John Wanamaker Philadelphia

National Labor Relations Board - Board Decisions

May 22, 1986

279 N.L.R.B. 1034 (N.L.R.B. 1986)

1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
John Wanamaker Philadelphia and Teamsters Local
115, a/w International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers
of America . Cases 4-CA-11357 and 4-CA-
11749
22 May 1986
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 25 September 1981 Administrative Law
Judge Sidney J. Barban issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief, and the General Counsel filed an an-
swering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,I and
conclusions only to the extent consistent with this
Decision and Order and to adopt the recommended
Order as modified.
We agree with the judge that the Respondent
violated Section 8(a)(5) and (1) of the Act by refus-
ing to negotiate economic issues with the Union
until agreement was reached on all noneconomic
matters, by refusing to sign any agreement with the
Union until the latter withdrew pending unfair
labor practice charges, and by unilaterally suspend-
ing its customary annual wage review and failing
to grant wage increases to unit employees in 1980.
We also agree with the judge's findings that the
Respondent violated Section 8(a)(3) and (1) by sus-
pending the customary wage review and refusing
to consider and grant the annual wage increase in
19802 and by withholding from unit employees
medical, disability, and pension and profit-sharing
program benefits. We further agree with the
judge's findings that the Respondent violated Sec-
tion 8(a)(1) by informing unit employees that it
would not sign a contract with the Union until the
unfair labor practice charges were withdrawn, and
i The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
2 Contrary to the judge, we are unable to find that the record estab-
lishes that the wage scale adjustment figures in the Respondent's final
contract offer represent the wage increase power room employees would
have received but for the Respondent 's unlawful action We shall leave
to the compliance stage of this proceeding the determination of the
amount of the June 1980 wage increase and the unit employees who
would have received the increase
that the Respondent did not unlawfully interrogate
employees.3 We do not agree with the judge's find-
ing, however, that the Respondent violated Section
8(a)(5) and (1) by refusing to execute a fully
agreed-upon collective-bargaining agreement.
The judge found that the Union and the Re-
spondent reached complete agreement on a con-
tract on the evening of 2 January 1981. The judge
found that the Respondent voiced all its objections
to the proposed agreement submitted by the Union,
and the Union conformed the document to comply
with the Respondent's requested changes. The
judge noted, however, that the conformed agree-
ment did not reflect certain objections set forth in
the Respondent' s negotiation minutes concerning
grievance procedure time limits , authority of the
arbitrator, scheduling of personal holidays, and
qualification for holidays. We find that the Re-
spondent had these additional objections to the
contract submitted by the Union on 2 January, but
did not express them before it abruptly terminated
the meeting upon learning that the Union was not
going to withdraw its pending unfair labor practice
charges against the Company. While we find that
the Respondent's conditioning agreement on the
Union's withdrawal of the charges was unlawful,
we also find that the record does not establish that
the Respondent had exhausted its list of objections
to the proposed contract before terminating the 2
January meeting.4 We therefore find that the par-
ties did not reach complete agreement on 2 Janu-
ary. Accordingly, the Respondent did not violate
Section 8(a)(5) and (1) by refusing to execute the
contract tendered by the Union, and we shall
amend the Conclusions of Law, modify the recom-
mended Order, and issue a new notice to employ-
ees.
We agree with the judge that under South Shore
Hospital, 245 NLRB 848 (1979), enfd. 630 F.2d 40
(1st Cir. 1980), the Respondent violated Section
8(a)(5) and (1) by refusing to discuss economic
matters with the Union until all noneconomic
issues were resolved. In South Shore, the employer
and the union had previously negotiated three col-
3 No exceptions were filed regarding the judge 's dismissal of the inter-
rogation allegations of the complaint
4 This finding is consistent with the judge 's finding that during the
evening meeting on 2 January chief union spokesman Gray conformed
the contract proposal to meet every objection voiced by the Respondent
The judge's further comments that the Union was in no position to reject
any reasonable contract change, and in fact did not oppose any change
suggested by the Respondent at the meeting , do not establish that the ob-
jections raised by the Respondent represented all the Company's prob-
lems with the contract proposal To the contrary, the Respondent 's nego-
tiation minutes and documents show, and the testimony does not establish
otherwise, that the Respondent had additional objections to the proposal
that were neither expressed nor resolved at the abbreviated evening
meeting on 2 January
279 NLRB No. 140
JOHN WANAMAKER PHILADELPHIA
lective-bargaining agreements. From July 1977
through April 1978, the parties held 21 meetings to
negotiate a new contract. From September 1977 to
March 1978, the employer refused to bargain over
economic matters until the union agreed to reduc-
tions in certain existing benefits. The Board adopt-
ed the judge's findings that the employer rigidly
and unreasonably fragmented the negotiations and
did not seriously attempt to resolve differences and
reach a common ground.5
The Union in this case was newly certified and
negotiating its first contract with the Respondent.
The parties met approximately 25 times from
March 1980 through January 1981. According to
the Respondent, the parties agreed at the first bar-
gaining session "to have all of the noneconomic
items settled before the parties went into any eco-
nomic discussions." The judge did not find this to
be the parties' agreement. Instead, the judge cred-
ited the Union's chief spokesman's testimony that
the parties agreed to attempt to settle noneconomic
matters first. At the 13th bargaining session on 9
May 1980, the Union presented its economic pack-
age. The Respondent refused to discuss economics
until the Union agreed to the Company's demand
for no-strike and binding arbitration provisions.
The Respondent persisted in its refusal to discuss
economics until 20 November 1980.
The Respondent defends its action on the basis
that the Union's presentation of an economic pro-
posal was contrary to the original ground rules,
and that the Company had structured its bargaining
strategy "on the assumption that it could not trade
off language items for economic items and vice
versa." As we noted earlier, however, the cred-
ited evidence does not support the Respondent's
version of the parties' ground rules. The parties did
not commit to resolving all language items before
discussing economics, but merely agreed to attempt
to settle as much of the language as possible before
moving to economics. Our dissenting colleague
states that the record does not reflect that the Re-
spondent intended to bifurcate the negotiations, but
the Respondent admits it based its bargaining strat-
egy on the strict separation of economic and non-
economic matters. The result of this strategy-a 6-
month refusal to discuss economic matters-unrea-
sonably fragmented the negotiations and drastically
reduced the parties' bargaining flexibility.
In addition to refusing to discuss economics until
the union agreed to reductions in benefits, the em-
ployer in South Shore unlawfully withheld from
° South Shore, above at 858.
° The Respondent 's negotiating minutes for 9 May 1980 state that
"[t]he company is extremely firm in the position that non-economic items
must be settled before economics are discussed "
1035
unit employees wage increases that were granted
other employees. The employer there also in-
formed the union that the longer the negotiations
went on, the more proposals there would be to
reduce benefits. The Respondent here withheld
wage and benefit increases from unit employees
during its refusal to discuss economics at the bar-
gaining table. In May 1980 the Respondent granted
new or improved health, welfare, pension, and
profit-sharing benefits to nonunit employees. A
month later the Respondent ignored its past prac-
tice and failed to conduct its annual wage review
and award of wage increases to unit employees.
Nonunit employees scheduled to receive wage in-
creases in 1980 did get their raises, however.
The Respondent did not expressly inform the
Union that unit employees' wages and benefits
would suffer during negotiations, but we find that
the Respondent's conduct clearly conveyed that
message . The Respondent and our dissenting col-
league state that an employer is not obligated to
provide wage increases and benefit improvements
to unit employees while negotiating with a union
on their behalf. However, the Respondent withheld
increases in wages and benefits from unit employ-
ees while it was refusing to discuss economic mat-
ters with the Union. Wages and benefits were not
being negotiated because of the Respondent's refus-
al to discuss economics. As was the case in South
Shore, we find that the Respondent's withholding
of wage and benefit increases from unit employees
further obstructed bargaining and aggravated the
Respondent's refusal to discuss economics.
Contrary to the dissent, we do not believe that a
finding of bad-faith bargaining here ignores
common bargaining realities or techniques. We find
the Respondent's inordinately rigid approach to
bargaining squarely at odds with the type of bar-
gaining contemplated by the Act. For over 6
months, the Respondent took the position that eco-
nomic matters would not be discussed until the
Union agreed to no-strike and binding arbitration
provisions. The Respondent's action was contrary
to the parties' agreed-upon ground rules and com-
pletely fragmented the negotiations. We agree with
the judge that under South Shore, and the cases
cited therein, the Respondent's refusal to discuss
economics violated Section 8(a)(5) and (1).
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law
4:
"4. Respondent engaged in bad-faith bargaining
in violation of Section 8(a)(5) and (1) of the Act by
the following conduct: (1) refusing during negotia-
tions for a collective-bargaining agreement to bar-
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gain on economic issues from about 9 May until
about 20 November unless and until agreement was
reached on noneconomic issues ; (2) refusing to
enter into a collective-bargaining agreement unless
and until the Union withdrew unfair labor practice
charges filed against the Company; and (3) sus-
pending its customary annual wage review for unit
employees and failing to grant customary wage in-
creases to unit employees in 1980 without consult-
ing with the Union and providing it with an oppor-
tunity to bargain about the matter."
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, John Wanamaker Philadelphia, Philadel-
phia, Pennsylvania, its officers, agents , successors,
and assigns, shall take the action set forth in the
Order as modified.
1. Delete paragraph l(a)(3) and renumber the
subsequent paragraph.
2. Delete paragraph 2(b) and reletter the subse-
quent paragraphs.
3. Substitute the attached notice for that of the
administrative law judge.
CHAIRMAN DOTSON, dissenting in part.
I agree with my colleagues that the Respondent
and the Union did not reach complete agreement
on a contract and that the Respondent did not vio-
late Section 8(a)(5) and (1) by refusing to sign the
document presented by the Union. I also agree that
the Respondent violated Section 8(a)(5) and (1) by
informing the Union and employees that the Com-
pany would not sign an agreement until the Union
withdrew its unfair labor practice charges. I dis-
agree, however, with the majority's adoption of the
judge's remaining findings that the Respondent vio-
lated the Act.
