Nordstrom, Inc.

National Labor Relations Board - Board Decisions

May 12, 1977

229 N.L.R.B. 601 (N.L.R.B. 1977)

NORDSTROM, INC.
Nordstrom, Inc. and Retail Store Employees Union
Local No. 1001, AFL-CIO
Nordstrom, Inc. and Seattle Department Stores
Association and Retail Store Employees Union
Local No. 1001, AFL-CIO. Cases 19-CA-8139,
19-CA-8143, and 19-CA-8162
May 12, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND WALTHER
On May 18, 1976, Administrative Law Judge
Richard J. Boyce issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, the General Counsel and
Charging Party filed limited cross-exceptions and an
answering brief, and Respondent filed a brief in
response to those cross-exceptions.
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 record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,
findings, and conclusions of the Administrative Law
Judge only to the extent consistent herewith and to
adopt his recommended Order as modified herein.
We disagree with the Administrative Law Judge's
conclusion that Respondent violated Section 8(a)(5)
of the Act when it failed to "honor the Union's
acceptance [of Respondent's latest offer] and to sign
the document later tendered as an embodiment of
that acceptance." Simply stated, the Union did not
accept the actual offer.
There is no dispute on the operative facts. As of
November 4, 1975, the bargaining issue to be
resolved was the journeyman wage. Respondent
Nordstrom was offering an hourly wage increase of
$1.20 over a 3-year period, the Charging Party-Union
demanding $1.50. The Charging Party, in support of
the demand, picketed Nordstrom the following
morning. That afternoon, Respondent indicated that
its $1.20 wage proposal remained its offer but that
there was pressure from within the Nordstrom family
to reduce it and the Charging Party should, therefore,
accept that offer to "save face." The Charging Party
indicated that it would accept the $1.20 increase but
I The record, bnefs, and Administrative Law Judge's Decision adequate-
ly set forth the issues presented in this case. Respondent's request for oral
argument is therefore denied.
2 The Charging Party. properly, does not contend that this response
constituted an acceptance of Nordstrom's offer. When Respondent
subsequently added its unit merger proposal, the Charging Party indicated
229 NLRB No. 70
only if the increase were prorated on a 3-year 70-50-
0 basis as opposed to the 50-35-35 basis proposed by
Nordstrom. 2 Thereafter and through a sequence of
events more fully detailed in the Administrative Law
Judge's Decision the Respondent did, in fact, tie to
its $1.20 wage proposal three additional demands:
that employees who crossed the picket line be
granted amnesty from Charging Party discipline, that
the Charging Party not press the reinstatement of
certain discharges, and, finally, that the display
department unit be merged, or "folded in," with the
larger sales department unit also represented by the
Charging Party.
On the night of November 5, the Charging Party
indicated to Respondent that it had "accepted"
Respondent's 50-35-35 wage proposal. The "accep-
tance" did not address itself to the recently added
amnesty, reinstatement, and merger demands of
Respondent.
The issue here, succinctly, is whether one party to
collective-bargaining negotiations can effectively
conclude negotiations by agreeing only to those
demands of the other party which constitute manda-
tory subjects of bargaining. 3 Citing N.L.R.B. v.
Wooster Division of Borg-Warner Corp., 356 U.S. 342
(1958), the Administrative Law Judge concludes that
the Charging Party's acceptance of the mandatory
subject and unilateral dismissal of the nonmandatory
subjects compel the Respondent to execute a
contract embodying that acceptance. We believe
Borg-Warner compels no such result. That a party
may not lawfully insist upon the inclusion of
proposals nonmandatory in nature is, of course,
clear. But the General Counsel's case moves, in our
view, beyond that proposition to the extent that it
negates the considerable relationships which may
exist between both mandatory and nonmandatory
subjects. Certainly, nonmandatory subjects (for
present example, a demand that reinstatement rights
of certain discharges and, presumably, backpay for
them be waived), can, as a function of cost, bear
upon a party's wage-increase proposals. To say that
the proponent of the reinstatement/backpay waiver
cannot insist upon the inclusion of such a proposal
means no more than that. It does not mean that
once, out of necessity, the nonmandatory proposal is
removed from the table, the proponent of the
nonmandatory subject is not permitted to alter those
proposals which are mandatory in light of the
removal of the nonmandatory subject.
some amenability to it contingent upon Respondent's agreeing to a $1.50
wage increase, thereby demonstrating that it had not accepted the
Respondent's earlier $1.20 proposal.
3 The Administrative Law Judge concluded, and we agree, that the
additional amnesty, reinstatement, and merger proposals were nonmandato-
ry subjects of bargaining.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Circumstances may, we acknowledge, exist where a
party unlawfully insists on a nonmandatory subject's
inclusion at a time when all other matters have
previously, and independent of the outstanding
nonmandatory subject, been agreed upon. But
whether such insistence amounts not only to a refusal
to bargain in good faith but, further, as justification
for compelling that party to execute so much of the
contract as relates to the agreed-upon mandatory
subjects is not, on the facts presented, an issue here,
where it is clear that those nonmandatory subjects
proposed by Respondent were part of a package
containing the wage proposal.4
To accept the General Counsel's argument would
additionally introduce a degree of uncertainty into
collective bargaining itself. Parties to the negotiation
process could, if his view were adopted, find
themselves signatory to agreements which in no way
reflect the interaction and relationships between one
party's package proposals on mandatory and permis-
sive subjects,5 simply because the other party's
perception of the distinction between mandatory and
permissive areas was more akin to ours. For these
reasons, we conclude so much of the Administrative
Law Judge's Decision as orders Respondent to
execute the contract in issue is in error.
We shall, accordingly, dismiss the 8(a)(5) aspect of
the complaints but adopt his Decision and recom-
mended Order, in all other respects.7
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts the recommended Order of
the Administrative Law Judge as modified below and
hereby orders that the Respondent, Nordstrom, Inc.,
Seattle, Washington, its officers, agents, successors,
and assigns, shall take the action set forth in said
recommended Order, as so modified:
1. Substitute the following for paragraph l(b):
"(b) In any other manner interfering with, restrain-
ing, or coercing, employees in the exercise of the
rights guaranteed them by Section 7 of the National
Labor Relations Act."
2. Delete paragraphs 2(b) and (c) and reletter
remaining paragraphs accordingly.
3. Substitute the attached notice for that of the
Administrative Law Judge.
4 Compare Southern California Pipe Trades District Council No. 16 of the
United Association (Aero Plumbing Co.), 167 NLRB 1004 (1967).
5 There is no allegation here that Respondent insisted to impasse upon
the nonmandatory proposals.
