Lamont's Apparel

National Labor Relations Board - Board Decisions

Feb 29, 1984

268 N.L.R.B. 1332 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pay 'N Save Corporation d/b/a Lamont's Apparel,
Inc., a wholly owned subsidiary and Retail
Store Employees Union, Local 1001, Chartered
by United Food and Commercial Workers Inter-
national Union, AFL-CIO. Case 19-CA-13680
29 February 1984
DECISION AND ORDER
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
On 13 December 1982, Administrative Law
Judge William J. Pannier III issued the attached
decision. The Respondent filed exceptions and a
supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Pay 'N Save
Corporation d/b/a Lamont's Apparel, Inc., a
wholly owned subsidiary, Seattle, Washington, its
officers, agents, successors, and assigns, shall take
the action set forth in the said recommended
Order.
DECISION
STATEMENT OF THE CASE
WILLIAM J. PANNIER Ill, Administrative Law Judge:
This matter was heard by me in Seattle, Washington, on
August 24 and 25, 1982. On February 18, 1982, the Re-
gional Director for Region 19 of the National Labor Re-
lations Board issued a complaint and notice of hearing,
based on an unfair labor practice charge filed on June 30,
1981,1 alleging violations of Section 8(a)(1) and (5) of the
National Labor Relations Act, herein called the Act. All
parties have been afforded full opportunity to appear, to
introduce evidence, to examine and cross-examine wit-
nesses, and to file briefs. Based on the entire record, on
the briefs filed on behalf of the parties, and on my obser-
vation of the demeanor of the witnesses, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
At all times material, Pay 'N Save Corporation d/b/a
Lamont's Apparel, Inc., a wholly owned subsidiary,
Unless stated otherwise, all dates occurred in 1981.
268 NLRB No. 199
herein called the Respondent, has been a Washington
State corporation, with office and place of business in
Seattle, Washington, inter alia, where it engages in the
business of operating retail department stores. During the
12-month period prior to issuance of the complaint, a
representative period, the Respondent derived gross rev-
enues in excess of $500,000 and, further, purchased and
caused to be transferred and delivered to its State of
Washington facilities goods and materials valued in
excess of $50,000 directly from sources outside the State
of Washington, or from suppliers within the State of
Washingtion who, in turn, obtained those goods and ma-
terials directly from sources outside the State of Wash-
ington. Therefore, I find, as admitted by the answer and
amended answer, that at all times material, the Respond-
ent has been an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted and I find that at all times material
Retail Store Employees Union, Local 1001, chartered by
United Food and Commercial Workers International
Union, AFL-CIO, herein called the Union, has been a
labor organization within the meaning of Section 2(5) of
the Act.
III. ISSUES
This case involves a change in commission rates paid
to cosmetics sales employees represented by the Union.
The first issue posed is whether reductions in commis-
sions paid to unit employees by third parties, not bound
to collective-bargaining agreements between the Re-
spondent and the Union, are a mandatory subject of bar-
gaining for the Respondent. If it is concluded that these
commissions are a mandatory subject of bargaining, then
the next issue posed is whether the Union waived its
right to bargain about changes in them by virtue of cer-
tain provisions in the current collective-bargaining agree-
ment. For the reasons set forth below, I conclude that
the Respondent had been obliged to bargain with the
Union insofar, as its involvement in those changes had
been concerned, and, further, conclude that it cannot be
said that the Union had waived its statutory right to bar-
gain about those changes by virtue of the collective-bar-
gaining agreement and the bargaining history.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
Since 1967, the Respondent has operated a number of
department stores in the Seattle area, having initially suc-
ceeded Rhodes of Seattle, Inc. as the owner of certain
stores during that year. Rhodes had been a member of a
multiemployer bargaining association that had bargained
with the Union's predecessor as the representative of cer-
tain employees working in the department stores operat-
ed by association members. Once it had become the
owner of the stores formerly operated by Rhodes, the
Respondent began bargaining as an association member.
