Macy's California

384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Macy's California and Freight, Construction, General Drivers, Warehousemen & Helpers Local 287, International Brotherhood of Teamsters, Chauffeurs , Warehousemen & Helpers of Ameri- ca. Case 20-CA-5366 June 15, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On January 28, 1970, Trial Examiner George H. O'Brien issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices and recommending that it cease and de- sist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. Thereafter, the Respondent and General Counsel filed exceptions to the Trial Examiner's Decision with supporting 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 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, the briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby orders that the Respondent, Macy's California, San Jose and Palo Alto, California, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. Member Brown, dissenting: The issue posed by the complaint herein is whether Respondent acted unlawfully in withdraw- ing supper money from bargaining unit employees. Respondent's defense is that the supper money benefit was eliminated as a store policy and there- fore permitted by its contract with the Union which provides: "No benefits or privileges offered by the Employer as a store policy shall be taken away ex- cept as they are generally modified or abolished from the store's policy." My colleagues find that supper money was not eliminated as a store policy within the meaning of the contract and thus there was no contractual sanction for Respondent's ac- tion, which is held violative of Section 8(a)(5). Clearly, this case simply concerns a dispute over the interpretation and application of the parties' contract. The contract itself contains grievance-ar- bitration machinery devised by the parties for resolving such disputes. My view is that responsible collective bargaining entails an obligation on the parties to abide by their agreement with respect to matters which have been affirmatively regulated through the collective-bargaining process.' Con- sistent with the position I have taken in these cases, I would not now consider this case on the merits. ' See my separate opinions in LeRoy Machine Co , Inc, 147 NLRB 1431, Thor Pouer Tool Company, 148 NLRB 1379, Gravenslund Operating Com- pan) d/bla Washington Hardxare and Furniture Co, 168 NLRB 513 183 NLRB No 47-T-6 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE GEORGE H. O'BRIEN, Trial Examiner: On November 18, 1969, a hearing was held in the above-entitled matter in San Francisco, California. The complaint, issued September 9, 1969, is based on a charge filed by Freight, Construction, General Drivers, Warehousemen & Helpers Local 287, In- ternational Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, herein called the Union, on January 9, 1969, and alleges violations of Section 8(a)(1) and (5) of the Na- tional Labor Relations Act by Macy's California, herein called Respondent. Upon the entire record in this proceeding, including my observation of the witnesses and after due consideration of the posthearing briefs, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Macy's California division embraces 12 retail de- partment stores and 2 warehouses and has over 8,000 employees. Its business meets the Board's ju- risdictional standard for retail enterprises. Its em- ployees at the downtown San Francisco store are represented by 29 different unions. Local unions of the International Brotherhood of Teamsters represent some employees at 10 of Respondent's stores. Warehousemen at Respondent's Valley Fair store, San Jose, California, and Respondent's Stan- ford store, Palo Alto, California, are represented in a single unit, under separate identical contracts, by 183 NLRB No. 47 MACY'S CALIFORNIA 385 the Union . There are three warehousemen at each store . One or two employees at each store are represented by Amalgamated Clothing Workers, AFL-CIO, one or two employees at each store are represented by International Union of Operating Engineers , AFL-CIO, and the remainder of the 575 to 600 employees at San Jose and the 425 to 450 employees at Palo Alto are unrepresented. This proceeding affects only the six warehousemen at San Jose and Palo Alto. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issue The sole issue in the case is whether Respondent, by ceasing on January 6, 1969, to pay " supper money" to warehousemen represented by the Union, instituted a "unilateral change in terms and conditions of employment" and thereby refused to bargain with the Union in violation of Section 8(a)(5) of the Act. B. Sequence of Events Respondent has had a contract with the Union covering its San Jose warehousemen since the store opened in 1956 and a separate but identical con- tract with the same Union covering its Palo Alto warehousemen since the store opened in 1961. Neither contract has ever contained any specific reference to "supper money." The current con- tracts (and presumably prior contracts ) do contain the following provision: Section 9. Store Policy. No benefits or privileges offered by the Employer as a store policy shall be taken away except as they are generally modified or abolished from the store's policy. As a policy which antedated 1956, and which was applied at all its stores Respondent paid "supper money" to each regular employee scheduled to work 8 hours or more when his scheduled work- time extended past 6 :30 p.m. This policy was ap- plied to the San Jose store when it opened in 1956 and to the Palo Alto store when it opened in 1961. During the calendar year 1968 it was applied at all stores with the exception of those at Stockton, California, Monterey, California, and a recently purchased store in Daly City, California. An em- ployee meeting these qualifications would present himself at the cashier 's window, sign a