chinists Local 1424 (Bryan Mfg. Co.) v. NLRB, 362 U.S. 411
(1960). In that matter the Employer and the Union entered
into a collective-bargaining agreement at a time when the
Union did not represent a majority of the employees covered
by the contract. The contract was lawful on its face and there
was no contention that it was being administered in an un-
lawful manner. The sole basis for the alleged violation of the
Act was the unlawful execution of the agreement. There ex-
isted no basis for the finding of a violation independent of
relating back to the execution of the agreement. In those cir-
cumstances the court held that the 10(b) period began to run
on the date of the execution of the contract.
Bryan is distinguishable from the instant matter. Here,
there is no allegation that the execution of the 1987–1989
Cushman agreement was unlawful nor does the violation al-
leged herein rely upon the fact of the execution of that agree-
ment. Rather, the unlawful conduct alleged herein is the ap-
plying of that agreement to transferred Aurora employees on
February 1, 1988, even though said employees did not con-
stitute an accretion to any unit then existing at the Cushman
facility. Thus the 10(b) period commenced on February 1,
1988. The fact that the Charging Party worded the original
charge in terms of an unlawful execution of the UFCW-
Cushman contract is not fatal. The allegations of the amend-
ed charge are closely related to the allegations of the original
charge in that they both are concerned with the question of
whether the relocated Aurora employees continued to be law-
fully represented by the Teamsters.
UFCW’s position is not completely clear as to its assertion
that the complaint should be dismissed because it identifies
conduct which is representational in nature. However, assum-
ing that UFCW is arguing that the issues involved here can
only be resolved in a representation proceeding, I also reject
this argument. The complaint alleges conduct which, if prov-
en, would constitute unfair labor practices within the mean-
ing of Section 8 of the Act. The resolution of these issues
cannot be addressed in a representation proceeding.
B. The Alleged Discrimination by Northland Hub
The General Counsel contends that Northland Hub unlaw-
fully refused to transfer the Aurora employees to the
Cushman facility because they were represented by the
Teamsters. Northland Hub contends that its conduct was not
unlawful. In this regard it argues that the reorganization was
economically motivated, and that it did rehire some Aurora
employees who were selected based on an evaluation by
Mongold who is a Teamsters member. Further Northland
Hub argue, liking one union better than another, or having
better working relationships with one as compared to an-
other, does not constitute unlawful discrimination.
Respondent is correct that the mere fact it prefers one
union over another or has a better working relationship with
one as compared to another does not constitute a violation.
However, it is not Respondent’s preference for, or quality of
relationship with, UFCW that is at issue here. Rather the
issue is the motivation for Respondent’s conduct.
It is undisputed that in relocating its Peger and Aurora op-
erations to the Cushman facility, Northland Hub treated its
Peger and Aurora employees differently. All Peger employ-
ees were transferred without having to submit applications as
new employees and without being subjected to performance
evaluations. Aurora employees were required to submit appli-
cations for employment as new employees and were selected
for rehire based on performance, and other, evaluations. It is
also undisputed that the Peger employees were permitted to
transfer without submitting applications as new employees
because they were represented by UFCW and the Aurora em-
ployees were required to submit applications as new employ-
ees because they were represented by the Teamsters. Such
conduct is inherently discriminatory.
Further, a discriminatory motive is evidenced by Dan
Gavora’s instructions to Mongold not to hire too many team-
sters because he wanted to keep the number of teamsters low
in case the matter comes to a head or a hearing and to sub-
contract trucking work rather than hiring additional team-
sters, his acquiescence in Mongold’s negative evaluation of
Rutherford because of his activities as union steward, the un-
explained excessive use of overtime, Gavora expressed reluc-
tance to hire Behan for a permanent position because he had
been represented by the Teamsters, and Gavora’s statements
to employees that he did not like having employees shoved
down his throat and that he did not like the Teamsters as
their costs were much higher than those of UFCW. Accord-
ingly, I find that in discharging or refusing to transfer Aurora
employees to the Cushman facility Northland Hub was un-
lawfully motivated by their representation by the Teamsters.
