Washington Hardware and Furniture Co.

National Labor Relations Board - Board Decisions

Mar 26, 1969

175 N.L.R.B. 63 (N.L.R.B. 1969)

WASHINGTON HARDWARE AND FURNITURE CO.
Gravenslund Operating Company d/b/a Washington
Hardware and Furniture Co. and Retail Clerks
Union No. 1612 , Retail Clerks International
Association , AFL-CIO. Case 19-CA-3981
March 26, 1969
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
On September 25, 1968, Trial Examiner George
H. O'Brien issued his Decision finding that
Respondent had not engaged in unfair labor
practices and recommending that the complaint be
dismissed, as set forth in the attached Trial
Examiner's Decision. Thereafter, the General
Counsel filed exceptions, and the Charging Party
filed exceptions and a supporting 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 this case 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 and brief, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner only to the extent consistent
herewith.
As more fully set forth in the Trial Examiner's
Decision, the record establishes that in each year
from 1950 through 1964, the Respondent had paid
its employees a Christmas bonus computed on the
Respondent's evaluation of the services rendered by
the recipients thereof, but in 1965 the bonus was
unilaterally discontinued. Thereafter, the 1965 bonus
was paid in December 1967, following issuance of
the Board's Decision and Order, dated November
26, 1967, in a prior case alleging that such action
was unlawful.' It was there held2 that the
Respondent's Christmas bonus constituted an
integral part of the wage structure which was a
mandatory subject of bargaining, and that the
Respondent violated Section 8(a)(5) and (1) of the
Act by unilaterally deciding to discontinue, and by
unilaterally discontinuing, the payment thereof in
1965.
'Gravenslund Operating Company d/b/a Washington Hardware and
Furniture Co, 168 NLRB No 72
'Member Brown dissented in the prior case because he would not have
reached the merits at that time , but would have held the matter in
abeyance pending utilization by the parties of their privately arrived at
grievance -arbitration method of resolving disputes . However, as the
majority of the Panel did consider and resolve the issues in that
proceeding , Member Brown accepts the findings of his colleagues in that
case as conclusive of the underlying facts and legal questions involved
herein
63
After the events involved in the prior case, the
Respondent again did not pay a Christmas bonus in
either 1966 or 1967, and did not consult with the
Union concerning this at any time. On April 1,
1968, the Union filed the instant charge, alleging
that the Respondent acted unlawfully in unilaterally
failing to pay the 1967 bonus.' The Respondent
conceded before the Trial Examiner that a
Christmas bonus is a mandatory subject of
bargaining but argued that the Union had not
requested bargaining on this subject at any relevant
time. Although a new contract was executed in
1968,' it contained no provision or reference to this
bonus.
The Trial Examiner concluded that because the
Board in the prior case specifically found that in
1965 the Respondent discontinued the practice of
paying .the Christmas bonus, albeit unlawfully, and
as the Board's order therein did not direct that the
practice be resumed, the bonus was no longer in
existence and was no longer a part of the wage
structure after 1965. He further held that, since the
Respondent effectively discontinued the bonus
payment, it was the Union which was seeking a
change in existing conditions of employment, i.e., it
was attempting to secure reinstatement of the bonus
payment, and it was incumbent upon the Union to
request discussion thereof. The Examiner found
that, as the Union had failed to request bargaining
concerning such a change, the Respondent had not
violated Section 8(a)(5) of the Act. We find merit in
the exceptions to these findings.
