Stone & Thomas

National Labor Relations Board - Board Decisions

Nov 21, 1975

221 N.L.R.B. 573 (N.L.R.B. 1975)

STONE & THOMAS
Stone & Thomas and International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Help-
ers of America , Local Union 697. Case 6-CA-7357
November 21, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
Upon charges duly filed, the General Counsel of
the National Labor Relations Board, by the Regional
Director for Region 6, issued a complaint and notice
of hearing, dated May 22, 1974, against Stone &
Thomas (hereinafter called Respondent). The com-
plaint alleged that Respondent had engaged in
certain unfair labor practices affecting commerce
within the meaning of Section 8(a)(1) and (5) and
Section 2(6) and (7) of the National Labor Relations
Act, as amended. Copies of the charges and
complaint and notice of hearing were duly served on
the parties. Respondent filed an answer to the
complaint, admitting certain factual allegations of
the complaint but denying the commission of any
unfair labor practices, and requesting that the
complaint be dismissed. Additionally, Respondent
filed a request for a stay of proceedings, contending
that the instant proceedings should be held in
abeyance pending the final ruling by the United
States Circuit Court of Appeals for the Fourth
Circuit on the validity of the certification in Stone &
Thomas, Case 6-CA-6613.1
Thereafter, the parties entered into a stipulation of
facts and jointly petitioned the Board to transfer this
proceeding directly to itself for findings of fact,
conclusions of law, and order. The parties stipulated
that they waived the hearing before an Administra-
tive Law Judge, the making of findings of fact and
conclusions of law by an Administrative Law Judge,
and the issuance of an Administrative Law Judge's
decision, and that no oral testimony was necessary or
desired by any of the parties. The parties also agreed
that the original and amended charge, complaint,
answer to complaint, and the stipulation of facts
constitute the entire record in this case.
On July 24, 1974, the Board issued its order
approving stipulation and transferring the proceed-
i Since the duty to bargain following Board certification is neither
obliterated nor stayed pending an appeal of the Board's Order in a court of
appeals, we find no merit in, and hereby deny, such motion. (See Regal
Aluminum, Inc., 190 NLRB 468 (1971).) Moreover, in Stone & Thomas, 221
NLRB 567, Case 6-CA-6613, issued this date , in our Supplemental
Decision and Order on Remand , we reaffirmed our earlier findings that
Respondent Stone & Thomas was, and is, required to bargain with the
Union.
2 We have considered such decision in Stone & Thomas, 221 NLRB
567. (See fn. 1, supra.)
3 We interpret General Counsel's statement that "It should be noted that
221 NLRB No. 115
573
ing to the Board. Thereafter, the General Counsel
and Respondent filed briefs in support of their
positions. Subsequently, Respondent filed a motion
to reopen the record, dated October 2, 1974, to
include the decision of the Fourth Circuit Court of
Appeals,2 issued September 10, 1974, and to include
the affidavit of Harry J. Robbin, Respondent's
president .3
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the stipulation, the
exhibits, the briefs, and the entire record in this
proceeding, and hereby makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
The Respondent, a West Virginia corporation, with
its principal offices located in Wheeling, West
Virginia, is engaged in the operation of retail
department stores. During the past 12 months,
Respondent's gross volume of business was in excess
of $500,000 and, during this same period, Respon-
dent purchased goods and materials valued in excess
of $50,000 directly from points outside the State of
West Virginia for use within the State of West
Virginia. We find, on the basis of the foregoing, that
Respondent 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 LABOR ORGANIZATION INVOLVED,
The parties stipulated, and we find, that the
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local
Union No. 697, hereinafter called the Union, is a
labor organization within the meaning of Section 2(5)
of the Act.
reinstatement of the work to employees would not involve large capital
outlays or expenses by the Respondent" to mean that such evidence is not
present in the record. Since the General Counsel's argument that
reinstatement would not entail significant additional expense is based upon
the record (or, more appropriately, upon the lack of such evidence in the
record indicating such expense), we disagree with Respondent's contention
that the affidavit is necessary since "the brief on behalf of the General
Counsel sought to go outside the record." Accordingly, we hereby deny
Respondent's motion to include the Robbin affidavit since such affidavit
presents no new issues or matters not available to the parties at the time of
the stipulation.