The complaint alleges that Northland Hub unlawfully dis-
charged and/or failed to transfer to its relocated facility em-
ployees Donald Evans, Dennis Carey, John Garben, Bradford
King, Phillip Lott, Terrence Reese, James Rutherford, Timo-
thy Ryan, Daniel Chase, Barton Durgan, Ezekiel Landis,
Timothy Gunderson, and Steven Hatfield. At the commence-
ment of the hearing herein, Lott and Durgan were withdrawn
676 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 Although there were some testimony that the injuries received by Carey
and Reese would prevent them from returning to work, the record does not
clearly establish this.
as alleged discriminatees. It is undisputed that the others all
applied, either immediately or within 30 days after the Au-
rora facility closed, for employment at the Cushman facility.
Evans, Ryan, Landis, and Gunderson were allegedly not
hired because they were not on Mongold’s list of ‘‘best’’
employees. Hatfield was on leave of absence. Chase was on
layoff. Carey, Garben, and Reese were on workers com-
pensation leave. King, who at the time of the relocation was
on leave because of an industrial accident, applied for em-
ployment about a month after the relocation. He was not
hired because allegedly there was no work available.
Since it is uncertain how many, or which, Aurora employ-
ees would have been transferred but for Respondent’s unlaw-
ful conduct, the risk of the uncertainty must fall upon the
wrongdoer. Accordingly, I find that Respondent refused to
transfer or discharged Evans, Ryan, Landis, Gunderson, and
King in violation of Section 8(a)(1) and (3) of the Act. I fur-
ther find that by refusing to accord the employees on layoff
and on workers compensation, and other, leave—Carey,
Chase, Garben, Reese, and Hatfield12—whatever rights to re-
turn to their jobs they enjoyed prior to the relocation, North-
land Hub effectively discharged them in violation of Section
8(a)(1) and (3) of the Act.
Northland Hub contends that Rutherford was not hired be-
cause of the manner in which he discharged his duties as
union steward. However, the essence of his alleged wrong-
doing was simply that he was more inclined to police the
contract when he had a personal interest in the matter or if
he was otherwise dissatisfied with the supervisor involved.
There are no allegations on misconduct clearly. Clearly his
conduct was not sufficient to remove him from the protection
of the Act. Accordingly, I find that Northland Hub violated
Section 8(a)(1) and (3) of the Act by refusing to transfer and
discharging Rutherford.
C. The Alleged Violation of Section 8(a)(1), (2), and (5)
and Section 8(b)(1)(A)
The General Counsel contends that this matter involves
merely a relocation of operations to a nearby facility and that
‘‘a mere relocation of operations accompanied by a transfer
of a considerable portion of the employees to another plant,
without an accompanying change in the character of the jobs
and the function of the employees in the contract unit, does
not remove a contract as a bar [to a question concerning rep-
resentation].’’ General Extrusion Co., 121 NLRB 1165, 1167
(1958). See also United States Steel Corp., 280 NLRB 837
(1986), and Lammert Industries, 229 NLRB 895, 934 (1977).
Consequently, after relocation during a contract term, an
employer is not privileged to withdraw recognition from a
union if its operations remain substantially the same and a
substantial percentage of employees are transferred. Harte &
Co., 278 NLRB 947 (1986); Westwood Import Co., 251
NLRB 1213 (1980). Thus, the General Counsel argues, the
Teamsters 1986–1989 dry grocery agreement survived the re-
location since the relocated Aurora operation remained sub-
stantially the same. Further, the General Counsel argues that
the number of transferred employees is immaterial herein be-
cause there was no merger of operations. Rather there exists
two distinct units represented by two different unions who
maintain claims of representing their respective unit mem-
bers.
Respondents do not argue that the General Counsel has in-
correctly stated the Board’s relocation policy but dispute the
General Counsel’s contention that the operations remain the
same. Rather, Respondents contend the operations have
merged and the predominant number of employees in the
merged unit are represented by UFCW. Specifically Re-
spondents contend that the transferred Aurora facility em-
ployees constituted an accretion to an already established
Cushman unit consisting of wholesale bakery, wholesale ba-
nana room, rack preparation, and liquor store employees to
which the Peger employees had already been accreted.
Northland Hub contends the operations at the Cushman fa-
cility was a changed operation in that a cash-and-carry oper-
ation was added; the number of shifts changed from three to
two and the job duties of drivers were changed by the
switching of the on-the-route order-taking function from the
drivers to the new merchandiser classification. Consequently
route drivers no longer spend time with customers taking or-
ders. Also employees at the new facility are cross-trained.