It is patent that the order in the prior case was
directed to the facts then before the Board; i.e., the
1965 failure to pay the bonus. It is also obvious
that, in directing the Respondent to pay the amount
of that bonus to employees and to cease and desist
from refusing thereafter to bargain collectively by
unilateral changes in bonus payments or other
conditions, the decision contemplated the continued
payment of such bonuses unless the Respondent
bargained with the Union before it failed to make
such payment in the future. To hold otherwise
would be to permit the Respondent to profit by its
unlawful conduct by giving effect to its unilaterally
adopted change while relieving the Respondent of its
The Union filed no charge based on the failure to pay the 1966 bonus
for the stated reason that the poor case was pending before the Board for
determination of whether the Respondent had an obligation to bargain
concerning the Christmas bonus When the decision issued in that case
involving the 1965 bonus , the 10(b) period , during which a charge could be
filed concerning the 1966 bonus , had expired
The previous collective-bargaining agreement between the Employer and
Union was entered on November 18, 1965, and was effective to May 11,
1968 During negotiations for a new contract in June 1968, the Union was
informed by the Respondent that the Company could not pay the 1967
Christmas bonus because it had no profit in 1967, and the Union
responded that it would leave the matter to the Board for determination
and if the Company would demonstrate to the Board that it made no
profit in 1967, no bonus would be required No evidence was adduced to
support this assertion other than testimony by Respondent's
secretary-treasurer, Mr John Gravenslund , that 1967 was an unprofitable
year However, this would be relevant only to the computation of the
amounts of the bonuses to be paid
175 NLRB No. 10
64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
obligation to bargain with the Union about such
change upon payment of 1 year's bonus. Such a
result is incongruous and inconsistent with the
conclusions reached in that case, and falls far short
of returning the parties and the employees to the
status quo ante to the extent possible.
In view of the above, it is clearly implicit that the
Christmas bonus continued as a part of the wage
structure at all times relevant herein, and
continuously constituted a mandatory subject of
bargaining which the Respondent could not lawfully
modify without first discussing it with the
employees' collective-bargaining representative.' It is
also apparent that the Respondent was the party
seeking to change an existing condition of
employment, and that therefore good-faith
bargaining would require that the Respondent
propose such change to the Union and request its
agreement. This the Respondent admittedly failed to
do at any time, and particularly in connection with
the failure to pay the Christmas bonus in 1967,
which was the subject of the charge and complaint
herein. Accordingly, we find that the Respondent,
by unilaterally discontinuing the payment of the
Christmas bonus in 1967 to its employees in the
appropriate unit, violated Section 8(a)(5) and (1) of
the Act.
THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth herein,
occurring in connection with its operations, have a
close, intimate, and substantial relation to trade,
traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and
obstructing commerce and the free flow thereof.
THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(1) and (5) of the Act, we shall order
Respondent to cease and desist therefrom and take
certain affirmative action which we find necessary to
effectuate the policies of the Act.
We shall also order the Respondent to make its
employees whole for the monetary loss suffered by
them as a result of the unlawful withholding of the
1967 Christmas bonus, the amount of loss to be
determined by the formula, as nearly as can be
ascertained, used in making bonus payments in
previous years,' with interest at the rate of 6 percent
per annum.'
Upon the basis of the foregoing findings of fact,
and upon the entire record in the case, the Board
makes the following:
CONCLUSIONS OF LAW
1. Gravenslund Operating Company d/b/a
Washington Hardware and Furniture Co. is engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Retail Clerks Union No. 1612, Retail Clerks
International Association, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of
the Act.
3. All full-time and regular part-time employees
employed by the Respondent at its retail outlet at 6
West Kennewick Avenue, Kennewick, Washington,
excluding guards and supervisors as defined in the
Act, constitute a unit appropriate for the purposes
of collective bargaining- within the meaning of
Section 9(b) of the Act.
4. The Union is, and at all times since July 27,
1964, has been, the exclusive certified representative
of all employees in the aforesaid unit for the
purposes of collective bargaining with respect to
rates of pay, wages, hours of employment, and other
terms and conditions of employment.
5. By unilaterally discontinuing the payments of
Christmas bonuses in 1967 to its employees in the
appropriate unit, the Respondent has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act.
6. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amebded, the National Labor
Relations Board hereby orders that the Respondent,
Gravenslund Operating Company d/b/a Washington
Hardward and Furniture Co., Kennewick,
Washington, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with the
Union with respect to Christmas bonuses or any
other term or condition of employment by
unilaterally effectuating changes in bonus payments
or any term or condition of employment of its
employees in the appropriate bargaining unit in
'The fact that the Union did not protest , or file a charge based on the
Respondent 's failure to pay the 1966 bonus is immaterial in this situation,
since it was awaiting Board decision on the underlying questions of
whether the Christmas bonus was a part of the wage structure and whether
any change therein was a mandatory subject of bargaining It is well
settled that each failure to satisfy its statutory obligation to bargain
constitutes a separate violation of the Act. Cf West Penn Power
Company. 143 NLRB 1316 , 1321, enforcement denied on other grounds
337 F 2d 993 (C A 3)
'Although some difficulty may be encountered in computing the
employees' loss as a result of the Respondent 's unfair labor practices, this
is not a legitimate reason for a total denial of compensation The formula
to be used in determining the amount of compensation due to the
employees can be determined by agreements of the parties , or, if necessary,
in a backpay proceeding American Fire Apparatus Company, 160 NLRB
1318, 1319
'Isis Plumbing & Heating Co . Inc, 138 NLRB 716, Zelrich Company,
144 NLRB 1381, enfd 344 F.2d 1011 (C A. 5)
WASHINGTON HARDWARE AND FURNITURE CO.
derogation of the rights of the Union or any other
labor organization which employees may select as
their exclusive bargaining representative.
(b) In any like or related manner interfering with
the rights of employees guaranteed in Section 7 of
the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Pay to each of its employees in the
appropriate unit the amounts due them for the 1967
Christmas bonus, to be computed in the manner set
forth in this Decision and Order.
(b) 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
amounts due under the terms hereof.
(c) Post at its place of business in Kennewick,
Washington, copies of the attached notice marked
"Appendix."" Copies of said notice, on forms
provided by the Regional Director for Region 19,
after being duly signed by an authorized
representative of the Respondent, shall be posted by
it 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 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
writing, within 10 days from the date of this Order,
what steps have been taken to comply herewith.
'In the event that this Order is enforced by a decree of a United States
Court of Appeals , there shall be substituted for the words "a Decision and
Order" the words "a Decree of the United States Court of Appeals
Enforcing an Order"
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Decision and Order 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 with
Retail Clerks Union No. 1612, Retail Clerks
International Association, AFL-CIO, by unilaterally
changing Christmas bonuses or any other term or
condition of employment of any employees in the
appropriate bargaining unit in derogation of the rights
of the Union.
WE WILL NOT engage in any like or related conduct
which interferes with, restrains , or coerces you in the
exercise of the rights guaranteed you in Section 7 of the
Act.
WE WILL pay the 1967 Christmas bonus to our
employees in the appropriate amount due them, with
interest thereon at the rate of 6 percent per annum.
The appropriate unit is:
65
All full time and regular part-time employees
employed by us at our retail outlet at 6 West
Kennewick Avenue, Kennewick, Washington,
excluding guards and supervisors as defined in the
Act.
G RAV ENS LUND
OPERATING COMPANY
D/B/A WASHINGTON
HARDWARE AND
FURNITURE CO
(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, 1511 Third Avenue, Seattle, Washington 98101,
Telephone 206-583-4532.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE H. O'BRIEN, Trial Examiner This
proceeding, heard at Richland, Washington, on August 9,
1968, pursuant to a charge filed April 3, 1968 and a
complaint issued June 28, 1968, presents the question as
to whether Respondent violated Sections 8(a)(1) and (5) of
the National Labor Relations Act as amended herein
called the Act by failing to pay a bonus to its employees
at Christmastime, 1967.
Upon the entire record in the case and after due
consideration of briefs filed by the General Counsel and
by the Respondent I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Gravenslund Operating Company d/b/a Washington
Hardware and Furniture Co., herein called Respondent, is
and has been at all times material herein, a State of
Washington corporation engaged at Kennewick,
Washington, in the retailing of general merchandise
During its past fiscal year, Respondent, in the course and
conduct of its said business, had gross sales exceeding
$500,000 and purchased and received at its Kennewick
store goods and material from directly outside the State
of Washington valued in excess of $50,000. 1 find that
Respondent is an employer within the meaning of Section
2(2) of the Act, engaged in commerce, and in operations
affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
Retail Clerks Union No. 1612, Retail Clerks
International Association , AFL-CIO, herein called the
Union is a labor organization within the meaning of
Section 2(5) of the Act.
