Acme Markets, Inc.

National Labor Relations Board - Board Decisions

Jan 14, 1986

277 N.L.R.B. 1656 (N.L.R.B. 1986)

1656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
American Stores Packing Company , a Division of
Acme Markets, Inc. and Local 22 , United Food
and Commercial Workers , AFL-CIO, CLC.
Cases 17-CA-11178 and 17-CA-11255
14 January 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 22 April 1983 Administrative Law Judge
Gerald A. Wacknov issued the attached decision.
The General Counsel and the Charging Party filed
exceptions and supporting briefs, the Respondent
filed partial exceptions and a supporting brief, and
the General Counsel and the Respondent filed an-
swering briefs.
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, and
conclusions as modified and to adopt the recom-
mended Order.
1. THE 8(A) (5) ALLEGATIONS
We agree with the judge that the Respondent
did not violate Section 8 (a)(5) and (1) of the Act
by refusing to furnish the Union certain informa-
tion the Union requested during bargaining, but we
do not rely on the judge's rationale for reaching
this conclusion . Rather , we find, for the reasons set
forth below, that the Union had waived its right to
bargain about the matters it was discussing with
the Respondent, and thus the Respondent had no
duty to furnish the requested information.'
A. Defects in the Complaint
Initially , the General Counsel and the Charging
Party except to the judge's denial of the General
Counsel 's motion to amend the complaint to allege
that American Stores Packing Company and Acme
Markets, Inc. are a single integrated enterprise. The
General Counsel made this motion to amend at the
end of the hearing, arguing that it was merely an
attempt to conform the pleadings to the proof. The
judge found, however, that it would be highly
prejudicial to permit the General Counsel to
change her theory at that late stage of the proceed-
ings because the Respondent had never had a
chance to litigate the issue . We disagree . Although
the complaint did not specifically allege that Amer-
' We agree with the judge that the Respondent violated Sec 8(a)(5)
and (1) of the Act by refusing to pay a cost-of-living adjustment to wages
required under its collective-bargaining agreement with the Union
ican Stores Packing and Acme Markets are a single
employer, we find that the pleadings raised the
issue and it has been fully litigated.
The original complaint in this case named
"American Stores Packing Company, a Division of
Acme Markets, Inc." as the Respondent, thus put-
ting the Respondent on notice that both entities
were involved in these proceedings. The complaint
also alleged that "Respondent, a State [sic] of
Pennsylvania corporation, is engaged in the oper-
ation of a meat packing and processing plant .. .
[at] Lincoln, Nebraska." It is undisputed that Acme
Markets is a Pennsylvania corporation operating
numerous retail grocery stores and warehouses,
none of which is located in Lincoln, Nebraska, but
that American Stores Packing is an unincorporated
division of Acme Markets operating only one
plant, a meatpacking and processing plant in Lin-
coln, Nebraska. The Respondent admitted all of
these allegations in its answer and did not raise any
issue as to the separate and independent status of
Acme Markets. The complaint further alleged that
Bob Carman, vice president, was the Respondent's
agent and supervisor. In its answer, the Respondent
admitted Carman was a vice president of Acme
Markets and the Respondent's agent, denying only
that he was a supervisor within the meaning of
Section 2(11) of the Act. Again, the Respondent
did not question including an Acme Markets offi-
cial as an agent of the Respondent. Based on these
facts, we find the pleadings here sufficient to raise
the issue of whether American Stores Packing and
Acme Markets are a single employer.
Furthermore, both the General Counsel and
counsel for the Charging Party introduced exten-
sive evidence at the hearing showing that Acme
Markets had been the moving force behind the Re-
spondent's negotiations with the Union about con-
cessions and closing the plant, but the Respondent
never raised any issue as to the admission of this
evidence or as to the separate and independent
status of Acme Markets until after the General
Counsel rested her case. As soon as the General
Counsel learned the Respondent was taking the po-
sition in related district court proceedings for a
10(j) injunction that only American Stores Packing
was the appropriate respondent, she took the posi-
tion on the record that American Stores Packing
and Acme Markets were a single integrated enter-
prise which had been alleged as the Respondent in
this case. Although the Respondent's counsel dis-
agreed, he was clearly on notice of the General
Counsel's position before he began presenting his
case, and he failed to introduce any evidence rebut-
ting the allegation. To the contrary, even the Re-
spondent's witnesses consistently referred to the
277 NLRB No. 190
AMERICAN STORES PACKING CO
party negotiating with the Union as "the Compa-
ny," and it was clearly established that they consid-
ered "the Company" to mean Acme Markets.
Therefore, we find that the issue of single employ-
er status was fully litigated.2
In these circumstances, we find that the General
Counsel's', motion to amend the complaint seeks to
conform the pleadings to the proof and that grant-
ing the motion will not prejudice the Respondent.
Accordingly, we grant the General Counsel's
motion to amend the complaint. As the record es-
tablishes that American Stores Packing and Acme
Markets meet all the Board's criteria for single em-
ployer status, we also find that they are a single
employer.
The Board considers four factors in determining
whether to treat two companies as a single employ-
er: interrelation of operations, common manage-
ment, centralized control of labor relations, and
common ownership or financial control.3 American
Stores Packing and Acme Markets clearly have
common ownership and management because
American Stores Packing is a wholly owned sub-
sidiary of Acme Markets and the record shows that
Acme Markets officials make operating decisions
on behalf of American Stores Packing. They have
interrelated operations because American Stores
Packing is a captive supplier of store brand and
other meat products to Acme Markets retail stores.
The evidence demonstrates that all of the carcass
beef and processed pork products American Stores
Packing produced were shipped either to Acme
Markets retail stores or to grocery stores owned by
Acme Markets' parent company. American Stores
Packing did not bill Acme Markets or the parent
company for the meat products, but arranged for
Acme Markets to transfer funds to its bank account
periodically when it needed to cover its operating
costs. Finally, the two companies have centralized
control of labor relations as shown by the evidence
that Acme Markets made the decision to ask the
Union for concessions, that Acme Markets Vice
President Carman conducted all the negotiations
with the Union in this case, and that Acme Mar-
kets made the decision to close the American
Stores Packing Plant and to subcontract the unit
work when the negotiations failed.
The General Counsel and the Charging Party
also except to the judge's refusal to consider argu-
ments in their posthearing briefs that the requested
information was necessary for bargaining about the
2 Ortiz Funeral Home Corp , 250 NLRB 730 (1980), enfd . 651 F 2d 136
(2d Cir 1981), Meilman Food Industries , 234 NLRB 698 , 699 (1978),
Crown Zellerbach Corp., 225 NLRB 911 , 912 (1976), and Rochester Cadet
Cleaners , 205 NLRB 773 (1973)
1 Radio Union v Broadcast Service , 380 U S 255 , 256 (1965)
1657
Respondent's decision to subcontract unit work
and to his "gratuitous" remarks condemning their
attempts to argue a subcontracting theory as decep-
tive and a denial of due 'process. The judge found
that the subcontracting theory had never been al-
leged or litigated and therefore struck any refer-
ences to it in the parties' briefs. Although the com-
plaint may have been poorly drafted because it did
not specifically allege that the requested informa-
tion was necessary for bargaining about the Re-
spondent's decision to subcontract unit work, we
find that the pleadings raised this issue and it has
been fully litigated.
The amended complaint alleged that the Re-
spondent failed to bargain in good faith with the
Union by refusing to furnish certain information
the Union had requested, which was necessary for
bargaining about the Respondent's announced deci-
sion to close the plant, the effects of the decision,
and a new contract. The amended complaint con-
tained a summary of the information the Union had
requested, which included "a detailed explanation
of where and how' the Respondent proposes to per-
form the operations conducted at its Lincoln, Ne-
braska plant in the event that plant is closed," The
Union's actual telegram to Acme Markets Vice
President Carmen requested, inter alia, "[a] detailed
explanation of where and how the Company pro-
poses to perform the operations presently conduct-
ed in the Lincoln plant, in the event the plant
closes, whether by transfer to another Company
plant, subcontract, sale or lease of the plant, or
other arrangement." In its answer, the Respondent
admitted it had received the Union's telegraphic re-
quest for information. Although the amended com-
plaint is not clear when viewed in conjunction with
the Union's telegram, it is sufficient to raise the
issue of whether the Union had requested informa-
tion that would be necessary for bargaining about
possible subcontracting.
