Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Saturday, May 29, 2010

NLRB Issues Nice Primer Decision On Appropriateness of Multi-location Employer


I bring Sleepy's Inc., 355 NLRB No. 21 (March 26, 2010), to your attention because it is a well written decision which nicely summarizes appropriate unit principles. A union petitioned to represent 32 stores in Southwestern Conn. The employer contended that the unit should encompass all 156 stores in New England.

In reversing the Regional Director, the Board found that the petitioned for unit was inappropriate and remanded the case back to the Regional Director to determine the appropriate unit. As the Board explained:

When a union petitions for a multilocation bargaining
unit, the presumption in favor of a single facility unit has
no applicability. See NLRB v. Carson Cable TV, 795
F.2d 879, 887 (9th Cir. 1986); Capital Coors Co., 309
NLRB 322, 322 fn. 1 (1992). Instead, the Board applies
its traditional community-of-interest analysis. Thus,
where, as here, a union petitions for a unit that is greater
than a single location, but less than chain-wide in scope,
the Board considers a variety of factors to determine
whether the employees in the petitioned-for unit share a
community of interest distinct from the employees at the
excluded facilities. We consider similarity of employee
skills, duties and working conditions; functional integration
of business operations, including employee interchange;
centralized control of management, supervision
and labor relations; whether the petitioned-for unit conforms
to an administrative function or organizational
grouping of the employer’s operations; geographic cohesiveness
and proximity; and collective-bargaining history.
Bashas’, Inc., 337 NLRB 710, 711 (2002); Alamo
Rent-A-Car, 330 NLRB 897, 897 (2000); NLRB v. Carson
Cable TV, supra at 884–885.8
Applying the foregoing factors, we find that a unit limited
to the sales employees at the 32 stores currently assigned
to RM Edmunds is not appropriate. While we
recognize that the employees who work at the 32 stores
perform the same work, use the same skills, and enjoy
identical terms and conditions of employment, the Regional
Director acknowledged that employees at the Employer’s
stores outside the proposed unit also perform the
same work, use the same skills, and enjoy the same terms
and conditions of employment. See Alamo Rent-A-Car,
supra at 897–899 (unit that consists of only two of the
employer’s four San Francisco facilities is not appropriate
in part because employees at the excluded facilities
perform the same work under the same terms and conditions
as employees who work at the included facilities).
Thus, the factor of similarity of employee skills, duties,
and working conditions does not support a finding that
the unit may be limited to the 32 stores at issue. Nor is
there any history of collective bargaining at just those 32
The 32 stores in the petitioned-for unit are functionally
integrated with other stores outside the proposed unit and
there is significant employee interchange with employees
at stores outside the proposed unit. Thus, during the period
from January 2009 to the date of the hearing, an
employee who worked at a store assigned to an RM other
than Edmunds also worked at one of the stores assigned
to Edmunds approximately 52 percent of the time. Such
frequent interchange is not de minimis.
Further, there is centralized control of management
and labor relations in the New England Market, and RM
Edmunds does not have substantial autonomy over the
stores currently assigned to him. Rather, it is Pergolizzi,
the RVP for the New England Market, not RM Edmunds,
who makes the decisions regarding hiring, firing, promotions,
and discipline at the 32 stores in question. . . .

Mitchell H. Rubinstein

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