Super Valu Stores, Inc.,

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.