Kelly Business Furniture, Inc.

National Labor Relations Board - Board Decisions

Apr 14, 1988

288 N.L.R.B. 474 (N.L.R.B. 1988)

474 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Kelly Business Furniture, Inc. and Santa Clara
Valley District Council of Carpenters, United
Brotherhood of Carpenters and Joiners of
America, AFL-CIO. Case 32-CA-8437
April 14, 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On September 2, 1987, Administrative Law
Judge Timothy D. Nelson issued the attached deci-
sion. The General Counsel and the Charging Party
filed exceptions and supporting briefs, and the Re-
spondent filed an answering brief in support of the
judge's decision.
The National Labor Relations Board has delegat-
ed 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
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
Raoul Thorbourne, Esq., for the General Counsel.
Robert G. Hulteng and Bruce J. Sarchet, Esqs. (Littler,
Mendelson, Fastiff & Tichy), of San Francisco, Califor-
nia, for the Respondent.
Paul Supton, Esq. (Van Bourg Weinberg, Roger & Rosen-
feld), of San Francisco, California, for the Charging
Party Union.
DECISION
STATEMENT OF THE CASE; THE ISSUES
TIMOTHY D. NELSON, Administrative Law Judge. I
heard this 8(a)(5) case in trial in Oakland, California, on
13 and 14 May 1987. It arose on 8 October 1986 when
Santa Clara Valley District Council of Carpenters
(Union) filed charges against Kelly Business Furniture,
Inc. (Respondent). On 23 January 1987, after investigat-
ing, the Regional Director for Region 32 dismissed cer-
tain aspects of the charges, but issued a complaint con-
cerning one of them.
The complaint alleges that, on and after 24 October
1986, Respondent unlawfully refused to recognize and
bargain with the Union as the exclusive representative of
a certain unit, called "the Unit" in paragraph 6 of the
complaint, described materially in that paragraph as,
"All . . . systems installers and systems warehousemen,
employed by Respondent at its. . . Hayward, California
facility; excluding all other employees. . . ." Paragraph 7
of the complaint alleges as fact that on 12 May 1986 the
Board had certified the Union "as the exclusive collec-
tive bargaining representative of the employees in the
Unit."
Respondent's answer denies paragraphs 6 and 7 of the
complaint. Respondent admits that the Union was certi-
fied in a unit, but not the one pleaded in the complaint; it
admits that it no longer recognizes the Union as the rep-
resentative for that certified unit, but avers that this is
because that unit no longer "exists." More specifically,
Respondent avers that "changed circumstances"—a relo-
cation and consolidation of operations—have resulted in
a merger under one roof of employees from the certified
unit with a larger number of their unrepresented counter-
parts, thereby destroying the appropriateness of the
originally certified unit and privileging Respondent's re-
fusal to recognize the Union in the unit in which the
General Counsel would now require it to bargain.
The real issue, the one that was needlessly obscured
by the peculiar fiction employed in the complaint allega-
tions pertaining to the unit,' is whether the certified unit,
practically encompassing Respondent's "systems" install-
ers and warehouse employees working out of one of Re-
spondent's former Sunnyvale facilities, retained its appro-
priateness for collective-bargaining purposes when Re-
spondent transferred all of its operations (including both
"systems" and "conventional" furniture warehousing and
delivery) to Hayward and consolidated them under a
single roof. I conclude that it did not.
On the whole record, 2 on my observations of the wit-
nesses as they testified, and on my assessments of the in-
herent probabilities, I make these
FINDINGS OF FACT
I. RESPONDENT'S PRESENT AND FORMER OPERATIONS
IN OVERVIEW
Respondent, a California corporation, sells office fur-
nishings on, a retail and nonretail basis. 3 These include
"conventional" office furniture (desks, chairs, bookcases),
delivered essentially intact from warehouse to customer,
as well as a line of panel "systems" used to divide office
work spaces, which must be finish-assembled and in-
stalled on site from warehoused components.
Respondent now operates from a single building in
Hayward, California. That Hayward facility includes a
showroom and business offices within one interior-walled
section; the balance of the building is an open-space
warehouse where both conventional furniture and panel
systems are now received, stored, worked on, and staged
for delivery to customers.