Thus, they may work in the warehouse, or drive, or work on
orders as needed. Finally, Northland Hub argues that the re-
organization plan, from its inception, contemplated full inte-
gration of all operations located in the Cushman facility.
However, it required a period of time to achieve this goal;
and, at the time of the hearing herein, its operations had, in
fact, been fully integrated. Northland Hub concedes, in its
posthearing brief that, for a period of time following the re-
location, former Teamsters work could, in some cases be dis-
tinguished from former UFCW work. However, Northland
Hub contends that this circumstance is not dispositive and
that the following factors should be controlling:
(1) The consolidation plan was developed solely for legiti-
mate reasons without any anti-Teamsters motivation.
(2) UFCW was in a firmly preponderant position at the
Cushman facility.
(3) Both Unions were afforded parallel opportunities for
bargaining. UFCW did bargain. The Teamsters did not.
(4) A total consolidation or merger has occurred which
make separate units inappropriate.
The significant facts are largely undisputed. In the fall of
1987, the Cushman facility housed a wholesale banana ripen-
ing and distribution center, a retail liquor store, and a whole-
sale production bakery. A wholesale dairy warehouse and
distribution center with a limited dry grocery inventory was
located in the the Peger facility and a wholesale dry grocery
warehouse and distribution center was located in the Aurora
facility.
All of the bakery employees, including production employ-
ees, warehouse employees and drivers, were represented by
UFCW under the 1986–1987 Cushman agreement. The liquor
store employees were represented by UFCW under the
multilocation 1983–1986 retail grocers agreement which had
been extended to August 1, 1987. The Peger employees, in-
cluding warehousemen and drivers, were represented by
UFCW under the 1984–1987 dairy agreement. The Aurora
employees, including warehousemen and drivers, were rep-
resented by the Teamsters under the 1986–1989 dry grocery
agreement. It is unclear from the record as to which contract
covered the banana ripening and distribution center or the
677NORTHLAND HUB, INC.
crew of former Southgate Hub employees who were em-
ployed to remove the retail inventory and racking and to in-
stall the wholesale racking necessary to convert the space
from retail to wholesale use. However, in its posthearing
brief, Northland Hub claims they were covered by the
Cushman agreement.
The Peger operation and all Peger employees were trans-
ferred to the Cushman facility on November 20, 1987. On
December 1, Hub Foods and UFCW entered into the 1987–
1989 Cushman agreement, which purported on its face to
cover all employees at the Cushman location, including bak-
ery employees, liquor store employees, cash-and-carry driv-
ers (meat, produce, dry and frozen groceries, dairy), mer-
chandisers and cash-and-carry warehouse employees (meat,
produce, dry and frozen groceries, dairy). Further a letter of
understanding between Northland Hub Dairy and UFCW was
addended to the agreement. That letter provides that the
Peger contract remain in effect until August 1, 1989, with a
reduction in pay to $15 an hour and that new employees
hired after November 1, 1987, will be covered under the
1987–1989 Cushman agreement.
It is undisputed that there was no interchange of employ-
ees between the liquor store, the bakery, and the dairy. The
cash-and-carry operation had not started, and there were no
employees classified as merchandisers. The record is unclear
as to the two banana room employees.
