Williams-Sonoma Direct, Inc.

National Labor Relations Board - Board Decisions

Jan 9, 2017

365 NLRB No. 13 (N.L.R.B. 2017)

365 NLRB No. 13
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Williams-Sonoma Direct, Inc. and International
Brotherhood of Teamsters, Local 63, Petitioner.
Case 21–RC–176174
January 9, 2017
ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND MCFERRAN
The Petitioner’s request for review of the Regional Di-
rector’s Decision and Order, which is attached as an ap-
pendix, is denied as it raises no substantial issues war-
ranting review.1

1 Our denial of the request for review “constitute[s] an affirmance of
the regional director’s action,” i.e., the dismissal of the petition.
Board’s Rules and Regulations, Sec. 102.67(g). In denying the Peti-
tioner’s request for review, we do not adopt the decision of the Region-
al Director as the Board’s own decision. We agree, however, that un-
der Sec. 102.66(d) of the Board’s Rules, the Regional Director was
correct to preclude the Employer from litigating the appropriateness of
the petitioned-for unit (based on the Employer’s failure to timely serve
its statement of position on the Petitioner). By contrast, we need not
decide whether the Regional Director correctly denied the parties’ joint
stipulation to include the record from Case 21–RC–169662, because
that ruling was at most a harmless error. Having denied the Petitioner’s
request for review, we find it unnecessary to consider the Employer’s
conditional request for review.
In response to our concurring colleague’s characterization of Bruns-
wick Bowling Products, LLC, 364 NLRB No. 96 (2016), we note our
reliance in that case on the peculiar circumstances by which the con-
tract-bar issue was raised and confirmed by the parties apart from the
union’s statement of position, and reiterate that the majority decision
speaks for itself, see, slip op. at 3 fn. 5.
Member Miscimarra concurs in the denial of review except he be-
lieves three issues warrant explanation. First, Member Miscimarra
notes that the instant case involves another example where the Board
finds it was entirely appropriate for the Regional Director to evaluate
and resolve a dispositive election issue (here, the inappropriateness of
the petitioned-for unit), even though the outcome favors a party that
failed to comply with the statement of position requirement set forth in
the Board’s Election Rule (79 Fed. Reg. 74308 (Dec. 15, 2014)). See
Brunswick Bowling Products, LLC, 364 NLRB No. 96, slip op. at 3
(2016) (Member Miscimarra, concurring in part and dissenting in part)
(“[T]oday’s decision rightly places substance over form.”). In Bruns-
wick, the Board upheld the Regional Director’s finding that a decertifi-
cation petition was barred by an existing collective-bargaining agree-
ment, resulting in the petition’s dismissal, even though the union did
not timely serve its statement of position raising the “contract bar”
defense. Second, Member Miscimarra agrees with his colleagues’
decision not to reach or pass on the Employer’s conditional request for
review, which involves the Employer’s failure to timely serve its state-
ment of position on the Union. Third, Member Miscimarra agrees that
the petitioned-for unit is inappropriate, but he relies on traditional
community-of-interest standards rather than Specialty Healthcare &
Rehabilitation Center of Mobile, 357 NLRB 934 (2011), enfd. sub nom.
Kindred Nursing Centers East, LLC v. NLRB, 727 F.3d 552 (6th Cir.
2013), for the reasons stated in Macy’s, Inc., 361 NLRB No. 4, slip op.
Dated, Washington, D.C. January 9, 2017
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Philip A. Miscimarra Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
DECISION AND ORDER1
Petitioner seeks to represent a unit of merchandise proces-
sors, lead merchandise processors, merchandise processors-
forklift, lead merchandise processors and merchandise proces-
sors in departments 3149, 3205, 3206, 3208, 3210, 3212, 3234,
3236, 3237, and 3239,2 employed by the Employer at its facility
located in Walnut, California.
A hearing officer of the National Labor Relations Board
(Board) held a hearing in this matter on May 24 and 25, 2016.
As explained below, based on the record and relevant Board
law, I am affirming the hearing officer’s rulings, but I find that
the record evidence is insufficient to establish that the peti-
tioned-for unit is an appropriate bargaining unit within the
meaning of Section 9(c)(1) of the Act. I am, therefore, dismiss-
ing the petition.
The Hearing
Pursuant to Section 102.63(b)(3) of the Board’s Rules and
Regulations, the Employer filed a statement of position with the
Region by noon on May 20, 2016, the day before the hearing
was originally scheduled to begin, in which it contends that the
petitioned-for unit is inappropriate.3 However, the Employer
failed to timely serve its statement of position on the Petitioner,
as required by Section 102.63(b)(3) of the Rules and Regula-