B See John Nickels & Leonard Whitney, d/bl/a Big Food King, 171 NLRB
1491 (1968). Chairman Fanning, dissenting in part therein, views it as
distinguishable from the instant case inasmuch as, in Big John Food King,
the subject purportedly separating the parties (tying the contract's effective
date to final disposition of a request for review), whether that subject was
mandatory or not, became superfluous since the Board had resolved the
request for review prior to a subsequent attempt by the charging party
therein to reach a contract. The Big John respondent could not have,
therefore, proposed the tie-in in good faith, in Chairman Fanning's view.
7 Chairman Fanning would reverse, additionally, that aspect of the case
which finds no violation of Sec. 8(aXI) in Respondent's activities in aiding
union members to resign, the activity amounting, in his view, to unlawful
encouragement.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives all
employees the following rights:
To organize themselves
To form, join, or support unions
To bargain as a group through a represen-
tative they choose
To act together for collective bargaining
or other mutual aid or protection
To refrain from any or all such activities.
In recognition of these rights, we hereby notify our
employees that:
WE WILL NOT threaten our employees with
discharge, and discharge them, for engaging in
union or other activities protected by the Act.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of the rights guaranteed them in Section 7 of the
National Labor Relations Act.
WE WILL offer to Sherri Hochfield, Joseph
Peterson, Rickie Reiger, and Sharon Weil imme-
diate and full reinstatement to their former
positions or, if those positions no longer exist, to
substantially equivalent positions, without preju-
dice to their seniority or other rights and
privileges, dismissing if necessary any employees
hired to replace them; and make them whole for
any monetary losses suffered because of the
misconduct against them.
NORDSTROM, INC.
DECISION
STATEMENT OF THE CASE
RICHARD J. BOYCE, Administrative Law Judge: This
consolidated matter was heard before me in Seattle,
Washington, on February 26 and 27 and March 1 and 2,
1976. The charge in Case 19-CA-8139 was filed on
November 4, 1975; that in Case 19-CA-8143 on Novem-
ber 5 and amended on December 10, 1975; and that in
Case 19-CA-8162 on November 14 and amended on
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NORDSTROM, INC.
December 18, 1975, all by Retail Store Employees Union
Local No. 1001, AFL-CIO (herein called the Union).
The consolidated complaint issued December 31, 1975,
was amended on January 26, 1976,1 during the hearing,
and alleges certain violations by Seattle Department Stores
Association (herein called the Association) and Nord-
strom, Inc. (herein called Nordstrom), jointly, of Section
8(a)(5) and (1) of the National Labor Relations Act; and
by Nordstrom alone of Section 8(a)( ) and (3).
The parties were given opportunity during the hearing to
introduce relevant evidence, examine and cross-examine
witnesses, and argue orally. Timely briefs were filed for the
General Counsel and for Respondents. 2
I. ISSUES
The issues are:
A. Whether Nordstrom violated Section 8(a)(3) and (1)
by discharging four sales employees for picketing on behalf
of display-unit employees; whether one of its store
managers threatened an employee with discharge for so
picketing, and, if so, whether that conduct violated Section
8(a)(1); and whether it induced employees to resign from
the Union in a manner violative of Section 8(a)(1).
B. Whether Nordstrom and the Association, one or
both, violated Section 8(a)5) and (1) by refusing to sign a
bargaining agreement tendered by the Union and by
refusing to provide the Union with certain requested
information.
II. JURISDICTION
Nordstrom is engaged in the retail clothing business,
operating 17 stores in 8 States, including several stores in
the Greater Seattle area of King and Snohomish Counties,
Washington. Its 1975 gross income was $175 million and it
annually causes goods of a value far in excess of $50,000 to
be shipped across state lines.
The Association is an employer association which
advises and acts for various retail businesses in the Seattle
area, including Nordstrom, in collective bargaining and
related dealings with the Union and other labor organiza-
tions.
The complaint alleges, the answer admits, and it is found
that Nordstrom and the Association severally are employ-
ers engaged in and affecting commerce within Section 2(2),
(6), and (7) of the Act.3
' The consolidated complaint originally contained certain allegations
based upon yet another charge, docketed as Case 19-CA-8080. Those
allegations were dismissed by order of the Regional Director of Region 19
on January 26.
2 On May 3, 1976. well after the April 20 deadline for briefs, a letter was
received from the Union which appears in purpose to be a brief. It hereby is
stricken as untimely and shall be disregarded.
3 The complaint also alleges, and the answer denies, that Nordstrom and
the Association are joint employers. Resolution of that question being
unnecessary to the assertion of jurisdiction over both, treatment of it is not
undertaken.
I The so-called sales unit also includes office employees. The current
contract covering those employees describes the unit, in substance, as
embracing all employees coming under the classifications set forth in the
mH. LABOR ORGANIZATION
The Union is a labor organization within Section 2(5) of
the Act.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
The Union represents two multistore units of Nordstrom
employees in the Greater Seattle area, one consisting
mainly of sales employees,4 the other of display - i.e.,
window trimming, etc. - employees.5 The sales unit
embraces several hundred employees; the display unit, 14.
The Union represents similar units in two other major
department store chains in Greater Seattle-Frederick &
Nelson and The Bon Marche. Negotiations concerning the
sales units of the three chains traditionally are coordinated,
the Association speaking for all three employers and the
resulting contracts being largely identical. Upon conclu-
sion of sales-unit negotiations, display-unit bargaining
begins on the same coordinated basis. Except for wages
and classifications, the terms of the sales-unit contracts
generally are incorporated into the display-unit contracts.
The contracts for both units, and all three employers,
normally have a common expiration date, and all new
contracts normally are retroactive to the expiration date of
those they supplant.
The most recent past contracts between the Union and
the three chains expired May 14, 1975. In keeping with the
usual practice, new agreements were reached covering the
sales units of the three chains in July 1975 and display-unit
bargaining began in September, the principal issue being
journeyman wages. Display-unit negotiations intensified in
mid-October. On October 28, the display employees of the
three chains went on strike, but without picketing, in
support of the Union's demands. Identical settlements were
reached with The Bon Marche on October 30 and Federick
& Nelson the day following.s These settlements provided
for an hourly journeyman wage increase of $1.50 over a 3-
year term, and that the display units be merged into the
sales units-or "folded in," to use the terminology of the
parties-at such time as the Union might invoke the wage
reopener provisions of the new contracts.
Settlement with Nordstrom, however, was not forthcom-
ing. Consequently, on November 5, the Union established
picket lines at Nordstrom's stores and distribution center in
King County.7 At a union meeting early that morning,
attended by many of Nordstrom's sales employees, Union
President Bill Olwell urged that the picket lines be
wage schedule employed in Nordstrom's establishments in King and
Snohomish Counties, by implication excluding professional employees.
guards, and supervisors. The parties agree and it is found that the unit, as
described in the contract, meets the standards of appropriateness prescribed
in Sec. 9(b) of the Act.
I The complaint alleges. the answer admits. and it is found that all
display employees of Nordstrom in King and Snohomish Counties,
excluding the standard exclusions, comprise an appropriate unit within Sec.
