Queen Anne Record Sales, Inc.

National Labor Relations Board - Board Decisions

Dec 14, 1984

273 N.L.R.B. 671 (N.L.R.B. 1984)

TOWER BOOKS 671
Queen Anne Record Sales, Inc. d/b/a Tower Books
and Retail Store Employees Union Local 1001,
chartered by United Food and Commercial
Workers International _Union, AFL-CIO. Cases
19-CA-15570 and 19-CA-15724
14 December 1984
- DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 4 November 1983 Administrative Law Judge
James M. Kennedy issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed a brief in sup-
port of the administrative law judge's decision.
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, 1 and
conclusions and to adopt the recommended Order
as modified. •
We agree with the judge's findings regarding the
Respondent's failure to provide relevant material to
the Union and its refusal to meet to negotiate a col-
lective-bargaining agreement. With regard to the
Respondent's failure to supply relevant informa-
tion, we note the following. On 3 March 1983 the
union president wrote to the Respondent's counsel
Robert Scolnik requesting, inter alia, wage and
hour data for the 12 bargaining unit employees em-
ployed by the Respondent at its Seattle, Washing-
ton store. The information was requested by the
Union under its newly acquired obligation to nego-
tiate a bargaining agreement for these employees.
In his first letter of response, Scolnik indicated he
had referred the request to company headquarters.
In his second letter he made no reference to the in-
formation request. In his third letter, mailed a
month after the initial request for information,
Scolnik offered to make the information available
for inspection and copying at its payroll headquar-
ters in Sacramento, California. Alternatively he
suggested that the Respondent would compile the
information and make copies of documents "at the
Union's expense for clerical and administrative time
and copying time expenses." This offer by the Re-
spondent to' make copies was conditioned on the
Union paying copying and administrative expenses
in advance, yet the cost of these expenses was not
Although we agree with the judge's finding that the Respondent at-
tempted to construct artificial barriers around the bargaining process, in
reaching our conclusion we disavow -reliance on his determination that
the Respondent conditioned bargaining on satisfaction of a lawsuit
disclosed. The Union was therefore expected to
commit itself in advance to paying an undisclosed
amount for copying and administrative fees. If the
Respondent were serious -about sending the infor-
mation, at the very least it would have said what
the charges would be per page for copying and
what the administrative fees would be based on an
hourly rate so that the Union would have some ob-
jective basis on which to render a decision.
Our dissenting colleague 'cites United Aircraft
Corp. 2 for the proposition that the union is obligat-
ed to pay for the expenses related to compiling the
request information. The law is riot so clearcut as
the dissent would make it. Although in the cited
case the union was obligated to pay, the informa-
tion request there was extensive and the expenses
amounted to over $50,000. Here, the Union re-
quested information such as the names, addresses,
and job classifications of only 12 employees, and
their wakes, hours, and other terms and conditions
of employment.' The information sought ,was' basic
and encompassed matters which - employers are re-
quired to provide to enable unions to bargain intel-
ligently and to fulfill their obligations as the select-
ed representative of the employer's employees.3
The cost and burden , of compliance ordinarily will
not justify an initial, categorical refusal to supply
relevant data. 4 "If there are substantial costs in-
volved in compiling the information in , the precise
form at the intervals requested by the Union, the
parties must bargain in good faith as to who shall
bear such costs . . . ."5 The Respondent expressed
no willingness to bargain about costs. Additionally,
the onus is on the Respondent to show that 'pro-
duction of the data would be unduly burdensome.
There is nothing in the record to substantiate such
a claim. On the contrary, it can be inferred from
the Respondent's failure to produce evidence of
substantial cost in response to the Union's claim
that the cost Would be "de minimis," that the costs
for compiling basic information on only 12 employ-
ees was indeed negligible. Mindful that each case
2 192 NLRB 382 (1971), en fd in relevant part 534 F 2d 422 (2d Or
1975) In American Telephone & Telegraph Go, 250 NLRB 47 (1980),
enfd sub nom Communications, Workers Local 1051 v NLRB, 644 F 2d
923 (1st Cir 1981), another case cited by the dissent for the proposition
that photocopying costs are to be borne by the union, it is significant to
note that the union itself requested to pay the photocopying costs which
It had calculated would cost 10 cents . a page Rather than sanction an ar-
bitrary figure, the Board ordered that the parties bargain over the reason-
able cost
3 See, e g, Union Carbide Corp, 197 NLRB 717 (1972)
4 See Electrical Workers IUE v NLRB, 648 F 2d 18 at 26 (D C
1980)
5 Food Employers Council, 197 NLRB 651 , (1972) Contrary to the as-
sertion of our dissenting colleague, this case indicates that there is indeed
a sound basis in the law for the Union's request that the Respondent dem-
onstrate a burdensome financial Impact before the Union would discuss
costs
273 NLRB No. 96
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of what constitutes good-faith bargaining must turn
on its, particular facts, it is clear that the Respond-
ent's refusal to supply the information—while nei-
ther justifying its request for costs nor offering to
bargain over the matter—was unreasonable. A lack
of good faith can be inferred therefrom.-
The Respondent's underlying motive was to
forestall sending. the requested information and
thereby forestall actual negotiation until it knew
what the bargaining chips were going to be. A re-
curring theme throughout the. Respondent's corre-
spondence was its request that the Union submit its
initial contract proposals in advance. In his fourth
letter to the Union, the Respondent's counsel de-
clared, „
If . . . the -Union is really desirous of bar-
gaining, then I suggest you put the cards face
up on the table and send me your written con-
tract proposals so that the Company can see
what is really involved here—in terms , of the
real sUbstance—and see what the prospects
are. If we are in the same ballpark, some tele-
phone conversations, some exchanges of con-
tract language, some correspondence, etc. will
most likely, be sufficient to wrap it up. Why
play games? Why not get down to the guts of
the matter9 But why not get it out into
the open? Put the real substantive issues on the
table, instead of horsing around. If we can
make a "deal" '(in the honorable sense of the
word, of course), we can do it by phone in
short order, provided that we get started.
This letter speaks. for itself as to the Respond-
ent's recalcitrant -reluctance to send the requested
information. Thus,. the judge was warranted in
finding that the Respondent's insistence on advance
payment for the _ requested information was a
"phony issue."
, The second issue is whether the Respondent un-
lawfully re-fused to meet with the Union to negoti-
ate _a collective-bargaining agreement. The judge's
rationale for discounting the Respondent's good
faith is supported by the record. Since the affected
employees and Union were located in Seattle,
Washington, the Respondent's headquarters office
and wage data were located , in Sacramento, Cali-
fornia, and the Respondent's attorney wa g located
in San Francisco, California, it is clear that some
travel might be involved in order to' negotiate ef-
fectively a collective-bargaining agreement. By the
mere fact that the Respondent suggested meeting
halfway between Seattle and Sacramento (or San
Francisco) at some undesignated location ,entirely
unrelated to any of the , parties it has in essence
conceded that negotiations could in fact take place
away from headquarters or the Respondent's coun-
sel office. As noted by the dissent, "the record con-
tains no evidence as to the extent to which Re-
spondent's headquarters otherwise controls or deals
with business matters arising within its Seattle
store." If there were any overriding reason compel-
ling negotiations to take place in Sacramento, the
Respondent surely would have come forward with
such a justification in its correspondence. Its failure
to do so calls into question its intransigent , insist-
ence in refusing to consider negotiations in Seattle.
