N.L.R.B. v. Aaron's Office Furniture Co., Inc.

• Citation: 825 F.2d 1167
• Decision Date: 03 August 1987
• Docket Number: No. 86-1505,86-1505
• Parties: 126 L.R.R.M. (BNA) 2014, 107 Lab.Cas. P 10,101 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. AARON'S OFFICE FURNITURE CO., INC., Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1167

825 F.2d 1167

126 L.R.R.M. (BNA) 2014, 107 Lab.Cas. P 10,101

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. AARON'S OFFICE FURNITURE CO., INC., Respondent.

No. 86-1505.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 9, 1987.

Decided Aug. 3, 1987.

Margaret Bezou, N.L.R.B., Washington, D.C., for petitioner.

Lawrence M. Cohen, Fox & Grove, Chicago, Ill., for respondent.

Before CUMMINGS and FLAUM, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

CUMMINGS, Circuit Judge.

The National Labor Relations Board has asked us to enforce its order issued against Aaron's Office Furniture Company, Inc., requiring the company to bargain with the General Teamsters and Chauffeurs, Local Union No. 673, as the certified bargaining representative of employees at the company's Itasca, Illinois, facility. The company denies that a unit consisting of all non-supervisory employees at its Itasca facility is an appropriate unit for collective bargaining. The company also urges that the Board should have considered the company's belated objection to the conduct of the unit election. The Board concluded that the company violated Section 8(a)(5) and (1) of the Act (29 U.S.C. Sec. 158(a)(5) and (1)) by refusing to bargain with the union as the certified bargaining representative of the designated bargaining unit. This conclusion was based on findings made in the representation and unfair labor practice proceedings involved on this appeal.

With respect to the representation proceeding, on July 20, 1984, the union filed a petition with the Board's regional office in Chicago requesting certification as the collective bargaining representative of a unit consisting of warehouse employees and truck drivers at the company's facility in Itasca, Illinois. The petition was later amended to include the clerical employees at that facility.

On August 8, 1984, a hearing officer conducted a hearing in the matter. A month thereafter Regional Director Crawford found that the warehouse employees and truck drivers employed by the company at its facility in Itasca, Illinois, constituted an appropriate collective bargaining unit under Section 9(b) of the Act (29 U.S.C. Sec. 159(b)). He also decided to allow the clericals at the Itasca facility to vote under challenge.

In September 1984, the company asked the Board to review the Regional Director's decision on the primary ground that salespersons were improperly excluded from the unit. It also contended that only a multi-facility bargaining unit would be appropriate. ¹ An election was held in October 1984 while review was still pending, and in June 1985 the Board issued its decision finding that the salespersons at the Itasca facility should have been included in the appropriate collective bargaining unit. The Board rejected the company's contention that the only appropriate unit would encompass all of its employees in its ten facilities.

The Regional Director was ordered to count the election ballots and to set aside the election if the votes of the four excluded sales employees could have changed the result. Thirteen votes were cast for the union, five votes were cast against it, and two challenged votes, cast by clerical workers, were unopened. Since the votes of the sales employees and the challenged clerical workers were not determinative, in August 1985 the Regional Director certified the union as the representative of the Itasca warehouse, truck driving and sales employees. However, the company has refused to bargain with the unit. In October 1985 it filed a "Motion to Revoke Certification of Representative" asking for a new election on the ground that the Board's vote and impound procedure had unfairly misled voters as to the scope of the unit. The Regional Director denied the motion, deeming it an objection to the conduct of the election which was untimely by more than three months. In November 1985 the Board denied the company's request for review on the ground that it raised no substantial issues. This terminated the representation proceeding.

An unfair labor practice proceeding commenced with the filing of the union's August 28, 1985, charge that two days previously the company had refused to recognize and bargain with it, thus committing an unfair labor practice under Section 8(a)(5) and (1) of the Act.

In January 1986 the Board issued its order in the unfair labor practice proceeding finding that the company's refusal to bargain with the union violated Section 8(a)(5) and (1) of the Act. In its decision the Board noted that the company had not filed a timely objection to the unit election in the underlying representation proceeding, and further had alleged no special circumstances nor produced any new evidence that would require the Board to reexamine its decision therein. Therefore the Board required the company to bargain with the union as the exclusive representative of the following employees in the Itasca unit: "All warehouse employees, truck drivers and sales employees * * * but excluding all office clerical employees, guards and supervisors * * * " (Joint App. 85).

