Pay 'N Save Corp.

National Labor Relations Board - Board Decisions

Apr 29, 1974

210 N.L.R.B. 311 (N.L.R.B. 1974)

PAY 'N SAVE CORP.
Pay 'N Save Corporation and Sign and Pictorial
Painters, Paint Makers and Allied Trades Local
1094, AFL-CIO, affiliated with Painters and
Allied Trades of America. Case 19-CA-6561
April 29, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On December 14, 1973, Administrative Law Judge
Jerrold H. Shapiro issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief, and the General
Counsel filed limited cross-exceptions and support-
ing brief.
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 and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Pay 'n Save Corpo-
ration, Seattle , Washington, its officers, agents,
successors , and assigns, shall take the action set forth
in the said recommended Order.
1 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge . It is the Board 's established policy not to
overrule an Admimstrative Law Judge 's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect . Standard Dry Wall Products,
Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A 3) We have carefully
examined the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge: The
hearing to this case held on November 8 and 9, 1973,1 was
based upon unfair labor practice charges filed by Sign and
Pictorial Painters, Paint Makers and Allied Trades Local
1094, AFL-CIO, affiliated with Painters and Allied Trades
of America, herein called the Union, on July 30 and
October 5, and a complaint issued on October 11 on behalf
of the General Counsel of the National Labor Relations
Board, herein called the Board, by the Regional Director
311
of the Board, Region 19, which complaint, as amended at
the hearing, alleges that Pay'n Save Corporation , herein
called the Respondent , has engaged in unfair labor
practices within the meaning of Section 8(axl),(3), and (5)
of the National Labor Relations Act , herein called the Act.
The Respondent filed an answer denying the commission
of the alleged unfair labor practices.
Upon the entire record , from my observation of the
demeanor of the witnesses, and having considered the
posthearing briefs submitted by the parties , I make, the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Pay'n Save Corporation, the Respondent , a Washington
corporation, operates retail department stores located in
the western part of the United States and maintains its
principal offices and headquarters in Seattle , Washington.
In the course and conduct of its business operations, the
Respondent annually receives gross revenue exceeding
$500,000, and annually purchases goods and materials
valued over $500,000 from suppliers located outside the
State of Washington . The Respondent admits that it is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent admits that Sign and Pictorial Painters,
Paint Makers and Allied Trades Local 1094, AFL-CIO,
affiliated with Painters and Allied Trades Of America, is a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE ISSUES IN PERSPECTIVE
The operation of the Respondent 's retail outlets is
directed from company headquarters , a multistory build-
ing, in Seattle, Washington. Respondent operates a retail
outlet on the ground and basement levels . The rest of the
building contains the Company 's administrative and
operating departments including the advertising depart-
ment. The advertising department historically, since at
least 1962, has operated a sign shop . During the period
material to this case , the sign shop occupied part of the
third and fourth floors of headquarters . It serviced
virtually all of the Company's over 100 retail stores,
providing them with advertising materials such as signs,
banners, and placards. The sign shop is under the
immediate supervision of Ray Rosenstrom who is responsi-
ble to Advertising Director Joseph Sullivan who exercises
ultimate supervision and is responsible to the Company's
vice president, Calvin Hendricks.
The Respondent has collective-bargaining agreements
with a number of labor organizations, other than the
Union, covering certain of its retail clerks, pharmacists,
and teamsters . The sign shop's employees have not been
represented by a union . The Union, early in 1973 , filed a
representation petition with the Board requesting that the
1 All dates herein, unless otherwise specified, refer to 1973
210 NLRB No. 46
312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board conduct a representation election among the sign
shop's 11 or 12 employees. On February 22, the Board
conducted a secret-ballot election among these employees;
a majority selected the Union as their exclusive collective-
bargaining representative. Accordingly, the Board on
March 5 certified the Union as the exclusive collective-
bargaining representative of the Respondent's production
employees employed at its sign shop.
The parties, following the Union's certification, met and
discussed the terms of a collective -bargaining agreement.
The Respondent broke off negotiations on May 3 and
again on July 24, and on August 26 granted wage increases
to employees. The General Counsel contends that the
Respondent's conduct at and away from the bargaining
table demonstrates that, in violation of Section 8(a)(5) and
(1) of the Act, it bargained in bad faith and, further
contends, that the wage increases granted by the Respon-
dent were unlawful for the reason that they were given
unilaterally without bargaining with the Union. Respon-
dent contends that it engaged in good-faith bargaining and
that it was privileged to break off negotiations and grant
the wage increases inasmuch as the parties had bargained
to an impasse . Also in dispute is the subcontracting of sign
shop work by Respondent rather than hiring new employ-
ees to replace terminated employees, and its closure of the
portion of the sign shop known as the silk screen operation
which resulted in the subcontracting of this work and the
layoff of two employees. The General Counsel' s position is
that the aforesaid subcontracting and the closure of the silk
screen room was done unilaterally without bargaining with
the Union and, as such, violated Section 8(a)(5) and (1) of
the Act and, further contends, that this conduct was
discriminatorily motivated in violation of Section 8(a)(3)
and (1) of the Act. Additionally, the General Counsel urges
that the Respondent's refusal to reassign the two laid-off
employees to other jobs within the sign shop was
unlawfully motivated. Respondent's position is that its
decisions to subcontract sign shop work was motivated by
legitimate business reasons. It also argues that the Union
was given an opportunity to bargain over the closing of the
silk screen operation, the layoff of the two employees, and
the subcontracting of this work, and that the remTining
subcontracting was simply a continuation of past practice.
Finally, the General Counsel alleges, and Respondent
denies, that certain statements made by Vice President
Hendricks relating to the closing of the sign shop and
another statement made by Advertising Director Sullivan
relating to the closing of the silk screen operation,
reasonably tended to interfere with, restrain, or coerce the
employees in the exercise of their rights guaranteed by
Section 7 of the Act in violation of Section 8(a)(1).
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The First Bargaining Session, Early April
The first bargaining session took place early in April in
the office of Robert Hirstel, a labor relations consultant,
who represented the Company at negotiations. The
Union's spokesman was Business Representative Charles
Hord. Hord had previously sent Hirstel a copy of the
Union's proposed contract.
Hirstel began the meeting by indicating that he did not
think the parties would have "too many problems" and
suggested that they review the Union's proposed contract
section by section. They followed this procedure, with
Hirstel , as described below , indicating that some parts of
the proposal were acceptable, others unacceptable, and
others would be taken under consideration.
Hirstel indicated that Respondent agreed with the
following parts of the Union's proposed contract: union
recognition; no discrimination against employees for
engaging in lawful union activities ; overtime pay for all
hours worked over 8 daily and 40 weekly ; a guarantee for
part-time employees of 4 consecutive hours of work at the
contract rate of pay ; payment for time absent from work
because of jury duty or a funeral in the immediate family;
the maintenance of the company's medical, dental and
pension plans ; access into the sign shop for a union
business representative to investigate grievances; agreed to
comply with Federal and state health and safety regula-
tions and not to discriminate on the basis of race, color,
religion , sex, age , or national origin ; agreed to a grievance
procedure dealing with grievances over the interpretation
or application of a specific clause of the contract which
procedure culminated in binding arbitration; and, agreed
to a no-strike-no-lockout clause.
The subjects proposed by the Union which were not
acceptable to Respondent were as follows: Overtime for
hours worked Saturday or Sunday, with Hirstel taking the
position that if a weekend day is an employee 's regular
workday the employee should be paid straight time; the
Union's proposals dealing with paid vacations and sick
leave, with Hirstel taking the position that the Company's
existing policies were reasonable ; also rejected were the
proposals that the Company furnish and launder work
clothes, that the Company in certain circumstances be
liable for employees' clothing soiled at work, and that men
not be required to wear ties and women be allowed neat
casual attire, slacks, when not working in the presence of
the general public-Hirstel rejected all of these proposals
indicating that the Company's policies on clothing and
dress were reasonable.
The parts of the Union's proposal taken under consider-
ation by Hirstel were as follows : Union security, in
substance the Union proposed that all employees join the
Union after 30 days of employment; paid holidays; the
advance notification, in certain circumstances, about the
discharge or layoff of an employee; the layoff and recall of
employees based upon seniority; and no employee to suffer
a reduction of wages or less favorable working conditions
as the result of the terms of the contract.
Also taken under consideration by Hirstel was the
Union's wage proposal . Hirstel stated he had not consulted
with the Company about the Union 's wage proposal and
thought that any discussion on wages should be deferred
until the rest of the Union's proposals were discussed. The
Union's wage proposal , a proposed scale of minimum
wages based on the employees' tenure with the Company
was as follows:
Starting wage - $3.00 per hour
6 months to 12 months - $3.21 per hour
12 months to 18 months - $3.79 per hour
PAY 'N SAVE CORP.
after 18 months - $4.37 per hour
after 5 years - $5.83 per hour
Each sign shop employee based on the employee's length
of service with the Company, as of June 15, would receive
substantial immediate hourly increases followed by anoth-
er substantial increase within the duration of the 1-year
contract proposed by the Union. Specifically, the sign
shop's employees would receive the following immediate
hourly increases as of June 15; Adams, 71 cents; Brown,
$1.16; Laing, $2.03; Lindstrom, $1.17; Reeves, $1.04;
Trujillo, $2.05; Weston, $1.82; Woods, $2.03; Vike, 95
cents , and Tungate , 95 cents.
B. The Second Bargaining Session, Late April
The second bargaining session , held in Hostel's office
late in April, was attended by Hord and employee Jim
Lindstrom for the Union and Hirstel for the Respondent.
Hirstel at the start of the meeting notified the Union's
negotiators that the negotiations , contrary to his earlier
expressed optimism , were going to be "rough" because
there were all kinds of unspecified problems . Hirstel
followed the procedure used at the first meeting ; he went
over each of the sections in the Union 's proposed contract.
Regarding the parts of the Union's proposal that Hirstel
previously indicated the Company accepted and those he
previously indicated it did not accept, he maintained the
same position during this meeting.
On the matters which Hostel at the first meeting
indicated would be taken under consideration he now took
the following positions : On union security , without
explanation, Hirstel stated that the Company was not
going to agree to a union-security agreement. On the
subjects of semonty and the advance notification prior to a
discharge or layoff, Hirstel stated that the Company's
business operation made these proposal unfeasible. On
paid holidays , Hirstel rejected the part of this proposal
which designated the last workday before Christmas as a
paid holiday explaining that it was not in any of the
company 's collective-bargaining agreements with other
unions. On the Union's proposal which prohibited the
Company from reducing existing wages or "working
conditions " Hirstel wanted to delete "working conditions"
for the reason that he did not believe its inclusion was
necessary.
Hirstel made the following proposal: A management
rights clause ; that bonuses and discounts not be considered
wages and be subject to change unilaterally by the
Company; that the Company's health and welfare plan be
incorporated into any contract; that the Company not be
liable financially for the termination of employees made at
the request of the Union; and, that grievances over errors
in wage payments must be filed within 30 days of the
mistake.
On the subject of wages, Hirstel , using the same format
as the Union, proposed a scale of minimum wages based
on the employees' tenure with the company, which
proposal was as follows:
starting wage - $2.00
6 to 12 months - $2.15
313
12 to 18 months - $2.30
18 to 24 months - $2.45
2 to 3 years - $2.60
3 to 4 years - $2.75
4 to 5 years - $3.25
over 5 years - $3.75
Based on the unit employees ' tenure as of June 15, only 3
of the 10 hourly paid employees would receive an hourly
wage increase on that date under the Company's proposal:
Brown, 10 cents ; Trujillo, 13 cents ; and Weston , 5 cents.
The remaining employees would receive no increase in pay
nor could they expect one in the immediate future. Also,
the Company had recently hired two employees at an
hourly rate higher than its proposed starting rate for such
employees.
In response to the Company's wage proposal, Hord told
Hirstel that in effect this was not an offer for the reason
that although no one would suffer a loss of earnings it was
less than what most of the unit employees were then
earning and as a result very few of the employees would
receive increases . Hord also pointed out to Hirstel that the
Company was hiring employees at a higher hourly rate
than the $2 it had proposed. Hirstel insisted Hord present
the Company 's wage offer to the employees . When Hord
refused Hirstel warned that the Company , itself, would
communicate this wage offer to the employees.
