Economy Furniture, Inc.

National Labor Relations Board - Board Decisions

Jun 13, 1969

176 N.L.R.B. 624 (N.L.R.B. 1969)

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.