1. Appropriateness of bargaining unit

We recently ruled in National Labor Relations Board v. Western Temporary Services, Inc., 821 F.2d 1258 (7th Cir.1987), that the National Labor Relations Act vests the Board with primary responsibility for determining the appropriateness of a collective bargaining unit, and that its unit determination is to be reviewed under an abuse of discretion standard. That standard "is not whether the Board has picked the most appropriate bargaining unit but whether the unit selected is appropriate under all the circumstances" supra at 1267. We also held that the burden of proof is on the employer to show that the Board's unit is clearly inappropriate. The Supreme Court has recognized that the practical result of this long accorded special deference to the Board is that its unit decisions, "if not final, [are] rarely to be disturbed." South Prairie Construction Co. v. Local No. 627, International Union of Operating Engineers, AFL-CIO, 425 U.S. 800, 805, 96 S.Ct. 1842, 1844, 48 L.Ed.2d 382 (1976) (quoting Packard Motor Car Co. v. National Labor Relations Board, 330 U.S. 485, 491, 67 S.Ct. 789, 793, 91 L.Ed. 1040). Applying these admonitions, we conclude that the Board did not act outside its discretion in determining that the bargaining unit delineated above was an appropriate one.

In deciding unit determination cases involving multi-store retail chain employers, the Board has long held with judicial approval that a single-store unit, such as is involved in this case, is presumptively appropriate for purposes of collective bargaining. See Walgreen Co. v. National Labor Relations Board, 564 F.2d 751, 753 (7th Cir.1977); National Labor Relations Board v. J.W. Mays, Inc., 675 F.2d 442, 444 (2d Cir.1982). The rationale for this presumption is that by narrowing the size of each unit the importance of each employee's vote is maximized. Walgreen Co., 564 F.2d at 753 n. 5. The presumption is of course rebuttable, and we have previously set out a coalescence of several factors that might rebut the presumption. These factors include: (a) geographic proximity of the stores in relation to each other; (b) history of collective bargaining or unionization; (c) extent of employee interchange between various stores in the chain; (d) functional integration of operations; and (e) centralization of management, particularly in regard to central control of personnel and labor relations. National Labor Relations Board v. Chicago Health & Tennis Clubs, 567 F.2d 331, 335 (7th Cir.1977), certiorari denied, 437 U.S. 904, 98 S.Ct. 3089, 57 L.Ed.2d 1133; Walgreen Co., 564 F.2d at 754. We conclude in this case that the single-store presumption and the record evidence support the Board's conclusion that the Itasca facility, except for the excluded classes of employees, was an appropriate bargaining unit.

We initially note that there were many conflicts in the evidence presented by both sides in this case. However, it was for the Regional Director and ultimately the Board to resolve these evidentiary conflicts. In Walgreen Co., we cited the Supreme Court's pronouncement in May Department Stores Co. v. National Labor Relations Board, 326 U.S. 376, 380, 66 S.Ct. 203, 206, 90 L.Ed. 145, that "the judicial review afforded is not for the purpose of weighing the evidence upon which the Board acted and perhaps to overrule the exercise of its discretion but to guarantee against arbitrary action by the Board." 564 F.2d at 753.

Critical factors support the Board's rejection of the company's argument that a multi-facility unit consisting of its ten retail stores in Illinois and Indiana was the only appropriate bargaining unit. First the credited evidence shows that the Itasca facility is functionally different from the company's other facilities. Itasca is the only company facility that functions primarily as a warehouse and distribution center. The company's nine other facilities operate primarily as retail sales facilities which maintain stock only to service their local customers' needs. The Itasca facility serves as a central warehouse for these other retail stores and employs a railroad siding to receive stock that is subsequently distributed to the other stores. It has three truckloading docks and two of the company's four delivery trucks are kept there. Accordingly, two of the company's four drivers operate out of Itasca. Both of the company's transfer trailers are kept at Itasca, which is the only facility that requires a full-time dispatcher to route deliveries. While warehouse employees at other facilities are under the supervision of the local store manager, the employees at Itasca are under the supervision of three supervisors in the warehouse, and it is the only facility employing plant clericals. The Itasca facility has a warehouse area more than twice the size of that at the next...