9(b).
6 The Frederick & Nelson settlement was preceded by several hours of
picketing on October 31.
T7 he Union informed Nordstrom about October 31 that, absent
settlement, the strike would be augmented by picketing as of November 5.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respected, stated that he would recommend disciplinary
fines exceeding wages by $1 per day for members working
behind the lines, and said that it would be permissible for
sales employees to carry picket signs.
The picketing lasted only I day, the Union contending
that a bargaining contract was reached the night of
November 5.
B. The Alleged Inducements To Resign the Union
Facts. On November 4, Ray Johnson, manager of
Nordstrom's downtown Seattle store, presided over a
meeting of an estimated 60 to 100 of that store's sales
employees and office workers. He used as his frame of
reference a three-page leaflet which had been distributed to
the employees upon their arrival at the meeting. The leaflet,
after mentioning the Union's announced intention to start
picketing November 5 and setting forth Nordstrom's view
of the negotiations, contained a series of questions and
answers "regarding your options on a strike." Among them
were these:
Q. If I am a member of the union, how can I cross
the picket line without being fined?
A. If you wish to cross and be protected, you
should first resign from the union before crossing.
Withdrawal is not sufficient; for under a withdrawal
card you are still a member. As long as you remain a
member you can be disciplined by the union. A letter in
in a U.S. Mailbox is sufficient evidence of resignation.
* * *
Q. If I come to work and see a picket line, what are
my options?
A. There are legally these options you have:
1. Refuse to cross the picket line. The company may
not discipline you for your actions. However you
may be temporarily or permanently replaced and
your fringe benefits and paycheck stopped.
2. Cross the picket line and come to work in the store
as usual. You may be fined by the union for your
actions.
3. Drop a letter of resignation in the closest U.S.
Mailbox and then come to work. Your benefits
and pay continue exactly as in the past and you
may not be fined by the union. You must offer in
the letter to pay dues as usual to the union.
On that same day, Robert Goodson, manager of Nord-
strom's Southcenter store, presided over a similar meeting
of 40 or 50 of that store's employees, using a leaflet much
like, if not the same as, that just described.
After the Southcenter meeting, having heard that
Goodson was available in his office for further discussion
of the matters raised, Salesperson Bernice Snider went to
see him. Waiting her turn in line, she eventually was able to
see him in private. It was her intention, formed during the
group meeting, to resign from the Union; and, after
Goodson discussed the options with her as described in the
I Transcript p. 84. 1. 10, hereby is corrected so that "through" becomes
"throw."
leaflet, she asked him how to "go about it." He showed her
a resignation form prepared by the Company and suggest-
ed that she sign and date it if that were her wish. Snider
asked what would happen if, after signing, she changed her
mind. Goodson replied that she should tell him and he
would "just throw it away." 8 Snider signed and dated the
form, and Goodson said he would see that it was mailed.
The form took this appearance:
November ---
To Whom it May Concern:
I wish to notify you that as of this time and date I am
resigning from Local 1001.
If required I will continue to tender my dues as per
law.
Print Name
Signature
On November 5, Snider received a telephone call from
Sheila Johnson, assistant manager in the ladies' sportswear
department at the Southcenter store. During the course of
the call, which apparently was not job related in its
inception, Snider told of her previous day's transaction
with Goodson. Johnson counseled that, "to be completely
safe," Snider should herself see that a resignation was
submitted, preferably by registered letter. Then, when
Snider said she could not remember the language, Johnson
dictated a resignation letter to her. Snider thereupon
submitted a second resignation.s The record is scant
concerning Johnson's authority, consisting of Snider's
affirmation, in reply to a leading question, that Johnson
"has the authority to effectively recommend that an
employee be hired or fired or disciplined," together with
Snider's testimony elsewhere that she "believe[s ]" Johnson
to be covered by the sales-unit contract.
About 200 of Nordstrom's employees submitted resigna-
tions to the Union in early November, some using the form
provided by the Company, others composing their own.
Approximately 40 resignation envelopes, bearing Nord-
strom postage-meter stamps, are in evidence.
Analysis. Nordstrom's conduct concerning the resigna-
tions approaches the cutting edge between the lawful and
the unlawful. Cases somewhat similar to the present are of
both persuasions.
Suggestive of a violation is Cumberland Shoe Company,
160 NLRB 1256 (1966). That case arose in an organization-
al context. Following a lawful antiunion speech by one
Bransford, the company vice president, some of the
employees went to his office about withdrawing their union
pledge cards. Bransford gave them, for copying, sample
letters requesting the return of their cards. Then, after
photocopying each employee's letter and placing the copy
in the employee's personnel folder, Bransford gave the
employees envelopes and told them the union's address,
9 Snider later directed the Union, by telephone, to disregard her
resignation letters.
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NORDSTROM, INC.
and in some instances himself stamped and mailed the
letters. The record being silent on the point, the Board
assumed the employees to have gone to the office of their
own choice. Finding Bransford to have violated Section
8(a)(1), the Board stated at 1259:
We think that Respondent violated Section 8(a)(1)
when Bransford . .. assisted employees to the consid-
erable extent that he did in attempting to withdraw
from the Union. Once an employee entered Bransford's
office, Bransford literally took command of the situa-
tion and shepherded the employee through the process
of drafting and mailing the withdrawal letter, and then
informing the employee that a copy of the letter would
be kept in his personnel file. Inherent in the situation
was, in our view, an influence exerted by Bransford
upon such employees to complete the process of
withdrawing from the Union which interfered with the
rights of the employees not to do so if, at any point,
they chose not to complete the process.
Indicative of an opposite result are such cases as Mosher
Steel Company, 220 NLRB 336 (1975); Clark Control
Division of A. O. Smith Corporation, 166 NLRB 266 (1967);
and Perkins Machine Company, 141 NLRB 697 (1963).
Mosher Steel Company, like the present case, involved
conduct during an economic strike. In response to the
stated employee fears of being fined for crossing the picket
line, the company's industrial relations manager prepared a
model letter of resignation from the union, copies of which
were distributed to various supervisory personnel. The
distribution was accompanied by an instruction that the
supervisors assist any employees who might ask how to
resign, but not give out paper or stamps, or mail the letters
for them. The Board, refusing to find a violation, stated at
220 NLRB at 337:
Absent some evidence that union resignation was a
company-imposed condition for returning to work (or
that employees were led to believe that it was such a
condition), and absent any evidence that the Company
did more than furnish employees with resignation
language, we decline to find that Respondent's conduct
in this regard was unlawful.
In Clark Control Division, the company assisted several
employees to retract their pledge cards during an organiza-
tional campaign, supplying paper and envelopes, telling the
employees what to write and where to send it, and in some
instances providing postage and mailing the lett rs as well.