The Respondent operates a large department
store. It has collective-bargaining agreements with
several unions that represent many of its employ-
ees. On 20 January 1980 the Union was certified as
the collective-bargaining representative of the re-
spondent's power room empoloyees. The parties
commenced contract negotiations on 14 March
1980 and met approximately 25 times through 2
January 1981. According to the credited evidence,
the Respondent's and the Union's chief spokesmen,
Meehan and Gray, respectively, agreed at the first
bargaining session that the parties would attempt to
settle noneconomic matters first.' During the
' The fudge specifically found that the parties did not agree to refrain
from discussing all other issues until all noneconomic matters were set-
tled
course of 12 bargaining sessions in March, April,
and May, the parties discussed and in many in-
stances resolved noneconomic matters. On several
occasions the Respondent proposed binding arbitra-
tion and non-strike provisions. The Union, while
stating it was not inflexible on those subjects and
considered them negotiable, did not agree to the
Respondent's proposals.
On 9 May the parties met for the 13th time. Sev-
eral noneconomic issues remained open, including
the Respondent's binding arbitration and no-strike
proposals. Following a discussion of various non-
economic items, but not binding arbitration and no-
strike, the Union presented an economic proposal
to the Respondent, Meehan responded that the par-
ties could discuss economic items until the open
noneconomic matters were resolved. As found by
the judge, the Respondent's refusal to move on to
economics was primarily based on the Union's re-
jection of the binding arbitration and no-strike pro-
posals. The Union took the position that it had
gone as far as it could on noneconomic matters.
The Respondent raised binding arbitration and
no-strike proposals at the parties' 15 May meeting,
but the Union dismissed the proposals as contrary
to its general practice and principles. On 16 May
the Union presented a grievance procedure propos-
al that did not provide for binding arbitration.
Meehan rejected the Union's proposal and stated
that the Respondent had to have binding arbitra-
tion and no-strike provisions in the contract. Gray
suggested the parties address economics, but
Meehan refused. The Respondent subsequently re-
sisted the Union's efforts to discuss until 20 No-
vember.
In May 1980 the Respondent announced new or
improved health, welfare, pension , and profit-shar-
ing benefits for unrepresented employees and em-
ployees covered by labor agreements that provided
company benefit plans . Power room employees
were not offered the new benefits. Nor were unit
employees granted wage increases in June, con-
trary to the Respondent's past practice of conduct-
ing an annual wage review and awarding wage in-
crease to power room employees about June. The
Respondent granted wage increases to those non-
unit employees scheduled to receive raises in 1980.
The parties commenced discussion of economic
matters on 20 November. On 28 November the Re-
spondent submitted a final economic proposal to
the Union. On 1 December the unit employees
went to strike. At the insistence of another Team-
sters Local president, the parties met on 2 January
1981 to attempt to settle the strike. The Union
sought to negotiate the open contract items at this
meeting, but the Respondent maintained that it was
JOHN WANAMAKER PHILADELPHIA
present solely to have the Union accept the Com-
pany's 28 November offer. The Union conceded all
the points raised by the Respondent prior to the
end of the meeting.
Section 8(d) of the Act states that the duty to
bargain requires an employer to "meet at reasona-
ble tinges and confer in good faith with respect to
wages, hours, and other terms and conditions of
employment . . . but such obligation dies not
compel either party to agree to a proposal or re-
quire the making of a concession." As the Supreme
Court stated in NLRB v. Insurance Agents:2
It is apparent from the legislative history of
the whole Act that the policy of Congress is
to impose a mutual duty upon the parties to
confer in good faith with a desire to reach
agreement, in the belief that such a approach
from both sides of the table promotes the
overall design of achieving industrial peace.
See Labor Board v. Jones & Laughlin Steel
Corp., 301 U.S. 1, 45. discussion conducted
under that standard of good faith may narrow
the issues, making the real demands of the par-
ties clearer to each other, and perhaps to
themselves, and may encourage an attitude of
settlement through give and take. The main-
stream of cases before the Board and in the
courts reviewing its order, under the provi-
sions fixing the duty to bargain collectively, is
concerned with insuring that the parties ap-
proach the bargaining table with this attitude.
But apart from this essential standard of con-
duct, Congress intended that the parties should
have wide latitude in their negotiations, unre-
stricted by any govermental power to regulate
the substantive solution of their differences.
[Citation omitted.]
The Board examines the totality of an employer's
conduct in determining whether it had bargained in
good faith. In so doing, the Board must decide
"whether the employer is lawfully engaging in
hard bargaining to achieve a contract that it con-
siders desirable or is unlawfully endeavoring to
frustrate the possibility of arriving at any agree-
ment."s
The judge concluded, and my colleagues agree,
that the Respondent 's refusal to discuss economic
matters from early May through late November
1980 unless the Union agreed to the outstanding
noneconomic issues violated Section 8(a)(5) and
(1). The judge characterized the Respondent's con-
361 U S 477, 488 (1980)
' I.. D Lunsford Plumbing, 254 NLRB 1360, 1370 (1980), quoting from
West Coast Casket Co, 192 NLRB 624, 636 (1971), enfd in relevant part
469 F 2d 871 (9th Cir 1972)
1037
duct as "piecemeal bargaining" and found that it
rigidly and unreasonable fragmented negotiations.
Considering the totality of the Respondent's con-
duct during negotiations, I find that it was lawfully
engaged in hard bargaining.
The majority action in this case is, unfortunately,
a familiar one. It seeks to redress the economic and
bargaining balance between these parties. It does so
here by seizing on a bargaining technique em-
ployed by the stronger party during part of the ne-
gotiations and labeling that techinque as a per se
violation of Section 8(a)(5) -and (1). Without real
discussion it affirms the judge's finding that the
facts here are contrtolled by South Shore Hospital,
245 NLRB (1979), enfd. 630 F.2d 40 (1st Cir.
1980). The resemblance between the instant case
and South Shore is superficial. The majority simply
notes that there was reluctance by the employer
here and in South Shore to discuss economic issues
absent prior handling of noneconomic items. That
is the end of their analysis.
The question in cases of this type, however, is
not the bargaining technique employed. It is rather
the ends for which the technique is employed. If
the technique is used to avoid agreement, the Re-
spondent has violated Section 8(a)(5) and (1). If
used to obtain a desired contract, no violation is
shown. A close reading of South Shore demon-
strates that the employer in that case used the tech-
nique of first settling out noneconomic issues solely
to avoid agreement . The employer took that posi-
tion from the very start of negotiations despite the
union 's efforts to discuss economic matters and its
provision at the very first meeting of a full eco-
nomic proposal . Later in the negotiations , the em-
ployer noted that if negotiations went on longer,
"[T]here would be more proposals to reduce bene-
fits." South Shore , supra at 859 . In its dealings on
noneconomic matters, the employer insisted on re-
ductions in benefits. Id. at 858. After granting wage
and benefit increases to nonunit employees in viola-
tion of Section 8(a)(3), the employer refused to
make those benefits retroactive for unit employees
despite the fact that money for that purpose had
been set aside 7 months previous. Id. at 859. In
fact, the employer told the union they could have
those benefits at the same time as the nonunit em-
ployees "if they simply had been agreeable to the
proposals which the Hospital on the table." Id.
Carefully summarizing these facts, the administra-
tive law judge in South Shore concluded that the
employer had fragmented the negotiations with a
view to avoiding agreement. His conclusion was af-
firmed by the Board and the Board 's Order in the
case was subsequently enforced by the court.
1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
None of these factors are present in the instant
case. The Union initially had no problem with dis-
cussing noneconomic issues ("language") prior to
dealing with economic issues. Indeed, the sugges-
tion originated with the Union. While it is true, as
the judge found, that the Union did not verbally
lock itself into this procedure (and, indeed, some
economic matters were discussed prior to 9 May),
this record does not reflect, as does South Shore, an
immediate Respondent's purpose to bifurcate the
negotiations.The record does reflect that the Union
was satisfied to go this route until the Respondent
became insistent about its no-strike and binding ar-
bitration proposals. This record, in fact, reflects
none of the factors relied on in South Shore to sup-
port the conclusion that the Respondent used its
bargaining technique to avoid agreement. The Re-
spondent did not attempt to reduce prior fringe or
noneconomic privileges or benefits. It made no
threats about long-continued negotiations or state-
ments to the effect that unit employees could have
had benefits or privileges earlier if the Union had
only given way.
I find, instead, that the evidence shows that the
Respondent was desirous of reaching agreement
with the Union. The Respondent made it clear,
however, that binding arbitration and no-strike pro-
visions were a sine qua non of any agreement. The
Respondent raised these items numerous times
during the first dozen bargaining sessions, only to
have the Union steer the discussion to other mat-
ters. Despite the Union's resistance to binding arbi-
tration and no-strike proposals, the Respondent re-
solved many other differences with the Union. As
a result, the parties narrowed the open issues to the
point where, as of 9 May, only a few outstanding
economic matters remained.
On 9 May the Union attempted to suspend bar-
gaining over the noneconomic issues and address
economic matters. Apparently the Union felt it was
time to bring additional subjects into the negotia-
tions. The Respondent did not share the Union's
feeling that the parties had gone as far as they
could on noneconomic items. Consequently, the
Respondent opposed the Union's attempt to shift
the focus of negotiations, and again raised the bind-
ing arbitration and no-strike provisions. When the
Union reiterated its desire to discuss economics, the
Respondent stood firm in its resolve to pursue
binding arbitration and no-strike proposals. I be-
lieve that both parties were entitled to their respec-
tive viewpoints and strategies. I further find that
their resulting conflict over the direction of negoti-
ations was a matter to be resolved through the col-
lective-bargaining process. For unless one party has
the bargaining strength to dictate the course that
negotiations are to take, that matter will be deter-
mined by the interaction of both parties. The Re-
spondent therefore acted lawfully in challenging
the Union's efforts to change the subject matter of
the negotiations.
The majority's finding is, therefore, inconsistent
with the wide latitude to be accorded to parties en-
gaged in negotiations.