Under these circumstances, the Respondent refused
to make a reasonable and sincere effort to meet and
confer with the certified representative of its em-
ployees. Applicable -here is the court's observation
in NLRB v. P. Lorillard Co:6
• The collective bargaining features of the stat-
ute_ cannot be made effective unless employer
and employees cooperate in the give and take
of personal conferences . . . the employer
must make his representatives available for
conferences at the plant where the controversy is
in progress, and at reasonable times and places,
so that personnel negotiations are practicable.
[Emphasis added.]
The Board also has found that emploj Ters have
violated_ Section- 8(a)(1) and '(5) when an employer
has refused to meet near the locale of the repre-
sented employees. 7 The conditioning of the com-
mencement of contract discussions on the Union's
Willingness to meet at a place over 700 miles from
the store and employees involved does not meet
the statutory test of good-faith bargaining.8
Finally, we disagree with the judge's finding that
the Respondent violated the Act by making pay
adjustments in May 1983 without negotiating with
the Union. The Respondent had a prior practice of
granting regular periodic automatic and merit in-
creases. In November 1982, the Union sent the Re-
spondent a letter specifically requesting that it con-
tinue its past practice of wage increases and Christ-
mas bonuses, and promising not to file unfair labor
practice charges.
6 117 F 2d 921, 924 (6th Cir 1941) In the Lorillard case, the Respond-
ent insisted on bargaining in New York although the plant involved was
located in Middletown, Ohio
See, e g, Sempera Pacific, 237 NLRB 478 (1978), N C Coastal Motor
Lines, 219 NLRB 1009, 1013 (1975)
8 Westinghduse Pacific Coast Brake Co. 89 NLRB 145 (1950), Mid.
America Transportation Co. 141 NLRB 326 (1963)
Contrary to the assertion made by the 'dissent, we do not, by any
means, advocate a per se approach to deciding where bargaining should
take place Nor does Semi-writ Pacific, supra, stand for such a proposition
We have considered all the relevant circumstances beanng on the issue in
this case and have concluded that all the factors, taken as a whole, lead
to the conclusion that the Respondent was not bargaining in good faith,
but was merely using this Issue as a stratagem to delay or avoid bargain-
ing
TOWER BOOKS 673
In good-faith reliance on this request and repre-
sentation, the Respondent granted May wage, in-
creases. Although the certification -was , issued in
February 1983 .therehy activating, under normal
circumstances, the obligation to bargain about
wage adjustments, the. Union here specifically 're-
quested that the Respondent continue its past:wage
Practices. This , request :was open ended, with nO
time limits specified, implying that the Respondent
would be free fo make these 'adjustments until" a
collective-bargaining agreement Was' ,reached.
Under these * circumstanceS we find that the Re-
spondent's unilateral action, 'taken' in reliance on
the Union's representation, was lawful ànd mit vio-
lative of Section 8(a)(5) of the Act.'
, ORDER.
The National Labor Relations Board adopts the
recommended Order of thi : adrninistrative law
judge as modified below' and orders 'that the Re-
spondent; Queen 'Anne Rebord Sales, Inc. d/b/a
Tower Books, Seattle, Washington, its officers,
agents, successors; and assigns; shall take the action
set forth in the Order as modified:,
1. Delete paragaph 1(c) :and- reletter the remain-
ing paragraph. . :• -
2. Substitute the attached notice for that of the
administrative law judge. 9 , . .
MEMBER HUNTER, diSSeilting. .
I agree- with my colleagues' conclusion that the
Respondent did not 'violate_ Secti6n 8(a)(5) and (1.)
of the Act by making pay adjustiiients' in May 1983
without negotiating 'With the Union. However, I
cannot agree to adopt the judge's ConClusion that
the Respondent violated the' Act by failing to pro-
vide information to the Union and refusingto meet
to negotiate a collective-bargaining -agreement. , In
my judgment, the evidence favors a'cOnclusion that
the Respondent "did not act 'unlawfully in its deal-
ings with the Uni6n. -
The Respondent operates approximately 50
stores in various States'and has its headquarters in
Sacramento, California. On 7. February 1983 1 the
Union was certified by the Board as the exclusive
representative of the employees located at- the. Re-
spondent's Mercer Street, Seattle, Washington
store. On 3 March , the,Union, also located in Seat-
tle, wrote to the Respondent's counsel in San Fran-
cisco, California, requesting certain information as
to unit employees. -This, information included ,em-
,
ployees' names, job : classifications, dates of hire,
-rates of pay, dates and amounts of lost wage- in-
creases, average number of hours worked during
the previous 3-month period, and health insurance
and, retirement benefits. On 9 March the Respond-
ent's counsel informed the .Union that its request
was being_ transmitted, to the Respondent's head-
quarters „where both the Respondent's labor rela-
tions offices and the requested information were lo-
cated: On 15 March the Union acknowledged this
response and requested that the data be provided
no later than 24 March.
On 21 March the Respondent's counsel informed
the Union that - the Respondent considered the
Board's certification to be invalid and that the Re-
spondent was considering whether to "appeal" the
certification by refusing to bargain. Noting that its
negotiators were located in Sacramento, the Re-
spondent's counsel referred to the expenses in-
volved in .either challenging the Board's certifica-
tion -through the Federal courts or bargaining in
Seattle, Washington. He informed the Union that,
as , a ;matter of good,faith-comproMise, the Re-
spondent would forgo a legal battle over the certi-
fication if a mutually satisfactory agreement could
be worked out as to the time, place, and extent of
negotiations. Toward that end, the Respondent's
counsel, proposed that negotiations be held either in
Sacramento _or San' Francisco. He further noted
,since a great 'deal of the negotiating -could be ac-
complished by the exchange of written proposals,
revisions, -and drafts, and in view of the geographi-
cal separation of the principals, face-to-face meet-
ings _on ,a ,,monthly basis seemed appropriate and
reasonable. _The Respondent's counsel stated that
he would, give . full consideration to any counter-
proposals the Union would offer and suggested
that- the Union might propose alternating negotia-
tions between Seattle ,and Sacramento (or San
Francisco), or conducting negotiations at a conven-
, ient place halfway betWeen these cities. The letter
invited the Union to contact the Respondent if it
were. interested in working out a mutually agree-
able system of conducting negotiations in lieu of
-further litigation. -
On . 8 April the Union replied to the Respond-
ent's _letter, saying that the Union did not have the
resources to meet ,with the Respondent in Califor-
nia and that the Respondent's proposal appeared to
be an effort to frustrate bargaining. The Union pro-
posed that the parties meeting "marathon" negotia-
tions and offered to , pick up the Respondent's nego-
tiators at the .Seattle airport. The Union also re-
newed its request -fox:information.