C. The Third Bargaining Session, May 3
The parties met on May 3 for the third time, at the
Respondent's headquarters. The Respondent was repre-
sented by Hirstel and for the first time also present was its
vice president, Calvin Hendricks. The Union was repre-
sented by its spokesman, Hord, and by employee Lind-
strom.
The Union's negotiators stated that it accepted in certain
specified instances the Respondent 's objections to its
proposed contract and expressly modified its proposed
contract accordingly. Specifically, the Union accepted the
Respondent 's positions and withdrew its proposals dealing
with paid vacations, paid holidays, and paid sick leave and
withdrew its proposal calling for company liability for
soiled clothing. Also, the Union modified its position on
seniority now proposing that in layoffs and recall seniority
would govern only where it did not impair the Company's
operating efficiency and only where the senior man was
qualified for the job. Hirstel rejected this proposal, without
explanation, simply stating that the Respondent had made
its offer. Also, as described below, the Union reduced its
wage demands. Finally, the Union made no objections to
the Respondent 's proposed management rights clause or
the Company's further proposal that bonuses and dis-
counts not be considered wages. The Union did object to
the Respondent's proposed 30-day statute of limitation for
grievances over wages instead proposing a 90-day statute
of limitations. In response Hirstel stated that in the
Company's opinion 30 days was a sufficient time.
Briefly stated, the parties were still in dispute over union
security; seniority; clothing allowance; dress regulations; a
statute of limitations for the filing of grievances over
wages ; advance notice to terminated employees; and
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wages . In addition, without explanation, Hirstel at this
meeting specifically rejected the proposal that the terms of
the contract be for 1 year.
On the subject of union security, Hord informed Hirstel
and Hendricks that the Union considered it "a must" and
pointed out that the Respondent in denying it to the Union
in these negotiations was acting inconsistent with its
conduct in negotiations with other unions where it had
agreed to union security. Hirstel nor Hendricks denied the
truth of Hord's assertion but Hirstel, without explanation,
stated that the Company refused to agree to a union-
security agreement.
On wages the Union modified its previous hourly
proposal as follows:
Starting wage - $2 .85 ($3.00) 2
6 to 12 months - $3.15 ($3.21)
12 to 18 months - $3.45 ($3.79)
18 to 24 months - $3.75 ($4.37)
2 to 3 years - $4.05 ($4.37)
3 to 4 years - $4.50 ($4.37)
4 to 5 years - $5.00 ($4.37)
over 5 years - $5.50 ($5.83)
Regarding the one salaried sign shop employee, Cy
Crawford, the Union proposed a 5.5 percent increase.
As of June 15, each of the sign shop's hourly paid
employees pursuant to the Union's new proposal would
have received substantial hourly increases immediately,
and an additional increase within the duration of the
Union's one year contract. The total of the immediate
increase for each employee under the new proposal
compared with the Union's first proposal, shown in "( )",
follows: Adams, 65 cents (71 cents); Brown 1.10 ($1.16);
Laing, 1.75 ($2.03); Lindstrom, 83 cents ($1.17); Reeves, 70
cents ($1.04); Trujillo, $1.43 ($2.05); Tungate, 80 cents (95
cents); Weston, $1.50 ($1.82); Vike, 80 cents (95 cents);
and Woods, $1.75 ($2.03).
The Union's new wage offer was rejected by Hirstel, for
the expressed reason that the company had made its wage
offer and that was as much as "they could go".
At the conclusion of the meeting, Hord stated that he
thought the parties should consult with a Federal Media-
tor. Hirstel rejected this request for the reason that there
was no sense in contacting a mediator because the
Respondent had made its offer; in the words of Hirstel,
"You have it, and that's it".
D. The Union Sets a Strike Deadline for May 31
and the Respondent Notifies the Employees of Its
Intent To Close the Sign Shop
The Union's business representative, Hord, met with the
sign shop's employees subsequent to the bargaining session
of May 3 and brought them up to date about the state of
the negotiations . The employees voted unanimously to
strike the Company. The Union secured stiike sanctions
2 The figure in "( )" refers to the Union's earlier proposal made at the
first bargaining session.
3 Hendricks testified that he had selected May 25 as the date for closing
the sign shop for the reason that the Union had notified hun that the
employees were all striking as of May 31 so he decided to close the shop at
from its District Council and, then, on May 18 by letter,
Hord notified Hirstel and Hendricks that the sign shop's
employees had voted unanimously "in favor of not
working beyond May 31," inasmuch as the parties had not
succeeded in reaching an agreement, but expressed a desire
"to meet at any time and place prior to June 1."
Upon his receipt of this letter, the Respondent's vice
president, Hendricks, met with the sign shop's employees
on May 22. Hendricks, in the presence of advertising
director, Sullivan, on May 22 told the employees that the
Respondent had negotiated as far as it could with the
Union, that the Union had not accepted "anything that the
company had to offer," that the Company would not
benefit by any of the Union's proposals, and in the
circumstances the only alternative for the Company was to
permanently close down the sign shop and that the date of
the closure would be May 25 since the employees were
going out on strike on May 313 An employee asked if
there was any way that the shop could remain open,
specifically, if it would stay open if the employees
repudiated the Union. Hendricks answered "no" explain-
ing that the Respondent had been looking into the matter
and believed it could get the work done on the outside for
less money.4
E. Sullivan, the Respondent's Advertising Director,
on May 23 Speaks with Employee Brown about Her
Failure To Receive a Wage Increase
One of the employees attending the May 22 meeting was
Kathleen Brown. The day after the meeting, May 23,
Joseph Sullivan, the Company's advertising director and
the person with ultimate control over the sign shop, called
Brown into his office and expressed his regret over the
closing of the sign shop. Sullivan offered to assist Brown to
find a job with another employer, expressed his apprecia-
tion for her work performance, and apologized for not
being able to increase her pay. In Brown's words, Sullivan
stated that the Respondent, "could not pay me any more at
that time because the union had come into the picture."
Sullivan apologized repeatedly for the closure of the print
shop and told Brown, as she credibly testified, "if this had
not come about with the Union, I would probably be
making more than the union could probably negotiate for
us in the contract form and more than union scale called
for." At the conclusion of the conversation, Sullivan asked
Brown to tell another employee to come to the office to
speak with Sullivan.
F. The Respondent Agrees To Keep the Sign Shop
Open, at Least for the Time Being, and To Resume
Negotiations
It is undisputed that the Union had not received any
notification from the Respondent of its intent to close the
sign shop and to terminate the employees. The Union's
first information about this matter came from the employ-
the end of the week, Friday, May 25, rather than wait until the middle of the
following week, Thursday, May 31.
4 What took place at the May 22 meeting, described above, is based
upon a synthesis of the testimony of Hendricks and employee Reeves which
is not in conflict on material matters.
PAY 'N SAVE CORP.
ees after they had been told this by Hendricks on May 22.
Union Representative Hord immediately, on May 23, filed
an unfair labor practice charge with the Board in Case
19-CA-6432 alleging, in substance , that the Respondent
had violated the Act by threatening on May 22 to
terminate the sign shop's employees. Hord credibly
testified that after filing this charge he contacted Commis-
sioner Toner of the FMCS and asked him to arrange a
meeting with the Respondent to try and resolve the
situation . Previously, according to Hord's credible testimo-
ny, on more than one occasion, he had asked Commission-
er Toner to try and arrange a meeting for further
negotiations with the Company. Obviously, if such a
meeting had been scheduled it would have been unneces-
sary for Hord to call Toner on or about May 23. Hirstel
would have me believe, however, that as early as May 17,
in response to a phone call from Commissioner Toner,
Hirstel had arranged to meet with the Union on May 25
but due to a death in the family was called out of town,
and as a result Hendricks represented the Company at the
meeting on May 25. 1 do not believe Hirstel . In manner
and demeanor , he generally was not a convincing witness.
Hendricks did not corroborate him on this point. Also,
Hirstel's testimony does not jibe with his earlier conduct
and is too pat to be true. Thus, it is undisputed that at the
end of the May 3 bargaining session Hirstel emphatically
rejected the Union's proposal that negotiations be resumed
with a Federal mediator . Also, for a meeting to have been
arranged on May 17, as Hirstel testified, for May 25 which
coincidentally turned out to be the date that the Company
on May 22 announced it was closing the sign shop, is too
pat to be true. Based on the foregoing, and on the
Respondent's conduct at the meeting of May 3 and its
conduct upon receipt of the Union's letter of May 18
requesting negotiations, I find that on May 3 it was the
intent of the Respondent, understood by the Union, to
refuse to continue to meet and negotiate with the Union,
that the Respondent as claimed by Hirstel did not prior to
its receipt of this letter agree to meet with the Union but
rather agreed to meet and resume negotiations with the
Union after it received the letter and only after the Union,
as described below, agreed to call off its strike deadline.
On May 25, Hendricks met with Hord at the offices of
the Federal Mediation and Conciliation Services, herein
called the FMCS , at which time the Respondent agreed to
temporarily continue operating the sign shop and resume
bargaining and the Union as its part of the bargain agreed
to call off the strike and withdraw its unfair labor practice
charges filed against the Respondent . Specifically, it is
undisputed that Hord proposed that the Union would
withdraw its unfair labor practice charges and call off its
scheduled strike if the Respondent would agree to keep the
sign shop open and return to the bargaining table.
Hendricks agreed to this proposal but specifically told
Hord he would not guarantee how long that the Company
would keep the sign shop open.5
Following the meeting of May 25, Hendricks went back
S What took place , described above , at the office of the FMCS on May
25 is based on the undemed and credible testimony of Hord
s What took place , described above, at the meeting between the
employees and Hendricks on May 25 is based on a synthesis of the
315
to the Company's headquarters and in the presence of
Union Representative Hord brought the employees up to
date on the recent developments . He told them that the
Union had agreed to withdraw its unfair labor practice
charges and to lift its strike deadline and that the
Respondent had agreed to keep the sign shop open "at
least on a temporary basis" and that the parties would
resume negotiations but that it did not mean that it would
result in an agreement . Hendricks asked Hord if he had
given an accurate representation of the recent develop-
ments and Hord replied "basically."e
G. The Meeting between Hord and Hirstel
on June 4
On June 4, Hord and employees Woods and Lindstrom
met briefly with Hirstel at the office of the FMCS. There
was no discussion , as such, about the terms of a contract,
but Hirstel was brought up to date about what had
occurred since the last bargaining session . Hirstel during
the course of the briefing reviewed various materials in his
file and when he came to the Union's letter of May 18
which announced the strike deadline and requested
negotiations, Hirstel stated if he had seen the letter he
would have told the Company to close and never reopen
the sign shop ; a thinly veiled threat to close the shop
permanently in the event the employees ever again voted to
support the Union's bargaining position by striking.
Employee Woods stated the work performed in the sign
shop could not be done cheaper by the Company on the
outside . Hirstel, in response, stated that if the Company
had to pay the wages proposed by the Union it would close
the shop and subcontract the work . Hirstel also warned
that even if the Company and Union reached an
agreement, the Company still "may close the shop down." 7
H. The Fourth Bargaining Session, June 6
On June 6 the Respondent's negotiators, Hirstel and
Hendricks, met with the Union's negotiators at the offices
of the FMCS . Only two matters were discussed, union
security and wages.
The Respondent's representatives stated that Respon-
dent would accept the union -security agreement proposed
by the Union with one change, employees would have 90
days to join the Union rather than the conventional 30
days . In proposing the 90 days , Hirstel testified, the
Respondent was motivated by a desire to cushion the
expense of union membership to the new employees who
were at the low end of the wage scale and who did not
receive a pay raise under the Respondent 's wage proposal
until employed 90 days.
On the subject of wages, the Respondent proposed a 3-
year contract with all employees receiving an immediate 5
cents per hour increase . Also, Respondent modified its
previous proposed minimum wage scale , and proposed a
5.5 percent increase at the start of the second and 3d years
of the contract for those employees not receiving the
testimony of Hord, Hendricks , and employee Reeves which is not in conflict
on material matters.
r What took place , as described above, on June 4 is based upon the
undemed and credible testimony of Hord.