The Board's 4-year intervention in these negotia-
tions had been of little benefit to these parties. De-
spite its oft-asserted "expertise" on the subject of
collective bargaining, the Board here ignores
common bargaining realities and the techniques
created by practitioners of collective bargaining to
deal with thoes realities. At a minimum, an asses-
ment of the realities here must take account of the
relative bargaining strengths of the parties and the
contractual provisions desired or shunned by both.
The Respondent desired a contract with no-strike
and arbitration provisions. The Union did not.
When it became apparent that those provisions-
and not economics-were at the heart of the par-
ties' disagreement, the Union attempted to shift the
focus of the negotiations to economics. The Re-
spondent resisted this shift and eventually took a
strike vote over the issues dividing the parties.
When the Union desisted from the strike, the par-
ties came near agreement, an agreement which was
partially frustrated, at the last, by the Union's con-
tinued reliance on the interference of the Board.
These bargaining realities led the Respondent to
take the position that it did not as the majority
holds, a predetermined intent to avoid agreement.
In a similar case, former Chairman Edward B.
Miller once quoted Law and Practice of the Labor
Contract by Benjamin Werne:4
Management is best advised not to talk wages
or money benefits until desired changes have
been worked out on other aspects of the agree-
ment. . . . The agreement should be combed
from top to bottom before there is a conces-
sion on money matters. Company negotiators
must keep the cost of inefficient operation in
mind as clearly as the dollar-and-cent value of
an added holiday or extra week's vacation al-
lowance. A seniority provision which compels
the layoff of the only men who can handle a
certain kind of assignment can be as damaging
to the future of the business as the cash paid
out to employees on sick leave. Concentration
on economic issues to the exclusion of all
other factors is a common pitfall of the inexpe-
rienced negotiator.
4 Federal Mogul Corp, 212 NLRB 950, 952 (1974)
JOHN WANAMAKER PHILADELPHIA 1039
I find that the Respondent employed the permis-
sible bargaining tactics in support of its position
that binding arbitration and no-strike provisions
were essential to an agreement . Once the Union
recognized the importance of these items, the Re-
spondent discussed other topics . The Respondent's
conduct therefore amounted to hard , not unlawful,
bargaining.
The judge relied on his bad -faith bargaining find-
ing in holding that the Respondent unlawfully
withheld a customary wage increase and other ben-
efits from unit employees in the summer and fall of
1980. Because I believe that the Respondent was
engaged in lawful bargaining from May to Novem-
ber 1980 , and in the absence of a showing of any
discriminatory motive (cf. South Shore Hospital,
supra), I find that the Respondent did not violate
the Act by withholding the wage increases and de-
clining to grant the new or improved health, wel-
fare, and pension benefits to employees. It is estab-
lished Board law that in circumstances such as
these, an employer may withhold increases in
wages and benefits from employees whose wages
and terms and conditions of employment are being
negotiated with the employees ' representative.
American Telecommunications Corp., 249 NLRB
1135 (1980).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board had found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT refuse to bargain collectively with
Teamsters Local 115, a/w International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America by refusing to negotiate wages,
benefits, and other economic matters in collective
bargaining with the Union unless and until all non-
economic matters are agreed on.
WE WILL NOT refuse to sign any bargaining
agreement on the condition that unfair labor prac-
tice charges against the Company be withdrawn.
WE WILL NOT unilaterally alter terms and condi-
tions of employment of unit employees without
consulting the Union and affording the Union a
reasonable opportunity to bargain on such pro-
posed changes.
WE WILL NOT discourage membership in the
Union or any other labor organiziation by discri-
minatorily suspending wage reviews or withhold-
ing wage raises or any other benefits from employ-
ees because they join, support, or select such labor
organization as their bargaining representative.
WE WILL NOT advise our employees that the
Company will not sign and abide by a bargaining
agreement unless and until unfair labor practices
against the Company are withdrawn.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL, on request, bargain with the Union as
the exclusive representative of the employees in the
following appropriate unit concerning terms and
conditions of employment and, if an understanding
is reached, embody the understanding in a signed
agreement.
All stationary engineers and their helpers em-
ployed by John Wanamaker Philadelphia at its
store located a 1300 Market Street, Philadel-
phia, Pennsylvania: but excluding all office
clerical employees , guards and supervisors as
defined in the Act.
WE WILL make whole the employees in the ap-
propriate unit, as provided in the Order of the Na-
tional Labor Relations Board, for any losses they
may have suffered by reason of our withholding
wage increases , and medical , disability , pension,
and profit-sharing benefits until January 5, 1981.
JOHN WANAMAKER PHILADELPHIA
Marvin L. Weinberg, Esq. and Joseph Kelly, Esq., for the
General Counsel.
David A. Maddux, Esq. and Charles F Barker, Esq.
(Sheppard, Mullin, Richter & Hampton), Los Angeles,
California, and Saul, Ewing, Remick & Saul, Philadel-
phia , Pennsylvania, for the Respondent.
Richard Syre, Esq. (Edward A. Gray, Esq., on the brief),
Philadelphia, Pennsylvania, for the Charging Party.
1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
SIDNEY J. BARBAN, Administrative Law Judge. This
matter was heard at Philadelphia , Pennsylvania, on May
26-29 and June 11, 1981, on consolidated complaints in
the above cases , ' as amended at the hearing . The com-
plaints allege that:
1. The Respondent violated Sections 8(a)(1) and (5)
and 8(d) of the National Labor Relations Act by (a) sus-
pending its annual merit wage review and failing to grant
raises to its employees in an appropriate unit represented
by the above-named Charging Party (the Union) without
prior notice to the Union and without affording the
Union an opportunity to bargain thereon; (b) refusing to
negotiate with the Union concerning economic propos-
als, during collective bargaining , unless and until an
agreement was reached on noneconomic proposals, in-
cluding clauses providing for arbitration and a waiver of
the right to strike ; (c) failing and refusing to execute a
written collective -bargaining agreement covering the ap-
propriate unit fully and completely agreed with the
Union ; and (d) refusing to execute a written agreement
with the Union covering the appropriate unit unless and
until the Union withdrew its charges against Respondent
in Case 4-CA-11357.
2. The Respondent violated Section 8(a)(1) and (3) of
the Act by (a) failing and refusing to provide certain dis-
ability plan benefits and medical and health insurance
benefits to employees in the appropriate unit ; (b) failing
and refusing to permit those employees to participate in
a retirement profit-sharing plan ; and (c) suspending its
annual merit wage review and failing to grant raises to
employees in the appropriate unit , all because those em-
ployees are represented for collective bargaining by the
Union.
3. The Respondent violated Section 8(a)(1) of the Act
by (a) interrogating its employees concerning their sym-
pathies for the Union; and (b) advising its employees that
Respondent would not sign the written agreement with
the Union embodying terms and conditions of employ-
ment for the appropriate unit unless and until the Union
withdrew its charges against Respondent in Case 4-CA-
11357.
The answer to the complaints denies the unfair labor
practices alleged , but admits allegations of the complaint
sufficient to justify the assertion of jurisdiction under the
Board 's present standards (Respondent , in the operation
of a retail department store chain , including a store in
Philadelphia , Pennsylvania, which is the only store in-
volved herein, during a recent annual period in which its
gross revenues exceeded $ 1 million, purchased and re-
ceived goods and materials valued in excess of $50,000 at
its operations in Pennsylvania directly from outside the
Commonwealth of Pennsylvania), and to support a find-
' Complaint in Case 4-CA-11357 issued on October 15, 1980 (all dates
herein are in 1980 unless otherwise noted ), based on a charge filed on
August 25 Complaint in Case 4 -CA-11749 issued on February 23, 1981,
based on a charge filed on January 8, 1981 An order consolidating cases
issued May 8, 1981
ing that the Union is a labor organization within the
meaning of the Act.
On the entire record in this case , and from my obser-
vation of the witnesses and their demeanor , and after due
consideration of the briefs filed by the General Counsel,
the Union, and the Respondent, I make the following
FINDINGS AND CONCLUSIONS2
1. THE FACTS
A. Introduction
In the operation of its large department store in down-
town Philadelphia , Respondent employs a number of
craft employees represented by labor unions in addition
to other employees who are unrepresented . It has collec-
tive-bargaining agreements with most of these craft
unions.
After a Board-conducted election among Respondent's
power room employees in a unit of "all stationary engi-
neers and their helpers employed by [Respondent] at its
store located at 1300 Market Street, Philadelphia, Penn-
sylvania, but excluding all office clerical employees,
guards and supervisors as defined in the Act," which Re-
spondent agrees, and I find is a unit appropriate for the
purposes of collective bargaining within the meaning of
the Act, the Board, on January 20, 1980, certified the
Union as the collective-bargaining representative of the
employees in that unit.
B. The Negotiations
Beginning March 14, the Respondent and the Union
met on approximately 25 occasions, through January 2,
1981, in negotiations for a bargaining agreement covering
terms and conditions of employment for power room
employees in the appropriate unit. There are a number of
conflicts in the testimony about those meetings . The find-
ings hereinafter constitute a resolution of these conflicts
based on my consideration of the entire record and eval-
uation of the credibility of the witnesses. Testimony in-
consistent with those findings is not credited. I have
given particular attention to the Respondent's minutes of
the meetings assertedly prepared and typed after each
meeting , but have also considered that they do not pur-
port to be complete or verbatim accounts.
1. Refusal to negotiate on economic proposals until
agreement was reached on all noneconomic
contract clauses
It is undisputed that from at least the negotiation ses-
sion on May 9 (the 13th meeting) until the negotiations
on November 20, 26, and 28, Respondent took the con-
sistent, unyielding position that it would not discuss eco-
nomic proposals until all noneconomic clauses in the bar-
gaining contract were agreed.3
8 A separate order had been issued correcting the transcript in this
matter
8 Respondent 's minutes for the meeting of May 9 state that Respondent
asserted there that "The company is extremely firm in the position that
non-economic items must be settled before economics are discussed "
JOHN WANAMAKER PHILADELPHIA
Respondent 's minutes of the meetings show that Re-
spondent was particularly perturbed over the Union's re-
fusal, beginning early in the negotiations , to agree to a
waiver of the right to strike and to binding third-party
arbitration of disputes under the contract . Indeed, it is
clear that Respondent 's principal reasons for refusing to
discuss economic issues prior to settlement of noneco-
nomic clauses was to put pressure on the Union to agree
to no-strike and binding arbitration clauses.'