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES-
A. The Stipulated Facts
On November 30, 1972 , in a Board-conducted
election , a majority of the employees in a unit of
furniture warehousemen and central receiving de-
partment employees at Respondent 's warehouse in
Wheeling, West Virginia, selected the Union as their
collective-bargaining representative . The Union was
certified by the Regional Director ,4 over Respon-
dent's"objections , and the Board denied Respon-
dent's request for review of the -Regional Director's
decision . Subsequently , Respondent refused to recog-
nize and bargain with the Union . The Board issued a
complaint 5 and, in response , Respondent reiterated
its objections to conduct affecting the election and
renewed its challenge to the Board 's unit finding. On
August 7 , 1973, on General Counsel 's motion for
summary judgment, the Board issued an Order
requiring Respondent to bargain .6 On August 17,
1973,' Respondent notified the Regional Director of
its intention not to comply with the Board ' s Order
until such Order would be enforced by a court of
appeals . On October 3, 1973 , the Board's application
for enforcement of its order-was filed in the Fourth
Circuit , After argument on June 4, 1974 , the court
denied enforcement on September. 10, 1974, and
remanded the proceedings to the Board to • redeter-
mine whether the offer of the Union to reduce the
initiation fee was violative of the rule enunciated in
N.L.R.B. v. Savair Manufacturing Co., 414 U.S. 270
(1973).7 On May 28 , 1974 , the Board filed a motion
for temporary relief, pursuant to Section 10(e) of the
Act, seeking to enjoin Respondent from transferring
work and employees out of the unit without
bargaining with the Union . On June 4; a stipulation
was entered into by Respondent and the Board
providing for an Order granting such temporary
relief as the Board sought in its motion , without
admitting that Respondent had , engaged -in any
violation of the Act. Accordingly , on June 4, 1974,
the court ordered that Respondent be enjoined and
restrained from making any further transfers of unit
work or employees to locations other than the
Wheeling, West Virginia, warehouse (i.e., in addition
to those made prior to May 1974) or instituting any
other change or changes in terms or conditions of
employment of employees engaged in unit work at
the warehouse without, in either case , first affording
the Union an opportunity to bargain with respect
thereto , or obtaining prior approval of the court. _
4 Case 6-RC-6218.
5- Case 6-CA-6613
6 205 NLRB 298
'Prior to- August 31, 1970, receiving and marking
merchandise for the Wheeling-based stores of Re-
spondent - (Wheeling, Elm Terrace, and Weirton
stores) was performed at the Wheeling store on the
seventh floor. Prior to that date, receiving and
marking of merchandise for the Clarksburg store was
performed in that (Clarksburg) store.
The parties stipulated that if called to testify, Harry
Robbin, president of Respondent, would testify as
follows: In anticipation of the November 1970
opening of a store at Fairmont, West Virginia, to be
operated as a branch of the-Clarksburg operation,
the store superintendent at Wheeling recommended
to Robbin that it would be practical to centralize all
receiving and marking operations at Wheeling, to be
performed at the warehouse in Wheeling. "Reluctant
approval" was given by management to the recom-
mendation. Accordingly, to prepare for the opening
of the Fairmont store, the Clarksburg receiving and
marking operations were discontinued and the-
receiving and marking operations at the Wheeling
store were transferred to the warehouse in Wheeling.
Consequently, receiving and marking operations for
the Wheeling area stores and the Clarksburg and
Fairmont stores would all be performed at the
Wheeling warehouse. This resulted in the immediate
transfer of 26 store-based Wheeling employees to the
warehouse in Wheeling and the subsequent transfer
of five additional store-based employees to the
warehouse. Two of these employees were subse-
quently transferred back to the Wheeling' store. The
stipulation further provides that if Robbin were to
testify he would state that, shortly before the union
organizing drive in July 1972, the Wheeling manage-
ment-had concluded that the centralized operations
had, not proved to be satisfactory because the
physical separation of the receiving and marking
operations from the Wheeling store, resulted in
delays, more marking errors, and increased costs
because of additional handling and `trucking costs;
the shuttling of merchandise now receivedat Wheel-
ing and requiring retransfer to Clarksburg (for use at
Clarksburg and Fairmont) caused delay and addi-
tional expense, as against the former, procedure of
direct merchandise shipment for Clarksburg to the
Clarksburg store; Respondent was experiencing
additional operational difficulties 'because no one
was immediately available to assume the warehouse
responsibilities of the superintendent at Wheeling
who had recently died; and the energy crisis, which
started in November, became, increasingly severe,
limited the availability of gasoline and increased the
cost of shuttling the truck to Clarksburg (with
7 The court, however, found that the Board did not abuse its discretion
in certifying the warehouse unit and found that all objections by
Respondent other than the Savair issue were wholly without ment.
