Wickes Furniture, A Division of the Wickes Corporation

National Labor Relations Board - Board Decisions

May 25, 1982

261 N.L.R.B. 1062 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wickes Furniture, A Division of the Wickes Corpo-
ration and United Steelworkers of America,
AFL-CIO-CLC. Case 6-CA-14989
May 25, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
Upon a charge filed on October 13, 1981, by
United Steelworkers of America, AFL-CIO-CLC,
herein called the Union, and duly served on
Wickes Furniture, A Division of the Wickes Cor-
poration, herein called Respondent, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 6, issued a com-
plaint on November 12, 1981, against Respondent,
alleging that Respondent had engaged in and was
engaging in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(5) and
(1) and Section 2(6) and (7) of the National Labor
Relations Act, as amended. Copies of the charge
and complaint and notice of hearing before an ad-
ministrative law judge were duly served on the
parties to this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on September
14, 1981, following a Board election in Case 6-RC-
8864, the Union was duly certified as the exclusive
collective-bargaining representative of Respond-
ent's employees in the unit found appropriate;' and
that, commencing on or about October 4, 1981, and
at all times thereafter, Respondent has refused, and
continues to date to refuse, to bargain collectively
with the Union as the exclusive bargaining repre-
sentative, although the Union has requested and is
requesting it to do so. On November 23, 1981, Re-
spondent filed its answer to the complaint admit-
ting in part, and denying in part, the allegations in
the complaint.
On February 16, 1982, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on February
22, 1982, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for Sum-
mary Judgment should not be granted. Respondent
thereafter filed a response to General Counsel's
Motion for Summary Judgment.
I Official notice is taken of the record in the representation proceed-
ing, Case 6-RC 8864, as the term "record" is defined in Sees. 102.68 and
102.69(g) of the Board's Rules and Regulations, Series 8, as amended. See
L7'V Electrosystems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th
Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415
F.2d 26 (5th Cir. 1969); Intertype Co. v Penello, 269 F.Supp. 573
(D.C.Va. 1967); F'ollett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91
(7th Cir 1968); Sec. 9(d) of the NLRA, as amended.
261 NLRB No. 151
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
In its answer to the complaint, Respondent
denies that the Union has requested bargaining, and
that it has failed and refused to recognize and bar-
gain with the Union as the exclusive collective-bar-
gaining representative of its employees in an appro-
priate unit. However, counsel for the General
Counsel has submitted as Exhibit A, attached to
the Motion for Summary Judgment, a letter from
the Union to Respondent, dated September 22,
1981, in which the Union requested Respondent to
bargain in the unit stipulated to be appropriate in
Case 6-RC-8864. Counsel for the General Counsel
has also attached as Exhibit B a letter from Re-
spondent to the Union, dated October 19, 1981, in
which Respondent takes the position that, because
the Board's certification of the Union was improp-
er, it will "pursue this issue further through legal
channels." In its response to the General Counsel's
Motion for Summary Judgment, Respondent does
not dispute the authenticity of these letters, nor
does it contend that a factual issue has been raised
regarding the request and refusal to bargain. Re-
spondent argues instead that it is free to relitigate
issues raised in the representation proceeding be-
cause the section of the Board's Rules and Regula-
tions relied on by the General Counsel is not con-
trolling in this case. Respondent further contends
that recent decisions of the Supreme Court and
Seventh Circuit Court of Appeals require reconsid-
eration of the Hearing Officer's credibility resolu-
tions and his determination that employee Kather-
ine Smith is a confidential employee.
Review of the record herein, including the
record in Case 6-RC-8864, reveals that an election
conducted pursuant to a Stipulation for Certifica-
tion Upon Consent Election on November 24,
1980, resulted in a vote of 31 for, and 29 against,
the Union, with 3 determinative challenged ballots.
Thereafter, Respondent filed timely objections to
the election, and the Regional Director directed a
Hearing on Objections and Challenged Ballots. At
the commencement of the hearing, however, Re-
spondent moved to withdraw its objections to the
election. The Hearing Officer granted this motion.