However, as it opened additional stores, the Respondent
commenced bargaining with regard to employees work-
ing in them on a single-employer basis. By the early
1970's, the Respondent had ceased altogether bargaining
1332
LAMONT'S APPAREL
on an association basis and, thereafter, had negotiated
collective-bargaining agreements covering its department
store employees on a single-employer basis. The most
recent agreement is effective from June 8, 1980, through
June 7, 1983.2
Among the items merchandised in the Respondent's
department stores are cosmetics. Historically, most, al-
though not all, cosmetics manufacturers3 enter into rep-
resentative or demonstration agreements with retailers,
such as the Respondent, whereby the former provides a
10-percent rebate on sales of their own products made at
the latter's stores. At the total discretion of the vendor,
those rebates may be paid entirely to the retailer, as is
the practice in the drug store industry, to supplement the
retailer's costs of selling cosmetics. Alternatively, the
vendor may decide to allocate all of the rebate to the
employees who sell the cosmetics. 4 However, normal
practice appears to be that vendors allocate a certain
percentage of the rebate to employees who make the
sales and the rest of the rebate to the retailer. Although
there is no total uniformity throughout the cosmetics
sales area, the fairly common allocation is 3 percent to
the sales employees and 7 percent to the retailer.
According to the Respondent's cosmetic, fragrance,
and giftware buyer, Susan Engle, prior to January 5, the
Respondent's cosmetics sales employees' commission
"average was five percent. There was one at ten percent
and I believe that there were three at six percent. The
rest were at five." Based on its belief that it was not
earning sufficient income under this allocation and its
feeling that if employees continued to receive so large a
percentage of commissions it would have to reduce the
number of beauty advisors that it employed or, alterna-
tively, would have to convert to completely self-service
cosmetics departments, the Respondent made a decision
to initiate a request that its vendors reduce all employee
commissions to 3 percent and accord the Respondent 7
percent of the 10-percent rebate. Before making this sug-
gestion to its vendors, the Respondent did not notify the
Union that it intended to do so. The vendors agreed to
make the changes suggested by the Respondent and all
employee commissions were reduced to 3 percent effec-
tive January 5. Again, the Respondent did not notify the
Union prior to January 5 that the change would be
made.
By letter dated January 15, the Union protested the
commission reductions and requested that the former
2 At no place in that agreement is there a satisfactory description of
the unit for which the Union is the representative. Apparently perceiving
the difficulty in formulating a unit description based on the agreement,
the General Counsel alleged the appropriate unit, in the complaint, as
being "[t]he unit of employees described in the collective bargaining
agreement between Respondent and the Union, dated July 21, 1980," an
allegation admitted by the Respondent. In view of the ambiguity in the
current agreement, the parties' seeming understanding of the employees
included in and excluded from the unit as a result of their substantial bar-
gaining history, and the risk of improperly including or excluding em-
ployees that might result from attempting to formulate a unit description
on the basis of the record in this proceeding, I will describe the appropri-
ate unit, as has the General Counsel in the complaint, by reference to the
current collective-bargaining agreement.
s Also referred to as vendors and as suppliers.
4 Also referred to as cosmeticians, as line persons, as beauty operators,
and as beauty advisors.
rates be restored, with cosmetics sales employees being
made whole for losses that they sustained by virtue of
the reductions. By letter dated February 9, the Respond-
ent replied that article 10.07 of the collective-bargaining
agreement "indicates that bonuses shall not be considered
as wages, but are to be considered as extra compensation
and that furthermore, such bonuses are the option of the
employer and may be changed or discontinued at any
time without notice." Article 10.07 of the current agree-
ment provides:
All bonuses and discounts paid or given to the em-
ployee shall not be considered as wages, but are to
be considered for the purpose of this Agreement as
extra compensation over and above the minimum
wage provided for in this Agreement. All bonuses
and discounts are at the option of the Employer and
may be changed, or discontinued at any time with-
out notice. Bonuses and discounts shall not be used
to defeat the wage provisions of the Agreement.
The language that now is article 10.07 first appeared in
the 1969 agreement. It then had been continued in the
same form in succeeding agreements. The language had
been proposed initially by the association because it had
been held, by the Boad or by an arbitrator, that the then-
existing agreement did not permit signatory employers to
unilaterally change employee discounts. Thus, Respond-
ent's vice president, Calvin Hendricks, testified that the
problem giving rise to proposal of the language "in-
volved primarily employee discounts, change of compa-
ny policy concerning employee discounts and we lost
that decision and the corporate policy was made that we
would not sign any further labor agreements without a
provision that we had full control over that type of ben-
efit."