Respondent 's principal spokesman at these negotia-
tions, Paul Meehan, testified that at the very first meet-
ing, the Union "said that they wanted to have all of the
non-economic[s] settled before we went into any eco-
nomic discussions . . . settle all the language before you
talk about money," and that Respondent agreed with
that . Meehan contends that there was thus a firm agree-
ment to proceed in, this manner , pursuant to which Re-
spondent devised its bargaining strategy. On the other
hand, the Union's chief spokesman, Edward Gray, assert-
ed that "[a]t that session I told Paul Meehan and the
Company representative that we would like to proceed
in getting as much of the language out of the way as
possible and then we would go to economics. In that
manner we could isolate what problems we had with the
language and deal with it at an appropriate time. Mr.
Meehan indicated that that was the way they wanted to
proceed also."
At this first meeting, the Union submitted a so-called
Master Agreement principally dealing with asserted non-
economic clauses, but also containing some very substan-
tial economic proposals . 5 Indeed , Respondent 's minutes
for the first meeting note that, although the Union "said
they preferred to settle the language before discussing
economics," the master contract contained a number of
economic proposals . According to the minutes , the par-
ties in fact did, at least until the 13th meeting on May 9,
discuss some of these economic issues even though other
language issues were unresolved.
The difference between Meehan's testimony and that
of Gray is largely one of emphasis-whether, as Gray
says, the parties decided to attempt to settle noneconomic
language clauses initially, but not necessarily to the ex-
clusion of all other issues or, as Meehan insists , agreed
not to discuss anything else until all the language clauses
were settled. On the record as a whole, I credit Gray.
Respondent 's rather ngid insistence on this method of
procedure came only rather late in the negotiations, at
the 13th meeting . Prior to that time, according to Re-
spondent 's minutes, though they had put off some eco-
nomic items , other money matters were freely discussed.
Respondent's outright refusal to further discuss any issue
• For example , Respondent 's minutes of July 16 show Respondent stat-
ing, in response to the Union 's desire to discuss economic issues, that
"the company was absolutely firm on requiring binding arbitration and
no strike as part of the contract ," and asserting that there was "no point
in meeting until the Union is willing to give on them " At the next meet-
ing, on July 30, Respondent insisted that "we are at an impasse over
binding arbitration and no strike " The Union disputed this position,
saying that Respondent could not "precondition " discussion of economics
on pnor agreement on these two items
5 E g, subcontracting , guaranteed workweek, premium rates , transfer
rates, equal pay, holidays , vacations , welfare and pension benefits
(amounts left open), sick leave , rest periods , funeral leave, jury duty
1041
but so-called language items became a bargaining strate-
gy only when the Union refused to agree to certain lan-
guage that Respondent wanted , i.e., waiver of the right
to strike and binding third-party arbitration.6
Lastly, though it is commonplace for negotiators to
tackle language problems in collective-bargaining agree-
ments before economic issues , because the parties are
more likely to become hung up on economics, and this
procedure permits achievement of that firm base of
agreement before becoming involved in money issues, it
is not normal for a negotiator to rigidly insist on this
procedure to the point of refusing to discuss economics
unless that participant achieves all of his other aims
first.7 I do not believe that Gray proposed or agreed to
such a procedure in advance . As an apparently experi-
enced collective-bargaining negotiator , he would be
aware that such procedure would likely result in a break-
down of negotiations, as occurred here.
Perhaps, under threat of a work stoppage, Respondent,
as previously noted , did, on November 20, begin to dis-
cuss economic issues . On November 28 Respondent
made a final written offer for a bargaining agreement, in-
cluding economics.
A strike of power room employees in the appropriate
unit began on December 1 and continued to January 5,
1981, as discussed hereinafter.
2. Suspension of annual wage review and refusal to
consider or grant wage increases to unit employees
For a number of years Respondent had conducted
annual surveys of wages paid in the community to classi-
fications of employees which Respondent employed.
Based principally on these surveys, with certain internal
adjustment formulas, which Respondent had adopted,
employees were given wage increases . The power room
employees normally were considered in June for wage
increases, which were usually also given in June. John P.
Reardon, who was at times material herein divisional
vice president of labor relations , testified that he normal-
ly made the recommendations-ordinarily effective-on
which raises were given . He states that this was done
.,on a discretionary basis," but other than the formulas
given, there is no indication of any other factors that
might affect the amount of wage increases given.
In 1980 the power room employees in the appropriate
unit were not considered for, or granted, an annual wage
s Apparently in defense of this strategy, Meehan testified that the
Union , through the meeting on December 11 (the 24th session), had not
"indicated in any manner that they would agree to a grievance procedure
resulting in binding arbitration " However , from Respondent 's own min-
utes, it appears that from at least the meeting on June 19 , the Union was
indicating that its opposition to no-stnke and binding arbitration clauses
was not ngid , but negotiable Thus, on June 19, according to Respond-
ent's minutes, Gray asserted that the Union, though strongly opposed,
had "never said they wouldn't give [these clauses ]", and on July 30 and
on November 20 Gray affirmed that the Union knew that Respondent
would not sign an agreement without these clauses and that the Union
wanted to achieve a contract without a work stoppage , obviously indicat-
ing that the Union would give in on those items when a bargain was
achieved
r It is appropriate, also, to note that even most language clauses have a
decided economic value-as in the case of the no-strike and arbitration
clauses sought by Respondent-though incalculable in advance
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
increase because they had selected the Union as their
bargaining representative and were at the time engaged
in collective bargaining with Respondent . It is indicated
that other employees who would normally receive
annual wage increases as a result of Respondent's wage
survey , did receive such increases in 1980 . According to
Respondent 's Exhibit 18, the power room department
was the only group which did not receive a wage in-
crease in 1980.
3. Denial of other benefits to unit employees
In May 1980 Respondent announced new or improved
pension and profit -sharing, disability , and medical and
health insurance plans for its employees who regularly
received such benefits offered to employees, including
nonrepresented employees and employees represented by
labor unions who by custom to collective-bargaining
agreement normally received benefits under plans offered
by Respondent , but did not include union-represented
employees whose bargaining agreements provided for
benefits other than those offered by Respondent 's plans. 8
Power room employees in the appropriate unit were not
granted , or given , an opportunity to participate in these
new benefits in June and July, when they were made ef-
fective for other eligible employees , because the unit em-
ployees' bargaining representative was at the time en-
gaged in negotiations with Respondent in which the
Union was seeking different health, welfare , and pension
benefits.
During the negotiations , the Union protested Respond-
ent's failure and refusal to grant to the unit employees an
annual wage increase , as had been the custom , and also
the increase benefits offered and granted to other em-
ployees . When Respondent contended that such action
on their part might be considered unfair labor practices,
the Union offered to assure Respondent in writing that it
would not object to Respondent 's granting such benefits.
When Respondent contended that granting such benefits
during bargaining might be inappropriate, in one meeting
the Federal mediator suggested that granting such wage
increases and benefits could be taken into account in set-
tling the final economic package in the bargaining con-
tract . Respondent , however, did not grant unit employ-
ees these benefits or wage increases before January 5,
1981.
4. Refusal to sign bargaining agreement
a. Respondent 's final proposal
At the time the employees in the power room went on
strike on December 1 , Respondent had submitted a final
contract proposal to the Union, reading , insofar as signif-
icant to this issue , as follows:
9 Respondent announced that effective June 1, it would (a) pay 100
percent of the cost of disability benefits under its Mutual Benefit Associa-
tion Program, without cost to the employees, (b) pay 80 percent of the
cost of coverage for eligible dependents under Blue Cross and Prudential
medical care plans, previously fully paid by the employees, and (c) ex-
tended vacation benefits to eligible part-time employees, and announced
that effective July 1, it would make available to its employees a new and
advantageous pension and profit-sharing plan (the Carter Hawley Hale
program)
11/28/80
Final Economic Proposal to Local # 115
Effective upon ratification
1. Master Contract
To include all language previously agreed upon
and the following clauses as previously dis-
cussed:9
(a) No strike clause
(b) Final and binding arbitration
(c) Management rights clause
(d) Dues checkoff with indemnification
2. Pay scale adjustment
(a) Eighty-five cents (. 85) to be added to the
rate of engineers.
(b) Seventy cents (.70) to be added to the rate
of helpers.
3. Wages-3 year agreement
(a)
(b)
(c)
(d)
4. Medical Coverage
Employees to be covered by the John Wanamak-
er Medical Benefit Program , currently in effect.
5 Pension Plan
Employees to be covered by the Carter Hawley
Hale retirement program of pension and profit
sharing.
9. Extended illness or disability benefits
Employees to be covered by the John Wanamaker
Mutual Benefit Association
14. All other union demands are rejected
b. The meetings on January 2, 1981
(1) The first meeting
During the strike of the power room employees, the
strikers extended their picketing from Respondent 's store
to its warehouse . Members of Teamsters Local 169,
which had a bargaining agreement with Respondent cov-
ering warehouse operations, and members of Teamsters
Local 107 , employed by a carrier that regularly served
Respondent 's warehouse, honored the picket line, caus-
ing loss of income for those members . Thus , in addition
to pressure on Respondent , pressure began to build, from
Locals 169 and 107, on the Union to settle the strike. In
furtherance of this purpose , the president of Local 169,
Frank Keane , requested Respondent and the Union to
meet at Local 169's offices on January 2, 1981. (All ref-
9 As John Reardon, one of Respondent's negotiators , testified, it was
difficult even for Respondent to ascertain the language referred to here
It appears that Respondent finally relied on language in an earlier propos-
al made to the Union at the sixth meeting on April 4 (R Exh 3 )
JOHN WANAMAKER PHILADELPHIA 1043
erences to January are in 1981 .) At this meeting, howev-
er, when the Union sought to negotiate on the open con-
tract items, Respondent insisted that it was present only
to have the Union accept Respondent's final offer previ-
ously made. Both Gray, the Union's spokesman, and
Meehan, Respondent's spokesman, agree that during the
ensuing discussion the Union did accept Respondent's
previous final offer, as referred to above.
