                     United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                   ___________

                                 Nos. 00-3332/3753
                                  ___________

KING SOOPERS, INC.,                       *
                                          *
      Petitioner/Cross-Respondent,        *
                                          *   On Petition for Review and
                                          *   Cross-Petition for
      v.                                  *   Enforcement of an Order of the
                                          *   National Labor Relations Board.
NATIONAL LABOR                            *
    RELATIONS BOARD,                      *
                                          *
      Respondent/Cross-Petitioner.        *

                                   ___________

                                Submitted: April 10, 2001
                                   Filed: June 22, 2001
                                   ___________

Before HANSEN and BYE, Circuit Judges, and MELLOY,1 District Judge.

                                   ___________
MELLOY, District Judge.


      King Soopers, Inc. (King Soopers) appeals from an order of the National Labor
Relations Board (the Board), and the Board cross-appeals seeking enforcement of that
order. The Board held that King Soopers violated Section 8(a)(5) and (1) of the

      1
        The Honorable Michael J. Melloy, United States District Judge for the Northern
District of Iowa, sitting by designation.
National Labor Relations Act, 29 U.S.C. § 158 et seq., (the Act), by withdrawing
recognition from the Bakery, Confectionary, Tobacco Workers and Grain Millers
International Union, Local 26, AFL-CIO (Bakery Workers Local 26) and the United
Food and Commercial Workers Union, Local 7 (UFCW Local 7), and by refusing to
apply the collective-bargaining agreement to its relocated store in Broomfield, Colorado
(Store #86). The Board also held that King Soopers violated Section 8(a)(5) and (1)
of the Act by denying employee Lisa Hughson a transfer pursuant to its collective-
bargaining agreement with Bakery Workers Local 26. Accordingly, the Board ordered
that King Soopers abide the terms of its existing collective-bargaining agreements with
the Unions and to make the employees whole for any losses they may have suffered
from Kings Soopers’ failure to apply the collective-bargaining agreement to Store #86.
Because we agree with the Board’s decision that King Soopers has so violated the Act,
we deny King Sooper’s appeal and enforce the Board’s order.


                                           I.


      The following findings of fact by the Board are largely undisputed by the parties
and are supported by the substantial weight of the evidence. King Soopers operates a
chain of supermarkets in Colorado. Many of the stores are unionized, with the grocery
and delicatessen employees at such stores being represented by the UFCW, and the
bakery employees at such stores being represented by the Bakery Workers. Both
Unions have had longstanding bargaining relationships in multi-store bargaining units
covering all company stores located within the Denver metropolitan area. The multi-
store Denver-area collective-bargaining agreements contained language that ceded to
the Unions jurisdiction to represent employees at all existing stores and any future

                                          -2-
stores established by King Soopers within the agreements’ geographic limits before the
agreements expired. This case concerns the store in Broomfield, Colorado, which the
parties agreed fell just outside the parameters of the geographic limits of the Denver-
area multi-store bargaining units.


      The store, which was located in a facility at 120th Avenue in Broomfield, was
established in 1987. It was King Soopers’ first and only store in Broomfield. Shortly
after the store was established, King Soopers agreed to a check of signed union
authorization cards, and based upon a majority showing in that check, recognized the
UFCW as the bargaining representative of the store’s grocery and delicatessen
employees.


      King Soopers and the UFCW then entered into a collective-bargaining
agreement, with a recognition provision that specified that the Union was the
representative for all grocery and delicatessen employees at “the grocery store owned
or operated by the Employer at 5150 West 120th Avenue.” The recognition provision
contained no future additional store language but instead added that the UFCW’s
“jurisdiction [is] to apply to the current store represented by the Union.” No evidence
was presented that the parties ever discussed, in the context of agreeing to a card-check
or to the foregoing contract language, whether the UFCW might agree to waive the
statutory rights of unit members to union representation and contract coverage in the
event the Broomfield store was relocated to another facility.


