Economy Furniture, Inc.

624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Economy Furniture, Inc. and Upholsterers' International Union of North America, AFL-CIO. Case 23-CA-3184 June 13, 1969 DECISION AND ORDER By MEMBERS FANNING, JENKINS, AND ZAGORIA On March 19, 1969, Trial Examiner Paul E. Weil issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner' s Decision . Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. The General Counsel filed limited exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in this case , and hereby adopts the findings, conclusions,' and recommendations' of the Trial Examiner, as herein modified. AMENDED CONCLUSIONS OF LAW We adopt the Conclusions of Law from the Trial Examiner's Decision, with the following modification: 1. In Conclusion 5, amend the last line to read "of Section 8(a)(5) of the Act, and the resultant strike is an unfair labor practice strike." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that the Respondent, Economy Furniture, Inc., Austin, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified. 1. Reletter paragraphs 2(b) and 2(c) as paragraphs 2(c) and 2(d), respectively. 'Although the Trial Examiner found that Respondent's workers were currently engaged in an unfair labor practice strike , he failed to state this as a conclusion of law. 'The Trial Examiner failed to provide in his recommended Order a prospective order requiring Respondent to reinstate unfair labor practice strikers upon their unconditional offer to return to work. 2. Add the following as new paragraph 2(b): "(b) Upon application, offer immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, to all those employees who went on strike on November 27, 1968, or thereafter, dismissing if necessary any persons hired on or after November 27, 1968." 3. After the fourth indented paragraph of the section entitled "Appendix" insert the following: WE WILL, upon application , offer all employees who went on strike on November 27, 1968, or thereafter, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, dismissing if necessary any persons hired on or after November 27, 1968. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE PAUL E. WEIL, Trial Examiner: Upon the filing of a charge by Upholsterers ' International Union of North America, AFL-CIO, hereinafter called the Union, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 23, issued a complaint on December 5, 1968, alleging that Economy Furniture, Inc., hereinafter called Respondent, had engaged in and was engaging in unfair labor practices within the meaning of Sections 8(a)(1) and (5) and 2(6) and (7) of the National Labor Relations Act, as amended. Thereafter the Respondent filed an answer to the complaint admitting certain allegations but denying the commission of any unfair labor practices . On December 9, 1968, the General Counsel issued an amendment to the complaint alleging that certain employees of Respondent were engaged in an unfair labor practice strike. On January 9, 1969, the parties to this proceeding filed with the Chief Trial Examiner a stipulation of facts and record providing that the case be submitted by stipulation without a trial on the unfair labor practice complaint to an assigned Trial Examiner to rule upon a legal issue stipulated as that presented by the case . The stipulation further provided for the right of all parties to file briefs with the Chief Trial Examiner . Briefs have been filed by Respondent and the General Counsel . Upon the basis of the Stipulation of Facts, the briefs , and the entire record in this matter as stipulated by the parties, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is a Texas corporation engaged at Austin, Texas, in the manufacture and sale of furniture . During its past fiscal year, a representative period, Respondent sold and shipped goods valued in excess of $50,000 directly to points outside the State of Texas. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 176 NLRB No. 80 ECONOMY FURNITURE, INC. 625 11. THE LABOR ORGANIZATION INVOLVED The Union is and at all times herein has been a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The Representation Cases Pursuant to a Stipulation for Certification Upon Consent Election approved by the Regional Director for Region 23 an election was conducted on May 17, 1968, in a unit stipulated by the parties to be appropriate for purposes of collective bargaining consisting of all production and maintenance employees, including plant clerical employees, regular part-time employees, leadmen, truckdrivers, and shipping and receiving employees but excluding office clerical employees, guards, watchmen and supervisors as defined in the Act. The Union received a majority of the votes cast. Respondent filed timely Objections to Conduct Affecting the Results of the Election upon which the Regional Director, after investigation, issued a Report and Recommendation that the objections be overruled in their entirety and a certification be issued to the Union. Respondent timely and duly filed its exceptions to the Regional Director's Report and Recommendations and the Board on October 14, 1968, issued its Decision and Certification of Representative adopting the Regional Director's recommendation and certifying the Union. considered it and concluded that it was not sufficient to require setting aside the election. Respondent, although in the instant proceeding it had an opportunity to do so, has proffered no additional evidence, either newly discovered or otherwise, and has agreed that no additional evidence is to be considered. While Respondent has complained that it was denied a hearing on its objections, as the General Counsel points out, if in fact it should have had one, it has waived its right thereto in the instant proceeding. Accordingly, Respondent relies on precisely the same evidence which the Board has already considered. In this state of the case I deem myself bound by the decision of the Board in the representation case. Respondent's argument could have validity if it had presented evidence not available to the Board, or demonstrated special circumstances requiring reevaluation of the matter,' but this it has not done. I find, therefore, that the Union is the duly certified representative of the employees in a unit which is stipulated by all parties to be appropriate for collective bargaining. The Refusal To Bargain As stipulated by the parties, the Union requested Respondent to engage in collective bargaining for the certified unit and Respondent refused on the ground that the certification was invalid . Inasmuch as the certification appears to be valid I find that since the issuance of the certification on October 14, 1968, Respondent has refused to bargain collectively with the Union in violation of Section 8(a)(l) and (5) of the Act. The Unfair Labor Practice Case Respondent has at all times refused to meet and bargain with the Union, although the Union has requested such bargaining;' Respondent contends that the certification is