Respondent had formerly operated from a variety of
separate buildings in Sunnyvale, some 35 freeway miles
The complaint confuses fact with theory by averring that the unit as
described in the complaint is the unit that the Board certified. The Gen-
eral Counsel now acknowledges (Br. 3 at fn. 2) that the "wording of the
certified unit was changed in the complamt to more accurately reflect the
actual work performed by the employees and the fact the bargaining unit
work is now performed. . . in Hayward."
2 The General Counsel and Respondent filed posttrial briefs which I
have fully considered.
3 In the year preceding the complamt Respondent realized gross busi-
ness volumes exceeding $500,000, and purchased directly from outside
California more than $50,000 goods and services.
288 NLRB No. 54
KELLY BUSINESS FURNITURE

475
from Hayward. Since 1983, it had maintained two ware-
houses in Sunnyvale—one at Weddell Court, used for the
panel systems; the other at Caribbean Street, about 4
miles away, used for conventional furniture.
The Weddell Court systems warehouse employed a
group of roughly 15 regular nonsupervisory employees,
of which about 3 did inside warehousing (involving ship-
ping and receiving, inventory control, stocking, and par-
tial preassembly or rehabilitation work on panel systems)
and about 12 other "installers" handled the delivery,
final assembly, and on-site installation of the panel sys-
tems, using company-owned vans to make their deliv-
eries. The Weddell Court operation was then sometimes
called the "Technical Services Division," and the Wed-
dell Court employees (both warehousemen and installers)-
were sometimes called the "Tech Team."
The Caribbean Street warehouse for conventional fur-
niture employed roughly 35 warehousing, shipping and
receiving, repair, delivery, and "field service" employees
(the latter doing minor repairs at the delivery site).
A. The Move to Hayward
By late 1984 Respondent had decided, for business rea-
sons, to consolidate everything, including its convention-
al and systems warehousing operations, under a single
roof.4 By October 1985 Respondent had selected the
new site at Hayward and had secured terms for occupan-
cy of that facility at the future points when its existing
leases in Sunnyvale would expire.
The Caribbean Street operation was closed down in
March 1986 (all dates below are in 1986, unless I specify
otherwise), when Respondent's existing lease expired
there; its stock of conventional furniture was then moved
to Hayward, along with those roughly 35 former Carib-
bean Street employees who elected to keep their jobs.
The Weddell Court operation continued for 6 more
months, until October, when the lease for those premises
expired; its inventory and supplies were then similarly re-
moved to Hayward and approximately 11 former Wed-
dell Court employees (of which 9 or 10 were installers
and 1 or 2 were warehousepersons) opted to continue
working under the new arrangement.
B. The Union's Intervening Certification at Weddell
Court; Interim Labor Relationship; Respondent's
Refusal to Continue Recognition After the Relocation
hi the meantime, in May, when Weddell Court was
the only remaining Sunnyvale facility, the Union won an
4 In summary, Respondent had decided—well before the Union had
come mto the picture at Weddell Court--to relocate and consolidate be-
cause of a desire for more space as business increased in both convention-
al and systems furnishings and because i t believed that it could improve
customer service and still operate more efficiently and profitably by con-
solidating in a single building The General Counsel has disclaimed any
contention that the consolidation decision was influenced by umon-tacti-
cal considerations. I note also that the Regional Director, in dismissing
discrete aspects of the instant charges relating to Respondent's refusal to
bargain over the relocation decision, found, inter aha, that "Respondent
was not obligated to bargain about such decision because it was not based
on labor costs. . . " (My emphasis; see R. Exh. 2 at 1, third sentence;
but compare the penultimate sentence on that page, which, due to the
apparently inadvertent omission of the word "not," makes a contradicto-
ry and contextually senseless statement, which I ignore.)
election conducted under the Board's auspices among the
"production and maintenance" employees (in reality, sys-
tems warehousepersons and installers) working at, or out
of, that facility.5
Respondent and the Union subsequently entered into
collective bargaining regarding the Weddell Court unit;6
they had not reached a contract by late September, the
point at which Respondent notified the Union of the
planned relocation of the systems work to the Hayward
facility and offered to bargain about the effects of such a
move on the Weddell Court employees.