• On the same date the Union prepared the forego-
ing response, the Respondent's counsel wrote to
, •
9 If this Order is enforced by a Judgment of a United States Court of
Appeals, 'the words in the riiitice reading "Posted - by Order of the Na-
tional Labor Relations Board" 'shall 'read "Posted PursUant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board
All dates are in 1983 except as indicated • " -
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union offering to provide the information re-
quested in the Union's 3 March letter by making it
available for inspection and copying at its payroll
and labor relations office in Sacramento. He added
that, as a gesture of good faith and, if the Union
wished, the Respondent would ' compile the infor-
mation and make copies of relevant documents and
records but that the Union would be' required to
pay for the copying and administrative expenses in
advance. The Respondent also noted that it had
not yet received a response from the Union as to
its 21 March letter and that the Respondent was
anxious to move ahead on its decision regarding
negotiations and needed the Union's position in a
timely fashion.
On 15 April the Union replied to the Respond-
ent's 8 April letter. The Union contended that as
the monetary impact of providing the information
was "de minimis," the administrative costs should
be borne by the Respondent. The Union further
contended that it had a fundamental right to the in-
formation regardless of cost, but that if the Re-
spondent would provide "clear and convincing evi-
dence" that the request would impose substantial fi-
nancial impact, the Union would consider sharing
the expenses.
On 23 April the Respondent wrote the Union re-
jecting its 8 April counterproposal as to the meet-
ing place for negotiations and the concept of "mar-
athon" negotiations. The Respondent proposed
monthly meetings starting at 9:30 a.m., with a 2-
hour caucus for lunch and review ' of' documents,
and concluding at 5 p.m. The Respondent offered
to consider further proposals from the Union on
these matters and suggested that the Union submit
a contract proposal by mail which the parties could
negotiate telephonically or by mail.
On 12 May the Union wrote to the Respondent
expressing astonishment that the Respondent would
not come to Seattle to negotiate. The Respondent
replied on 17 May reaffirming its previous positions
and emphasizing once more that it was not insisting
on any particular proposal and had tried to 'remain
as flexible as possible in its approach to negOtia-
dons. On 20 May the Union replied indicating . that
the Respondent's positions as to providing informa-
tion and meeting in California were totally inapprO-
priate. The Union said that negotiations by tele-
phone were "terribly inconvenient" and that the
Respondent should meet in Seattle as a show of
good faith.
On these facts the judge concluded that the Re-
spondent acted in bad faith in failing to provide in-
formation to the Union and in refusing to agree to
negotiate in Seattle, Washington. In so doing, the
judge concluded that the information requested by
the Union and not provided by the Respondent
was relevant and necessary' to the Union's role as
bargaining agent. The judge concluded that the
Respondent's insistence on advance payment before
supplying the information was a "phony issue,"
saying "whether or not the Union is obligated to
pay for such information, Respondent never ad-
vised the Union how much_ the billing would be,
despite a suggestion from a Union official that it
would consider paying for the information if [Re-
spondent's attorney] would do so." -In addition, the
judge concluded that the Respondent had unlaw-
fully conditioned bargaining by agreeing to forgo a
test of the Board's certification of the Union if the
Union would meet in California, and had ap-
proached bargaining in bad faith by arbitrarily re-
fusing to meet in Seattle. In the latter regard, the
judge noted that the Respondent's suggestion that
the parties meet at a location . between Sacramento
and Seattle was "preposterous," and revealed its
lack of sincerity,, as did the Respondent's sugges-
tion that the ,Union provide it with an initial writ-
ten contract proposal while .at the same time refus-
ing to supply information needed for bargaining.
Because I believe that the judge misapplied both
the facts and the governing law in reaching his
conclusions, I would reverse the judge and dismiss
the complaint in its entirety.
At the outset, I would note that the record here
contains no , evidence or suggestion that the Re-
spondent delegated bargaining authority or misrep-
resented the location of its labor relations functions
or information in an effort to impede bargaining.
Thus, we are faced with a situation where ,preexist-
ing circumstances have created a geographical sep-
aration between the principals involved in collec-
tive bargaining and the information relevant to the
bargaining process. Moreover, the record contains
no evidence as to the extent to which the Respond-
ent's headquarters otherwise controls or deals with
business matters arising within its- Seattle store, or
the nature of communications between the two.
While the judge found it unnecessary to decide
whether the Union was obligated to pay for the in-
formation requested by it, the law is clear that the
Union was so obligated. In United Aircraft Corp.,
192 NLRB 382 (1971), enfd. in relevant part 534
F.2d 422 (2d Cir. 1975), the Board examined a con-
tention that the employer, who was willing to
allow the union access to its records, nonetheless
violated Section 8(a)(5) of the Act by refusing to
prepare -at its own cost certain reports and informa-
tion requested by the union.- In rejecting the con-
tention the Board said:
TOWER BOOKS 675
An employer, if it is -to fulfill its bargaining
obligation under Section 8(a)(5), is required to
furnish relevant information requested by the
employee • representative. But it does not
follow that the union is entitled to such infor-
illation in the exact fOrm or on the exact terms
requested. 'It is sufficient if the information is
made available in a manner not so burdensome
or time-consuming as to impede the process' of
bargaining." "Good-faith bargaining requires
only that such information be made available
at a reasonable time and in a reasonable place
and with an opportunity for the Union to
.. make a copy of such information if it so de-
sires." These , are the terms upon which Re-
spondent generally - offered to make available
the information requested by the Unions. Re-
spondent was not required to duplicate or con-
form its ,records, at its own cost, for the con-
venience of the Unions. [192 NLRB at 389,
footnotes and citations omitted.]
, In addition, in Amêrican Telephone & Telegraph
Co., 250 NLRB 47 (1980), enfd sub nom. Commu-
nications Workers Local' 1051 v. NLRB, 644 F.2d
923 (1st Cir. 1981)„ the Board was faced with the
issue of whether the employer was required to fur-
nish photocopies of documents -requested by the
union. While , agreeing with the judge that absent
unusual circumstances the employer was so re-
quired; the Board stated (250 NLRB at 47 fn. 2):
r; We, further note that the Administrative
Law Judge ordered that Respondent furnish
the photocopies to the, Union "at a rate of no
-, more than 10 cents a photocopy page." We
shall modify this portion of the recommended
Order to order Respondent to provide, or
allow the Union to make, the photocopies, and
to bargain overthe reasonable additional costs
to the Employer, for. furnishing the ,requested
• information. The reasonable additional costs
shall 'be assumed by the Union. [Emphasis
added.]