At this meeting , the Union submitted contract clauses
to Respondent setting forth a grievance procedure which
included binding arbitration and waiving the right to
strike which, as noted above, had been obstacles to
agreement previously. The Union also stated agreement
with Respondent's language on management rights. The
General Counsel's witnesses who attended this meeting
testified that Respondent's negotiators agreed to the
clauses proposed by the Union. Meehan and Reardon
deny that they did so, asserting that they had come to
the meeting without their notes and papers and could not
check the language,10 though Meehan's testimony shows
that he felt he had achieved Respondent's purpose in se-
curing the Union's commitment to these principles. Both
sides agree that Respondent's negotiators stated that the
meeting would have to recess while Respondent' s nego-
tiators left to obtain their notes and papers . The parties
agreed to resume later on that date at the Union's offices.
The General Counsel's witnesses also asserted, and Re-
spondent denied, that in leaving Local 169's hall they ad-
vised their host, the president of the local, that they had
come to an agreement . I credit the General Counsel's
witnesses. As found above, the parties had actually
agreed to a contract basically on terms outlined by Re-
spondent. Meehan, indeed, testified that during the recess
that day he informed "the company people at Wanamak-
ers" that "the Union had accepted our final economic
proposal and that they had accepted no-strike, final and
binding arbitration and the other terms that were listed
on the proposal." It is unlikely that the parties would
have left the offices of Local 169 without advising
Keane, the president of the local, who had brought them
together, of the status of their negotiations.
Meehan's testimony, set forth above, strongly suggests
that Respondent's negotiators had, in fact, indicated ap-
proval of the Union's proposals regarding binding arbi-
tration and no-strike, which it now disputes. Indeed,
after careful consideration of the record as a whole, as
well as my evaluation of the credibility of the witnesses,
I credit the testimony of the General Counsel's witnesses
that Respondent agreed on this occasion with the
Union's written proposals for a grievance procedure, no-
strike and binding arbitration clauses for their bargaining
agreement . It is noted that not only did Gray, the
Union's chief negotiator, testify to that effect, but that
(as revealed on cross-examination) Gray's notes made at
the time support that testimony. Although Respondent's
notes (transcribed after the meetings on January 2) state
10 Respondent 's action in coming to so important a negotiating session
without its notes and papers is difficult to comprehend It would be
normal practice to bring such notes to every negotiating session , but par-
ticularly to a meeting in which it was expected to arrive at an agreement
settling a strike Respondent does not contend that this happened through
inadvertence
that Respondent said merely that the proposed language
"looked like" the language previously discussed, but
would have to be checked out, Meehan and Reardon
now testify that the Union's proposal was substantially
different from the proposals previously presented. But, as
detailed below, many of the differences Respondent as-
serts that it discovered on checking its notes, when the
meeting reconvened, are not referred to in Respondent's
notes of the meeting.
(2) The evening meeting
The negotiations resumed at the Union's offices and
hall about 6 p.m. that evening. Although there is consid-
erable conflict between the two sides about the details of
this meeting, I find that it is clear that: (1) On the arrival
of Meehan and Reardon at the meeting place, or shortly
thereafter, Gray gave them a complete contract proposal
(including the grievance procedure, no-strike, and bind-
ing arbitration clauses agreed to that afternoon), (2)
Meehan and Reardon had ample opportunity to carefully
study the agreement, (3) Respondent indicated some dis-
satisfaction with the Union's document (though how sub-
stantial this dissatisfaction may have been is an issue), (4)
the Union made changes in the document as a result of
Respondent's criticism, (5) at some point, while specify-
ing its criticisms of the Union's contract proposal, Re-
spondent asked when the Union was going to withdraw
its charge in Case 4-CA- 11357, and (6) when the Union
said it would not withdraw those charges, Respondent
terminated the discussion, stating that there was no
agreement and that it would not sign the bargaining con-
tract.
First, concerning the asserted areas of dissatisfaction
with the Union's contract proposal: Gray, whose testi-
mony was supported by Business Agent Joseph Yeoman,
asserts that when Meehan and Reardon completed their
study of the agreement tendered by the Union, Meehan
pointed out a number of errors, which Gray character-
ized as "clerical mistakes," that Gray immediately cor-
rected these matters on a copy of the contract, a memo-
randum of understanding and a side letter, which togeth-
er constituted the bargaining agreement , and that
Meehan stated that that was "everything," that "every-
thing is correct." Reference to the documents which are
in the record reveal that Gray did, as he testified, make a
number of inked-in corrections on the three documents
comprising the agreement, each of which he initialed.
Respondent's testimony about these incidents is not so
clear. Meehan testified that he found the following prob-
lems with the contract clauses proposed by the Union:
(1) the omission of time limits in the grievance proce-
dure, (2) lack of limitation on powers of the arbitrator,
(3) failure to provide that the Respondent might seek ar-
bitration, (4) the no-strike clause was different from that
which the Respondent wanted, (5) there was no limita-
tion of the type of dispute or grievance under the griev-
ance clause. However, when queried about what he said
to Gray about those matters when the parties resumed
again , Meehan testified, in response to a leading question,
that "the episode [is] accurately recorded [in Respond-
ent's] minutes." However, of the nine items which the
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
minutes state that Meehan "pointed out" to Gray as "un-
clear" in the Union's contract proposal, only one corre-
sponds with those enumerated by Meehan in his testimo-
ny 11
Reardon, on the other hand, asserted that Meehan and
he found the following alleged discrepancies: (1) a differ-
ence in the funeral leave clause, (2) a failure to provide
for scheduling of personal holidays by mutual agreement,
and (3) omission of time limits on arbitration,12 as well
as some typographical errors. As to which of these as-
serted discrepancies Respondent complained about to
Gray Reardon clearly recalled only two, an objection to
the funeral clause and an incorrect date; he does not
recall any mention of Respondent's asserted objections to
the grievance procedure or arbitration clauses . In fact,
Reardon's testimony is to the effect that meaningful dis-
cussion of Respondent's objections to the proposed
agreement was interrupted by Respondent's query about
when the Union was going to withdraw its pending
charges against Respondent and the Union's refusal to
withdraw the charges, at which point Respondent termi-
nated the discussions.
As has been noted, Gray did conform the tendered
agreement as Respondent made its objections. These cor-
rections meet all the objections noted in Respondent's
minutes but three: (1) time limits in the grievance proce-
dure or limits on the authority or the arbitrator, (2) an
asserted understanding that personal holidays would be
taken when mutually convenient, and (3) asserted under-
standing that casual employees work the day before and
the day after a paid holiday.
Based on the evidence set forth, and the record as a
whole, I find, in accordance with Gray's testimony, that
during their meeting on the evening of January 2, Gray
physically conformed the Union's contract proposal to
meet every objection to the agreement voiced by Re-
spondent. If Respondent had any other objections-and I
do not find that they had any-they were not expressed
to the Union at that meeting. The record is convincing,
as has been found, that the Union was under consider-
able pressure to come to an agreement with Respondent
on a bargaining agreement and to that end had already
accepted Respondent's final offer for a contract made
before the strike began. I believe it unlikely that the
Union would have rejected any reasonable contract
change at that stage of the negotiations and, in fact, did
i I Respondent's minutes state that Respondent had the following ob-
jections to the Union 's draft agreement ( 1) art I had the wrong date, (2)
the word "more" should be removed before "harmonious cooperation",
(3) art. VI omitted language in the first sentence , (4) art IX did not con-
tam any time limits or limits on the power of the arbitrator , (5) art XVII
omitted the Respondent 's scheduling practice, (6) art XIX was improper-
ly designated "vacations", (7) art XIX omitted " the understanding that
personal holidays would be scheduled when mutually convenient", (8)
art XX omitted "the understanding that casual employees work the
scheduled day before and after the holiday , and (9) art XXIII incorrectly
included "any other close friend or relative " As further noted herein-
after, Gray made inked-m corrections on the Union's draft proposal for
all but three of these
12 The testimony on this last one is confusing in the record Also, al-
though Reardon said he was sure that there had been previous negotia-
tions on the funeral leave clause , he appeared hazy on whether here had
been negotiations on time limits for arbitration , and he could recall no
poor negotiations on the personal leave topic
not oppose any change in the agreement suggested by
Respondent at this meeting.
(3) Alleged failure of agreement
Respondent contends that notwithstanding apparent
agreement between the parties during the first meeting
on January 2, there was no real meeting of minds on a
bargaining contract, inasmuch as, in Respondent's opin-
ion, the Union reneged on an important element of the
contract during the evening meeting . Respondent points
out that throughout the negotiations it had resisted any
requests for retroactivity in the terms of the agreement,
and that its final offer, which the Union accepted in the
first meeting , specifically provided that the contract was
to be effective on ratification. Respondent contends that
when the Union refused to withdraw its unfair labor
practice charge in the then pending Case 4-CA-11357
(on which a complaint had been issued alleging, inter
alia, that Respondent had violated the Act by failing and
refusing to grant unit employees certain benefits and
wage raises), union spokesman Gray said he was taking
that position because he expected to get retroactivity on
those benefits and wages in that manner . Gray denied
that he told Meehan and Reardon that he was refusing to
drop the charges because that was "the way [the Union
was] going to get . . . retroactivity," asserting that it
was Respondent's representative Reardon who stated
that agreement that there should be no retroactivity in
the bargaining contract meant dismissal of the unfair
labor practice charges. I credit Gray. The record as a
whole, and the testimony of Meehan and Reardon in par-
ticular, makes it clear that it was Respondent which
raised the issue of withdrawing the charges and that it
was they who coupled the issue of retroactivity with it.
Thus Reardon testified that in the course of specifying
Respondent's desired corrections in the proposed con-
tract, it was Meehan who "mentioned" to the Union
"whether they were going to withdraw the unfair labor
practices," and that in the discussion which ensured
when the Union refused to withdraw the charges, Re-
spondent took the position that "we felt . .. our eco-
nomic offer was predicated on . . . no retroactivity. We
felt the union was reneging . . . on the agreement that
morning on economics.. . . The discussion became
rather heated at the point, and we did not go furhter into
the language differences from there." Meehan also testi-
fied that it was he who asked Gray about withdrawal of
the charges, "because retroactivity was no longer an
issue" and, in Meehan's words, "there was no reason for
the charges."