It is undisputed that during the 1969 negotiations,
there had been specific discussion of commissions in two
related contexts. First, as initially proposed by the asso-
ciation, the language that now is article 10.07 had con-
tained the word "commissions," as well as bonuses and
discounts. Second, prior agreements had specified com-
mission rates to be paid to various employee classifica-
tions.5 The Union had agreed to delete all of these refer-
ences to commission rates and the association had agreed
to delete "commissions" from the provision that is now
article 10.07. According to the undisputed testimony of
the then assistant to the president and director of collec-
tive bargaining for the Union, Edgar T. Hardy, the par-
ties had "specifically left the word 'commissions' out of
[the clause that is now art. 10.07] because of the fact
even though we deleted most of the commission depart-
ments out of the Rhodes contract at that time, there
were still commissions being paid in cosmetic and possi-
bly in the shoe department, I don't recall."
6 But, not to cosmetics sales employees. The commissions paid to them
by vendors, as their portions of the vendors' rebates, had not been enu-
merated in prior agreements due to the variances in commission rates
paid by the various vendors. To have attempted to enumerate all of them
would have been too unwieldy.
1333
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As stated .above, the language contained in article
10.07 of the current agreement had remained in each suc-
cessive collective-bargaining agreement since the one ne-
gotiated in 1969. Apparently commencing with negotia-
tions for the 1977 agreement, the Union had attempted to
seek agreement to an amendment of that language by
adding a "company benefits" provision to it. That is, the
Union had sought to have it amended to specifically pro-
vide, inter alia, that before the Respondent made changes
allowed by the provision, "the Union will be given rea-
sonable notice of the contemplated changes. The [parties]
will then meet and negotiate on these contemplated
changes." However, the Respondent consistently had re-
sisted this amendment and it never became a part of arti-
cle 10.07. So far as the record discloses, there never had
been any discussion of commissions, including third-party
vendor commissions, in connection with the proposals to
amend the language of article 10.07 by adding a "compa-
ny benefits" provision to it.
Hendricks denied that any official of the Union, in-
cluding Hardy specifically, had ever said that third-party
vendor commissions would be the subject of bargaining.
However, Hendricks testified that during negotiations for
the current agreement, he had seen fit to raise the subject
of the scope of article 10.07, pointing out to the Union's
representatives "that when we talked about bonuses, dis-
counts, we wanted them to understand that that included
all the cosmetic bonuses or commissions, as well." Yet,
Hendricks was unable to recall what Hardy had said in
response to that remark. Hardy testified the Union and
its representatives "have always taken the position with
Rhodes and [the Respondent] and all other stores that
have commissions that commissions will continue to be a
subject of bargaining, not only in departments where
commissions are spelled out in the contract, but in de-
partments where commissions are paid by a vendor or
otherwise that would not-they would not be taken
away from the people in the midst of a contract which,
in effect, would be a reduction in wages." 6
Finally, during negotiations for the current agreement,
the parties added a new provision:
8.10 CONTRACT MINIMUMS
Except as provided in this Agreement, the terms
herein are intended to cover only minimums in
wages, hours, and working conditions, benefits and
other terms and conditions of employment in effect
and may reduce the same to the minimum herein
prescribed without the consent of the Union.
6 There is no basis for concluding that Hardy would not have appreci-
ated the distinction between the term bonuses, on the one hand, and the
term "commissions," on the other. For approximately 6 months before
signing the current agreement with the Respondent, Hardy had signed an
agreement with the Greater Seattle Retail Drug Association that includ-
ed a provision stating:
All bonuses, discounts and commissions paid or given to the employ-
ees shall not [be] considered as wages, but are to be considered for
the purpose of this Agreement as extra compensation over and above
the minimum wage provided for in this Agreement. All bonuses, dis-
counts, and commissions are at the option of the Employer and may
be changed or discontinued at any time without notice. Bonuses, dis-
counts and commissions shall not be used to defeat the wage provi-
sion of this Agreement.