On 24 October the current controversy ripened when
Respondent's attorney wrote to the Union's attorney ad-
vising, in substance, that while Respondent was still pre-
pared to bargain with the Union over the "effects" of the
move on former Weddell Court employees, 7 its current
"position" was that the certified unit had "ceased to
exist, and was accreted into the larger Hayward bargain-
ing unit." "Accordingly," Respondent's attorney contin-
ued, "the Company no longer recognizes the existence of
a separate bargaining unit of those employees formerly
working out of the Sunnyvale i.e., Weddell Court ware-
house." These statements implied what Respondent's
answer to the complaint now makes explicit—that Re-
spondent now refuses to recognize or bargain with the
Union as the representative of any portion of its current
employee complement at Hayward, but will only fulfill
whatever lingering obligation it may have to bargain
with the Union over the effects on former Weddell
Court unit employees of its decision to move to Hay-
ward.
C. Principal Differences Between the Current
Operations in Hayward and the Former Operations in
Sunnyvale
Most of the litigation involved an exploration into the
details surrounding Respondent's present and former op-
erations. Much of this exploration amounted, in my view,
5 In Case 32-RC-2279 the Regional Director, on behalf of the Board,
certified the Union as the exclusive collective-bargaining representative
of Respondent's employees in this unit.
All full-time and regular part-time production and maintenance
employees, including leadmen, employed by [Respondent] at its facil-
ity located at 922 Weddell Court, Sunnyvale, California; excluding
all other employees. .
The description of the certified unit—and the Regional Director's find-
mg that it was an appropriate one—derived from the parties' stipulations
at a preelection hearmg. The record does not reveal whether the Region-
al Director or the Union then had any inkling of Respondent's plans for
relocating the Weddell Court work to the Hayward facility.
6 The record suggests that Respondent had first refused to bargain
with the Union in the certified unit, but then settled a Board case (docket
number not of record) by agreeing, in an informal settlement agreement
under Board auspices, to commence bargaining with the Union. I infer
this from Respondent's letter to the Union dated 11 July, which refers to
such a settlement, and in which Respondent formally recognized the
Union as the representative of the employees m the certified unit, prom-
ised not to make unilateral changes affecting that unit, and invited the
Union to contact Respondent to schedule collective-bargaining meetings.
7 The Regional Director also dismissed another portion of the instant
charges, alleging that Respondent had not bargained in good faith,over
the "effects" of the relocation of Weddell Court work and employees to
Hayward. That disposition was grounded in a finding that, to date, it was,
the Union's inability to meet with Respondent, rather than Respondent's
unwillingness to bargain, that had prevented any "effects" bargaining.
476 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
to an exposition of the obvious, or at least the unremar-
kable. As I see it, the relocation and consolidation under
one roof of formerly separate warehousing and delivery
operations is the centrally dispositive fact, the crucial
way in which "circumstances" have "changed" since the
Board issued its Weddell Court certification; the kind of
change, in short, which will predictably yield the kinds
of operational details that are now presented at Hayward
and which, I shall find, justifies Respondent's current re-
fusal to bargain with the Union.
The General Counsel, conceding the obvious—that the
operations have been relocated under a single roof—
would have me conclude nevertheless that the systems
employees still maintain enough distinctness in the
present operation to constitute an appropriate unit. I
agree that this is the ultimate question; whether the
Board could now find that their involvement with panel
systems is enough to treat those employees as an appro-
priate unit for collective bargaining. For those decisional
purposes, I deem it sufficient to set forth below only
those details about which there is no current dispute.
The physical arrangement: Although the warehouse
portion of the Hayward facility is not physically subdi-
vided by interior walls, different areas of the warehouse
are reserved for the two different product lines (the
panel systems components are all stored and worked on
in an area to the right side of an imaginary line dividing
the open warehouse space; the conventional furniture is
mostly stored and worked on in an area to the left of
that imaginery line, but there is a substantial spillover of
those products into reserved areas to the right of that
"line"; overall, conventional furniture takes up about
two-thirds of the warehousing space). There is a
common receiving dock and distribution area at a mid-
point on an outside wall, where both conventional and
systems products are received from manufacturers, in-
voices and associated paperwork are processed, and from
which both types of products are distributed within the
warehouse. On the outside wall at the left end of the
building is a loading dock and staging area through
which both types of products pass for delivery to cus-
tomers. 8 There is a common lunchroom in the ware-
house. There is a common timeclock for all employees.