Respondent finally terminated the discussion by insist-
ing that there was no agreement and refusing to sign the
corrected bargaining contract, as requested by the
Union, because the Union refused to withdraw the unfair
labor practice charges.1$ The Union insisted that the
19 To the extent Meehan's testimony is to the contrary, it is not cred-
ited Respondent 's brief concedes that at this meeting Respondent "did
state to the Union that it had no contract unless the unfair labor practice
charges were withdrawn " (Br 63 )
JOHN WANAMAKER PHILADELPHIA 1045
parties had agreed to the contract and that it would be
submitted to the unit employees for ratification.
The bargaining agreement, as corrected on the evening
of January 2, was ratified by the employees on Saturday,
January 3. On January 5 Gray hand delivered the three
documents comprising the bargaining agreement to Re-
spondent and again requested that they be signed.
Meehan again refused for the reasons which he had
given on January 2, i.e., that Respondent considered that
there was no agreement because the Union would not
withdraw the unfair labor practice charges. 14
5. Reinstatement of the strikers i 5
On January 5, a number of the striking employees
sought reinstatement at their normal place of work. After
a considerable delay, they were finally met by Reardon
who informed them there that they would be reinstated,
but that there was no bargaining contract in effect, and
that there would not be a contract "unless the Union
drops the unfair labor charges against [Respondent]." 16
Reardon apparently also explained that Respondent was
taking this position because it felt the Union was seeking,
by this device, to secure retroactivity whereas the agree-
ment provided for no retroactivity. Reardon further told
the strikers that Respondent would put into effect the
wages and benefits which Respondent had offered at the
last bargaining session. It appears that Respondent did
grant or offer the returning strikers the benefits granted
other employees in June and July, and the wage in-
creases in Respondent's final offer.
C. Alleged Interrogation of Employees
1. On May 26 power room employee Charles McHugh
had a conversation with Maintenance Foreman Floyd
Wilmuth about the Union, in an annex to Wilmuth's
office, in which it is alleged that Wilmuth unlawfully in-
terrogated McHugh about his union sympathies. i 7
14 Meehan testified that he told Gray that Respondent would not sign
for the reasons given "the night before " Meehan testified that , in addi-
tion , he refused to sign because there "were areas not agreed to
items that we haven't finished " Reardon's testimony was to the same
effect Gray testified that on this occasion , Meehan said, "We cannot sign
that until you drop the unfair labor practices " To the extent that there is
a conflict here, I credit Gray
15 The findings in this section are based on testimony of employees
Samuel Marrone and Edward J Ryan , as well as the testimony of Vice
President Reardon To the extent any of their testimony is inconsistent
with the findings made , that testimony is not credited
19 Two of Respondent 's witnesses, clerical employees who were re-
sponsible for administering Respondent's wage and benefit policies, testi-
fled on cross-examination that they were told by management in early
January that an agreement had been reached between the Union and Re-
spondent , ending the strike In one case this was qualified to the effect
that an agreement had been reached "except for the fact that the unfair
labor practices were not withdrawn by the Union " To the extent that
this testimony was controverted by Respondent witness Reardon, I do
not credit Reardon
17 There is some dispute whether Wilmuth asked McHugh to come to
his office for a chat or McHugh "stopped by" on his own initiative Wil-
muth 's office is several floors above McHugh 's workplace (though
McHugh occasionally has reason to visit that floor). There is no showing
that McHugh had any specific reason to talk to Wilmuth on this occa-
sion , and it does appear that Wilmuth wanted to talk privately with
McHugh , taking him into the annex to avoid interruptions in the fore-
man's office Based on these factors , I find that Wdmuth asked McHugh
to come to his office on this occasion
Wilmuth, previously an electrician, who continued to
do some electrical work, was promoted to maintenance
foreman on March 10. He appears to be a low level su-
pervisor, though it is agreed that he is a supervisor
within the meaning of the Act, McHugh had known Wil-
muth ever since McHugh began working at Respond-
ent's store and was friendly with him in the same manner
that he was friendly with other workers at the store. The
two had very little contact after working hours It ap-
pears that McHugh was accustomed to referring to Wil-
muth by his first name. So far as I can determine, it does
not appear that Wilmuth is a supervisor over the power
room employees.
McHugh testified that on May 26, Wilmuth took him
into a side room where coffee was being made and they
both had coffee. There, McHugh states, in the course of
conversation, Wilmuth asked him "what were the
chances of voting [out] the Union," and when McHugh
replied that he did not want to do that, Wilmuth re-
sponded "to the effect" that "he didn't think the Union
could really help us, but if that was what we wanted, he
wished us success."1s
Wilmuth denied that on this occasion he asked what
were the chances of voting the Union out or that he said
that the employees would be better off sticking with the
store and voting the Union out. He admits that he did
ask McHugh and another employee who was present at
the time, "What the hell they wanted to join the Union
for," because Respondent had already taken care of their
greatest grievances.
After careful consideration of the problem , I am con-
vinced the McHugh's recollection of what was said is
closer to the facts than that of Wilmuth. I believe that
Wilmuth made more than the one statement that he now
recalls. Even his testimony shows hostility to the Union,
indicates interrogation about why the employees wanted
the Union, and points out that the employees did not
need the Union because Respondent had taken care of
their problems (with the implication that this would be
the case in the future). I therefore credit McHugh.
2. On June 10, John H. Brynes, vice president of oper-
ations of Respondent since the previous November, met
with McHugh and power employee Sam Marrone in the
power room office. 1 e The meeting was initiated by
McHugh so that the two employees could ask Byrnes'
help in their frustration over the way the bargaining ne-
gotiations were stalled. As McHugh put it, he thought
Byrnes might be able to "get the store to talk." Howev-
er, neither McHugh nor Marrone expressed any dissatis-
faction with the Union.
Marrone recalled that Byrnes stressed that, notwith-
standing their dissatisfaction with the bargaining, the em-
ployees should adopt a positive attitude toward their
work, and wanted to know why the employees voted the
18 At another point , McHugh asserted that Wilmuth said "something
like he felt we would be better off sticking with the store and voting the
Union out "
19 There is some dispute about the events by which McHugh got
Byrnes to agree to meet in the power room office There is no reason to
set forth the details Concerning the sequence of events involved , I credit
Byrnes
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union in, because it was the Respondent's preference to
deal directly with the employees and not through a third
party. Both Marrone and McHugh testified that they
told Byrnes of the power room employees' complaints.
Both assert that Byrnes asked what were the chances of
voting the Union out, to which they responded that this
was not likely because of Respondent 's action in failing
to give the power room employees benefits and wage
raises being given other employees . According to Mar-
rone , Byrnes replied that Respondent 's actions were due
to the fact that negotiations were in progress with the
Union . Byrnes denies that he asked the employees what
caused them to "go union," or why they chose the
Union, or what were the chances of voting the Union
out. He recalled that the issue of the benefits withheld
from the power room was raised and that he stated this
was due to the negotiations . He also recalled that the
employees expressed dissatisfaction with the length of
the negotiations, but did not state any dissatisfaction with
the Union. He stated that he told the employees that
though he could deal with the employees with or with-
out a union, his preference was to work without a union.
According to Byrnes, the employees asked several times
what they could do about the long time the negotiations
were taking. He says that he advised them that he could
not give them any "recommendation " while the negotia-
tions were continuing, but finally said that "if they were
of a mind" at the end of the "initial year," they could
vote to decertify the Union.
As with the incident involving Wilmuth , discussed im-
mediately above, I have considerable concern about the
accuracy of the accounts of the witnesses to this episode.
Byrnes testified to a strong preference of working with
employees without a union . I am sure that he made this
plain to the employees, as Marron said. It is likely that
in the course of this Byrnes indicated a desire to learn
why the employees voted for the Union, as McHugh and
Marrone stated. Byrnes admits that he advised the em-
ployees that at the end of the year they could vote the
Union out. I find it difficult to understand why it would
occur to him to give this advice in these circumstances
in response to the employees' desire to know what they
could do, or how he could help in getting the negotia-
tions moving.20 Nevertheless, I do not believe that
Byrnes asked the employees what were the chances of
voting the Union out. In the circumstances, I believe he
actually said what he testified he told the employees, and
that it was their interpretation , quite understandable, that
he wanted to know if the employees would decertify the
Union, and that they replied in the negative for the rea-
sons they asserted.
II. ANALYSIS AND CONCLUSIONS
A. This matter involves, for the most part, several as-
pects of Respondent's conduct, alleged to be violated of
the Act, which occurred in a period from March 14,
so I do not accept Byrnes' explanation that he assumed that the em-
ployees ' diaaatisfaction with the negotiations constituted dissatisfaction
with the Union . The evidence is that the employees were frustrated be-
cause of Respondent 's tactics in bargaining, not because of any action of
the Union
1980, through January 5, 1981, during collective bargain-
ing with the Union for a contract covering a unit of
power room employees.
1. From early May through late November 1980, Re-
spondent refused to discuss wages and other significant
economic provisions to be included in the bargaining
agreement, though repeatedly requested by the Union to
do so, unless the Union first agreed to all outstanding
noneconomic clauses , including waiver of the right to
strike and binding third-party arbitration.
It has clearly been established by decisions of the
Board and the courts that such conduct constitutes bad-
faith bargaining in violation of Section 8(a)(5)and (1) of
the Act. See, e.g., South Shore Hospital, 245 NLRB 848
(1979), enfd. 630 F.2d 40 (1st Cir. 1980) (and cases cited).
As the court in that case noted, such "piecemeal bargain-
ing" "postponing to the end of negotiations discussion of
wages and other fundamental economic benefits reduced
flexibility and narrowed range of possible compromise
with the result of rigidly and unreasonably fragmenting
negotiations ." (630 F.2d at 43). Nor is such conduct ex-
cused , as those decisions hold, because Respondent
adopted it as an advantageous bargaining strategy.2 i
Respondent, however, further argues that to the extent
that bargaining was thwarted by its refusal to bargain on
economic issues, the Union contributed to the situation in
that it "never discussed the company proposals [on bind-
ing arbitration and no-strike] in substance, nor did it
make any counterproposals on binding arbitration and
no-strike clauses" (Br. 50), and that, in any event, any re-
fusal to bargain that occurred was "cured" by Respond-
ent's bargaining on economic items on and after Novem-
ber 20. (Br. 52-53.)