Furthermore, on the very first day of the hear-
ing, the Charging Party's counsel questioned the
Respondent's plant manager about how the Re-
spondent was currently supplying its retail stores
With the meat products formerly produced at its
Lincoln plant, including the store brand items that
had been manufactured there. When the Respond-
ent's counsel objected to these questions as irrele-
vant, the Charging' Party argued that such evi-
dence was relevant to determining whether the Re-
spondent had gone out of the business of meat
processing or had merely subcontracted this work.
The judge permitted the questioning. Thus, the Re-
spondent's counsel was on notice before he began
presenting his case that this issue was being litigat-
ed. Moreover, the Charging Party's counsel contin-
1658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ued to question witnesses throughout the hearing
on the Respondent's sources of supply after closing
the plant. Therefore, we find that the issue of
whether the requested information was necessary
for bargaining about possible subcontracting was
fully litigated.4
In these circumstances, we fmd that the General
Counsel and the Charging Party should have been
permitted to argue that what the Respondent had
actually done in this case was to subcontract unit
work, even though the Respondent contended it
had simply closed its plant. The Union's request for
information was an attempt to find out if the Re-
spondent planned to subcontract the work at issue.
It would have been difficult to allege that the Re-
spondent had made a decision to subcontract with-
out the benefit of the requested information, which
the Respondent refused to supply.' Accordingly, we
shall consider the parties' subcontracting argu-
ments.
B. The Merits
An employer's duty to furnish information to a
union is based on the employer's duty to bargain
under Sections 8(a)(5) and 8(d) of the Act.5 The
Respondent asserts it had no duty to furnish the re-
quested information because it had no duty to bar-
gain about its management decision to close the
plant. The Respondent claims its decision was
merely a permissive subject of bargaining under the
Supreme Court's First National Maintenance deci-
sion.6 The judge found that the Respondent's deci-
sion to close the plant for economic reasons ap-
peared to be a mandatory subject of bargaining
under the Supreme Court's First National Mainte-
nance test, but also found that even if the decision
to close were merely a permissive subject of bar-
gaining , the Respondent became obligated to fur-
nish the requested information by entering into ne-
gotiations with the Union on this subject when it
was not required to do so. We fmd it unnecessary
to pass on these findings, however, because even
assuming arguendo that the decision to close the
plant and subcontract unit work was a mandatory
subject of bargaining, the Union had waived its
right to bargain on this subject.''
4 See the cases cited above in fn 2.
° Timken Roller Bearing Co v. NLRB, 325 F.2d 746, 751 (6th Cit.
1963), cert. denied 376 U S. 971 (1964). See also NLRB v. Truitt Mfg. Co,
351 U 5. 149 (1956).
6 First National Maintenance Corp. v. NLRB, 452 U S. 666 (1981) The
judge and the parties seem to consider resolution of this issue determina-
tive; the complaint , however, also alleged the requested information was
necessary for bargaining about a new contract and about the effects of
the decision to close, both of which are clearly mandatory subjects of
bargaining
r Although we find it unnecessary to pass on whether an employer has
any duty to furnish information about a permissive subject once it has
voluntarily bargained about it, the Supreme Court has held that a permis-
The management-rights clause in article II of the
parties' contract states:
The Company retains the sole right to manage
its business and direct the working force, in-
cluding the rights to decide the number and
location of plants, the machine and tool equip-
ment, the products to be manufactured, the
method of manufacturing, the schedule of pro-
duction, the processes of manufacturing or as-
sembling ... .
The contract also contains a letter of intent, signed
the same date as the contract, which states:
It is agreed that the phrase "to determine
whether and to what extent the work required
in its business shall be performed by employees
covered by this Agreement" is a part of the
Management Rights Clause, Article II of the
current Labor Agreement as discussed and ne-
gotiated.
The judge found that the management-rights
clause was not a clear and unmistakable waiver of
the Union's right to bargain about the Respondent's
decision to close the plant and remove work from
the bargaining unit. We disagree. We will give
effect to the plain meaning of the language in the
letter of intent, which we find granted the Re-
spondent the right unilaterally to remove all bar-
gaining unit work. Thus, the Union waived any
right it may have had to bargain about the Re-
spondent to close the plant and subcontract unit
work.8 Accordingly, the Union had no right to in-
formation requested for bargaining on this subject.9
Furthermore, we find that the Union had no
right to the requested information for bargaining
about a new contract or about the effects of the de-
cision to close the plant. Once the Respondent had
decided to close the plant and lay off all the unit
employees, the Respondent had no further duty to
bargain about a new contract, s ° and thus the
sive subject does not become a mandatory subject merely because the
parties have bargained about it Chemical Workers Y. Pittsburgh Glass Co,
404 U S. 157, 187 (1971) Further, the Supreme Court has stated that
"each party is free to bargain or not to bargain and to agree or not to
agree" about permissive subjects of bargaining NLRB Y Borg-Warner
Corp, 356 U S. 342, 349 (1958)
8 See Kohler Co., 273 NLRB 1580 (1985) Although it appears that the
Respondent's actions in this case might be characterized as subcontract-
ing rather than merely going out of business because it contracted with
two suppliers to continue producing the same meat products for sate at
its retail stores that unit employees had previously produced, we find it
unnecessary to decide that issue because the Union waived any right it
may have had to bargain over either a decision to close or a decision to
subcontract
0 Emery Industries, 268 NLRB 824 (1984)
10 The parties here actually bargained about a new contract as well as
about the decision to close, and the complaint does not allege a separate
8(a)(5) violation based on the conduct of these negotiations.
AMERICAN STORES PACKING CO.
Union had no right to information requested for
bargaining on this subject. As to the effects bar-
gaining , it does not appear that this bargaining was
the actual basis for the Union's information request.
The Union never stated that it was requesting
the information in order to bargain about the ef-
fects of the decision to close. To the contrary, the
Union's telegraphic request for information refers
only to bargaining about a new contract and about
the decision to close, and none of the information
requested is particularly relevant to the effects of a
decision to close. In addition, none of the parties
has ever argued that the Union requested this infor-
mation specifically for the purpose of bargaining
about the effects of the decision to close, despite
the complaint allegation that the information was
necessary for such a purpose. Moreover, after the
Respondent made its final decision to close the
plant and the parties entered into bargaining about
the effects of its decision, the Union made a second
and different request for information on 9 Novem-
ber 1982 that was specificaly based on effects bar-
gaining . Although the Respondent refused on 10
November 1982 and again on 22 November 1982 to
furnish some of the requested information, the
complaint does not allege this refusal to furnish in-
formation as a separate violation. Because the Re-
spondent did not have actual or constructive notice
of any other legitimate basis for the Union's infor-
mation request than the purpose stated in the
Union's original telegraphic request, the Respond-
ent had no duty to furnish this information."' In
these circumstances, we find that the Respondent
did not violate Section 8(a)(5) and (1) by refusing
to comply with the Union's request for informa-
tion.
II. THE 8 (A)(1) ALLEGATIONS
We agree with the judge that the Respondent
did not violate Section 8(a)(1) of the Act by in-
forming employees of its bargaining position which
had been previously communicated to the Union.
The judge found that, during July 1982, 5 lower
level supervisors told 10 employees (6 of whom
were union officials) in 7 separate conversations
that, if the employees did not accept the conces-
sions the Respondent had proposed to the Union,
the plant would close or would probably close.
The judge concluded that these statements were
not, unlawful threats to close the plant because the
Respondent was merely communicating in non-
coercive terms with employees about the proposals
it had already made to the Union on 1 July 1982
and telling employees its version of the status of
11 Emery Industries, above at 825.
1659
those negotiations . We agree that in the circum-
stances here these statements were not coercive.
We cannot find that the Respondent's statements
undercut the Union's status as collective-bargaining
representative because all of the statements were
directed to union officials. In adopting this conclu-
sion, however, we do not rely on the judge's find-
ings that the lower level supervisors who made the
statements were merely expressing their own opin-
ions rather than speaking for the Respondent and
that the General Counsel's failure to allege similar
violations based on the Respondent's written com-
munications to employees rendered the other alle-
gations meritless,, because these findings do not
bear on our decision.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, American
Stores Packing Company, a Division of Acme
Markets, Inc., Lincoln, Nebraska, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
Deborah A. Ford and Jack D. McCarthy, Esq., for the
General Counsel.