Functional integration: At present (and apparently for
sometime preceding the move), roughly 90 percent of
Respondent's customer orders have included both con-
ventional furniture and panel systems. Accordingly, even
before the move, the Caribbean and Weddell Court
workers were "integrated" from a functional standpoint
into Respondent's overall business of providing office
furnishings to customers. Now that the two are under
one roof, their functional integration is simply more ob-
vious; plainly, too, Respondent's practical ability to co-
Derek Williams, a systems Installer, and Mark Ambler, a systems (or
"grey goods") warehouseman, both suggest m their testimony that the in-
stallers sometimes load their panel systems into vans through a door at
the right end of the building, which is nearer to where those products are
stored than to the delivery/staging area at the opposite end of the build-
ing The record does not allow a finding as to how often the systems in-
stallers load through this door rather than from the delivery/staging
dock.
ordinate those functions has been enhanced by the con-
solidation.
The current administrative arrangements; management,
department structure, pay classifications: Before the
move, Dave Martinez, headquartered at Caribbean
Street, was titled "warehouse manager"; he was adminis-
tratively in charge of the operations at both Caribbean
Street and at Weddell Court. In fact, however, each of
those warehouses was practically autonomous in terms of
recordkeeping associated with receiving, shipping, and
delivery, and in terms of practical day-to-day scheduling
and supervision of work. Indeed, Weddell Court had its
own manager, Anthony Moreno.
Presently, Dave Martinez has been given full oper-
ational authority over all aspects of the warehousing, de-
livery, and installation of both panel systems and conven-
tional furniture. He must personally interview and ap-
prove any applicants for jobs within that overall oper-
ation; he alone issues written warnings and disciplinary
suspensions; he must approve all recommendations for
discharging employees.
Dave Martinez now oversees six recognized depart-
ments, each with its own designated "department
head"; 8 these are: receiving-distribution, staging, deliv-
ery, service, "Grey Goods" inventory control, and in-
stallation.
Many of the specific functions performed by the
former Weddell Court systems warehousepersons And in-
stallers are seemingly still recognized, for "departmental"
purposes, as distinct from those functions performed in
other departments. Thus, the departmental term "Grey
Goods" refers to the components used for panel systems
before they are fmally assembled. Once those products
have been received and processed through the common
receiving department, the grey goods employees' work is
the same as that formerly done postreceiving, by the
inside warehousepersons at Weddell Court. The differ-
ence, of course, is that the inside workers at Weddell
Court did their own receiving as well as the storage,
preassembly, and rehabilitation work on those panel sys-
tems, which they continue to do in the grey goods de-
partment at Hayward. To the same extent, this has al-
tered the duties of Anthony Moreno, the current grey
goods department head who, in his former position as
manager of the Weddell Court warehouse, had oversight
responsibilities for receiving; these responsibilities now
vested instead in the head of the common receiving de-
partment. Similarly, the work done in the installation de-
partment is the same kind of work, with the same vans
and tools, done by the former Weddell Court installers.
The difference, of course, is that installers now receive
their panel systems from a building housing both types of
furnishings, and they often—if not customarily—pick up
those products from a staging area serviced by employ-
ees from the staging department, rather than by the cur-
rent grey goods department employees.
There are two basic pay classifications in the Hayward
operation; they are linked to different skill and work ex-
9 Whether the department heads are statutory supervisors or merely
leadpersons was not litigated.
KELLY BUSINESS FURNITURE 477
perience factors and they have very little to do with
whether an employee does work associated with sys-
tems—as opposed to conventional—furnishings. Thus,
persons doing typical inside warehousing on either sys-
tems or conventional furnishings (including workers in
the staging, receiving, and grey goods departments) re-
ceive $7 an hour as a starting rate, whereas persons per-
forming mostly outside work start at $8 an hour (these
include workers in the service, 10 delivery, and installa-
tion departments).
Employee interaction and interchange: At Weddell
Court, inside warehousepersons maintained their own
shipping and receiving records and their interaction with
other employees was limited to their contacts with the
systems delivery/installers, who normally spent at least
90 percent of their time in the field. Presently, physical
handling at dockside and the recordkeeping associated
with receiving of inbound products and staging of out
bound products of both types is done, respectively, in
the receiving and staging departments. As a conse-
quence, employees from receiving regularly bring panel
systems parts and components into the current grey
goods area. In addition, grey goods employees are regu-
larly required to go to receiving to help unload not just
panel systems components, but also conventional furni-
ture (according to grey goods employee Mark Ambler,
he has been assigned, roughly twice a week since Octo-
ber 1986, to assist in unloading conventional furniture
products in the receiving area).