at 22, 31–32 (2014) (Member Miscimarra, dissenting). More generally,
Member Miscimarra continues to adhere to his dissenting views regard-
ing the Election Rule, including his objections to the statement of posi-
tion requirement and the preclusion principle. See Election Rule, 79
Fed. Reg. at 74430–74460 (dissenting views of Member Miscimarra
and former Member Johnson); id. at 74442–74444 (dissenting views
regarding the statement of position requirement).
1 The name of the Employer was corrected at the hearing.
2 The Petitioner moved to amend the petition at the hearing to add
the classification of merchandise processor(s) and to substitute depart-
ment 3210 for 3238. Pursuant to my ruling, the hearing officer permit-
ted the amendments.
3 Although the hearing was originally scheduled to begin on May 23,
2016, at the Employer’s request the hearing was postponed to May 24,
2016.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
tions. In fact, the Employer did not serve Petitioner with its
statement of position until after noon on May 23, 2016, the day
the hearing was originally scheduled to begin.
Section 102.66(d) of the Board’s Rules and Regulations pre-
cludes an employer from raising any issue, presenting any evi-
dence relating to any issue, cross-examining any witness con-
cerning any issue, and presenting argument concerning any
issue, except regarding the Board’s statutory jurisdiction, where
the employer has failed to timely serve its statement of position
on the petitioner.
In view of Section 102.66(d), at my direction, the hearing of-
ficer refused to permit the Employer in this case to litigate any
issues raised in its statement of position concerning whether the
petitioned-for unit is an appropriate unit.4 I hereby affirm my
ruling, and find that the Employer was properly precluded from
litigating the unit issue based on its failure to timely serve its
position statement on the Petitioner.
Notwithstanding the preclusion, the hearing officer, per in-
structions from the Regional Director, admitted the Employer’s
statement of position into the record with no objection from the
parties. That statement of position included a commerce ques-
tionnaire, which showed that in the previous fiscal year, a rep-
resentative period, the Employer derived gross revenues in
excess of $500,000, and purchased and received at its Califor-
nia facilities goods valued in excess of $50,000 directly from
points located outside the State of California. The Employer
operates a chain of retail stores with a distribution warehouse in
Walnut, California.
In addition, pursuant to Section 102.66(c) of the Board’s
Rules and Regulations, the hearing officer permitted the Em-
ployer to make an oral and written offer of proof with regard to
whether the petitioned-for unit is an appropriate unit. Based on
my ruling on preclusion, the hearing officer, per my directive,
did not receive the evidence described in the Employer’s oral
and written offer of proof.
Testimony was received from a representative of Petitioner
that was sufficient to establish that the Petitioner is a labor or-
ganization within the meaning of Section 2(5) of the Act. In
addition, some limited testimony was received from current
employees of the Employer regarding the work they performed
and their own terms and conditions of employment.5 These
witnesses were called to testify by the Petitioner.

