Super Valu Stores, Inc.,

National Labor Relations Board - Board Decisions

Feb 27, 1987

283 N.L.R.B. 134 (N.L.R.B. 1987)

134 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Super Valu Stores, Inc., Denver Division and Inter-
national Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America, Local
No. 435 . Case 27-UC-89
27 February 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
BABSON AND STEPHENS
Upon a petition filed under Section 9(c) of the
National Labor Relations Act by the Employer, a
hearing was held before Hearing Officer Wayne L.
Benson on 12 and 13 March 1986. Subsequent, to
the hearing, the Regional Director transferred this
proceeding to the National Labor Relations Board
for decision pursuant to Section 102.67 of the
Board's Rules and Regulations. Both the Union and
the Employer have filed briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has reviewed the rulings of the hear-
ing officer and finds that they are free from preju-
dicial error. The rulings are affirmed.'
On the entire record in this case, including the
briefs, the Board makes the following findings:
1. The Employer is a wholesale distributor of
grocery and household products to retail stores in
Colorado. The Denver division operates a whole-
sale grocery warehouse on Brighton Boulevard in
Denver, Colorado (Brighton warehouse) and oper-
ates a general merchandise warehouse approximate-
ly 10 miles from the Brighton warehouse in
Aurora, Colorado (Aurora warehouse). The parties
stipulated that the Employer during any 12-month
period receives goods in excess of $50,000 directly
from suppliers located outside the State of Colora-
do. On these facts, we find that the Employer is
engaged in commerce with the meaning of Section
2(6) and (7) of the Act. We also find that, as stipu-
lated by the parties, the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
2. The Union has represented employees at the
Brighton warehouse since 1940. The Employer has
recognized the Union as the collective-bargaining
representative of the driver and warehouse employ-
ees at the Brighton warehouse since it purchased
that facility in October 1982. The parties have en-
tered into two collective-bargaining agreements
i The Union renews its contention, initially raised at the hearing, that
the hearing officer improperly proceeded with the hearing on the petition
in light of certain pending unfair labor practice charges without receiving
advice from the office of the Executive Secretary whether to proceed.
We note, however, that on 11 February 1986, by direction of the Board,
the Regional Director was granted permission to proceed with the hear-
ing Accordingly, we find the Union's contention without ment
during that time, and the current agreement is ef-
fective from 16 September 1984 through 12 Sep-
tember 1987. The Brighton unit is described in the
most recent collective-bargaining agreement's rec-
ognition clause as follows:
The Employer agrees to recognize and does
hereby recognize the Union as the exclusive
bargaining agent, for the purpose of collective
bargaining, as provided by the National Labor
Relations Act, for all employees as listed in
this Agreement... .
The employees listed in the agreement appear in
Addendum "A" as follows:
warehouse persons and/or helpers; checker or
shipping and/or receiving clerk; frozen food
warehouse person; city drivers; over-the-road
drivers; pre-wrapping, pricing or, cigarette
stamping; janitors; tiremen, parts person, greas-
er and washers; lead person; garage leadper-
son; journeymen mechanics; and apprentice
mechanics.
The Brighton warehouse has historically stocked
grocery items and general merchandise items to fill
customer orders. Until 1982 the facility carried a
complete line of general merchandise and the
Union represented those employees handling that
merchandise. At that time, however, the company
from which the Employer purchased the Brighton
warehouse sold the vast majority of its general
merchandise inventory and eliminated most of the
general merchandise aspect of its Brighton oper-
ation because of the loss of a major customer.
Therefore, when the Employer purchased the
Brighton warehouse in October 1982, the general
merchandise aspect of the Brighton operation did
not exist except for a few items.
In mid-1983, the Employer secured the business
of a major customer after agreeing to supply that
customer's grocery and general merchandise needs.