However, the record shows that the Union, though re-
jecting Respondent 's insistence on binding arbitration
and no-strike clauses as contrary to the Union 's general
practice and principles, did explain the basis for its oppo-
sition to those clauses at some length , responded to Re-
spondent's questions and further indicated that it was not
inflexible on the subject, but considered those clauses ne-
gotiable. The Union finally, of course, under pressure,
agreed on those subjects . The Union also made at least
one counterproposal on these subjects during the negoti-
ations (R. Exh. 23), which, though unsatisfactory to Re-
spondent, did offer a concession on one point which had
been in dispute previously (baraining the union business
agent into the grievance procedure at an early stage).
Whether Respondent 's belated turnabout in agreeing
to discuss economic issues would , in the absence of other
evidence of bad faith, "cure" its previous obstruction of
the bargaining process need not be considered here inas-
much as Respondent thereafter engaged in further acts of
bad faith which prevented consummation of a collective-
bargaining agreement . It is noted , moreover, that in
South Shore Hospital, supra, a violation of the Act was
found , though the respondent in that case also subse-
quently agreed to bargain on economics. Further, here,
Respondent 's prior obstruction tactics were not eliminat-
21 It has previously been held that the parties did not have a binding
agreement to follow such a procedure
JOHN WANAMAKER PHILADELPHIA
ed by its subsequent bargaining on economics. Thus, as
discussed below, Respondent took advantage of the long
delay attributable in large part to its refusal to discuss ec-
onomics to deny the unit employees retroactive wages
and benefits, putting them at a disadvantage in respect to
the time they might have received these benefits, absent
the delay.
2. On January 2 and 5, 1981, and thereafter, Respond-
ent refused to execute a a written bargaining agreement
with the Union, which the General Counsel contends,
and Respondent denies , was completely agreed to.
It is not disputed that during an afternoon bargaining
session on January 2, the Union agreed to Respondent's
last proposal for a bargaining contract and thereafter
drew up a complete written agreement which was sub-
mitted to Respondent for signature in an evening meet-
ing on that same day. When Respondent complained of
certain inaccuracies in the document, the Union immedi-
ately physically corrected the contract before it was sub-
mitted for execution. Respondent refused to sign the
agreement at that time (and thereafter) because the
Union refused to withdraw its charges against Respond-
ent in Case 4-CA-11357, upon which a complaint had
been issued by the General Counsel. 22 Because no other
reason was given the Union for refusing to sign the
agreement, and no complaint was made about any other
inaccuracy in the proffered agreement , and on consider-
ation of all the evidence in this matter, I find that the
contract offered for signature was fully agreed to.
It is, of course, well-settled law that the failure of a
party obligated to bargain for a collective-bargaining
agreement to sign such contract , once agreed on, consti-
tutes bad-faith bargaining in violation of Section 8(a)(5)
and (1) of the Act See K Mart Corp., 238 NLRB 1173,
1179 (1978) It is further a violation of these sections of
the Act to refuse to sign an agreed-on bargaining agree-
ment, on request, unless unfair labor practices are with-
drawn. See, e.g., Patrick & Co., 248 NLRB 390 (1980).
Respondent, however, contends that in this case the
Union, by refusing to withdraw the charges against Re-
spondent , was thereby reneging on an important element
in the bargaining agreement, which justified Respond-
ent's refusal to execute the document. Respondent's rea-
soning appears to be as follows: When the Union, on
January 2, agreed to Respondent's final contract propos-
al offered to the Union on November 28, 1980 (which in-
cluded a wage adjustment and the health, welfare, and
pension benefits withheld from the unit employees in
June), the Union agreed that the terms of the agreement
would not be retroactive. However, inasmuch as the
charge in Case 4-CA-11357 and the complaint based on
it allege that Respondent violated the Act by withhold-
ing those benefits in June , and because the Board might
order retroactive compensation as a remedy for the with-
held benefits (if a violation were found), Respondent
22 Respondent contends that there were other inaccuracies in the wnt-
ten agreement tendered for signature which had not been corrected and
which were a further reason for refusing to sign the agreement As dis-
cussed previously , I find that Respondent never advised the Union of
these asserted additional inaccuracies and, on the basis of the record as a
whole , find that Respondent was not motivated by these matters in refus-
ing to sign the agreement
1047
contends that the Union's refusal to withdraw the charge
is inconsistent with Respondent's conception of what the
agreement between the parties was. In essence, Respond-
ent contends that there was no contract because there
was no meeting of the minds on this term of the con-
tract.
Respondent 's argument is ingenious , but, I conclude,
on analysis, erroneous . There is no claim that the provi-
sions of the agreement itself are ambiguous , incomplete,
or, as such, misunderstood (that is, both parties under-
stood that the contract, as such, was not to be retroac-
tive). Nor is it claimed that the Union agreed, as part of
the bargaining for the agreement, to withdraw the
charge against Respondent. Nor is it shown that the
Union was engaged in duplicitous conduct in regard to
the charge against Respondent when it agreed to Re-
spondent's final proposal (that is, evidence will not sup-
port a finding that the Union deliberately or consciously
misled Respondent). Thus, there was no mutual failure of
agreement or misconduct on the part of the Union which
might justify Respondent in claiming that there was no
contract . See, e .g., Skyline Corp. v. NLRB, 613 F.2d
1328, 1334 (5th Cir. 1980). What Respondent here con-
tends is that it assumed that the Union would withdraw
the charge, an assumption never communicated to the
Union with which it was bargaining . This is not suffi-
cient to defeat an agreement otherwise complete and
agreed on.
Respondent's argument also misapprehends the Board's
procedure and practices in the handling of charges. Once
a charge is filed, the General Counsel proceeds in the
matter in the public interest, not in vindication of private
rights. There is no automatic right to withdraw a charge,
and permission to withdraw may be denied when the
Board or the General Counsel, as the case may be, con-
siders it inconsistent with the purposes of the Act. See
Alberici-Fruin-Colnon, 226 NLRB 1315 (1976). If Re-
spondent's position here has validity-i.e., that further
proceedings on the charge invalidates the parties' agree-
ment-then the agreement is likewise defeated if the
General Counsel insists on proceeding, or if the Board
should issue the order which the Respondent is seeking
to avoid. This would impermissibly impede access to the
Board's processes and interfere with the implementation
of the policies of the Act. Cf. Minnie E. Nash v. Florida
Industrial Commission, 389 U.S. 235 (1967).
3. Respondent, about June 1980, suspended its custom-
ary annual review of the wages of the power room em-
ployees in the unit and did not grant wage increases to
those employees, notwithstanding its past practice of
granting annual increases about that time of year to some
or all employees in that unit because the Union, which
the unit employees had recently selected as their bargain-
ing representative , was engaged in bargaining with Re-
spondent for terms and conditions of their employment.
About the same time, Respondent failed and refused to
grant the power room employees certain health, welfare,
and pension benefits which they would have received if
they had not selected the Union as their bargaining re-
presentive.
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent asserts several reasons in support of its de-
cision not to grant unit employees these benefits . First, it
asserts that Respondent would have risked violating the
Act if it had unilaterally granted these benefits to the
employees after they had chosen the Union to represent
them . In a variation of this point , Respondent argues that
because the annual wage increases "are informed by a
large measure of discretion ," they particularly should not
have been "unilaterally" granted (Br. p. 72). As indicated
previously, I have doubts about the amount of unstruc-
tured discretion involved in determining such raises. In
any event, I am satisfied that Respondent could have
readily determined the correct amount of such raises in
June, either by itself or in consultation with the Union,
as it says it did in November (Br. 71-72, 75).
Second, Respondent states that it did not grant these
benefits (including the wage increase ) because the parties
were in negotiations, and further claims that it did bar-
gain with the Union concerning these benefits.
Last, Respondent argues that there is no showing that
its actions were discriminatory or motivated by antiunion
animus.
Respondent 's asserted "risk" in acting unilaterally in
this matter is more apparent then real . The law requires
only that it consult with the Union in good faith prior to
granting such benefits. See Armstrong Cork Co. v. NLRB,
211 F.2d 843, 847 (5th Cir. 1954) ("Good faith compli-
ance with Section 8(a)(5) and (1) of the Act presupposes
that an employer will not alter existing conditions of em-
ployment without first consulting the exclusive bargain-
ing representative selected by his employees and granting
it an opportunity to negotiate on any proposed
changes.") On this record there is little doubt that the
Union would have agreed that benefits should not be
withheld from unit employees which would otherwise
have been granted to them it they had not chosen the
Union as their representative . As Respondent 's minutes
show , the Union did, in fact, request Respondent to
grant these benefits and offered written assurances that
no charges would be filed (see R. Exh. 21, 19th and 20th
meetings in July 1980). Respondent , nevertheless , contin-
ued to refuse to grant these benefits , and or to these or
other economic issues until November 20.
Though Respondent asserts that it bargained with the
Union on this subject , there is no question but that Re-
spondent delayed discussion of these benefits until late
November at which time Respondent then offered the
benefits which had been withheld in June , but without
retroactivity.
In South Shore Hospital, supra, involving an almost
identical situation, the Board held that although an em-
ployer might legitimately withhold economic benefits
from union -represented employees engaged in collective
bargaining for conditions of employment absent bad-faith
bargaining or other indicia of unlawful motive, such con-
duct occurring in the context of an unfair labor practice
setting calls for a different result . There the Board held
that employer 's refusal to grant union-represented em-
ployees certain economic benefits, although refusing to
discuss those benefits in collective bargaining, was an in-
tegral part of the employer's "unlawful course of con-
duct" which included refusing to grant retroactivity
when the employer finally agreed to give those benefits
to those employees. See South Shore Hospital, supra, 630
F.2d at 45. In those circumstances, the Board held, af-
firming the administrative law judge, that the employer's
conduct was "motivated in substantial part by a desire to
punish the unit employees because they had chosen
Union representation," and constituted "discriminatory
conduct [which] had a natural and foreseeable effect on
chilling employee desires for Union representation," in
violation of Section 8(a)(3) and (1) of the Act.
