UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

REGION 18 SUBREGION 30

WILLY STREET GROCERY COOPERATIVE

Employer
Case 18-RC-142975
and

UNITED FOOD AND COMMERICAL

WORKERS, LOCAL 14731
Petitioner

DECISION AND DIRECTION OF ELECTION

The Employer's operations consist of two retail grocery stores, an off-site kitchen
facility, and a central office in the Madison, Wisconsin area. At issue are the two retail
grocery stores, which are located at 1221 Williamson Street, Madison, Wisconsin, and
at 6825 University Avenue, Middleton, Wisconsin. The Petitioner seeks to represent the
following unit of employees at the Employer's University Avenue store:2

IThe petition was amended at the hearing to reflect the correct name of Petitioner.
The Union amended the unit sought in the petition at the hearing. Although the amended unit does not
specifically state that it is limited to the University Avenue store, both the content of the hearing and the
post-hearing briefs are clear that the Union is seeking to represent employees only at that location.

Included:
All full time and part time hourly employees in the following job
classifications: Coordinator, Shift Supervisors, Buyers, Meat, Grocery,
Dairy, Deli, Produce, Wellness, Front End, Maintenance/Custodial,
Auditor/Receivers, Customer Service Representatives, Managers on Duty
and Rounders.
Excluded:
Seafood Center employees (Gardipee Inc), Shizen employees, Store
Manager, Assistant Store Manager, Department Heads, Assistant
Department Heads, Specialty vendors, temporary employees, employees
of other employers, guards, and supervisors as defined in the National
Labor Relations Act.
The Employer argues that due to the overwhelming community of interest shared
between the Employer's employees at both retail stores, a bargaining unit composed of
only the University Avenue store employees is not appropriate and that the unit must
include both retail stores. The Employer also argues that in certain instances the
petitioned-for unit describes departments as opposed to job classifications, and is
thereby inappropriately excluding/including certain employees. The Petitioner, in
contrast, argues the petitioned-for unit of employees at the University Avenue store is
an identifiable, appropriate unit.
I have considered the evidence and the arguments presented by the parties. As
explained below, based on the record and relevant Board precedent, I have concluded
that: (1) a single-store unit is appropriate; and (2) the unit description, as modified
below, is appropriate. Therefore, as set forth below, I shall direct an election in a unit
consisting of all full-time and regular part-time hourly employees working for the
Employer at its University Avenue store; excluding temporary employees, employees of

other employers, specialty vendors, managerial employees, guards, and supervisors as

defined by the National Labor Relations Act.
Under Section 3(b) of the Act, I have the authority to hear and decide this matter
on behalf of the National Labor Relations Board. Upon the entire record in this
proceeding, I find:
1. The hearing officer's rulings made at the hearing are free from prejudicial
error and are affirmed.
2. The Employer is engaged in commerce within the meaning of the Act, and it
will effectuate the purposes of the Act to assert jurisdiction.3
3. The labor organization involved claims to represent certain employees of the
Employer.
4. A question affecting commerce exists concerning the representation of certain
employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and
(7) of the Act.
5. This decision begins with a detailed overview of the Employer's operations
including its retail grocery stores, as well as the Employer's organizational hierarchy.
The second section sets forth the relevant evidence related to the factors the Board
considers in determining whether a single-facility or multi-location facility is appropriate,
such as centralized control over operations and local autonomy, similarity of employee
skills, functions and working conditions, degree of employee interchange, bargaining
history, and geographic proximity. The third section also describes the departments
3 The Employer, a Wisconsin corporation, is engaged in the operation of retail grocery stores
located in the greater Madison, Wisconsin area. During the past calendar year, a representative
period, the Employer received gross revenue in excess of $500,000 and during the same period, it
purchased and received goods and materials valued in excess of $50,000 directly from suppliers
located outside the State of Wisconsin.

and classifications at issue. The fourth section sets forth the relevant legal principles
and my application of those principles to the evidence. The final section contains my
conclusions regarding the description of the unit in this matter.

THE EMPLOYER'S OPERATIONS

The Employer's operations consist of two retail grocery stores, an off-site kitchen,
and a central office. The two retail stores are each approximately 9500 square feet and
have similar departments and structures. The Williamson Street store has been open
for several years, but recently went through an extensive renovation. The University
Avenue store opened in 2010. The off-site kitchen facility prepares certain foods that
are then sold at the retail stores. The central office provides administrative, human
resources, and information technology support for all three of the facilities. The central
office also handles corporate financial and ,budgetary matters.
The Employer's General Manager, Anya Firszt, manages the operations and
oversees the facilities. She reports to the Employer's Board of Directors. Under Firszt is
a Director of Operations, who more directly oversees the retail stores and the off-site
kitchen facility. Each of the grocery stores has a Store Manager. The Store Managers
report directly to the Director of Operations. The Employer has a personnel manual
containing policies and workplace rules applicable at all of its facilities. The Employer's
Human Resources department operates out of the central office. Until recently, the
Human Resources Manager was Sarah Dahl. Dahl oversaw a small staff of Human
Resource assistants. The retail stores and the off-site kitchen do not have their own
separate human resources departments.