In all but one instance, the process was initiated by the
employee. The Trial Examiner, affirmed by the Board
without comment, concluded that this was permissible
conduct, noting 166 NLRB at 267 that there was no
evidence "that any of those who revoked were pressured
into doing it by Respondent," that "each employee was
free to change his course of action toward revoking at any
time," and that the company "was not and had not been
engaging in an unlawful antiunion campaign."
In Perkins Machine Company, the prevailing labor
contract specified a 15-day period in which the employees
could resign from the Union, thereby escaping application
of the union-security clause. The company wrote the
employees before the onset of this period, informing them
of their right to resign and how to do it, and expressing
assurances that it was a matter of free employee choice
whether or not to do so. Enclosed were two envelopes, one
addressed to the union, one to the company; and duplicate
resignation letters. The employees were instructed, should
they wish to resign, to send one of the letters to each the
union and the company. The Board held that this was not a
violation, observing in 141 NLRB at 700:
Significantly, the Respondent's communication is free
from any threat of reprisal or promise of benefit in the
event the employees decided not to resign from the
Union or to revoke their authorizations for deduction
of Union dues.
It is concluded that the present case aligns more nearly
with those in which no violation was found than with
Cumberland Shoe Company. There are two elements in
Cumberland Shoe Company, but not in the present case,
enlarging the coercive potential of that situation. First, the
Cumberland Shoe conduct occurred during an organiza-
tional campaign, and thus was subject to employee
interpretation as reflecting hostility to the bargaining
principle. Nordstrom's conduct, on the other hand, could
only have been construed as an effort to minimize the
picketing's disruptive impact on the operation of the
business. Second, copies of the withdrawal letters in
Cumberland Shoe pointedly were inserted in the employees'
personnel folders, implying a continuing influence on the
employees' job situations.
Even in the more sensitive situation of an organizational
campaign, the Board, in Clark Control Division, found
conduct much like that of Nordstrom's to be acceptable. In
the present case, as in Clark Control Division, Mosher Steel
Company, and Perkins Machine Company, there is nothing
in the Company's conduct, so far as the record shows, from
which a promise of benefit or a threat of reprisal can be
inferred. It follows that employee free will was unimpaired
in the matter of the resignations; hence, there was no
violation.
C. The Discharges and the Alleged Threat Thereof
Facts. The four dischargees-Sherri Hochfield, Joseph
Peterson, Richie Reiger, and Sharon Weil-all were sales-
persons in Nordstrom's downtown Seattle store and all
carried picket signs at that store on November 5. Three
were discharged on November 5, with Reiger being fired
on the 6th when reporting for work. Their picket signs
stated:
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nordstrom
Display [10]
On
Strike
Retail Store
Employees Union
Local 1001
RCIA
It is undisputed that the four were discharged for
picketing, Nordstrom asserting that such conduct was in
breach of the no-strike clause in the sales-unit contract.
That clause states:
21.08 There shall be no strike or lockout during the life
of this agreement. The Union must notify the Seattle
Department Stores Association six (6) working days,
excluding Saturday, Sunday and holidays, prior to
observing any lawful primary picket line. The refusal of
any employee covered by the terms of this agreement to
pass through a picket line after the above-mentioned
notice is given shall not constitute a violation of this
understanding.
It also is undisputed that Nordstrom's sales employees
were entitled under article 21.08 to observe the picket lines
of November 5, the Union having complied with the notice
requirement by letter of October 15. Numerous sales
employees passively observed the lines, and the Company
took no action against them inasmuch as they did not
participate in the picketing.
Shortly after Peterson started picketing, but before his
discharge, he commented to Store Manager Johnson that
"the air out here is much nicer than it is inside." Johnson
relied, "Well, I could arrange for you to be permanently
our here."
Analysis. It is concluded that the discharges violated
Section 8(a)(3) and (I).
Basic under the Act is the right to strike. Section 13
states:
Nothing in this Act, except as specifically provided for
herein, shall be construed so as either to interfere with
or impede or diminish in any way the right to strike, or
to affect the limitations or qualifications on that right.
Among the beneficiaries of this right are employees who
honor a picket line in aid of an economic strike, even
though they be outside the affected bargaining unit. E.g.,
N.L.R.B. v. Southern Greyhound Lines, 426 F.2d 1299, 1301
(C.A. 5, 1970); Gary-Hobart Water Corporation, 210 NLRB
742, 744 (1974). And, the Act containing no specific
provision to the contrary as required by Section 13, the
right runs to picket-line participation by the nonunit
10 The record suggest that the "Nordstrom Display" portion of the
legend was affixed to some signs after the onset of the picketing. The four
employees, as well as passive observance. Quoting from
N.L.R.B. v. Southern Greyhound Lines, supra at 1301:
[T ]he employee ... has in effect plighted his troth with
the strikers, joined in their common cause, and has thus
become a striker himself.... Such an employee is
therefore entitled to all the protections due under the
. . .Act to those strikers with whom he has joined
cause. .... [T]he employer's right to discipline such an
employee to preserve the operation of his buiness is
limited to those measures which he could lawfully use
against the strikers.
See also A. O. Smith Corporation, 132 NLRB 339, 401
(1961).
This is not to say, however, that the right to engage in
assorted strike activities, sympathetic or otherwise, is
absolute. It may be waived by appropriate language in a
bargaining agreement. But, as stated in Gary-Hobart Water
Corporation, supra at 744, "such waivers will not be readily
inferred, and there must be a clear and unmistakable
showing that waiver occurred." See also Mastro Plastics
Corp. et al. v. N.LR.B., 350 U.S. 270, 278-284 (1956).
Nordstrom's, while not disputing the right of the sales
employees to honor the display unit's picket lines, argues
that article 21.08 constitutes just such a waiver as concerns
the picketing by the four dischargees. The sense of the
argument is that the first sentence of article 21.08 ("There
shall be no strike or lockout during the life of this
agreement."), without more, would amount to a waiver
even of picket-line observance, but that the Union gave
notice sufficient under the remaining two sentences to
preserve the employees' statutory right in that regard. The
argument continues, however, hewing strictly to the
language of those remaining two sentences, that the right
preserved by the Union's notice embraced only "the refusal
of any employee . . . to pass through a picket line," and
not participation in picket-line activities.
This argument is rejected for two reasons. First, apart
from the considerable burden on Nordstrom to prove a
waiver, the construction of article 21.08 on which the
argument relies is untenably technical, assigning unwar-
ranted stress to the nonmention of picket-line participa-
tion. A more plausible reading of the article-sanctioning
as it does "the refusal of any employee ... to pass through
a picket line"-is that, absent some sort of particulariza-
tion to the contrary, the sanction contemplates the sundry
variations on the theme of picket-line observance, includ-
ing picketing itself.
Second, even if Nordstrom's argued-for construction of
article 21.08 were the more tenable, that still would not
equate with a "clear and unmistakable showing" that the
Union had waived picket-line participation. Again refer-
ring to Gary-Hobart Water Corporation, supra at 746, fn. 20,
"It is the Respondent which must obtain contractual
language to limit such right in clear and unmistakable
terms." Any ban on picketing in article 21.08, but not
picket-line observance, being by inference only, Nordstrom
has failed this burden.
dischargees all testified credibly and without refutation that their signs
contained that clause.
606
NORDSTROM, INC.
In summary, Hochfield, Peterson, Reiger, and Weil
having been discharged for engaging in protected picket-
line activities, and there having been no waiver of their
right to so engage, Nordstrom violated Section 8(aX3) and
(I) in each instance.II
The discharges being unlawful, Store Manager Johnson's
predischarge remark to Peterson that he might be dis-
charged for picketing-"Well, I could arrange for you to be
permanently out here"--likewise was unlawful, violating
Section 8(a)(1). M Restaurants, Incorporated, d/b/a The
Mandarin, 223 NLRB 725 (1976). See also Husky Oil
Company, 217 NLRB 430 (1975).
D. The Alleged Refusal To Sign a Contract
Facts. By November 4, the area of dispute in the
negotiations had narrowed to journeyman wages. The
Union was seeking the same $1.50 package it had obtained
from The Bon Marche and Frederick & Nelson, while
Nordstrom was holding firm at an hourly wage increase of
$1.20 over a 3-year contract term-50 cents retroactive to
the expiration date of the old contract, and 35 cents on
each of the next two anniversary dates.
At the end of an afternoon bargaining session on
November 4, the Union's Olwell revealed that he was
meeting with the membership that evening and asked to
have Nordstrom's "final offer" beforehand. George Russill,
an attorney and Nordstrom's chief spokesman, accordingly
telephoned Olwell an hour or two later, proposing as the
Company's last offer the selfsame $1.20. Russill also
expressed the Company's amenability to a "fold-in"
arrangement keyed to the wage reopener, after the fashion
of the settlements with the other two chains. Olwell,
referring to the wage offer, commented that the Company
must be "crazy," expanding that the Union was still
determined to obtain $1.50, that $1.20 was unacceptable,
and that there would be picket lines in the morning.
As previously related, picketing began the morning of
November 5. On that same afternoon, representatives of
the Union and the Company met at the offices of the
Association. Olwell and John Nordstrom, company presi-
dent, presently entered into a discussion away from the
others. John Nordstrom announced that $1.20 remained
"on the table," but that he was having a hard time keeping
it there because of pressure from one of his brothers that
the offer be reduced.'2 J. Nordstrom continued that Olwell
could "save face" by accepting the $1.20 package before a
reduction occurred. Olwell "strongly stated" that the
Union would accept $1.20 on the basis of 70-50-0, but not
50-35-35, after which they "dropped the subject" of wages
for the time.
J. Nordstrom said he was "appalled" at that day's
picket-line activities, to which Olwell observed that strikes
are not "a love feast." Continuing in this vein, he declared
that "there is just no way we're going to let this small unit
disrupt our company like it has," whereupon he announced
" The same result would obtain were the dischargees deemed to have
picketed only on off-duty time, and not to have withheld their services.
Vincent F. Lang and Wilma Lang d/b/a/ La Mesa Convalescent Hospital, 217
NLRB 182 (1975); Burns Ford Inc., 182 NLRB 753, 760-761 (1970): Sears,
Roebuck d Co., 168 NLRB 955 (1967); Edir, Inc., d/b/a Wolfe's, 159 NLRB
686 (1966).
that any agreement would be contingent upon an immedi-
ate fold-in of the display unit into the sales unit. Quoting
from J. Nordstrom's testimony:
I told him that the fold-in at the Bon and Fredericks
that they had agreed upon was not satisfactory to us
because it was not a firm commitment. I had to have a
commitment that was immediate and positive and was
definitely going to happen, and not leave the thing
dangling in the air for the next time to come around
and have it happen again. So I was concerned that
[this] be a part of any package put forth at that time.
Olwell replied that the Union was "unable" to agree to an
immediate fold-in because of strictures in its constitution,
then asked J. Nordstrom if the Company would agree to a
$1.50 package in return for an immediate fold-in. J.
Nordstrom answered that he "would insist on the fold-in
right now regardless." With that, both remarked on the
futility of prolonging the conversation and they rejoined
the others.
J. Nordstrom and George Russill then convened away
from the others, at which time J. Nordstrom summarized
his conversation with Olwell and defined the limits of
Russill's authority in further bargaining. As Russill
testified:
[H]e spelled out for me the limit of my authority,
namely, that the Company was willing to still offer a
dollar twenty, but on the condition that an agreement
could be reached on the issues that had arisen since the
strike had commenced, namely, the problem of amnes-
ty [from union discipline] for.. . employees ... who
had crossed the picket line . . . and resolving to the
Company's satisfaction the issue of reinstatement of the
discharged employees and the immediate merger of the
display unit into the sales unit.'3
And, as J. Nordstrom testified:
I said [to Russill ] that there were three things that I had
to have. Number one I had to have the immediate fold-
in; number two, it was essential that he work out an
amnesty agreement as part of any package; and
number three, I told him that I didn't wany any
aggravation on the discharges, that I felt those were
proper and they should stand and be part of any
agreement we draw up.
J. Nordstrom then departed, leaving Russill to resume
the dialogue with Olwell. Drawing from Russill's testimo-
ny:
I told him [Olwell] that the Company was still willing to
go to a dollar twenty, but only if we could reach an
understanding satisfactory to both sides on the issues
that had developed since the strike began, and those
12 Management of Nordstrom is conducted by a committee comprised of
various family members.
13 Although the strike had been in progress for several days. the parties
in their conversations referred to the advent of the picketing at Nordstrom
as the start of the strike. The reference to "the discharged employees" is to
the salespersons discharged for picketing.
607
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
issues being the issue of amnesty generally for two
different bargaining units [i.e., sales and display]. ...
I also stated that we had to settle the issue of
reinstatement or not of the discharged employees and
the immediate merger of the display bargaining unit
into the larger unit.
In his later testimony, Russill clarified that his reference to
$1.20 envisioned a 50-35-35 apportionment. Olwell coun-
tered that the Union was adhering to its demand for a
$1.50 wage package. Beyond that, he continued, the
Union's constitution precluded an immediate merger of
units. Russill noted that Olwell "was a very persuasive and
a very able person and that he could in fact, if he set his
mind to it, obtain the immediate merger." The flattery got
Russill somewhere, Olwell replying that he would agree to
an immediate merger if the Company would agree to a
$1.50 package.