It is undisputed that this provision had been proposed by
the Respondent to cover situations where employees had
been given merit increases and, then, due to changed cir-
cumstances, the Respondent desired to discontinue pay-
ment of the amount of that increase. Thus, as Hardy ex-
plained:
Years ago . . . we took the position with the em-
ployers that if a merit increase was put into effect,
they had to maintain that and the employers took
the position if that was the case, they were not
going to give any more merit increases. We did not
want to preclude our members from receiving addi-
tional money, so we agreed that they could give
merit increases and take them back if there were-
the reason that it was given was no longer in exist-
ence.
As I testified earlier, the employers took the posi-
tion that in the future they would not give any
merit increases to employees if they were going to
be frozen into them and we did not want to deprive
our members from receiving additional pay, so we
agreed that if circumstances changed under which
they were given the merit, that the merit also could
be taken away, such as extra responsibility and then
no longer having the extra responsibility and so on
Analysis
The Respondent does not dispute that ordinarily com-
missions paid to employees are a mandatory subject of
bargaining about which employers are obliged to bargain
with their employees' bargaining representative. Nor
does the Respondent deny that it did not notify and
afford the Union an opportunity to bargain about the
changes in commission percentages implemented on Jan-
uary 5. However, as set forth above, the Respondent
argues that because the commissions paid to cosmetics
sales employees emanate from third parties, who have
total discretion over whether or not to pay them, there-
fore the Respondent has no control over them and they
cannot be treated as mandatory subjects of bargaining by
the Respondent.
Of course, employers cannot be expected to bargain
concerning third-party changes over which those em-
ployers have no control or influence.7 Yet, the mere fact
I Nevertheless, the effects of such changes on terms and conditions of
employment of employers' employees may well be a proper subject of
bargaining inasmuch as the employers do control their own employees'
terms and conditions of employment. For example, a vendor's realloca-
tion in the employee-commission portion of a rebate, which results in re-
duction in sales employees' income, may lead the bargaining representa-
tive to propose reallocations in employee benefits paid by the employer,
in effect sacrificing benefits in other areas to preserve current income
levels, in a fashion similar to that suggested in other contexts. See, e.g.,
Fibreboard Paper Products v. NLRB, 379 U.S. 203, 213-214 (1964). This,
however, is an issue that is not posed by either the pleadings or the facts
of this case inasmuch as there is no evidence that the Union made any
request to bargain about the effects of the reduced commissions. For
these reasons, and in view of my disposition of the issues that are posed,
the issue of whether or not a duty to bargain concerning the effects of
third-party changes on unit employees is not one that need be reached in
this case.
1334
LAMONT'S APPAREL
that an employee benefit emanates from third parties
does not automatically preclude all further analysis of an
employer's duty to bargain about changes or discontinu-
ance of them by those third parties. For, where an em-
ployer can influence third-party decisions concerning
modifications and continuance of employee benefits, then
to that extent the employer possesses the ability to affect
its own employees' terms and conditions of employment
and, concomitantly, is obliged to bargain about changes
that it can influence. See Ford Motor Co. v. NLRB, 441
U.S. 488, 503 (1979).
The instant case provides an excellent illustration of
this principle. There is no evidence that the vendors in-
dependently had been planning to consider changes in
rebate allocations. The Respondent concedes that their
reconsideration of rebate allocations had been generated
by its own overtures to them, requesting a reduction in
the proportion of rebates allocated to commissions. Con-
sequently, so far as the record discloses, the Respond-
ent's cosmetics sales employees would not have suffered
a reduction in their commissions but for a process of re-
consideration initiated by the Respondent.
Moreover, the Respondent had felt compelled to re-
quest reallocation of rebates because it had believed that
it had not been earning enough under the then-existing
allocation and had felt that the only other alternatives to
reallocation, available to it, would be either reduction in
the number of cosmetics sales employees employed or
conversion to self-service cosmetics departments. Yet,
cost of operations and its effect on the employee comple-
ment "have long been regarded as matters peculiarly
suitable for resolution within the collective-bargaining
framework, and industrial experience demonstrates that
collective negotiation has been highly successful in
achieving peaceful accommodation of the conflicting in-
terests." Fibreboard Paper Products, supra. In short, had
the Respondent first approached the Union regarding its
problem, a negotiated solution might have been reached,
through collective bargaining, by making changes in
other areas that would have resolved the Respondent's
difficulty without adversely affecting cosmetics sales em-
ployees' commissions. "National labor policy contem-
plates that areas of common dispute between employers
and employees be funneled into collective bargaining."