list and receive $1.50 in cash. The only employees regularly meeting these qualifications in San Jose and Palo Alto stores were about 40 to 50 salesmen in the "big ticket" departments (furniture, appliances, rugs, TV, cosmetics) and the 6 warehousemen. Two warehousemen at each store were scheduled to work the hours 9 a.m. to 5:45 p.m. and one was scheduled to work 11:30 a.m. to 8 p.m. Since shifts were and are rotated each warehouseman received supper money on only one-third of his working days. Negotiations for new contracts to succeed those expiring June 1, 1967, were commenced in April or May 1967 and concluded October 27, 1967. The San Jose warehousemen were represented by Busi- ness Agent Reginald Bravo and the Palo Alto warehousemen were represented by Business Representative Ashton Spottswood. These were assisted by their superior , Fred Hofmann , secretary- treasurer of the Union. Respondent was represented by G. Luther Weibel, senior vice pres- ident, personnel, assisted by the managers of two stores . Concurrently with these negotiations, other locals of the Teamsters Union negotiated with Respondent for certain employees of its downtown San Francisco store , and with other department stores in San Francisco. These negotiations resulted in two patterns . Respondent and Emporium signed contracts for their downtown stores granting wage increases of 25 cents the first year , 25 cents the second year , and 25 cents the third year. Other downtown department stores signed contracts providing for a 25-cent increase the first year, 20 cents the second year , and 20 cents the third year. Respondent offered the Union the 25, 20, 20 for- mula, and the Union held out for 25, 25, 25. There was only one other substantial point of difference. The Union insisted that there should be a warehouseman on the dock during all hours when the stores were open . The two store managers in- sisted that there was no work for a warehouseman during the hours from 8 p.m. to 9:30 p.m . and that acquiescence in the Union 's demand would only result in unnecessary and unwarranted expense. At a meeting in early October Respondent capitulated to the Union 's wage demand . The dispute over hours was not resolved. Under date of October 13 Weibel transmitted two communications to Hofmann. With reference to the San Jose store , Weibel wrote: Enclosed are original and three signed copies of the contract for Macy's Valley Fair. We be- lieve we have made all the necessary cor- rections in accordance with our recent negotia- tions . Please sign the original and one copy of the contract and return to me so that we can make retroactive payment as soon as possible. It is understood and agreed that the Valley Fair store will keep the warehouse dock opened and manned when the store is open for busi- ness. We look forward to working harmoniously with your union during the term of this con- tract. 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD With reference to the Palo Alto store, Weibel wrote: Enclosed are original and three signed copies of the contract for Macy's Stanford. We believe we have made all the necessary corrections in accordance with our recent negotiations. Please sign the original and one copy of the contract and return to me so that we can make retroactive payment as soon as possible. We look forward to working harmoniously with your union during the term of this con- tract. When these communications came to the atten- tion of Spottswood he telephoned Weibel and requested a further meeting stating, "We wanted a man on duty at the Stanford operation as well as we did at Valley Fair." The meeting was held October 27, 1967, in the union office. Respondent was represented by Vice President Weibel, San Jose Manager Weymer and Palo Alto Manager Jones. The Union was represented by Secretary-Treasurer Hofmann, San Jose Representative Bravo, and Palo Alto Representative Spottswood. Spottswood ar- gued that he could not live with his men if their brothers at San Jose were to receive preferred treatment. Under the union contracts, all hours worked after 6 p.m. were paid at time and a half. Thus under the proposals in Weibel's October 13 letters the late shift warehouseman at San Jose would be paid for 4-1/2 hours at straight time and 3-1/2 hours at the overtime rate, while Palo Alto warehousemen on the late shift would be paid 6 hours at straight time and 2 hours at the overtime rate. Over the voiced opposition of Jones, Weibel capitulated and acceded to Spottswood's demand. In the course of the discussion Weibel announced that Respondent was abandoning the practice of paying supper money. Jones, on direct examination by counsel for Respondent, testified: Mr. Weibel also brought up the fact that he had an issue or point that he wanted to make, in the very near future we would be eliminating dinner money from our stores and at that time we wanted to go on record to eliminate it for the Teamsters as well. Q. What, if anything, did the Teamster representatives say to that? A. Really no discussion. I think Mr. Hof- mann was the only one that mentioned, well, he could see nothing wrong with that as long as it wasn't just penalizing the Teamsters, period, eliminate it from the whole store, fine, it was not in the contract anyway.' Under date of October 13, 1967, Weibel wrote to Hofmann: On October 13, 1967, we sent you original and three signed copies each of the contracts for Macy's Valley Fair and Macy's Stanford. It is my understanding that you have these con- tracts and that they are in accordance with our recent negotiations. At our meeting on Friday, October 27, it was agreed that both the Valley Fair and Stanford stores would keep their warehouse docks open and manned when the stores are open for busi- ness. While, at this time, there is no intention of reducing the number of night openings, it is understood and agreed that the Compnay can eliminate keeping the warehouse