invalid and unenforceable. On November 27, 1968, certain of the Respondent's employees struck because of its failure to meet and bargain with the Union, which strike continues to the date of the stipulation. The Union thereafter filed its charge and complaint issued as set forth above. Discussion Respondent argues herein that the Board 's disposition of the objections in the representation case is contrary to law and incorrect, and urges the Trial Examiner to reevaluate the evidence and reach the opposite conclusion. The Respondent ingeniously argues that the Trial Examiner is bound by current, well-established Board law, but not by the Board's Decision in the representation case because "it is based upon clearly erroneous legal conclusions," and states ". . it is clear that both the Regional Director and the Board were unable to read and/or understand, and thereby ignored, the clear and undisputed proof of substantial and material pre-election misrepresentations. . . ." While it is startling to find such an unwarranted and gratuitous insult to the Board and the Regional Director in a pleading signed by a member of the Bar, it is enough to say that the Boards Decision, as well as the Regional Director's, clearly reveal that not only did they read and understand the evidence, but duly The complaint states that the request for bargaining was made on or about October 16. This is denied by Respondent's answer. The stipulation establishes no date. The Strike The parties stipulated that commencing November 27, 1968, certain of the Company's employees struck because of the Company's failure to meet and/or bargain with the Union and this strike is continuing to this date. Inasmuch as I have found above that the Company had a duty to meet and bargain with the Union at all times since October 14, 1968, and that its failure to meet this duty constitutes an unfair labor practice under Section 8(a)(5) and (1) of the Act it follows that the strike which resulted from the Respondent's failure to bargain with the Union is an unfair labor practice strike. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with its operations described in section 1, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, I shall recommend that it cease 'Pittsburgh Plate Glass Company v. N.L R. B., 313 U.S. 146, 161-162; Southwestern Portland Cement Company, 169 NLRB No. 39, enfd. 407 F.2d 131 (C.A. 5); Tennessee Packers. Inc. Frosty Morn Division, 154 NLRB 819, enfd 379 F.2d 172, 179 (C.A. 6), cert. denied 389 U.S. 958; Paper Art Company. Inc, 173 NLRB No. 140. 626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and desist therefrom and upon request bargain collectively with the Union as the exclusive representative of all employees in the appropriate unit and if an understanding is reached embody such understanding in a signed agreement. In order to insure that the employees in the appropriate unit will be accorded the services of their selected bargaining agent for the period provided by law, I shall recommend that the initial year of certification be construed as beginning on the date the Respondent commences to bargain in good faith with the Union as the recognized bargaining representative in the appropriate unit. Conclusions of Law 1. Economy Furniture, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Upholsterers' International Union of North America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees , including plant clerical employees, regular part-time employees, leadmen, truckdrivers, and shipping and receiving employees employed by Economy Furniture, Inc., at its plant located at 9315 McNeil Road, Austin, Texas, but excluding office clerical employees , guards, watchmen and supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since October 14, 1968, the above-named labor organization has been certified as the exclusive representative of all employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing at all times since October 14, 1968, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employees of Respondent in the appropriate unit, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain Respondent has interfered with , restrained , and coerced and is interfering with, restraining, and coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act and thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(l) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings and conclusions and upon the entire record in the case , I recommend that the Board issue the following: ORDER Economy Furniture, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning wages, hours, and other terms and conditions of employment with Upholsterers' International Union of North America, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees, including plant clerical employees, regular part-time employees, leadmen, truckdrivers, and shipping and receiving employees employed by Economy Furniture, Inc., at its plant located at 9315 McNeil Road, Austin, Texas, but excluding office clerical employees , guards, watchmen and supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Upon request bargain with the above-named labor organization as the exclusive representative of all employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment and if an understanding is reached embody such understanding in a signed agreement. (b) Post at its Austin, Texas, place of business copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Director for Region 23, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 23, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.' 'In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice . In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." 'In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read : "Notify the Regional Director for Region 23, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT refuse to bargain collectively with Upholsterers' International Union of North America, AFL-CIO, as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL upon request bargain with the above-named Union as the exclusive representative of all the employees in the bargaining unit described below with ECONOMY FURNITURE, INC. respect to rates of pay, wages, hours, and other terms and conditions of employment and if an understanding is reached embody such understanding in a signed agreement . The bargaining unit is: All production and maintenance employees, including plant clerical employees , regular part-time employees, leadmen, truckdrivers, and shipping and receiving employees employed by Economy Furniture, Inc., at its plant located at 9315 McNeil Road, Austin , Texas, but excluding office clerical employees , guards, watchmen and supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. Dated By ECONOMY FURNITURE, INC. (Employer) 627 (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered , defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 6617 Federal Office Building, 515 Rusk Avenue, Houston, Texas 77002, Telephone 713-226-4296.