For the reasons stated, and on the record as a whole, I
find that Respondent violated Section 8(a)(5) and (1) and
Section 8(d) of the Act by refusing, during bargaining
for an agreement , to negotiate on economic matters
unless and until noneconomic clauses had been agreed
on; by unilaterally, without consulting or providing the
Union with an opportunity to bargain thereon, refusing
to grant or offer benefits to unit employees in a context
of bad-faith bargaining : by refusing to sign and abide by
a fully agreed-on collective-bargaining agreement; and
by refusing to sign such an agreement unless and until
the Union withdrew pending charges against Respond-
ent; and further , that Respondent violated Section 8(aX3)
and (1) by discriminatorily suspending its annual wage
review for, and granting of wage increases to, unit em-
ployees; and by discriminatorily failing and refusing to
grant or offer benefits under its medical disability and
pension and profit-sharing programs which were offered
or granted to other employees.
B. The General Counsel contends that in two inci-
dents, one occurring in May and another in June, Re-
spondent unlawfully interrogated unit employees about
their union sympathies . In the first of these instances, re-
cently promoted Maintenance Foreman Wilmuth, during
the course of a conversation with employee McHugh,
asked McHugh what were the chances of the Union
being voted out, and when McHugh indicated that he
was opposed to that, Wilmuth replied that he did not
think the Union could help the employees, but he wished
them success.
In the second instance , Byrnes, Respondent's vice
president for operations, in the course of a conversation
with McHugh and employee Marrone, initiated by
McHugh, concerning the employees ' frustration with the
negotiations for a bargaining agreement, told the employ-
ees that, if they so desired, at the end of a year's period,
they could vote the Union out.
I am not persuaded that either of these instances con-
stitute coercive interrogation in violation if the Act. Nei-
ther indicated that the employer was seeking information
to either induce employees to leave the Union or for re-
prisal against the employees for chosing the Union as
their representative. If considered against Respondent's
subsequent conduct in withholding benefits and an
annual increase from the unit employees , these comments
do have a somewhat sinister implication , but I do not be-
lieve this is sufficient to constitute these statements as co-
ercive interrogation in violation of the Act.
These comments do indicate a hostility toward the
Union that I would not have expected in view of Re-
spondent's background. However, the record indicated
JOHN WANAMAKER PHILADELPHIA
that during this period Respondent became a part of an
out-of-town chain with management personnel who may
have a different philosophy dealing with labor organiza-
tions , but this , in itself, is not violative of the Act.
For the reasons stated , I shall recommend dismissal of
the allegations of the complaint that the Respondent ille-
gally interrogated the employees in violation of the Act.
C. I further find, for reasons discussed above, and on
the entire record that Respondent violated Section
8(a)(1) of the Act by advising employees that it would
not sign a bargaining agreement with the Union unless
and until the Union withdrew charges filed against Re-
spondent with the Board.
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning
of Section 2(2) of the Act, engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. At all times material to this proceeding , the Union
has been and continues to be the exclusive bargaining
representative , within the meaning of Section 9(a) of the
Act, of the employees in the following unit, which is an
appropriate unit within the meaning of Section 9(b) of
the Act:
All stationary engineers and their helpers employed
by John Wanamaker Philadelphia at its store locat-
ed at 1300 Market Street, Philadelphia, Pennsylva-
nia; but excluding all office clerical employees,
guards and supervisors as defined in the Act.
Respondent engaged in bad-faith bargaining in viola-
tion of Section 8(a)(5) and (1) and Section 8(d) of the
Act by the following acts and conduct : ( 1) refusing
during negotiations for a bargaining agreement to bar-
gain on economic issues from about May 9, until Novem-
ber 20 , unless and until agreement was reached on non-
economic issues ; (2) refusing to sign and abide by a col-
lective-bargaining agreement fully agreed to with the
Union on January 2 , 1981; (3) refusing to sign and abide
by the aforesaid bargaining agreement unless and until
the Union withdrew charges filed with the Board against
Respondent , (4) suspending its customary wage review
for employees in the appropriate unit ("unit employees")
about June 1980, and failing and refusing to grant cus-
tomary wage increases to unit employees in 1980 without
consultation and bargaining with the Union.
5. Respondent discriminated against unit employees in
their hire , tenure , and terms and conditions of employ-
ment , discouraging membership in the Union by suspend-
ing in 1980 , the customary annual wage review for, and
by refusing to consider and grant wage increases to, unit
employees and by withholding in 1980 , medical , disabil-
ity, and pension and profit -sharing program benefits from
unit employees because they chose the Union as their
bargaining representative.
6. Respondent , by advising unit employees that it
would not sign a collective-bargaining agreement with
the Union unless and until the Union withdrew unfair
1049
labor practice charges against Respondent , violated Sec-
tion 8(a)(1) of the Act.
7. The unfair labor practices set forth above affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
8. Respondent did not interrogate employees in viola-
tion of the Act, as alleged in the complaint.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of the Act, it will be recom-
mended that it be ordered to cease and desist therefrom
and take certain affirmative action designed to effectuate
the policies of the Act.
It having been found that Respondent failed and re-
fused to grant employees in the appropriate unit an
annual wage increase in June 1980, in violation of the
Act, it will be recommended that Respondent be ordered
to make those employees whole for any loss of wages
they may have suffered by reason of Respondent's dis-
crimination against them from the date in June 1980
when they were discriminated against to about January
5, 1981.
The date in June 1980 on which the unit employees
would have received a wage increase is not shown in
this record . If not agreed on, it may be determined in a
compliance hearing.
Respondent here asserts that even absent its unfair
labor practices , not all unit employees would have re-
ceived a wage increase , and that it is now uncertain what
wage increase or increases , if any, would have been
given . However , having created this situation by its own
unfair labor practices , it may not rely on its uncertainties,
which it has created , to avoid redressing those unfair
labor practices . The record indicates , as is implicit in Re-
spondent 's arguments on retroactivity noted previously,
that Respondent 's contract offer of November 28, 1980,
accepted by the Union on January 2 , 1981, contains all
the benefits which the unit employees would have re-
ceived if they had not chosen the Union as their repre-
sentative but without retroactivity to June 1980. That
offer provides for a wage scale adjustment of 85 cents
per hour for engineers and 70 cents for helpers, for all
such employees in the unit . Therefore, I find that these
are the wage raises which would have been granted em-
ployees in the appropriate unit absent Respondent's
unfair labor practices.
It having been found that Respondent failed and re-
fused since about June 1, 1980, until January 5 , 1981, (1)
to grant or offer unit employees the benefits for illness
and disability contained in Respondent 's Mutual Benefit
Association program, and (2) to grant and offer to unit
employees the benefits for medical coverage as contained
in Respondent 's Medical Benefits program (both as de-
scribed in Respondent 's offer to the Union of November
28, 1980; see also R. Exh . 9); and it having been found
that Respondent failed and refused since about July 1,
1980, until January 5 , 1981, to grant or offer unit em-
ployees coverage under the Carter Hawley Hale retire-
ment program of pension and profit sharing (as described
in Respondent's offer to the Union of November 28,
1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1980; see also R. Exh . 8), it will be recommended that
Respondent be ordered to make these employees whole
for any losses they may have suffered by reason of Re-
spondent's failure and refusal to offer and grant these
benefits to them.
All payments to make employees whole for losses suf-
fered by reason of Respondent 's withholding wage in-
creases and benefits , as set forth above , shall include in-
terest thereon as provided in Florida Steel Corp., 231
NLRB 651 (1977). See generally Isis Plumbing Co., 138
NLRB 716 (1962).
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed23
ORDER
The Respondent, John Wanamaker Philadelphia,
Philadelphia , Pennsylvania, its officers , agents, succes-
sors , and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively in good
faith with Teamsters Local 115 , a/w International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America , or any other labor organization,
which is the exclusive bargaining agent of its employees
in an appropriate bargaining unit by:
(1) Refusing , on request , to bargain with the Union or
any other representative of its employees in an appropri-
ate unit over wages or other economic terms and condi-
tions of employment unless and until noneconomic
clauses desired by Respondent are agreed.
(2) Unilaterally altering terms and conditions of em-
ployment without consulting with the Union or any
other representative of its employees in an appropriate
unit affording such representative a reasonable opportu-
nity to bargain on such proposed changes.
(3) Refusing, on request, to sign and abide by a collec-
tive-bargaining agreement fully agreed to with such
labor organization.
(4) Refusing, on request, to sign and abide by a collec-
tive-bargaining agreement unless and until unfair labor
practice charges are withdrawn.
(b) Discouraging membership in the Union, or any
other labor organization , by discriminatorily suspending
wage reviews, or withholding wage increases, or other
benefits from employees because they join, support, or
22 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings, conclusions , and recommended
Order shall , as provided in Sec 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
select a labor organization as their bargaining representa-
tive.
(c) Advising employees that it will not sign or abide
by a collective -bargaining agreement unless and until
unfair labor practices are withdrawn.
(d) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of rights
protected by the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request , bargain collectively in good faith with
the Union , as the exclusive bargaining representative of
its employees in an appropriate unit with respect to rates
of pay, wages , hours of work, and other terms and con-
ditions of employment and, if an understanding is
reached , embody such understanding in a signed agree-
ment.
(b) On request by the Union, sign and abide by the
collective-bargaining agreement agreed to by Respond-
ent and the Union on January 2, 1981.
(c) Make whole the employees in the unit found ap-
propriate in the section above entitled "Conclusions of
Law" for any losses they may have suffered by reasons
of the discrimination against them , as provided in the
remedy section.
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(e) Post at its Phildelphia, Pennsylvania facility, copies
of the attached notice marked "Appendix."24 Copies of
the notice, on forms provided by the Regional Director
for Region 4, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER RECOMMENDED that the complaint be
dismissed regarding any alleged violations of the Act not
found in this decision.
24 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "