Seattle Department Stores Association, Inc

National Labor Relations Board - Board Decisions

Jun 30, 1969

177 N.L.R.B. 805 (N.L.R.B. 1969)

SEATTLE DEPARTMENT STORES ASSN. 805
Seattle Department Stores Association , Inc. and
Retail Clerks Union Local 1404 and its successor
Retail Clerks Union Local 1001 and Retail Clerks
Union Local 1207 and its successor Retail Clerks
Union Local 1001 . Cases 19-CA-3901 and
19-CA-3902
June 30, 1969
DECISION AND ORDER
By MEMBERS FANNING, BROWN AND ZAGORIA
On February 13, 1969, Trial Examiner David E.
Davis issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a supporting brief,
and the Charging Party filed an answering 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
powers in connection with these cases to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner only to the extent consistent
herewith.'
The Trial Examiner found that the Respondent,
by unilaterally instituting additional night openings
without consultation and bargaining with the Union,
violated Section 8(a)(5) and (1) of the Act. We find
merit in those exceptions of the Respondent directed
to the Trial Examiner's failure to find that under the
terms of the then current contract, the
member-stores in the Respondent Association could,
during the term of the contracts, institute new or
additional night openings.
On November 29, 1967, the Charging Parties
wrote to the Association concerning a rumor that
some member stores of the Association were
contemplating remaining open for business an
additional night per week, and insisting on
negotiations concerning the effects of this
contemplated change. On November 30, the
Association replied, denying knowledge of any
contemplated changes in store hours, but setting a
meeting date. On December 5, the Association sent
a further reply, stating:
'Respondent 's request for oral argument is hereby denied as, in our
opinion , the exceptions, briefs, and the entire record in the case adequately
present the positions of the parties.
I am assuming that you are unaware of the
fact that no limitations of the number of night
openings was contemplated by either party in
1953 [negotiations and contract], and no
limitations in respect thereto appear in that
contract nor in any contract subsequent thereto,
including the contract with your Locals presently
in effect.
In order that there may be no possible
misunderstanding as to the nature of the meeting
you have requested, if it is to be held I wish it
clearly understood, as a condition preceding such
meeting, that the holding thereof or any
discussions during such a meeting or conference
shall not be construed by you or your respective
Local Unions as acquiescence in a request for
negotiations during the life of the presently
existing contract, nor shall it be construed to
constitute negotiations in any manner on this
issue.
Thereafter, there were further exchanges of
correspondence between the parties, but no meetings
were ever held regarding this subject.
At the hearing , the parties entered into the
following stipulations of fact:
No. 1. As of 12/27/67 and 3/8/68, some
department, specialty and variety stores covered
by [contracts between the parties] increased their
number of night openings unilaterally.
No. 2. As of 12/27/67, at Northgate and other
shopping centers, some department and specially
stores increased the number of night openings,
and some of the commissioned sales employees in
those stores had work schedule changes which
increased the amount of nonselling time in their
regular 40-hour week.
It was agreed that evidence could be introduced
which might in any way explain the reasons for the
above facts having occurred.
The Trial Examiner construed the Respondent's
position to be that the scheduling of store hours and
the hours of employment are management
prerogatives, rather than mandatory subjects for
collective bargaining . While we agree with the Trial
Examiner' s conclusion that these are mandatory
subjects for collective bargaining , we find, contrary
to the Trial Examiner, that the Respondent at no
time argued that they were not, but rather
contended that past custom and practice and the
then current contracts covered the subject.
In finding that the Respondent violated Section
8(a)(5) and (1) of the Act, the Trial Examiner noted
that the pertinent provisions of the labor agreement
have been subjected to interpretation by an
arbitrator, and found that it was clear, therefore,
that the provisions of the labor agreement with
respect to hours do not in specific terms waive the
right of the union to bargain concerning additional
night openings any more than it did concerning
openings on Washington's birthday. He further
found that discussions held in 1961 concerning night
177 NLRB No. 47
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
openings, and Respondent's contract proposals
during the contract negotiations in 1966,
demonstrated that Respondent was unable to win a
concession from the Unions that store hours were to
be left to management. We disagree.'