As previously stated, the grocery stores are located at 1221 Williamson Street,
Madison, Wisconsin and 6825 University Avenue, Middleton, Wisconsin. The two
stores are approximately 8 miles apart. The stores have similar operational setups,
from merchandising to product sales. The primary difference between the two stores is
is that the University Avenue store sells alcohol, and the Williamson Street store does
not. There are approximately 100 non-supervisory, non-managerial employees working
at the University Avenue store, and approximately 125 non-supervisory, non-managerial
employees working at the Williamson Street store.
Each store is divided into departments: meat, grocery (including a dairy subdepartment), produce, general merchandise (including a health and wellness subdepartment), deli, front-end, and maintenance/custodial. Each department has a
Department Manager and often an Assistant Department Manager. Each department
also has Shift Supervisors.4
The Meat Department at each store has a Department Manager, butchers, and
meat clerks.5 The Grocery Department at each store has a Grocery Manager, a Grocery
Assistant Manager, Shift Supervisors, Buyers, and Stockers.6 The Deli Department at
each store has a Deli Manager, a Deli Assistant Manager, Clerks, Cooks, Buyers, and a
Cheese Coordinator. The Williamson Street store also has a Juice Bar Coordinator.
The Produce Department at each store has a Produce Manager, a Produce Assistant
4

The record contains little evidence regarding the duties and authority of Shift Supervisors.

The Meat Department at the University Avenue store prepares meats, like sausages, that also are sold
at the Williamson Street store.

According to the record, the Assistant Department Managers step in when the Department Managers
are not present. They do not have the authority to hire or fire, but they can recommend discipline. There
are no specifics in the record regarding if or how often the Assistant Department Managers recommend
discipline, or how frequently the recommendations are followed, or what level of discretion the Assistant
Department Managers have in making those recommendations.

Manager, Shift Supervisors, Buyers, and Produce Clerks or Stockers. The General
Merchandise Department at each store has a Department Manager, an Assistant
Manager, and Stockers. The Front End Department at each store has a Front End
Manager, a Front End Assistant Manager, Shift Supervisors, Customer Service Staff,
and Cashiers. The Maintenance/Custodial Department at each store has Department
Managers and Maintenance/Custodians. Both stores also have Auditors/Receivers
and Rounders.' Both stores also have Managers-on-Duty who are responsible for
overseeing their particular store when the Store Manager and Assistant Store Manager
are not present, typically in the early morning or later in the evening.

FACTORS CONSIDERED BY THE BOARD IN DETERMINING THE

APPROPRIATENESS OF A SINGLE FACILITY UNIT
1. Control Over Daily Operations and Labor Relations and Local Autonomy
The Employer presented Anya Firszt and Sarah Dahl as witnesses. Both
testified about the structure and day-to-day operations of the retail grocery stores,
including labor relations matters. Both confirmed that employees in each department
report to the Department Manager or Assistant Department Manager.8 The Department
Managers and the Assistant Department Managers report to the Store Manager.
Several of the departments also have Shift Supervisors who presumably report to their

The Auditors/Receivers are responsible for receiving product coming to the store to ensure it matches
the order and are responsible for auditing prices the Employer pays for the product and the prices the
Employer charges for the product. They coordinate with the Flow-of-Goods Department located at the
central office. The Flow-of-Goods Department has staff that is deployed to the retail stores and the offsite kitchen to be the auditor/receiver at the University Avenue store one day, at the Williamson Street
store another day, or the off-site kitchen another day. The reason given for this is business continuity, to
ensure that the receivers/auditors know how the systems work at each site. It is not clear whether there
is one receiver/auditor that is specifically assigned to a specific site. There is no evidence regarding the
Rounder position.

The Department Managers also are referred to as Department Heads.

6

respective Department Managers, but the record is not clear on this point. Each store
also has a Manager-on-Duty who is typically in charge of the overall readiness of the
store in the morning and then closing the store in the evening. The Manager-On-Duty
also covers for employees during breaks or if the store is short-staffed. The managerial
and supervisory employees at the University Avenue store have no control or authority
over any of the employees at the Williamson Street store, and vice versa.
Department Managers meet with Human Resources Department staff to create
and revise job descriptions.9 The Employer's personnel manual describes the process
to be followed in seeking candidates for hire. The Department Managers or Store
Managers notify Human Resources at the central office when there is a need to hire and
discuss what they are looking for in a candidate. Human Resources then posts the
opening on the Employer's internal website for internal candidates to apply. If there are
no internal candidates then Human Resources posts the job opening externally. The
office of Human Resources receives and reviews applications, and may also conduct
initial interviews to screen candidates. The staff at Human Resources then refers
candidates to the Department Managers for them to interview and/or hire. Human
Resources attempts to send multiple candidates to the Department Managers.
Department Managers only have the authority to offer particular wages or benefits that
are within established wage ranges and benefit levels set by the Employer.
The Department Managers (or their designee) are responsible for creating and
posting the work schedules for the employees in their department. Employees also go
to their Department Managers with leave or vacation requests. The Department

The job descriptions were not introduced into the record.