Robert J. Bray Jr., Esq. (Bray, McAleese, McGoldrick &
Susanin), of Bala Cynwyd, Pennsylvania, and Paul M.
Schudel, Esq. (Woods, Aitken, Smith, Greer, Overcash &
Spangler), of Lincoln, Nebraska, for the Respondent.
Peggy A. Hillman, Esq. (Cotton, Watt, Jones, King &
Bowlus), of Chicago, Illinois, for the Charging Party,
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge.
Pursuant to notice, a hearing with respect to this matter
was held before me in Lincoln, Nebraska, on December
7-9, 14, and 15, 1982. The initial charge in Case 17-CA-
11178 was filed on September 2, 1982, by Local 22,
United Food and Commercial Workers, AFL-CIO, CLC
(the Union). An amended charge was filed on October 7,
1982. Thereafter, on October 22, 1982, a complaint and
notice of hearing was issued by the Regional Director
for Region 17 of the National Labor Relations Board
(the Board). The charge in Case 17-CA-11255 was filed
by the Union on October 18, 1982, and was amended on
October 20, 1982. Thereafter, on November 19, 1982, the
Regional Director issued an order consolidating cases,
consolidated complaint and notice of hearing alleging a
violation by American Stores Packing Company, a Divi-
sion of Acme Markets, Inc. (the Respondent or the Com-
pany) of Section .8(a)(1) and (5) of the National Labor
Relations Act. The complaint was amended on Novem-
ber 23, 1982, and again at the hearing herein.
The parties were afforded a full opportunity to be
heard, to call, to examine and cross-examine witnesses,
1660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and to introduce relevant evidence. Since the close of
the hearing, briefs have been received from the General
Counsel, counsel for the Respondent, and counsel for the
Union.
On the entire record and my observation of the wit-
nesses and consideration of the briefs submitted, I make
the following
FINDINGS OF FACT
1. JURISDICTION
The ,Respondent, at times material herein, has been en-
gaged in the operations of a meat packing and processing
plant in Lincoln, Nebraska. In the course and conduct of
its business operations during the 12-month period pre-
ceding the closing of the plant about December 4, 1982,1
the Respondent purchased goods and services valued in
excess of $50,000 directly from sources located outside
the State of Nebraska and sold products valued in excess
of $50,000 directly to customers looted outside the State
of Nebraska. It is admitted, and I find, that the Respond-
ent- is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted that the Union is, and has been at all
times material herein, a labor organization within the
meaning of Section 2(5) of the Act.
III. THE GENERAL COUNSEL'S MOTION TO AMEND
THE COMPLAINT AND RELATED MOTIONS
At the beginning of the fourth day of the hearing on
December 14, immediately prior to the commencement
of the Respondent's case-in-chief, the General Counsel
noted the'concurrent proceedings for a temporary re-
straining order in the United States District Court for the
District of Nebraska, before Judge Robert Van Pelt, stat-
ing that the Respondent, in that proceeding, had made a
statement to the court to the effect that it viewed Ameri-
can Stores Packing Company, a Division of Acme Mar-
kets, Inc., alone, as the Respondent. That made sense, as
it was consistent with the case caption in both the instant
case and the district court proceeding. Then the General
Counsel enunciated the position that American Stores
Packing Company and Acme Markets, Inc. are a single,
integrated enterprise "and that entity is the Respondent
in this proceeding" which "has been alleged in the
Charge and the Complaint." Obviously, this is an incor-
rect statement, as the only the Respondent named in the
complaint was American Stores Packing Company, a Di-
vision of Acme Markets, Inc.
Nothing more was said about the matter until the con-
clusion of the hearing on December 15, after the Re-
spondent's case had been completed. At this point, the
General Counsel argued that, based on the evidence, it
was apparent that the , two distinct entities (American
Stores Packing Company and Acme Markets, Inc.) con-
stituted a single, integrated employer and, to this end,
' All dates or time periods herein are within 1982 unless otherwise
specified.
proffered a written amendment to the complaint purport-
ing to amend both the caption of the complaint and the
substance of the complant by alleging single, integrated
employer status of the two entities. The stated purpose
of the proposed amendment was to avoid a "technical
type objection" by the Respondent that Acme Markets,
Inc., not being a party to the proceeding, was therefore
not responsible for remedying the unfair labor practices.
Further, the General Counsel stated that a similar motion
would be made in the proceeding before the district
court.
There was a strenuous objection by the Respondent's
counsel, who argued that such a motion was unfair, par-
ticularly at this exceedingly belated stage of the proceed-
ings. I took the motion under advisement, with the
caveat that "if the problem is serious enough to reopen
the record, I'm not going to grant your motion. I think
it's belated."
The General Counsel renewed the motion in the brief,
for the stated purpose of ensuring that the two entities
are "jointly liable for remedying the alleged violations."
Then, the General Counsel makes the argument for the
first time in this entire proceeding that the Respondents,
now meaning, according to the General Counsel, both
entities, have violated the Act by failing to provide the
Union with the requested information, infra, regarding
"subcontracting," and commences to expound on a sub-
contracting theory within the purview of Bob's Big Boy,
264 NLRB 1369 (1982). Counsel for the Union, in her
brief, makes a similar argument at length and states her
understanding that the General Counsel intends to
submit a motion to include the transcript of the district
court proceeding for injunctive relief under Section 10(j)
of the Act because "substantial new evidence was ad-
duced during the 10(j) hearing."
Thereafter, on March 4, I received from the General
Counsel a "Motion to Reopen Record and Receive Tran-
script of Section 10(j) Injunction Proceeding." In the
motion it is asserted that certain witnesses of the Re-
spondent provided testimony relevant to the issue of
single employer status, and other issues, particularly the
subcontracting issue. Further, the motion sets forth, in
detail, the substance of the proffered evidence. Included
with the motion are transcripts consisting of two vol-
umes of the proceedings before Judge Van Pelt, totaling
272 pages.
,A reasonable conclusion which may be drawn from
the foregoing, as I understand what has transpired, is
that the General Counsel has intentionally proceeded in
a highly deceptive and irregular, manner to place before
me substantive facts concerning a contention (the sub-
contracting theory) which has never been alleged in any
complaint. Not only has this issue not been litigated, but
the Respondent herein has never even been required to
state its position regarding the proposed allegations,
much less present its defense and, in any event, the sub-
contracting theory applied to an entity not yet a re-
spondent in this proceeding I view the General Coun-
sel's underlying purpose for attempting to amend the
complaint not, as was represented to me, a mere attempt
to avoid "technical type" objection that Acme Markets,
AMERICAN STORES PACKING CO. 1661
Inc. is somehow not responsible for the unlawful acts of
its division, American Stores Packing Company. Rather,
it constituted a contrived maneuver to include Acme
Markets, Inc. as a Respondent so that a subcontracting
theory could be made viable, as it is clear that American
Stores Packing Company, a Division of Acme Markets,
Inc., the named Respondent, had nothing to do with the
procuring of meat products for the retail stores either
prior to or after the closing of the Lincoln plant. Rather,
Acme Markets, Inc. was the only entity involved in
what the General Counsel characterizes as subcontract-
ing. Needless to say, to permit such an amendment at
this stage of the proceeding would be highly prejudicial.
The Respondent's characterization of the General Coun-
sel's machinations as a "shifting sands" concept of legal
responsibility seems appropriate.
In view of the limited nature of the violation found
herein, and the fact that there is no record evidence
before me indicating that the named Respondent is in-
capable of paying the nominal amount of interest found
to be due herein, I shall deny the General Counsel's
"technical type" motion to this effect. I further deny the
additional motions to find that the two entities are joint
employers and to reopen the record for the receipt of ad-
ditional evidence. Finally, I conclude that the subcon-
tracting theory advanced by the General Counsel and
the Union constitutes a concerted attempt to deny the
Respondent due process, and any references to this
theory are stricken from the briefs of counsel.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The principal issues raised by the pleadings are wheth-
er the Respondent has violated Section 8(a)(1) and (5) of
the Act by delaying the payment of a contractual cost-
of-living increase, by making coercive statements to em-
ployees regarding plant closure, and by failing to provide
the Union with requested bargaining information in
order to enable it to intelligently and effectively repre-
sent the unit employees.