Regarding Russill's amnesty proposal, Olwell said,
"Absolutely not," adding as Russill recalled, that if he
"couldn't discipline his people as a result of a strike, that
there was no way he could hold a labor organization
together." As for the proposed nonreinstatement of the
salespersons discharged for picketing, Olwell likewise
responded in the negative. Olwell presently caucused with
other of the union representatives, after which he declared
to Russill that he was tired and wanted to go to bed, and
suggested that they meet the next day. The meeting then
disbanded, the parties seemingly at immutable logger-
heads.
Olwell's plea of weariness in fact was a ploy. Sensing the
imminent reduction of Nordstrom's wage proposal and
realizing that "a ton of members" were anxious for a
settlement, as indicated by the spate of resignations the
Union had received and by the considerable nonobser-
vance of the picket lines, Olwell's idea was to forestall a
further toughening of the company position until he could
meet with the membership.
Consistent with this strategy, Olwell hurriedly sum-
moned the members to a meeting at 10 p.m., November 5.
After voicing his expectation of a reduced company offer
and describing the Union's loss of leverage, he recom-
mended that the members then and there vote acceptance
of the Company's $1.20, 50-35-35 package. As Olwell
testified:
I said that at the time I felt like I was on the Titanic, we
had just struck the iceberg and we were on our way
down, and this was our last opportunity to reach up
and grab Mr. Nordstrom and take him with us.
The members voted adoption of Olwell's recommendation.
The vote did not address itself to the three conditions
newly imposed by the Company. Olwell's only allusion to
them during the meeting, apparently, was his stated fear
that he would have to make some concessions in the area of
amnesty to preserve the Company's offer at $1.20 should
there not be a quick acceptance.
Olwell telephoned Russill at 10:30 or 11 that night,
proclaiming that the Union had "accepted your offer," that
the strike was over, and that the employees would be on the
job in the morning. Russill asked, "What offer?" Olwell
said he was referring to the offer of the night before-i.e.,
November 4. Russill said he would "get ahold of" John
Nordstrom, then call Olwell back.
Russill talked to John Nordstrom by telephone, J.
Nordstrom verifying Russill's understanding that the
Company's current offer included the matters of fold-in,
amnesty, and nonreinstatement. Olwell and Russill next
talked about 12:30 a.m., November 6. In Russill's words:
I reiterated that I had told him that the Company was
willing to settle on the same economic package we had
proposed the day before, but only if an understanding
could be reached on the issues that had occurred since
the strike began.
Russill then discoursed on the law of offer and acceptance,
explaining that the November 4 condition-free offer had
been "effectively removed from the table" by the rejection
implicit in the Union's picketing. Olwell replied that John
Nordstrom had "re-confirmed" the offer in his discussion
with Olwell on the 5th, after the start of the picketing.
Russill at some point raised the possibility of a package
exceeding $1.20 in return for amnesty. Olwell rejected that,
explaining that, while $1.20 was "a bitter pill" the Union
had "swallowed" it and considered the negotiations over.
Russill persisted that there had not been an offer and an
acceptance on the same terms, and the conversation
seesawed inconclusively until the two at length decided to
meet the next morning in Olwell's office.
In Olwell's office the morning of November 6, he and
Russill rehashed the past night's arguments, Olwell insist-
ing that they had a contract-"we had a contract and that
was it as far as we were concerned"; Russill insisting to the
contrary. Russill repeated his view that the picketing had
worked to remove the Company's offer of November 4,
and that the only offer thereafter subject to acceptance
contained the three conditions. In answer to Russill's
question which of those offers the Union considered itself
to have accepted, Olwell said he would "let the lawyers
figure it out." Also during this meeting, Russill agreed to
provide the Union with a list of employees who had
worked on the day of the picketing. That is dealt with more
fully later in this decision.
On November 11, Nordstrom circulated a memorandum
to its employees, which stated in part:
When the Display Union officials decided to strike they
effectively rejected our final offer. Their attempt to
accept an invalid offer was to avoid discussing the
withdrawal of proposed fines against our people who
supported their company on Wednesday, November 5.
Because of the Union's behavior, we are preparing an
offer which is reduced from our pre-strike offer and will
submit it to the Union shortly.
The next day, November 12, Nordstrom did submit a
new offer, proposing an hourly journeyman wage increase
of $1.08 over 3 years rather than the earlier-proposed $1.20.
The Union responded by letter dated November 13,
asserting:
608
NORDSTROM, INC.
[W]e . reject the offer inasmuch as we already have
reached agreement with the Employer on the terms of a
new display contract ....
Then, to the accompaniment of a letter dated December 3,
the Union tendered to Nordstrom for signing the contract
that was "negotiated and ratified by the Membership in a
meeting on November 5, 1975." The tendered document
provided for a 3-year journeyman wage increase of $1.20 at
the rate of 50-35-35, otherwise embodying the matters not
in dispute, including retroactivity to May 15. 1975. It was
silent on the subjects of fold-in, amnesty, and nonreinstate-
ment of those discharged for picketing. The Company
refused to sign it.
Analysis. The weight of evidence leaves no doubt that,
when Olwell communicated an acceptance to Russill the
night of November 5, there was an offer pending from
Nordstrom; and that this offer left the Company's
preexisting wage proposal undisturbed, but included the
newly imposed conditions on fold-in, amnesty, and
nonreinstatement of the dischargees. As Russill himself
recalled telling Olwell that night:
I reiterated that I told him that the Company was
willing to settle on the same economic package we had
proposed the day before, but only if an understanding
could be reached on the issues that had occurred since
the strike began.
The evidence is plain, moreover, that the acceptance met
the offer without the new conditions attached.
The question reduces itself to whether the issues of fold-
in, amnesty, and nonreinstatement are "mandatory sub-
jects of bargaining" as that concept has been developed by
the Board and the courts. If they are not-that is, if the
only areas of disagreement pertained to nonmandatory
subjects-Nordstrom's refusals to honor the Union's
acceptance and to sign the document later tendered as an
embodiment of that acceptance were violative of Section
8(a)(5) and (1). Extracting from N.L.R.B. v. Wooster
Division of Borg-Warner Corp., 356 U.S. 342, 349 (1958):
[G]ood faith does not license the employer to refuse to
enter into agreements on the ground that they do not
include some proposal which is not a mandatory
subject of bargaining. . . . [S]uch conduct is, in
substance, a refusal to bargain about the subjects that
are within the scope of mandatory bargaining. This
does not mean that bargaining is to be confined to the
statutory subjects.... But it does not follow that,
because the company may propose these clauses, it can
lawfully insist upon them as a condition to any
agreement.
4 Respondents cite John Nickels & Leonard Whitney, d/b/a Big John
Food King, 171 NLRB 1491 (1968), for the proposition that, even if
Nordstrom did improperly insist on agreement in nonmandatory areas, the
refusal to sign nevertheless would not be unlawful, there being no meeting of
minds in all aspects of the offer. That case is distinguishable from the
present, and from those cited above, turning on the unique fact that 2
months elapsed between the union's first rejecting, then accepting, the
company's unlawfully-conditioned offer. The Board observed: "Although,
See also Covington Furniture Mfg. Corp., 212 NLRB 214
(1974); Southeastern Michigan Gas Company, 206 NLRB 60
(1973); F. McKenzie Davison, W. J. Hardy, Sr. and W. J.