docks open should the stores not be open for business. In view of the fact that Macy's has been paying its warehousemen supper money even though this has not been required under our agree- ment, it is understood and agreed that if and when Macy's eliminates payment of supper money from the Valley Fair and Stanford stores, the warehousemen will also not receive supper money payment. We look forward to working harmoniously with your union during the term of these con- tracts. Upon receipt of Weibel's letter Bravo signed and returned to Respondent the contract covering San Jose warehousemen, and Spottswood signed and returned the Palo Alto contract . For the remainder of 1967 and all of 1968 Respondent continued its practice of paying supper money in cash . The prac- tice was discontinued throughout the division on January 6 , 1969.2 Weibel testified: 0. Will you explain to the Trial Examiner why you continued paying it through 1968? A. Yes sir. Macy's wanted to eliminate it sooner and we found we had no records so the Controller come to me and said we are going to have to delay this a year while we establish the numbers of records. So, we prepared a list of all the employees' names and as they received supper money for the year 1968 we put a hash mark by their name and at the end of 1968 we then knew who had received supper money and the number of hash marks 'I find that the foregoing testimony of Jones accurately reflects the exchange between Hofmann and Weibel Jones is fully corroborated by Spottswood Weibel's testimony that Hofmann agreed to the elimination of supper money as part of a "package" comprising an extra 1-1/2 hours at Palo Alto and 5 cents over Respondent's original offer for the second and third year of the contract is simply incredible Respondent had previously agreed to the 25, 25, 25 formula and had agreed to keep a man on the San Jose dock for the extra hour and a half The "package" described by Weibel would mean that San Jose warehousemen would give up $1 50 per night with nothing in excnange , and the Palo Alto warehousemen would gain $2 54 per night in overtime pay in exchange for their loss of $1 50 per night in supper money Bravo had no clear recollection of the meeting but he did testify convincingly that if any such proposition had been advanced, he would have objected 2 Except Respondent's Richmond, California, store where supper money is specifically required by the union contract MACY'S CALIFORNIA 387 they had received representing supper money payments and then we were able to eliminate it come January, 1969. employees." Without making any further effort to communicate with any official of Respondent, Bravo, on January 8, caused the instant charge to be filed. C. Concluding Findings ... at the end of the year, whatever hash marks the individual had we then multiplied that by $2 and then divided that by the number of hours worked and added that to the wages. This adjustment in wages was made only for the nonunion employees. Represented employees who had been receiving supper money were deprived of this benefit without receiving any compensatory wage adjustment. Under date of January 3, 1969, Store Manager Weymer distributed to his supervisors at San Jose the following memorandum: Effective January 6, 1969, supper money will no longer be paid from the Cashier's Office. Employees who have been scheduled with regularity to a shift that qualified for supper money, and who are to continue to be so scheduled, will have an adjustment made to their regular pay to compensate for expected supper money. Those employees in depart- ments where commissions are computed against salary will not have the adjustment in pay in lieu of supper money charged against their commissions. Those of your staff who are being scheduled on the shift where supper money would have been involved should be informed of this change im- mediately. Please feel free to discuss any questions or specific problems regarding this change with me or Mrs. Drews. On the same day, Friday, January 3 , the San Jose warehousemen were informed by their super- visor, Vallandigham , that supper money was discontinued for warehousemen, and that other em- ployees "who regularly worked an 8-hour shift, 1 p.m. to 9 :45 p.m . would receive it henceforth on their paycheck in some manner."3 This information was conveyed by warehouseman Foard to Bravo who immediately drove to the store and asked to see Personnel Manager Madge Drews . Upon being informed that she was in a meeting , he left word for her to call and went back to the dock, where Val- landigham confirmed the fact that "Macy's had taken away the supper money from the warehouse All parties accept the premise that prior to January 6, 1969, $1.50 supper money was part of the wage of the two warehousemen on the evening shift at the two stores, and that Respondent was prohibited by the terms of Section 8(a)(5) of the Act from ceasing to pay supper money to these em- ployees without first obtaining the express consent of the Union. All parties agree that the Union in section 9 of the contract and by the statement of Hofmann on October 27, 1967, did consent, upon express condition, that Respondent could cease to pay supper money to employees in the bargaining unit. All parties agree that the condition attached to the Union's consent was as stated in Weibel's letter of October 31, 1967: "It is understood and agreed that if and when Macy's eliminates payment of supper money from the Valley Fair and Stanford stores, the warehousemen will also not receive supper money payment." There is no contention by any party that the condition attached to the Union's consent was prohibited by the Act or repugnant to the policies of the Act. Respondent argues that its withdrawal of supper money from bargaining unit employees is in strict conformance to its agreement with the Union. The General Counsel argues that supper money was not eliminated