      King Soopers recognized the Bakery Workers as the exclusive bargaining
representative of the Broomfield store’s bakers and cake decorators (“bakery-

                                          -3-
department employees”) in 1990, based upon the results of a Board-conducted election.
The election had been conducted among the store’s bakery-department employees
based upon a stipulation by the parties that such employees comprised an appropriate
bargaining unit. The Bakery Workers and King Soopers then agreed to merge the
Broomfield store bargaining unit into the existing Denver-area multi-store unit and to
extend the Denver-area collective-bargaining agreement to the Broomfield store’s
bakery-department employees. In pertinent part, that agreement reads “effective
February 25, 1990, the employees of the Broomfield bargaining unit shall be accreted
into the Denver bargaining unit and by this agreement the Denver bargaining unit shall
be expanded to cover the inclusion of this unit.” The recognition provision in the 1997-
2001 Denver-area collective-bargaining agreement covers “all work historically
covered by this Agreement.” No evidence was presented that the parties ever
discussed, in the context of agreeing to an election to the foregoing contract language,
whether the Bakery Workers might agree to waive the statutory rights of unit members
to union representation and contract coverage in the event the Broomfield store was
relocated to another facility.


      On September 8, 1998, Steve DiCroce, King Soopers’ Director of Human
Resources, sent a letter to each grocery and delicatessen employee at King Soopers’
120th Avenue Store in Broomfield (denominated as “Store 8”). The letter states that
the 120th Avenue Store was being closed and that the employees would be offered
employment under nonunion terms at a new store (denominated as “Store 86”) being
opened a quarter-mile away on Sheridan Boulevard. On September 28, DiCroce sent
the UFCW a letter stating that King Soopers would not recognize the UFCW as the
exclusive bargaining representative of the grocery and delicatessen employees at the

                                          -4-
new Broomfield store unless and until the Union demonstrated its majority status
through a Board-conducted election. In a letter dated November 24, UFCW President
Ernest Duran responded that the parties’ collective-bargaining agreement applied at the
Broomfield store’s new location. Several weeks later, by letter dated December 7, an
attorney for the UFCW informed King Soopers that the UFCW was demanding
recognition as the exclusive bargaining representative of the grocery and delicatessen
employees at the store’s new location, and was also demanding that the current
collective-bargaining agreement be applied at that location.


      Meanwhile, by letter dated September 30, King Soopers notified the Bakery
Workers that King Soopers would not recognize the Bakery Workers at the new
Broomfield store unless and until it won a Board-conducted election. Company Human
Resources Director DiCroce then suggested to the president of the Bakery Workers,
Avron Bergman, that the parties proceed to a card-check as an alternative to a Board
election. Bergman responded that the new store was simply a replacement for the store
that was being closed and that the collective-bargaining agreement between the parties
therefore automatically applied.


      On December 8, King Soopers closed its 120th Avenue store; the next day, it
opened its new store on Sheridan Boulevard. Nearly all the employees from the closed
store transferred to the Sheridan Boulevard store, where they continued to perform the
same jobs under the same work schedules and under the same managers. The new
store was larger and newer, but there were no significant operational differences
between the two stores. King Soopers, however, effected wholesale changes in terms
and conditions of employment when the new store opened; it stopped following the

                                         -5-
terms and conditions of employment embodied in its union contracts, including its
obligation to make contributions to union pension funds and to deduct union dues
pursuant to duly executed union checkoffs, and instead implemented the terms and
conditions that it employed at its nonunion operations.


      Thereafter, Lisa Hughson, a cake decorator at the new store, Store 86, sought
to exercise transfer rights to another Denver-area store but was denied a transfer on the
grounds that Store 86 was outside the Denver bargaining unit and that there were no
contractual transfer rights for her to exercise.


                                           II.


      First, we address the appropriate standard of review. This Court affords the
Board’s order great deference and will enforce the order if the Board correctly applied
the law and if its findings of fact are supported by substantial evidence on the record
as a whole, even if we might have reached a different decision had the matter been
before us de novo. Pace Indus., Inc. v. NLRB, 118 F.3d 585, 590 (8th Cir. 1997)
(internal quotations omitted); Town & Country Elec., Inc. v. NLRB, 106 F.3d 816, 819
(8th Cir. 1997); Universal Camera Corp. v. NLRB, 340 U.S. 474, 490-91 (1951).
Indeed, it is well established that the NLRB has “broad authority to construe provisions
of the Act,” and we must defer to NLRB decisions provided they are “not irrational or
inconsistent with the Act.” NLRB v. Financial Inst. Employees, 475 U.S. 192, 202
(1986).