The Employer therefore had to increase its general
merchandise operations dramatically and arranged
to have most of its general merchandise orders sup-
plied from its facility in Omaha, Nebraska. The
general merchandise shipments from Omaha were
integrated with grocery orders at the Brighton
warehouse where they were then shipped to cus-
tomers. After several months, the Employer decid-
ed to establish a major general merchandise oper-
ation within the Denver division because inconsist-
ent delivery schedules and late deliveries had made
the Omaha arrangement unsatisfactory. After se-
curing a lease on a warehouse in Aurora, Colora-
do, approximately 10 miles from the Brighton
283 NLRB No. 24
SUPER VALU STORES 135
warehouse, the Employer opened the Aurora ware-
house in June 1984.
When the Employer opened the Aurora ware-
house under the name "Preferred Merchandising,"
it did not hire any Brighton employees to staff the
facility . The Employer also refused to apply the
existing , collective-bargaining agreement at the
Brighton facility to the Aurora warehouse. Conse-
quently, the Union filed a grievance and an- unfair
labor practice charge. The Regional Director de-
ferred this charge to the agreement 's arbitration
procedure on 21 September 1984 . On 22 May 1985
the arbitrator sustained the Union 's grievance and
ordered the Employer to apply the collective-bar-
gaining agreement to the Aurora warehouse.2
Between 1 and 14 June 1985 the Employer com-
plied with the arbitrator's award and posted
Aurora jobs at the Brighton warehouse. The Em-
ployer released its Aurora employees and trans-
ferred several Brighton ' bargaining unit employees
to the Aurora warehouse. On 14 June 1985, how-
ever, the Employer decided to contest the arbitra-
tor's award ; returned the earlier transferred bar-
gaining unit employees to the Brighton warehouse;
and rehired the Aurora employees it had released.
On 17 June 1985 the Employer filed the instant
petition seeking to clarify the existing Brighton
bargaining unit to exclude all the employees at the
Aurora warehouse.3 The Employer argues that the
Aurora employees constitute a separate appropriate
unit and do not constitute an accretion to the exist-
ing Brighton unit . In opposing the petition, the
Union argues that (a) unit clarification is inappro-
priate to disturb the parties ' agreement as interpret-
ed by the arbitrator; (b) unit clarification is inap-
propriate because the Employer expanded an exist-
ing operation ; and (c) assuming, arguendo, that the
Aurora warehouse is a new facility, the Aurora
employees constitute an accretion to the existing
Brighton unit.
We have carefully considered the Union's and
the Employer's arguments . For the following rea-
sons, we grant the Employer's petition and clarify
the existing Brighton unit to exclude the Employ-
er's Aurora warehouse employees.
We first consider whether unit clarification is in-
appropriate because of the parties' agreement. The
Board does not permit clarification of a unit in
2 The Regional Director subsequently refused to issue a complaint
based on the Union's charge in light of the arbitrator's decision to which
he deferred
3 After the Employer filed this petition, several unfair labor practice
charges were filed during 1985 . An Aurora employee filed 8(a)(3) and (2)
charges against the Employer, and the Union filed 8(a)(5), (3), and (1)
charges against the Employer The Employer also filed 8(b)(2) and (1)(A)
charges against the Union, but these latter charges are no longer pending.
The Union has also filed suit in Tederal district court seeking enforce-
ment of the arbitration award.
miidcontract when ' that unit is clearly defined by
the parties ' agreement . See Wallace-Murray Corp.,
192 NLRB, 1090 (1971). The facts here, however,
refute the contention that the parties have agreed
to include the Aurora employees under the existing
collective-bargaining agreement . Indeed, the Em-
ployer has refused to apply the agreement to the
Aurora employees except for a 2-week period fol-
lowing the arbitrator's award . Nonetheless, the
Union argues that in light of the arbitrator's inter-
pretation of the parties ' collective-bargaining agree-
ment, the parties agreed that the agreement applies
to the Aurora employees . In essence, the Union
asks us to defer to-the arbitrator's interpretation of
the agreement and therefore ' find clarification of
the unit inappropriate. We refuse to -do so.