B. The Facts
1. Background facts
American Stores Company owns several retail store
chains, including Alpha Beta, Skaggs, and Acme Mar-
kets, Inc. Acme Markets, Inc. is engaged in the operation
of approximately 350 retail grocery stores on the East
Coast, employing approximately 15,000 individuals repre-
sented by various locals of the United Food and Com-
mercial Workers. It also operates various related supply
operations, including warehouses and a bakery. Until
about December 3, it operated American Stores Packing
Company, a wholly owned division of Acme Markets,
Inc. which was engaged in the operation of a meatpack-
ing plant in Lincoln, Nebraska, the facility primarily in-
volved herein.
On December 3, the day preceding the expiration of
the collective-bargaining agreement between the parties
which extended from November 19, 1979, to December
4, 1982, the Respondent permanently closed its packing
plant, resulting in the termination of approximately 650
employees, including some 500 unit employees,2 after ex-
tensive but unsuccessful negotiations with the Union re-
garding the terms of a new agreement.
The packing plant supplied various meat products,
under several brand names, exclusively to the Acme
Markets, Inc. retail grocery stores, except for about 15
percent of its meat products which were sold to Alpha
Beta and Skaggs. Eighty percent of the product that
went to the stores consisted of carcass beef, which was
slaughtered at the plant and delivered in carcass form to
the stores. The remaining 20 percent consisted of lunch-
eon meats, bacon, and sausage which the packing plant
also manufactured. a It appears that the employee com-
plement was equally divided between the two distinct
operations, even though the beef slaughtering operation
was four times larger in terms of volume.
2. The meetings and communications
a. The July 1 meeting and related events
The events culminating with the plant closure began
on July 1 , at a meeting between the Company's and the
Union 's representatives . The meeting was requested by
the Company and was held in Bloomington, Minnesota,
at the office of Wendell Olson, district director of region
13 and vice president of the International Union . Present
for the Company were Robert Carman , vice president of
labor relations for Acme Markets , Inc. and Dan Neu-
meister, manager of the Lincoln plant . Present for the
Union were Wendell Olson , Local Union President Skip
Niederdeppe, Local Secretary -Treasurer Lloyd Mueller,
Business Agent Carmen Norwood , and Chief Steward
Roger Worman of the Lincoln plant.
The thrust of the Company 's presentation at this meet-
ing constituted an effort to convince the Union about the
efficacy of a substantial reduction in employees' wages
and benefits . The union representatives were told that
Acme Markets , Inc. had engaged in extensive restructur-
ing and streamlining . In furtherance of this policy, Acme
Markets, Inc. had closed many grocery stores in the Bal-
timore area . According to the recollection of Nieder-
deppe, Carman stated that the "corporate staff of Acme
Markets had made a decision that divisions or units of
Acme Markets that were unprofitable would have to
become either profitable or be phased out." During the
meeting the Company handed the union representatives a
document listing some 13 wage and fringe benefit con-
cessions, including proposals that the base labor rate be
reduced to $8 per hour, that the Union waive the immi-
nent July 5 cost-of-living adjustment (COLA) of 43 cents
per hour which the unit employees were to receive pur-
suant to the contract, and that the parties negotiate
2 The unit is as follows
All employees at the Respondent's Lincoln, Nebraska plant; exclud-
ing office employees, buyers, executives, guards and supervisors as
defined by the Act.
3 In addition , a substantial amount of byproducts, including offal, com-
prising about 15 percent of the plant's total production, was sold on the
open market.
1662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"Language and economic conditions to accommodate
box beef operation."4
The record shows that the Company estimated the re-
quested concessions to amount to $4 per hour. As the
employees were due a 43-cent COLA on July 5, their
base wage rate would have increased on that date from
$9.59 to $10.02 per hour. Thus, the Company was re-
questing an hourly wage reduction $2.02.
Regarding the wages, Plant Manager Neumeister said
the Company had undertaken a survey of packers in the
area who, in his opinion, compete with the Respondent,
and that the result of the survey indicated that the wage
rate of this competition was around $8 per hour. Howev-
er, according to Niederdeppe, Neumeister said the Com-
pany would need not only the wage reduction but also
all the concessions "to stay competitive." There was a
comment by Olson that he did not want the Company
to, in effect, cause the employees to go out on strike and
then shut down the plant, as had been the- case during
prior negotiations at a different packing plant formerly
operated by the Company. Carman said there would not
be a labor dispute at the Lincoln plant in December be-
cause , according to Niederdeppe's testimony, if "these 13
items were not addressed, the plant would more than
likely not be there."
Niederdeppe testified that the Company was the only
beef' slaughter operation represented by the Union that
predominately manufactured carcass beef, the other
plants being boxed beef facilities, and that the machinery
and equipment needed to run a boxed beef operation is
substantially different from that need to produce carcass
beef. Neumeister , according to Niederdeppe, said the
Company would like to get into boxed beef and needed
to be competitive in this area , and Niederdeppe testified
that he "may have" voiced his agreement that if the
Company was `going to compete in the beef business,
they would probably need a box beef operation."5 Nie-
derdeppe also recalled that District Director Olson
agreed with this evaluation.
Then, according to Niederdeppe, "somewhere in the
middle of the meeting," Olson asked Carman if the Com-
pany was "pleading poverty for the Lincoln plant."
Carman said , "Yes." Olson replied that there was, a con-
tract in effect until December 4, and the Union expected
the Company to live up to it. Neumeister explained that
the rollback of wages to $8 in December, as proposed by
the Company, would be less painful to the employees if
the cost-of-living increase was waived.
The Union had in its possession at the meeting, ac-
cording to Niederdeppe, a copy of a news, release dated
4 The Respondent 's plant was the only carcass beef operation in the
Union's jurisdiction , the other slaughterhouse operations being box beef
plants. The distinction is apparent Thus, in a carcass beef operation, the
cattle are slaughtered, processed , and shipped to retail stores in whole or
split carcasses comprising virtually the full body of the beef. A boxed
beef operation, also called "block ready" beef and "beef fabrication" con-
sists of reducing the carcass into primal or subprimal cuts, which are
vacuum packaged and shipped to the retail stores in boxes. The employ-
ers that produce boxed beef are commonly referred to, in the vernacular,
as "new breed" packers.
5 Carman credibly testified that Niederdeppe made the statement that
even if the Union agreed to all the concessions, the Company "won't
make it anyway" unless it converts to boxed beef
June 2, issued by American Stores Company, which an-
nounced that "American Stores Company Has Record
First Quarter." The news release also states:
As previously reported, the Company's Acme Mar-
kets subsidiary in Philadelphia is in the process of
closing certain facilities in the Baltimore, Maryland,
Washington, D.C. and south central Pennsylvania
areas as the result of longstanding unsatisfactory op-
erating results.
Niederdeppe testified that, unlike the subsequent meet-
ings during which he took extensive notes, he took no
notes of the July 1 meeting other than to, make brief no-
tations on the document handed to him by the Company.
Lloyd Mueller, secretary-treasurer of the Union, testi-
fied that at the "tail end" of the meeting, District Direc-
tor Olson asked, "Well, is this a plea, a poverty plea of a
company that is and has been losing money for years?"
Carman responded by saying, "Yes, it is." With that, ac-
cording to Mueller, the meeting "pretty well broke up."
Mueller testified that he was surprised at this statement
as he did not believe the plant was in such dire straits,
and he "immediately jotted it down for future refer-
ence." Explaining, Mueller stated, "I thought it was im-
portant that we did, write down just what he said be-
cause it could be useful to us in negotiations . . . because
if that was the plea of the company and if they were
indeed needing and wanting severe cut backs, then that
statement would give us, I felt, a right to look at their
books and to ascertain whether or not there was a need
for it."
Mueller's notes, consisting of two pages, contain the
statement, inter alia, "Acme profits declined must
become more profitable." The final entry on the last
page is as follows:
Wendell [Olson]-is this a poverty plea of a
Company that is and has been lossing [ sic] monies
for years.
Bob Carman: Yes it is.