Ford Motor Co. v. NLRB, supra, 441 U.S. at 499. Of
course, had it not been possible to reach a solution
through the collective-bargaining process, the Respond-
ent then would have been "free to act . . . even in the
absence of union approval." NLRB v. United Brass
Works, 287 F.2d 689, 698 (4th Cir. 1961).
Therefore, I conclude that vendor commissions paid to
cosmetics sales employees are a mandatory bargaining
subject to the extent that the Respondent is able to initi-
ate or to influence vendor consideration of rebate pro-
portions allocated to commissions. Absent other consid-
erations, the Respondent is obliged to notify and afford
the Union an opportunity to bargain about changes that
the Respondent intends to recommend that vendors
make in the commission portion of rebates before the Re-
spondent makes those recommendations to the vendors.
However, as set forth above, the Respondent argues that
other considerations are present in the instant case. Spe-
cifically, it argues that articles 8.06 and 10.07 of its col-
lective-bargaining agreement permit it to unilaterally act
to reduce commissions. That is, the Respondent contends
that the Union has waived its right to bargaining about
this subject.
As concluded above, the Union has a statutory right to
bargain concerning the exercise of the Respondent's abil-
ity to influence changes in cosmetics sales employees'
commissions. Of course, that statutory right can be
waived. However, "there is a presumption that employ-
ees and labor organizations in their collective-bargaining
agreements, have not abandoned rights guaranteed them
in the Act." A-I Fire Protection, 250 NLRB 217, 219
(1980), remanded on other grounds 676 F.2d 826 (D.C.
Cir. 1982). "Instead, it was incumbent on Respondent, if
it sought to limit or restrict the Union's statutory right,
to obtain the waiver." Park-Ohio Industries, 257 NLRB
413, 414 (1981).
"Waiver is the intentional relinquishment of a known
right and thus entails some inquiry into the motive of the
party against whom it is applied." Larkins v. NLRB, 596
F.2d 240, 247 (7th Cir. 1979). For a waiver of statutory
rights to exist, it must be "express," Communications
Workers of America Local 1051 v. NLRB, 644 F.2d 923,
928 (Ist Cir. 1981), and in language "clear and unmistak-
able. Likewise, there must be a conscious relinquishment
by the Union clearly intended and expressed to give up
the right." Proctor d Gamble Mfg. Co. v. NLRB, 603
F.2d 1310, 1318 (8th Cir. 1979), and cases cited therein.
According, in making a determination as to whether or
not a waiver exists, resort cannot be had purely to a
"simplistic formula." Radioear Corp., 214 NLRB 362
(1974); Accord: Road Sprinkler Fitters Local 669 v.
NLRB, 600 F.2d 918, 922 (D.C. Cir. 1979). Instead, "[a]
finding of waiver depends upon whether an analysis of
the contractual language and the facts and circumstances
surrounding the making and administration of the collec-
tive bargaining agreement indicates whether there has
been a clear relinquishment of the bargaining right."
American Oil Co. v. NLRB, 602 F.2d 184, 188 (8th Cir.
1979).
While article 10.07 lists "bonuses and discounts," it
makes no mention of "commissions." Accordingly, com-
missions are not expressly covered by article 10.07 and it
cannot be concluded that that article expressly waives
the Union's statutory right to bargain about that subject
during the term of the agreement. In its brief, the Re-
spondent argues that the dictionary definition of "bonus"
encompasses the elements of commission as well. But, a
determination of waiver is dependent on what the parties
contemplated in negotiating a particular clause, not on
what meanings might be ascribed to it by other parties.
Here, there is no evidence that during the negotiations in
1969, the parties had intended the word bonuses to em-
brace commissions, as well. To the contrary, Hardy testi-
fied credibly that when the language had been negotiat-
ed, the Union had expressly excepted from its ambit
commissions for cosmetics and possibly shoe department
sales employees.