7

Managers or the Store Managers have authority to approve or deny the requests. The
Department Managers or the Store Managers also have authority to approve overtime.
Evaluations are done at the store level. Once a year each employee is given a
self-evaluation form developed by Human Resources and managers for the employee
to complete and submit. The employees' Department Managers then review the form
and prepare and provide evaluations for individual employees. This evaluation process
is now done for all employees in the late summer or early fall. Employees are eligible to
receive raises based upon their evaluations, and those determinations are made by
their Department Managers or the Store Managers.
The Employer's personnel manual contains a progressive disciplinary system.
Disciplinary decisions are handled at the store level, and,generally Human Resources is
not involved. However, Human Resources must be contacted before an employee is
terminated. The managers at the store may suspend the employee pending
investigation, but they cannot terminate without consulting Human Resources. The
record does not describe exactly what occurs once Human Resources is involved.
Pursuant to its by-laws, the Employer has an Employee Council that reviews and
proposes personnel policies to management. The Employee Council is made of 12
employees elected from their respective departments. Both stores are represented on
the Employee Council. The General Manager is also on the Council and has the
authority to approve or veto any proposals generated by the Council. The Council
typically deals with issues that are company-wide or store-wide, not individual employee
issues. The personnel manual describes a grievance process, but there is little, specific
evidence about if or how that has been used.

2. Employee Skills, Functions, and Working Conditions

As stated above, both retail stores have the same or similar departments;
employees working in those departments presumably possess the same skills and
perform essentially the same work as their counterparts at the other retail store. The
organizational hierarchy is the same at both stores. The Employer's personnel manual
addresses wages, hours, benefits, and other terms and conditions of employment, and
the manual applies to all Employer facilities. The manual, however, does not
specifically define wages or wage ranges. Rather, the office of Human Resources
establishes the wage ranges based on the Employer's performance and the overall
labor market, and then Department Managers determine what to offer individual
employees in their departments. The record suggests that employees performing the
same job are paid different hourly wages.
According to the personnel manual, employees at both stores who meet the
qualification requirements are eligible to receive the same benefits, including leave,
health insurance, and profit sharing. Profit sharing is based on the Employer's overall
profitability, not the profitability of the individual stores. Similarly, the Employer
determines at the corporate level what, if any, other benefits to offer based on the
Employer's overall budget.
There is no common supervision, at least at the local level, among those in the
petitioned-for unit and their counterparts at the Williamson Street store.
3. Employee Interchange or Contact
The Employer maintains policies that allow for the transfer of employees within
and between the two stores, and between the stores and the off-site kitchen facility.

Section G of the Employer's Personnel Manual describes three types of transfers: (1)
employee-initiated transfers; (2) management-initiated transfers; and (3) temporary
transfers.
Section G first addresses employee-initiated transfers and states if an employee
chooses to "change jobs within the Co-op," he/she will have a new training period in
his/her new job. If the employee's supervisor and the General Manager/Store Manager
determine the employee does not pass training, the Employer will make a good-faith
effort to find work for the employee elsewhere in the Co-op. However, there are no
guarantees that the employee can return to his/her old job or any set number of hours.
This section does not address or appear to differentiate between transfers within a store
versus transfers from one facility to another. There is reference in the record regarding
employees transferring from one department to another department within the same
store, and there is a reference to employees obtaining employment at both stores. The
record, however, does not describe the number or frequency of either type of transfer.1
The part of Section G of the Employer's Personnel Manual addressing
management-initiated transfers states that an employee may be required (versus
asked) to transfer to another position or department if: the employee's department is
restructured and his/her current job is eliminated; the employee's skills are temporarily
needed in another job; the employee is not able to perform up to standards in his/her
present job as documented by his/her supervisor and included in his/her personnel file,
but is qualified for another job; and/or the employee has a temporary or permanent
disability preventing him/her from performing his/her present job, but the employee is
10 The Employer presented evidence about the total number of transfers that occurred in a given period
of time, but the witness could not decipher from the data whether those transfers were across
departments within the same store or were transfers from one store to the other.
10

qualified for another job which can better accommodate the employee's limitations. The
record references at least one maintenance/custodian being assigned to work at
another store to help address a particular issue for which the employee had specialized
skills. The record also reveals that a few employees were assigned to another location
in order to comport with their light-duty restrictions. Finally, the record contains some
examples of employees from the Williamson Street store who were assigned to work at
the University Avenue store shortly after the latter's opening. However, except for
these specific examples, the record does not describe how many times or how often the
management-initiated transfers occur.
Section G of the Employer's Personnel Manual also addresses temporary
transfers. It states that if an employee has been temporarily assigned to take over the
majority of the responsibilities of a position with a higher starting pay than his/her own
pay for more than ten working days, the employee will be paid between 5% and 20%
above his/her current wage or the bottom of the training wage, whichever is greater, for
the length of the assignment. The exact percentage is to be negotiated between the
employee, his manager, and Human Resources taking into consideration the level of
responsibility. However, incidental performance of another position's duties does not
entitle the employee to higher pay. There is no record evidence suggesting that this
provision has been applied.
As stated above, if an employee transfers from one department to another or
from one store to another, he/she must receive training and be deemed to be able to
perform the duties of the position. Those determinations typically are made by relevant
Department Managers or the Store Manager at the particular store where the employee

11

is performing the work. In other words, even if an employee transfers from one store to
another store to perform the same job, he/she will receive training and must
demonstrate that he/she can perform the job at the new store.
New employees at both stores are required to attend a new employee
orientation/training that is held monthly. Employees from both stores attend this training
together. Additionally, the Employer has two annual social gatherings attended by
employees from both stores.
Dahl testified about particular situations in which employees interchange
temporarily from one store to another. The Employer maintains a substitute list where
employees can put their names down as being willing to work at another location.
When a department is short-staffed or needs extra labor, it can call on those employees
on the list to come in and pick up extra hours. There also are situations in which there
is a special project or busy time where extra labor is needed. The Employer will solicit
for volunteers to help, which may mean working at a different location. Another
example is during the remodeling of the Williamson Street store, displaced employees
were sent over to the University Avenue store so that they would not lose hours. One
more example would be, as stated above, if an employee is put on light duty and needs
to be transferred in order to be offered work within their limitations. Finally, there are
emergency situations in which staffing levels are unexpectedly short, and the Employer
asks for help from the other store.
4.

Bargaining History

The Employer's employees are unrepresented. However, as described in detail

above, the Employer has an Employee Council which meets to discuss the personnel

12

manual and corporate policies. Those meetings have resulted in certain changes (e.g.,
scheduling) affecting both stores. The details regarding the Council's meetings and the
role or authority of the representatives are not in the record, other than the General
Manager must approve and can veto any proposal from the Council.
5.

Distance Between Facilities

The two stores are located approximately 8.2 miles apart. The Employer's
central office is located within approximately a quarter mile of the Williamson Street
store. The Employer's off-site kitchen facility is approximately two blocks from central
office.

The Single-Location Unit is Appropriate

1. The Employer's Contentions
The Employer claims that due to the overwhelming community of interest shared
between the Employer's employees at both retail stores, a bargaining unit composed of
only the University Avenue store employees is not appropriate because (1) all retail
employees have the ability to work at both retail locations; (2) all of the Employer's
facilities are under common management; (3) all of the Employer's employees are
subject to the same employment policies; and (4) the terms and conditions of
employment for all employees are determined by the Employer's central management
and the Human Resources team.
2. Applicable Legal Principles
It is well established that a single-facility unit is presumptively appropriate, unless
it has been so effectively merged into a more comprehensive unit, or is so functionally
integrated, that it has lost its separate identity. See Hilender Foods, 348 NLRB 1200,
13

1201 (2006). To determine whether the presumption has been rebutted, the Board
examines a number of factors: (1) central control over daily operations and labor
relations, including extent of local autonomy; (2) similarity of employee skills, functions,
and working conditions; (3) degree of employee interchange; (4) distance between
locations; and (5) bargaining history, if any. Id.
Even if there are some factors supporting a multi-location unit, the
appropriateness of such a unit does not establish the inappropriateness of a smaller
unit. McCoy Co., 151 NLRB 383, 384 (1965). Indeed, the single-facility presumption
applies even where a larger, more comprehensive unit might also be found to be
appropriate. Dixie Belle Mills, Inc., 139 NLRB 629, 631 (1962). Rather, in weighing
these factors, a heavy burden is on the party opposing a petitioned-for single facility unit
to present evidence sufficient to overcome the presumption. J&L Plate, 310 NLRB 429
(1993). Thus, in this matter, it is the Employer that has the burden of overcoming the
presumption.
The Hilander Foods decision and standard was cited affirmatively by the Board in
Specialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011) for
the proposition that a single-facility unit is presumptively appropriate. Id at fn 16. The
Board in Specialty Healthcare also discussed at length the framework for analyzing the
appropriateness of a petitioned-for unit:
The Act further declares in Section 9(b) that "[t]he Board shall decide in
each case whether, in order to assure to employees the fullest freedom in
exercising the rights guaranteed by this Act, the unit appropriate for the
purposes of collective bargaining shall be the employer unit, craft unit,
plant unit, or subdivision thereof." The first and central right set forth in
Section 7 of the Act is employees' "right to self-organization." As the Board
has observed, "Section 9(b) of the Act directs the Board to make
appropriate unit determinations which will 'assure to employees the fullest
14

freedom in exercising rights guaranteed by this Act.' i.e., the rights of selforganization and collective bargaining." Federal Electric Corp., 157 NLRB
1130, 1132 (1966). [Footnote omitted.]
The Board has historically honored this statutory command by holding that
the petitioner's desire concerning the unit "is always a relevant
consideration." Marks Oxygen Co., 147 NLRB 228, 229 (1964). See also,
e.g., Mc-Mor-Han Trucking, Co., 166 NLRB 700, 701 (1967), (reaffirming
"polic[y] ... of recognizing the desires of petitioners as being a relevant
consideration in the making of unit determinations"); E.H. Koester Bakery
Co., 136 NRB 1006, 1012 (1962). Section 9(c)(5) of the Act provides that
"the extent to which the employees have organized shall not be
controlling." But the Supreme Court has made clear that the extent of
organization may be "consider[ed] ... as one factor" in determining if the
proposed unit is an appropriate unit. NLRB v. Metropolitan Life Insurance
Co., 380 U.S. 438, 442 (1965). In Metropolitan Life, the Court made
clear that "Congress intended to overrule Board decisions where the unit
determined could only be supported on the basis of the extent of
organization." Id. at 441 (emphasis added). In other words, the Board
cannot stop with the observation that the petitioner proposed the unit, but
must proceed to determine, based on additional grounds (while still taking
into account the petitioner's preference), that the proposed unit is an
appropriate unit. Thus, both before and after the adoption of the 9(c)(5)
language in 1947, the Supreme Court had held, "[n]aturally the wishes of
employees are a factor in a Board conclusion upon a unit." Pittsburgh
Plate Glass Co. V. NLRB, 313 U.S. 146, 156 (1941).
Based on this framework, the Board held that where an employer contends that
the smallest appropriate bargaining unit must include additional employees or
classifications beyond those in the petitioned-for unit, the Board first assesses whether
the petitioned-for unit is an appropriate bargaining unit by applying traditional
community-of-interest principles. If the petitioned-for unit satisfies that standard, the
burden is on the employer to demonstrate that the additional employees it seeks to
include share an overwhelming community of interest with the petitioned-for employees,
such that there "is no legitimate basis upon which to exclude the employees" at issue
from the larger unit because the traditional community-of-interest factors "overlap
almost completely." Id., slip op. at 11-13. While the Board has not discussed its
15

Specialty Healthcare "overwhelming community-of-interest" analytical framework in a

case involving a multi-location scope of unit determination, the Board's reasoning is
instructive in weighing the evidence and analyzing the issues presented herein."
For the reasons described below, I find that the Employer has failed to meet its
burden under either the Hilander Foods or Specialty Healthcare standard.
3. Central Control over Operations and Local Autonomy
Although the Employer has some centralized control over both stores, there is
significant evidence of local autonomy at the University Avenue store level suggesting
that the Employer has not rebutted the presumption that the single-facility unit is
appropriate. The Employer's central office, particularly its Human Resources
Department, promulgates and oversees employment policies and procedures for both
stores, but the day-to-day employee relations matters (interviewing and hiring of
employees, determining starting wages within the approved ranges, approving leave
and vacation, scheduling, assignment of work, performance evaluations and discipline)
are handled at the store level by local management, without the central office's
involvement. While the Store Managers and Department Managers are required to
follow the procedures contained in the personnel manual, the Employer provided no
evidence establishing that any decisions made at the store level are routinely reviewed

analysis was set forth by the Regional Director for Region 27 in King Soopers and the United Food
& Commercial Workers Union, Local No. 7, 27-RC-104452, in which the Regional Director considered the
Hilander Foods test and Specialty Healthcare & Rehabilitation standard and concluded that the
petitioned-for unit was appropriate, as opposed to a broader unit, under both standards. In that case, the
employer requested review. The Board denied review. In so doing, the Board agreed with the Regional
Director that the employer had failed to rebut that the petitioned-for single-facility unit of retail and coffee
shop employees was appropriate, and that it was unnecessary to reach the question of whether the
Specialty Healthcare & Rehabilitation standard applied. See King Soopers, 2013 WL 4927682 fn. 1
(2013).
11 This

16

or overturned at the corporate level. The only situation where the Employer's Human
Resources department is required to be involved is in the event of a termination.
In Hilender Foods, supra, the employer had a similar management structure with
a central corporate office and several levels of management within each store, and the
store managers were vested with similar authority to make assignments, set work and
vacation schedules, and arrange temporary inter-store transfers. The Board held that
evidence of centralization did not rebut the single-store presumption where there was
significant local autonomy over labor relations matters. 348 NLRB at 1203. The Board
emphasized that employees performed "day-to-day work under the supervision of one
who is involved in rating their performance and in affecting their job status and who is
personally involved with the daily matters which make up their grievances and routine
problems." Id.

The same holds true here. There is significant local autonomy at both

of the retail stores. The Store Managers and the Department Managers have primary
control over their employees and their day-to-day work. As a result, I find this factor
strongly weighs in favor of a single-facility unit.
4. Similarity of Employee Skills, Functions, and Working Conditions
The record establishes that both stores have the same departmental structure,
the same operational set-ups, and the same positions. The hourly employees at both
stores perform the same basic functions and prepare, stock, and/or sell the same
products. Human Resources works with the Department Managers and/or Store
Managers at the stores to develop job descriptions applicable at both retail stores.
Similarly, the Employer's personnel manual containing policies relating to wages, hours,
benefits, and other terms and conditions of employment applies equally to employees at

17

both retail stores. Although there is evidence that employees performing the same job
at one store may be paid different rates than when working at the other store, those
rates are still within the wage range established company-wide because the local
managers have the authority to determine what to offer within that range. In light of the
many factors that the hourly employees at both stores have in common, I find that this
factor is not dispositive, but weighs in favor of the multi-facility unit. See, e.g., Prince
Telecom, 347 NLRB 789, 792 (2006); Trane, 339 NLRB 866-867 (2003).
5. Degree of Employee Interchange
There is little evidence concerning the amount or frequency of interchange,
temporary or permanent, between the Employer's two retail stores. The party arguing
for a multi-facility unit bears the burden of presenting sufficient evidence, and "the
presumption has not been rebutted where an employer's interchange data is
represented in aggregate form rather than as a percentage of total employees." New
Britain Transportation, 330 NLRB 397, 398 (1999) (Citations omitted). See also Cargill,
Inc., 336 NLRB 114 (2001) (instances of interchange between two facilities not
supported by documentation or testimony regarding context surrounding the incidents
and, therefore, have little evidentiary value). In this case, the Employer has presented
no discernible data regarding interchange. Dahl testified that there were 45 employees
who transferred, but she could not tell from the data how many of those were transfers
within the same store (i.e., from one department to another) or from one store to
another. Therefore, the Employer has failed to meet its burden.