Hardy, Jr., d/b/a Arlington Asphalt Company, 136 NLRB
742 (1962).14
By the Board's definition, mandatory subjects of bar-
gaining
... are those comprised in the phrase "wages, hours,
and other terms and conditions of employment" as set
forth in Section 8(d) of the Act. While the language is
broad, parameters have been established, although not
quantified. The touchstone is whether or not the
proposed clause sets a term or condition of employ-
ment or regulates the relation between the employer
and its employees.
International Union of Operating Engineers, Local No. 12,
187 NLRB 430, 432 (1970).
It is concluded that neither fold-in, amnesty, nor
reinstatement of dischargees is a mandatory subject as thus
defined. Regarding fold-in, it long has been settled that
"insistence upon a merger of preexisting units, as a
condition of reaching agreement in bargaining"-which
was precisely Nordstrom's position--breaches the bargain-
ing obligation. Newspaper Production Company, 205 NLRB
738, 740 (1973). See also Utility Workers Union of America,
AFL-CIO (Ohio Power Company), 203 NLRB 230 (1973). It
is equally well settled, as Respondents concede in their
brief, that the issue of amnesty from union discipline is not
a mandatory subject. As stated in Independent Stave
Company, 175 NLRB 156, 159(1969):
[A]n employer may not insist that a union accept
contract provisions which intrude on the disciplinary
powers over its members expressly reserved to unions
by the proviso to Section 8(b)(IXA) of the Act.[ 15
See also Allen-Bradley Company, 127 NLRB 44, 46-47
(1960).
While there does not seem to be quite so succinct an
articulation concerning the issue of reinstatement, it
nevertheless is clear that a party cannot be compelled to
bargain over that issue as it relates to unlawfully dis-
charged employees. In the somewhat analogous but
perhaps less compelling situation of unfair labor practice
strikers, for instance, the Board has held that an agreement
treating them as economic strikers for purposes of
reinstatement "is in derogation of the strikers' rights and
contravenes Board policies," and consequently is of no
effect. Wooster Division of Borg-Warner Corporation, 121
NLRB 1492, 1495 (1958). See also David 1. Cohen, d/b/a
. . . following the Union's categorical rejection of Respondent's offer ...
Respondent had indicated that its proposal was still open, we construe this
as at most an offer to hold matters open for only a limited time. . . and not
as an offer of indefinite duration. ...
I5 The proviso to Sec. 8(b)(1)(XA) states: "[Tlhis paragraph shall not
impair the right of a labor organization to prescribe its own rules with
respect to the acquisition or retention of membership therein."
609
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gay Paree Undergarment Company, 91 NLRB 1363
(1950).16
To summarize, because of Nordstrom's insistence that
any contract with the Union treat with the nonmandatory
subjects of fold-in, amnesty, and nonreinstatement of
illegally discharged employees, and because the Union had
accepted all mandatory areas of the offer, Nordstrom's
refusal to sign a contract covering those areas violated
Section 8(a)(5) and (1).17
Remaining is whether the Association, as Nordstrom's
bargaining agent, should share Nordstrom's culpability for
this misconduct. The complaint is couched in those terms,
on a joint-employer theory, but the General Counsel
ignores the question in his brief. Nordstrom not being part
of a multiemployer association operating in the name of
the Association, there being no showing that the Associa-
tion has a proclivity to violate the Act, and it being
manifest that its joinder as a wrongdoer is not essential to
the effectuation of a complete remedy, it is concluded that
no good purpose would be served by holding the Associa-
tion jointly liable with its principal. This portion of the
complaint therefore shall be dismissed as to the Associa-
tion. Cf. Chalk Metal Co., Inc. and Mrs. Gladys Selvin, 197
NLRB 1133 (1972), and West Coast Casket Company, Inc.,
192 NLRB 624, fn. 2 (1971).
E. The Alleged Refusal To Furnish Information
Facts. During the meeting in Olwell's office the morning
of November 6, he mentioned that most of those members
who had crossed the picket lines on the 5th could be
ascertained through in-store visitations by union business
agents. This prompted Russill to volunteer, in light of the
delicacy of the relationship between the parties, that the
Company instead provide a list of sales- and display-unit
employees who worked November 5. That was acceptable
to Olwell, and he directed the Union's supervisor of
business agents to "keep the guys out of the stores." 18
That afternoon, Russill was told by Nordstrom's man-
agement that he would not be permitted to honor his
commitment to Olwell. The reason given was that the
Union's business agents reportedly already had been in the
stores, going through timecards and talking to employees,
to learn who had worked on the 5th. Russill thereupon
telephoned Olwell that the deal was off. Olwell at first
protested that he had ordered the business agents to stay
out of the stores, then said: "All right, I'll get the
information other ways. I understand."
16 The issue of reinstatement of economic strikers apparently is a
mandatory subject. Pepsi-Cola Bottling Co. of Miami, Inc., 186 NLRB 477
(1970); Midwestern Instruments, Inc., 133 NLRB 1132, 1141(1961).
i? Respondents' "unclean hands" argument, referring to Olwell's
deception of November 5 that he was tired and going to bed when he in fact
planned to call a ratification meeting, is rejected. Not only is there no
showing of detrimental reliance on the ploy, but the argument forgets the
truism that "Collective bargaining frequently takes place in a poker game
atmosphere, with some bluff, with high cards kept strictly secret, and with
calculated bidding." Weyerhaeuser Company, et al., 155 NLRB 921, 951
(1965).
1' This is Russill's credited version of this aspect of the meeting. Olwell
testified that Russill agreed to provide not only a list of those who worked
on the 5th, but "in what departments they worked, and particularly in
commission areas where there were supervisors selling as to what the
disposition of the commissions-of the sales for that day were." Olwell
Although Olwell, at one point in his testimony, "categori-
cally den[ied]" wanting the list to learn who had breached
the picket lines, it is concluded that this was his purpose, to
facilitate the disciplining of wayward members. Not only
did he later modify his denial, admitting in effect that one
of his reasons "was to find out who had in fact crossed the
picket line," but, on November 14, he issued a memoran-
dum to the Nordstrom employees putting the matter in just
that context. The memorandum stated in relevant part:
The next day [November 6], Mr. Russell [sic] appeared
in our offices on behalf of the Nordstrom family and
made several agreements with us concerning the way in
which we would be able to identify those who crossed
the line. He also asked us for a statement as to what
would happen to those who crossed the line. We
indicated to him that we had no power to predetermine
that-that it would be determined in due course by the
Executive Board and ultimately by the membership of
the Union.