STONE & THOMAS 575
merchandise now received and marked at the
Wheeling warehouse for the Clarksburg/Fairmont
stores). Respondent had maintained the status quo
due to the union organizing drive but, after serious
consideration of the ramifications of the problems of
its "centralized" operation which had been drastical-
ly exacerbated- by the energy problem, decided to
discontinue the centralized operation and provide for
Clarksburg/Fairmont merchandise to be received
and marked at Clarksburg rather than at the
Wheeling warehouse.
In February, Respondent decided to transfer
certain receiving and marking functions then per-
formed at the Wheeling warehouse on merchandise
for sale at the Clarksburg/Fairmont stores to
Respondent's Clarksburg location. Respondent uni-
laterally decided to, and in fact did, transfer" such
work to the Clarksburg location without prior
consultation or negotiation with the Union concern-
ing the decision and/or effect of such transfer of
work. If called to testify, the stipulation provides,
Robbin would have testified that no such consulta-
tion or negotiations were held because of Respon-
dent's pending contest Of, the Board's order in the
Fourth Circuit.
On February 27, 1974, Respondent met at the
warehouse with the 16 employees who were expected
to be affected.8 A , statement by President Robbin
was read to the employees explaining that Respon-
dent was forced to ship merchandise directly to the
Clarksburg and Fairmont stores rather than to
Wheeling for reshuttling due to the energy crisis, and,
consequently, a reduction in force at the Wheeling
warehouse would result. The employees were then
offered the choice of (1) transfer to one of Respon-
dent's stores in the Wheeling area in a job as closely
related to the employee's skill as possible; (2) transfer
to the receiving, marking, and warehousing depart-
ment in Clarksburg; or (3) in the event that neither of
these choices would be -agreeable, the employee
could be placed "on call" for reemployment in the
Wheeling receiving, marking, and warehousing de-
partment as vacancies in that department occurred.
The employees present then ' signed option slips.
Respondent also read the statement to all other
employees at the warehouse, although' they were not
directly affected, for informational purposes.9
On February 28, 1974, the attorney for the Union
spoke to Respondent's attorney and objected that
Respondent had not talked to the Union about this
issue, and asked to bargain over the matter. Respon-
dent's attorney advised that Respondent "could
hardly have been expected to do so in light of the
pending case before the Fourth Circuit." As of the
date of the stipulation, approximately 9' employees of
the original 44 Wheeling warehouse employees had
been transfered to the main store in Wheeling where
they were receiving the same hourly rate as they had
previously, received in the warehouse, but were
working different schedules with a ,change in total
hours. Some of the transferred employees were
performing receiving and marking functions, some
had become sales personnel, and others were doing
miscellaneous work. Respondent's employees who
remained in the warehouse were performing essen-
tially the same type of work they had always
performed. As of the date of the stipulation, 'limited
receiving and marking were still being performed at
the Wheeling warehouse for the Clarksburg and
Fairmont stores, due to problems in - notifying
suppliers of the change in operations.10
B. Positions of the Parties
General Counsel contends that Respondent's
asserted reasons for failing and refusing to bargain
with the Union over the decision and/or effects of its
transfer of work are not valid legal defenses to the
allegation that Respondent unilaterally transferred
work from employees in the unit in which the Union
was certified to, other locations of Respondent.
- Respondent contends that it reached the decision
to discontinue the centralized operations , at least to
the extent that Clarksburg/Fairmont merchandise
would again be received and marked at Clarksburg
and no longer at the Wheeling warehouse , ' after
serious consideration of the- ramifications of its
centralized operations which had been drastically
exacerbated by the ' energy crisis. It argues that it did
not 'consult or negotiate with -the Union with regard
to that decision ,' or its implementation , because of
Respondent's pending contest of the Board's Order
in the Fourth Circuit."
