Williams-Sonoma Direct, Inc., (2017)
NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive 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.
January 9, 2017
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
The Petitioner’s request for review of the Regional Director’s Decision and Order, which is attached as an appendix, is denied as it raises no substantial issues warranting 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 Petitioner’s request for review, we do not adopt the decision of the Regional Director as the Board’s own decision. We agree, however, that under 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 Brunswick Bowling Products, LLC, 364 NLRB No. 96 (2016), we note our reliance in that case on the peculiar circumstances by which the contract-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 believes 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 Brunswick, the Board upheld the Regional Director’s finding that a decertification petition was barred by an existing collective-bargaining agreement, 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 statement 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...
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