•The foregoing cases make clear that an employer
is not required to absorb the expenses of compiling
and photocopying information and will not be
found to violate Section "8(a)(5) so long as it acts
reasonably in attempting to make relevant informa-
tion available to the Union. In the instant case the
judge concluded that the Respondent acted in bad
faith because it failed to advise the Union how
much the billing would be, despite the . Union's sug-
gestion that it would consider paying for the infor-
mation if the Respondent did so. The judge's con-
clusion misstates the facts. The 'record reveals that
the Respondent offered to make its records avail-
able to the Union in Sacramento, or to compile and
forward the informatiOn if 'the Union would agree
to pay the costs. The Union did not indicate a will-
ingness to consider the Respondent's offer, but re-
plied instead that it had a fundamental right to the
information and that 'the Respondent should bear
the costs of ,compiling the information unless it
could demonstrate by "clear and convincing evi-
dence" that the Compilation process involved "sub-
stantial and/or burdensome financial impact,"
whereupon the . Union would consider sharing the
expenses. Under no construction of these facts can
the Union be Said to have indicated a willingness to
consider paying the costs if informed of such by
the Respondent. Moreover, there is no basis in the
law for , the Union, t'o' require that the Respondent
demonstrate burdensome financial impact by clear
and convincing evidence before the' Union would
discuss costs. 2 Accordingly, I would find that it
was the Union's intransigence and not -a lack of
good faith which caned ` the Respondent to refuse
to supply the 'information, to the Union and I
would therefore dismiss this allegation of the com-
plaint.
Similarly, the judge felied on an erroneous con-
struction of the facts to conclude that the Respond-
ent refused to meet and negotiate with the Union.
The complaint in the instant case alleged that the
Respondent violated Section 8(a)(5) and (1) of the
Act and that since 9. March 1963 it has refused to
meet and bargain with the Union near the locale of
2 Food Employers Council, 197 NLRB 651 (1972), does not support the
majority's contrary conclusion In' that ease, the employer flatly refused
to provide information requested by, the union The Board found a viola-
tion but noted that the employer had at an earlier time furnished some of
the requested information to the union, albeit in a form other than desired
by the union The Board further noted the unsupported assertion of each
party that an onerous burden would be placed (in it should the Board
require production of the requested information in a form desired by the
adverse party Unable to niake a judgment on this Issue, the Board or-
dered the parties to bargain "if there are substantial costs involved in
compiling the information in the precise form and at the intervals re-
quested by the Union" The Board added, however, "if no agreement can
be reached, the Union is entitled in any event to access to records from
which It can reasonably-compile the information" (citations omitted) Id
at 651 Thus, even in the remedial posture of the case, the Board declined
to require that the employer bear the costs of producing information, in-
cluding that categorically denied the union The existing law clearly per-
mits an employer to unilaterally shift to the union the financial burden of
compiling and reproducing information by allowing access to records
from which the requeited information may be gathered Cincinnati Steel
Castings Co, 86 NLRB 592, 593 (1949) Where circumstances are such
that access to an employer's . records will not reasonably satisfy the
union's needs, an employer may be required to compile or photocopy in-
formaiiOn, but the union must bear the reason'able'costs involved Ameri-
can Telephone & Telegraph Co. supra, United Aircraft Corp, supra In the
Instant case, the Respondent offered the Union access to its records, lo-
cated in Sacramento, and offered to compile and forward information to
the Union, if it preferred, on payment of costs There is no indication that
the Respondent's offer contemplated other than reasonable costs in this
regard Assuming that the Union's needs could not reasonably be met by
access to records, located in Sacramento, it was obliged to' bear the rea-
sonable costs of the Respondent in compiling the information and for-
warding it to Seattle
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the unit. In adopting the judge's conclusion, my
colleagues expressly disavow reliance on his deter-
mination that "Respondent conditioned bargaining
on satisfaction of a lawsuit." Presumably, this is a
reference to the judge's conclusion that the Re-
spondent conditioned a waiver of its right to con-
test the Board's certification of the Union, on the
Union's agreement to meet in California. I agree
with my colleagues that the Respondent did not
condition bargaining on such a waiver, but I dis-
agree that the evidence otherwise supports the
finding of a violation.
In its communications to the Union, the Re-
spondent made it clear that it was concerned with
the high costs associated with conducting extensive
face-to-face negotiations in Seattle, when the Re-
spondent's negotiators were located in Sacramento.
It proposed that all negotiation meetings be con-
ducted in Sacramento and added:
The Company will appreciate your response in
the same (good faith)' spirit and will give full
and serious consideration to any and all coun-
terproposals you wish to make. For example,
you may feel that the location of negotiation
meetings should be alternated, one time in Sac-
• ramento (or San Francisco), and the next time
in Seattle. Or; you may feel that a better solu-
tion would be to meet at some convenient
place halfway in between Seattle and Sacra-
mento (or San Francisco). Or you may have
some other proposal or proposals.
In addition, the Respondent informed the Union
of its belief that the parties could reasonably con-
duct negotiations through a combination of written
exchanges and face-to-face sessions:
[T]he Company would like to know what pro-
posals you wish to make concerning the fre-
quency of meetings and the time periods for
each meeting. Since a great deal can be ac-
complished by the submission of written con-
tract proposals, counterproposals, revisions,
drafts, etc., and in view of the distances in-
volved, meetings once a month seem appropri-
ate and reasonable as a general plan, subject to
change by mutual agreement depending on the
particular circumstances.
Likewise, in view of the distances, scheduling
each meeting for 9 a.m. to 5 p.m. (with an ade-
quate lunch period for conferring, preparation,
etc.) seems appropriate and reasonable, subject,
again, to change by mutual ,agreement depend-
ing on particular circumstances.
At a later point, the Respondent urged the Union
to begin the negotiation process by submitting a
contract proposal by mail, which could have been
further discussed by the parties telephonically, or
by mail. At the same time, the Respondent indicat-
ed a willingness to consider any other proposals
the Union would advance. For its part, the Union
adhered to its position that the Respondent should
agree to negotiate in Seattle, and that its refusal to
supply the information requested by the Union
made submission of bargaining proposals impossi-
ble.
The judge found that the Respondent's only con-
tention in regard , to the site for negotiations was
that it Would be "inconvenient" to . negotiate in Se-
attle because the Company's records were in Sacra-
mento. In addition, the judge found that the Re-
spondent's suggested - counterproposal of negotiat-
ing in a location between 'Seattle and Sacramento
was "preposterous," and that the Respondent' disin-
genuously contended that the Union's failure to
provide an initial proposal prevented negotiations
from beginning inasmuch as the Respondent re-
fused to provide the =Union with information neces-
sary to con-struction of such proposal.
Without regard to whether the Union's refusal to
submit an initial contract proposal is of significance
in this case, for the reasons indicated above; I
would" not find that the Respondent unlawfully re-
fused to provide information to the Union and do
not believe the judge could rely on this allegation
in support 'of his conelusion here. Further, the
judge's rationale for otherwise discounting the Re-
spondent's good faith is not supported by the
record. As the facts above reveal, the Respondent
immediately and clearly expressed its concerns
over the financial impact of extended negotiations
in Seattle and indicated its belief that great
progress could be made through a procedure com-
bining mail and face-to-face negotiations. In addi-
tion, there is absolutely no evidence on the record
to support the judge's conclusion thai the Respond-
ent's suggestion of possible negotiations at a loca-
tion between Seattle and Sacramento was not a
viable alternative' in terms of convenience or cost.