The outside systems installers (within the present in-
stallation department) continue to spend at least 90 per-
cent of their time in the field. Although the testimony is
somewhat impressionistic, it appears that they are more
likely now than before the move to encounter Respond-
ent's furniture delivery or field service employees at
their jobsites. This is due, apparently, to an improved co-
ordination of systems and conventional deliveries, result-
ing in systems installers overlapping with employees
from the delivery and (field) service departments. As a
natural consequence, systems installers may assist furni-
ture delivery crews in moving conventional furniture at
the jobsite, or those workers may otherwise interact in
order to coordinate the sequential tasks of furniture de-
livery and panel installation.
As a phenomenon distinct from the (seemingly inevita-
ble) increase in interactions beteen the systems ware-
housepersons and installers on the one hand, and the em-
ployees associated with the conventional furniture de-
partments on the other, all employees at Hayward are
now subject to a cross-training program within the ware-
house calculated to enable greater true interchange
among employees in all the present departments." Thus,
installer Derek Williams was assigned for 4 days to per-
form tasks associated with conventional furniture (stag-
ing conventional deliveries, making delivery rounds with
1(1 The service department actually mcludes persons who are normally
assigned either to "inside" furniture repair, or to "field" service repairs
on furniture. The inside repairers are the only persons regularly working
In the warehouse who are paid at the $8 rate.
" This cross-trammg program was not formally implemented until
January 1987, so far, however, cross-training has not resulted m any per-
manent reassignments of employees from one department to another
the conventional furniture delivery employees); and grey
goods employee Mark Ambler acknowledged that em-
ployees from staging had been assigned for cross-training
purposes to do the same tasks that grey goods workers
perform day to day. Warehouse Manager Martinez also
described several other examples.
Miscellany: All employees in the Hayward operation
(inside workers and field employees alike) wear a stand-
ard "uniform," a shirt with a small patch over the breast
pocket bearing the "Kelly Business Furniture" logo. Car-
ibbean Street-based employees always wore that uniform;
until the relocation to Hayward, however, Weddell
Court-based employees had worn a shirt with a large
patch on the back containing the legend, "Kelly Techni-
cal Services."
II. ANALYSIS; CONCLUSIONS OF LAW
Everyone agrees that, normally, when the Board certi-
fies a union in a particular unit, the employer must honor
that certification by recognizing and bargaining in good
faith with the certified union for at least 12 months fol-
lowing certification. Brooks v. NLRB, 348 U.S. 96 (1954).
The parties also agree that Brooks countenances an ex-
ception for any "changed" or "unusual" circumstances
occurring within the certification year that materially
alter the basis on which the Board issued the certifica-
tion.12
Respondent admittedly stopped recognizing, and bar-
gaining with the Union only about 5 months after the
Union's certification as the representative of the Weddell
Court unit; it relies ultimately on its transfer to and con-
solidation at Hayward as constituting "changed" or "un-
usual" circumstances warranting its current refusal to
bargain. The General Counsel, focusing primarily on the
fact that most of the work done by former Weddell
Court warehousepersons and installers is still being done
by distinct groups of employees at Hayward in distinct
departments (respectively, grey goods and installation),
finds no compelling "changed circumstances." Although
neither party has cited to my attention any cases that are
wholly apposite from a factual standpoint, I am persuad-
ed that Respondent's litigation position is more defensible
than the General Counsel's.
It is true enough, as the General Counsel argues, that
the "mere" relocation of a certified unit from the facility
described in the certification to a new one is not an "un-
usual" circumstance within the meaning of Brooks. E.g.,
General Electric Co., 186 NLRB 289, 293 (1970); see also
Drukker Communications, 258 NLRB 734, 747 (1981);
Paper Mfg. Co., 274 NLRB 491, 496 et seq. (1985); Hahn
Motors, 283 NLRB 901 (1987). But this conventional
maxim does not aid much in the present analysis, for we
are plainly dealing not "merely" with the relocation of a
portion of a certified or established unit in which the
transferred segment remained intact and undisturbed in
terms of its relationship to the certified unit as a whole,
12 Brooks v NLRB, 348 U.S. at 98, listmg such situations as the mter-
vening "defunct"-ness of the certified union, or "schism"-induced eaffi-
hations of employees from the certified union to "a new local or interna-
tional," or a "radical fiuctua[tion]" m the size of the bargaining unit
"withm a short time."