316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
minimum under the minimum wage schedule. The Compa-
ny's proposed revised minimum wage schedule was:
starting pay - $2.05 per hour
after 3 months - $2.20 per hour
after 9 months - $2.35 per hour
after 15 months - $2.50 per hour
after 2 years - $2.65 per hour
after 3 years - $2.75 per hour
after 4 years - $3.25 per hour
after 5 years - $3.75 per hour
The Union's negotiators stated that they would submit
the Company's proposals to the sign shop's employees for
consideration.
I. The Respondent on June 15 Notifies the Union
of its Decision To Close the Silk Screen Operation
and Lay Off Two Employees
Hendricks , the Respondent's vice president , on Friday,
June 15, by phone notified Hord that the Company had
decided to close the portion of the sign shop known as the
silk screen operation and lay off the two employees who
regularly did this work . Specifically , Hendricks told Hord
that he was calling to notify him that the Company was
laying off employees Jim Lindstrom and Mark Reeves
explaining that the fire department had inspected the area
occupied by the silk screen operation and found that it did
not comply with the fire code. The Company, Hendricks
told Hord , had to do certain things to meet the require-
ments set by the fire code, and since the Company did not
know what it was going to do with the sign shop they had
decided to close down the silk screen room and lay off
employees Lindstrom and Reeves . Hord expressed his
appreciation for the notification and said he did not think
Lindstrom or Reeves should be laid off for the reason that
the parties were in the middle of negotiations and were
trying to reach an agreement. Hendricks did not reply and
this ended the conversation . Thereafter , the Union neither
at negotiations nor otherwise brought up the matter of the
closure of the silk screen room or the layoff of the two
employees because, Hord testified, that he had already
objected to Hendricks about the layoff.
J. The Fifth Bargaining Session, June 18
On June 18 , the negotiators for the Respondent and the
Union met at the FMCS. Hirstel and Hendricks represent-
ed the Company and Hord with an employee committee
and a representative of the Union 's District Council
represented the Union. The only subject discussed was
wagessa
Hord at the start of the meeting presented Hirstel and
Hendricks with a document which showed exactly what
each unit employee would receive under the Respondent's
last wage proposal. The analysis showed that 7 of the 10
hourly paid unit employees would receive an immediate
increase of 5 cents per hour , two employees would receive
sa By this stage of negotiations , Hord and Hostel testified that it was
their belief that only two matters of importance remained in dispute , wages,
and union security and that if the issue of wages could be resolved that the
dispute over union security would resolve itself
an immediate increase of 15 cents per hour, and the
remaining employee would receive an immediate increase
of 18 cents per hour . Of the 10 unit employees 5 would
receive additional hourly increases of 25 cents , 25 cents, 15
cents, 15 cents and 10 cents , respectively , within the 1st
year of the 3-year contract proposed by the Company.
However , five of the employees-Adams, Laing, Woods,
Lindstrom, and Reeves-would receive an increase of only
5 cents per hour over the entire 1st year . Viewed another
way, during the 3 years of the contract the hourly rate of
the unit employees , all of whom are named immediately
hereafter , would be increased by the amounts aside of their
names : Adams, 55 cents (65 cents); ,9 Brown, $ 1 ($1.10);
Laing, 40 cents ($ 1.75); Woods, 40 cents ($ 1.75); Lind-
strom, 93 cents (83 cents); Reeves, 80 cents (70 cents);
Trujillo, $ 1.23 ($1.43); Weston, $ 1.65 ($1.50); Vike, $1.00
(80 cents); and Tungate , $ 1.00 (80 cents).
After Hirstel and Hendricks had checked the accuracy of
the Union's written analysis , Hord told them the Compa-
ny's proposal was not adequate insofar as employees
Adams, Woods, Lindstrom , and Reeves would receive an
increase of only 5 cents per hour over the 1st year of the
contract, explaining that after they paid their union dues
these employees , in effect , would receive no increase in
pay. Hord proposed that each employee in the 1st year of
the contract should receive at least a 10 cents per hour
increase.-Hirstel and Hendricks left the room to consider
this proposal . When they returned , Hirstel asked Hord if
the Unior was rejecting the Company's last wage offer.
Hord repLed he was only rejecting the first part of the
offer, the part which dealt with the grant of an immediate
wage increase of 5 cents per hour . Hirstel replied he was
happy the Union had rejected the Company's wage
proposal stating that the Company had not figured out the
actual increases called for by its proposal and upon
reviewing the Union's analysis discovered it had mistaken-
ly offered more of an increase in wages than it had wanted
to give. Hirstel then expressly modified the Company's
wage offer in the following manner: The Company would
grant an immediate general wage increase of 10 cents per
hour to all employees , that as previously proposed, the
employees would get a 5.5-percent increase at the start of
the 2d and 3d years but that 5 cents an hour of the 10 cents
given in the 1st year would be taken off any 5 .5-percent
increase granted at the start of the 2d year . Also, Hirstel
modified the minimum wage schedule previously proposed
by eliminating the increase in pay given an employee with
5 years of seniority and by reducing the hourly minimum
rate granted to employees with 4 years seniority from $3.25
to $3.05.
A comparison of the Respondent's new wage proposal
with its previous one reveals the following two differences:
(1) During the 1st year of the 3-year contract, employees
Laing, Woods , Lindstrom , Reeves , and Adams would
receive an additional increase of 5 cents per hour to bring
their total increase for this period up to 10 cents per hour.
This increase of 5 cents , however, would be deducted from
9 The figure in the "( )" refers to the wage increase provided by the
Union's proposal by the end of the first year, as compared to the increase
under the company 's proposal over a three year period.
PAY 'N SAVE CORP.
increases granted to them in the 2d year. (2) By virtue of
the reduction in the minimum hourly rate paid to
employees with 4 years of service certain employees would
receive less of a total increase over the 3 years of the
contract than under the Company's previous proposal.
Specifically, Lindstrom's hourly increase over the 3 years
dropped from 93 cents to 58 cents per hour; Reeves' from
80 cents to 45 cents; Trujillo's from $1.23 to 88 cents; and
Weston's from $1.65 to 70 cents.
Hord rejected the Company's new proposal stating that
Hirstel was "negotiating backwards." Hirstel insisted that
this was the Company's proposal. Hord then proposed that
the Company guarantee the employees a general wage
increase of 20 cents per hour the 1st year plus the
Company's "original proposal." Hirstel stood firm explain-
ing, "No, we made our proposal." The meeting ended with
Hirstel and Hendricks stating that "This was the [the
Company's] last offer." Hord indicated he would get back
to them.'°
K. Hord Meets with Hendricks on July 12 at
which Time Respondent Proposes To Implement Its
Wage Increase without a Contract
On July 12, in the morning, Hord telephoned Hendricks
and requested that they meet in an attempt to arrive at an
agreement. Hendricks agreed and they met later that day
at Hendricks' office. Hord asked if there was any way they
could work out a 1-year agreement which on wages simply
called for a 5.5 percent basic increase for all employees.
Hendricks rejected this proposal stating that the Respon-
dent needed a 3-year contract and that the Company had
made its last offer. In substance, Hendricks then proposed
that the employees forget about a collective-bargaining
agreement and that the Respondent implement its last
wage proposal. Hord asked for and received permission
from Hendricks to meet immediately with the sign shop's
employees in a company conference room to communicate
the Company's latest proposal.ii
Hord met with, and explained to, the employees about
the state of the negotiations and informed them about
Hendricks' proposal of an immediate wage increase
without a contract. The employees instructed Hord to
reject this proposal. During the course of talking with the
employees, Hord was notified by them that the Company
had been subcontracting out a substantial amount of sign
shop work previously performed by the sign shop's
employees.
L. The Respondent Breaks Off Negotiations
Following his meeting with the sign shop's employees,
Union Representative Hord on July 13 by letter notified
Hendricks that his proposal "to implement a pay raise in
the absence of a complete contract" was not acceptable to
the Union and that the Union considered the Respondent's
'practice of subcontracting work normally performed by
10 What took place, as described above, at the June 18 meeting is based
on the credible testimony of Hord I reject Hendricks' testimony insofar as
it differs with respect to the new rate proposed by the Company for
employees with 4 years seniority and also reject Hirstel's testimony insofar
as it implies that the subject of union security was discussed at this meeting
317
the people in the sign shop an unfair labor practice and
request that the practice be stopped immediately." The
letter ended with a request that the Respondent resume
negotiations and negotiate in good faith until an accepta-
ble contract was consummated.
On July 24 Hendricks, by letter, responded as follows:
As we discussed, and both agreed on this date, we
are at a complete impasse as far as our negotiations are
concerned for a contract. There appears to be no
solution to our problem and it would appear that no
further negotiations will accomplish anything.
You mentioned in a recent letter, that you consid-
ered the practice of sub-contracting work of the sign
shop as an unfair labor practice. If you are not aware,
you should be made aware, that we have sub-contract-
ed sign shop work for many, many years and of course
are planning to continue to do so. Further, as we
discussed, we ran into some difficulties with the fire
department concerning our silk screen operations and
have found it necessary to discontinue that part of our
sign shop operation. This work likewise, is being sub-
contracted since at this time there is no other method of
producing this work.
Hord testified that his last conversation with Hendricks
occurred on July 12 or 13 when by phone he briefly told
Hord that the employees had rejected the Company's
proposed wage increase without a contract and that Hord
would confirm the Union's position on the matter by letter.
Hendricks, on the other hand, testified Hord telephoned
him on either July 23 or 24 which resulted in his letter of
July 24 to Hord described above. Hord convincingly
denied that this alleged conversation ever took place. In
bearing and demeanor Hord appeared more believable. In
addition, Hendricks in testifying about the alleged conver-
sation of July 23 or 24 was extremely vague and evasive.
Moreover, his testimony about this alleged conversation on
certain points does not jibe with the contents of the July 24
letter which on its face appears to be a response to Hord's
earlier letter of July 13. Thus, when Hord allegedly phoned
him on July 23 or 24, Hendricks testified, "The general
tone of the conversation was can we get back together
again to discuss negotiations. My response was no, we are
not going to change our position. We then concluded there
was no reason for any further negotiations." There was no
discussion, as implied in the letter of July 24, about the
difficulties encountered by the Respondent in the silk
screen room. Nor, as Hendricks indicated in the letter and
as he testified on direct examination, as described above,
did Hord indicate there was no reason for further
negotiation or that an impasse had been reached. For, on
cross-examination when pressed to be more specific about
the content of the conversation, Hendricks was not a
convincing witness, his testimony became vague and
evasive, and eventually he reluctantly admitted that Hord
11 What took place, as described above, when Hord met with Hendricks
on or about July 12 is based upon Hord's credible testimony. Hendricks'
testimony essentially is no different. Both witnesses , however, were vague
about what words were exchanged, Hendricks more so than Hord Of the
two, in bearing and demeanor , Hord impressed me as the more trustworthy.
318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
did not express the belief that negotiations were at an
impasse or that future negotiations would be futile.
For the reasons set out above, I find that Hord did not
talk with Hendricks immediately prior to the letter of July
24. I further find that Hendricks' letter of July 24 was a
belated answer to Hord's letter of July 13 and constituted
an unequivocal refusal to meet with the Union and to
continue negotiations for a collective-bargaining agree-
ment.
M. The Respondent on August 26 Implements Its
Last Wage Offer
On August 26 there were 5 hourly paid sign shop
employees . The Respondent , on this date , granted wage
increases to four of the five employees. The hourly
increases were either identical to or slightly below the
increase the employees would have received on that date
under the Respondent 's last wage proposal . It is undisput-
ed that the Union was not notified by the Respondent of
its intent to effectuate this wage increase . Also it is
undisputed that, as described above , the Union as well as
the sign shop 's employees had specifically rejected a
proposal by Respondent that such wage increases be
granted without a contract.