The appropriateness of deferring to an arbitra-
tor's award depends on the nature of the dispute
involved. Deferral is obviously appropriate when
resolution of the dispute turns on the proper inter-
pretation of the parties' contract. Questions involv-
ing clarification of a bargaining unit, however, are
ones that the Board alone ' must resolve. As the
Board stated in Marion Power Shovel Co., 230
NLRB 576, 577-578 (1977):
The determination of- questions of representa-
tion, accretion , and appropriate unit do not
depend ' upon contract interpretation but in-
volve the application of statutory policy,
standards, and criteria. These are matters for
decision of the Board rather than an arbitrator
[footnote omitted].
In the instant situation , the issue presented is
whether we should clarify an existing unit ' to ex-
clude employees at a newly opened facility. Ac-
cordingly, this determination is solely one for the
Board to make . Our determination whether or not
to clarify the unit is not precluded by an arbitra-
tor's decision on this issue . See Magna Corp., 261
NLRB 104, 105 fn. 2 (1982), enf. denied on other
grounds 734 F.2d 1057 (5th Cir. 1984).
The Union further argues that unit clarification is
inappropriate in this case because the Employer , has
simply expanded an existing operation. To support
this contention, the Union, has cited Richfield Oil
Corp., 119 NLRB 1425 (1958); Great Atlantic & Pa-
cific Tea Co,, 140 NLRB 1011 (1963); and Goodyear
Tire Co.,' 195 NLRB 767 (1972), enrd. 474 F.2d
1336 (2d Cir. 1973). In each of these cases the
Board found that the additional operation in ques-
tion was an accretion to the existing unit. As we
reject the 'Union's contention that the Aurora
warehouse constitutes an accretion to, the existing
Brighton unit, infra, we conclude that these deci-
sions are distinguishable and do not require us to
136 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
dismiss the Employer 's petition . We find that the
other two cases cited by the Union are also distin-
guishable from this case . In Rice Food Markets, 255
NLRB 884 (1981), and Bay Shipbuilding Corp., 263
NLRB 1133 (1982), enfd. 721 F.2d 187 (7th Cir.
1983), the Board adopted the judge 's finding of an
8(a)(5) violation when the employer refused to
apply the existing collective-bargaining agreement
to employees previously included in the unit. These
cases did not involve the opening of a new facility
or the hiring of additional employees to staff that
facility . By contrast , the Employer in this case has
opened a new facility in Aurora to handle general
merchandise and has hired additional employees to
handle that merchandise . These employees are not
previous unit employees separated from either the
Brighton or Omaha warehouse . We therefore do
not agree with the Union that in opening the
Aurora warehouse, the Employer has simply ex-
panded an existing operation . Whether the employ-
ees at this new warehouse constitute an accretion
to the existing Brighton unit is the issue we must,
therefore, next address.
The Board has followed a restrictive policy in
finding accretions to existing units because it seeks
to insure that the employees ' right to determine
their own bargaining representative is not fore-
closed. We thus will fmd a valid accretion "only
when the additional employees have little or no
separate group identity . . . and when the addition-
al employees share an overwhelming community of
interest with the preexisting unit to which they are
accreted [footnotes omitted]." Safeway Stores, 256
NLRB 918 (1981). To establish that the Aurora
employees share such a requisite community of in-
terest with the Brighton employees and therefore
should be accreted , the Union' points to several fac-
tors. These factors include, inter alia, the integrated
operation of the two warehouses to fill customer
orders ; the similarity in working skills and func-
tions of the employees at both warehouses; the
contact between the Brighton unit driver and the
Aurora warehouse 'employees ; the bargaining histo-
ry whereby the bargaining unit employees histori-
cally handled general merchandise ; and the close
proximity of the two facilities.
Those factors are relevant. See Universal Security
Instruments v. NLRB, 649 F,2d 247, 253-254 (4th
Cir. 1981), cert. denied 454 U.S. 965 (1981), and
cases there cited. Nevertheless, although the fac-
tors of integration of operations , similarity of em-
ployee skills, functions , and working conditions,
and the contact between the Brighton driver and
the Aurora warehouse employees arguably weigh
in favor of an accretion , other factors are either
neutral or weigh in the other direction. Thus, given
the- distance of 10-12 miles between the two ware-
houses , the geographic proximity factor does not
weigh in favor of accretion. Although we have
found accretions in cases where facilities were 10
miles or more apart,4 those accretion findings had
strong support from other - factors. In fact, a dis-
tance of that extent between facilities has, on at
least one occasion , been treated as weighing slight-
ly against finding an accretion . Bryan Infants Wear
Co., 235 NLRB 1305, 1306 (1978). The Union's re-
liance on bargaining history is also misplaced here.
