Unpublished Disposition, 860 F.2d 1088 (9th Cir. 1988)

MEMORANDUM^* 

The NLRB designated a single bargaining unit to represent all pharmacists employed in a particular region by Fred Meyer, Inc., and issued an order directing the employer to bargain with that unit. Fred Meyer has petitioned for review of that order, arguing that the decision violates the presumption in favor of single-store units, is not supported by substantial evidence, and is improper absent a "self determination" election on behalf of the nine historically unrepresented stores. The NLRB has cross-petitioned for enforcement of its order. For the reasons set forth below, we direct that the order be enforced.

With respect to the first argument, we note that the petition filed by the Guild for Professional Pharmacists sought representation on behalf of a single, region-wide unit, and that position was not opposed by Local 555 of the United Food and Commercial Workers International Union. Under these facts, the presumption in favor of single-store units "simply has no application." NLRB v. Carson Cable TV, 795 F.2d 879, 887 (9th Cir. 1986).

Fred Meyer's second argument is equally unavailing. Our examination of the record reveals that, in determining an "appropriate" unit under 29 U.S.C. § 159(b), the Regional Director properly considered such factors as:

(1) similarity in employee skills, duties, and working conditions; (2) functional integration of the business, including employee interchange; (3) centralized control of management and supervision; (4) geographical separation of facilities; (5) collective bargaining history and extent of union organization; and (6) employee choice.

Carson Cable TV, 795 F.2d at 884-85. While some differences in, for example, compensation and benefits exist among the pharmacists, the similarities far outweigh them. We conclude that substantial evidence exists in the record to support the decision of the Regional Director.

Finally, we note that Fred Meyer's argument concerning the need for a "self determination" election was raised for the first time in its petition for review of the Regional Director's decision. Because of the Guild's petition and Local 555's acquiescence therein, Fred Meyer cannot be heard to argue that the decision in favor of a single, region-wide unit could not have been anticipated. Under these circumstances, we concur with the Board that Fred Meyer waived its argument on the question of the need for a "self determination" election by not timely presenting it to the Regional Director. See 29 CFR Sec. 102.67(d) (" [a] request [for review] may not raise any issue ... not timely presented to the regional director"). Because the issue was not properly raised before the NLRB, and in the absence of a showing of extraordinary circumstances on appeal, we decline to review the argument now. See 29 U.S.C. § 160(e) (argument not presented to Board not reviewable on appeal absent "extraordinary circumstances"); Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645, 666 (1982) (same).

The order of the NLRB shall be enforced.