Seattle Department Stores Association, Inc

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