Hardy's testimony regarding the exclusion of cosmet-
ics sales commissions from the language of what has
1335
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
become article 10.07 is confirmed by several objective
factors. First, it is undisputed that as proposed initially,
the provision had contained the word "commissions" and
that the parties had agreed to delete that word when the
Union had objected to its inclusion. Second, as set forth
above, Hendricks testified that the provision had been
proposed in 1969 to alleviate a problem-changes in poli-
cies concerning discounts-that is unrelated to commis-
sions. Third, during the negotiations for the current
agreement, Hendricks had made it a point to raise the
issue of the scope of article 10.07, observing that the Re-
spondent construed it as covering commissions. Yet, had
the bargaining history until that time been so clear as the
Respondent now attempts to portray it, seemingly there
would have been no need for Hendricks to have felt that
he needed to raise the subject of coverage of commis-
sions by article 10.07. That he did so is some evidence
that, based on prior agreements and on bargaining histo-
ry, the Respondent had doubts that the Union would
accept the Respondent's interpretation of the clause. Fur-
thermore, there is no basis for concluding that Hen-
dricks' remark about article 10.07 covering commissions,
made during negotiations for the current agreement, suf-
ficed to create a waiver of the Union's right to negotiate
about that subject. For, there is no evidence that the
Union's representatives had acquiesced in his interpreta-
tion of it. Hendricks could not recall what had been said
in response to his remark concerning article 10.07 cover-
ing commissions. Hardy testified that the Union always
had opposed its application to commissions, whenever
that subject had been broached.
Therefore, a preponderance of the evidence is not suf-
ficient to conclude that article 10.07 constituted a waiver
of the Union's statutory right to bargain concerning con-
tinuation and modification of cosmetics sales employees'
commission rates. Nor can it be said that the Union's
lack of success in obtaining agreement to a "company
benefits" amendment to article 10.07's provisions gives
rise to a waiver of its statutory right to bargain about
changes in commissions. The Union's proposed amend-
ment could only have pertained to subjects that the par-
ties agreed had been covered by article 10.07. The par-
ties did not agree that commissions was one of those sub-
jects. Thus, to accept the Respondent's argument about
the proposed "company benefits" provision would mean
that by proposing it, the Union thereby expanded the
breadth of the very provision that the Union was at-
tempting to limit. While an innovative feat of legerde-
main, it hardly satisfied the "clear and unmistakable" lan-
guage and "conscious relinquishment" tests, described
above, that must be satisfied to establish waiver of a stat-
utory right. Inasmuch as there is no evidence that in dis-
cussing the "company benefits" amendment to article
10.07, the parties had given any consideration to its ap-
plication to commissions, cf. Aeronca, Inc. v. NLRB, 650
F.2d 501 (4th Cir. 1981), I conclude that its proposal and
rejection do not serve as a waiver of the Union's right to
bargaining concerning that subject.
Nor does article 8.10 give rise to a waiver of that
right, although the issue is a much closer one than with
article 10.07. On its face, article 8.10 would appear to
accord the Respondent broad discretion to "reduce
[wages, hours and working conditions, benefits, and
other terms and conditions of employment] to the mini-
mum herein prescribed without the consent of the
union." Such broad language could be construed, absent
other evidence, as a waiver of the Union's right to bar-
gain concerning the Respondent's exercise of influence
on third-party vendors' payment of commissions. Yet, a
statutory right is at stake here and, as pointed out above,
both the Board and at least one circuit court of appeals
have cautioned that waivers of such rights should not be
resolved by resort to a "simplistic formula." Radioear
Corp., supra; Road Sprinkler Fitters Local Union No. 669,
supra.
It is undisputed that article 8.10 had been proposed
solely to solve the Respondent's problem with having to
negotiate whenever reducing or eliminating merit in-
creases given under circumstances that had ceased to
exist. Thus, it is a provision negotiated for a reason unre-
lated to payment of third-party vendor commissions to
cosmetics sales employees. Moreover, it was negotiated
against a background of union objections, voiced for
over a decade, to waiving the right to negotiate about
cosmetics sales employees' commissions. Indeed, that the
Respondent, itself, only belatedly saw the possibility of
applying article 8.10 to its actions leading to reduction of
commission rates in January is shown by two events.