Rather, it appears a literal attempt to meet the
Unidn halfway. Finally, there is no evidence that
the Respondent failed or refused to promptly and
directly address itself to the Union's communica-
tions, or engaged in any other conduct which
would support a finding that the Respondent re-
fused to bargain in good faith: In these circum-
stances, I find that the RespOndent could lawfully
refuse to agree to the Union's proposal, as Section
8(d) of the Act does not require that it concede its
TOWER BOOKS 677
position in negotiations. 3 As the Respondent was at
all -times willing to negotiate with the Union, I
would dismiss this allegation of the complaint as
well. -
3 I agree that an employer may violate Sec 8(a)(5) and (1) of the Act
by refusing to bargain near the locale of the represented employees
However, unlike my colleagues, I am not willing to adopt the per se ap-
proach found in Semperit Pacific, 237 NLRB 478 (1978) Whether an em-
ployer's conduct constitutes a refusal to bargain in good faith is a matter
which requires consideration of all relevant circumstances bearing on the
issue Rhodes-Holland Chevrolet Co, 146 NLRB' 1304 (1964) In addition,
Sec 8(d) of the Act allows the parties discretion to seek the most advan-
tageous bargain while also prohibiting the Board from requiring conces-
sions in negotiations Thus, the parties should be given considerable
leeway in reasonably pursuing bargaining arrangements favorable to their
respective interests In the instant case, the Respondent had a reasonable
basis for pursuing negotiations in locations other than Seattle Over a rel-
atively brief period, the Respondent sought the Union's agreement to ne-
gotiate in Sacramento, or to alternate negotiations between Sacramento
and Seattle The Respondent also 'ekpresied its willingness to consider
other arrangements proposed by the Union and offered alternatives for
the Union's consideration While the Union rejected the Respondent's
proposals, it was not prepared to begin negotiations until the Respondent
provided information requested by the Union, and I have found above
that the Respondent did not violate the Act by refusing to provide the
- information Under the circumstances, I do not find that the Respondent
unlawfully refused to bargain near the locale of the represented employ-
ees
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 has 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
the Union certified as the exclusive representative
Of employees at our store located on Mercer Street
in Seattle, Washington.
WE WILL NOT refuse to bargain with that Union,
Retail Store Employees Local 1001, chartered by
United Food and Commercial Workers Internation-
al ‘Union, AFL-CIO by refusing to supply it with
wage and personnel data relevant to collective bar-
gaining.
WE WILL NOT refuse to meet with the Union in
or near Seattle to engage in good-faith collective
bargaining in the appropriate unit.
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 immediately , supply to the Union the
, wage and personnel data sought by it on 3 March
1983.
WE WILL, on request, bargain with the Union, as
the exclusive representative of all employees in the
bargaining unit described below, with respect to
rates of pay, wages, hours, and other terms and
conditions of employment and, if an understanding
is reached, embody such understanding in a signed
agreement. The bargaining unit is:
All employees employed at the Respondent's
facility located at 20 Mercer Street, Seattle,
Washington, excluding all office clerical em-
ployees, deposit clerks, professional employees,
guards, and supervisors as defined in the Act.
QUEEN ANNE , RECORD SALES, INC.
, D/B/A TOWER BOOKS'
DECISION
STATEMENT OF THE CASE
JAMES M. KENNEDY, Administrative Law Judge. On
June 6, 1983, the Acting Regional Director for the Na-
tional Labor Relations Board for Region 19 issued a con-
solidated complaint accusing Queene Anne Record Sales,
Inc. d/b/a Tower Books (Respondent) of having violat-
ed Section 8(a)(1) and (5) of the National Labor Rela-
tions Act (the Act). It is based on charges filed on April
4 and May 19, 1983, by Retail Store Employees Union
Local 1001, chartered by United Food and Commercial
Workers International Union, AFL-CIO (the Union).
Although an answer was filed to the consolidated com-
plaint, the parties on August 17-19 executed a stipulation
of facts in lieu of hearing in which they agreed that there
are no disputed issues of fact, waived a hearing, and fur-
ther_ stipulated that the case be decided on the stipula-
tions of fact as supplemented by the formal papers.
Thereafter the General Counsel and Respondent filed
briefs which have been carefully considered.
Issues
Whether Respondent violated Section 8(a)(5) and (1)
of the Act by: (1) failing to provide the Union with ma-
terial relevant to collective bargaining; (2) refusing to
meet with union representatives for the purpose of nego-
tiating a collective-bargaining contract; and (3) unilater-
ally, and without notice to the Union, making certain
pay rate changes or whether the Union waived its right
to complain of such changes.
Pursuant to the stipulation I make the following
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS, OF FACT
I. THE BUSINESS OF THE EMPLOYER
Respondent. is a wholly-owned subsidiary of MTS, In-
corporated, a California corporation headquartered in
Sacramento, California, and from which it operates ap-
proximately 50 Stores in California, Washington, Oregon,
Nevada, Arizona, Hawaii, and New York, During the
past 12 months, a representative period, Respondent's
gross sales of goods and services exceeded $500,000 and
during the same period it purchased and caused to be
transferred and delivered to its facilities within the State
of Washington goods and materials valued in excess ,of
$50,000 from sources outside the State. The parties
agree, therefore, that Respondent is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION 'INVOLVED
The parties stipulate, and I find, that the Union is and
has been at all times material, a. labor organization Within
the meaning of Section.2(5) of the Act. -
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The store in question is located on Mercer Street in
Seattle, Washington: On January 15, 1982, the Board
conducted a representation election among the employ-
ees at that store. Due to challenged ballots' the results of
the election were indeterminative. Thereafter Respond-
ent filed objections to the Union's conduct affecting the
outcome of the election. Later a hearing' was held on
February 11, 1982, to resolve challenged ballots and ob-
jections. The hearing officer issued a report on March 5
and on July 16 the Board chreded the opening of one 'of
the ballots. Respondent filed a motion for reconsider-
ation which was dented on September 9. The challenged
ballot was 'opened on September 20_ and a 'revised tally
issued that day showing that 'five employees had voted
for union representation with four against. Respondent
then filed an 'additional objection to the conduct of the
election with respect to the marking of the opened
ballot. The Regional Director issued a report recOm-
mending that the objection be overruled; Respondent
again excepted. Finally, on February 7, 1983, the Board
issued- its decision and certification of representative in
the agreed-upon unit.'
B. The Refusal to Supply Information
On March 3, 1983, approximately 3 weeks after the
certification of representative was issued, the Union's
president, Steve Gouras, wrote Respondent's counsel,
Robert J. Scolnik,. advising him.of the Union's desire to
negotiate a labor agreement. He asked for the following
information so that he could' prepare for negotiations:
The name of each bargaining unit employee, his or her
1 Although Respondent - argues to me that it was -an error for 'the
Board to have issued the certification;' I am bound by the .136ard's action
and do not consider any attack on It
job classification,, hire date, rate of , pay, date, and
amounts of last wage increase, average, number of hours
worked in the last 3 months and copies of "health insur-
ance or retirement benefits available to your bargaining
unit employees."