Following the close of the hearing, the Hearing
Officer issued his Report on Objections and Chal-
lenges, in which he recommended that two of the
challenges be sustained and, as the third ballot was
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WICKES FURNITURE
no longer determinative of the election's results,
that a certification of representative be issued. In so
recommending, the Hearing Officer found that
challenged voter Katherine Smith was a confiden-
tial employee and should be excluded from the
unit. Thereafter, Respondent filed exceptions to the
Hearing Officer's report in which it set forth var-
ious arguments for its contention that the Hearing
Officer erred in sustaining the challenge to Kather-
ine Smith's ballot. On September 14, 1981, the
Board, having considered the Hearing Officer's
report, the Employer's exceptions thereto, and the
entire record, adopted the findings and recommen-
dations of the Hearing Officer, as modified, and
certified the Union as the exclusive bargaining
agent of the employees in the unit stipulated to be
appropriate.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or spe-
cial circumstances a respondent in a proceeding al-
leging a violation of Section 8(a)(5) is not entitled
to relitigate issues which were or could have been
litigated in a prior representation proceeding. 2
All issues raised by Respondent in this proceed-
ing were or could have been litigated in the prior
representation proceeding, and Respondent does
not offer to adduce at a hearing any newly discov-
ered or previously unavailable evidence. Respond-
ent's allegation that special circumstances exist
herein which require the Board to reexamine the
decision made in the representation proceeding is
without merit.3 We therefore find that Respondent
2 In this proceeding Respondent notes that the General Counsel relies
on Sec 102 67(f) of the Board's Rules and Rcgulalions, Series 8. as
amended, in support of the proposition that Respondent is precluded
from relitigating issues which were or could have been litigated in a prior
representation proceeding That section, by its terms, applies to requests
for review of regional directors' decisions, and provides that the denial of
such a request for review will preclude relitigation in any related subse-
quent unfair labor practice of any issues that were or could have been
raised in the representation proceeding Respondent argues that since the
General Counsel cites Sec. 102.67(f) in his Motion for Summary Judg-
ment, and since that section is not controlling here, because in this pro-
ceeding the Board, rather than the Regional Director, issued a decision,
that a hearing should therefore be held on the unfair labor practice com-
plaint. We disagree. Although Respondent is correct that Sec. 102.67(f) is
not applicable in this case, the policy considerations which bar such reli-
tigation apply with equal force whether the representation proceeding in-
volves a decision made in the first instance by the Board, a regional di-
rector's decision which the Board has declined to review, a regional di-
rector's report which the Board has adopted, or, as here, a hearing offi-
cer's report which the Board has adopted. See Pittsburgh Plate Glass Co.
v. N.LR.B., 313 U.S. 146, 162 (1941).
3 Respondent contends that cases decided by the Supreme Court and
by the Seventh Circuit Court of Appeals subsequent to our earlier deci-
sion in this case constitute such special circumstances. We disagree. In
.VL.R.B v. Hendricks County Rural Electric Membership Corporation, 108
LRRM 3105, 92 LC 1 13,098 (1981), the Court approved the Board's use
of the "labor nexus test" in determining whether an employee comes
within the category of "confidential employee." This test was properly
applied by the Hearing Officer, who expressly found that employee
Smith "assists Store Manager Vargo in a confidential capacity with re-
spect to his involvement in labor relations matters." In Edward Kopack v
NLR.B., 668 F.2d 946 (1982), the Seventh Circuit found no merit in the
has not raised any issue which is properly litigable
in this unfair labor practice proceeding. According-
ly, we grant the Motion for Summary Judgment.
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACTI
I. THE BUSINESS OF RESPONI)ENT
Wickes Furniture, A Division of the Wickes
Corporation, a Delaware corporation with a facili-
ty located in Coraopolis, Pennsylvania, is engaged
in the operation of a chain of retail furniture stores.
During the 12-month period ending August 31,
1981, Respondent, in the course and conduct of its
operations at its Coraopolis facility derived gross
revenues in excess of $500,000. During this same
period Respondent purchased and received at its
Coraopolis facility products, goods, and materials
valued in excess of $50,000 directly from points
outside the Commonwealth of Pennsylvania.
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material
herein, an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act, and
that it will effectuate the policies of the Act to
assert jurisdiction herein.
II. THE L ABOR ORGANIZATION INVOILVI-D
United Steelworkers of America, AFL-CIO-
CLC, is a labor organization within the meaning of
Section 2(5) of the Act.4
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All full-time and regular part-time office cleri-
cal, sales, warehouse and repairmen employees
contention that the Board had improperly dismissed certain 8(a)(3) allega-
tions. The court offered no criticism of the Board's policy against over-
rulinlg a hearing officer's credibility resolutions unless the clear prepon-
derance of all relevant evidence convinces us that the resolutions were
incorrect. Accordingly, we reject Respondent's contention that these
cases raise special circumstances requiring the Board to reexamine its de-
cision in the underlying representation case.
4 In its answer to the complaint, Respondent averred that it was "with-
out knowledge or information sufficient to form a belief as to" whether
United Steelworkers of America, AFL CIO-CLC, is a labor organiza-
tion within the meaning of Sec. 2(5) of the Act. We note that Respondent
failed to raise this issue in the underlying representation case, and thus is
precluded from litigating the matter in this proceeding See fn 2, supra
Moreover, we take administrative notice of the fact that United Steel-
workers of America, AFL-CIO-CLC, is a labor organization within the
meaning of Sec 2(5) of the Act.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employed by the Employer at its Coraopolis,
Pennsylvania, facility; excluding guards, pro-
fessional employees and supervisors as defined
in the Act. 5
2. The certification
On November 24, 1980, a majority of the em-
ployees of Respondent in said unit, in a secret-
ballot election conducted under the supervision of
the Regional Director for Region 6, designated the
Union as their representative for the purpose of
collective bargaining with Respondent.
The Union was certified as the collective-bar-
gaining representative of the employees in said unit
on September 14, 1981, and the Union continues to
be such exclusive representative within the mean-
ing of Section 9(a) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about September 22, 1981,
and at all times thereafter, the Union has requested
Respondent to bargain collectively with it as the
exclusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about October 4, 1981, and continu-
ing at all times thereafter to date, Respondent has
refused, and continues to refuse, to recognize and
bargain with the Union as the exclusive representa-
tive for collective bargaining of all employees in
said unit. 6
Accordingly, we find that Respondent has, since
October 4, 1981, and at all times thereafter, refused
to bargain collectively with the Union as the exclu-
sive representative of the employees in the appro-
priate unit, and that, by such refusal, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) and (1)
of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its oper-
ations described in section 1, above, have a close,
intimate, and substantial relationship to trade, traf-
5 In its answer to the complaint, Respondent denies that the above-de-
scribed unit is appropriate for the purpose of collective bargaining within
the meaning of Sec. 9(b) of the Act. We note, however, that in Case 6
RC-8864 Reslxpondent stipulated to the appropriateness of this unit
a In its October 19, 1981, letter to the Union, Respondent clearly re-
fused to bargain, indicating that it considered the Board's certification of
the Union improper. Respondent also stated therein that "This letter will
confirm our telephone conversation relative to bargaining with the Steel-
workers Union." We are satisfied from a reading of this letter, and Re-
spondent's admission that it received a telephone call from the Union's
assistant general counsel on October 4, 1981, that the letter merely con-
firmed Respondent's earlier refusal to bargain which occurred on Octo-
ber 4, 1981.
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of com-
merce.
V. THE REMEDY
Having found that Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act, we
shall order that it cease 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 ap-
propriate unit will be accorded the services of their
selected bargaining agent for the period provided
by law, we shall construe the initial period of certi-
fication as beginning on the date Respondent com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the ap-
propriate unit. See Mar-Jac Poultry Company, Inc.,
136 NLRB 785 (1962); Commerce Company d/b/a
Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328
F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817;
Burnett Construction Company, 149 NLRB 1419,
1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCI USIONS F01 LAW
i. Wickes Furniture, A Division of the Wickes
Corporation, is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act.
2. United Steelworkers of America, AFL-CIO-
CLC, is a labor organization within the meaning of
Section 2(5) of the Act.
3. All full-time and regular part-time office cleri-
cal, sales, warehouse and repairmen employees em-
ployed by the Employer at its Coraopolis, Pennsyl-
vania, facility; excluding guards, professional em-
ployees and supervisors as defined in the Act, con-
stitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b)
of the Act.
4. Since September 14, 1981, the above-named
labor organization has been and now is the certified
and exclusive representative of all employees in the
aforesaid appropriate unit for the purpose of collec-
tive bargaining within the meaning of Section 9(a)
of the Act.
5. By refusing on or about October 4, 1981, and
at all times thereafter, to bargain collectively with
the above-named labor organization as the exclu-
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WICKES FURNITURE
sive bargaining representative of all the employees
of Respondent in the appropriate unit, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) of the
Act.
6. By the aforesaid refusal to bargain, Respond-
ent 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 has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) 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.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Wickes Furniture, A Division of the Wickes Cor-
poration, Coraopolis, Pennsylvania, its officers.
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with United Steelwork-
ers of America, AFL-CIO-CLC, as the exclusive
bargaining representative of its employees in the
following appropriate unit:
All full-time and regular part-time office cleri-
cal, sales, warehouse and repairmen employees
employed by the Employer at its Coraopolis,
Pennsylvania, facility; excluding guards, pro-
fessional employees and supervisors as defined
in the Act.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act.
2. Take the following affirmative action which
the Board finds 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 under-
standing in a signed agreement.
(b) Post at its Coraopolis, Pennsylvania, facility
copies of the attached notice marked "Appendix." 7
7 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
Copies of said notice, on forms provided by the
Regional Director for Region 6, after being duly
signed by Respondent's representative, shall be
posted by Respondent 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 Re-
spondent to ensure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 6, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
iant to a Judgmnent of the United States Court of Appeals Enforcing an
Order of the National l.ahor Relations Board"
APPENDIX
NOTICE To EMPLOYEES
PoSrilt) BY ORDER OF TH:.
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE Wll. NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and
other terms and conditions of employment
with United Steelworkers of America, AFL-
CIO-CLC, as the exclusive representative of
the employees in the bargaining unit described
below.
WE WIl.I. NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WIL l upon request, bargain with the
above-named Union, as the exclusive repre-
sentative of all employees in the bargaining
unit described below, with respect to rates of
pay, wages, hours, and other terms and condi-
tions of employment and, if an understanding
is reached, embody such understanding in a
signed agreement. The bargaining unit is:
All full-time and regular part-time office
clerical, sales, warehouse and repairmen em-
ployees employed by us at out Coraopolis,
Pennsylvania facility; excluding guards, pro-
fessional employees and supervisors as de-
fined in the Act.
WICKES FURNITURE, A DIVISION OF
THE WICKES CORPORATION
1065