Wigwam Stores, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1971

193 N.L.R.B. 471 (N.L.R.B. 1971)

WIGWAM STORES, INC. 471
Wigwam Stores , Inc. and Retail Store Employees'
Union , Local 631 , Retail Clerks International
Association, AFL-CIO. Case 19-CA-4629
September 30, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
parties were reiterated and the Charging Party's brief
withdrawn.'
Pursuant to the provisions of Section 3(b) of the
Act, the Board has delegated its powers in connection
with this case to a three-member panel.
The Board has considered the entire record in this
case, including the briefs of the Respondent and the
General Counsel, and makes the following:
FINDINGS OF FACT
Upon charges filed by the Charging Party, Local
631, on January 19, 1970 , the General Counsel of the
National Labor Relations Board by the Regional
Director for Region 19 issued a complaint and notice
of hearing on July 2, 1970, against the Respondent,
Wigwam Stores , Inc. The complaint alleges in
substance that the Respondent engaged in and is
engaging in unfair labor practices within the meaning
of Section 8(a)(5) and (1) of the National Labor
Relations Act, as amended. In its duly filed answer,
the Respondent admits certain allegations of the
complaint , denies all unfair labor practice allegations,
and avers an affirmative defense . On September 8,
1970, the parties , including the General Counsel,
entered into a stipulation of facts for submission to
the Board in which , inter aka, they requested that this
proceeding be transferred to the Board. In the
stipulation the parties agreed in effect that the formal
papers filed in this proceeding and the stipulation,
together with the attached exhibits and the order
postponing hearing indefinitely , would constitute the
entire record in this case , and agreed that no oral
testimony was necessary or desired . They waived their
right to a hearing before a Trial Examiner , the making
of findings of fact and conclusions of law by a Trial
Examiner , and the issuance of a Trial Examiner's
decision . The stipulation provided for the filing of
briefs with the Board.
On September 14, 1970, the Board issued its order
granting motion approving stipulation and transfer-
ring proceedings to the Board. Thereafter the General
Counsel , the Charging Party, and the Respondent
filed briefs . On March 18 , 1971, the Board issued an
order remanding proceeding on grounds that the
stipulation did not set out with sufficient complete-
ness and clarity all relevant facts which might bear on
the issues of the case . On April 16, 1971, a joint
motion for reconsideration of order remanding
proceeding and supplemental stipulation was filed by
the Respondent , Charging Party, and the General
Counsel , wherein the facts considered relevant by the
I We shall grant the parties ' joint motion , and base our decision solely
on the facts which have been stipulated to by the parties
2 The Respondent further admits and we find that the following unit
constitutes an appropriate unit for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act
1. THE BUSINESS OF THE RESPONDENT
The Respondent by its answer admits that it is a
Washington State corporation engaged in the opera-
tion of retail department stores in Yakima, Washing-
ton, and elsewhere in the State of Washington. The
dollar volume of the Respondent' s sales annually
exceeds $500,000. During the calendar year 1969, the
Respondent made purchases valued in excess of
$500,000 which were shipped to the above stores from
points outside the State of Washington. The parties
stipulated and we find that the Respondent is, and at
all times material herein has been, an employer within
the meaning of Section 2(2) of the Act, engaged in
commerce within the meaning of 2(6) and (7) of the
Act, and that it will effectuate the purposes of the Act
to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
The parties agree and we find that the Charging
Party, Retail Store Employees ' Union Local 631,
Retail Clerks International Association , AFL-CIO, is
a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
On March 11, 1969, following a Board-conducted
election, the Acting Regional Director for Region 19
certified the Charging Party as the exclusive bargain-
ing representative of all employees in the appropriate
unit.2
After several meetings and bargaining sessions
during the ensuing 12 months, the negotiators met the
morning of March 23, 1970, and reached oral
agreement; and the Union requested the Respondent
to execute a collective-bargaining contract based
thereon. That afternoon General Manager Phillips,
who had negotiated the agreement for the Respon-
dent, received a telephone call from Boyles, manager
of the Yakima store where the unit employees worked,
All persons engaged in handling or sales of merchandise employed by
the Employer and its leased departments at the Yakima, Washington,
store , excluding all other employees , managers , office clerical
employees, professional employees, guards and supervisors as defined
in the Act
193 NLRB No. 75
472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
informing Phillips that Boyles had received a letter
signed by all four unit employees. The letter, dated
March 19, 1970, was addressed to the National Labor
Relations Board and requested decertification of the
Union.3 Boyles had not been aware of this letter until
March 23, because he had just returned from
vacation.
Thereafter, the Respondent refused to execute the
collective-bargaining agreement previously orally
agreed to.
The stipulated facts show, and we find, that the
Charging Party lost its majority status on March 19,
after the end of the certification year and 4 days
before an agreement was reached with the Respon-
dent. Thereafter, the Union was without authority to
bargain on behalf of the employees or to sign a
contract with the Respondent. Therefore, the Respon-
dent's refusal to sign the agreement with the Union on
March 23 and thereafter was not an unfair labor
practice within the meaning of Section 8(a)(5) and
(1).4 Accordingly, we shall dismiss the complaint in its
entirety.5
3 An RD petition was sent to the Regional Office by one of the four
unit employees on March 31, 1970 However, as that petition was unsigned,
it was returned to the employees for signature The petition was refried,
and docketed by the Regional Office on April 3, 1970
4 Cf Indiana Ready Mix Corporation, 141 NLRB 651, 660 The Board
and the courts have clearly indicated that where , as here , the presumption
of union majority status which obtains after the end of the certification
year has been rebutted by evidence establishing that such status has, in
fact , ceased to exist , the employer's refusal to bargain is not unlawful Ray
Brooks v N LR.B, 348 U.S 96; N L R B v Whittier Mills Company et al.,
I I I F 2d 474, 478, US Gypsum Company, 90 NLRB 964,965
As the Board long ago intimated , where the certification year has
expired, an employer may have to act at his peril in deciding whether the
union 's presumptive majority status continues to exist in fact, and the
outcome of any subsequent 8(a)(5) proceeding might hinge on the
CONCLUSIONS OF LAW
1. The Respondent , Wigwam Stores , Inc., is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The Union, Retail Store Employees' Union
Local 631, Retail Clerks International Association,
AFL-CIO, is and has been at all times material
herein , a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent is not violating Section 8(a)(5)
and (1) by refusing to sign an agreement , since the
Union does not represent a majority of the Respon-
dent 's employees.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Board's order
remanding proceeding dated March 18, 1971, be, and
it hereby is, revoked; and the complaint herein be,
and it hereby is, dismissed in its entirety.
correctness of that decision . Stoner Rubber Company, 123 NLRB 1440.
Since here we find that the Union lost its majority status poor to any
agreement, the Respondent's decision not to sign the agreement was proper
and not violative of Section 8(a)(5).
5 Member Fanning agrees that Respondent did not violate Section
8(a)(5) by refusing to execute a previously agreed-to contract on the
ground that it doubted the Union' s majority status In his view, the
employee letter indicating a desire for a decertification election furnished
Respondent with reasonable ground for doubting the Union 's continuing
majority. Celanese Corporation of America, 95 NLRB 664, 672-673. He does
not, however , view such letter as constituting sufficiently reliable evidence
of loss of majority as to permit Respondent to take unilateral action with
respect to matters subject to collective bargaining . The question concerning
representation involved herein can best be resolved by a Board election.
See the dissenting opinion in Stoner Rubber Company, 123 NLRB 1440.