On March 9, Respondent's counsel stated that all of
the information which the Union sought was located in
Respondent's Sacramento headquarters and that he was
transmitting the request to the appropriate officials there.
On March 15, another union official, Grievance Director
Fred Rosenberry, wrote Scolnik acknowledging the re-
sponse and asking that the material be provided no later
than March 24.
By letter of March 21, Scolnik advised the Union of
his client's.position: Although he raised a number of mat-
ters which will be discussed in the section of this deci-
sion dealing with the refusal to' meet, section III, C,
infra, he did not transmit any of the information which
the Union sought. By letter dated April 8 Rosenberry
again sought the material. Also by letter dated April 8
Scolnik wrote the Union offering to provide the informa-
tion' to the Union by making it available for inspection
and copying at its payroll and labor relations office in
Sacramento. He said as a "gesture of good faith" the
Company, if the Union wished, would compile the infor-
mation and make copies of the documents and records
but that the Union must pay for the copying and admin-
istrative expenses in -advance He did not suggest what
the cost would be
By letter dated April 15„ another union official, Louis
T. Spignesi, asserted to Scolnik that the monetary impact
of providing the information was _"de minimis" at best
and that the administrative costs should be borne by the
Employer. Although he contended the Union had a
"fundamental: right" to the 'information regardless of
cost, he said Respondent would provide "clear and con-
vincing evidence" that , , the request would impose "sub-
stantial and/or burdensome financial impact," the Union
would consider sharing the expense's.
By letter dated April 20, Scolnik asserted the Union
was refusing to come to Sacramento and refusing to bear
the cost for assembling and 'sending the information. He
said assuming he was correct, the parties were "at an im-
passe concerning these procedural issues," i e., both the
information iequest and other matters. He suggested the
reason , implied in the Union's April 8 and 15 letters for
refusing to accept or consider ,Company's "proposal"
was "the Union's claimed inability to _pay." He then de-
manded a large amount of financial data from the Union.
However, he did not transmit any of the material sought.
By 'letter dated May 12, Rosenberry advised Scolnik the
Union still needed the information listed in . Gouras'
March 3 letter. In his reply of May 17, Scolnik said Re-
spondent "specifically reaffirms its position with respect
to the information you_ have requested." He referred to
his April 8 and 20 letters' He said, "We seem to be in' an
inif)ASse on that subject as well."
One of the- themes which is' found throughout_ Scol-
nik's letters is that before agreeing to meet with the
union officials, the Union should provide him with its
initial contract proposals. The Union's standard reply in
TOWER BOOKS 679
each case was that to formulate an initial proposal it
needed the information sought in its March 3 letter. At
no time did Respondent ever provide the inforthation;
neither did _ it tell the Union the nature of the work
needed to assemble it or its cost.
The Supreme Court has consistently held that Section
8(d) of the Act imposes an affirmative duty on an em-
ployer to supply the union with information relevant to
collective bargaining. A breach of that duty is a violation
of Section 8(a)(5). See NLRB v. Truitt Mfg. Co., 351 U.S.
149 (1956); NLRB v. Acme Industrial Co., 385 U.S. 432
(1967): Detroit Edison Co. v. NLRB, 440 U.S. 301 (1979).
Furthermore, it has long been held that wage data is pre-
sumptively relevant to collective bargaining. Curtiss-
Wright Corp. v. NLRB, 347 F.2d 61 (3d Cir. 1965).
Indeed, the underlying Board decision in Curtiss-Wright,
145 NLRI3 152, 157 (1963), clearly holds that there is a
presumption of relevance when the sought-for data
covers employees in the bargaining unit, as it does here.
Thus the Union seeks the names of unit employees, their
job classifications, dates of their hire (i.e., seniority, their
pay rates, the amount of their last pay increase, the aver-
age number of hours worked in the most recent 3-month
period and copies of the health and pension plans avail-
able to them Respondent has made no effort to rebut the
presumption of relevance.
Moreover, the case law is contrary to Respondent
here. The Board decision in Curtiss-Wright, supra, specif-
ically dealt with a similar refusal to turn over job classifi-
cation data and wage information. Indeed wage histories
were early required to be divulged Aluminum Ore Co. v.
NLRB, 131 F 2d 485, 487 (7th Cir. 1942). Both the re-
quest for the last pay increase and the average number of
hours worked fall into that category. Moreover, health
and retirement plan information have also been deemed
relevant whether as wages or as a term and condition of
employment. NLRB v. Feed & Supply Center, 294 F.2d
650 (9th Cir. 1961). Finally, although mentioned first by
the union, the names of the unit employees must be dis-
closed to permit the union to perform its statutory duty
of representation. Magma Copper Co., 208 NLRB 329
(1974). See also Harvey's Wagon Wheel, 236 NLRB 1670
(1978).
The simple fact is Respondent never supplied any of
the information. Its only advance reason for refusing to
do so was that it wished reimbursement, in advance, for
the cost of providing it. Whether or not the Union is ob-
ligated to pay for such information, Respondent never
advised the Union how much the billing would be, de-
spite a suggestion from a union official that it would con-
sider paying for the information if Scolnik would do so.
Scolnik never did.
I hold that Section 8(d) of the Act obligated Respond-
ent to provide the information sought in the March 3
letter and that by failing to do so it violated Section
8(a)(5) and (1) of the Act. I also find Scolnik's insistence
on advance payment without advice regarding theactual
cost to be, simply put, a phony issue. If it had been a le-
gitimate issue he would have, at the very least, given the
Union some sort of means of estimating the cost. More-
over, it seems likely that all the information would have
been at the fingertips of either the personnel or payroll
offices and easy to marshal.
C. The Refusal to Meet
In his letter of March 15, Union Grievance Director
Rosenberry had asked that the wage data be provided by
March 24. Scolnik in his reply of March 21 responded
that the Board certification was "invalid." He 1-Jointed
out that Respondent was considering appealing the certi-
fication by refusing to bargain, the standard manner by
which Board certifications are challenged. He then com-
pared the expense of litigating that question with the ex-
pense of negotiating a contract in Seattle observing that
the appropriate company officials were located in Sacra-
mento. He asserted:
The company is willing, as a matter of good faith
compromise 'of a dispute concerning the validity of
the NLRB's decision and certification, to waive its
rights to challenge that decision and certification
and to go through the various legal steps and proce-
dures leading to judicial review in the United 'States
Court of Appeals, if a mutually satisfactory arrange-
ment can be worked out with your union concern-
ing the time and place of negotiation meetings and
frequency and extent of such meetings
Supposedly attempting to work out such an arrangement,
Scolnik proposed "all" negotiations be conducted either
in Sacramento or San Francisco. He said he would "give
full and serious consideration to any and all counter-pro-
posals [the Union wished] to make." He suggested the
Union might Wish to propose alternating the California
cities with Seattle or some "convenient place half-way
between Seattle and Sacramento (or San Francisco)."
