Unpublished Disposition, 923 F.2d 862 (9th Cir. 1991)

MEMORANDUM

The National Labor Relations Board (Board) petitions this court for enforcement of its order requiring Stanley Home Products (Stanley) to bargain with the Warehouse, Processing and Distribution Workers' Union, Local 26, International Longshoremen's and Warehousemen's Union (Union). The Board had jurisdiction over the unfair labor practice proceeding under section 10(a) of the National Labor Relations Act. 29 U.S.C. § 160(a). We have jurisdiction pursuant to 29 U.S.C. § 160(e). We enforce the Board's order.

Our review of the Board's unit decision is "narrowly circumscribed." Spring City Knitting Co. v. NLRB, 647 F.2d 1011, 1013 (9th Cir. 1981) (Spring City) . The Board has wide discretion in unit determinations, and "it is not the province of the courts to displace the Board's choice of a unit from among two or more appropriate units, even though the court might have made a different choice were the case here de novo." NLRB v. Lerner Stores Corp., 506 F.2d 706, 707 (9th Cir. 1974). Within this framework, we review the record to determine whether the Board's unit determination is "arbitrary, capricious, or unsupported by the evidence." Spring City, 647 F.2d at 1016; 29 U.S.C. § 160(e).

Stanley argues that the Board erred by failing to include the office clerical workers in the bargaining unit consisting of warehouse employees. "Generally, the standard for determining the appropriateness of a bargaining unit is whether the employees in the unit share a community of interest." NLRB v. Great Western Produce, Inc., 839 F.2d 555, 557 (9th Cir. 1988). In determining whether a sufficient community of interest exists among employees in a bargaining unit, the Board considers "(1) similarity in employee skills, duties, and working conditions; (2) integration of function and personnel; (3) employees [sic] organizational framework; (4) employee choice; (5) extent of union organization; (6) bargaining history." Id. at 559.

Several of these factors support the Board's finding that the warehouse employees comprised an appropriate bargaining unit. Most importantly, clerical and warehouse employees perform different types of work, and their jobs require different skills and training. See NLRB v. Carson Cable T.V., 795 F.2d 879, 885 (9th Cir. 1986) (" [t]he most reliable indicium of common interests among employees is similarity in their skills, duties and working conditions"). In addition, warehouse and clerical employees work in physically segregated environments, and perform their respective functions separately. Finally, although overall operation of the distribution center is centralized, the clerical and warehouse employees have separate immediate supervision. See Wickes Furniture, 255 N.L.R.B. 545, 548 (1981) (Wickes) (immediate supervision a factor when determining community of interest).

Stanley argues that we should direct the Board to follow its own previous decisions finding that a "wall-to-wall" bargaining unit is the only appropriate unit in a facility as integrated as the Torrance distribution center. We need not decide whether inconsistency with prior decisions would render this unit determination "arbitrary and capricious," because the Board's decision does not clearly conflict with prior cases. Stanley relies on Birdsall, Inc., 268 N.L.R.B. 186 (1983), for the proposition that "the Board has recently placed greater emphasis on an employer's organizational structure as a factor in determining the scope of the appropriate bargaining unit." However, in Birdsall, the Board excluded clerical employees from a warehouse bargaining unit, pointing out that " [the clerical employees] are primarily concerned with paperwork, recordkeeping, [and] administration, and ... they [are not] located in the areas where freight is handled." Id. at 191-92. Other Board decisions draw a similar distinction between clerical and warehouse workers. See, e.g., Crest Industries Corp., 276 N.L.R.B. 490, 495 (1985); Wickes, 255 N.L.R.B. at 548; Welsch Lumber and Supply d/b/a Big Buck Lumber, 241 N.L.R.B. 639 (1979); Sears Roebuck & Co., 235 N.L.R.B. 678 (1978).

Under the circumstances of this case, we hold that the Board's unit determination was not "arbitrary, capricious, or unsupported by substantial evidence in the record as a whole." Spring City, 647 F.2d at 1016.

ORDER ENFORCED.