Seattle-First National Bank

National Labor Relations Board - Board Decisions

Apr 5, 1979

241 N.L.R.B. 753 (N.L.R.B. 1979)

SEATTLE-FIRST NATIONAL BANK
Seattle-First National Bank and Financial Institution
Employees of America, Local No. 1182, chartered
by Retail Clerks International Union, AFL-CIO.'
Cases 19 CA 9835 and 19 CA 9916
April 5, 1979
DECISION AND ORDER
By CHAIRMAN FANNING AND IMEMBERS MURPHY
AND TRTUESDAI.E
On August 9, 1978, Administrative Law Judge
Richard J. Boyce issued the attached Decision in this
proceeding. Thereafter, Respondent and the Charg-
ing Party filed exceptions, and supporting and an-
swering briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
As more fully set forth in the attached Decision,
the Administrative Law Judge found that Respon-
dent failed to bargain in good faith and implemented
portions of its last offer before a valid impasse had
been reached. The Administrative Law Judge con-
cluded that Respondent's proposals, when v:ewed as
a whole, were nothing more than an "overall effort to
neuter the Union." He therefore found that Respon-
dent had violated Section 8(a)(5) and (1). We agree.
However, the Administrative Law Judge also found
that Respondent violated Section 8(a)(5) and () by
insisting to impasse on nonmandatory bargaining
subjects.
The collective-bargaining agreement expired on
July 31, 1977.2 The parties agreed to extend the agree-
ment indefinitely, subject to a 10-day cancellation no-
tice by either party. On October 20 Respondent noti-
fied the Union that they were at impasse, and that on
November I it was terminating the contract and im-
plementing its last offer. At the time of the alleged
impasse numerous contract items had been agreed
upon; however, there were still many items upon
which no agreement had been reached. Among the
I After the hearing but before the Administrative Law Judge issued his
Decision, the Charging Party moved to amend its name to reflect its recent
affiliation. The Administrative Law Judge denied this motion finding that
the issue was collateral and should be decided under the amendment of
certification procedure. We take notice of our decision issued this day in
Seattle-First National Bank, 241 NLRB 751, amending the certification and
have amended the caption to reflect the name of the Union in accordance
with that Decision.
I All dates herein 1977.
items on which there was no agreement were two of
Respondent's proposals: (1) a no-strike clause which
specifically prohibited unfair labor practice strikes
and (2) a clause stating that the grievance procedure
had to be exhausted before the Union or any em-
ployee sought redress outside the contract. The Ad-
ministrative Law Judge found these items to be non-
mandatory subjects upon which Respondent had
insisted to impasse, thereby violating Section 8(a)(5)
and (1).
Respondent contends that these two clauses are
mandatory subjects of bargaining, and, in any event,
that the items were never insisted upon to impasse. A
careful review of the record as a whole indicates that
these items were proposed by Respondent, summarily
discussed b the parties, rejected by the Union, and
eventually took their place among other items upon
which the parties could not agree. Indeed, Respon-
dent submits that when it was informed by the gen-
eral Counsel that the General Counsel was of the
opinion that these items were nonmandatory it imme-
diately informed the Union that it was withdrawing
them, although this occurred after the alleged im-
passe.
It has long been held that to insist to impasse on
nonmandatory subjects of bargaining is an unfair la-
bor practice in violation of Section 8(a)(5). 3 Also, as
correctly stated by the Administrative Law Judge, in-
sistence on nonmandatory items need not be the sole
or primary reason for an impasse to be unlawful, but
must be a reason for the impasse. All items upon
which the parties have not agreed are not necessarily
items causing an impasse. Our review of the record
leads us to conclude that Respondent's proposals con-
cerning the prohibition of unfair labor practice strikes
and requiring the exhaustion of the grievance proce-
dure before seeking recourse outside the collective-
bargaining agreement were simply unresolved items
when Respondent terminated the collective-bargain-
ing agreement. Mere discussion of unresolved items
falls far short of unlawful, persistent demands to the
point of impasse.4 We therefore find that Respondent
did not insist to the point of impasse on its no-strike
and arbitration proposals, and that their character as
mandatory or nonmandatory subjects of bargaining is
irrelevant with respect to the issues here before us.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
I See N. L. R.B. . Wooster Division of Borg-Warner Corporation, 356 U S
342. 349 (1958).
See Canterburn Gardens, 238 NLRB 864 (1978).
241 NLRB No. 117
753
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge as modified be-
low, and hereby orders that Respondent, Seattle-First
National Bank, its officers, agents, successors, and as-
signs, shall take the action set forth in the said recom-
mended Order, as so modified:
I. Delete paragraph I(b) and reletter the other
paragraphs accordingly.
2. In paragraph I(d) substitute the words "In any
like or related manner" for "In any other manner."
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTI(E To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL. LABOR RE.ATIONS BOARD
An Agency of the United States Government
After a hearing in which all parties had the chance to
give evidence, the National Labor Relations Board
has found that we violated the National Labor Rela-
tions Act, as amended, and has ordered us to post this
notice. We intend to abide by the following:
WE WIll. NOT refuse to bargain collectively in
good faith concerning rates of pay, wages, hours,
and other terms and conditions of employment
with Financial Institution Employees of Amer-
ica, Local No. 1182, chartered by Retail Clerks
International Union, AFL CIO, as the exclusive
bargaining representative of the employees in
this appropriate unit:
All employees employed by us in the State of
Washington, excluding officers, management
trainees, supervisors, professional employees,
guards, and confidential employees.
WE WIll NOT unilaterally implement collec-
tive-bargaining proposals made by us, ithout
benefit of a valid, preexisting impasse in bargain-
ing.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of rights under the Act.
WE WILL, upon request, bargain collectively in
good faith with the Union as the exclusive repre-
sentative of the employees in the above unit con-
cerning rates of pay, wages, hours, and other
terms and conditions of employment, and em-
body any understanding reached in a signed
agreement.
WE Wi.i., upon the Union's request, rescind
any or all changes in terms and conditions of
employment made on November 1, 1977, pursu-
ant to our unilateral implementation of certain
of our bargaining proposals, making payments as
necessary to restore the status quo ante, plus in-
terest.