Roger Worman, chief steward, testified that the state-
ment was made as the participants were "packing up; in
fact we had our briefcases closed-at least I had mine
closed." According to Worman, Olson asked, "Are you
pleading poverty for the Lincoln facility?" The response
from Bob Carman was, "Yes."
Carman testified that at the July 1 meeting, Nieder-
deppe indicated that he was aware that American Stores
and Skaggs were making money. Carman did not refute
this. Moreover,- at no time did he or Neumeister say that
Acme Markets, Inc. or the Lincoln plant was unprofit-
able, or that the Company or the Lincoln plant was not
able to afford 'to pay the COLA. Nor was there any
statement concerning poverty in connection with any of
the operations of American Stores, Acme Markets, Inc.,
or the Lincoln plant.
Carman summed up a portion of the July 1 meeting in
a "Memo to File" as follows:
Following the introduction of R. Carman, D.
Neumeister stated that the purpose of the meeting
AMERICAN STORES PACKING CO.
was to establish communications with the Union,
and to discuss the serious problems that are facing
Acme Markets and the Lincoln Packaging Plant
and as a means of rectifying these problems we
were seeking help from the Union.
Dan [Neumeister] stated one of the foremost
problems is our inability to remain competitive in
the open market, more specifically with Iowa Beef
and Missouri Beef and that if these Companies con-
tinue to operate with the drastic economic advan-
tage that they presently enjoy, Acme Markets
would be forced to totally abandon the Lincoln fa-
cility. He continued to explain that the Company
realizes that it must make a decision to convert to
box beef operation, but this decision would be im-
possible to act on at that time.
On July 9, following receipt of a letter dated July 7
from the Union, demanding that the COLA be paid in
accordance with the contract, the Compnay issued the
following bulletin, signed by Neumeister, to its employ-
ees:
As you know on July 1, 1982, we met with offi-
cials of the United Food and Commercial Workers
Union. At that meeting we requested that the cost
of living adjustment, scheduled for July 5, 1982, be
waived and that several other economic conditions
in the labor agreement be modified.
I want you to know that this request was made
only after much thought, and acceptance of the fact
that such action is necessary. We must make every
effort to head off more serious consequences in the
future.
I have been notified by UFCW Local 22, in a
letter dated July 7, 1982, that, the Committee has
found nothing to warrant the pass of the cost of
living adjustment. A demand has been made that
the increase be implemented. Because of this we be-
lieve that not everyone is fully aware of the conse-
quences associated with our ability to be competi-
tive.
It is a well known fact that successful new breed
packers, who now are the leaders in the meat pack-
ing industry, are operating non-union or with labor
contracts but in either case with much lower wages
and less costly fringes than ours.
We have taken every reasonable step to reduce
costs internally but our labor contract costs are
among the highest in the industry. Further, in an
effort to keep them in business many other plants
have been granted major concessions to their labor
agreements.
Unless we receive the economic relief we have
requested in the labor contract our ability to main-
tain the Lincoln plant will be placed in serious jeop-
ardy.
I believe that this matter is not fully understood
and that it is so important to your job security that
there should be an opportunity to express your feel-
ings by casting a ballot.
The Lincoln plant needs your support and the
support of your union, In order to protect our jobs
1663
it is necessary to become cost competitive in the
market place.
On July 19, the Union issued a bulletin, signed by Nie-
derdeepe, to the union membership stating , inter alia, as
follows:
As you know the American Stores Lincoln plant
manager along with his superior from Philadelphia
(Mr. Bob Carman) summoned our Local Union offi-
cers along with our District Director to a meeting
on July 1, 1982 in Bloomington, Minnesota.
Having seen the American Stores Co. record first
quarter earnings before the meeting, we can readily
understand why they were too ashamed to have the
meeting in Lincoln. The Company stated they
needed the payment of the 430 cost-of-living in-
crease suspended.
As far as we're concerned, this Company is not
McDonalds-they don't deserve a "break today."
Not when they brag to the stockholders that their
first quarter earnings are a record. A record that
saw sales increase 9.2%. A record that saw Net
earnings increase 70% and dividends to stockhold-
ers increase 97%. With that it really takes guts to
try to chisel the workers out of 43* they had a con-
tractual right to!
As fas as we're concerned we bargained in good
faith in 1979 Boss. We assumed until July 1st you
had too. We have a contract until December 4,
1982. We'll live up to it and we damn well expect
you to!
b. The July 23 telephone conversation
On July 16 the Union filed a grievance over the Com-
pany's refusal to pay the COLA. Thereafter, a grievance
meeting was scheduled for August 2. Meanwhile,
Carman contacted Olson on Friday, July 23, in an effort
to continue discussions . During the telephone conversa-
tion , Olson referred to the strike at Iowa Beef Proces-
sors, which company had been involved in a lengthy
labor dispute with a sister local of the Union herein,
saying that was a "hell of a Donnybrook" and "We're
dead in the water as long as they're out. We couldn't do
anything for you [in the way of concessions] until they
come back." Regarding the COLA grievance, Olson
said , "You know you have to pay." Carman said he
hoped to negotiate "but we know the contract calls for it
to be paid." There was no request for financial informa-
tion by Olson, nor did either Carman or Olson allude to
any inability on the part of the Company to pay the
COLA. The work poverty or poverty plea was not men-
tioned. During the course of the conversation, Carman
simply told Olson that the Company did riot want to pay
the COLA until the Company felt the issues were not
amenable to resolution through negotiations.
1664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
c. The August 2 grievance meeting
The August 2 grievance meeting was held as sched-
uled.6 Neither Niederdeppe nor Carman was present.
The transcript of the proceedings shows that Neumeister
stated the COLA would not be paid because "the Com-
pany must get competitive." Lloyd Mueller, spokesman
for the Union , said , "But I guess if you're saying you
don't have money and can't pay it, we want to hear it."
Neumeister replied, "It is a big Company and there is
money in the Company and it is not a wise move on our
part I don't believe to pay a COLA when in order to get
competitive , we're going to have concessions."
There was conversation about competitive wage rates.
Mueller implied that the Company was competitive vis-
a-vis pork processing plants, and Neumeister stated he
regarded the Lincoln plant as a beef plant, which proc-
esses 80 percent beef. Neumeister stated that the various
newspaper articles of which the Union was aware indi-
cated that the competition was paying about $8 per hour,
and that the retail stores would make the best buys they
could and "can't subsidize this operation," even though
"the Company as a whole has done very well this year."
Neumeister also said the plant did not have a chance "to
survive in the current meat industry the way we are."
At the end of the meeting, Neumeister discussed com-
petition with Iowa Beef Processors in terms of the poten-
tial of converting to boxed beef. Mueller replied that the
potential had been there for 15 years. Neumeister indicat-
ed that the concept was gaining interest in the Compa-
ny's retail stores and was the type of beef used in Skaggs
and Alpha Beta stores. He added that he knew the Union
was aware that the Lincoln facility had proposed a
boxed beef operation, but that Acme Marktes, Inc. had
refused to consider it until the Lincoln operation was
"competitive labor wise."
d. The August 26 meeting and related events
Carman reported the details of the July 1 meeting to
various officials of Acme Markets, Inc. including its
president, Tom King. There was extensive discussion of
the boxed beef concept and Carman advised that union
representatives had very clearly stated that the requested
concessions would not be worthwhile, and that "the
plant wouldn't last anyway," unless it converted to
boxed beef. Thereafter, King presented such a proposal
to the appropriate officials of American Stores Company,
who authorized an expenditure as high as $8 million for
conversion of the Lincoln plant to a boxed beef oper-
ation, provided that the boxed beef operation commence
business with a competitive labor agreement, and that
the contract be for a period of time which would ensure
long-term security and stability.
Thereupon, Carman set up a meeting between William
Wynn, president of the International Union, and King, in
Washington, on August 26. According to Carman, King
explained to Wynn that Acme Markets, Inc. had recently
received authorization from American Stores Company
to invest sufficient money to convert the Lincoln plant
to a boxed beef operation under the conditions specified
above. Wynn asked about the Company's activities in
Baltimore, particularly the retail store closing program,
and asked how Acme Markets, Inc. was doing. King
said, "We're making some money. We're profitable."
Then there was some discussion about the pending
COLA grievance at the Lincoln plant.