First, during negotiations for the current agreement, in
which article 8.10 first appears, Hendricks had raised the
subject of cosmetics sales employees' commissions but
only in connection with article 10.07. There is no evi-
dence that there had been any discussion of the Respond-
ent's proposed article 8.10 applying to that subject.
Second, in its February 9 letter, replying to the Union's
protest of the reduction in commission rates, the Re-
spondent had grounded its contractual argument only on
article 10.07, making no mention of article 8.10. These
two events serve to reinforce the conclusion that, in ne-
gotiating it, the parties had not contemplated that article
8.10 would apply to commissions for cosmetics sales em-
ployees.
As set forth above, waiver of a statutory right contem-
plates a conscious or clear relinquishment of that right.
Proctor & Gamble Mfg. Co., supra; American Oil Co.,
supra. To permit parties to transpose contractual lan-
guage intended to apply to a limited situation to wholly
unrelated and separate situations, to which there had
been no discussion or consideration concerning applica-
tion, would reduce resolution of waiver issues to the
very type of "simplistic formula" cautioned against by
the Board and the Circuit Court of Appeals for the Dis-
trict of Columbia. Moreover, to do so would undermine
the very process of resolving areas of common disputes
through collective bargaining that national labor policy
seeks to foster. Ford Motor Co., supra.
Therefore, in light of the evidence that article 8.10 had
been intended to correct only the Respondent's problem
concerning elimination of portions of wages attributable
to prior merit increases reflecting circumstances no
longer existing, and absent evidence that the parties had
even contemplated the possibility that its language might
be applied to reductions in third-party vendors' commis-
1336
LAMONT'S APPAREL
sion rates for cosmetics sales employees, I conclude that
article 8.10 does not serve to establish a waiver of the
Union's right to prior notification of and the opportunity
to bargain about actions by the Respondent leading to
reduction of the rates of those commissions.
CONCLUSIONS OF LAW
1. Pay 'N Save Corporation d/b/a Lamont's Apparel,
Inc., A Wholly Owned Subsidiary, is an employer within
the meaning of Section 2(2) of the Act, engaged in com-
merce and in a business affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Retail Store Employees Union, Local 1001, char-
tered by United Food and Commercial Workers Interna-
tional Union, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. A unit appropriate for bargaining is: The unit of em-
ployees described in the collective-bargaining agreement
between Pay 'N Save Corporation d/b/a Lamont's Ap-
parel, Inc., A Wholly Owned Subsidiary and Retail
Store Employees Union, Local 1001, chartered by
United Food and Commercial Workers International
Union, AFL-CIO, dated July 21, 1980.
4. At all times material, Retail Store Employees
Union, Local 1001, chartered by United Food and Com-
mercial Workers International Union, AFL-CIO, has
been the exclusive collective-bargaining representative of
the employees in the above-described unit within the
meaning of Section 9(a) of the Act.
5. By failing to notify and afford an opporunity to bar-
gain to Retail Store Employees Union, Local 1001, char-
tered by United Food and Commercial Workers Interna-
tional Union, AFL-CIO, about its decision to request
that third-party vendors consider reducing commission
rates paid by them to cosmetics sales employees included
in the appropriate bargaining unit described in Conclu-
sion of Law 3 above, Pay 'N Save Corporation d/b/a
Lamont's Apparel, Inc., A Wholly Owned Subsidiary,
has violated Section 8(a)(5) and (1) of the Act.
6. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Pay 'N Save Corporation d/b/a
Lamont's Apparel, Inc., A Wholly Owned Subsidiary,
engaged in certain unfair labor practices, I shall recom-
mend that it be ordered to cease and desist therefrom
and that it take certain affirmative action to effectuate
the policies of the Act. With respect to the latter, it shall
be ordered to reinstate, on request by Retail Store Em-
ployees Union, Local 1001, chartered by United Food
and Commercial Workers International Union, AFL-
CIO, the commission rates paid to cosmetics sales em-
ployees before January 5, 1981, to maintain those rates in
effect until such time as it has satisfied its obligation to
bargain concerning its requests to vendors for changes in
those rates, and to make cosmetics sales employees
whole for any losses sustained by virtue of the changes
in those rates on January 5, 1981, as prescribed in F: W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as set
forth in Isis Plumbing Co., 138 NLRB 716 (1962), enf.
denied on different grounds 322 F.2d 913 (9th Cir. 1963),
and Florida Steel Corp., 231 NLRB 651 (1977).
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommended
ORDER 8
The Respondent, Pay 'N Save Corporation d/b/a La-
mont's Apparel, Inc., A Wholly Owned Subsidiary, Seat-
tle, Washington, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Failing to notify and afford an opportunity to bar-
gain to Retail Store Employees Union, Local 1001, char-
tered by United Food and Commercial Workers Interna-
tional Union, AFL-CIO, about decisions to request that
third-party vendors consider reducing rates of commis-
sions paid by them to employees included in the appro-
priate bargaining unit described in Conclusion of Law 3
above.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act.
(a) Upon request by Retail Store Employees Union,
Local 1001, chartered by United Food and Commercial
Workers International Union, AFL-CIO, reinstate com-
mission rates paid to cosmetics sales employees, included
in the appropriate bargaining unit described in Conclu-
sion of Law 3 above, to levels existing before January 5,
1981, and maintain those commission rates in effect until
such time as it has satisfied its bargaining obligation con-
cerning them.
(b) Make whole cosmetics sales employees, in the ap-
propriate bargaining unit described in Conclusion of Law
3 above, for any losses sustained by them as a result of
the changes in cosmetics sales commission rates made on
January 5, 1981, with interest on the amounts owing, in
the manner set forth in the remedy section of this Deci-
sion.
(c) Preserve and, on request, make available to the
Board or its agents all payroll and other records neces-
sary to compute the backpay set forth in the remedy sec-
tion of this Decision.
(d) Post at all department stores covered by its collec-
tive-bargaining agreement with Retail Store Employees
Union, Local 1001, chartered by United Food and Com-
mercial Workers International Union, AFL-CIO, copies
of the attached notice marked "Appendix." 9 Copies of
the notice, on forms provided by the Regional Director
for Region 19, after being signed by Respondent's au-
thorized representative, shall be posted immediately upon
8 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
9 If 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board"
1337
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to em-
ployees are'customarily posted. Reasonable steps shall be
taken by Respondent to ensure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps have been
taken to comply.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all parties had an opportunity to
present evidence, the National Labor Relations Board
has found that we violated the National Labor Relations
Act and we have been ordered to post this notice.
The Act gives all employees the following rights:
To organize themselves
To form, join, or support unions
To bargain as a group through representatives of
their own choosing
To act together for collective bargaining or other
mutual aid or protection
To refrain from any or all such activity except to
the extent that the employees' bargaining represent-
ative and employer have a collective-bargaining
agreement which imposes a lawful requirement that
employees become union members.
WE WILL NOT fail to notify Retail Store Employees
Union, Local 1001, chartered by United Food and Com-
mercial Workers International Union, AFL-CIO, and
afford it an opportunity to bargain about decisions made
by us to request third-party vendors to consider reducing
commission rates paid by them to employees represented
by that labor organization in the following appropriate
bargaining unit:
The unit of employees described in the collective-
bargaining agreement between Pay 'N Save Corpo-
ration d/b/a Lamont's Apparel, Inc., A Wholly
Owned Subsidiary and Retail Store Employees
Union, Local 1001, chartered by United Food and
Commercial Workers International Union, AFL-
CIO, dated July 21, 1980.
WE WILL NOT in any like or related manner interfere
with your rights set forth above which are guaranteed
by the National Labor Relations Act.
WE WILL, on request by Retail Store Employees
Union, Local 1001, chartered by United Food and Com-
mercial Workers International Union, AFL-CIO, rein-
state commission rates paid to cosmetics sales employees,
included in the above-described bargaining unit, to the
levels existing before January 5, 1981, and maintain those
commission rates in effect until such time as we have sat-
isfied our bargaining obligation concerning them.
WE WILL make cosmetics sales employees in the
above-described bargaining unit whole for any losses sus-
tained by them as a result of the changes in cosmetics
sales commission rates made on January 5, 1981, with in-
terest on the amounts owing.
PAY 'N SAVE CORPORATION D/B/A LA-
MONT'S APPAREL, INC., A WHOLLY
OWNED SUBSIDIARY
1338