SEATT.-FIRST NATIONAL BANK
DECISION
SIATEMENT OF THE CASE
RICHARD J. BOYC(E, Administrative Law Judge: This
matter was heard before me in Seattle, Washington, on
March 21 and 22, 1978. The charge in Case 19-CA-9835
was filed on September 19, 1977, and in Case 19-CA-9916
on October 26, 1977, both by Firstbank Independent Em-
ployees' Association (herein called the Union). The consoli-
dated complaint issued on November 29, 1977, was
amended during the hearing, and alleges that Seattle-First
National Bank (herein called Respondent) has violated Sec-
tion 8(a)(5) and (I) of the National Labor Relations Act, as
amended (herein called the Act).
The parties were permitted during the hearing to
introduce relevant evidence, examine and cross-ex-
amine witnesses, and argue orally. Post-trial briefs
were filed for the General Counsel, for Respondent,
and for the Union.
I. JURISDI(CION
Respondent is a national banking association headquar-
tered in Seattle and engaged in commercial banking at ap-
proximately 170 locations in the State of Washington. It is
the 23rd largest enterprise of its kind in the United States,
with assets of about $6 billion.
Respondent is an employer engaged in and affecting
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. I.ABOR OR(iANIZA'IION
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. ISSUES
The General Counsel and the Union contend that Re-
spondent violated Section 8(a)(5) and (1) during contract
negotiations with the Union in 1977 by an overall lack of
good faith, as evidenced mainly by the content of certain of
its proposals; by insisting to impasse that the Union accept
an offer containing certain provisions that allegedly dealt
with nenmandatory subjects of bargaining; and by unilater-
ally implementing portions of its last offer on November I.
Respondent denies any wrongdoing.
IV. THE ALLEGED UNFAIR LABOR PRA(IICES
A. Overview
Since 1969, the Union has been the bargaining represent-
ative of Respondent's employees in this unit:
754
SEATTLE-FIRST NATIONAL BANK
All employees employed by Respondent in the State of
Washington, excluding officers, management trainees.
supervisors, professional employees. guards. and confi-
dential employees.'
The unit consists of about 4,800 people.
The most recent contract between Respondent and the
Union ran from August 1, 1974, through July 31. 1977. On
July 29, 1977, the parties extended it indefinitely, subject to
arrival at a new contract or cancellation on 10 days' notice.
They first met to negotiate a new contract on July 6, 1977.
Some 45 meetings ensued to the time of the hearing without
a new contract being reached.
The first six meetings were devoted to the presentation
and discussion of the Union's first offer. Respondent pre-
sented its first offer, exclusive of cost items, at the seventh
meeting. on July 27. Respondent presented succeeding of-
fers at the I th meeting, on August 10, this one containing
its first economic proposals; at the 16th meeting, on August
23; at the 21st meeting, on September 7: at the 27th meet-
ing, on September 27; at the 33rd meeting, on October 13:
and on October 20, in the wake of the 36th meeting, held on
October 19. The Union meanwhile presented succeeding
offers at the 17th meeting, on August 29: at the 24th meet-
ing, on September 16; and at the 35th meeting, on October
18. Apart from the offers just referred to, both sides made
counterproposals in limited areas from time to time, and
accord was reached on some issues, subject to agreement on
a total contract.
Accompanying Respondent's October 20 offer was a let-
ter to the Union. First summarizing those areas in which
the offer improved upon existing terms and conditions of
employment, the letter stated:
Our employees have waited long enough. We have met
36 times to date and have yet to reach agreement on
major issues. We have bargained in good faith and
believe the time has come to conclude these negotia-
tions.
As a result, you have until the end of this month to
accept the enclosed offer. If you do not accept it by the
end of the month, we will assume these negotiations
remain at an impasse, and we will implement our offer
effective November I. 1977.
Also on October 20. Respondent sent the Union a 10-day
notice that it was cancelling the old contract, as extended.
Respondent sent another letter to the Union on October
25, stating in part:
As you know, our offer has a November I effective
date and, if there are objections on your part, we
should discuss them prior to that date.
The Union in turn filed the second of the present charges
on October 26, protesting among other things "unilateral
I The recognition clause of the latest contract between Respondent and the
Union descnbes the unit as including "all employees of the Bank at all its
locations and places of business in the state of Washington in the job classi-
fications in Schedule A attached hereto." excluding officers, management
trainees, supervisors, professional employees, guards, and confidential em-
ployees. Schedule A lists well over 200 classifications It is concluded that the
term "all employees," with the specified exclusions, accurately describes the
unit. and that it is an appropnate unit for the purposes of the Act.
changes to the terms and conditions of employment," and
wrote Respondent on October 28.2 proposing that they meet
November 2 "to discuss and negotiate" certain named top-
ics "and other items on which we have not reached agree-
ment." This letter did not refer to Respondent's letters of
October 20 and 25.
Respondent replied by letter dated October 28. stating in
relevant part:
While we are willing to continue meeting with you to
discuss any of the open issues, as long as further nego-
tiations appear fruitful, you have the Bank's final offer
and the statements contained in [the] letters to you
dated October 20 and 25. 1977, still stand.
We look forward to seeing you on November 2nd.
The Union did not accept Respondent's offer of October
20, and Respondent implemented its economic portions on
November I as promised. Respondent also stopped furnish-
ing monthly employee status reports, as required by the old
contract, as of November 1, and stopped observing the
dues-checkoff provision of the old contract as well.
It is undisputed that a bargaining impasse was reached in
late October, incidental to the offer of October 20. Even so,
and despite Respondent's unilateral action of November 1.,
negotiations proceeded. On December 5. Respondent pre-
sented a revised final offer which likewise v as rejected.
B. Respondent's A,4leged Overall Lack o Good Faiith
1. The Theory of Violation
The General Counsel contends that Respondent betrayed
an overall absence of good faith by the content of its pro-
posals in noneconomic areas. Quoting from the General
Counsel's brief:
An examination of Respondent's proposals shows that
[it] was attempting to severely inhibit the Union's abil-
ity to represent its members and, in fact, was attempt-
ing to eliminate the Union as a viable entity altogether.
Similarly, the Union asserts in its brief that certain of
Respondent's noncost proposals "were intended to trans-
form the Union into a powerless entity ... and were of such
a nature that the Union could clearly never accept them."
The General Counsel and the Union also contend that an
overall lack of good faith was shown by Respondent's treat-
ment of certain prebargaining requests by the Union for
information and by the shortness of time between Respon-
dent's October 20 final offer and its partial implementation
of November 1.
There is no contention by either the General Counsel or
the Union that Respondent failed to cooperate concerning
meeting times and places or that the economic content of its
offers indicated bad faith. Earl Shulman, the coordinator of
Respondent's bargaining team, testified that its objective in
negotiations was "to formulate proposals that would be re-
2 The Union's October 28 letter was erroneously dated November 28.
755
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sponsive economically and that would provide maximum
flexibility to our right to manage the bank."'