18

Moreover, the specific instances described by Employer witnesses regarding

interchange primarily involved voluntary interchange.12 Such voluntary interchange is
given less weight in determining if employees from different locations share a common
identity. New Britain Transportation, supra; Red Lobster, 300 NLRB 908, 911 (1990).
As for permanent transfers, the evidence is vague as to how many, if any, employees
transferred permanently from one store to another.
I also find it telling that when an employee transfers from one store to another,
the employee receives training and is required to demonstrate proficiency even if
performing the same job or duties performed at the original store. While this may take
little time, particularly for a skilled employee, the fact that it is required is instructive.
The evidence, particularly the lack thereof, regarding interchange supports
finding that a single-facility unit is appropriate.
6. Bargaining History
There is no evidence of any bargaining history at or between any of the
Employer's facilities. The Employer points to the existence of its Employee Council and
argues that it supports finding a multi-location unit because employees at all facilities
are eligible to and have participated as representatives on the Council, and the Council
addresses company-wide issues affecting employees' working conditions. Assuming
this amounts to bargaining - which the Employer's veto authority undermines - I find
there is limited evidence of a history. The University Avenue store opened in November
2010, and it is unclear exactly when "representatives" from that store joined the Council.

There is evidence of at least one maintenance/custodian being involuntarily transferred from one store
to another because he had specialized skills that were needed at the store. It is unclear from the record
how long that transfer/assignment lasted, or if it happened again.
12

19

Thus, there is not a longstanding history of a multi-location bargaining unit to make a

single-facility unit inappropriate.
The Employer asserts the parties had discussions at around the time the Union
filed the petition about an election consisting of an agreed-upon unit of employees from
both retail stores and a separate unit from the off-site kitchen facility. Those negotiations
broke down, and the Union moved forward with a unit of employees only at the
University Avenue store. The Employer contends that these discussions constitute
bargaining history. While the parties may have had discussions about an election
involving a multi-store unit, those discussions clearly did not result in any sort of binding
agreement. Moreover, I do not find that discussions a week or so prior to a
representation hearing to be bargaining history as contemplated by the Board when
considering this issue.
7. Geographical Proximity of Stores
The distance between the Employer's two retail stores is 8.2 miles, in separate
municipalities (Middleton and Madison). The Board has found a single facility
appropriate when the physical separation was 6 to 12 miles apart. New Britain, supra.
See also Hilender, supra (8 to 13 mile distance). I find this factor supports a singlefacility unit.
8. Conclusion and Finding on Scope of Unit Issue
Based on the record, I find the Employer has failed to meet its burden of
establishing that the two stores are so functionally integrated as to require a finding that
they have lost their separate store identities and, accordingly, comprise the smallest
appropriate unit. As noted above, the Board has consistently held that a single-facility

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unit is presumptively appropriate "unless it has been so effectively merged into a more
comprehensive unit, or is so functionally integrated, that it has lost its separate identity."
Hilander Foods, supra. See also, Specialty Healthcare supra, at fn 9.
Although the Board has not yet discussed its Specialty Healthcare analytical
framework in a reported multi-facility case, there is no basis to conclude it would not
apply that analysis. Accordingly, I find that even applying an alternative analysis under
the Board's Specialty Healthcare framework results in the same determination that the
Employer has not met its burden of establishing that the single-store presumption has
been rebutted. Thus, the Employer has failed to demonstrate that the additional
employees it seeks to include share an "overwhelming community of interest" with the
petitioned-for employees, such that there "is no legitimate basis upon which to exclude
the employees" at issue. In this regard, the University Avenue store unit constitutes a
readily identifiable group of employees who share a community-of-interest based on the
fact that they work at a single geographic location, under separate supervision with
various levels of store management vested with significant autonomy over employee
day-to-day terms and conditions of employment. Under this particular analysis, the
Employer has not demonstrated that the stores share such an overwhelming community
of interest that the traditional factors "overlap almost completely." Id. at 11-13.

The Single-Facility Unit Description, as Modified, Is Identifiable and Appropriate.