478 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
as in General Electric, Drukker Communications, and
Hahn Motors, supra; for those cases did not involve the
additional factor of a consolidation under one roof of
employees from a certified unit with a larger grouping of
unrepresented employees. Neither are we presented with
the unique situation posed in Paper Mfg., supra, in which
certified medical packaging unit employees represented
by a graphic arts local were relocated, the complement
of medical packaging unit employees at the new location
was enlarged, new machinery was introduced at the new
location, and the relocated employees in the certified
unit now found themselves housed under the same roof
that already sheltered employees of a separate produc-
tion division who were themselves separately represented
by a local of the Teamsters Union."
It is nevertheless true, as the General Counsel stresses,
that the Board need only fmd that "the Unit," ("sys-
tems" warehousemen and installers at Hayward, exclud-
ing everyone else at Hayward, as hypothetically de-
scribed in the complaint), is at least an appropriate one
for collective-bargaining purposes; for, if so, it is "irrele-
vant" that an overall unit at Hayward might also be
found appropriate." It is implicit in the General Coun-
sel's position, however (indeed, I regard it as axiomatic)
that the complaint must be dismissed if "the Unit" pro-
posed in the complaint cannot be found to be independ-
ently appropriate by the application of any traditional
tests. And it is at this stage of the analysis that the Gen-
eral Counsel's case loses steam and begins to founder.
Thus, although the General Counsel has paid lip service
to the fundamental requirement that his proposed unit be
one that is independently appropriate, he has not called
to my attention a single case in which the Board has
carved up a single-facility warehousing and delivery op-
eration such as this one so as to create a unit in which
only some of the inside warehousing personnel are in-
cluded and only some of the outside delivery/installation
personnel are included. In the circumstances, I take this
as an implicit concession by the General Counsel that his
13 Despite some superficial similarities with this case, the General
Counsel does not assert that Paper Mfg. is materially apposite, indeed, he
refrains from discussing its details I find that case distinguishable based
on its unique facts, particularly the following. The relocation in Paper
Mfg. involved no real consolidation or realignment of previously distinct
functions performed, respectively, by the recently certified -unit of "medi-
cal packaging" employees represented by the graphic arts local, and the
Teamsters-represented employees who continued to perform more basic
production and manufacturing tasks associated with "identification and
packaging" (Here, there was a genuine consolidation and attendant de-
partmental realignment at Hayward of the receiving and staging func-
tions that formerly had been duphcated at Caribbean Street and Weddell
Court ) Moreover, the continuing distinctness of the two divisions in
Paper Mfg. was dramatic, influenced by the unique conditions required
for medical packaging—the medical packaging work area in the new lo-
cation was physically segregated by newly constructed interior walls,
done to "ensure sanitary conditions . in conformance with medical in-
dustry standards" (sd. at 492), medical packaging employees were re-
quired to wear special smocks, Jackets, and head coverings to ensure ster-
ile conditions—garb that was not required of Teamsters-represented em-
ployees in the identification and packaging division Id. at 493. Finally,
even after the relocation in Paper Mfg., separate seniority lists were main-
tained for the two divisions, employees in each division worked under
unique pay classification schemes, and "interaction" between the produc-
tion line employees in each division was "nonexistent." Ibid.
14 Hahn Motors, supra at fn. 2, e.g , otherwise distinguishable for rea-
sons noted earlier.
proposed unit is so irregular as to be inappropriate by
any standard definition, and that his litigation position
really implies, at bottom, that the Board should bend the
rules for determining appropriate units so as not to "de-
prive" the systems employees of collective representation
only 5 months after they had voted in the Union."