2. The proposals in question
Those of Respondent's proposals from which bad faith is
inferable, according to the General Counsel and/or the
Union. are the following:
Management rights: The old contract contained this man-
agement right clause (art. II):
A. The Bank has and will retain the exclusive right
and power to manage its business and to direct the
work forces, including but not limited to the right to
hire, classify, grade, suspend, reassign, lay off, dis-
charge, promote, demote or transfer its employees, to
assign or reassign work functions, and to determine
methods of operation or services, providing it does not
conflict with any provision of this contract.
B. Nothing in this agreement is intended to, or is to
be construed in any way to interfere with the recog-
nized prerogative of the Bank to manage and control
the business.
Respondent's first offer on July 27 included this manage-
ment rights proposal:
2.1 The Union recognizes that the Employer retains
the exclusive right to operate and manage the business,
to direct, control and schedule its operations and work
force and to make any and all decisions affecting the
business, whether or not specifically mentioned herein
and whether or not heretofore exercised. Such preroga-
tives shall include, but not be limited to, the sole and
exclusive rights, to: recruit, interview, hire, terminate,
promote, lay off, assign, classify, reclassify, transfer,
suspend, discharge and discipline employees: select
and determine the number of its employees including
the number assigned to any particular work; increase
or decrease that number; direct and schecule the work
force; determine the location and type of operation;
determine and schedule when overtime shall be
worked; install or move equipment; determine the
methods, procedures, materials and operations to be
utilized or discontinue their utilization by employees of
the Employer and/or subcontract the same; transfer or
relocate any or all of the operations of the business to
any location or discontinue such operations, by sale or
otherwise, in whole or in part at any time; establish,
increase or decrease the number and length of work
shifts and their starting and ending times; determine
the work duties of employees; promulgate, modify,
publish and enforce policies, procedures, rules and
regulations governing the employment, discipline and
termination of employees and the conduct and acts of
employees during working hours; require duties other
than those normally assigned to be performed; select
3Respondent's August 10 offer proposed an across-the-board wage/salary
increase of 5 percent, which became 10 percent in the October 20 offer.
Respondent also proposed increases in merit pay, with a cost-of-living allow-
ance factored in; that there be an added paid holiday and that holiday
premimum pay be increased; and that life and medical insurance coverages
be improved. Respondent estimated the increased cost of its final economic
package at S24 million over 3 years-a 40-percent improvement.
supervisory and managerial employees; train employ-
ees; discontinue or reorganize or combine any depart-
ment or branch of operations with any consequent re-
duction o any other change in the working force:
introduce new and improved methods of operation or
facilities, regardless of whether or not such may cause
a reduction or relocation in the working force; estab-
lish, change, combine, assign or abolish job classifica-
tions and pay grades, and determine job content and
qualifications: determine compensation, work per-
formance levels and standards of performance of em-
ployees: evaluate performance of enployees; and in all
respects carry out, in addition, the ordinary and cus-
tomary functions of management, all without hin-
drance or interference by the Union except as specifi-
cally altered or modified by the express terms of this
Agreement.
2.2 The foregoing statement of the rights of man-
agement and of Employer functions are not all inclu-
sive but indicate the type of matters or rights which
belong to and are inherent in management, and shall
not be construed in any way to exclude other Em-
ployer functions not specifically enumerated. Any of
the rights or authority the Employer had when there
was no Agreement are retained by the Employer and
may be exercised without prior notice to and consulta-
tion with the Union except those specifically abridged
or modified by this Agreement and any supplementary
agreement that may hereinafter be made.
Respondent adhered to this management rights proposal
until its offer of October 20 which contained this alterna-
tive:
The Employer retains the exclusive right to manage
the business and to make all decisions affecting the
business and its employees, whether or not specifically
mentioned herein or heretofore exercised, including,
but not limited to, the sole and exclusive right to: hire,
train, evaluate, promote, lay off, assign, classify, trans-
fer, suspend, discharge and discipline employees; select
and determine the number of its employees, including
the number assigned to any particular work; direct and
schedule the work force; determine or schedule when
overtime shall be worked; install, move or remove
equipment; determine the methods, procedures, mate-
rials and operations to be utilized or discontinue their
utilization by employees of the Employer and/or sub-
contract the same; reorganize, transfer, discontinue or
relocate any or all of the operations of the business
with any consequent reduction or change in the work
force; increase or decrease employees' working hours;
publish, modify and enforce policies, procedures and
rules governing the conduct, performance, discipline
and termination of employees; establish, change, com-
bine, assign or abolish job classifications, pay grades,
standards and levels of performance, job content and
qualifications; unless the exercise of such rights is spe-
cifically prohibited by an express provision of this
Agreement.
No strike. The old contract contained this no-strike
clause (art. III):
756
SEATTLE-FIRST NATIONAL BANK
B. The Association agrees that during the life of this
agreement there shall be no form of strike, sit-down,
slow-down, walkout, picketing, boycott or any other
action which would interrupt or interfere with any op-
eration of the Bank. Any employee who violates the
provisions of this Article shall be subject to disciplin-
ary action.
C. Any grievance concerning a violation of this Article
will proceed directly to Step Three of the Grievance
Procedure, Article XII.
Respondent's offers through October 20 contained this
no-strike proposal:
Neither the Union, its officers, agents, representatives,
and members, nor any employees covered by this
Agreement shall in any way, directly or indirectly, au-
thorize, cause, assist, encourage, participate in, ratify
or condone any strike (whether it be an economic
strike, unfair labor practice strike, sympathy strike, or
otherwise).
The proposal, as originally framed, stated that any em-
ployee violating the prohibition would be subject to disci-
plinary action, including discharge, and that such action
"may not be raised as a grievance or be subject to the arbi-
tration procedures of this Agreement;" and that, in the
event of violation by the Union, "the Employer has the
option to rescind this entire Agreement or any part thereof
at its sole discretion." By the October 20 offer, both of these
sanctions had been removed.
On November 10, Respondent informed the Union that
it was modifying its final offer by deleting from the no-
strike clause "the words 'unfair labor practice strike.' "
Nondiscrimination: The old contract contained this non-
discrimination clause (art. IV):
It is agreed that neither the Bank nor the Association
shall discriminate against any employee with respect to
race, color, religion, age, sex, national origin, marital
status or the presence of mental or physical handicaps
unless the factor involved would prevent satisfactory
work performance.