In regard to the Trial Examiner' s comments
concerning the 1965 arbitration award, we find from
a reading of that decision that the contract
provisions pertinent to a determination of the
questions raised herein were not considered by the
arbitrator. Rather, the arbitrator dealt exclusively
with the question of whether the contract allowed
the member stores of the Association to remain
open on Washington's birthday, and found that it
did not. The arbitrator's decision therefore, has no
application to the present controversy.
Although it is true, as the Trial Examiner stated,
that the contract does not in specific terms waive
the right of the union to bargain concerning
additional night openings, we do not find this fact
controlling. Further, we do not adopt the Trial
Examiner's conclusion that the discussions in 1961,
at the time of the reopening of the contracts on
wages, and the Respondent's 1966 contract
proposals regarding the scheduling of store hours
demonstrate that the Respondent was unable to win
a concession from the Unions. The record shows
that the 1961 discussions followed the establishment
of additional night openings by certain stores, and
were concerned with the effect on the employees,
and the Union's demand for overtime pay after 6
p.m. In regard to the 1966 contract proposals, the
record fails to show that the subject of additional
night openings, as such, was ever discussed by the
parties, but it does show that agreement was
reached on the subjects of Washington's birthday
and Sunday openings, which the Respondent
contends its proposals were designed to solve. From
a reading of the record, it appears that at no time
have the parties discussed, by itself, the subject of
additional night openings. Since 1953, when it
bargained away the payment of time and one-half
after 6 p.m. in return for a 40-hour, 5-day week,
Local 1207 has periodically asked if additional night
openings were contemplated by any of the member
stores of the association, but this question has been
posed in the context of the unions' demand that
time and one-half be paid for hours worked after 6
p.m.3
'We also disagree with the Trial Examiner's interpretation in fn 14 of a
statement by the Respondent's Executive Secretary that he considered the
issue of additional night openings as a strike issue . The Trial Examiner
interpreted this to mean that the issue was considered a management
prerogative , and not a mandatory issue for collective bargaining We see
no reason for placing such an interpretation on this statement
'The Charging Party cites Proctor Manufacturing Corporation. 131
NLRB 1166, 1169, in support of its contention that the Respondent's
unilateral action violated the Act We do not find this case controlling
under the factual situation here , since it cannot be found herein that the
parties have at any time discussed the subject of additional night openings
as such
In view of our finding above, it becomes necessary
to determine whether, as the Respondent contends,
the then current collective bargaining agreements,
which expired May 15, 1969, permitted the
unilateral establishment of additional night
openings . In support of this contention, the
Respondent points to the following contractual
language:
SECTION 3. HOURS. Working hours shall be
as follows: Forty (40) hours consisting of not
more than five (5) days of eight (8) hours each
shall constitute the basic work week for regular
full-time employees, except as may be otherwise
provided herein. Regular employees shall be
placed on a straight time schedule of hours and
before any change other than rest and meal
periods and increasing the number of work hours
is made, in their schedule, notice of such change
shall be given in the prior week, except in cases of
emergency or where the change is mutually agreed
to by the employer and the employee affected.
(a) Time worked in excess of eight (8) hours in
any one day or forty (40) hours in any one week
or on the sixth day or after 9:30 P.M. when store
is open for business, shall be paid for at the
overtime rate. Day off shall be designated by
Employer. Employees shall not be required to
take time off in lieu of receiving overtime pay;
overtime rate of pay is one and one-half (1 1/2)
times any employee's straight time rate of pay.
Designation of daily hours to be worked within
the limitations of this Agreement shall be at the
discretion of the Employer, provided, however,
that no employee shall be laid off before his
scheduled day's work is completed; and provided
further that employees working more than six (6)
hours but less than eight (8) hours shall be paid
for eight (8) hours, unless they leave voluntarily
before the eight (8) hours have been worked.
(c) Daily working hours for employees shall be
consecutive, except that they shall have either
forty-five (45) minutes or one ( 1) hour for meal
period . There shall be no split shifts. . .
SECTION 7. HOLIDAYS. The following days
shall be considered holidays: . . .Washington's
Birthday . . . Should an Employer be open for
business on Washington 's Birthday, those
employees who work on this holiday shall be paid
at the rate of double time in addition to holiday
pay due them . Employees who indicate a
preference not to work on this holiday shall not
be required to do so . Work on Washington's
Birthday shall be in addition to a regular full-time
and regular part-time employee's normal work
schedule.' [Emphasis supplied.]
'The sections quoted here are taken from the G . C Exh 3, a contract
between the Respondent Association and Local 1207. The other contracts
placed in evidence at the hearing contain virtually identical language.
SEATTLE DEPARTMENT STORES ASSN. 807
The Respondent specifically refers to those
portions of the contract noted above which have
been italicized , and also points to an oral agreement
of the parties, support for which is found in the
record, that there would be no Sunday openings
without prior consultation or bargaining with the
Union.
The various contracts between the parties contain
no specific references to the subject of night
openings, nor do they contain any statement of the
hours during which the various stores will be open,
or of the hours that employees will work. Further,
testimony in the hearing shows that there is no
uniformity in the hours which the various stores are
open . Rather, the various stores of a single
employer are open different hours, as well as the
stores of the various employers being open for
different hours.
The Respondent points out that the contracts give
the Employer the right to designate the daily hours
to be worked and the days off for all employees.
The contracts further provide that regular employees
be placed on a straight time schedule , that they be
given advance notice of schedule changes , and that
daily hours worked be consecutive . The Respondent
contends that the contracts cover all aspects of the
effect on employees of additional night openings,
and that there was, therefore , nothing for the parties
to discuss , when certain stores decided to be open an
additional night . We agree.
Although the Union witnesses at the hearing
testified that they had never conceded to the
Employer the right to establish new or additional
night openings , we find that their questioning on this
subject was in fact related solely to the demand of
one Local for payment of time and one-half for
hours worked after 6 p .m. In fact, one witness
testified that the subject of night openings was not
an issue for his Local Union, since they had always
been paid time and one-half after 6 p.m. The fact
that in 1966 the Unions asked if there were to be
additional night openings , without more , does not
indicate a denial by the Unions of the Employers'
right to establish additional night openings, and we
find no such denial either here or elsewhere in the
record.
The record shows that at various times, beginning
during the second World War and continuing to the
present, the various member stores of the
Respondent Association have changed their store
hours, and have added night openings . There is no
evidence to show that the parties have at any time
held negotiations concerning the establishing of
these new hours , although there is evidence in the
record to show that the parties have met to discuss
the effects of the new hours on the employees. Thus,
in 1962, the Parties agreed that employees would
not be required to work more nights than they had
prior to the establishment of an additional night
opening.
In all the circumstances of this case , we find that
the Respondent' s interpretation of the contract was
correct . For many years the Employer members of
the Respondent Association have unilaterally
established additional night openings , and have
negotiated with the Unions only with regard to the
effect of these openings on the employees . In view of
this finding, and our finding that the current
contracts between the parties cover the possible
effects on the employees of the establishment of
additional night openings , we find that the
Respondent was under no obligation to bargain
about this subject during the life of the current
contracts , and did not violate the Act when it
refused to do so . We shall therefore dismiss the
complaint.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
MEMBER BROWN, concurring:
I concur in the dismissal of the complaint herein
but do so without resolving the merits of the issue
presented , because I consider the case to involve
what is essentially a contract dispute between the
parties . See my separate opinions in Boston Edison
Company, 176 NLRB No. 132, and Cloverleaf
Division of Adams Dairy Co., 147 NLRB 1410,
1420-1425.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
DAVID E. DAVIS, Trial Examiner : Pursuant to charges
filed on December 28, 1967 , and amended on March 8,
1968, by Retail Clerks Union Local 1404 in Case
19-CA-3901 and by Retail Clerks Local 1207 in Case
19-CA-3902, the acting Regional Director of Region 19 of
the National Labor Relations Board , herein called the
Board , issued a consolidated complaint on April 22, 1968,
against Seattle Department Stores , Inc., herein called
Respondent . The duly designated Trial Examiner
conducted a consolidated hearing in the above entitled on
November 13 and 14, 1968, at Seattle , Washington. The
consolidated complaint, further amended at the hearing,
alleged that Respondent instituted unilateral changes in
the hours and working conditions of employees of its
member stores without proper notice and collective
bargaining in violation of Section 8(a)(5) and (1) of the
National Labor Relations Act, herein called the Act.
Respondent ' s answer admitted certain allegations of the
consolidated complaint but denied the commission of any
unfair labor practices.
Subsequent to the hearing , the parties submitted briefs
to the Trial Examiner which have been carefully
considered.
Upon the entire record in these consolidated cases and
from my observation of the demeanor of the witnesses, I
make the following:
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS
Respondent is an association , incorporated under the
laws of the State of Washington , composed of retail
department stores, variety stores, and specialty shops
located in the Seattle area and engages in collective
bargaining in behalf of its member stores with labor
organizations representing employees of such stores.
During the past calendar year the aggregate volume of
sales of all member stores of Respondent exceeded
$500,000 . During the same calendar year the purchases of
goods by such stores shipped directly to them from points
outside the State of Washington exceeded $50 ,000. The
complaint alleged, the answer admitted , and I find, that
Respondent is an employer within the meaning of Section
2(2) of the Act and that it is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION(S) INVOLVED
The complaint alleged , the answer admitted , and I find,
that on or about February 6, 1968, Local 1207 and Local
1404, together with Retail Clerks Local 299, joined and
merged to form Retail Clerks Local 1001, affiliated with
Retail Clerks' International Association , AFL-CIO; I find
that at all times material herein to February 6, 1968,
Local 1207 and 1204 and their successor Local 1001 since
February 6, 1968 , have been , and are now, labor
organizations within the meaning of Section 2(5) of the
Act.
III. THE APPROPRIATE UNITS
The complaint alleged , the answer did not deny, and I
find:
(a) The appropriate unit of Local 1207, the predecessor
of Local 1001 , was and is as follows:
All employees not coming under the jurisdiction of
any other union in the employer ' s present retail
establishments under contract, located in Kings County,
Washington , with respect to pay, wages , hours of
employment and other working conditions.
(b) The appropriate unit of Local 1404, the predecessor
of Local 1001 , was and is as follows:
All retail employees coming under the classifications
set forth under Section 10 of the collective bargaining
agreement dated December 10, 1966.'
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Preliminary Findings
The current agreements between the parties were
entered into on September 12, 1966 (Local 1207) and
December 10, 1966 , (Local 1404). These agreements
expire May 15, 1969.2
On December 27, 1967, certain retail stores in a
shopping center identified as Northgate Shopping Center
changed their hours by adding 2 additional night openings.
Where hitherto such had been opened 3 evenings per
week , an announcement was made that commencing
December 27, 1967, they would remain open 5 evenings
per week . It was also stipulated that commencing March
'G.C Exh. 3
'Complaint, par. 8 , undenied in the answer.
8, 1968, two member stores located in the downtown area
announced that thereafter they would remain open an
additional evening per week.
The evidence established that the contracting unions in
each instance requested Respondent to engage in collective
bargaining prior to instituting the above changes in night
openings and that Respondent replied that these matters
were not appropriate for collective bargaining.
Accordingly, the issues presented to the Trial Examiner
for decision may be summarized as follows:
1. Are additional night openings appropriate subjects
for collective bargaining?
2. If the answer is in the affirmative , may Respondent,
nevertheless , refuse to bargain on these matters by virtue
of past custom and practice and/or by virtue of the
current collective-bargaining agreements which do not
expire until May 15, 1969?
B. The Demand and Refusal To Bargain
On November 29, 1967, Local 1207 and Local 1404
addressed a joint letter to Eli E. Dorsey, executive
secretary of Respondent, informing him that it was
rumored that certain member stores were contemplating
additional night openings in the near future . The letter
continued with an assertion that inasmuch as the hours
and working conditions of employees represented by the
locals would be affected , collective-bargaining negotiations
should be undertaken.' The assistant executive secretary of
Respondent , Colleen Merrill, replied under date of
November 30, 1967,' that Respondent had no knowledge
of any impending change in night schedules and suggested
a meeting on December 7, 1967. Apparently, Dorsey was
absent when the above correspondence was interchanged.
At any rate, by letter dated December 5, 1967,' Dorsey
informed the locals that past agreements and current
agreements contained no limitations on the number of
night openings . Dorsey further asserted that if a meeting
between Respondent and the locals were to be held,
discussions during such a meeting or conference "shall not
be construed by you or by your respective Local Unions
as acquiescence in a request for negotiations on night
openings during the life of the presently existing contract,
nor shall it be construed to constitute negotiations in any
manner on this issue ...." On December 14, 1967,° the
locals in a joint letter to Dorsey insisted that the
contemplated changes were negotiable matters by
statutory definition and by section 20 of the Local 1207
agreement and section 19 of the 1404 agreement. On
December 26 , 1967,' Merrill, in Dorsey ' s absence , replied
that unless there was a showing that present hours, wages
and working conditions of individuals were affected by
additional night openings , there was nothing which
warranted discussion. Thereafter , although further
communications were apparently forwarded to
Respondent by the locals, no negotiation sessions were
held or scheduled . As a result, the locals filed initial
charges on December 28, 1967.
Colleen Merrill , assistant secretary of Respondent,
called as a witness by the General Counsel,' testified that
in her opinion additional night openings by member stores
constituted a management prerogative.' Merrill in her
'G.C. Exh. 6
G.C. Exh. 7.
'G.C Exh.8
G.C. Exh. 9.
'G.C. Exh. 14.
'Under rule 43-b of the Federal Civil Code of Procedure
'Essentially, this is the position of Respondent.
SEATTLE DEPARTMENT STORES ASSN. 809
testimony stated that with the advent of shopping centers
after World War II, retail stores in the area established a
policy of remaining open one night per week on a regular
basis. Subsequently, prior to the opening of the World's
Fair at Seattle in April 1962, there was considerable
discussion between Respondent and the Union with regard
to additional night openings. While conceding that there
was "discussion of the principle involved" prior to the
World's Fair, Merrill refused to disavow these discussions
as negotiations but at the same time, rather inconsistently,
declined to label them negotiations. However, Merrill
agreed that because of the contemplated additional night
openings, and the above "discussions," the Union made
certain demands in the negotiations then being conducted
for a new contract.10 Merrill further testified that
Respondent, during the negotiations leading to the 1966
agreement, unsuccessfully proposed that its members
stores have the right to schedule hours per day or days per
week without restriction."
Merrill also testified that during the 1966 negotiations,
Respondent, on several occasions , informed the union
representatives that additional night openings were not
contemplated and that this statment was made because
"the Union expressed apprehension all during negotiations
as they have done for many years past that there would be
additional night openings."
Finally, Merrill testified that a number of years ago
there was a dispute between Respondent and the Union
when one of the member stores decided to remain open on
Sundays. She also recalled that three member stores
remained open on Washington's birthday in 1965 which
resulted in an arbitration award to the Union which was
enforced by the Courts."
Eli. E. Dorsey, executive secretary of Respondent,
called as a witness by the General Counsel," essentially
affirmed Merrill's testimony but added that there is now a
prohibition against opening on Washington's birthday in
the contract and an oral understanding there would be no
Sunday openings without prior negotiation with the
Union. Dorsey further stated that when the issue of
additional night openings was discussed during the 1966
negotiations, he regarded it as a strike issue."
At the conclusion of the testimony, the parties entered
into two stipulations: (1) on December 27, 1967, and on
March 8, 1968, some member stores covered by General
Counsel's Exhibits 2, 3, 4, and 5, unilaterally and without
prior negotiation with the Union increased their night
openings and (2) on December 27, 1967, some member
stores at the Northgate Shopping Center increased the
number of night openings, causing work schedule changes
of employees, which increased the amount of nonselling
time of some of the sales employees who were paid
commission on their sales; and that these additional night
openings and changes in scheduled hours were instituted
unilaterally without prior negotiation with the Locals.
Edgar T. Hardy, presently admistrative assistant to the
chief executive officer of Local 1001 and business
representative of Local 1207 from 1962 to 1968, testified
that he was personally familiar with hours of employees
and store hours of stores covered in the labor agreement
"Negotiations for contracts effective May 15, 1961. G.C. Exh. 21 and
G.C. Exh. 25.
"G.C. Exh. 18, par . 19, G.C. Exh. 19, par. 18.
"The Union was awarded $5,000 in damages . See G.C. Exhs. 27 and 28.
"Under rule 43-b.
"I interpret this statement as conveying the idea that Dorsey considered
this a management prerogative and not a mandatory issue for collective
bargaining.
of the retail department stores represented by Respondent.
Hardy credibly testified that after December 27, 1967, the
stores which instituted an additional night opening caused
the sales employees who worked 40 hours per week to
increase their nonselling time to as much as three and
three-quarter hours per week; that this affected the
commissions of the sales employees who were paid on a
commission basis; that the changes in hours would also
have a detrimental effect on commissions by changing
customers' habits; that lengthening store hours tended to
reduce the opportunities an employee had of meeting
customers coming into the store; that the increase in hours
affected employees by increasing their nonselling time
from one half hour per week to 3 hours per week; that the
commissions of sales persons were based on a quota; that
commissions were paid on sales in excess of the quota;
and that the decrease in sales time was not accompanied
by a decrease in the quota. Under these circumstances,
Hardy testified, failure to meet the quota over a
protracted period of time could result in discharge and
that the decrease in hours of selling time tended to
decrease commissions thereby in effect reducing the
commission employees' weekly pay. Hardy further
testified that sales employees in specialty and variety
stores were affected in a similar manner by an increase in
their nonselling time.
Analysis and Conclusions
Respondent contends that the scheduling of store hours
and the hours of employment are management
prerogatives rather than mandatory subjects for collective
bargaining . In support of this contention, it demonstrated
during the course of the hearing that stores like
Woolworth or Bon Marche have established store hours
that are different in different locations. It is also apparent
that in the same location one store like Woolworth may
have different store hours than, for instance, Bon Marche.
Respondent also argues that removing a department in a
store from one floor to another or substituting one
product for another may likewise affect sales and yet are
considered management prerogatives.
Without acquiescing to Respondent's conclusion that
substituting one product for another or shifting a product
to a different floor in a particular store are management
prerogatives, I find these examples to be irrelevant to the
issue presented to me.
It seems rather unnecessary to indulge in a
comprehensive discussions on the bargaining obligation of
an employer under Section 8(d) of the Act. Not only does
the statutory provision" encompass the precise matters
involved herein, but also the proviso to Section 8(d)
requires certain formalities to be observed where there is a
collective-bargaining agreement in effect. Moreover, the
Supreme Court of the United States has already passed
on this precise question in Local 189, Meat Cutters v.
Jewell Tea Co.," where it stated, ". . . we think that the
particular hours of the day and the particular days of the
week during which employees shall be required to work
are subjects well within the realm of `wages, hours, and
other terms and conditions of employment' about which
employers and unions must bargain."
"Sec. 8 : "(d) For the purposes of this section , to bargain collectively is
the performance of the mutual obligation of the employer and the
representative of the employees 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, or any question arising
thereunder.... .
"381 U.S. 676, 691.
810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Finally, the pertinent provisions of the labor agreement
have been subjected to interpretation by an arbitrator in
the Washington birthday dispute arising in 1965. It is
clear , therefore , that the provisions of the labor agreement
" with respect to hours do not in specific terms waive the
right of the union to bargain concerning additional night
openings any more than it did concerning openings on
Washington ' s birthday . In this connection , the so-called
discussions " concerning night openings and Respondent's
proposals " demonstrate that Respondent was unable to
win a concession from the Unions that store hours were to
be left to management . Under these circumstances, it is
found that Respondent willfully and unilaterally instituted
additional night openings in certain stores and unilaterally
changed the scheduled work days and hours of employees
in those stores . Accordingly, it is found that Respondent
thereby engaged in violations of Section 8(a)(5) and (1) of
the Act on December 27, 1967, and on March 8, 1968.
Upon the basis of the foregoing findings of fact, and
upon the entire record in this case , I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. Local 1001, the successor of Locals 1207 and 1404, is
a labor organization within the meaning of Section 2(5) of
the Act.
3. The appropriate units are:
(a) The appropriate unit of Local 1207, the predecessor
of Local 1001, was and is as follows:
All employees not coming under the jurisdiction of
any other union in the employer's present retail
establishments under contract, located in Kings County,
Washington, with respect to pay, wages, hours of
employment and other working conditions.
(b) The appropriate unit of Local 1404, the predecessor
of Local 1001, was and is as follows:
All retail employees coming under the classifications
set forth under Section 10 of the collective bargaining
agreement dated December 10, 1966.
4. By unilaterally instituting additional night openings
on December 27, 1967, and March 8, 1968, as found
herein, without consultation and bargaining with the
Union, Respondent has engaged, and is engaging, in
unfair labor practices within the meaning of Section
8(a)(5).
5. By the conduct described in paragraph 4, above,
Respondent interfered with, restrained, and coerced its
employees in the exercise of rights guaranteed them in
Section (7) of the Act, and has engaged in, and is
engaging in, unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
IV. REMEDY
The General Counsel and the Charging Party, in their
respective briefs, have urged the Trial Examiner to
provide a remedy that is meaningful in that it should be
"The provision involved in the 1965 agreement is similar to that in the
current agreement.
"I find that these were actual negotiations.
"G.C Exhs 18 and 19.
designed to afford an adequate correction for the
violations found. I agree. In addition to the standard
remedy of requiring Respondent to bargain over
additional night openings and changes in employees'
schdeuled days and hours of employment, I shall
recommend that Respondent:
(1) Restore the status quo ante, as of December 27,
1967, and March 8, 1968, with respect to night openings,
if the Union so requests;
(2) Bargain, upon request, with the Union concerning
additional night openings and the affect upon the
employees of additional night openings with respect to
wages, hours and terms of employment;
(3) Make whole any employees who sustained a loss in
earnings as a result of the unlawful changes instituted on
December 27, 1967, and March 8, 1968. Earnings shall be
based upon the earnings the affected employees would
have normally received during the applicable period less
any net interim earnings, and shall be computed on a
quarterly basis in the manner set forth in F. W.
Woolworth Company, 90 NLRB 289, with interest
thereon as set forth in Isis Plumbing & Heating Co., 138
NLRB 716.
Although Respondent has maintained a bargaining
relationship with one of the unions since 1937, it is plain,
as I have found, that Respondent's violations found herein
were willful and constitute a deliberate flaunting of one of
the cornerstones of the Act, i.e., the obligation to bargain
in good faith concerning wages and hours. The assertion
that store hours and hours of employment of employees
constitutes a management prerogative and a strike issue, I
consider, under all the circumstances, to be frivolous,
lacking in good faith, and devoid of any merit.
Accordingly, I find that not only is the recommended
remedy appropriate but I believe it necessary to
recommend a broad order which will require Respondent
to cease and desist from interfering with its employees
Section 7 rights in any manner.
RECOMMENDED ORDER
Respondent, Seattle Department Stores Association,
Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Retail Clerks
Local 1001, Retail Clerks International Association,
AFL-CIO, the successor to Retail Clerks Local 1207 and
Retail Clerks 1404, as the exclusive bargaining
representative of the employees of the retail member
stores represented by Respondent in the appropriate units
found herein concerning additional night openings of any
of its member stores and the effect on employees of such
stores with regard to their wages, hours, and working
conditions.
(b) Unilaterally instituting additional night openings
and changes in wages, hours and working conditions of
employees affected by such additional openings.