N. The Respondent Closes the Part of the Sign
Shop Known as the Silk Screen Room
The sign shop during the period material to this case was
located on the third and fourth floors of the Company's
headquarters. One part of the department was known as
the silk screen room or operation . It regularly employed
two employees and was on the fourth floor . The remainder
of the sign shop's employees worked on the third floor.
In the past the sign shop 's employees had complained to
management about the heat and the fumes in the silk
screen area . In May, the Seattle fire department conducted
a routine investigation of the building and notified the
Company that in certain areas including the silk screen
area it was violating the city's fire ordinances . In early
June , the fire department rechecked and indicated that the
Company by its remedial action was now in compliance
with fire regulations in virtually all respects. But, at this
point, another group of fire department inspectors because
of a complaint filed by an employee conducted another
investigation of the silk screen area . On June 12 and 13, a
team of inspectors inspected the area explaining to
company officials that an employee had filed a formal
complaint . The inspectors during the course of the
investigation informed the Company 's officials that the silk
screen area was extremely hazardous , that sparks from the
motors of the silk screening equipment could ignite the
area, that the toxic fumes from the chemicals were
excessive, and they could not understand why the
Company had not had a major explosion or as one
inspector put it , "blown off the map ." A company official
asked why the fire department had recently placed its
stamp of approval on the same conditions now found
hazardous . The inspector stated it was a matter of
12 In fact Koyano had quit earlier that week and Tungate earlier that day
had given notice to Sullivan that she was terminating her employment at the
perception and that the current inspectors had more
expertise in this area.
The conclusions of the fire department's inspectors were
relayed to the Respondent 's vice president , Hendricks, who
consulted with Advertising Director Sullivan and thereaft-
er, on June 14, decided to close the silk screen operation
temporarily . The main reason for this decision , Hendricks
testified , was the fire department's conclusion that the
hazardous conditions could result in an explosion.
On June 15 , the Respondent temporarily closed its silk
screen operation , laid off the two employees , Lindstrom
and Reeves, who regularly worked there , and since then
has contracted out all of the work formerly performed in
this part of the sign shop . On the same date, as previously
described , Hendricks notified Union Representative Hord
by phone of the Respondent's decision to close the silk
screen room and lay off employees Lindstrom and Reeves.
Likewise, the Company on June 15 notified all of the
shop's employees of this decision . At 4 p .m. Advertising
Director Sullivan met with the employees and notified
them of the closure of the silk screen room and the layoff
of Lindstrom and Reeves. Sullivan told them that the
closure was not related to the Union but the fire
department had found the area unsafe and hazardous. The
rest of the sign shop , Sullivan told the employees, would
not be affected by the closure of the silk screen room and
work for the other employees would go on as usual.
Employee Adams pointed out that since employee Koyano
had quit earlier that week and employee Tungate was
quitting as of that day, it left two vacancies in the sign
shop.12 Continuing, Adams observed that Lindstrom and
Reeves were more than qualified to perform the work and
asked that they be reassigned to these vacancies rather
than laid off. Sullivan answered in the negative stating that
the Respondent "won't be filling those positions." When
another employee asked why the Company did not spend
the money to remedy the fire hazard, Sullivan said it would
be too costly. Another employee challenged this assertion
whereupon Sullivan appeared to lose his temper and stated
that the closing of the silk screen room was the fault of an
employee who had complained to the fire department.
0. The Respondent Subcontracts the Sign Shop's
Work
It is undisputed that following the close , on June 15, of
the part of the sign shop known as the silk screen room or
operation, that the Respondent subcontracted this work to
outside vendors and will continue to do so until it resumes
operating its remodeled silk screen room . I shall now
determine if the Respondent at or about the same time also
began to subcontract work other than silk screening done
by Lindstrom or Reeves normally performed by its sign
shop employees.
The Company's records establish that the only work
subcontracted by the Respondent's sign shop during 1972
was done by two companies , Allied Reproductions Inc.,
and Advertising Aids. From January 1, 1971, until April
26, 1973 , these were the only outside vendors, according to
end of the day.
PAY 'N SAVE CORP. 319
the Respondent 's records , that did work for the sign shop.
Employee Kathleen Brown testified that the work per-
formed by these two companies for the sign shop was not
the type of work performed by the sign shop's own
employees rather it was work which had traditionally been
contracted out to these companies . The testimony of
Brown, a very impressive witness, was not rebutted by the
Respondent . To the contrary , Vice President Hendricks
who testified he was not competent to answer questions in
this area testified it was his understanding that the work
done for the Respondent by Allied Reproductions was not
the kind of work traditionally done by the sign shop's own
employees and that at least 90 percent of this work had not
been performed by the sign shop 's own employees.
Respondent did not call a witness, competent or otherwise,
to rebut Brown 's testimony . Based on the foregoing, I find
that the work performed for the Respondent 's sign shop by
Allied Reproduction and Advertising Aids was the type of
work which traditionally was not performed by the sign
shop's own employees but had always been contracted out.
The first time the Company's records reveal the
subcontracting of sign shop work to a company other than
Allied Reproduction or Advertising Aids is on April 26
when sign shop work was subcontracted to Metro Plastics
Inc. Thereafter such work was subcontracted to either
Metro Plastics or Morup Signs on May 1 and 14 ; June 1, 4,
13, 23, 28 , and 30 ; and during July, August, and
September. In this regard, employee Brown testified that in
June the Respondent for the first time commenced to
contract out work normally performed by the sign shop's
employees, this included nonsilk screen work such as
multilith and banner work and further testified that this
work was being done for the Respondent by Mitchell
Plastics 13 and Morup Signs . Brown's testimony was not
rebutted by the Respondent and is substantially corrobo-
rated by the Respondent 's records as well as the testimony
of Calvin Hendricks, the Respondent 's vice president. In
substance, Hendricks admitted that starting in about late
May the Respondent subcontracted a greater amount than
usual of its nonsilk screen type sign shop work normally
done by its sign shop employees . Specifically , Hendricks
testified that there was a period of time when the
Respondent was considering whether to permanently close
the sign shop . 14 During this period the Respondent,
Hendricks testified, did not hire replacements for those
employees who left the Respondent 's employ. Since the
Respondent 's retail outlets continued to have their normal
demand for signs , and a number of the sign shop's
employees had quit , the Respondent was forced to
subcontract , Hendricks admits, a greater than normal
amount 15 of the sign shop's work other than silk screen
type work.
Respondent 's course of conduct, contracting out the sign
is There is no such name in the Company's subcontracting invoices as
Mitchell Plastics , but there is a Metro Plastics . I am convinced and find that
Brown mistakenly referred to Metro Plastics as Mitchell Plastics.
14 Hendricks was vague and evasive whenever he was asked to identify
the period of time that the Company was allegedly trying to decide whether
to permanently close the sign shop . It is clear, however, that this period
began on May 22 , the day Hendricks notified the employees of the
Respondent's intent to shut the sign shop, and continued until late
September when the Respondent resumed hiring employees.
shop's work rather than replacing terminated employees,
by its very nature was calculated to erode the bargaining
unit, and this is exactly what happened . Thus, the
Respondent's employment records , General Counsel's
Exhibit 15 , show that the sign shop through 1971 and 1972
averaged between II and 12 employees, in January and
February 1973 employed 11 employees , and in March
through May 1973 employed 12 employees . In late June
1973 the employment complement dropped to seven where
it stayed through July and dropped to six in August and
September. When the aforesaid figures for June through
September are increased by two , to account for the two
laid-off silk screen room employees , it is clear that from
late June through September the Respondent by virtue of
its policy of not replacing terminated employees was two to
three employees below its normal employment comple-
ment.16
Respondent commenced to once again hire employees in
late September, hiring one employee on September 25 and
two others the first 2 days in October . Soon after their hire
the Company ceased subcontracting what is known as
multilith work and assigned some of this work to the new
hires.
Based upon the foregoing, I find that starting on or
about June I the Respondent commenced to subcontract
work normally performed by its sign shop employees, that
previously the Respondent except for a de minimus amount
had not subcontracted this type of work, and that an effect
of the subcontracting was to reduce the whole number of
jobs in the bargaining unit.
One last comment on the issue of the alleged subcon-
tracting of sign shop employees' work: I have found, in
agreement with the Respondent, that it did not refuse to
bargain with the Union over the subcontracting of the silk
screening work caused by the closing of this part of the
sign shop on June 15 . Respondent urges that its subcon-
tracting invoices introduced into evidence by the General
Counsel do not differentiate the subcontracting of the
aforesaid silk screen type work from other work normally
done by sign shop's employees . Therefore, Respondent
argues that the General Counsel has not met his burden of
establishing that the Respondent during times material to
this case subcontracted work normally done by the sign
shop excluding the silk screening work over which it had
fulfilled its bargaining obligation. I agree that the Respon-
dent's subcontracting invoices on their face are ambiguous.
The General Counsel, however, in certain limited respects
did clarify the invoices . But, more important , the testimony
of employee Brown, the admissions of Vice President
Hendricks, and the Respondent's employment records
when considered with the Respondent's subcontracting
invoices altogether sufficiently demonstrate that commenc-
ing on or about June I Respondent began to subcontract
is Hendricks ' uncorroborated testimony that the increase in subcontract-
ing was only a matter of degree, that in the past the Company has
traditionally subcontracted out work performed by the sign shop's
employees, is not supported by the record . It is refuted by the Company's
own records and the credible testimony of employee Brown.
ie In reality the Respondent was even more undermanned than
described above, for employee Weston who is included in the above
computations as being at work, as a matter of fact , was absent with a
broken wrist from about May to October.
320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nonsilk screen type work normally performed by its sign
shop's employees and that this subcontracting had an
adverse impact on the bargaining unit . At the very least,
the evidence adduced by the General Counsel was
sufficient to shift the burden of going forward with
evidence on this issue to the Respondent. Cf. N. L R B. v.
Melrose Processing Co., 351 F.2d 693, 695-696 (C.A. 8,
1965). The Respondent had easy access to competent
witnesses who could have cleared up any ambiguity in its
subcontracting invoices and refuted the General Counsel's
contention . I presume that the reason the Respondent did
not adduce any such evidence was that it would have been
unfavorable to the Respondent's position.
P. Discussion and Ultimate Findings
1. The closing of the sign shop's silk screening
room
The Respondent on June 15 closed its sign shop's silk
screening room and laid off the two employees Jim
Lindstrom and Mark Reeves , who regularly worked there.
The General Counsel alleges that the closing was discrimi-
natorily motivated or was motivated by the Respondent's
animus toward employees who complained about unsafe
working conditions. Respondent contends that the closing
and the resultant layoffs were motivated by hazardous
working conditions brought to the Company's attention by
fire department inspectors . The record supports Respon-
dent's position.
On June 13, fire department inspectors notified company
officials that conditions in the silk screen room were
extremely hazardous and the building was in danger of
being "blown off the map." This warning was communi-
cated to the Respondent's vice president , Calvin Hen-
dricks. Hendricks testified that because of the hazardous
conditions he decided to close the silk screen room and lay
off the two employees . The record as a whole does not
demonstrate that Hendricks was using the findings of the
fire department's inspectors as a pretext to discriminate
against employees because of their union activities or to
undermine the Union or to punish employees for grieving
about the unsafe working conditions .17 In so concluding, I
have considered that Respondent ignored the earlier
complaints voiced by its employees about conditions in the
silk screening area and, in response to an earlier investiga-
tion by the fire department, had remedied the violations
found rather than stop operating the silk screen room. But
to ignore employees' grievances and to act upon the
warnings given by the fire department 's inspectors makes
good sense considering the expertise and the authority of
the fire department . And the difference in the Company's
reaction to the second inspection is not unreasonable. This
inspection revealed a more hazardous condition indicating
the need for more extensive repairs or remodeling. In this
IT Unlike the General Counsel, I find nothing sinister or coercive in
Advertising Director Sullivan 's announcement of the closure and layoff to
the sign shop's employees and shall recommend that this portion of the
complaint be dismissed . Sullivan 's remarks are not coercive and do not
indicate improper motivation . He simply told the employees that the silk
screen operation was being discontinued and the two employees were being
laid off because the fire department had found the area unsafe and
hazardous and if the employees were unhappy over tkis state of ai `airs that
connection, Hendricks testified that the reason for not
remedying the hazardous conditions and not continuing to
operate the silk screen room was that the Respondent had
already made plans, which were to be shortly implemented,
to gut and remodel the entire floor and build a new sign
shop, including a new silk screen room.'& Also, it is
undisputed that the size of the equipment used in silk
screening and the nature of the operation made it
impossible to relocate the silk screen operation to another
part of the building. For all of these reasons, I find that on
June 15, in temporarily discontinuing its silk screen
operation, the Respondent was motivated by legitimate
business considerations . Accordingly, I shall recommend
that this portion of the complaint be dismissed.
It is undisputed that ever since the discontinuation of the
sign shop's silk screen operation the Respondent has
subcontracted the silk screen work formerly done by its
own employees. The General Counsel alleges that the
Respondent , in violation of Section 8(aX5) of the Act,
subcontracted this work and laid off the two employees
who formerly did the work without adequate notice to and
consultation with the Union. I cannot agree for the
following reasons.
The decision to discontinue operating the sign shop's silk
screen room, which was not unlawfully motivated, was
arrived at immediately after the inspectors from the fire
department notified the Respondent that the conditions in
that area created both a fire hazard and the danger that the
building would be blown up. The Respondent's vice
president, Calvin Hendricks, without any delay and prior
to implementing the decision to cease operating the silk
screen room, notified Union Representative Charles Hord
about the closure , including the layoff of the two
employees, and indicated the reasons for the Respondent's
actions . Hord did not request bargaining with respect to
either the decision or its impending effect upon employees
Lindstrom and Reeves, but instead took the position that it
was not proper for the Respondent to lay off the
employees. In these circumstances , particularly the nature
of the reason which motivated the Respondent to discon-
tinue the silk screen operation, I am of the opinion that the
Respondent 's notification to the Union was timely. I
further find by its failure, after receiving notice , to request
that the Respondent bargain with it over the impact of the
closing on the sign shop's employees, that the Union
waived its rights in that matter . Cf. U. S. Lingerie
Corporation, 170 NLRB 750, 751-752, and White Consoli-
dated Industries, Inc., 154 NLRB 1593. Accordingly, I shall
recommend that this portion of the complaint be dis-
missed.
2. The threat to close the sign shop
On May 22, the vice president of the Respondent , Calvin
Hendricks, notified the sign shop's employees that they
the fault lay with the employee who, by filing a complaint , had caused the
fire department to investigate . This was an accurate representation of what
had occurred.
is It is undisputed that the arrangements to remodel the fourth floor
were finalized in late 1972 and that about September 1 the construction
began and the floor was completely tom up . The remodeling was still in
process at the time of the hearing in this matter.
PAY 'N SAVE CORP. 321
were being terminated as of the end of the workweek, May
25, explaining that since the Union would not compromise
its bargaining position, the only alternative was for the
Respondent to permanently close the sign shop and further
stated that , even if the employees repudiated the Union,
that the shop would be closed for the reason that the
Respondent had discovered it could save money by
subcontracting the work . The General Counsel alleges that
this threat to close the sign shop , in violation of Section
8(a)(1), was made to discourage the employees from
supporting the Union by striking against the Respondent.
Obviously, the sign shop 's employees "are particularly
sensitive to rumors of plant closings [and] take such hints
as coercive threats . . . ." N.LR.B. v. Gissel Packing Co.,
395 U .S. 575 , 619-620 ( 1969).19 ' The crucial question is the
motivation behind the threat . I believe that the entire
sequence of events-the timing of the threat , the Respon-
dent's contemporaneous unlawful refusal to continue
contract negotiations , the Respondent's other contempora-
neous conduct designed to undermine the Union, the
hostility expressed over the strike deadline by one of the
Respondent's negotiators, and the complete lack of
substance to the reason advanced by the Respondent to
justify the threat of closure-in its entirety establishes that
in telling the employees that it was closing the sign shop
the Respondent was motivated by a desire to undermine
the Union.
The threat to close was made for the first time on
Tuesday, May 22 . It came immediately on the heels of the
Union's letter of Friday, May 18 , presumably received by
Respondent on Monday , May 21. This letter notified the
Respondent, for the first time, that its sign shop employees
had unanimously voted to strike on May 31. This
coincidence between the receipt of the announced strike
deadline and the Respondent's announced decision to
close the sign shop wa.y not explained at the hearing. Also
relevant in evai' the Respondent 's motivation is the
fact to continue operating the sign
shop ont i ,..:.n the Union agreed, among other things, to
cancel the strike . Hendricks did not explain , at the hearing,
why what was announced as an unalterable decision to
close was reversed when the Union agreed to call off its
strike.
The announcement of the impending closure came out of
the blue . The Respondent previously had given no
indication to either the Union or the employees that it was
considering closing the sign shop or subcontracting the
work . I am convinced that if the Respondent on May 22
was sincerely considering the closing of the sign shop
because of the Union's wage proposal that the Respondent
would have appraised the Union of its claimed position
and tested the Union 's willingness to it- ake concessions to
Respondent to enable it to keep the sign shop operating.
Moreover, at the time the Respondent announced its intt:nt
to close the shop the Union had not adopted a bargaining
1e Although not raised by the Respondent as a defense , I note that the
instant case does not involve the closure of a business operation in the literal
sense of the term and in this respect the principles annunciated by the
Supreme Court in N.L.RB. v. Darlington Manufacturing Co., 380 U.S. 263
(1%5), are not relevant . In Darlington the Supreme Court equated the
antiunion subcontracting of part of an employer s operation, as here, with a
"runaway" shop and distinguished the two from the closing and discontin-
psition which reasonably would have led the Respondent
to believe it was unyielding on economic matters. To the
contrary, the Union at the negotiation meeting prior to the
threat to close had indicated its position was flexible
inasmuch as it had yielded on a number of economic
matters and had modified its initial wage proposal.
The threat to close was made contemporaneous with
other conduct engaged in by Respondent , all of which was
designed to undermine the Union's bargaining position
and dissipate its support among the employees. At the
same time he announced to the sign shop 's employees the
impending closure, Hendricks implied that the closure was
attributable , in part, to the Union's unwillingness to
compromise "on anything" during the contract negotia-
tions . This was a false representation obviously designed to
blame the Union for the closure , thereby causing the
employees to repudiate the Union . In a similar vein,
Advertising Director Sullivan on May 23 blamed the
failure of employee Brown to receive a wage increase on
the Union and told Brown that but for the Union she
probably would have received an increase above the
Union's wage scale. Likewise, the threat of closure itself, in
the context in which it was made, was calculated to impress
upon the employees that their continued employment
likely would be affected adversely by the Union 's bargain-
ing demands . The aforesaid direct dealing with the unit
employees by Respondent was engaged in at a time when,
as I describe below, the Respondent had unlawfully broken
off contract negotiations and had previously not even
hinted to the Union that it was contemplating closing the
sign shop or subcontracting the work. Simply stated, the
threat to close the sign shop , when viewed in perspective, is
part of a course of conduct designed to destroy the Union
and subvert the Union's position as the employees'
bargaining agent.
The Respondent's hostility toward the employees for
voting to support the Union by striking is manifested by
the reaction of its negotiator, Hirstel, to the Union's letter
announcing the strike deadline . In substance, Hirstel
indicated to the Union's negotiators , which included two of
the employees , that if the employees in the future should
ever set another strike deadline, that Hirstel would tell the
Company to close the sign shop permanently.
The Respondent at no time-to the Union during the
period of negotiations or at the hearing-substantiated its
contention, made for the first time on May 22 to the
employees , that it had decided to close the sign shop, in
part, as "it had been looking into the matter and believed it
could get the work done on the outside for less money."
The first and last time that the Respondent appraised the
Union during the period of negotiations that if it was
forced to pay the wages proposed by the Union, it would
close the sign shop and subcontract the work was on June
uance of part of an operation which was involved there . Id at 272, 273, fn.
16.
20 That the employees so understood the import of Hendricks ' threat is
demonstrated by the fact that one of the employees specifically asked
whether the repudiation of the Union by the employees would be sufficient
to cause the Respondent to reopen the sign shop,
322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4 when Hirstel , without any further explanation or
clarification , told this to the Union's negotiators .21 At the
hearing the sole evidence adduced by the Respondent to
substantiate the reason for its decision to close the 'sign
shop was the testimony of Hendricks which in its entirety
follows:
Q. Could you please advise the Court in your own
words the economic factor that was present throughout
these bargaining discussions ? What were the economic
considerations as to the continued operation of the sign
shop?
A. Well, the discussions related primarily to the
wages of the employees , the wage demands that were
made and the wages we were going to pay , and also our
own considerations were the distance involved in
getting signs to stores , transportation costs, whether we
should operate sign shops in various areas or do sign
work by outside agencies in various areas or whether
we should be doing it all centrally . Just the cost factors
involved in all of it.
This testimony which can only be characterized as vague
and evasive was given in an unconvincing manner.
Moreover , it was not corroborated by any of the other
officials who presumably allegedly consulted with Hen-
dricks . The Respondent for some unexplained reason did
not present one bit of evidence explaining its reason or
reasons for deciding to close the sign shop which led to the
announcement of the impending closure to the employees
on May 22 . Under the circumstances, I presume that any
such evidence would have been unfavorable to the
Respondent and would not have supported Hendricks'
statement made to the employees on May 22 that it was
cheaper to subcontract the work . In fact, Hendricks, as
described above, did not make any such contention at the
hearing.
Based on the foregoing, I find that on May 22, in
threatening the employees with the closure of the sign
shop, the Respondent was motivated by a desire to
discourage the employees from supporting the Union and
by an improper intent to undermine the Union . According-
ly, by engaging in this conduct the Respondent , as alleged
in the complaint , violated Section 8(axl) of the Act.
Hendricks ' subsequent announcement on May 25 to the
employees that the Respondent had agreed to continue
operating the sign shop on "a temporary basis" was not
sufficient , in my opinion , to dissipate the coercive effect of
the earlier threat of closure . Hendricks did not disa- -,w the
earlier threat but rather told the employees that the
Respondent had reached an agreement with the Union
whereby the Union had agreed to call off its strike and the
Respondent had agreed to keep the sign shop in operation
only on a temporary basis . In the context in which it was
made, Hendricks ' warning that the sign shop was only in
21 Based on the credible testimony of Hord , who was an impressive
witness. Hendricks on the subjects of the closing of the sign shop and the
subcontracting of work , in hearing and demeanor was not a convincing
witness. In response to a leading question he indicated that Respondent at
negotiations advised the Union of the economic considerations relating to
the decision to close the sign shop . No attempt was made by Hendricks to
put some flesh and blood on this vague generalization . Hirstel on this matter
. xistence temporarily could only have been construed by
the employees as a none too subtle threat that the
Respondent would close if the employees decided to
reinstate the strike deadline or otherwise continue to
support the Union's bargaining position. Accordingly, as
alleged in the complaint , I find that by engaging in this
conduct the Respondent violated Section 8(axl) of the
Act.
I have found , as alleged by the General Counsel, that the
threat by Respondent to close its sign shop violated Section
8(axl) of the Act for the reason that it was an act designed
to undermine and destroy the Union 's support among the
employees and to discourage them from engaging in a
lawful strike . The employees exercise of the right to strike
in support of their bargaining representative 's bargaining
position is not only protected by the Act but is a vital part
of the process of collective bargaining . Part of the task
facing a newly certified bargaining representative is to
effectively generate the support of the unit employees to
strike , if necessary, in support of the Union's demands.