Respondent's first offer overlooked this subject. Its Octo-
ber 20 offer more or less reflected the old language but with
this addition:
[A]ny claim, complaint or charge that this provision
has been breached or violated shall not be filed with
the appropriate administrative agency and/or court of
law more than one hundred eighty (180) days after the
alleged act of discrimination.
Dues checkoff. The old contract provided for dues check-
off "for such employees who have authorized such deduc-
tions in writing" (art. V). Respondent's position througout
the current negotiations has been that this provision should
be deleted.
Union representatives and access: The old contract im-
posed no limitations upon the number of employee repre-
sentatives the Union could designate vis-a-vis Respondent,
and further stated (art. VI):
A. The Association's authorized representatives
shall have reasonable access to areas where employees
covered by this agreement are working, for the purpose
of investigating conditions pertaining to the job; pro-
vided, however, that visits to such areas shall be sched-
uled and arranged in advance with the supervisor or
manager. Such visits shall not interfere with normal
performance of work during working hours of the em-
ployee. Meetings with affected employees may be held
pursuant to an identified grievance, subject to schedul-
ing with the supervisor or manager.
Respondent's July 27 offer proposed that the number of
designated employee representatives be limited to one "at
every physically separate work location," except for loca-
tions with over 100 unit employees, in which case the
Union would be permitted one designee per 100 employees.
The July 27 offer also proposed that "Union representatives
who are not actively employed by the Employer shall have
no access to the Employer's premises," adding:
[N]o Union business shall be performed on the Em-
ployer's premises or during working time, except as
specifically authorized by this Agreement.
The July 27 offer further stated:
There shall be no meeting between Union representa-
tives and employees on the Employer's premises or
during working time outside of the formal grievance
meetings described above, nor shall Union representa-
tives visit the Employer's premises for the purpose of
grievance investigation except for the formal grievance
meetings.
Respondent's October 20 offer continued to impose a
ceiling on the number of union-designated employee repre-
sentatives, although the ratio was modified and seemingly
liberalized; and it retained the proscription against the per-
formance of union business "on the Employer's premises or
during working time, except as specifically authorized by
this Agreement." But, whereas the July 27 offer proposed to
limit on-site grievance investigations to attendance at for-
mal grievance meetings themselves, the October 20 offer
proposed that union representatives "be permitted access to
the Employer's premises for purposes of investigating filed
grievances and attending the formal grievance meetings."
This by no means gave the Union carte blanche; however,
for the term "filed grievances" contemplated only those that
were arbitrable-which is to say, "any grievance concern-
ing the interpretation, application or an alleged violation of
this Agreement." Nonemployee representatives were still to
be denied access to investigate those matters that were to be
grievable, but not arbitrable-i.e., disputes "regarding
wages, hours or terms and conditions of employment" not
deriving from the contract. Some of the edge was removed
from this denial by a further feature of Respondent's Octo-
ber 20 offer, applicable to grievances generally:
Union representatives who are active employees of the
Employer may investigate grievances or discuss Union
matters on the Employer's premises in nonworking
areas during their nonworking time as provided by
law. Meal periods and rest breaks shall be considered
nonworking time.
Production of information The old contract not only did
not curtail the Union's right to information on demand, but
757
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
required that Respondent provide it with monthly "em-
ployee status reports" listing the unit employees by name,
date of hire, classification, rate of pay, etc.; naming those
employees newly hired or terminated; and containing
checkoff data; etc. (art. VIII).
Respondent's first three 1977 offers were silent on the
subject of employee status reports and in addition con-
tained this language in the grievance/arbitration article:
Neither the Employer nor the Union shall be required
. . .to provide the other party with any data, docu-
ments or reports in its possession or under its control
for any purpose or reason unless they are relevant to a
filed grievance as defined in the arbitration clause],
and the parties waive all other rights to such informa-
tion. Disputes as to a party's duty to provide such in-
formation shall not be subject to the grievance and
arbitration procedure contained herein.
As noted above, the term "filed grievance" signified that
which was arbitrable.
Respondent finally broached the subject of employee sta-
tus reports in its offer of September 7, proposing that it
furnish them "at least quarterly," instead of monthly, and
that this condition, not in the old contract, attach:
As a condition of receiving the foregoing information,
the Union shall preserve its confidentiality and limit its
dissemination to officers of the Union who are not em-
ployees of the Employer.
To accommodate the newly proposed provision for status
reports, the September 7 offer retained the above waiver of
rights to "data, documents or reports . . . unless they are
relevant to a filed grievance," but with this prefatory clause
tacked on: "Except as provided elsewhere in this Agree-
ment."
Respondent's October 20 offer incorporated these Sep-
tember 7 proposals but with this liberalizing proviso ap-
pended to the ban against dissemination of the status re-
ports to employees:
[P]rovided, however, that those portions of the forego-
ing information which are relevant to a filed grievance
may be utilized and disseminated in connection with
the formal grievance meetings described herein.
Terminations: Regarding terminations, the old contract
provided (art. XI):
A. Prior to discharge for cause other than for severe
breaches of discipline such as dishonesty, defalcation,
conviction of a crime, insubordination, gross miscon-
duct or gross negligence, the employees shall be ad-
vised in writing that an unsatisfactory condition exists
and given a reasonable and definite period of disciplin-
ary probation to clearly demonstrate improvement. A
copy of the notice will be forwarded to the Association
within ten (10) calendar days of such action.
B. If the warning does not produce satisfactory per-
formance within the period designated, the employee
may be discharged. The Bank will notify the Associ-
ation of the discharge of any employee within ten (10)
calendar days of the action.
The old contract also stated that "all disciplinary or termi-
nation actions . . . shall be handled in accordance with the
Bank's procedure for the 'Administration of Discipline.' "4
Respondent's July 27 offer contained this proposal:
A regular employee is a full-time or part-time em-
ployee who has successfully completed his or her trial
period. No regular employee shall be discharged with-
out cause. The Employer reserves the right, however,
to discharge any person in its employ who is incapable
or incompetent, and the Employer shall be the sole
judge of competency; said judgment shall be exercised
fairly in good faith.