4 During the hearing the Employer filed with the undersigned Re-
gional Director a request for permission to file an appeal of the ruling
on preclusion and an appeal of the ruling. I granted the request, and
denied the appeal. Also, during the hearing, after the Petitioner was
allowed to amend the petition, the Employer requested that it be al-
lowed to amend its position statement. I denied the request.
5 At the hearing, the Employer requested that the undersigned Re-
gional Director take administrative notice of the record in Case 21–RC–
169662. I refused to take such administrative notice. That case in-
volved a previous petition filed by the Petitioner to represent a smaller
unit of the Employer's employees. That petition was subsequently with-
drawn by the Petitioner. At the hearing in this case, the Employer and
the Petitioner jointly stipulated to including the record in Case 21–RC–
169662 into this proceeding. However, that stipulation was rejected,
and the record in Case 21–RC–169662 was not received into evidence.
At the Employer's request, it was placed in the rejected exhibit file.
A. Board Law
Before conducting an election, Section 9 of the Act obliges
the Board to make a determination whether the petitioned-for
unit is appropriate for collective bargaining. When parties re-
fuse to stipulate as to the appropriateness of the unit, the Board
is required to take evidence and make a determination of
whether the employees in the petitioned-for unit share a suffi-
cient community of interest to warrant inclusion in the unit. As
aptly put by the Board in Allen Health Care Services, 332
NLRB 1308, 1309 (2000), “The Board has an affirmative statu-
tory obligation to determine the appropriate bargaining unit in
each case.”
The Board considers many factors in determining whether
employees in a petitioned-for unit form a sufficiently identifia-
ble group to form an appropriate bargaining unit. In Bergdorf
Goodman, 361 NLRB No. 11, slip op. at 2 (2014), the Board
held:
In determining whether a petitioned-for unit is appropriate,
the Board weighs various community-of-interest factors, in-
cluding whether the employees are organized into a separate
department; have distinct skills and training; have distinct job
functions and perform distinct work; are functionally integrat-
ed with the Employer's other employees; have frequent con-
tact with other employees; interchange with other employees;
have distinct terms and conditions of employment; and are
separately supervised. Id. at 9, quoting United Operations,
Inc., 338 NLRB 123, 123 (2002). More than one appropriate
bargaining unit can usually be defined from any particular
factual setting, and the petitioned-for unit need only be an ap-
propriate unit, not necessarily “the single most appropriate
unit.” Id., quoting American Hospital Assn., 499 U.S. 606,
610 (1991) (emphasis in original).
In analyzing the various factors, the Board compares the em-
ployees in the petitioned-for unit with the rest of the employees
of the employer. Thus, in Bergdorf Goodman, the Board com-
pared the terms and conditions of employment of employees
who sold shoes in two departments of the store with employees
in the rest of the store in order to determine whether the em-
ployees in the petitioned-for unit shared a sufficient community
of interest to justify a separate bargaining unit. While noting
that the employees who sold shoes in two different departments
shared some community of interest with each other, including a
different wage structure from the rest of the employees in the
store, the Board held that their community of interest was insuf-
ficient. In finding that the employees in the petitioned-for unit
did not share a sufficient community of interest, the Board cit-
ing Specialty Healthcare, 357 NLRB 934 (2011), considered it
significant that the petitioned-for unit did not conform to any
organizational structure of the Employer.
B. Application of Board Law
In the instant case, the Employer was precluded from raising
any issues or presenting any arguments concerning the appro-
priateness of the petitioned-for unit. Therefore, there was no
valid challenge to the appropriateness of the petitioned- for
unit. The Board must nonetheless assess whether the petitioned-
WILLIAMS-SONOMA DIRECT, INC. 3
for unit is an appropriate unit.
The record contains some evidence that the employees in the
petitioned-for unit have conditions of employment in common
with each other. Therefore, they do share some community of
interest with each other. However, I am unable to determine
whether the employees in the petitioned-for unit form the requi-
site readily identifiable group separate from the rest of the Em-
ployer's workforce. Notably, the record fails to establish wheth-
er they have, or do not have, conditions of employment in
common with other employees who are not part of the peti-
tioned-for unit.
For example, the record contains evidence that employees in
the petitioned-for unit are paid by the hour, but fails to establish
how other employees at the facility are paid and whether they
are paid at the same rate. Similarly, while the record contains
evidence that employees in 10 enumerated departments pick
orders and move product to trucks and back, it fails to establish
whether the employees in the petitioned-for unit are the only
employees who perform that function and what work is per-
formed by the other employees in the 10 departments included
in the petitioned-for unit.
Like the proposed unit in Bergdorf Goodman, the petitioned-
for unit does not seem to follow the Employer’s organizational
structure. Rather, it appears that there are employees other than
employees in the petitioned-for unit who work in the depart-
ments listed in the petition.
Accordingly, I find that the record evidence is insufficient to
establish whether the employees in the petitioned-for unit con-
stitute an appropriate unit.
C. Findings and Conclusions
Under Section 3(b) of the Act, I have the authority to hear
and decide this matter on behalf of the National Labor Rela-
tions Board. Therefore, upon the entire record in this proceed-
ing, and in accordance with the discussion above, I find and
conclude as follows:
1. The hearing officer’s rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
2. The Employer is engaged in commerce within the mean-
ing of the Act, and it will effectuate the purposes of the Act to
assert jurisdiction herein.
3. The Petitioner is a labor organization within the meaning
of Section 2(5) of the Act and claims to represent certain em-
ployees of the Employer.
4. No question affecting commerce exists concerning the
representation of certain employees of the Employer within the
meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act.
ORDER
It is hereby ordered that the petition is dismissed.
Right To Request Review
Under the provisions of Section 102.67 of the Board’s Rules
and Regulations, a request for review of this Decision and Or-
der may be filed with the National Labor Relations Board. A
request for review may be E-Filed through the Agency’s web-
site but may not be filed by facsimile. To E-File the request for
review, go to www.nlrb.gov, select E-File Documents, enter the
NLRB Case Number, and follow the detailed instructions. If
not E-Filed, the request for review should be addressed to the
Executive Secretary, National Labor Relations Board, 1015
Half Street SE, Washington, DC 20570-0001. A party filing a
request for review must serve a copy of the request on the other
parties and file a copy with the Regional Director. A certificate
of service must be filed with the Board together with the re-
quest for review.
Dated: June 7, 2016