The deliberate effort by Respondent by its threat to
permanently close its sign shop to discourage the employ-
ees from striking in support of the Union constitutes a
clear undercutting of the Union 's function as bargaining
representative. The spectre of this threat hanging over the
sign shop's employees permanently impaired the Union's
vitality as the employees' bargaining representative, for the
threat was calculated to significantly dampen the employ-
ees' future willingness to engage in concerted activities in
support of the Union 's bargaining position . Briefly stated,
the threat to close the sign shop, when viewed in light of
Respondent 's employment and subcontracting policies,
which I have found to be illegally motivated , was conduct
designed to undermine and destroy the Union 's representa-
tive status while collective-bargaining negotiations were
taking place and, as such , demonstrated that the Respon-
dent was bargaining in bad faith wrl thereby violated
Section 8(aX5) of the Act . Cf. Wire h .,.. ' N corp.,Cor
198 NLRB No. 90. I realize that this viu..a. .._ was not
specifically pleaded but it is well settled that "courts as well
as the National Labor Relations Board have held that a
material issue which has been fairly tried by the parties
should be tried by the Board regardless of whether it has
been specifically pleaded ." American Boiler Manufacturers
Association v. N.LRB., 366 F .2d 815 , 821 (C.A. 8, 1966),
and cases cited therein . This is such a case 22
3. The subcontracting
There can be no doubt that the Respondent's sign shop
operation during the period from about June 1 into early
October was significantly different from its customary
operation . Previously, the Respondent had not subcon-
tracted work performed by the sign shop employees and
had customarily replaced terminated employees. Com-
also had to be led by Respondent's counsel and was just as vague and
evasive as Hendricks in his testimony and ultimately agreed, in effect, that
Hord's version of the negotiations was correct on this point.
22 For the same reason I have found, infra although not specifically
pleaded , that Respondent violated Section 8(aX5) by refusing to meet with
the Union commencing on July 24.
PAY 'N SAVE CORP. 323
mencing on or about June 1 Respondent changed its hiring
and subcontracting policies. Although the demand by its
retail stores remained constant, the Respondent decided
not to replace terminated sign shop employees. Respon-
dent was able to handle the flow of sign shop work only by
subcontracting work which in the past had been tradition-
ally performed by the sign shop's employees. During this
period of time, due to the aforesaid employment and
subcontracting policies, the normal complement of em-
ployees in the sign shop was substantially reduced. And, as
described later in this decision, employees Lindstrom and
Reeves, who were laid off on June 15, were not assigned to
existing vacartoies in the sign shop because of the
Respondent's decision to subcontract rather than fill job
vacancies.
This is the kind of basic change in operations which an
employer, in my opinion, is obligated to bargain with his
employees' representative. For, by subcontracting out the
work, the Respondent adversely affected the bargaining
unit, diminishing the whole number of jobs performed by
unit employees, International Union, United Automobile,
Aerospace & Agricultural Implement Workers [GM Corp.],
v. N.L.RB., 381 F.2d 265, 266 (C.A.D.C., 1967), resulting
"in significant impairment of job tenure , employment
security or reasonable anticipated work opportunities."
Westinghouse Electric Co., 150 NLRB 1574, 1576. In these
circumstances, the Respondent, by virtue of Section 8(ax5)
of the Act, was obligated not to change its hiring and
subcontracting policies unilaterally without first consulting
and bargaining with the Union. Fibreboard Paper Products
Corp. v. N.L.RB., 379 U.S. 203 (1964). Yet, the Respon-
dent on or about June 1, during the course of its
negotiations with the Union, ceased hiring employees and
commenced to subcontract work normally performed by
the sign shop employees. The Respondent at no time gave
the Union an opportunity to bargain about the matter.23 In
response to the complaints of the sign shop 's employees,
the Union by letter of July 13 protested to Respondent
about the subcontracting. Hendricks, the Respondent's
vice president, by letter replied that the Respondent had
subcontracted sign slop work for "many many years"24
and planned to continue following this established policy.
Respondent, in short, made it clear that it did not regard its
subcontracting of sign shop work as a bargainable matter.
The Supreme Court has ruled otherwise (Fibreboard Paper
Products Corp., supra), and based on the foregoing, I find
that commencing on or about June 1 and continuing
thereafter the Respondent , by unilaterally changing its
hiring practices and by subcontracting work normally
performed by its sign shop employees without first
consulting and bargaining with the Union, violated Section
8(aX5) and (1) of the Act.
This evidence concerning the nature of the Respondent's
subcontracting does not, however, stand alone. There is, I
find, persuasive evidence in the record that the subcon-
tracting was the result of the Respondent's unlawful
conduct engaged in for the purpose of undermining the
23 The statement of Respondent's negotiator , Hostel, made at the
negotiation meeting of June 4 that if the Company had to pay the Union's
wages, it would close the sign shop and subcontract the work , is not the type
of notice contemplated by the Act. "Knowing what [Respondent ] intended
to do is not the same as being notified that it is about to do it." Overnite
Union's representative status. Thus, it is admitted that the
reason Respondent, contrary to past practice, did not
replace terminated sign shop employees but instead
subcontracted the work was because this was the period
when the Respondent , allegedly , was considering whether
to cease operating the sign shop . Respondent had no
legitimate reasons, however , for engaging in this conduct
butt, as I have found, the Respondent's initial decision to
close the sign shop announced to the employees May 22
and the later announcement that the shop would remain in
operation only on a temporary basis was unlawfully
motivated conduct engaged in for the purpose of discour-
aging the employees from supporting the Union and to
undermine the Union. Under these circumstances, I find
that the record establishes that commencing on or about
June 1 , when the Respondent unilaterally changed its
hiring policies and unilaterally commenced to subcontract
work normally performed by its sign shop employees, the
Respondent was motivated by a desire to disparage and
undermine the Union. This conduct by itself constitutes a
violation of Section 8(aX5) of the Act. Town & Country
Manufacturing Co., 136 NLRB 1022, 1026 . Likewise, it
constitutes a violation of Section 8(aX3) of the Act. Town &
Country Manufacturing Co., supra
4. The refusal to reassign employees James
Lindstrom and Mark Reeves to other work when
their work in the sign shop 's silk screen room was
terminated
On June 15 , employees James Lindstrom and Mark
Reeves, regularly employed as silk screen operators, were
laid off as the result of the temporary closing of the sign
shop's silk screen room . I have found , contrary to the
position of the General Counsel, that the closing of the silk
screening operation was not unlawfully motivated. The
General Counsel also alleges that the evidence establishes
the Respondent violated the Act by failing and refusing
since June 15 to reassign Lindstrom and Reeves to work
which then existed in the sign shop.
Lindstrom and Reeves, although regularly performing
silk screening, were qualified to do other types of work in
the sign shop. Each was proficient in preparing show cards,
a skill needed in the sign shop when they were laid off and
for the following period. Two of the sign shop 's employees,
Arthur Koyano and Susan Tungate, had voluntarily
terminated their employment the week of the layoff, and
another employee , Maureen Weston , was absent from
work with a broken wrist which indicated to the Respon-
dent she would be incapacitated for quite some time. In
these circumstances , since the production of show cards
constituted a substantial part of the sign shop's work
volume , it is not surprising that the shop's employees, due
to the lack of manpower , were late by as much as 3 weeks
Transportation Co. v. N.LRB., 372 F.2d 765,769 (C.A. 4, 1967).
24 The letter was patently false insofar as it implied that the Company
had a past practice of subcontracting the type of work performed by the
sign shop's employees. The only work customarily subcontracted was work
not normally performed by these employees.
324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in filling the orders submitted by the Respondent's retail
outlets.25
Reeves, who had been employed since February 1972,
was regarded by the Respondent as an extremely valued
and skilled employee who during the normal course of his
workweek performed a wide variety of assignments,
including some of the most skilled work in the department.
Also, it is undisputed that the sign shop's employees,
including both Lindstrom and Reeves, when hired were
"hand picked" and carefully screened, and that it is the
intent of the Respondent to train its employees to perform
all of the jobs in the department , progressing from the
supple jobs to the ones demanding a higher degree of
skill.28 Plainly, the Respondent has an interest to do
everything in its power to retain in its employ satisfactory
employees . There is no evidence or contention that
Respondent was not satisfied with the work of either
Reeves or Lindstrom . Contrariwise, Hendricks testified
that when the silk screen room is rebuilt that the
Respondent in all probability intended to offer them
reemployment.
The evidence set out above , in my opinion, establishes
that on June 15 the Respondent was of the opinion that
Reeves and Lindstrom were capable of satisfactorily
performing work in the sign shop other than silk screening.
This conclusion is bolstered by the fact that in explaining
its reason for not reassigning Lindstrom and Reeves to
other work , rather than layin* them off, the Respondent at
no time has questioned their ability to do such work;
rather, as described below, it has contended that it had a
full complement of employees.
On June 15, there were two vacancies in the sign shop
caused by the recent voluntary terminations of employees
Koyano and Tungate . In response to the comment of an
employee that Lindstrom and Reeves were competent to
fill these two job vacancies , Advertising Director Sullivan
on June 15 did not deny their ability to handle the work
but, in refusing to assign them to these vacancies , stated
that the Respondent "won't be filling those positions."
Likewise, at the hearing, Vice President Hendricks testified
that Respondent on June 15 did not consider continuing
employing Lindstrom and Reeves in the sign shop , rather
than laying them off, because the Respondent had a full
complement of employees or, in his exact words , "we had
all the people that we needed to run the sign shop ." But, as
I have found, the Respondent's normal complement of
employees in the sign shop in June had dropped by two or
three even though the demand for signs by the Respon-
dent's retail outlets continued.27 Obviously, in these
circumstances , Hendricks' testimony that the Company on
25 I have considered employee Brown's admission that the sign shop
"has been meeting" its work load of show cards in a timely fashion. When
Brown's testimony is viewed in its entirety, it is clear that she was referring
to the operation of the sign shop at the time she was testifying, November.
Her undenied testimony , as a whole, is to the effect that prior to the time the
Respondent commenced to hire new employees , late September, that the
lack of manpower caused a hardship in the sign shop.
se In this regard , I note that, as indicated by the parties ' wage proposals
during negotiations , the employees are not classified by any particular job
they perform.
27 It is a fair inference that the stores ' demands for signs had even
increased during this period inasmuch as during 1973 and prior to
November, the Respondent had added approximately 13 stores.
June 15 "had all the people we needed to run the sign
shop," is accurate if one of two things occurred . The sign
shop had been overstaffed or the signs needed by the
Respondent 's stores were being produced some place other
than the sign shop28 The latter is what was occurring. For,
Hendricks admitted, at the hearing, that on or about June
1 the Respondent changed its sign shop's employment and
subcontracting policies. It stopped replacing terminated
employees and instead subcontracted the work formerly
done by the terminated employees . I have found that the
Respondent engaged in this conduct , without bargaining
with the Union, for the purpose of disparaging and
undermining the Union in violation of S.- *;on 8(axl), (3),
and (5) of the Act.
Based on the foregoing , I find that an June 15 the
Respondent had work available for Lindstrom and Reeves
which they were capable of performing in a satisfactory
manner and that during the normal course of business they
would not have been laid off but would have been assigned
to other work in the sign shop. They were laid off, however,
because of the Respondent 's unlawful practice of subcon-
tracting work rather than filling existing job vacancies. In
these circumstances, the Respondent's refusal on June 15
to continue to employ Lindstrom and Reeves was the
direct result of its unlawful hiring and subcontracting
practices and, as such, constitutes a violation of Section
8(axl) and (3) of the Act.
5. The failure to bargain in good faith
The basic issue here involves an allegation of surface
bargaining. The General Counsel contends that the
evidence shows that Respondent did not negotiate with a
sincere intention to reach an agreement with the Union.
Respondent contends it was engaged in hard bargaining.
Section 8(d) of the Act defines the duty to bargain as the
mutual obligation "to meet at reasonable times and confer
in good faith with respect to wages, hours, and other terms
and conditions of employment , or the negotiation of an
agreement ." The statutory standard thus adopted contem-
plates a willingness to enter into discussion with an open
mind and a sincere intention to reach an agreement
consistent with the respective rights of the parties. N.LR.B.
v. Texas Coca-Cola Bottling Co., 365 F.2d 321, 322 (C.A. 5,
1966). Section 8(d) also expressly provides that the
collective-bargaining obligation "does not compel either
party to agree to a proposal or require the making of a
concession." It is thus clear that while a party may not
come to the bargaining table with a closed mind , neither is
he bound to yield any position fairly maintained. See
N.L.R.B. v. American National Insurance Co., 343 U.S. 395,
as I have carefully considered , as Respondent suggests, a third
possibility, namely that with the termination of the silk screening operation
the three or four employees who had spent an average of 2 hours a day
helping there could now devote together a total of about 8 additional hours
a day to other sign shop work , thereby eliminating the need to replace
employees who terminated their employment . But, as indicated above, the
testimony of employee Brown indicates there was a need for replacements.