The Employer also contends that the petitioned-for bargaining unit is defective
because it does not clearly describe the employees the Union seeks to represent.
Specifically, the Employer contends that even as amended, the proposed unit mentions

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"the following job classifications:" but mostly refers to departments as opposed to

specific job classifications to be included in the unit, making the petitioned-for unit
inappropriate.13
1. Applicable Legal Principles
The Board's decision in Specialty Healthcare sets forth that when a union seeks
to represent a unit of employees "who are readily identifiable as a group (based on job
classifications, departments, functions, work locations, skills, or similar factors), and the
Board finds that the employees in the group share a community of interest after
considering the traditional criteria, the Board will find the petitioned-for unit to be an
appropriate unit ...." 357 NLRB No. 83, slip op. at 12. If the petitioned-for unit satisfies
that standard, the burden is on the proponent of a larger unit to demonstrate that the
additional employees it seeks to include share an "overwhelming" community of interest
with the petitioned-for employees, such that there "is no legitimate basis upon which to
exclude certain employees from" the larger unit because the traditional community-ofinterest factors "overlap almost completely." Id., slip op. at 11-13, fn. 28 (quoting Blue
Man Vegas, LLC v. NLRB, 529 F.3d 417, 422 (D.C. Cir. 2008)).
Although the Union's petitioned-for unit description refers to job classifications
and/or implies that it is seeking to represent employees in the named departments,
which may create some confusion, I find from the record and the post-hearing briefs that
the Union's intended unit is clear. Setting aside job classifications or departments, I find

13 For example, the Employer points out that the petitioned-for unit includes the Meat department, the
Grocery department, and the Front-End department, as well as other departments, but does not
specifically identify job classifications in those departments (e.g., butcher, cashier, stockers). The
Employer points out that the Union now claims that it simply seeks "to represent employees who might be
called clerks." The Employer contends the proposed unit is thus not the entire co-operative or a specific
craft or job classification within the cooperative, nor is it a plant unit because it excludes butchers,
stockers and cashiers, and it is not an identifiable subdivision of any of the preceding units.

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the Union is seeking to represent all full-time and regular part-time hourly employees
working for the Employer at its University Avenue store; excluding temporary
employees, employees of other employers, specialty vendors, managerial employees,
guards, and supervisors as defined in the National Labor Relations Act.14 I find this is a
readily identifiable and appropriate unit of employees who share a community of
interest.
The Employer also contends the Receivers/Auditors cannot appropriately be
included in a single-facility unit because they work at multiple locations. The Employer
failed to present any specific evidence regarding these particular employees, including
how much time any of them work at any particular location. There is no dispute that
there are Receivers/Auditors who work at the University Avenue store. As the party
seeking to exclude them from the unit, the Employer had the burden of proof. I find the
Employer failed to present this evidence or evidence that they do not otherwise share a
sufficient community of interest with the employees working exclusively at the University
Avenue store.
In Specialty Healthcare, the Board has held that if the petitioned-for employees
share a community of interest, the unit is appropriate and the inquiry ends. The unit
sought need not be the only appropriate unit, or even the most appropriate unit; it must
14 In its post-hearing brief, the Union points out there was "no significant substantive evidence" presented
regarding the supervisory status of any individuals involved other than the fact that the Store Manager
and the Department Managers should be excluded as statutory supervisors. The Union asserts that
because Assistant Department Managers act as and with the authority of Department Managers when the
Department Managers are not present, they too should be excluded as statutory supervisors. The Union
further contends that in the absence of any contention by the Employer that Assistant Department
Managers should not be excluded from the unit, and in the absence of any evidence indicating that they
are not supervisors or that they share a community of interest with the "clerks," those Assistant
Department Heads should be excluded from the unit. Moreover, the Union notes that the Employer did
not contest their exclusion from the unit. I do not make any findings regarding the supervisory status of
any of the employees below the Department Manager level. Those matters were not presented as issues
in dispute, and the parties were not made aware that they needed to present evidence or take a position
on those issues.

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merely be an appropriate unit. Id. Thus, under Specialty Healthcare, in order to prevail
on this issue, the Employer must show that "there is no legitimate basis upon which to
exclude" the identified positions or departments, and that they must also be included in
the unit in order for the unit to be an appropriate bargaining unit. Id at 11.
I find there is sufficient evidence from which to conclude that a single-facility,
wall-to-wall unit of all full-time and regular part-time hourly employees working for the
Employer at its University Avenue store, excluding temporary employees, employees of
other employers, specialty vendors, managerial employees, guards, and supervisors as
defined in the National Labor Relations Act, is an appropriate unit.

CONCLUSION
Based upon the evidence, I find that a single-facility unit, as described below, is
readily identifiable and consists of employees who share a community of interest and,
therefore, is appropriate. For these reasons, and in view of the record evidence, I shall
direct an election in the following appropriate unit:
Included:
All full time and regular part time hourly employees working for the
Employer at its University Avenue store.

Excluded:
Temporary employees, employees of other employers, specialty vendors,
managerial employees, guards, and supervisors as defined in the National
Labor Relations Act.

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DIRECTION OF ELECTION
An election by secret ballot will be conducted by the undersigned among the
employees in the unit found appropriate at the time and place set forth in the Notice of
Election to be issued subsequently, subject to the Board's Rules and Regulations.

A.

Voting Eligibility
Eligible to vote are those in the unit who were employed during the payroll period

ending immediately preceding the date of this Decision, including employees who did
not work during that period because they were ill, on vacation, or temporarily laid off.
Employees engaged in an economic strike, who have retained their status as strikers
,

and who have not been permanently replaced, are also eligible to vote. In addition, in an
economic strike which commenced less than 12 months before the election date,
employees engaged in such strike who have retained their status as strikers but who
have been permanently replaced, as well as their replacements, are eligible to vote.
Unit employees in the military services of the United States may vote if they appear in
person at the polls.
Ineligible to vote are (1) employees who have quit or been discharged for cause
since the designated payroll period; (2) striking employees who have been discharged
for cause since the strike began and who have not been rehired or reinstated before the
election date; and (3) employees who are engaged in an economic strike that began
more than 12 months before the election date and who have been permanently
replaced.