8 These employees were selected by seniority
9 Two affected employees were not present at work on February 27;
Respondent spoke to them on February 28, at which time they signed their
option notices.
io Pursuant to the stipulation of June 4, 1974, before the Fourth Circuit,
as set forth above, Respondent was enjoined from making further transfers
of unit work or employees to locations other than the Wheeling warehouse.
it Respondent , in its brief, also appears to question the appropriateness
of the unit herein in view of the changed situation since 1972. We have
found that unit appropriate;in Case 6-RC-6218 and reaffirmed that finding
at 205 NLRB 298; the Fourth Circuit has found that we neither abused our
discretion nor proceeded in a manner violative of the Act by certifying the
warehouse unit Since Respondent has not produced newly discovered or
previously unavailable evidence or special circumstances concerning this
issue which has been litigated in a prior representation proceeding , and the
only changes in the factual situation are solely attributable to Respondent's
unilateral actions which we shall order to be remedied (infra), we hereby
reaffirm our finding of the appropriateness of the unit in issue.
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Discussion and Conclusion
We agree with the General Counsel that Respon-
dent unlawfully transferred work and employees
from the bargaining unit to other locations of the
Respondent without meeting its statutory obligation
to bargain with the Union over the changes. We find
wholly inadequate as a defense to the unfair labor
practice Respondent's explanation that it implement-
ed and effectuated the transferral of employees and
work for business reasons. We also find no merit in
Respondent's assertion that bargaining would have
been inappropriate in light of the pending case
before the Fourth Circuit. As stated in Regal
Aluminum, supra at 469:
It is by now well established that unilateral
action, such as was taken by the Respondent in
this case , which has a substantial impact upon
employees' wages, hours, and working conditions,
violates Section 8(a)(5) of the Act when.under-
taken without notice to or consultation with such
employees' collective-bargaining representative.
The duty to bargain obtains even though the
employer is prompted to take the action solely
because of "economic considerations," as in the
case at bar. Nor is the duty to bargain obliterated
or stayed pending an appeal of the Board's Order
in a United States court of Appeals. [Footnotes
omitted.]
We find that Respondent was obligated to bargain'
over the decision to transfer the work as well as the
effects of such decision. In Fibreboard Paper- Products
Corp. v. N.L.R.B., 379 U.S. 203 (1964), the Court
held that subcontracting maintenance work per-
formed at the employer's plant is a mandatory
subject of bargaining. Recently, in American Needle
& Novelty Company,12 we applied the Fibreboard
principle to the transferral of unit work. In that case
we stated, "The fact that here the Respondent
transferred the work from one location to another,
rather, than subcontracting the work as in Fibreboard,
does not change the result. It is well settled that an
employer has an obligation to bargain concerning a
decision to relocate unit work." (206 NLRB at 534.)
As stipulated, the Union was certified on January
31, 1973, but Respondent has refused to recognize or
bargain with the Union. Accordingly, it is evident
that Respondent not only failed to bargain with the
Union concerning the decision to transfer the work
to the Clarksburg warehouse, but failed to bargain
12 Bruce E Kronenberger and Herbert Schoenbrod d/b/a American Needle
& Novelty Company, Kentucky Manufacturing Company and Harrisburg
Manufacturing Company, 206 NLRB 534 (1973)
13 See Weltronic Company, 173 NLRB 235 (1968), Royal Plating and
over the effect of such decision . It is clear that such
bargaining is also mandatory.13
Requiring Respondent to bargain about the work
transfer would not significantly abridge its freedom
to manage its business . Though an employer's
obligations under these circumstances does not
include the obligation to agree , it does include an
obligation to engage in a full , and frank discussion
with the bargaining representative exploring possible
alternatives, if any, that may exist, in a bona fide
effort to achieve an accommodation satisfactory ,to
both parties . In the event that such efforts fail, the
employer is free to make and effectuate his decision.
Hence, to compel an employer to , bargain is not to
deprive him of the freedom to manage his business. If
the parties are bargaining in good faith over the
decision 'to transfer the work , a union may be willing
and able to make concessions in behalf of the
employees which will enable the employer to avoid
transferring the work . Further , such limitation on
absolute employer freedom as is involved in impos-
ing a bargaining requirement is amply , justified by
the interest of the employees in being consulted
about adecision with profound impact on them, and
by the public interest in industrial peace.14
Moreover, it is our opinion that ' meaningful
bargaining over effects can only occur prior to the
employer's making and acting upon its decision. As
the Board stated in Ozark Trailers, Incorporated
and/or Hutco Equipment Company and/or Mobile-
freeze, Company, Inc. 161 NLRB 561,'570 (1966):
Finally, while, meaningful bargaining over the
effects of a decision to close one plant may in the
circumstances -of a particular case be all that the
employees ' representative can actually achieve,
especially where the economic factor guiding the
management decision to close or to move or to
subcontract are so compelling that employee
concessions cannot possibly alter the cost situa-
tion, nevertheless in other cases the effects are so
inextricably interwoven with the decision itself
that bargaining limited to effects , will not be
meaningful if it must be carried on within a
framework of a decision which cannot be revised.