66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
A Preliminary Statement
On November 26, 1967, the Board handed down its
Decision and Order in Gravenslund Operating Company
d/b/a Washington Hardware and Furniture Co. and
Retail Clerks Union No. 1612, Retail Clerks International
Association, AFL-CIO, Case 19-CA-3368, 168 NLRB
No. 72, herein called the prior case. This Decision and
Order was based upon a stipulation of fact dated
September 22, 1966 Facts found by the Board in the
prior case are, by the rule of res judicata,
uncontrovertable, but only through September 22, 1966.
As to the period after September 22, 1966, the Board's
findings have only presumptive validity.'
In taking official notice of the facts found by the Board
in the prior case and while recognizing the presumption of
law that a fact once established is presumed to continue
until the contrary is shown, I have not given finality to
that presumption. The Board in the prior case found that
as of December, 1965 annual Christmas bonuses were part
of Respondent's wage structure. The principal issue in this
case is whether annual Christmas bonuses were still part
of Respondent's wage structure in December, 1967.
Evidence hereinafter detailed demonstrates that they were
not.
B Material Findings in Prior Case
The Board found in the prior case that the Union, since
its certification on July 27, 1964, had been the statutory
representative of all Respondent's selling and nonselling
employees, excluding guards and supervisors, and that on
November 18, 1965, Respondent and the Union entered
into a 3-year contract. The parties stipulated in the prior
case (TXD):
Since about 1950 and prior to 1965 Respondent has
paid to its employees [in the bargaining unit] shortly
before Christmas each year a bonus in the form of a
check. The amount of the check for each employee has
varied from year to year. Some employees have
received a greater amount than other employees. The
amount was not based on profit, sales, or any particular
formula, but the Respondent attempted to adjust the
amount according to the value of each employee's
services to the Respondent None of the employees were
told at or prior to hiring that they would be paid a
Christmas bonus .
In the year 1965 Respondent decided that its
economic position did not justify the payment of
Christmas Bonuses. Respondent failed to pay said
bonuses without giving notice to or offering to bargain
with the Union concerning its decision
On the basis of these facts, and the parties' entire
stipulation, the Board found and concluded:
It has long been held that Christmas bonuses which are
not gratuities and which have been paid with regularity
over extended periods of time are not only an integral
part of the wage structure, but also constitute a
mandatory subject of bargaining. In view of the
Respondent's regularity in the payment of such bonuses
over 15 consecutive years, we are persuaded that the
Christmas bonuses are not mere gifts or "discretionary"
'Mallory Capacitor Company, a Division of P R Mallory & Co, Inc,
169 NLRB No 5, Fitzgerald Mills Corporation, 139 NLRB 802, 803,
NLRB v M L Townsend, 185 F 2d 378, 381 (C A 9)
bonuses as claimed, and that, as also has long been
established, the Respondent's employees had the right
to expect and rely upon the continuation of such bonus
payments as part of their wages. It then follows that
since the subject of Christmas bonuses was not
discussed during negotiations and because the contract
does not contain an express provision giving the
Respondent the right to take unilateral action with
regard thereto, the Respondent was under a statutory
duty to bargain about its decision to discontinue, and its
discontinuance of, its past practice of paying such
annual bonuses The Respondent's unilateral actions
which resulted in changes in the wages and terms of
employment of its employees, therefor, even though
such actions may not have been taken in bad faith
violate its statutory bargaining obligation Accordingly
we find that the Respondent, by unilaterally deciding to
discontinue, and by unilaterally discontinuing, the
payment of Christmas bonuses in 1965 to its employees
in the appropriate unit, violated Section 8(a)(1) and (5)
of the Act. [footnotes omitted.]
In its order in the prior case, the Board required the
Respondent to cease and desist from refusing to bargain
with the union with respect to Christmas bonuses or any
other term or condition of employment by unilaterally
effecting changes in bonus payments or any term or
condition of employment of its employees and to "pay to
each of its employees in the appropriate unit the amounts
due them for the 1965 Christmas bonus, to be computed
in the manner set forth in this decision and order "
Respondent was not specifically ordered to reinstate its
practice of paying annual Christmas bonuses.