                                           -6-
      As stated earlier, this case arises out of the relocation of one of King Soopers’
supermarket stores, Store #8, which was originally covered by a collective-bargaining
agreement between King Soopers and UFCW Local 7 and Bakery Workers Local 26.
King Soopers challenges the Board’s finding that this collective-bargaining agreement
applied to its relocated store, Store #86.         We begin our analysis with the
well-established precept of labor law “that for the life of a collective-bargaining
agreement the status of the union as exclusive bargaining representative may not
ordinarily be questioned.” NLRB v. Marine Optical, Inc., 671 F.2d 11, 16 (1st Cir.
1982); see also NLRB v. Rock Bottom Stores, 51 F.3d 366, 370 (2d Cir. 1995)
(explaining this legal principle “is intended to promote industrial peace by stabilizing,
for a reasonable term, a contractual relationship between employer and unit”);
Westwood Import Co. v. NLRB, 681 F.2d 664, 666 (9th Cir. 1982). This long-
standing rule “prohibits employers from petitioning the Board for decertification of a
union and from repudiating the contract or withdrawing recognition from and refusing
to bargain with a union during the term of the collective bargaining agreement” absent
proof of “unusual circumstances.” Rock Bottom, 51 F.3d at 370. A workplace
relocation, the scenario at issue here, is not considered the type of “unusual
circumstance” which prevents the application of this rule. Id. Indeed, as recognized
by the Third Circuit, to conclude otherwise would permit any employer to push “the
Union ...out the door” whenever an employer might opt to “modernize its facility.”
Molded Acoustical Prods., Inc. v. NLRB, 815 F.2d 934, 940 (3d Cir. 1987).


      Thus, when there is a relocation of a workplace covered by an extant collective-
bargaining agreement, the determination of whether that agreement remains in force
after the relocation turns on the “continuity of enterprise” between the old and new

                                          -7-
workplace. See Leach Corp. v. NLRB, 54 F.3d 802, 809 (D.C. Cir. 1995) (recognizing
“the continuity requirement ensures that despite changes in management, plant location
or production techniques, workplace conditions remain sufficiently unchanged such that
the union can still fairly be presumed to command majority support in the unit.”(internal
quotations omitted)); and Rock Bottom, 51 F.3d at 370 (finding in relocation cases
courts look “to evidence regarding the continuity of the bargaining unit and the
employer's operations in order to determine whether the contract should bar a
representation election at the new location”). The following factors have been used by
the Board in determining whether the requisite continuity exists: “(1) continuity of
operational methods, managerial hierarchy, customers, and services or products; (2)
distance between the old and new plants; and (3) changes in either the size, makeup,
or the identity of the employee complement.” Westwood, 681 F.2d at 666. “In light
of the Board's competence in this area, its determination of the composition of a
bargaining unit is generally entitled to our deference.” Marine Optical, 671 F.2d at 16.


      In the instant case, the Board found, and the undisputed evidence revealed, that
the two stores were only a quarter-mile apart, that nearly all the employees from Store
#8 transferred to Store #86, that they worked under the exact same supervision and
management, and that they performed the exact same job. Thus, applying the principles
outlined above, the Board concluded King Soopers violated Section 8(a)(5) and (1) of
the Act by repudiating its recognition of the collective-bargaining agreement after the
relocation.


      King Soopers does not appear to dispute the Board’s finding that there was no
substantial change in operations between the old and new stores. Instead, King

                                          -8-
Soopers maintains the Unions waived their statutory right to continued representation
and contract coverage in the event of a relocation by agreeing to unit descriptions
confined to the address of Store #8. The unit description reads in pertinent part:


      All employees actively engaged in the handling and selling of
      merchandise, including part-time workers who work regularly one (1) day
      or more a week, and delicatessen employees, employed by the Employer
      in the grocery store owned and operated by the Employer at 5150 West
      120th Avenue, Broomfield, Colorado. (emphasis added).