Therefore, Respondent urges that it is appropriate to apply
the Board’s accretion doctrine. An accretion may be simply
defined as the addition of new employees to an already exist-
ing group. However, the determination of whether they may
properly constitute an accretion is not quite so simple. The
Board has long followed a restrictive policy in determining
whether the addition of a new group of employees to an ex-
isting unit is proper because such an accretion forecloses the
basic right of the new group of employees to select their bar-
gaining representative. NLRB v. Food Employers Council,
399 F.2d 501 (9th Cir. 1988); Compact Video Services, 284
NLRB 117 (1987). Thus, an accretion may be determined
improper even though an overall bargaining unit might be
appropriate if the issue was raised in the context of a petition
for a representation election. The Board ‘‘will not, under the
guise of accretion, compel a group of employees, who may
constitute a separate appropriate unit, to be included in an
overall unit without allowing those employees the oppor-
tunity of expressing their preference.’’ Melbet Jewelry Co.,
180 NLRB 107, 110 (1969).
Factors considered by the Board in determining whether
an accretion is proper are functional integration, bargaining
history, employee interchange, level of management control,
similarity of working conditions, job, and physical separate-
ness. Additionally, special weight is given to the interests of
the employees sought to be accreted in exercising their right
to self-organization. Generally, a valid accretion has been
found ‘‘only when the additional employees have little or no
separate group identity and thus cannot be considered to be
a separate appropriate unit and when the additional employ-
ees share an overwhelming community of interest with the
preexisting unit to which they are accreted.’’ Safeway Stores,
256 NLRB 918 (1981), citing Melbet Jewelry, supra, and
NLRB v. Food Employers Council, supra.
The changed or unchanged nature of Northland Hub’s op-
erations depend upon the point in time that one considers the
operations. Respondents would have me consider the oper-
ations at the time of the hearing herein or at least not before
the latter part of 1988. In support thereof, Respondents argue
that it is immaterial that full integration was not immediately
achieved since Northland Hub’s reorganization was economi-
cally motivated and, at all times, contemplated full integra-
tion of the various operations.
I reject this premise. True, it is undisputed that the deci-
sion to reorganize was motivated by legitimate economic
considerations. However, it appears that the implementation
of the reorganization was not similarly above reproach. Thus,
Northland Hub elected to notify UFCW not only of its plans
to relocate the Peger facility but also of its plan to relocate
the Aurora facility. Then, in contemplation of the relocation,
Respondents entered into a collective-bargaining agreement
which purports to cover all operations located at the
Cushman facility. It was not until 2 months later that the
teamsters were notified that the Aurora facility would be re-
located. When this is coupled with Dan Gavora’s expressed
desire to avoid hiring teamsters, the excessive overtime, the
subcontracting, and the unlawful discharges and refusals to
relocate Aurora employees, there emerges a picture of an
employer seeking to unilaterally determine the identity of its
employees’ representative.
Further, there are no objective factors to establish that
Northland Hub was following some well-defined plan and/or
timetable for the full integration of its operations. Indeed,
prior to July 1988 there is little evidence to indicate that Re-
spondent took any initial steps to achieve integration of oper-
ations aside from the physical placement of all operations
under one roof. In these circumstances I see no basis for as-
sessing the changed nature of Northland Hub’s operation at
any point in time other than February 1, 1987, when the
withdrawal of recognition took place. It is clear, and I find,
that on February 1, 1988, when Northland Hub withdrew rec-
ognition from the Teamsters, the bakery, the liquor store, the
dairy warehouse and distribution center, and the dry grocery
warehouse and distribution center continued to operate in the
same manner as prior to the relocations, as separate and dis-
tinct operations. Accordingly, I find that Northland Hub’s
dairy and dry grocery operations remained substantially the
same following the relocations. I further find that 11 of the
19 employees at the Aurora facility were relocated to the dry
grocery operation at the Cushman facility and that, but for
Northland Hub’s unlawful discrimination, an additional num-
ber of these employees would have transferred to the
Cushman facility.
Since Northland Hub’s dry grocery operations remained
substantially the same and a substantial percentage of the
employees were transferred, I find that Northland Hub was
not privileged to withdraw recognition from the Teamsters
and was obligated to continue to abide by the 1986–1989
Aurora agreement. Accordingly, I find that Northland Hub
violated Section 8(a)(1) and (5) of the Act by withdrawing
recognition from Teamsters Local 959 and has violated Sec-
tion 8(a)(1) and (5) and Section 8(d) of the Act by repudiat-
ing the terms and conditions of the 1986–1989 Aurora agree-
ment.
I further find that Respondent Northland Hub violated Sec-
tion 8(a)(1), (2), and (3) of the Act by granting recognition
to, and bargaining with, UFCW Local 1496 as the exclusive
bargaining representative of its dry grocery warehousemen
678 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 See the remedy section herein. 14 The complaint does not allege an 8(b)(2) violation.
and driver employees; and has violated Section 8(a)(1), (3),
and (5) by applying the terms of the 1987–1989 UFCW
Cushman contract to said employees. Similarly, I find that
Respondent UFCW Local 1496 has violated Section
8(b)(1)(A) of the Act by bargaining with Northland Hub as
the exclusive collective-bargaining representative of North-
land Hub’s dry grocery warehousemen and driver employees
and by applying the terms of its 1987–1989 Cushman agree-
ment to said employees and attempting to enforce the union-
security provision of said agreement against said employees.