More significant is the failure of Hendricks to specifically give this as the
reason for the Company's failure to replace employees Koyano and
Tungate . He testified in substance that the failure to replace them was
because the Company had instituted a ban on hiring new employees and
was subcontracting the extra work , a policy I have found to have been
unlawfully motivated.
PAY 'N SAVE CORP. 325
404. But, as one court has reminded us, bad-faith
bargaining is prohibited though done with sophistication
and finess and the right to refuse to make concessions
cannot be used as a cloak to conceal a purposeful strategy
to make bargaining futile . NLRB. v. Herman Sausage
Co., 275 F.2d 229, 232 (C.A. 5, 1960).
Obviously, in evaluating the Company 's state of mind at
the bargaining table , the several positions and tactics of the
Company both at and away from the bargaining table
must be considered in relation to each other and the total
bargaining picture . Thus, while the Respondent has
engaged in some conduct independently violative of
Section 8(aX5), (3), and (1) of the Act; other conduct,
standing alone, might not otherwise be found unlawful. All
of the evidence, however, including the independent
violations , must be added together to determine whether,
thus totaled , such evidence preponderates in favor of the
conclusion that the Company engaged in mere surface
bargaining .29 In my opinion, the following factors in their
totality demonstrate that Respondent was not bargaining
with a sincere desire to reach an agreement.
(a) Respondent on May 3 and on July 24 broke off
collective-bargaining negotiations, refusing further meet-
ings and discussions with the Union for the purpose of
obstructing bargaining .30 On May 3, the Respondent's
labor relations consultant, Hostel , broke off negotiations
and refused to meet further with the Union. "We made our
offer; you have it, and that's it," Hirstel told the Union's
negotiator. I cannot, in the circumstances of this case,
regard this conduct as a tactic or a bargaining technique
designed to stimulate negotiations. No one , least of all an
experienced labor relations consultant, could have reason-
ably believed that on May 3 negotiations were deadlocked
or that further negotiations would not have been fruitful.
The bargaining had just commenced. The Respondent, in
effect , had just made its first offer . The Union , except for
union security, on May 3 had indicated a willingness to
modify its bargaining positions. Specifically, on May 3,
immediately before the Respondent broke off negotiations,
the Union in response to the Respondent's demands had
modified and eliminated a number of its proposals in a
manner agreeable to the Respondent . Additionally, it
accepted the Respondent's proposed management rights
clause and reduced its initial wage demands. All of these
circumstances, absent an explanation by Respondent for
its conduct, establish that the Respondent in breaking off
negotiations on May 3 was not motivated by a belief that
negotiations had reached an impasse but rather by a desire
to obstruct bargaining.31
(b) On May 22, the Respondent's vice president, Calvin
Hendricks , to undermine and disparage the Union, held a
meeting with the sign shop 's employees where he falsely
blamed the Union for the breakdown in negotiations and
29 N.L.R B. v Insurance Agents' International Union , AFL-CIO [Pruden-
tial Insurance Co.], 361 U.S. 477, 505-506 (1959). Justice Frankfurter, in his
separate opinion , said that the Court "has recognized that the significance
of conduct, itself apparently innocent and evidently insufficient to sustain a
finding of an unfair labor practice, 'may be altered by imponderable
subtleties at work . . . .' Activities in isolation may be wholly innocent,
lawful and 'protected ' by the Act, but that ought not to bar the Board from
finding, if the record justifies it, that the isolated parts 'are bound together
as the parts of a single plan [to frustrate agreement ]. The plan may make the
parts unlawful' "
at the same time, in violation of Section 8(aX5) and (1),
threatened the employees with discharge . Specifically, as I
have found, the Union tried to stimulate negotiations and
get Respondent back to the bargaining table by setting a
strike deadline and requesting a resumption of bargaining
prior to the deadline . Hendricks did not acknowledge the
Union's request for negotiations , but instead met with the
employees on May 22, at which time he falsely told them
that the breakdown in negotiations was caused by the
refusal of the Union to compromise "on anything" during
negotiations. He also told them that the sign shop would be
closed by Respondent on May 25 and their employment
terminated, a threat which I have found was motivated by
a desire to discourage the employees from striking and to
undermine the Union 's representative status.
(c) On May 23, in a further effort to disparage and
undermine the Union the Respondent , through its Adver-
tising Director Sullivan , blamed the failure of employee
Kathleen Brown to receive a wage increase upon the
Union and told Brown that but for the Union she probably
would have received an increase above the Union 's scale of
wages.a2'
(d) On May 25, Respondent, through its Vice President
Hendricks , engaged in further conduct designed to
undermine the Union and to destroy its effectiveness as the
employees' exclusive bargaining representative. On that
date , I have found, the Respondent violated Section 8(axl)
and (5) by Hendricks' implied threat to the employees that
they would be discharged if in the future they supported
the Union's bargaining position.
(e) On June 4 , at the first meeting between the parties
after the agreement by Respondent to resume negotiations,
the Respondent 's negotiator, Hostel, none too subtly
warned the Union's negotiators that if the sign shop's
employees should again vote to strike in support of the
Union that Hirstel would tell the Company to permanently
close the sign shop. Also, Hirstel, in effect, told the Union's
negotiators that it was futile for the Union to even
negotiate a contract for the reason that even if the parties
did reach agreement , the Respondent might still close the
sign shop.
(f) On or about June 1, immediately after Respondent
agreed to resume bargaining and keep the sign shop
operating on a temporary basis, the Respondent violated
Section 8(axl), (3), and (5), as I have found, by embarking
upon a course of conduct-refusing to replace employees
and subcontracting-deliberately calculated to erode the
bargaining unit for the purpose of destroying and under-
mining the Union.
(g) At the negotiation meeting held on June 18 when
Union Negotiator Hord indicated that he was in substan-
tial agreement with the Respondent's recent wage propos-
al, Hirstel withdrew the offer and substituted a less
so The May 3 refusal to negotiate is discussed herein , whereas the July 24
refusal is discussed below in subsection 6.
31 The law is settled that, absent a genuine impasse in negotiations, the
Respondent was obligated to meet at reasonable times with the Union to
negotiate a contract . Transport Company of Texas, 175 NLRB 763, fn. 1.
32 1 reject the contention of the General Counsel that by engaging in this
conduct the Respondent violated Section 8(axl) of the Act . The matter
which was not alleged as an independent violation was not litigated by
Respondent.
326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
favorable one. The new offer was still a significant one in
terms of what it offered .33 But the manner in which Hirstel
notified Hord of its withdrawal and the withdrawal itself,
as Hirstel must have known, was calculated to disrupt
negotiations . The cavalier assertion made by Hirstel to
Hord to justify the change, the Company had miscalculat-
ed in drafting the proposal, rings false . The Respondent
during this entire period of time allegedly was vitally
concerned about whether labor and other costs would
make it more profitable to subcontract its sign shop work. I
find it hard to believe that in this area the Company made
a miscalculation . Neither Hirstel nor Hendricks, at the
hearing, were called upon to testify about this matter.
Under the circumstances , I am convinced that in abruptly
reducing the Company 's wage offer on June 18 that Hirstel
was not motivated by a desire to correct a miscalculation
but by a desire to place an obstacle in the way of Hord's
acceptance of any such proposal.
(h) On July 12, Hendricks summarily , without consider-
ing the matter , rejected a new wage offer proposed by
Hord which drastically reduced the Union 's previous
proposal . According to the terms of the Union 's July 12
proposal , three of the six hourly paid employees employed
on that date received less of an increase than proposed by
the Respondent in its last wage proposal . Specifically,
Hord on July 12 proposed a 1-year contract calling for a
5.5-percent increase . This resulted in the then employed
hourly employees receiving the following hourly wage
increase . Brown-10 cents (30 cents);34 Laing-21 cents
(10 cents); Woods-21 cents (10 cents); Trujillo-12 cents
(33 cents); Vike- 10 cents (15 cents); and Weston-13
cents ( 10 cents, plus another 10 cents within 5 months).
Hendricks did not even consider the proposal but
summarily turned it down , stating that the Respondent had
made its final offer and needed a 3 -year contract.
Respondent 's need for a 3-year contract was not explained.
Of course, Respondent was not obligated under the Act to
agree to this proposal or for that matter any proposal but,
in view of the nature of the proposal , Hendricks' abrupt
rejection, without even considering the matter , is not the
type of conduct engaged in by someone who has a sincere
desire to reach an agreement.
To sum up : The Respondent at the bargaining table
engaged in conduct inconsistent with a good-faith desire to
reach agreement : Respondent refused to meet and negoti-
ate a contract with the Union and engaged in this conduct
with the object of disrupting negotiations ; likewise, the
Respondent repudiated a wage proposal for the purpose of
disrupting negotiations ; Respondent rejected without
giving the matter any consideration , the Union's most
recent wage proposal which constituted a drastic reduction
over the Union's previous proposals and on its face seemed
to cost less than even the Respondent's own proposal; and
the Respondent 's negotiator informed the Union during
negotiations that it was futile for the Union to negotiate for
a contract, explaining that even if an agreement was
as I specifically reject the General Counsel 's contention that Respon-
dent's wage proposals advanced on June 6 and 18 were below the
Respondent's existing wage policy or practice . There is insufficient evidence
to demonstrate that at the time of the events material to this case that the
Respondent maintained any kind of a wage policy or practice for its sign
shop employees.
reached by the parties the Respondent might discontinue
the sign shop.
Assuming that the Respondent's conduct at the bargain-
ing table is ambiguous, not by itself sufficient to demon-
strate that the Respondent was engaged in surface
bargaining, I am of the opinion that the Respondent's
conduct away from the bargaining table removes any such
ambiguity and establishes the Respondent 's bad faith. For,
contemporaneously with the negotiations, the Respondent
was engaged in a course of conduct designed to undermine
and eventually destroy the Union. Respondent , to prevent
the Union from exercising economic leverage to support its
bargaining position, held the continuous specter of
discharge over each one of the bargaining unit employees;
Respondent for the purpose of weakening the Union
engaged in an employment and subcontracting policy
calculated to erode the bargaining unit ; and the Respon-
dent, for the purpose of discouraging the em loyees from
supporting the Union, falsely represented to the employees
the Union's position during negotiations , blamed the
Union for the employees' failure to receive wage increases,
and implied that without the Union they would get higher
hourly increases.
On the basis of all the above considerations , viewed in
their totality, I find and conclude that Respondent failed to
meet its obligations under Section 8(aX5) and ( 1) of the
Act to bargain in good faith with the Union.
6. The Respondent refuses to hold further
negotiation meetings and grants a wage increase
On July 12, Union Representative Hord initiated a
meeting with the Respondent's Vice President Hendricks
in an attempt to arrive at an agreement . Hord proposed a
1-year contract with a 5.5-percent hourly increase for all of
the unit employees . Hendricks summarily rejected the
proposal, stating the Company needed a contract of 3
years' duration and had made its final offer on wages.
Hendricks proposed that the Respondent be allowed to
implement its wage proposal without a contract . The same
day, Hord relayed this proposal to the employees who
rejected it and, on July 13 , by letter, Hord notified
Hendricks that the Company's proposal to grant a wage
increase without a contract was not acceptable to the
Union. Hord ended the letter by requesting that the
Company resume negotiations and negotiate with the
Union until an acceptable contract was consummated. On
July 24, by letter , Hendricks notified the Union that the
Respondent refused to meet with the Union because
negotiations were at an impasse and that further negotia-
tions would accomplish nothing.
On August 26, four of the five hourly paid employees
employed in the siggnn shop were granted a wage increase by
the Respondent substantially identical to what was called
for under the Respondent's last wage proposal.