C. Developments Subsequent to September 22, 1966
The Respondent did not pay Christmas bonuses for the
year 1966 nor for the year 1967 The Respondent did,
after issuance of the Board's order of November 26, 1967
pay the bonus which it had unlawfully withheld in 1965.
The collective-bargaining agreement entered into
between the Union and the Respondent on November 18,
1965 expired on May 11, 1968 and the parties at the time
of this hearing were in negotiations for a new contract.
The Union has not at any time since September 22, 1966
requested the employer to negotiate on the subject of
Christmas bonus The Union did not ask the employer to
pay a Christmas bonus in either 1966 or 1967. The Union
did not protest the nonpayment of the 1966 Christmas
bonus. The Union did not, other than by the filing of the
instant charge, protest the nonpayment of the 1967
Christmas bonus. The Respondent did not notify the
Union of its intention to pay no bonus in 1966, nor did it
notify the Union of its intention to pay no bonus in 1967,
nor did it, prior to June, 1968, offer to bargain with the
Union on the subject of bonus.
Burton Silvey, the Union's business agent, interrogated
by the General Counsel, testified that negotiations for a.
renewal contract began in April, 1968 and that as far as
he knew, the only time Christmas bonus has been
mentioned was at a meeting in June which he attended,
and that the following occurred:
Q. (by Mr Weninger) Would you tell us what was
said on the question of Christmas bonuses at the
meeting you were in attendance?
A At that time John [Gravenslund] told us that
there was no money to pay the Christmas bonuses -- or
no profit to pay the Christmas bonuses for the year
1967
WASHINGTON HARDWARE AND FURNITURE CO. 67
Q. Did he say anything else on the subject?
A. No, this was as far as we went.
Q. Is that all he said on that subject?
A. Yes
Q. Are those his exact words to the best of your
knowledge?
A. Yes, they were.
Under cross-examination by Respondent's Counsel, Mr.
Silvey testified
Q. You stated that you were at a meeting in June of
1968 and you heard Mr. Gravenslund state in reference
to the matter of Christmas bonuses for '67 that "there
was no money to pay them" What did Dorothy
Harrold [Secretary-treasurer of the Union] then state?
What did you then state to that?
A Then Dorothy said that we should file or go
ahead with this decision of the National Labor
Relations Board and let them decide the case and let
Gravenslund prove to the N L.R.B there wasn't profits
enough to pay the Christmas bonuses.
Q. She indicated that if the company did not show a
profit for 1967 it would be all right for the union not to
have a bonus for that year Is that her position?
A. That is what she stated.
In explanation of the Union's failure to make any
demand for payment of the 1967 Christmas bonus or to
request bargaining on subject of Christmas bonus, Mr.
Silvey testified:
Well at this time we did not know what the Board's
decision was going to be. We didn't know that they
weren't going to cover the bonus for Christmas of '66
or '67.
D. Respective Arguments of General Counsel and
Respondent
The General Counsel argues in substance that the
annual Christmas bonus is still part of Respondent's wage
structure, and that Respondent was and is under a
continuing duty to pay such bonuses. He asserts that
Respondent's failure to pay the bonus in December, 1966
and in December 1967, constituted unilateral changes in
wages and working conditions in breach of such duty. He
concedes that Section 10(b) of the Act precludes the
finding of a violation based on the nonpayment of the
1966 bonus. He points out the fact that the Union has
never consented to the nonpayment of any Christmas
bonus and has not waived its statutory right to bargain on
the subject of Christmas bonus.
Respondent concedes that Christmas bonus is a
mandatory subject of bargaining and that it is obligated to
bargain with the Union upon request. Respondent points
out that the Union has not at any relevant time requested
bargaining on the subject of Chnstmas bonus. Respondent
further relies on the testimony of Silvey, above set forth,
to establish that the parties bargained and reached an
accord on the 1967 Christmas bonus. Its argument is, in
essence, that when Respondent's negotiator stated that
there was no money to pay the 1967 Christmas bonus, the
Union's negotiator agreed that there should be no bonus
provided Respondent could demonstrate to the Board that
it made no profit in 1967, and that the Union's condition
was satisfied by the testimony of Gravenslund in this
proceeding. Respondent further urges, on the authority of
General Telephone Company of Florida v N L R.B, 337
F.2d 452 (C.A. 5), that an order requiring Respondent to
pay any past or future bonus would be inappropriate,
since there has not been any deliberate, purposeful refusal
by Respondent to engage in negotiations.