CONCLUSIONS OF LAW
1. Northland Hub is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. UFCW Local 1496 and Teamsters Local 959 each is a
labor organization within the meaning of Section 2(5) of the
Act.
3. Respondent Employer’s relocation of its dry grocery
warehouse and distribution operation on February 1, 1988,
from its Aurora facility to its Cushman facility resulted in
substantially the same operation and retained a substantial
number of bargaining unit employees, such that its obligation
to recognize Teamsters Local 959 and honor its 1986–1989
dry grocery agreement with Teamsters Local 959 continued
unabated at the new facility.
4. The following employees constituted an appropriate unit
on February 1, 1988, and for a period up to at least October
1988:13
All dry grocery warehousemen and drivers employed
by Respondent Employer at its Cushman facilities in
Fairbanks, Alaska, but excluding all other employees,
guards and supervisors as defined in the Act.
5. At all times since 1980 and up to at least October 1988,
Teamsters Local 959 has been the exclusive representative of
the employees in the above-described unit for the purposes
of collective bargaining with respect to rates of pay, wages,
hours of employment, and other terms and condition of em-
ployment.
6. By withdrawing recognition from Teamsters Local 959
as the exclusive collective-bargaining representative of em-
ployees in the above-described unit Northland Hub has vio-
lated Section 8(a)(1) and (5) of the Act.
7. By repudiating all the terms and provisions contained
in the 1987–1989 Teamsters dry grocery contract, Northland
Hub has violated Section 8(a)(1) and (5) and Section 8(d) of
the Act.
8. By discharging and/or failing to transfer or recall to its
relocated facility employees Donald Evans, Dennis Carey,
John Garben, Bradford King, Terrence Reese, James Ruther-
ford, Timothy Ryan, Daniel Chase, Ezekiel Landis, Timothy
Gunderson, and Steven Hatfield because they were rep-
resented by Teamsters Local 959, Northland Hub had dis-
couraged membership in Teamsters Local 1496 in violation
of Section 8(a)(1) and (3) of the Act.
9. By recognizing UFCW Local 1496 as the bargaining
representative of the employees in the above-described unit
at a time when the employees in said unit were represented
for the purposes of collective bargaining by Teamsters Local
959, Northland Hub has rendered unlawful assistance and
support to UFCW Local 1496 in violation of Section 8(a)(1)
and (2) of the Act.
10. By applying its union-security agreement with UFCW
Local 1496 to the above-described unit, at a time when the
employees in said unit were represented for the purposes of
collective bargaining by Teamsters Local 959, Northland
Hub has rendered unlawful assistance and support to UFCW
in violation of Section 8(a)(1) and (2) of the Act and has en-
couraged membership in UFCW Local 1496 and discouraged
membership in Teamsters Local 959 in violation of Section
8(a)(1) and (3) of the Act.
11. By accepting such recognition, by applying the terms
and provisions of said contract to the employees in the
above-described unit, and by enforcing and/or attempting to
enforce the union-security provisions of said contract, UFCW
Local 1496 has violated Section 8(b)(1)(A) of the Act.14
12. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
REMEDY
Having found that Respondents have engaged in certain
unfair labor practices, I shall recommend that they cease and
desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act.
I have found above that the alleged integration of Re-
spondents’ operations is not relevant to a determination of
Northland Hub’s obligation to continue to recognize the
Teamsters and to honor its collective-bargaining agreement
with that union since such integration clearly did not occur
prior to several months after the withdrawal of recognition
and repudiation of the contract. However, I conclude that
such alleged integration is relevant to the remedy herein.
In this regard, I find that at some point after October 1988
and prior to the hearing herein, Respondents’ operations did
merge. The separate identities of the groups of employees at
the Cushman facility were determined mainly by bargaining
history and the distinct manner in which the operations were
separated which resulted in a lack of operational and func-
tional integration and of common supervision. However,
Mongold testified without contradiction that by 3 or 4
months after July 1988 the work of the former Aurora em-
ployees had been fully integrated with that of other Cushman
employees so that there were no longer job classifications
identifiable as solely dry grocery warehousemen and drivers.