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Those eligible shall vote whether or not they desire to be represented for
collective-bargaining purposes by United Food and Commercial Workers, Local 1473.
B. Employer to Submit List of Eligible Voters
To ensure that all ,eligible voters may have the opportunity to be informed of the
issues in the exercise of their statutory right to vote, all parties to the election should
have access to a list of voters and their addresses, which may be used to communicate
with them. Excelsior Underwear, Inc., 156 NLRB 1236 (1966); NLRB v. Wyman-Gordon
Company, 394 U.S. 759 (1969).
Accordingly, it is hereby directed that within 7 days of the date of this Decision,
the Employer must submit to the Regional Office an election eligibility list, containing the
full names and addresses of all the eligible voters. North Macon Health Care Facility,
315 NLRB 359, 361 (1994). The list must be of sufficiently large type to be clearly
legible. To speed both preliminary checking and the voting process, the names on the
list should be alphabetized (overall or by department, etc.). This list may initially be used
by me to assist in determining an adequate showing of interest. I shall, in turn, make the
list available to all parties to the election.
To be timely filed, the list must be received in the Regional Office on or before
January 21, 2015. No extension of time to file this list will be granted except in
extraordinary circumstances, nor will the filing of a request for review affect the
requirement to file this list. Failure to comply with this requirement will be grounds for
setting aside the election whenever proper objections are filed. The list may be
submitted to the Regional Office by electronic filing on the Agency's website,
www.nlrb.ciov, by mail, or by facsimile transmission at (612) 348-1785. The burden of

26

establishing the timely filing and receipt of the list will continue to be placed on the
sending party.
To file the eligibility list electronically, go to the Agency's website at
www.nlrb.gov, select File Case Documents, enter the NLRB Case Number, and follow
the detailed instructions. Since the list will be made available to all parties to the
election, please furnish a total of two copies of the list, unless the list is submitted by
facsimile or e-mail, in which case no copies need be submitted. If you have any
questions, please contact the Regional Office.
C. Notice of Posting Obligations
According to Section 103.20 of the Board's Rules and Regulations, the Employer
must post the Notices of Election provided by the Board in areas conspicuous to
potential voters for at least 3 working days prior to 12:01 a.m. on the day of the election.
Failure to follow the posting requirement may result in additional litigation if proper
objections to the election are filed. Section 103.20(c) requires an employer to notify the
Board at least 5 full working days prior to 12:01 a.m. of the day of the election if it has
not received copies of the election notice. Club Demonstration Services, 317 NLRB 349
(1995). Failure to do so estops employers from filing objections based on nonposting of
the election notice.
RIGHT TO REQUEST REVIEW
Pursuant to Section 102.67 of the National Labor Relations Board's Rules and
Regulations, you may obtain a review of this action by filing a request with the Executive
Secretary, National Labor Relations Board, 1099 14th Street, NW., Washington, DC
20570-0001. The request for review must contain a complete statement of the facts and
reasons on which it is based.
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Procedures for Filing Request for Review: A request for review must be
received by the Executive Secretary of the Board in Washington, D.C., by close of
business (5:00 p.m. Eastern Time) on January 28, 2015, unless filed electronically. If
filed electronically, it will be considered timely if the transmission of the entire document
through the Agency's website is accomplished by no later than 11:59 p.m. Eastern
Standard Time on January 28, 2015. Consistent with the Agency's E-Government
initiative, parties are encouraged, but not required, to file a request for review
electronically. Section 102.114 of the Board's Rules do not permit a request for review
to be filed by facsimile transmission. A copy of the request for review must be served on
each of the other parties to the proceeding, as well as on the undersigned, in
accordance with the requirements of the Board's Rules and Regulations.
Filing a request for review electronically may be accomplished by using the
Efiling system on the Agency's website at www.nlrb.gov. Once the website is accessed,
click on File Case Documents, enter the NLRB Case Number, and follow the detailed
instructions. The responsibility for the receipt of the request for review will not be
excused on the basis that the transmission could not be accomplished because the
Agency's website was off line or unavailable for some other reason, absent a
determination of technical failure of the site, with notice of such posted on the website.
Upon good cause shown, the Board may grant special permission for a longer period
within which to file a request for review. A request for extension of time, which may also
be filed electronically, should be submitted to the Executive Secretary in Washington,
and a copy of such request for extension of the time should be submitted to the
Regional Director and to each of the other parties to this proceeding. A request for an

28

extension of time must include a statement that a copy has been served on the
Regional Director and on each of the other parties to this proceeding in the same
manner or a faster manner as that utilized in filing the request with the Board.

Signed at Minneapolis, Minnesota, this 14th day of January, 2015.

/s/ Marlin 0. Osthus

Marlin 0. Osthus, Regional Director
National Labor Relations Board Region 18
330 South Second Avenue, Suite 790
Minneapolis, MN 55401-2221

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