An interpretation of the law which carries the
obligation to "effects," therefore , cannot well stop
short of the decision itself which directly affects
"terms and conditions of employment."
Accordingly, we conclude that Respondent's fail-
ure to bargain as to the decision to transfer work
Polishing Co., Inc., 160 NLRB 990 (1966).
14 Cf John Wiley & Sons, Inc. v . David Livingston, 376 U S. 543, 549
(1964).
STONE & THOMAS
from one unit to another and as to the effects of such
transferral constitutes violations of Section 8(a)(5)
and (1).
REMEDY
We have found,that Respondent violated Section
8(a)(5) by unilaterally transferring work from one
unit of employees to another, resulting in the
requirement that the employees affected choose
whether they wished to be transferred to the store in
the Wheeling area, be transferred to the Clarksburg
warehouse, or be placed "on call." We shall order
Respondent to cease and desist from unilaterally
transferring unit work or otherwise making unilateral
changes in the employees' terms and conditions of
employment without consulting their designated
bargaining agent. In order to insure that there is
genuine bargaining over the decision to transfer the
work from one location to another, we shall order the
Respondent to restore the status quo ante - by
reinstituting the full warehouse operation in Wheel-
ing where the receiving and marking operations for
the Wheeling area based stores and the Clarksburg
and Fairmont stores shall be performed, and to fulfill
its statutory duty to bargain.15
We perceive no undue hardship to Respondent by
requiring it to resume its full warehouse operation in
Wheeling. The Wheeling warehouse operation is still
in existence and presently performs much the same
functions, with the exception that the receiving and
marking operation on merchandise for sale at the
Clarksburg and Fairmont stores has been transferred
to Respondent's Clarksburg location.16
In fashioning remedies, the Board bears in mind
that the remedy should be adapted to the situation
that calls for redress, 'with a view toward restoring
"the situation, as nearly as possible, to that which
would have obtained but for [the unfair labor
practice]."17 Section 10(c) provides that the Board,
upon a finding that an unfair labor practice has been
committed, "shall issue . . . an order requiring such
person to cease and desist from such unfair labor
practice, and to take such affirmative action includ-
ing reinstatement of employees with or without back
pay, as will effectuate the policies of this Act ...."
That section "charges the Board with the task of
devising remedies to effectuate the policies of the
Act." 18 Accordingly, since the change in employ-
ment status of the employees affected by the transfer
to Clarksburg stems directly from Respondent's
unlawful action in failing to meet its bargaining
obligation, we believe that a meaningful bargaining
15 American Needle & Novelty, supra
r6 Such, finding is made based on the record before us Respondent's
request to reopen the record for inclusion of the affidavit of Harry J.
Robbin which concerns the leasing arrangement for a warehouse building in
577
order can be fashioned only by directing Respondent
to offer unit employees immediate and full reinstate-
ment to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions without
prejudice to their seniority or other rights and
privileges and to make them whole for any loss of
earnings suffered by reason of their - unlawful
termination, by payment to them of a sum of money
equal to that which normally would have been
earned from the ^ date of their layoff to the date of
Respondent's offer of reinstatement, less net earnings
during such period, with backpay computed on a
quarterly basis in the manner established by the
Board in F. W. Woolworth Company, 90 NLRB 289
(1950). Backpay shall carry interest at the rate of 6
percent per annum as set forth in Isis Plumbing &
Heating Co., 138 NLRB 716 (1962). Since the
stipulation states that the transferred employees are
receiving the same hourly rate as they previously
received in the warehouse but "they are working
different schedules and the total hours work have
been affected," we shall leave to the compliance
stage the determination as to whether the change in
schedules and hours has worked to the economic
detriment of these transferred employees.
CONCLUSIONS OF LAW
1. Respondent, Stone & Thomas, is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
Local Union 697, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All full-time and regular part-time furniture
warehousemen and central receiving department
employees at Respondent's Lane A warehouse on
Fourth Street, Wheeling, West Virginia, including all
receiving dock employees, checkers, order checkers,
claim clerk, receiving record clerk, and markers, but
excluding all carpet workroom employees and
guards, professional employees, 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 January 31, 1973, the above-named labor
organization has been and now is certified as the
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.