Respondent's October 20 proposal retained this language
with a sentence added: "The Employer shall follow its Ad-
ministration of Discipline procedure (as that procedure
may from time to time be amended by the Employer)." The
October 20 proposal contained this new language as well:
Prior to discharge for cause other than for gross cause
(as determined by the Employer), a regular employee
shall be advised in writing that an unsatisfactory con-
dition exists and shall be given a reasonable and defi-
nite period of disciplinary probation to clearly demon-
strate improvement. If the warning does not produce
satisfactory performance within the period designated,
the employee may be discharged.
Grievance procedure: Unlike the grievance procedure set
forth in the old contract (art. XII), Respondent's July 27
offer contained this proposal:
This Agreement sets forth all of the Union's as well as
the employees' rights and benefits, and, accordingly, if
a grievance may be a proper subject for arbitration
neither the Union nor the employees shall have other
recourses, rights or remedies outside the provisions of
this Article.
This proposal was revised to read in the October 20 offer:
If a claim or dispute is a proper subject for the griev-
ance and arbitration procedure herein, both the Union
and the employees shall exhaust said procedure before
exercising any other recourses, rights or remedies that
may be available outside the provisions of this Article.
The grievance and arbitration procedure of this Agree-
ment and the judicial and administrative remedies pro-
vided by law are the sole and exclusive means for set-
tling any dispute between the employees and/or the
Union and the Employer, whether relating to the ap-
plication of this Agreement or otherwise.
On November 10, Respondent notified the Union that it
was modifying its October 20 offer to delete the require-
ment that the grievance/arbitration procedure be exhausted
before the exercise of outside rights.
Job classifications. The old contract contained this clause
(art. XIII):
B. The Bank may establish new classifications, re-
classify existing jobs, and assign salary grades to these
classifications. The salary grade selected may be sub-
On April 2, 1976, an arbiter's decision issued in which it was concluded
that Respondent's administration of discipline procedure had been incorpo-
rated in the 1974-77 contract by reference, and that Respondent therefore
had breached the contract by changing the procedure without union consent.
758
SEATTLE-FIRST NATIONAL BANK
ject to the Grievance Procedure, Article XII, and such
grievance will proceed directly to Step Three. The job
title, job content, and duties assigned to any employee
are not subject to the Grievance Procedure.
All of Respondent's 1977 offers proposed insertion of this
added language:
The decision at Step Three shall be final and binding
on the parties; there shall be no right of appeal to
arbitration in such cases.
The decisionmaker at step three, under the old contract
and as contemplated by Respondent's 1977 offers, was Re-
spondent's manager of employee relations. The Union
agreed to this proposal on October 14.
Merit raises: The old contract stated (art. XVI):
Progression within pay ranges is primarily a function
of job performance and merit, as evidenced by the em-
ployee's Performance Appraisal.
Respondent's 1977 offers proposed that the clause be
changed to read:
Progression within pay ranges is primarily a reflection
of job performance and merit, as determined by the
Employer at its sold discretion and summarized in the
employee's Performance Appraisal.
One of Respondent's bargaining spokesmen, Mark Hutche-
son, told one of the Union's spokesmen, James Webster,
that the "sole-discretion" language was intended to render
disputes arising under this proposal nonarbitrable.
Sick leave: The old contract accorded the employees a
sick leave entitlement "subject to disciplinary controls in
the event of suspected abuses" (art. XXII).
Respondent's July 27 offer proposed a similar entitle-
ment, "subject to disciplinary controls that may be insti-
tuted by the Employer whenever an employee abuses sick
leave or has excessive absenteeism." In its October 20 offer,
this proposal was changed to read:
[S]ubject to procedures and disciplinary controls that
may be instituted and amended by the Employer to
prevent abuse of sick leave or excessive absenteeism.
Profit sharing: The old contract provided that the "terms
and conditions of the Profit Sharing Plan ... will remain in
full force and effect for the life of this agreement," and that
any change in the plan causing a reduction in benefits "is
subject to negotiation between the Bank and the Associ-
ation" (art. XXVI).
Respondent's 1977 offers proposed that the profit-sharing
plan remain in effect for the term of the agreement but with
this qualification:
[Blut the Employer hereby confirms its reservation of
rights concerning termination or administrative modi-
fication of this plan.
Instead of saying that any change is the plan causing re-
duced benefits "is subject to negotiation," Respondent's
1977 offers proposed that such changes "will not be imple-
mented before the Union has been given notice and an op-
portunity to bargain concerning such changes."
Retirement: The old contract provided (art. XXVII):
The terms and conditions of the current Retirement
Plan ... will remain in full force and effect for the life
of this agreement and will not be changed except by
mutual consent.
As in the case of profit sharing, Respondent's 1977 offers
proposed that the retirement plan remain in effect for the
term of the agreement, but with this qualification:
[B]ut the Employer hereby confirms its reservation of
rights concerning termination or administrative modi-
fication of this Plan.
Instead of saying that any change in the plan must be by
"mutual consent," Respondent's 1977 offers proposed that
Respondent "may make changes . . . at its discretion pro-
vided such changes do not decrease the benefits of the
Plan," and that the Union be "given notice and an opportu-
nity to bargain" before implementation of any other
changes.
Miscellaneous. The old contract stated that no one was to
be paid "less than the minimum nor more than the maxi-
mum of the range for that person's job classification." (art.
XVI). Respondent's 1977 offers proposed only that no one
"shall be paid less than the minimun of the range for that
person's job classification."
Similarly, the old contract stated that the terms of the
medical insurance plan "will remain in full force and effect
for the life of this agreement" (art. XXVIII), whereas Re-
spondent's 1977 offers proposed only that benefit levels
"will not be reduced during the term of this Agreement."
The Union agreed to this proposal on September 8.
The old contract stated that the terms of the family pro-
tection and long term disability plans "will remain in full
force and effect for the life of this agreement and will not be
changed except by mutual consent" (arts. XXIX and XXX),
while Respondent's 1977 offers proposed concerning each
that benefit levels "will not be reduced during the term of
this Agreement." The Union agreed to Respondent's long
term disability proposal on August 16 and to its family
protection proposal on August 29.
3. Other Asserted Indicia of Bad Faith
As mentioned, the General Counsel and the Union con-
tend that, apart from the content of Respondent's offers,
bad faith is inferable from its treatment of certain prebar-
gaining union requests for information and from the short-
ness of time between Respondent's October 20 offer and its
partial implementation on November I.
The requests for information., By letter dated September
21, 1976, the Union asked that Respondent furnish speci-
fied information "in order that we may prepare for contract
negotiations in 1977." Receiving no response, the Union
renewed the request by letter of October 4.