(c) In any manner interfering with, restraining, or
coercing its employees in the exercise of the right to
self-organization, to form labor organizations, to join or
assist the above-named Union or any other labor
organization, to bargain collectively through
representatives of their own choosing, and to engage in
concerted activities for the purposes of collective
bargaining or other mutual aid or protection as
guaranteed in Section 7 of the Act, or to refrain from any
and all such activities, except to the extent that such right
may be affected by an agreement requiring union
SEATTLE DEPARTMENT STORES ASSN. 811
membership as a condition of employment, as authorized
in Section 8(a)(3) of the National Labor Relations Act, as
amended , by the Labor-Management Reporting and
Disclosure Act of 1959.
2. Take the following affirmative action which, it is
found, will effectuate the policies of the Act:
(a) Offer to, and upon request of the Union, bargain
collectively with the Union concerning additional night
openings of its member stores and the hours, wages and
working conditions of employees in the appropriate units
in such stores.
(b) Rescind, if the Union requests, the additional night
openings instituted in certain member stores on December
27, 1967, and March 8, 1967, and restore the hours,
wages, and working conditions of employees in those
stores which were in effect prior to the additional night
openings of December 27, 1967, and March 8, 1968.
(c) Make whole employees who suffered any loss of pay
by reason of Respondent's unfair labor practices found
herein in the manner set forth in the "Remedy" section of
this Decision.
(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
under the terms of this Recommended Order.
(e) Post at all its member stores in the Seattle,
Washington area, copies of the attached notice marked
"Appendix."" Copies of said notice on forms provided by
the Regional Director for Region 19, shall, after being
duly signed by the Company's representative, be posted by
the Company immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Company 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 receipt of this
Decision, what steps have been taken to comply herewith."
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice . In the further
event that the Board ' s Order is enforced by a decree of a United States
Court of Appeals , the words "a Decree of the United States Court of
Appeals, Enforcing an Order" shall be substituted for the words "a
Decision and Order."
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read . "Notify the Regional Director for
Region 19 , in writing , within 10 days from the date of this Order, what
steps it has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT refuse to bargain collectively in good
faith with Retail Clerks Local 1001, Retail Clerks
International Association, AFL-CIO, as the exclusive
bargaining representative of employees in the
appropriate units described below concerning additional
night openings of any of our member stores and with
regard to the hours, wages and working conditions of
employees in such stores. The appropriate units are:
(a) The appropriate unit of Local 1207, the
predecessor of Local 1001, was and is as follows:
All employees not coming under the jurisdiction of
any other union in the employer's present retail
establishments under contract, located in Kings
County, Washington, with respect to pay, wages,
hours of employment and other working conditions.
(b) The appropriate unit of Local 1404, the
predecessor of Local 1001, was and is as follows:
All retail employees coming under the
classifications set forth under Section 10 of the
collective bargaining agreement dated December 10,
1966.
WE WILL NOT unilaterally and without prior notice
and negotiation with the Union institute additional
night openings of any of our member stores and change
hours, wages, and working conditions of employees in
such stores.
WE WILL NOT in an manner interfere with, restrain,
or coerce employees in the appropriate units in the
exercise of their right to self-organization, to form, join,
or assist unions, to bargain collectively through
representatives of their own choosing, and to engage in
concerted activities for the purposes of collective
bargaining or other mutual aid or protection, or to
refrain from such activities, except to the extent that
such right may be affected by an agreement requiring
union membership as a condition of employment, as
authorized in Section 8(a)(3) of the National Labor
Relations Act, as amended, by the Labor-Management
Reporting and Disclosure Act of 1959.
WE WILL cancel, if requested by the Union, the
additional night openings instituted on December 27,
1967, and March 8, 1968, by certain of our member
stores and restore the wages, hours and working
conditions prevailing in such stores prior to the
additional night openings on December 27, 1967, and
March 8, 1968.
WE WILL make up any loss of earnings suffered by
any employees because of the additional night openings
instituted on December 27, 1967, and March 8, 1968.
SEATTLE DEPARTMENT
STORES ASSOCIATION, INC.
(Employer)
Dated By
(Representative) (Title)
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.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, Republic
Building, 10th Floor, 1511 Third Avenue, Seattle,
Washington 98101, Telephone 583-7473.