Clarksburg has been denied for reasons stated in fn. 3, supra.
17 Phelps Dodge Corporation v. N LR.B., 313 U.S 177, 194 (1941)
18 N LR B. v Seven-Up Bottling Company of Miami, Inc., 344 U.S. 344,
346 (1953).
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. By unilaterally deciding to transfer and by
unilaterally transferring certain receiving and mark-
ing functions then performed at the Wheeling, West
Virginia, warehouse on merchandise for sale at the
Clarksburg and Fairmont stores to Respondent's
Clarksburg location, and by -failing or refusing to
consult with or bargain with the above-named labor
organization concerning the decision and/or the
effects of the decision to transfer such work, thereby
failing and refusing to bargain collectively with the
above-named labor organization as the exclusive
representative of the employees in the above-de-
scribed 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 above-described conduct, thereby inter-
fering with, restraining, and coercing its employees in
the exercise of rights guaranteed in Section 7 of the
Act, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(1) of the Act.
7. The' above-described unfair labor practices
tend to lead '-to labor disputes burdening and
obstructing commerce and the free flow of com-
merce, and constitute 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
Relations Board hereby orders that the Respondent,
Stone & Thomas, Wheeling, West Virginia, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith
with International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, Local
Union 697, as to the decision and/or effects of the
transferral of unit work, and unilaterally transferring
unit work without bargaining with the Union.
(b) In any like or related manner failing or refusing
to bargain collectively or interfering with the efforts
of the Union to bargain collectively on behalf of the
employees in the appropriate unit.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Upon request by the Union, bargain collective-
ly with the Union with respect to the decision to
transfer receiving and marking functions from the
Wheeling, West Virginia, warehouse to the
Clarksburg location; bargain collectively with the
Union with respect to the effects of such transferral;
and, if an understanding is reached thereon, reduce
to writing and sign any agreement reached as the
result of such bargaining.
(b) Reinstate at the Stone & Thomas warehouse in
Wheeling, West Virginia, the receiving and marking
functions previously performed by unit employees
represented by the Union and offer to these
employees immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice
to their seniority or other rights and privileges, and
make them whole for any loss of pay suffered by
them in the manner set forth in the section above
entitled "Remedy."
(c) Bargain collectively with, the Union as the
exclusive bargaining representative of the Respon-
dent's employees in the appropriate unit with respect
to wages, hours, `and other terms and conditions of
employment, and, 'upon request by said Union,
furnish it with relevant information necessary to
enable it to bargain over the decision to transfer unit
work.
(d) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(e) Post at its place of business at the Wheeling,
West Virginia, warehouse, copies of the attached
notice marked "Appendix."19 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 conspicu-
ous 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.
(f) Notify the Regional Director for Region 6, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
19 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 Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
STONE & THOMAS 579
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
We hereby notify our employees that:
WE WILL bargain collectively with the Union as
the exclusive bargaining representative of the
Respondent 's employees in the appropriate unit
with respect to wages, hours, 'and other terms and
conditions of employment and, upon request by
said Union, furnish it with relevant information
necessary to enable it to bargain over the decision
to transfer unit work.
WE WILL NOT refuse to bargain with the
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
Local Union 697, as to the decision to transfer
unit work.
WE WILL NOT unilaterally transfer unit work
without bargaining with the Union, or any other
union the employees may select as their exclusive
bargaining representative.
WE WILL NOT refuse said Union relevant
information which will enable it to bargain
collectively with us with respect to our decision to
transfer unit work.
WE WILL NOT in any other manner interfere
with the efforts of said Union to bargain
collectively on behalf of the employees in the
following unit:
All full-time and regular part-time furniture
warehousemen and central receiving depart-
ment employees at the Employer's Lane A
warehouse on Fourth Street, Wheeling, West
Virginia, including all receiving dock em-
ployees, checkers, claim clerk, receiving
record clerk, and markers, but excluding all
carpet workroom employees and guards,
professional employees, and supervisors as
defined in the Act.
WE WILL, upon request by the Union, bargain
collectively with it with respect to the decision to
transfer the receiving and marking operations and
with respect to the effects of such transferral, and,
if an understanding is reached thereon, reduce to
writing and sign any agreement reached as a
result of such bargaining.