Respondent's attorney informed the Union by letter of
November 17 that "the Bank is prepared to furnish the
requested information if [the Union] agrees to reimburse
the Bank for all direct expenses involved in this project."
The letter added that, with the exception of information
about insurance premiums, none of that information sought
"is summarized in any of the routine computer reports."
759
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Union replied by letter of November 29, stating that
it was "distressed" that Respondent would demand reim-
bursement, but that it "will be happy to negotiate the cost
of computer runs ... provided that [Respondent] submit[s]
a cost estimate." By letter of December 6, the Union ex-
panded its request to cover specified information "regard-
ing pension and profit sharing plans ... so we may draw up
contract proposals."
February 28, 1977, was designated as the delivery date
for the information. By letter of February 17, however, Re-
spondent's attorney informed the Union that largely be-
cause of a "change in management of the compensation
section," Respondent had yet to complete "the program-
ming and computer analysis required to put the informa-
tion into a clear and understandable summary." The letter
said that the material likely would be ready "during the
latter part of March."' In mid-March Respondent's attor-
ney informed the Union that the information would not be
ready until the end of April.
During a meeting of representatives of Respondent and
the Union on April 27, the Union was imformed that Re-
spondent's expenses had been $1,125. The Union conse-
quently did not take delivery of any data at that time, stat-
ing that the cost figure would require a reassessment of its
requests.
By letter to the Union of June 17, Respondent stated that
"the legally required material . . . has been ready since
April 27," adding that nothing had been heard from the
Union about it since that time. The letter continued that
while it had been "pointed out from the beginning that
there would be costs for producing the material," Respon-
dent was "sure we can work something out" in that regard.
Attached to the letter was a letter dated December 7, 1976,
by which Respondent's attorney purportedly had told the
Union that "the costs will range from $500 to $1,000." For
reasons untold in the record, the attached letter in fact was
never received by the Union, which Respondent later came
to realize.
The matter came up again during the second bargaining
meeting, on July 12. A price of $50 was settled upon, and
the Union presently received most of the information it had
requested.
Shortness of time: As previously related, Respondent ad-
vised the Union coincident with the October 20 offer that
the offer would be implemented November I if not ac-
cepted; and it did implement the economic portions of the
offer on November as promised.
Jerry Ard, the Union's president, credibly testified that,
because of the size and far-flung character of the unit, the
10 days allotted was not sufficient to permit a ratification
vote; nor was a full ratification vote attempted. The shop
stewards were polled, however, as was a 35-member union
council, the result being overwhelmingly against accept-
ance.
In her testimony, Ard conceded that the Union never
requested more time to consider the October 20 offer.
In addition this letter challenged Respondent's obligation to furnish re-
quested pension and profit-sharing data concerning nonunion employees,
4. Conclusion
Is is concluded, weighing Respondent's proposals in non-
economic areas both singly and in the aggregate, that its
overall attitude toward negotiations was devoid of the req-
uisite good faith, and that it therefore violated Section
8(a)(5) and (1) as alleged.
The test, broadly put, is stated in Gerald F. Hinkle, d/b/a
Akron Novelty Manufacturing Company, 224 NLRB 998,
1001 (1976):
Good faith, or lack of it, is essentially concerned
with the state of mind with which the parties entered
into and participated in the bargaining process. That
determination is based on reasonable inferences drawn
from the totality of the parties' conduct.
Or, quoting from N.L.R.B. v. Reed & Prince Manufacturing
Company, 205 F.2d 131, 140(1st Cir. 1953), a determination
of good or bad faith "involves a finding of motive or state of
mind which can only be inferred from circumstantial evi-
dence," and is "similar to the inquiry whether an employer
discharged an employee for union activity."
Good faith is defined in N.L.R.B. v. Insurance Agents'
International Union, AFL-CIO [Prudential Insurance Co.],
361 U.S. 477, 485 (1960), as "a desire to reach ultimate
agreement, to enter into a collective bargaining contract."
More is required, however, than '[t]he mere willingness of
one party in the negotiations to enter into a contract of his
own composition." Wal-Lite Division of United States Gyp-
sum Co., 200 NLRB 1098, 1101 (1972). And although Sec-
tion 8(d) of the Act specifies that the duty to bargain "does
not compel either party to agree to a proposal or require the
making of a concession," this does not preclude inquiry into
the substance of a party's bargaining proposals as a means
of ascertaining the underlying state of mind. As the Board
observed in Tomco Communications, Inc., 220 NLRB 636
(1975):
[T]he nature of an employer's proposals on manage-
ment-rights and other terms and conditions of a collec-
tive-bargaining agreement are material factors in as-
sessing the employer's motivations in the course of
collective bargaining. Rigid adherence to proposals
which are predictably unacceptable to the union may
indicate a predetermination not to reach agreement, or
a desire to produce a stalemate, in order to frustrate
bargaining and undermine the statutory representative.
That there may have been union acceptance of certain of
an employer's proposals does not remove those proposals
from the inquiry. Extracting from San Isabel Electric Ser-
vices, Inc., 225 NLRB 1073, 1079 (1976):
In no way ... is union acceptance of the terms of the
contract probative of Respondent's good or bad faith
during the negotiating process.
Respondent admittedly approached negotiations with a
resolve to achieve "maximum flexibility" in the manage-
ment of the bank; the unspoken corollary being that it was
intent upon a major reduction of the Union's role. An ex-
amination of its offers through October 20 and the atten-
dant impasse reveals that this was not empty rhetoric. Re-
spondent's initial management rights proposal was of such
760
SEATTLE-FIRST NATIONAL BANK
dizzying breadth and detail that it arguably would have
given it unilateral say over nearly every significant term and
condition of employment. True, this proposal underwent
pruning before the October 20 offer, but a side-by-side
reading of the two indicates that this was far more cosmetic
than real, mainly clearing out some of the earlier proposal's
duplications and prolixity.
Nor was a drastic expansion of the management rights
clause to be Respondent's only means of gaining maximum
flexibility while deflating the Union. Several of its propos-
als, both alone and in combination, would have acutely
crippled the Union's ability to investigate and prosecute
grievances. It proposed, for instance, that there be a limit
on the number of employee representatives that the Union
could designate. Beyond that, it proposed at the outset that
union representatives be barred from meeting with employ-
ees "on the Employer's premises or during working time,"
except during formal grievance meetings; and that union
representatives be denied visitation privileges "for the pur-
pose of grievance investigation except for the formal griev-
ance meetings."