Rather, the warehousemen and driver employees at the
Cushman facility worked with all products. They have the
same skills, work in the same area, perform the same job
functions, share the same lunchroom and restrooms, and have
the same day-to-day supervision. In these circumstances, I
find that by the time of the hearing herein, but no earlier
than October 1988, the former Aurora employees retained no
separate group identity and they share an overwhelming
community of interest with the other employees at the
Cushman facility. I therefore find that by that time a separate
unit of dry grocery warehousemen and drivers was no longer
appropriate. Accordingly, I further find it inappropriate to
issue a prospective bargaining order in said unit to remedy
the refusal to bargain.
679NORTHLAND HUB, INC.
15 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
16 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations
Board.’’
Having found that Northland Hub has unlawfully refused
to abide by the terms of its collective-bargaining agreement,
I shall recommend that it make whole the employees in the
unit found appropriate herein for any financial loss they may
have suffered by reason of Northland Hub’s failure to apply
the terms of said contract, with interest as prescribed in Flor-
ida Steel Corp., 231 NLRB 651 (1977).
Since I have found that Northland Hub unlawfully dis-
criminated against employees, I shall recommend that North-
land Hub offer Donald Evans, Timothy Ryan, Ezekiel Lan-
dis, Timothy Gunderson, Bradford King, and James Ruther-
ford immediate and full reinstatement at its Cushman facility
to their former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to their se-
niority or any other right or privilege previously enjoyed.
Since the record is unclear as to the rights of the employees
on leave or layoff to rehire or reinstatement—Dennis Carey,
John Garben, Terrence Reese, Steven Hatfield, and Daniel
Chase—I shall recommend that they be offered employment
at the Cushman facility in the same positions in which they
would have been employed absent the discrimination against
them, discharging if necessary any employees hired after
their date of application. I shall further recommend that in
the event there are insufficient positions for all the
discriminatees, Northland Hub be required to place the
names of those not hired on a preferential hiring list and
offer them the first positions that become available in which
it would have employed them absent the discrimination
against them. It will be further recommended that Respond-
ent be required to make all discriminatees whole for any loss
of earnings they may have suffered by reason of the failure
to give them nondiscriminatory consideration for employ-
ment in the manner outlined above, with backpay to be com-
puted on a quarterly basis, making deductions for interim
earnings. F. W. Woolworth Co., 90 NLRB 289 (1950), and
with interest to be computed in the manner prescribed in
Florida Steel Corp., 231 NLRB 651 (1977). See generally
Isis Plumbing Co., 138 NLRB 716 (1962).
I also recommend that Northland Hub be required to re-
move from its records any reference to the unlawful dis-
charges and/or refusals to transfer, rehire, or recall said em-
ployees, and provide them with written notice of such
expunction and that said discharges and/or refusals to trans-
fer, rehire, or recall will not be the basis of any future per-
sonnel action against them.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended15
ORDER
A. The Respondent, Northland Hub, Inc., Fairbanks, Alas-
ka, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Withdrawing recognition from, and repudiating its col-
lective-bargaining agreement with, Teamsters Local 959 at a
time when Teamsters Local 959 is the exclusive bargaining
representative of the employees in the involved appropriate
unit.
(b) Recognizing UFCW Local 1496 or giving effect to any
collective-bargaining agreement with UFCW Local 1496 at a
time when UFCW Local 1496 does not represent a majority
of the employees in the involved appropriate unit.
(c) Discharging and/or failing to transfer, rehire, or recall
employees to a relocated facility because they are rep-
resented by Teamsters Local 959.
(d) Giving effect to provisions of a collective-bargaining
agreement with UFCW Local 1496 which require employees
to become or remain members of UFCW Local 1496 and re-
quire Northland Hub to give effect to dues-checkoff author-
izations in favor of UFCW Local 1496 at a time when
UFCW Local 1496 does not represent a majority of the em-
ployees in the involved unit.
(e) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Donald Evans, Timothy Ryan, Ezekiel Landis,
Timothy Gunderson, Bradford King, and James Rutherford
immediate and full reinstatement at its Cushman facility to
their former jobs or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their seniority
or any other right or privilege previously enjoyed.