      Again, we begin with the premise that an employee’s right to continued
representation by a union after a relocation is a statutorily protected right. As such, a
waiver of that right must be clear and unmistakable. Marine Optical, 671 F.2d at 16
(finding waiver of a union’s claim to continue representation on relocation of an
employer's plant must be clear and unmistakable); Porta-King Bldg. Sys., Div. of Jay
Henges Enters. v. NLRB, 14 F.3d 1258, 1263-64 (8th Cir. 1994) (finding employer
failed to make clear and unmistakable showing that union waived its right to bargain
over layoffs), citing Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708 (1983).


      To this end, King Soopers maintains that the aforementioned address-specific
recognition clause was agreed upon by the parties and it, along with the bargaining
history of the parties, constitutes a waiver like that discussed by this Court in NLRB
v. Waymouth Farms, 172 F.3d 598 (8th Cir. 1999). King Soopers’ argument lacks both
the factual and legal predicate to withstand this Court’s scrutiny. While King Soopers
repeatedly points to the parties’ bargaining history as evidence of a knowing waiver of
the Unions’ statutory rights, the record is completely devoid of evidence to suggest the


                                          -9-
parties ever discussed the recognition clause in the context of waiving future statutory
rights, as opposed to simply agreeing to it as an adequate description of the unit. For
instance, there is nothing in the record to suggest that the parties discussed the potential
legal consequences of a possible future relocation of Store #8. Nor is there evidence
in the record to suggest that the Unions agreed that the unit employees would forfeit all
rights to union representation and continued contract coverage under the Act if King
Soopers relocated the store a quarter mile away. Absent such evidence, the Board’s
conclusion that the address-specific recognition clause cannot be seen as a clear and
unmistakable waiver of the Unions’ statutory rights to continued representation is a
sound application of settled law. Marine Optical, 671 F.2d at 16 (finding street address
in unit description, alone, did not constitute a waiver).


       Moreover, juxtaposing King Soopers’ evidence of waiver to that before the
Court in Waymouth Farms, the case on which the Company principally relies, it is
apparent that the ruling in Waymouth Farms is not the talisman King Soopers’ purports
it to be. There, the bargaining history indisputably showed that in exchange for the
union’s agreement to limit recognition to the plants in one city, the employer agreed to
a union security clause. The Board’s administrative law judge found:


       One provision in the agreement, union security, was reached as part of a
       compromise in which the Union agreed that, if the Employer were to
       move away from Plymouth, or open new facilities, or, as the parties put
       it, “go across the street,” then the Union would lose its right to
       recognition and its contract would be void. The Union was well aware
       that this was the interpretation of the Respondent throughout the
       negotiations.



                                           -10-
Waymouth Farms, 324 NLRB 960, 966 n. 5 (1997). Similarly, the recognition clause
in Waymouth Farms clearly and unambiguously stated that the employer recognized the
union at “its Plymouth, Minnesota plants, and at no other geographic locations.” 172
F.3d at 601 (emphasis added). In fact, in that case there was no real dispute over
whether the union intended to waive the statutory rights in the event of relocation.
Waymouth Farms, 324 NLRB at 966. Instead, at issue was whether the waiver was
void where the company failed to provide timely notice of the subsequent plant
relocation. Waymouth Farms, 172 F.3d at 600-01.


         Accordingly, the Board reasonably concluded that this Court’s ruling in
Waymouth Farms did not alter the outcome of this case, and King Soopers’ defense of
waiver should be rejected where there are no facts to support a finding of a clear and
unmistakable waiver. Instead, the record facts constitute substantial evidence for the
Board’s conclusion that the bargaining unit survived the relocation of the Broomfield
Store.


                                           III.


         For the reasons stated herein, the order of the National Relations Labor Board
is enforced in full.




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A true copy.


      Attest:


               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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