at the two stores, that nonrepresented employees continued to receive the same supper money, in a different form, that the condition at- tached to the Union's consent was not satisfied and that the termination of supper money payments to unit employees constituted unilateral action viola- tive of Section 8(a)(5) of the Act. I find that Respondent did not "eliminate pay- ment of supper money from the Valley Fair and Stanford stores" and that Respondent's action in eliminating the payment of supper money from the wage of bargaining unit employees constituted uni- lateral action violative of Section 8(a)(5) and (1) of the Act. This conclusion is compelled by Store Manager Weymer's memorandum of January 3, 1969, announcing a wage adjustment to compen- sate for supper money, by the statement of Vallan- digham that nonunion employees would continue to receive supper money in their paycheck in some manner, and by the fact that Respondent delayed for a year the elimination of supper money to en- sure that nonrepresented employees would suffer no detriment. 3Testimony of warehouseman Foard Vallandigham, admitted by Respondent's answer to be an agent of Respondent and a supervisor within the meaning of the Act, did not testify 427-258 O-LT - 74 - 26 388 DECISIONS OF NATIONAL IV. 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. V. THE REMEDY It having been found that Respondent has en- gaged in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. I shall further recommend that Respondent be ordered to make its employees whole for the mone- tary loss suffered by them as a result of the unlaw- ful elimination of supper money payments, the amount of loss to be determined by the formula used by Respondent in making supper money pay- ments during the calendar year 1968, with interest at the rate of 6 percent per annum.4 Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Macy's California is an employer within the meaning of Section 2(2) of the Act engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. Freight, Construction, General Drivers, Warehousemen & Helpers Local 287, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All warehousemen and shipping-receiving em- ployees employed by Macy's California at its Palo Alto, California store, and all warehousemen and shipping employees employed by Macy's California at its San Jose, California store, but excluding all other employees, office clerical employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act. 4. At all times since about September 1956 at ' Isis Plumbing & Heating Co, Inc, 138 NLRB 716 Zelrich Companj, 144 NLRB 1381, enfd 344 F 2d 1011 (C A 5) In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and Recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions , and order, and LABOR RELATIONS BOARD the San Jose store and since about November 1961 at the Palo Alto store, the Union has represented for the purposes of collective bargaining, a majority of the employees of Macy's California in the unit described above in paragraph 3 and by virtue of Section 9(a) of the Act the Union has been and is now the exclusive representative of all the em- ployees in the said unit for the purposes of collec- tive bargaining with respect to rates of pay, wages, hours of employment, and other terms and condi- tions of employment. 5. By unilaterally eliminating payment of supper money to its employees in the appropriate unit Ma- cy's California has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (5) 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. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this proceeding, I recommend that Macy's California, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with the Union with respect to supper money or any other term or condition of employment by unilaterally eliminating supper money or unilaterally effectuat- ing changes in any term or condition of employ- ment of its employees in the appropriate bargaining unit in derogation of the rights of the Union. (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 I find will effectuate the policies of the Act: (a) Pay to each of its employees in the ap- propriate unit the amounts due them for supper money from and after January 6, 1969, to be com- puted in the manner set forth in the portion of this Decision entitled "The Remedy." (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 the warehouse areas of its stores in San Jose and Palo Alto copies of the attached notice marked "Appendix."' Copies of said notice, all objections thereto shall be deemed waived for all purposes In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " MACY'S CALIFORNIA on forms provided by the Regional Director for Re- gion 20, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to warehousemen 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 said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.6 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively with Freight, Construction, General Drivers, Warehousemen & Helpers Local 287, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America by uni- laterally eliminating supper money or by uni- laterally changing any other term or condition of employment of any employees in the ap- 389 propriate 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 to each of our employees in the appropriate unit the amounts due them for supper money from and after January 6, 1969, with interest thereon at 6 percent per annum. The appropriate unit is: All warehousemen employed by us at our San Jose and Palo Alto stores, excluding supervisors as defined in the National Labor Relations Act and excluding all other employees. MACY'S CALIFORNIA (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or com- pliance with its provisions may be directed to the Board's Office, 13050 Federal Building, 450 Golden Gate Avenue, Box 36047, San Francisco, California 94102, Telephone 556-0335.