(b) Offer Dennis Carey, John Garben, Terrence Reese, Ste-
ven Hatfield, and Daniel Chase employment at its Cushman
facility in the same positions in which they would have been
employed absent the discrimination against them, discharg-
ing, if necessary, any employees hired after their date of ap-
plication. In the event that there are insufficient positions for
all the discriminatees, place the names of those not hired on
a preferential hiring list and offer them the first positions that
become available in which it would have employed them ab-
sent the discrimination against them.
(c) Jointly and severally with UFCW Local 1496 reim-
burse, with interest, the employees or former employees in
the unit found appropriate herein for initiation fees and dues
paid to UFCW Local 1496 pursuant to the unlawful enforce-
ment of the union-security provisions of its agreement with
UFCW Local 1496.
(d) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(e) Post at its Cushman facility in Fairbanks, Alaska, cop-
ies of the attached notice marked ‘‘Appendix A.’’16 Copies
of the notice, on forms provided by the Regional Director for
Region 19, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
680 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations
Board.’’
(f) Post at the same places and under the same conditions,
as set forth in (e), above, and as soon as they are forwarded
by the Regional Director, copies of the UFCW notice herein,
marked ‘‘Appendix B.’’
(g) Notify the Regional Director in writing with 20 days
from the date of this Order what steps the Respondent has
taken to comply.
B. The Respondent, UFCW Local 1496, its officers,
agents, and representatives, shall
1. Cease and desist from
(a) Accepting recognition and giving effect to any collec-
tive-bargaining agreement on behalf of Northland Hub’s
Cushman facility employees in a unit where UFCW Local
1496 does not represent a majority.
(b) Accepting and retaining moneys in amounts equal to
initiation fees and dues paid by, or deducted from the pay
of, Northland Hub’s Cushman facility employees in a unit
where UFCW Local 1496 does not represent a majority.
(c) In any like or related manner restraining and coercing
Northland Hub’s Cushman facility employees in the exercise
of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Jointly and severally with Respondent Northland Hub
reimburse, with interest, the employees or former employees
in the unit found appropriate herein for initiation fees and
dues paid to UFCW Local 1496 pursuant to the unlawful en-
forcement of the union-security provisions of its agreement
with Northland Hub.
(b) Post in conspicuous places in the UFCW Local 1496
business office, meeting halls, and places where notices to its
members are customarily posted, copies of the attached no-
tice marked ‘‘Appendix B.’’17 Copies of the notice, on forms
provided by the Regional Director for Region 19 shall, after
being signed by an authorized representative of Respondent
UFCW Local 1496, be posted immediately upon receipt and
maintained for 60 consecutive days thereafter. Reasonable
steps shall be taken by Respondent to ensure that the notices
are not altered, defaced, or covered by any other material.
(c) Furnish to the Regional Director signed copies of the
notice for posting by Northland Hub at its Cushman facility
in places where notices to employees are customarily posted.
Copies of the notice, to be furnished by the Regional Direc-
tor, shall after being signed by the Respondent, be forthwith
returned to the Regional Director for disposition by him.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent Union
has taken to comply.
APPENDIX B
NOTICE TO EMPLOYEES AND MEMBERS
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.
WE WILL NOT accept recognition, or give effect to any col-
lective-bargaining agreement, on behalf of Northland Hub’s
Cushman facility employees, in a unit where we do not rep-
resent a majority.
WE WILL NOT accept and retain moneys in amounts equal
to initiation fees and dues paid by or deducted from the pay
of Northland Hub’s Cushman facility employees in a unit
where we do not represent a majority.
WE WILL NOT in any like or related manner restrain or co-
erce Northland Hub’s Cushman facility employees in the ex-
ercise of the rights guaranteed them by Section 7 of the Act.
WE WILL jointly and severally with Northland Hub reim-
burse, with interest, the employees or former employees in
the appropriate unit set forth below for initiation fees and
dues paid to us pursuant to the union-security provisions of
our agreement with Northland Hub.
The appropriate unit from February 1, 1988, to at least Oc-
tober 1988 is:
All dry grocery warehousemen and drivers employed
by Respondent Employer at its Cushman facility in
Fairbanks, Alaska, but excluding all other employees,
guards and supervisors as defined in the Act.
UNITED FOOD AND COMMERCIAL WORKERS
INTERNATIONAL UNION LOCAL NO. 1496,
AFL–CIO