There was a further discussion of boxed beef, and the
Company's intentions in this regard. Wynn asked how
much money would be invested, and King responded
that the cost would be as much as $7 or $8 million.
Carman also advised Wynn that the conversion to boxed
beef would present the opportunity for additional busi-
ness from the Alpha Beta and Skaggs subsidiaries of
American Stores Company. Wynn was apparently not
persuaded, responding that the Union could not do any-
thing that would be embarrassing during the strike
against Iowa Beef Processors by a sister local and stating
that he would not alter the Union's position regarding
the COLA.
e. The September 9 grievance meeting
At the next COLA grievance meeting, a very brief
session held on September 9, Neumeister emphasized that
the Company did not want to close the facility and "will
fight quite hard to prevent it" from closing, but that "we
owe it to the people . . . to get this facility competitive."
Neumeister then stated that the Union's recalcitrant atti-
tude has frustrated the Company's objectives, and that
"if the plant goes down, we'll look to you as responsi-
ble." Mueller replied that the employees were entitled to
the COLA and would not waive it, that they were not
there to negotiate a contract but rather to conduct a
grievance meeting over the COLA, and that the Union
would negotiate a new agreement at the proper time.
There was no specific discussion of boxed beef.
f. The Union's request for information and the
Respondent's reply
On September 27, the Respondent sent the following
telegram, signed by Carman, to the Union:
THIS TELEGRAM WILL SERVE AS THE OFFICIAL
NOTICE REQUIRED BY THE LAW OF OUR INTENT TO
TERMINATE THE COLLECTIVE BARGAINING AGREE-
MENT BETWEEN YOUR UNION AND AMERICAN
STORES PACKING COMPANY, DIVISION OF ACME MAR-
KETS, INC.
MORE IMPORTANTLY, HOWEVER, THIS TELEGRAM
WILL ALSO SERVE AS OFFICIAL NOTIFICATION OF
OUR INTENT TO ENTER INTO IMMEDIATE DISCUS-
SIONS WITH YOUR UNION CONCERNING POSSIBLE
PERMANENT CLOSING OF OUR LINCOLN, NEBRASKA
FACILITIES. WE WILL BE AVAILABLE TO MEET WITH
YOU AND YOUR COMMITTEE IMMEDIATELY AT A
MUTUALLY [SIC] LOCATION TO DISCUSS ALL ASPECTS
OF THIS MOST IMPORTANT DECISION.
6 All grievance and negotiating meetings referred to hereinafter were
memorialized in verbatim form The transcripts of these various meetings HOWEVER, YOU SHOULD BE FULLY AWARE THAT
have been introduced into evidence and are a part of the record herein THERE IS AN IMMEDIACY TO THE IMPLEMENTATION
AMERICAN STORES PACKING CO. 1,665
OF SUCH DECISION WHICH CANNOT BE OVEREMPHA-
SIZED. ACCORDINGLY, WE WOULD REQUEST YOUR
RESPONSE AS QUICKLY AS POSSIBLE.
On October 4, the Union replied as follows, in a tele-
gram signed by Niederdeppe:
WE RECEIVED YOUR TELEGRAM DATED SEPTEMBER
27, 1982 ON SEPTEMBER 29, 1982 NOTIFYING US OF
THE COMPANY'S INTENT TO TERMINATE THE CON-
TRACT WITH OUR UNION UPON ITS EXPIRATION
DATE OF DECEMBER 4, 1982, AND OF THE COMPA-
NY'S REQUEST TO ENTER INTO EARLY NEGOTIA-
TIONS BECAUSE OF THE POSSIBILITY OF A PERMA-
NENT CLOSING OF THE PLANT. AS WE HAVE STATED
IN SEVERAL PRIOR MEETINGS, WE ARE WILLING
AND ANXIOUS TO ENTER INTO NEGOTIATIONS FOR A
NEW CONTRACT TO SUCCEED THE PRESENT CON-
TRACT AFTER IT EXPIRES. WE BELIEVE THAT EARLY
NEGOTIATIONS ARE FEASIBLE AND DESIRABLE.
YOUR TELEGRAM REFERS TO A POSSIBLE IMMINENT
PERMANENT CLOSING OF THE PLANT IF AN AGREE-
MENT CANNOT BE REACHED AND, IN OUR PREVIOUS
MEETINGS, YOU AND OTHER COMPANY OFFICIALS
HAVE STATED REPEATEDLY THAT THE OPERATION
OF THE LINCOLN PLANT IS UNPROFITABLE AND
THAT THE COMPANY CANNOT AFFORD TO CONTINUE
TO PAY THE CURRENT WAGE AND BENEFIT LEVELS
TO THE LINCOLN EMPLOYEES; INDEED, YOU HAVE
EVEN GIVEN US A LIST OF CONCESSIONS WHICH THE
COMPANY SAYS IT MUST HAVE TO KEEP THE PLANT
OPEN. IN- ORDER TO BE IN A POSITION TO MAKE AN
INTELLIGENT APPRAISAL OF THESE DEMANDS AND
IN ORDER TO BE ABLE TO ADVISE OUR MEMBERS
AND TO ENGAGE IN INFORMED AND INTELLIGENT
COLLECTIVE BARGAINING, IT IS ESSENTIAL THAT WE
HAVE, AND WE HEREBY REQUEST, THE FOLLOWING
INFORMATION: 7
WE DO NOT KNOW HOW LONG IT WILL BE BEFORE
YOU CAN MAKE THIS INFORMATION AVAILABLE BUT
IT IS CERTAINLY OBVIOUS THAT YOUR THREAT OR
IMPLICATION THAT THE PLANT WILL QUICKLY
CLOSE UNLESS AGREEMENT IS REACHED IMMEDIATE-
LY, IS BOTH UNREALISTIC AND OFFENSIVE. NEGOTIA-
TIONS CONDUCTED WITHOUT ESSENTIAL INFORMA-
TION, UNDER THREAT OF IMMEDIATE CLOSING OR
REMOVAL OF PLANT OPERATIONS UNLESS YOUR DE-
MANDS ARE MET, AND UNDER DEADLINE OF SFIORT
DURATION, CLEARLY DO NOT MEET THE MOST ELE-
MENTARY REQUIREMENT OF GOOD FAITH BARGAIN-
ING ON YOUR PART.
WE THEREFORE REQUEST THAT THE INFORMATION
BE MADE AVAILABLE AS QUICKLY AS POSSIBLE,
WITH REASONABLE OPPORTUNITY FOR ANALYSIS BY
US, AND ASSURE YOU THAT WE ARE PREPARED TO
ENTER INTO NEGOTIATIONS PROMPTLY.
7 The information which the Union requested is set forth in Appendix
Carman replied by letter dated October 7, as follows:
Your telegram of October 4, 1982, in response to
our repeated requests fora meeting to discuss the
future of our Lincoln Plant, has been received.
Since our original meeting on July 1, 1982, we have
on numerous occasions, the last ibeing in our Sep-
tember 27, 1982 telegram, sought unsuccessfully a
meeting with you to discuss these critical and time-
sensitive problems. Your telegram responding to
our latest request for such a meeting is obviously a
continuation of your unwillingness to discuss the
impact of your labor contract upon the continued
viability of the Lincoln Plant. We are at a loss to
understand why the establishment of a meeting to
discuss possible ways of preventing the closing of
this plant is not your most critical priority.
We believe that a meeting must be held as soon as
possible, and we urgently request that you re-exam-
ine your continued refusal to schedule such a meet-
ing. It is imperative that we meet with you in Lin-
coln or any other place of your choosing at any
time during the week beginning October 11, 1982.
Because of the urgency to make a decision regard-
ing the Lincoln Plant, if we are unsuccessful in es-
tablishing a meeting that will produce good faith,
meaningful negotiations, we will be forced to con-
clude our management decision relating to the con-
tinued operation of the facility without the benefit
of knowing the position of our employees as ex-
pressed through you, their collective bargaining
representative. We must stress that your failure to
represent the interests and state the position of your
members who will be affected by this decision
which must be made in the very near future places
significant barriers toward reaching a mutual under-
standing relating to the future of this plant.
We must also call to your attention the fact that
assertions in your telegram are factually inaccurate.