(Parenthesis in original ) He also wanted to know what
the Union proposed with respect to the frequency of the
meetings and the time period for each meeting. He said,
"Since a great deal can be accomplished by the submis-
sion of written contract proposals, counter-proposals, re-
visions, drafts, etc., in view of the distances involved,
meetings once a month seem appropriate and reasonable as
a general plan . . . ." (Emphasis supplied.) He also sug-
gested meetings take place from 9 a.m. to 5 p.m. with an
adequate lunch period for conferring, preparation, etc.
•He concluded saying, "If you are interested in work-
ing out a mutually agreeable system of conducting bar-
gaining negotiations, in lieu of further litigation, please let
me know." (Emphasis , added.) Rosenberry replied by
letter of April 8, saying the Union did not have the re-
sources to meet with Respondent in California. He also
said Scolnik's proposal appeared to be an effort to frus-
trate the bargaining process. Even so, Rosenberry of-
fered to pick up the Employer's representatives at the
Seattle airport. With respect to the frequency of meet-
ings, Rosenberry suggested "marathon negotiations" and
observed that bargaining should be a 'relatively easy
process since the store was less than a mile from the
Union's office.
Scolnik's April 8 letter stated his client was "anxious
to make a decision concerning collective bargaining ne-
gotiations." He said that no decision had been made or
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
could be made until the Union's position had been ascer-
tained. Thus, he said, he was repeating his offer to nego-
tiate rather than litigate if the expenses of negotiating
were less than litigating.
The Union's April 15 letter did not refer to the ques-
tion of where to meet or the frequency of meetings , But
Scolnik's April 20 letter rejected the Union's "counter-
proposal" which the Union wished to make. He also re-
jected the concept of "marathon negotiations." Instead,
he proposed "monthly meetings starting at 9:30 a.m.,
with a 2-hour caucus for lunch and assessment of posi-
tions, review of documents and . materials presented
during, the meeting, and recessing at 5 p.m. until the next
meeting." He said he would consider further counter-
proposals. Also in this letter he asserted that the parties
were at an impasse regarding these "procedural issues"
but said he was not declaring an impasse.
In his May 12 letter Rosenberry expressed astonish-
ment that Respondent would not come to Seattle to deal
withlthe representative of its Seattle,employees..
• Scolnik in his May 17 letter "renew[ed his client's] po-
sition" as stated in his previous letters and "specifically
reaffirm[ed] them" saying that it was ,"prepared to waive
its right to contest the Board's certification if bargaining
negotiations can be conducted in any mutually agreeable,
reasonable times and places." He claimed Respondent
was not insisting on any particular proposal. He later
said Respondent had "tried to be as flexible as possible
In my [Scolnik's] opinion, but for the Union's adamant
insistence on its position we could have and would'have
made substantial "progress by now." No further corre-
spondence occurred.
Seetion 8(d) of the Act obligates the parties "to meet
at reasonable times and confer in good faith with respect
to wages, hours and other terms and conditions of em-
ployment." The question therefore is whether or not Re-
spondent's conduct here was in good faith or whether it
was an outright refusal to meet. •
' In this case I find 'myself most unimpressed with the
conditions imposed on bargaining by Mr. Scolnik. He
has conditioned collective bargaining by offering not to
litigate the certification question if the Union would
agree to meet in California. Assuming that negotiating
the procedures for -collective bargaining is a mandatory
subject of bargaining, it is quite clear that conditioning
bargaining on satisfaction of a lawsuit is unlawful for
that is a nonmandatory topic. Peerless Food Products, 231
NLRB 530 (1977); Kit Mfg. Co., 142 NLRB 957, 971
(1963), enfd. 335 F.2d 166 ' (9th • Cir • 1964). Thus, Re-
spondent has approached bargaining here by construct-
ing an artificial barrier around the bargaining process.
Moreover, while imposing . the barrier, Scolnik asserts
that Respondent is ready, willing, and able to bargain
with the Union, but only if the Union agrees to the pro-
cedures he has proposed, his disclaimers notwithstanding.
Finally, his only explanation for refusing initially to meet
with the Union in Seattle is that it was "inconvenient."
There is no real explanation of why it is inconvenient
other than the fact that the company headquarters-
records are in Sacramento. That hardly seems to be an
insurmountable problem considering the fact that Re-
spondent no doubt routinely deals with the Seattle store
on other bUsiness matters. Indeed, his suggested union
counterproposal to meet halfway (somewhere in Ore-
gon?) is a Preposterous one. Why would any negotiator
wish to meet at a place where neither party- could con-
sult with its principals? Finally, 'I note that Respondent
claims one of the reasons it should not travel to Seattle is
the Union's failure to provide it with an initial proposal.
Considering the fact that Respondent has unlawfully re-
fused to provide the information the Union sought, such
a contention is -purely disingenuous. -Accordingly, I find
Respondent-, has approached - bargaining in a bad-faith
manner, and that its refusal to negotiate in Seattle is a
breach of the ,obligation set forth in Section 8(d). Sem-
perit Pacific, 237 NLRB 478 (1978), and the cases cited at
488. Compare Case, Inc., 237 NLRB 798 (1978), wherein
an administrative law,-judge found that an offer to- nego-
tiate by conference. call or by mail was an impediment to
good-faith 'bargaining. I also note that Respondent's pro-
posal with respect to the -manner - of. bargaining here is
designed to frustrate the process. Its proposal to meet 1
day a month with 2-hour lunch ,periods cannot be con-
strued as reasonable. See General Motors Acceptance
Corp.,. 196 NLRB .137, 138 (1972), where the employer
allowed only ,J0, half , days for bargaining during a . 6-
month period. , -
' D. The Unilateral Wage Change .•
It will be reCalled that the election was held on Janu-
ary 15, 1982. On 'November 18, some 11 months after the
election, the union official responsible for the organiza-
tion drive, Mike Orth, wrote a letter to William Fratzke,
Respondent's store manager. The letter reads as follows:
It has been . brought to my attention that you intend
to freeze or withhold- all wage increases for your
employees, including the past practice of providing
Christmas bonuses for fear of charges being filed by
•this local union.
The National Labor Relations Board prohibits the
employer . from:,
"Promising or granting promotions, pay raises, or
other benefits, to influence an EMPLOYEE'S
VOTE, by a party capable of carrying out such
-promise."
As you 'are aware, the -N.L.R.B. secret ballot elec-
tion, has already been concluded and for that reason
I request that you continue your practice of provid-
ing periodic wage increases as -well as maintaining
your Christmas bonuses for all of your employees.
You have the word of this local union that we will
not file 'Charges against' Queen' Anne Record Sales,
Inc., d(b/a Tower Books for providing wage in-
creases and other benefits that will provide a better
way of life for your VALUED employees.
As previously found the Board's certification of repre-
sentative was issued on February , 7, 1983. The parties
stipulated that on or about May 1, 1983, Respondent ad-
justed the wages of unit. employees and did so without
TOWER BOOKS 681
previous notice to the Union or affording the Union an
opportunity to negotiate, and ;bargain as the employees'
exclusive representative. The salary adjustments included
three automatic step increases and six discretionary merit
increases. According to the"- stipulation; Respondent's
policy and practice with respect to automatic step in-
creases was "25 cents per hour after 5, 8, and 12
months." After the final automatic step increase, • per-
formande reviews are made semiannually, generally Jan-
uary and July. Increases' based on merit are 'generally ef-
fected in February and August of each year. The stipula-
tion also states the delay until May 1983 was' the result
of an accidental misfiling of Orth's letter.' A divisional
manager of Respondent, Heidi Keller, did advise the
Union, by letter ,dated May 6, 1983, :that Respondent had
"adjusted some of the salaries" of the Seattle employees
"to be iii keeping with the wage policies in our other
stores." She did not give any other details.
The parties further stipulated that Respondent in gbocl
faith believed Orth's letter was intended to apply to any
wage increases but that the Union intended it to apply
only to automatic step increases, not merit increases.
Clearly the tenor of the letter was to ask Respondent
not to freeze or withhold routine wage increases or
Christmas bonuses out of, fear that the Union filed
charges over ,them. The organizer,- in the apparent belief
that the Act only prohibited an employer from attempt-
ing to influence the election via wage increases, said that
since the election was over, , the Company could continue
its practice of providing "periodic.,wage increases as well
as maintaining . . Christmas bonuses for all of your em-
ployees." He said if that was done the Union would not
file unfair labor practice charges.
Whatever legal questions might be raised with , respect
to wage increases, . whether discretionary or nondiscre-
tionary, given after the November 18 letter, the signifi-
cant fact is the certification of representative was issued
on February 7, 1982. The wage increases which are the
subject of complaint were granted in May, 3 months
later. While the letter may well have insulated Respond-
ent from any unfair labor practice charges with respect
to nondiscretionary increases prior to the certification
and arguably may have insulated it from those dealing
with nondiscretionary increases, the efficacy of the letter
expired with issuance of the certification, for it ended the
election process. Once the certification was issued Re-
spondent no longer had the exclusive authority to make
wage changes. It was obligated to first deal with the
Union on all questions of wages. It did not do so. Thus,
the fact that it in good faith relied on the letter (even
though it had misplaced it) to grant the increases is no
defense. The Board's certification is the controlling doc-
ument. Allstate Insurance Co., 236 NLRB 193 (1978).2
The unilateral wage increases are clearly barred by the
Act in that circumstance. Katz v. NLRB, 369 U.S. 736
(1962); Say-On Drugs, 261 NLRB 1168 (1982), enfd. 716
F.2d 574 (9th Cir. 1983); Master Slack Corp., 230 NLRB
2 Allstate also governs whether or not Respondent may refuse to bar-
gain pending a challenge to the Certification of Representative Clearly It
may not
1054 (1977), enfd. 618 F.2d 6 (6th Cir. 1980) (unilateral
change issue not pressed on appeal).
Accordingly, I find that the May 1983 wage increases,
both discretionary and nondiscretionary, were given
without notice to the Union and without giving the
Union the opportunity to bargain over them. In that cir-
cumstance Respondent is guilty of making unilateral
wage changes in breach of the good-faith bargaining ob-
ligation of Section 8(a)(5) and (1).
TV: THE REMEDY -
Having found that Respondent has engaged in various
acts and conduct in violation of Section 8(a)(5) and (1), I
shall recommend that it be ordered to cease and desist
therefrom and to take certain affirmative action designed
to effectuate the policies of the Act. The affirmative
action shall include an order requiring Respondent to
provide, at its expense, the information the Union sought
in its letter of March 3, 1983, and that it be ordered to
bargain in 'good faith with the Union, at the Union's re-
quest, at a reasonable location near the Seattle store. -The
cease-and-desist order shall be construed so as not to de-
prive any employee from any wage or salary increase he
or she may have received by Respondent's unlawful uni-
lateral increases. 3 In addition, I shall recommend that the
Certification of Representative be extended until such
time as Respondent begins to bargain with the Union in
good faith. See Mar-Jac Poultry Co., 136 NLRB 785
(1962); Lamar Hotel, 140 NLRB 226, 229 (1962), enfd.
328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S 817.
On the foregoing findings of fact and on the entire
record in this case, I make the following
CONCLUSIONS OF LAW
1., Respondent Queen Anne Record Sales, Inc. d/b/a
Tower Books is an . employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Retail Store Employees Union Local 1001, char-
tered by United Food and Commercial Workers Interna-
tional Union, AFL-CIO is a labor organization within
the meaning of Section 2(5) of the Act.
3. The following employees of Respondent constitute
an appropriate unit for collective bargaining within the
meaning of Section 9(b) of the Act:
All employees employed at Respondent's facility lo-
cated at 20 Mercer Street, Seattle; Washington; ex-
cluding all office clerical employees, deposit clerks,
professional employees, guards and supervisors as
defined in the Act.
4. Since February 7, 1983, the Union has been the ex-
clusive collective-bargaining representative of all the em-
ployees in the appropriate unit within the meaning of
Section 9(a) of the Act.
5. On the dates shown in the foregoing decision Re-
spondent has failed to bargain in good faith with the
Union and has therefore violated Section 8(a)(5) and (1)
of the Act by.
Keystone Steel & Wire, 248 NLRB 283 (1980)
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Refusing to honor the Union's request to provide
information relevant to the performance of its duty as
the exclusive collective-bargaining representative of Re-
spondent's employees in the appropriate unit.
(b) Refusing to meet with the Union for the purpose of
engaging in good-faith collective bargaining.
(c) Making unilateral wage increases to the employees
in the bargaining unit without first bargaining with the
Union.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed4
ORDER
The Respondent, Queen Anne Record Sales, Inc.
d/b/a Tower Books, Seattle, Washington, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with Retail Store
Employees Union Local 1001, chartered by United Food
and Commercial Workers International Union, AFL-
CIO by refusing to supply it with wage and personnel
data relevant to collective bargaining in the appropriate
unit.
(b) Refusing to meet with the Union in or near Seattle
Washington to engage in good-faith collective bargaining
with respect to the wages, hours, and terms and condi-
tions of the employees in the appropriate unit.
(c) Unilaterally and without notice to the Union
changing the wages of the employees in the bargaining
unit.
4 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
(d) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act. 5 -
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Immediately supply the Union with the material it
sought in its letter of March 3, 1983; the expense of pro-
viding such information to be borne by Respondent.
(b) On request, bargain in good faith with the Union at
a reasonable location near its Seattle, Washington store
with respect to a collective-bargaining agreement cover-
ing employees in the appropriate unit and, if an under-
standing is reached, embody such understanding in a
signed agreement.
(c) Post at its Mercer Street location in Seattle, Wash-
ington, copies of the attached notice marked "Appen-
dix." Copies of the notice, on forms provided by the
Regional Director for Region 19, after being signed by
Respondent's authorized representative, shall be posted
by Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply.
IT IS FURTHER RECOMMENDED that the Board should
order the Certification of Representative extended as .dis-
cussed above in the Remedy portion of this decision.
5 In view of the fact that Respondent's conduct here constitutes a re-
jection of the pnnciple of collective bargaining, a broad order is appro-
pnate 1-hckmott Foods, 242 NLRB 1357 (1979)
6 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order_of the Nation-
al Labor Relations Board"