I can fmd no precedent for such an approach. And it
simply begs the question to maintain, as the General
Counsel seems to do, that employees in a unit previously
certified as appropriate continue to comprise a separate,
appropriate unit when their job tasks continue to be
roughly the same in a consolidated operation as they
were when the unit was originally certified at a separate
.location. See, in this regard, Renaissance Center Partner-
ship, 239 NLRB 1247 (1979), in which the Board had
first certified a unit of security officers and guards em-
ployed by the employer throughout the Renaissance
Center complex. Less than a year later, however, the
Board found that the "certified unit is no longer appro-
priate [ibid]" where the employer had recently consoli-
dated formerly distinct security operations by directly
employing and using interchangeably with existing unit
employees an even greater number of previously unrep-
resented security officers and guards who had formerly
worked only at a single hotel in the complex. The Board
found that the "consolidation of the two groups has pre-
cipitously increased the. . . security force and has com-
pletely obscured the separate identity of the certified bar-
gaining unit which existed prior to the consolidation. It
is the kind of unusual circumstance which justifies an ex-
ception to the certification-year rule." Id. at 1248.16
15 I cannot treat as mere oversight the General Counsel's failure to dis-
close on brief the results of any research he may have conducted into the
discrete question whether the Board has found the type of unit proposed
in the complaint to be appropriate. At the trial's conclusion, I asked the
parties specifically to address that question (winch I expressed in two dif-
ferent ways: . . if there had been no certification history at a different
location . . would the Board have found the . . . unit pleaded in the
complaint to be an appropriate umt?"; alternatively," . tell me wheth-
er or not the Board has ever granted a umt of the type pleaded in the
complaint where the petition was filed when [a] larger warehouse group-
ing already was intact and in existence." Respondent squarely addressed
those questions on brief, locating no case exactly on point, but persua-
sively arguing by analogy to the criteria employed by the Board in
reaching unit-appropriateness determinations in other settings, that the
unit proposed by the General Counsel could not pass muster. The Gener-
al Counsel has engaged in no comparable attempt to match up the estab-
lished criteria by which the Board reaches unit determinations with the
facts of Respondent's current operation at Hayward; he has avoided the
questions I posed at the end of the trial and has simply asserted into the
void the very premise he started with—that because identifiable group-
ings of persons at Hayward continue in the main to do work with sys-
tems panels, this is enough to find that they constitute a discrete, appro-
priate unit. It thus seema that the General Counsel's litigation position ul-
timately relies more on the fact of the original certification of the systems
workers than on any genuine belief that those workers now comprise an
independently appropriate unit.
16 Of course Renaissance Center is not on all fours with this case—
there, after the consolidation, i,t was not in any sense possible to distin-
guish the duties and functions of guards from the certified unit from
those of the larger group of additional guards who were brought in and
used "interchangeably" with guards from the certified unit; here, the em-
ployees in the certified "systems" unit are still more distinguishable for
some purposes from the other employees at Hayward than are the guards
at the Renaissance Center. But one point implicit in Renaissance Center—
equally applicable—is that it is not enough now to treat the systems em-
Continued
°
KELLY BUSINESS FURNITURE

479
Ramada Beverly Hills, 278 NLRB 691 (1986), cited by
Respondent, is also instructive, and its holdings -even fur-
ther undermine the General Counsel's contention that
the systems warehousepersons and installers may be ap-
propriately treated as a "unit" distinct from other em-
ployee classifications at Hayward. In Ramada, at a cer-
tain stage in the evolution of the employer's hotel and
restaurant operation in 1981, elections had been conduct-
ed in three separate units found appropriate by the Re-
gional Director, one comprised of "hotel service" work-
ers (maids, laundry workers, housemen, janitors, and
maintenance employees), another comprised of "food and
beverage" workers (restaurant-associated employees),
and a third comprised of "front desk" personnel. In 1984,
new elections were sought in separate units of hotel serv-
ice and food and beverage workers. The employer then
contended that its current operational refinements man-
dated that only a single, overall unit of hotel and restau-
rant employees was appropriate. The Regional Director
found that the circumstances prevailing at the time of the
1981 unit determinations had not "changed" sufficiently
to render the separate hotel service and food and bever-
age units inappropriate. On review, the Board disagreed
with the Regional Director, finding that changed circum-
stances indeed had created a setting where only a hotel-
wide unit was now appropriate. In so finding, the Board
deemed it comparatively insignificant that employees in
the former units continued to work as they had tradition-
ally, under separate departmental supervision, with pri-
mary responsibilities for only distinct types of services.