Although the Union had , in the past, represented
employees who handled general merchandise, that
work ceased , for the most part , in 1982 before the
present Employer purchased the Brighton oper-
ation. That hiatus substantially weakens bargaining
history as a factor in the Union's favor. Cf. Hall's
Super Duper, 281 NLRB 1116 (1986) (little weight
accorded bargaining history in unit determination
when separate representation of two groups of em-
ployees had ended 2 years before the election peti-
tion was filed). The Employer's brief, 2-week ac-
quiescence in the arbitration award is similarly in-
substantial.
Two other factors-degree of employee inter-
change and common supervision-strongly militate
against a fording of accretion , and we do not find
that the factors discussed above outweigh them in
this case . In arriving at this outcome , we follow
Towne Ford Sales, 270 NLRB 311 (1984), a case in
which, in the absence of bargaining history favor-
ing accretion, the Board identified two factors as
critical:
One of these elements is the degree of inter-
change of employees between the affiliated
companies . Mac Towing, 262 NLRB 1331
(1982). No weight is assigned to the fact that
interchange is feasible when in fact there has
been no actual interchange of employees.
Combustion Engineering, 195 NLRB 909, 912
(1972). Another important element is whether
the day-to-day supervision of employees is the
same in the group sought to be accreted. Save-
It Discount Foods, 263 NLRB 689 (1982);
Weatherite Co., 261 NLRB 667 (1982). This
element is particularly significant, since the
day-to-day problems and concerns among the
employees at one location may not necessarily
be shared by employees who are separately su-
pervised at another location. Renzetti 's Market,
238 NLRB 174, 175 (1978). [Id. at 311-312.]
4 Arizona Public Service Co , 256 NLRB 400 (1981); Retail Clerks,Local
870 (White Front Stores), 192 NLRB 240 (1971)
Chairman Dotson did not participate and does not rely on these cases
for any precedential value
SUPER VALU STORES 137
In the instant case , the record reveals a total lack
of interchange of employees between the two fa-
cilities except for the 2-week period in which the
Employer complied with the arbitrator 's award.
We also find that common day -to-day supervision
does not exist between the two facilities . Although
the Union questions the validity of Sherry Rupp's
status as a supervisor at the Aurora warehouse, we
find the uncontradicted testimony establishes that
Rupp has the authority to set work hours and to
assign work, and to hire, fire , and discipline em-
ployees . The record further establishes that - she has
exercised this authority . Although Denver Division
Distribution Manager William Merciers retains
managerial control over the Denver division which
encompasses both the Brighton and Aurora ware-
houses, we have noted that this type of control
"does not detract from the significance of either
the independent supervision of the employees on
daily matters and concerns or the lack of inter-
change among the two groups of employees."
Towne Ford Sales, 270 NLRB at 312 . Accordingly,
we find that the Aurora employees do not consti-
tute an accretion to the existing Brighton unit.
We find, based on the record as a whole, that
the parties have never agreed to include the
Aurora warehouse employees in the existing Brigh-
ton unit . Furthermore , we find that the Aurora
warehouse employees do not constitute an accre-
tion to the existing unit . Accordingly , we shall
grant the Employer 's petition and clarify the exist-
ing Brighton unit to exclude the Aurora warehouse
employees.
ORDER
The unit of warehouse employees and drivers
represented by the International Brotherhood of
Teamsters, Chauffeurs , Warehousemen and Helpers
of America, Local 435, at the Employer 's Brighton
warehouse in Denver , Colorado, is clarified to ex-
clude all employees at the Employer 's Aurora, Col-
orado warehouse.