The General Counsel attempts to justify the Union's
silence by asserting that the Union was not seeking any
change in the established and existing bonus practice, and
that there was, therefore, no occasion for it to make any
demand for bargaining If the Respondent wished to
change its bonus practices, it was the obligation of the
Respondent to broach the subject to the Union. When the
Respondent took unilateral action it violated Section
8(a)(5) of the Act. As to Respondent's contention that the
parties had reached an accord on the subject of the 1967
bonus, the General Counsel, without conceding that in any
sense there was an agreement, asserts that such an
agreement would not excuse Respondent's unilateral
action, nor oust the Board of jurisdiction The General
Counsel requests that, inter alia , Respondent be ordered
to pay the 1967 bonus
E Concluding Findings
The theory of the General Counsel is, in essence, that
the Board, having found that the Christmas bonus was an
integral part of the wage structure, and having ordered
Respondent to pay the 1965 bonus, and having ordered
the Respondent to refrain from unilateral action in the
future, the annual Chnstmas bonus was part of the wage
structure in 1967, and Respondent's failure to pay the
1967 bonus was a per se violation of Section 8(a)(5) of the
Act. This proposition rests on a false assumption and on a
presumption of law which has been overcome by the
evidence before me. The proposition assumes that the
Board's order required the employer to restore and
maintain its practice of paying annual Christmas bonuses.
I do not so read the order. The Board specifically found
"that the Respondent, by unilaterally deciding to
discontinue, and by unilaterally discontinuing, the
payment of Christmas bonuses in 1965 to its employees in
the appropriate unit, violated Section 8(a)(1) and (5) of
the Act." This is a clear finding that the practice, which
had continued for many years had been effectively, albeit
unlawfully discontinued It was well within the power of
the Board to order that the practice be resumed but the
Board chose not to exercise this power.' As of the date of
the hearing in the prior case, September 22, 1966, the
annual Christmas bonus was not part of the wage
structure. The record before me demonstrates that it was
not part of the wage structure in 1966, nor in 1967, nor at
the time of the hearing in 1968. Good faith bargaining
requires that the party seeking a change in existing
conditions of employment has the obligation and duty to
propose such change to the other party and request his
agreement. Respondent breached this duty when in 1965 it
effected a unilateral change in the wages of its employees.
The Board's order in the prior case constitutes a complete
remedy for this violation In the case before me, it is the
Union which is seeking to effect a change in existing
conditions of employment The Union's failure to make
any request of the Respondent is fatal to the position of
the General Counsel. Motoresearch Company, 138
NLRB, 1490, 1493.
There is no merit to Respondent's contention that
agreement was reached on the subject of the 1967 bonus.
Respondent did, although belatedly, offer to negotiate and
the Union rejected this offer because it preferred to let the
'Cf. L J Dreihrtg Motors , 168 NLRB No 76, wherein the Board
ordered the Respondent to resume the practice of paying for Sunday
holidays, and make employees whole
68
Board decide the case.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Gravenslund Operating Company d/b/a Washington
Hardware and Furniture Company is engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act
2. Retail Clerks Union No 1612, Retail Clerks
International Association, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the
Act.
3. All full- and regular part-time employees employed
by the Respondent at its retail outlet at 6 West
Kennewick Avenue, Kennewick, Washington, exclusive of
guards and supervisors as defined in the Act, constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. The Union is, and at all time since July 27, 1964, has
been, the exclusive certified representative of all employees
in the aforesaid unit for the purposes of collective
bargaining with respect to rates of pay, wages , hours of
employment , and other terms and conditions of
employment
5 Respondent has not taken unilateral action in
derogation of the rights of the Union as the exclusive
collective-bargaining representative of Respondent's
employees , and has not refused to bargain with the Union
within the meaning of Section 8(a)(1) and (5) of the Act
RECOMMENDED ORDER
It is recommended that the complaint be dismissed.