Instead, the Board stressed that the hotel operation had
become "substantially more centralized" from an admin-
istrative standpoint (including by the introduction of a
general manager with overall responsibility for adminis-
tration, and final authority to approve all hirings and fir-
ings). The Board also stressed that, "like most hotel op-
erations," the employer "runs a functionally integrated
enterprise whose purpose is to provide lodging, dining,
and related services to its guests and patrons," and that
"while employees perform a variety of duties, their
common objective is to provide a highly integrated
group of services, directly or indirectly, for the hotel's
guests." In addition, the Board emphasized the "repeated
daily contact" among employees in the various depart-
ments, many of whom, regardless of departmental classi-
fication, nevertheless moved throughout the facility.
These factors caused the Board to determine ultimately
that "it is simply inappropriate to carve out individual
units without regard to the extensive functional integra-
tion and confluence of employee concerns that is present
here."
I think the analogies and parallels between this case
and Ramada Beverly Hills are too obvious to warrant fur-
ployees as a separate, appropriate unit simply because their work tasks
are roughly similar to those they performed at Weddell Court. To hold
otherwise would be to suppose, contrary to reason, that the original certi-
fication at Weddell Court had more to do with the "uniqueness" of the
work performed there than the fact that the Weddell Court workers
were characterized, by stipulation of the parties, as a wall-to-wall unit of
"production and maintenance" employees at a single facility—a classical-
ly appropriate unit description that requires no analysis of the uniqueness
of the jobs bemg done in that facility.
ther extended discussion. At Hayward, formerly distinct
classifications now work at or from a common facility,
under the centralized administrative control of a single
manager, who exercises final authority over hirings, fir-
ings, and other disciplinary action. Employees doing for-
merly distinct tasks from geographically separate loca-
tions now interact in ways that they never did before;
they now perform tasks that they never did before and
they are subject to a program of cross-training that virtu-
ally guarantees that their interactions and interchanges
will continue to expand. Especially in the absence of any
citation by the General Counsel to any case suggesting
to the contrary, I regard it as inconceivable that the
Board, if asked to direct an election in the unit proposed
by the General Counsel would, in the present circum-
stances, determine that the grey goods and installation
department employees share a community of interest
among themselves that is greater than the community of
interest shared between, say, the grey goods employees
and the other "inside" employees in the receiving depart-
ment or the staging department. What those inside em-
ployees have in common, regardless of what types of
warehoused products they may handle (in fact, all of
them now regularly "handle" both conventional furni-
ture and panel systems components, even though grey
goods employees tend to spend most of their time on
panel systems components) are their common pay rates,
their common location in an undivided warehouse area,
and their inevitable and necessary daily interactions
while receiving inbound products and while staging
those products for outbound delivery. Just as plainly, the
only feature which grey goods employees now have in
common with the panel systems installers is that they
each have something to do with the panel systems Simi-
lar observations could be made about the plain common-
ality of interests among the higher-paid "outside" em-
ployees (installation, (field) service, delivery) as contrast-
ed with the comparatively trivial relationship currently
existing between installation and grey goods employees.
The type of products worked on by certain employees
has never been treated by the Board as a dispositive
factor in defining an appropriate unit that excludes other
employees working at the same location--especially
when many of the other employees also do work associ-
ated with the same products.17
In sum, I conclude that the General Counsel's litiga-
tion position does not square with the cases; it gives
undue weight to the original unit determination and cer-
tification, which themselves plainly derived from the
parties' stipulations entered into in a materially different
historical context; and it gives short shrift to the Board's
historic recognition (e.g., Renaissance Center, supra) that
"changed circumstances" may, indeed, defeat the collec-
tive-bargaining expectations of employees even if they
have only recently selected a bargaining agent. The unit
in which the General Counsel would now require Re-
spondent to bargain with the Union is an arbitrary con-
struct and it is not an "appropriate" one as that term is
17 Compare Paper Mfg., supra, involving dispositive factors beyond the
mere difference in product lines.
480 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
\
used throughout Section 9 of the Act. Accordingly, Re- On these findings of fact and conclusions of law and
spondent operates under no legal' obligation to recognize on the entire record, I issue the following recommend-
or bargain collectively with the Union in the unit pro- ed19
posed in the complaint.19
ORDER
The complaint is dismissed.
" It is not before me to judge whether Respondent may still have an
obligation to bargain with the Union over the effects on Weddell Court`
employees of the move to Hayward, accordingly, this decision does not
purport to dispose of that question.
19 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 objections to them shall be deemed waived for all pur-
poses.