At no time has any management representative
stated that Acme "could not afford to continue to
pay the current wage and benefit levels." Neither
has any management representative ever stated that
the Lincoln operation has been "unprofitable."
Indeed, from the commencement of our discussions,
we have consistently stressed that the Company be-
lieves that we must have competitive wage and bene-
fit conditions at our LIncoln operation in order to
justify the continuing operation of the plant and to
justify further consideration of our plans for major
capital expenditures to modernize and expand the
plant. Again, ' we emphasize the need to make a de-
cision in this regard in the very near future.
With respect to your request for information, we
will continue, of course, to comply with all aspects
of the National Labor Relations Act. However, we
are denying your request for the information set
forth in your telegram.
Please understand that we will be forced to make
the necessary management decisions relating to the
Plant and the job security of your members without
the benefit of your representation of our employees'
1666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
position unless the long-sought meeting culminating
in meaningful negotiations occurs during the week
beginning October 11. We eagerly await your im-
mediate response.
g. The October 19 negotiating meeting
The first, "negotiating" meeting, as distinguished from
the foregoing "grievance" meetings, was held on Octo-
ber 19. This was apparently the first occasion throughout
the parties' long history of collective bargaining that a
representative of Acme Markets, Inc., Robert Carman,
rather than the Lincoln plant manager, negotiated the
labor agreement.
Carman began the meeting with a lengthy opening
statement. Because of its importance, it is set out in full
as follows:
I think we discussed in Bloomington [Minnesota]
Acme Markets is a new and different company and
that certainly has an impact on the plant here in
Lincoln. I would hope to have Ed [Gass] and Dan
[Neumeister] and I'm sure they will speak for them-
selves and clarify anything that I might leave unsaid
or that might not be clear enough concerning the
operation. What I would like to do is sort of clear
the air and define the purpose of this meeting. And
I think the purpose might be a little bit different
than either of us would prefer or imagine. But in
our judgment the purpose of this meeting is to dis-
cuss the possible permanent closing of the Lincoln
plant. That being said what I would like to do and I
hope we can achieve , I want to express the opinion
of all of Acme's management . I'm sure I reflect
Dan's and Ed's sentiment too. We want to ex-
change, we want to talk, we have a tough situation
but we hope we can communicate and discuss
things freely. I would like to put aside the legal pos-
turing that possibly we have been going through.
I'm confident you have been getting legal advice
and I'm confident that I have been getting legal
advice and I would like to say let's leave the legal
posturing aside and see if we can resolve a most
critical situation. I would also like to clarify that
we're not setting the stage here today for what
might be considered historical bargaining for con-
tract renewal. I think we're in a different situation.
We would like to address it as such.
I said we want to discuss the possible permanent
closing and then I would like to say that it is very
much our objective to keep the plant running. To
do this though as we have said before we must have
a competitive labor contract and we have to have
reassurance that there is labor responsibility which
in effect means security for the bargaining unit and
the Company. And I think we initiated early discus-
sions. We had a meeting in Bloomington July first.
Since that time we think the Union has not acted
properly but that's our opinion. The Union repre-
sents the bargaining unit and their actions speak for
themselves. What we have not accomplished
though is any progress and we ended up I think
losing some valuable time. Our contract perhaps has
become more uncompetitive. In any case we have
that work to do.
Now, in Bloomington both Dan and myself tried
to explain the many things that have happened at
Acme. I think since late 1980 into '81 and at least
up until that time. And where Acme Markets was
doing very poorly and a new president was appoint-
ed, Tom King. I think we told you that Tom King
actually has run packing plants, slaughter houses
and so on. So frankly I think that's a good situation
for all of us here and the people in the plant to have
someone who really knows the score and how it
works.
With the advent of Tom King I can tell you and
I will just very briefly mention there has been a
streamlining of Acme Markets, major cutbacks in
management people, many, many demotions, elimi-
nations of many, many jobs, major cutbacks on
overhead and expenses. I will guarantee you it is
still going on and one of the biggest reasons we had
to get our costs down, to get sales out into retail
stores which far in the way [sic] was our biggest
and most important problem we were facing. I want
to tell you that has been basically successful as far
as Acme is concerned, the retail sales have grown.
The retail sales in the stores back East are good.
We have all of the problems you might imagine
with competition but our sales are remaining at a
good high level.
Now, what we had hoped or thought we did in
Bloomington was to make a proposal that would
put us somewhat in line, maybe in line with compe-
tition and we said at that time that it was extremely
important and necessary that we had a competitive
contract. As I said not much has changed except
we lost a lot of time. We find ourselves now in a
position that unless the contract is changed materi-
ally significantly enough to make it competitive, in
our opinion that in the very near future manage-
ment will have to formalize and make a decision on
whether or not the plant will remain open.
I want to tell you that there has been work done
on this consideration for many months including
prior to the Bloomington meeting. I can assure you
that there were not, are not, there is no decision at
the present time. What we can jointly work out will
determine which decision management will make, if
you will.
I want to say it has become necessary that we es-
tablish some target dates because switching the op-
eration, everything that's done at Lincoln to outside
sources to accommodate the stores, to do all the lo-
gistics, to find sources to plan, to coordinate with
all of the people, there are over six hundred people,
we have had to pick some dates that are target
dates so that decisions can be made. And I can tell
you that there is a target date that if we have not
concluded a satisfactory understanding within a
time period which I will define to to you.
The target date for beginning the shutdown at
the Lincoln operation at this time is November
AMERICAN STORES PACKING CO.
10th. I say at this time, we had to establish a target
date which we did. Now, at Lincoln [sic] you asked
some questions . There's been studies made since
that time.8
There have been reconsiderations of other studies
and I can tell you the primary question I think
which has interest to all of us, what about a boxed
beef operation . And I can tell you that the Compa-
ny under the right set of circumstances will convert
the plant to a boxed beef operation. Now, to do that
requires an awful lot. It requires an awful lot of
money and requires as much stability as is possible
to generate. The facts haven't changed much since
July and therefore we would like to submit to you
our proposal that we gave you in July, make some
changes in it , and explain how the change would be
affected by a boxed beef operation. (Robert Carman
then distributes the copies to the Union table.)
I believe this is the exact copy what we gave you
in Bloomington . We thought if we did it in that
fashion we could make changes, we would know
just where we were. Fair enough?
Now, frankly what we have done is change the
date to today's date and say here is an amended
proposal. As we said in Bloomington there may be
other ways to get where we have to go. There may
be ways we don't have the ingenuity to come up
with. So, we're not frozen on the items, the magni-
tude of them.
Now, we feel it is generally in line with what we
consider effective competition, important competi-
tion.
[Thereupon, Carman read and commented on
proposals I through 12.]
Number thirteen, in light of the financial invest-
ment necessary in the construction and a lot of
things necessary to go to a boxed beef operation,
we are proposing a five year contract as stated to
expire on December 5, '87.
Upon the conclusion of Carman's remarks, Nieder-
deppe made the following response:
I was courteous. I wasn't going to give you a
statement until you got done. You mentioned the
legal ramifications. We too would have like to have
stayed out of that. We once thought that period of
the contract was sacred. You have proven to us
" The Union did not, at any time during the negotiations, request to
see these studies However, they were introduced into evidence herein
One study, dated September 3, 1982, entitled "Current Wage Survey"
shows that the average wage for beef slaughtering and processing, re-
spectively, among 16 of the Company's competitors, is $8.0039 and
$7.5269 per hour. Another detailed study discusses, inter alia, growth po-
tential of the Lincoln plant and forecasts that competitive rates would
result in both substantially increased employment and tonnage produced.
The study concludes as follows:
Without competitive rates we will (should we remain open) con-
tinue to decline as more and more competitors price us out of the
markets
Without competitive rates the Company cannot justify investments
in the Lincoln facility
With competitive wages and supplemental benefits the Company
will invest several million dollars in equipment and the physical plant
so that the key to growth-boxed beef-can be produced at Lincoln
1667
that 's not the fact . So, I've got a letter addressed to
you Robert Carman . I'm going to read it.