Although the October 20 offer effected some relaxation of
these restrictions, this was not of great practical signif-
icance. Access still would have been denied nonemployee
union representatives, except to investigate filed-arbitra-
ble-grievances and to attend formal grievance meetings.
Beyond that, and more fundamentally, any concessions in
this area were totally academic, as concerns the vast range
of matters to be nonarbitrable, or neither grievable nor ar-
bitrable, because of the exclusionary purport of Respon-
dent's proposals concerning management rights and other
matters.
Respondent sought further to impair the Union's griev-
ance handling capability by proposing at the outset that all
rights to "data, documents or reports" be waived "unless
they are relevant to a filed grievance," tacitly eliminating
even the requirement under the old contract that it furnish
monthly employee status reports. Its October 20 proposal
that it provide the Union with quarterly employee status
reports was little more than a token concession. The com-
panion ban against the dissemination of the reports to other
than nonemployee union officials, absent a formal griev-
ance meeting dealing with a filed grievance, necessarily un-
dercut their value to the Union. And the proposed entitle-
ment to "data, documents or reports" other than the status
reports suffered the filed grievance limitation, and was
largely negated in any event by the concluding sentence of
that proposal:
Disputes as to a party's duty to provide such informa-
tion shall not be subject to the grievance and arbitra-
tion procedure contained herein.
Not only did Respondent seek a major narrowing of mat-
ters subject to grievance and arbitration, as described, and
to diminish the Union's effectiveness in investigating and
prosecuting what remained, but also it sought to insure the
Union's being "stuck" with its resulting handicaps by pro-
posing, first, that there be no recourses whatever outside the
grievance/arbitration procedure; and, on October 20, pro-
posing that outside recourses await exhaustion of the con-
tractual procedure. While the October 20 proposal appears
on its face to have been a notable retrenchment, it probably
was as restrictive as its forerunner for most practical pur-
poses, remembering the shortness of limitation periods im-
posed by various remedial statutes-e.g., the Act's 6
months. Beyond that, Respondent's October 20 nondis-
crimination proposal itself would have required that
claimed violations of that clause be filed "with the appro-
priate administrative agency and/or court of law" within
180 days of the alleged misconduct, regardless of more gen-
erous statutory limitation periods.
Respondent sought to dilute the Union's effectiveness in
other ways as well-as often as not by indirection. Thus, it
proposed that any disputes arising from its establishment of
new job classifications, the reclassification of existing jobs,
and the assignment of salary grades to such classifications
be subject to final disposition at step three of the grievance
procedure-which is to say, by its own manager of em-
ployee relations and short of arbitration. To like effect was
Respondent's proposal regarding terminations. It stated on
the one hand that "no regular employee shall be discharged
without cause," and on the other that all employees were
subject to discharge if "incapable or imcompetent," with
Respondent "the sole judge of competency." This same pro-
posal, in its October 20 form, mandated that discharges
"shall follow" the administration of discipline procedure,
only to add: "(as that procedure may from time to time be
amended by the Employer)."
There were yet other attempts at arrogation by Respon-
dent. Among them, it proposed that determination of merit
raises be at its "sole discretion," the idea being to remove
the issue from arbitrability; and, as concerns profit sharing
and retirement plans, it proposed the inclusion of this sen-
tence:
[T]he Employer hereby confirms its reservation of
rights concerning termination or administrative modi-
fication of this Plan.
Similarly, Respondent's sick leave proposal contained the
proviso that it was "subject to procedures and disciplinary
controls that may be instituted and amended by the Em-
ployer to prevent abuse." Then, too, Respondent's propos-
al's concerning compensation and assorted fringe benefits
spoke only in terms of minimums. by implication leaving
the determination of levels above the minimums at its sole
discretion.
That Respondent was intent upon undercutting the
Union's ability to function was additionally suggested by its
no-stike proposal which would have banned even strikes in
protest of unfair labor practices. Its initial proposal in this
area was even more extreme, giving it "the option to rescind
this entire Agreement or any part thereof at its sole discre-
tion" should the Union violate the no-strike clause.
Finally, Respondent's insistence that dues checkoff e
eliminated can only be construed as yet another adjunct of
an overall effort to neuter the Union.
In summary, although the economic aspects of Respon-
dent's offers were not niggardly, and whiie its October 20
offer embodied an assortment of ostensible concessions,
many of its proposals nevertheless called upon the Union c
abdicate a number of rights under both the Act and the l(
contract; and, if implemented, would have had a dtvastat-
761
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing effect on its continued ability to meet its responsibilities
to those it represents. More specifically, the pervasively
broad management rights and no-strike proposals, in com-
bination with the proposed limitations otherwise on matters
subject to the grievance/arbitration procedure and on the
Union's right to access and information, bring the situation
squarely within the Board's observation in San Isabel Elec-
tric Services, Inc., 225 NLRB at 1079, footnote 7:
We have consistently found bad-faith bargaining in
cases in which an employer has insisted on a broad
management rights clause and a no-strike clause dur-
ing negotiations, while, at the same time, refusing to
agree to an effective grievance and arbitration proce-
dure.
See also, Gulf States Manufacturers, Inc., 230 NLRB 558
(1977); Gulf States Canners, Inc., 224 NLRB 1566 (1976);
Tomco Communications, Inc., supra; The Western and
Southern Life Insurance Company, 188 NLRB 509 (1971);
Stuart Radiator Core Manufacturing Co., Inc., 173 NLRB
125 (1968).
It is not necessary to the result to go into the problems
surrounding the Union's prebargaining requests for infor-
mation, or the limited time given the Union to weigh Re-
spondent's October 20 offer before implementation.
C. The Allegedly Unlawful Insistence in Nonmandatory
Areas
1. Facts
Respondent's no-strike proposal of October 20, as previ-
ously described, would have forbade unfair labor practice
strikes, among others. In addition, its October 20 offer
would have required exhaustion of the contractual griev-
ance/arbitration procedure before resort to "recourses,
rights or remedies that may be available outside the provi-
sions of this Article."
It is undisputed that a bargaining impasse arose in late
October, incidental to the offer of October 20.
On November 10, as earlier mentioned, Respondent
modified its October 20 offer by deleting the term "unfair
labor practice strike" from its no-strike proposal, along with
the passage requiring exhaustion of the grievance/arbitra-
tion procedure.
Ard, the Union's president, credibly testified that the
Union "specifically questioned the Bank" in early August
about the proposed prohibition against unfair labor prac-
tice strikes, taking the position that the proposal was unac-
ceptable because of its breadth. In her testimony, Ard con-
ceded that the Union made no express objections to that
proposal between October 13 and November 1.