WE WILL reinstate at the Stone & Thomas,
Wheeling, West Virginia, warehouse the work
previously performed by unit employees repre-
sented by the Union, and offer to these employees
immediate and full reinstatement to their former
jobs or, if these jobs no longer exist, to substan-
tially equivalent positions without prejudice to
their seniority or other rights and privileges, and
make them whole for any loss of pay suffered by
them in the manner set forth in the section of the
Board's Decision and Order entitled "Remedy."
STONE & THOMAS
May 13, 1976
ORDER GRANTING MOTION
On November 21, 1975, the Board issued a
Decision and Order' in the above-entitled proceed-
ing in which it found that Respondent engaged in
certain unfair labor practices, and ordered it to cease
and desist therefrom and take certain affirmative
action.
Thereafter, on January 20, 1976, Respondent filed
a motion to reopen the record for additional
evidence, for reconsideration of the remedy, and for
stay of the Board's Order, contending that the
portion of the Order which directs that Respondent
reinstate at the Wheeling warehouse work now being
performed at Clarksburg would be "unduly burden-
some." By means of an affidavit sworn to by
Respondent's president, Respondent asserts the
following:
Respondent's lease for its warehouse in
Clarksburg does not expire until 1984; the
Clarksburg warehouse was leased for the purpose
of providing space for the receiving, marking, and
distribution of merchandise for the Clarksburg
and Fairmont stores-these functions having
been previously performed at the Wheeling
warehouse; the present Wheeling warehouse is
presently being used to its capacity; there is a
substantial increase in the volume of activity
which would be too substantial for the Wheeling
warehouse, which is occupied under a lease which
terminates in 1981; the Wheeling warehouse
cannot physically accommodate the number of
employees present at the Wheeling and
Clarksburg warehouse, nor can it physically
accommodate the volume of merchandise neces-
sary for the Wheeling and the Clarksburg and
Fairmont Stores; compliance with the Board's
Order would require leasing an additional ware-
house in Wheeling. Moreover, Respondent asserts
that it has already offered to negotiate with the
Union, both as to its obligations under the
Board's Order in Case No. 6-CA-6613, and also
1 221 NLRB No. 115.
580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as to its obligation under Case No. 6-CA-7357
with respect to the re-transfer of receiving and
marking functions from the Wheeling warehouse
to Clarksburg; that the negotiations may resolve
that portion of the Board's Order concerning the
reinstatement of such work; and that it is
prepared to offer to the transferees (to the
Wheeling store from the Wheeling warehouse) an
opportunity to return to the warehouse if they so
desire.
On February 2, 1976, General Counsel filed a brief
in opposition to Respondent's motion, asserting that
Respondent has not contended that it had any newly
discovered evidence and that the remedy ordered in
the Board's, Decision would not be "unduly burden-
some."
There has been no statement filed by the Union.
It appearing that Respondent , has agreed to
recognize and negotiate with the Union; that it has
agreed to negotiate concerning the transfer of work
from the Wheeling, warehouse to the Clarksburg
warehouse; that it is possible that the negotiations
may resolve those matters dealt with in that portion
of the Board's Order concerning the reinstatement to
Wheeling of work now being done in Clarksburg;
that it is prepared to offer the transferees their former
or substantially equivalent jobs at the Wheeling
warehouse; that General Counsel does not contend
that the above-asserted facts by Respondent are
inaccurate; that the Union involved herein has not
filed a motion in opposition to the Respondent's
motion nor has it joined in the-motion of the General
Counsel, the Board has decided that in the circum-
stances disclosed in the motion it would serve the
purposes of the Act to reopen the record and accept
into evidence the affidavit of Respondent's president
and grant the motion for reconsideration to the
limited extent of staying operation of the provisions
of the Order' requiring Respondent to reinstate at the
Stone & Thomas warehouse in Wheeling, West
Virginia, the receiving and marking functions previ-
ously performed thereat but which were transferred
to Clarksburg, West Virginia, and to post ,a notice
that it will reinstate those operations in Wheeling.
However, we shall retain jurisdiction and shall
entertain an appropriate motion either to vacate the
stay or to make the stay permanent as may appear
appropriate in the light of events and circumstances
arising under the Board's Order, as modified herein.
It is hereby ordered that the motion, to the limited
extent as above indicated, be, and it hereby is,
granted.
By direction of the Board, John C. Truesdale,
Executive Secretary.