Analysis. The general principle is as stated in Curtiss-
Wright Corporation, Wright Aeronautical Division v.
N.L.R.B., 347 F.2d 61, 69 (C.A. 3, 1965):
[W]age and related information pertaining to employees
in the bargaining unit is presumptively relevant, for, as
such data concerns the core of the employer-employee
relationship, a union is not required to show the precise
relevance of it, unless effective employer rebuttal comes
forth ....
Once relevance is determined, an employer's refusal
to honor a request is aper se violation of the Act.
The Board has amplified that "This doctrine extends to a
union's right to request and to receive from the employer
the names of the employees . . ." continuing: "[I]t is
sufficient that the information sought by the Union is
related to the issues involved in collective bargaining."
Whitin Machine Works, 108 NLRB 1537, 1538-39 (1954).
See also Northwest Publications, Inc., 211 NLRB 464
(1974); Magma Copper Company, San Manuel Divison, 208
NLRB 329 (1974); Shell Oil Company, 190 NLRB 101
(1971); United Aircraft Corporation (Pratt & Whitney
Aircraft and Hamilton Standard Divisions), 181 NLRB 892
(1970).
The information sought by the Union in the present
case-the names of those who worked November 5-
doubtless is presumptively relevant, and thus presumptive-
continued: "We were very interested in finding out what happened to the
commissions, who received the commissions on the merchandise that was
sold on November 5. We also were interested in seeing who worked on the
sales floor from the standpoint of returns." Although both Russill and
Olwell were impressive witnesses, Russill is credited, that the Union sought
only a list of names, for two reasons. First, as is developed later in the text
above, the Union's only purpose was to learn who had crossed the picket
lines, to aid in the imposition of disciplinary sanctions. Second, by letter of
November 13 from the Union to Russill, only a list of names was
mentioned. Thus: "This will also confirm our oral agreement of November
6, 1975, that the Employer would provide the Union with a list of all
employees whom the Union represents who worked for the Employer on
November 5, 1975. As you will recall, the Employer agreed to do so rather
than have our representatives exercise our right to obtain such information
in the course of in-store visitation."
610
NORDSTROM, INC.
ly subject to production. The real question is whether there
has been, in the words of Curtiss-Wright, an "effective
employer rebuttal" of the presumption. It is concluded, in
the special circumstances at hand, that the presumption
has been overcome. Quoting from Cowles Communications,
Inc., 172 NLRB 1909 (1968):
Respondent's duty to furnish such information stems
from the underlying statutory duty imposed on employ-
ers and unions to bargain in good faith with respect to
mandatory subjects of bargaining. [Emphasis supplied.]
The Union wanted the names not so it could deal more
effectively with Nordstrom as concerns mandatory subjects
of bargaining, but purely to simplify the identification and
disciplining of those who breached its picket lines. As
noted earlier, on the amnesty issue, union discipline is not
an area of mandatory bargaining.
Nordstrom's refusal to furnish the list of names therefore
was not unlawful.'9
CONCLUSIONS OF LAW
1. By threatening to discharge Joseph Peterson, as
found herein, Nordstrom engaged in an unfair labor
practice within Section 8(a)(l) of the Act.
2. By discharging Sherri Hochfield, Joseph Peterson,
Rickie Reiger, and Sharon Weil, as found herein, Nord-
strom engaged in unfair labor practices within Section
8(a)(3) and (1) of the Act.
3. By refusing to honor the contract acceptance
communicated by the Union on November 5, 1975, and by
refusing to sign the contract tendered by the Union under
cover of December 3, 1975, as found herein, Nordstrom
engaged in unfair labor practices within Section 8(a)(5) and
(1) of the Act.
4. These unfair labor practices affect commerce within
Section 2(6) and (7) of the Act.
5. Nordstrom did not otherwise violate the Act as
alleged.
6. It would not effectuate the policies of the Act to hold
the Association liable for any misconduct herein.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
19 Similarly, a union is not entitled to the names of striker-replacements
if there is a substantial potential that the information will become a tool for
their harassment. W L McKnight, d/b/a Webster Outdoor Advertising
Company. 170 NLRB 1395 (1968).
20 All outstanding motions inconsistent with this recommended Order
hereby are denied. In the event no exceptions are filed as provided by Sec.
102.46 of the Rules and Regulations of the National Labor Relations Board,
the findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto shall
be deemed waived for all purposes.
21 Backpay shall be computed in accordance with F W. Woolworth
Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138
NLRB 716 (1962). Backpay liability shall begin as of November 6, 1975, it
being apparent from Reiger's being discharged that day despite the strike's
ORDER 2
Respondent, Nordstrom, Inc., King and Snohomish
Counties, Washington, its officer, agents, successors, and
assigns, shall:
I. Cease and desist from:
(a) Threatening its employees with discharge, and
discharging them, for engaging in union or other activities
protected by the Act.
(b) Refusing, upon request, to sign and retroactively
implement the collective bargaining contract tendered by
the Union on or about December 3, 1975.
2. Take this affirmative action:
(a) Offer to Sherri Hochfield, Joseph Peterson, Rickie
Reiger, and Sharon Weil immediate and full reinstatement
to their former positions or, if those positions no longer
exist, to substantially equivalent positions, without preju-
dice to their seniority or other rights and privileges,
dismissing if necessary any employees hired to replace
them; and make them whole for any monetary losses
suffered because of the misconduct against them.21
(b) Upon the Union's request, sign and retroactively
implement the bargaining contract tendered to it by the
Union on or about December 3, 1975.22
(c) Should the Union not request signing and implemen-
tation in accordance with the preceding paragraph, bargain
collectively with the Union, upon request, as the exclusive
representative of the employees in the appropriate display
unit, and embody any resultant understanding in a signed
document.23
(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 for determination of the amounts owing under
the terms of this Order.
(e) Post at its places of business in King and Snohomish
Counties, Washington, copies of the attached notice
marked "Appendix."2 4 Copies of said notice, on forms
provided by the Regional Director of Region 19, after
being signed by an authorized representative of Nord-
strom, shall be posted by Nordstrom immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken to ensure that said notices
are not altered, defaced, or covered by other material.
having ended and from Nordstrom's insistence in negotiations that the
discharges stand, that application for reinstatement would have been futile.
Eagle International, Inc., 223 NLRB 29(1976).
22 Retroactive implementation shall include making the covered employ-
ees whole, including any no longer on the payroll, with appropriate interest.
Estate of Edward Bryan Monritz d/b/a E. B. Moritz Foundry, 220 NLRB 1247
(1975).
23 E. B. Moritz Foundry, supra, M d M Oldsmobile, Inc., 156 NLRB 903,
917(1966).
24 In the event that the Board's 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."
611
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(f) Notify the Regional Director of Region 19, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
The complaint is dismissed as to Seattle Department
Stores Association and to the extent that violations have
not been found.
612