Ard also credibly testified that Respondent's proposal to
require exhaustion of the grievance/arbitration procedure
was discussed "several times" in negotiations, with the
Union taking the position that it "had no right to waive
people's statutory rights to go to various agencies," and
Respondent countering that it wished to avoid an overlap
,f actions and remedies. The record does not provide a time
frame or these discussions.
2. Conclusion
It is concluded that Respondent further violated Section
8(a)(5) and (1) as alleged by including in its no-strike pro-
posal up to impasse a prohibition against unfair labor prac-
tice strikes, and by including in its last preimpasse griev-
ance/arbitration proposal the restriction upon resort to
"recourses, rights or remedies" outside the contractual
grievance/arbitration procedure.
While there apparently is a paucity of law on these pre-
cise points, it is inconceivable that such matters could or
should be deemed mandatory subjects of bargaining. Re-
garding the proposed barring of unfair labor practice
strikes, the Board has observed that the subject of reinstate-
ment and backpay rights for unfair labor practice strikers is
not mandatory. Nordstrom, Inc., 229 NLRB 601 (1977).
Similarly, the Board has declared that a post-strike agree-
ment to treat unfair labor practice strikers as economic
strikers for reinstatement purposes "is in derogation of the
strikers' rights and contravenes Board policies." Wooster
Division of Borg- Warner Corporation, 121 NLRB 1492, 1495
(1958). Parity of reasoning suggests that the forbidding of
unfair labor practice strikes likewise is contrary to Board
policy and a nonmandatory subject.
Concerning the proposed limitation on recourses outside
the contract, it cannot be questioned that grievance provi-
sions, generally, relate to terms and conditions of employ-
ment, and thus are mandatory subjects. Bethlehem Steel
Company (Shipbuilding Division) 136 NLRB 1500 (1962). A
proposal to limit recourses to statutory procedures outside
the contract has nothing to do with the substance of griev-
ance provisions, however, and has only a tenuous connec-
tion with the employment relationship. The requisite tie in
with terms and conditions of employment consequently is
lacking. That Congress and the Board long have favored
the resolution of industrial disputes through the use of
grievance and arbitration machinery does not license a
party to insist to impasse that those procedures be used
before or to the exclusion of others which are provided in
the law. Cf. Massachusetts Nurses Association, 225 NLRB
678, 679, footnote 7 (1976).
Therefore, since Respondent maintained its position on
these issues to impasse, despite the Union's stated opposi-
tion, the violation follows. It is of no consequence that Re-
spondent's insistence in these areas was not the sole or even
a primary reason for the impasse. As stated in National
Fresh Fruit & Vegetable Company and Quality Banana Co.,
Inc., 227 NLRB 2014, 2016 (1977):
It is sufficient if the [nonmandatory subjects were
among] the unresolved points facing the parties which
prevented agreement. The law is clear that an impasse
may result from "one or a number of unresolved differ-
ences of positions."
D. The Allegedly Unlaful Unilateral Implementation
I. Facts
Respondent implemented the economic portions of its
October 20 offer on November , after an impasse in bar-
gaining had arisen.
762
SEATTLE-FIRST NATIONAL BANK
2. Conclusion
It is concluded that the November I implementation vio-
lated Section 8(aX5) and (1) as alleged.
As previously discussed and concluded, Respondent's ap-
proach to negotiations revealed a general absence of good
faith, violating Section 8(a)(5), to the time of impasse. The
impasse consequently was not of a character licensing uni-
lateral, postimpasse implementation of the last offer. Quot-
ing from Akron Novelty Manufacturing Company, 224
NLRB at 1002:
It is well settled that where an employer has failed to
bargain in good faith no genuine impasse can be
reached. And, absent such impasse, an employer is not
free to unilaterally implement changes in the employ-
ment conditions of its employees.
CONCLUSIONS OF LAW
1. By insisting to impasse on certain contract provisions
dealing with nonmandatory subjects of bargaining; by uni-
laterally implementing portions of its October 20 offer on
November 1, 1977, without benefit of a valid impasse; and
by generally bargaining in bad faith with the Union, all as
found herein, Respondent in each respect violated Section
8(a)(5) and (1) of the Act.
2. These unfair labor practices affect commerce within
Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record,6 and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER7
The Respondent, Seattle-First National Bank, its officers,
agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Refusing to bargain collectively in good faith con-
cerning rates of pay, wages, hours, and other terms and
conditions of employment with Firstbank Independent Em-
6 Pursuant to Respondent's unopposed motion, certain errors in the tran-
script have been noted and are hereby corrected.
' All outstanding motions inconsistent with this recommended Order
hereby are denied. In the event no exceptions are filed as provided by Sec.
102.46 of the Rules and Regulations of the National Labor Relations Board,
the findings, conclusions, and recommended Order herein shall, as provided
in Sec. 104.48 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.
ployees' Association, as the exclusive bargaining represent-
ative of the employees in this appropriate unit:
All employees employed by Respondent in the State of
Washington, excluding officers, management trainees,
supervisors, professional employees, guards. and confi-
dential employees.
(b) Insisting to impasse on contract provisions dealing
with nonmandatory subjects of bargaining.
(c) Unilaterally implementing collective-bargaining pro-
posals made by it, without benefit of a valid, preexisting
impasse in bargaining.
(d) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Upon request, bargain collectively in good faith with
the Union as the exclusive representative of the employees
in the above unit concerning rates of pay, wages, hours, and
other terms and conditions of employment, and embody
any understanding reached in a signed agreement.
(b) Upon the Union's request, rescind any or all changes
in terms and conditions of employment made on November
1, 1977, pursuant to its unilateral implementation of certain
of its bargaining proposals, making payments as necessary
to restore the status quo ante, plus interest.8
(c) Post at its various locations where bargaining unit
employees are employed copies of the attached notice
marked "Appendix."9 Copies of said notice, on forms pro-
vided by the Regional Director for Region 19, after being
duly signed by an authorized representative of Respondent,
shall be posted by it immediately upon receipt, and be
maintained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees customarily are posted. Reasonable steps shall be
taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 19. in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
I Interest is to be computed in accordance with Florida Steel Corporation.
231 NLRB 651 (1977). See, generally, Isis Plumbing d Heating Co., 138
NLRB 716 (1962).
' In the event that this Order is enforced by a judgment of a United States
court of appeals, the words in the notice reading "Posted by Order of the
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."
763