Respondent, absent a genuine impasse in negotiations,
34 The figure - in the "( )" refers to the wage increase that the employee
would receive immediately under the Respondent's final proposal advanced
on June 18 . Of course, the Respondent's contract was for 3 years and
provided for additional substantial wage increases for four of the six
employees during the last 2 years.
PAY 'N SAVE CORP. 327
was not privileged to refuse to meet for further negotiations
with the Union nor, absent such an impasse , was the
Respondent privileged to grant its last wage offer over the
Union's objections . See Hi-Way Billboards, Inc., 206
NLRB No. 1. In my opinion, there was no genuine impasse
in negotiations , nor did Respondent believe that one
existed . The crucial issue in dispute was wages . The Union
appeared willing to negotiate on economic matters,
including wages, at all times . In fact, the last time the
parties met, July 12, the Union had so drastically revised
its proposal on wages that the gap between the parties on
this issue had closed significantly . And it appears from
Hendricks' response to this offer that perhaps wages as
such was no longer the crucial issue , but that the key to the
bargain lay in the duration of the agreement , a matter
which previously had not been a subject of discussion.
Moreover, the parties did not discuss the Union's new
proposal . Respondent's negotiator rejected it summarily
and spent most of the meeting trying to persuade the
Union to give the Respondent permission to implement its
wage proposal absent an agreement . For all of these
reasons, I do not believe that the parties on July 12 had
either exhausted bargaining possibilities nor had they
reached the stage where further meetings would have been
fruitless . In addition, I am convinced that the circum-
stances belie Hendricks ' claim that he believed the parties
had reached an impasse . Rather, the objective circum-
stances establish that in refusing to hold further meetings
with the Union the Respondent was motivated by a desire
to obstruct negotiations.
Based on the foregoing , I find that the Respondent, by
its refusal on July 24 to meet and negotiate with the Union
and by its unilateral grant of wage increases on August 26,
violated Section 8(a)(5) and (1) of the Act. By themselves,
the Respondent 's refusal to meet with the Union and its
unilateral increase of wages, absent a genuine impasse,
each was a violation of Section 8(aX5). Hi-Way Billboards,
Inc., supra. Assuming, however, that an impasse existed on
July 12 and 24, I am convinced that discounting Hen-
dricks ' conduct on these dates that the other evidence
discussed in subsection 5, supra, establishes that as of July
24 the Respondent was not bargaining in good faith. In this
circumstance, "where good faith [bargaining ] on the part
of management is lacking, the courts will not recognize the
existence of a bargaining impasse." N.LKB. v. Safeway
Steel Scaffolds Company of Georgia, 383 F.2d 273, 280
(C.A. 5, 1967); Accord: Hi-Way Billboards, Inc., supra. For
this additional reason, I further find that the Respondent,
by refusing to meet with the Union on July 24 and by
unilaterally implementing its wage proposal on August 26,
violated Section 8(a)(5) and (1) of the Act.
Upon the basis of the foregoing findings of fact and the
entire record , I make the following:
CONCLUSIONS OF LAW
1. Pay 'n Save Corporation, the Respondent, is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Sign and Pictorial Painters, Paint Makers and Allied
Trades Local 1094 , AFL-CIO, affiliated with Painters and
Allied Trades of America, the Union, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. All production employees employed at the Respon-
dent's sign shop located at 1511 Sixth Avenue, Seattle,
Washington, excluding all office clerical employees,
guards , managers , and supervisors as defined in the Act
constitute a unit appropriate for purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
4. Since March 5, 1973, the above-named labor
organization has been , and is now, the exclusive represent-
ative of all employees in the aforesaid bargaining unit for
the purposes of collective bargaining within the meaning of
Section 9(a) of the Act.
5. By refusing since early April 1973 to bargain in good
faith with the Union as the exclusive bargaining represent.
ative of the employees in the appropriate bargaining unit;
by refusing since July 24, 1973, to meet and bargain with
the Union as the exclusive bargaining representative of the
employees in the appropriate bargaining unit; by its
unilateral actions in changing employment practices and in
subcontracting bargaining unit work in a manner different
in quantity and kind from that subcontracted previously,
all without notification to or bargaining with the Union,
and for the purpose of destroying and undermining the
Union's representative status ; by its threats to cease
operating the bargaining unit made in conjunction with its
aforesaid illegally motivated employment and subcontract-
ing ppractices ; and by unilaterally increasing the wages of
the bargaining unit employees on August 26, 1973, prior to
bargaining in good faith to an impasse with the Union,
Respondent engaged in unfair labor practices in violation
of Section 8(axl) and (5) of the Act.
6. By changing its employment practices and subcon-
tracting bargaining unit work for the purpose of discourag-
ing its bargaining unit's employees from supporting the
Union and to undermine the Union's representative status;
and by refusing to assign bargaining unit work to
employees James Lindstrom and Mark Reeves and laying
them off on June 15, 1973, because of its aforesaid illegally
motivated employment and subcontracting practices,
Respondent engaged in unfair labor practices in violation
of Section 8(a)(l) and (3) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
8. The Respondent has not otherwise violated the Act.
REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, I find it necessary to order
the Respondent to cease and desist therefrom and to take
certain affirmative action designed to effectuate the
purposes of the Act.
Having found that the Respondent violated Section
8(aX3) and (5) by its unilateral change in employment and
subcontracting practices , I shall recommend that Respon-
dent return to its former method of operation , and shall
recommend that Respondent offer reinstatement and
backpay to employees Lindstrom and Reeves , who were
denied continued employment because of the Respon-
dent's unlawful conduct . But, contrary to the request of the
328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Counsel, I shall not recommend backpay "for
applicants refused employment or denied consideration for
employment" since it is absolutely impossible to identify
the particular applicants , in this category, who suffered as
the result of the Respondent's unlawful conduct.
Having found that the Respondent unlawfully failed and
refused to consider for employment and to continue to
employ James Lindstrom and Mark Reeves on June 15,
1973, I find it necessary to recommend that the Respon-
dent offer them immediate reinstatement to the same
positions they would have enjoyed if they had not been
discriminated against. I shall also recommend that Res-
pondent make Lindstrom and Reeves whole for any loss of
earnings suffered as a result of the discrimination practiced
against them, with backpay computed on a quarterly basis
as prescribed in F. W. Woolworth Company, 90 NLRB 289,
from June 15 to the date reinstatement is offered , and shall
include interest at the rate of 6 percent per annum as
provided for in Isis Plumbing & Heating Co., 138 NLRB
716.
In order to insure that the employees in the appropriate
unit will be accorded the services of their selected
bargaining agent for the period provided by law, I shall
recommend that the initial period of certification be
construed to begin on the date Respondent commences to
bargain in good faith with the Union as the recognized
bargaining representative in the appropriate unit . See Mar-
Jac Poultry Company, Inc., 136 NLRB 785; Commerce
Company d/b/a Lamar Hotel, 140 NLRB 226, 229, enfd.
328 P.2d 600 (C.A. 5, 1964); Burnett Construction Company,
149 NLRB 1419, 1421, enfd . 350 F.2d 57 (C.A. 10, 1965).
As the unfair labor practices committed by the Respon-
dent are of a character which go to the very heart of the
Act, I shall recommend that an order requiring the
Respondent to cease and desist therefrom and to cease and
desist from infringing in any other manner upon the rights
of employees guaranteed by Section 7 of the Act.
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:
ORDER 3s
Respondent , Pay 'n Save Corporation, Seattle, Washing-
ton, its officers, agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith with
Sign and Pictorial Painters, Paint Makers and Allied
Trades Local 1094, AFL-CIO, affiliated with Painters and
Allied Trades of America, or refusing to meet and bargain
with the aforesaid Union as the exclusive bargaining
representative of the production employees employed by
Respondent at its sign shop in Seattle, Washington,
excluding all office clerical employees, guards, managers,
and statutory supervisors.
(b) Refusing to bargain collectively with the above-
35 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.
named Union by unilaterally subcontracting work from
the aforesaid bargaining unit, or otherwise changing the
wages, hours, and other terms and conditions of employ-
ment of the employees employed in this bargaining unit
without affording the Union an opportunity to bargain and
bargaining with the Union to an impasse.
(c) Laying off employees, subcontracting work, changing
employment practices, or otherwise discriminating against
employees in order to discourage employees in the sign
shop from joining or supporting the Union or to under-
mine the Union as the employees' bargaining representa-
tive.
(d) Threatening employees to discontinue the sign shop
or otherwise threatening them with loss of their jobs
because they have supported the Union or to discourage
them from supporting the Union.
(e) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights
guaranteed in Section 7 of the Act, except to the extent that
such rights may be affected by an agreement requiring
membership in a labor organization as a condition of
employment, as authorized in Section 8(a)(3) of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request, meet and bargain collectively in good
faith with the Union with respect to rates of pay, wages,
hours of employment, and other terms and conditions of
employment of the employees in the above-described
appropriate unit and, if an understanding is reached,
embody such understanding in a signed agreement.
(b) Return to its former mode of operations existing in
the appropriate bargaining unit described herein prior to
the unilateral change in employment practices and the
unilateral increase in the kind and quantity of subcontract-
ing.
(c) Offer to James Lindstrom and Mark Reeves immedi-
ate employment at the same positions at which they would
have been employed had they not been discriminated
against or, if these positions no longer exist, to substantial-
ly equivalent positions, without prejudice to seniority or
other rights and privileges, and make them whole for any
loss of earnings suffered by reason of our unlawful refusal
to continue them in our employ, in the manner set forth in
the section herein entitled "Remedy."
(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 to analyze the amount of backpay due and the
rights of reinstatement under the terms of this Order.
(e) Post at our headquarters in Seattle, Washington,
copies of the attached notice marked "Appendix." 36
Copies of said notice, on forms provided by the Regional
Director for Region 19, after being duly signed by the
Respondent's representative, shall be posted by Respon-
dent immediately upon receipt thereof, and be maintained
as 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."
PAY 'N SAVE CORP. 329
by it for 60 consecutive days thereafter, in conspicuous
places , including all places where notices to employees
employed in the bargaining unit are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by
any other material.
(f) Notify the Regional Director for Region 19, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS ALSO ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found.
APPENDIX
NoTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to meet or bargain collectively
in good faith with Sign and Pictorial Painters, Paint
Makers and Allied Trades Local 1094, AFL-CIO,
affiliated with Painters and Allied Trades of America,
as the exclusive bargaining representative of the
production employees employed in our sign shop.
WE WILL NOT refuse to bargain collectively with the
above-named Union by unilaterally subcontracting
work normally performed by our sign shop production
employees or by otherwise changing the wages , hours,
and other terms and conditions of employment of these
employees without bargaining to an impasse in good
faith with the above-named Union.
WE WILL NOT lay off employees, subcontract work,
change our employment practices , or otherwise dis-
criminate against employees to discourage our sign
shop employees from joining or supporting the above-
named Union or to undermine the Union as their
bargaining representative.
WE WILL NOT threaten employees that the sign shop
will be closed or otherwise threaten employees with loss
of jobs because they have supported the above-named
Union or to discourage them from supporting the
Union.
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of their
rights guaranteed in Section 7 of the Act, except to the
extent that such rights may be affected by an
agreement requiring membership in a labor organiza-
tion as a condition of employment , as authorized in
Section 8(aX3) of the Act.
WE WILL, upon request , meet and bargain in good
faith with the above-named Union with respect to rates
of pay, wages, hours of employment , and other terms
and conditions of employment of our production
employees employed in the sign shop and, if an
understanding is reached, embody such understanding
in a signed agreement.
WE wu.L return to the former mode of operation
existing in the sign shop prior to the time we changed
our employment practices and increased the kind and
quantity of subcontracting.
WE wiLL offer to James Lindstrom and Mark
Reeves immediate employment at the same positions at
which they would have been employed had they not
been discriminated against or, if these positions no
longer exist, to substantially equivalent positions,
without prejudice to seniority or other rights and
privileges, and WE WILL make them whole for any loss
of earnings suffered by reason of our unlawful refusal
to continue them in our employ.
Dated By
PAY 'N SAVE CORPORATION
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 10th
Floor, Republic Building , 1511 Third Avenue, Seattle,
Washington 98101, Telephone 206-442-4532.