Niederdeppe proceeded to read a prepared letter be-
rating the Company for failure to provide the requested
information , for continuing the threats of imminent plant
closing , for posting certain memoranda in the plant, and
for failing to pay the COLA. After briefly outlining the
charges pending before the National Labor Relations
Board, the letter, as read by Niederdeppe, concludes as
follows:
We do not feel that we can engage in meaningful
negotiations without this requested information as-
suming that the Company has not altered its previ-
ous demands for substantial concessions, we are in
no position to engage in intelligent bargaining or to
advise our members of their options without the re-
quested information.
Nor do we intend to bargain with a shotgun at
our heads, which apparently is what the Company
intends by continually threatening the imminent
closing of the plant unless we yield to the Compa-
ny's demands.
We have agreed to this meeting only at your in-
sistence . You have made it impossible for us to be
in a position to negotiate at this time . We will listen
to what you have to say, in the hopes that your in-
transigent position has changed . But until you agree
to bargaining good faith, which includes the disclo-
sure of necessary information to us, it is impossible
for us to enter into collective bargaining negotia-
tions. Finally, by agreeing to this meeting, we do
not intend to waive any rights we may have under
federal labor laws.
Prior to presenting the Company with the Union's
proposals, Niederdeppe said:
We will give you our proposals, look at them,
decide what you want to do. But you tell us the
plant is going belly up and broke in one shot. The
next shot you're making a lot of money. And we
frankly just don't know where to believe and what
to believe.
At that point in the meeting the Union distributed and
read some 50 contract proposals, which included a wide
range of items from a "substantial wage increase" to "fix
front sidewalk and alley-ways."
Regarding Niederdeppe's statement about the Compa-
ny's alleged inconsistent positions, Carman replied:
As far as being belly up or broke, I don't think
there should be any misunderstanding about that. I
thought we very clearly stated our position in re-
gards to Acme Markets and the objectives with the
Company. The Company had to get additional sales
and had to get a competitive contract in the East
and every place else and that we had made major
concessions inside the Company with management
people first.
I668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As far as the Company making money, we would
not be in a possible position to invest money , signifi-
cant amounts of money in a blocked ready beef op-
eration if the Company were losing . But we're not
going to invest a dime in an operation where the
labor contract does not show stability and is not
competitive in the industry.
I guess I would repeat, I'm very, very sorry that
policy can get in the way of jobs. Now, we have
been requesting negotiations since before July and
we, had a meeting ,July 1st . We asked for help on
July l,st . That also should be a matter of record. We
"thought and we feel we cleaned up our own house
and we explained at that time. So we did not estab-
lish any dates , create any false deadlines or threaten
to bargain under the gun since we have been talking
before July to officially set up a meeting . We offi-
cially sat across the table on July 1. We have been
trying to continue those discussions since July 1.
My first statement was I 'm sorry that lawyers
appear to be getting in the way of making progress
between a Company and a Union. I think if you
will look at the sequence of events, you will not
find the Company cast the first stone. We have been
negotiating , we have been trying to negotiate since
July. We have made you a revised proposal. We
told you we have established a target date which is
necessary for the Company to do its planning. We
are telling you we want an answer on our proposal
to you no later than October 28 . We are saying we
are ready to negotiate today, tomorrow , whenever
we. can establish mutual times to meet.
Niederdeppe stated at one point that Carman had
pleaded poverty at the July 1 meeting , and "Then you
flipped around again ." Mueller added:
You also said at that time - you were in a poverty
stricken stage here in Lincoln when I asked you the
question direct and wrote it down then . Then you
come out with a letter , no, that ain 't true . We don't
know where the hell you're coming from . We give
a list of proposals . You will answer our demands or
else you will close the plant . You go to the people
then . Then you want to sit over there and negotiate
but you want to negotiate under the threat of a gun.
Carman replied:
We never said the Company was going broke. I
told you what was being done at Acme Markets. I
told you what was being done in Acme Markets to
turn around the Company. I told you it was pro-
ducing results. I told you that . That was in July.
The program started in 1981, I told you that.
Regarding the Company 's refusal to pay the COLA,
Carman stated, "We never said we couldn't pay it. All
along we said it's in the contract. "We never said we
couldn't pay it."
Regarding the Company's position that it had to
become competitive , Carman stated:
I think we have been right on top of the table, that
we have to become competitive . We didn't write
the standard contract in the area and we wouldn't
take responsibility . We did not establish area condi-
tions. We did not establish rates in the meat indus-
try. The UFCW has many contracts there and I ask
you if we're not competitive to those, show us
where we're not competitive.
We have a major problem that involves six hun-
dred people, over five hundred of them belong to
UFCW. And we said our objective is to make it a
good business , a ,good business so the employees
will have a job and have security. And we know
and you know to do that necessitates blocked ready
beef and we come back with blocked ready beef.
In reply to a question of how much blocked ready
beef the Company intended to run, Carman said, "If
we're competitive; -we'll run a lot through . We would
hope to sell on the street the same as we did in our
bakery ." Thereafter , Carman spoke at length regarding
the Company's 'need to go to blocked beef, and Neumeis-
ter said the potential investment in a boxed beef oper- -
ation would be "several millions."
Neiderdeppe said at one point, "The guys who do the
surveys on retail chains say Acme Markets is a healthy
operation and continues to stay healthy." At another
point, Mueller said , "Not too many are doing better than
you are right now." Carman responded, "That's right,"
and added that credit for this should be given to Acme
Markets, Inc. for streamlining the Company.
Niederdeppe asked whether, if the wages went to $8,
Carman would guarantee that,the plant would remain
open for 3 years. Carman said he could not guarantee it,
but that they would do everything possible, to keep it
going and that the best guarantee would be the invest-
ment in and security of a boxed beef operation.
h. Payment of the cost-of-living adjustment
Three days after this meeting, on October 22, the
Company paid the COLA to the employees, retroactive
to July 5, enclosing with each check a letter signed by
Neumeister . The letter contains , inter alia, the following
paragraphs:
The reasons we requested the waive of the $.43
Cost of Living Adjustment scheduled for July 5,
1982, was because it would have put your wages
further out of line with competition. We have con-
tinuously attempted' to bargain with your Union
over nonpayment of this COLA as is our right
under the expressed terms of the Contract. To, date
however, our every effort has been met with techni-
cal objections from your Union which has prevent-
ed bargaining.
We still feel it is a mistake to put our wages even
more out of line with the competition. However,
after being frustrated for several months in our ef-
forts, we have decided that if the payment of this
AMERICAN STORES PACKING CO.
increase is the stumbling block to meaningful nego-
tiations we will pay it.
Accordingly, we have enclosed with this letter a
special check which by our records is your retroac-
tive payment of the increase through October 17,
1982.
By now I am sure you are aware that the Com-
pany is willing to commit a major financial invest-
ment in the form of a boxed beef operation at the
Lincoln Plant if there is a long term competitive
labor agreement. We know a competitive labor
agreement means substantial reductions in labor
costs. We know these reductions may cause short
term sacrifice but they are absolutely necessary for
long term security.
Let me assure you that we have and will contin-
ue to do our best to save this Plant.
i. The October ,?8 negotiating meeting
The next negotiating session was held on October 28.
The same parties were present. Also a Federal mediator
was present. Carman said that the parties needed to
come to an agreement that day or the Company would
conclude its decision on whether or not to close the
plant. The first 40 pages of the transcript of this meeting
involved a discussion of certain proposals of the Union.
At the time the Company attempted to bring up its
proposals, Mueller asked whether the Company had
brought the requested information. Carman said that he
believed the Union's request for information was submit-
ted "in a whole different contest," and that he did not
consider asking for the Company's books for the last 5
years to be a sincere request. Carman added that "we
think that if there is material that is sincerely needed for
bargaining or evaluation, we haven't heard it," and that
the Company intended to comply with the law. After a
recess, the Company handed out a modified proposal.
This included reducing employees' employee health and
welfare contributions from $12 per week, as the Compa-
ny had initially proposed, to $6 per week; a contract ex-
piration date of December 5, 1987; an adjustment of the
base labor rate on December 2, 1985, and December 1,
1986, to the "average base labor rate then being paid for
slaughter and for fabrication" at seven named plants then
represented by the UFCW; and that the Company would
continue to operate "the basic Lincoln plant facility
during the 5 year term of the agreement." Carman em-
phasized that one "major" modification from the Compa-
ny's original October 19 proposals "is the commitment
for the major conversion to block ready beef."
After a recess, the Union's representatives returned
and renewed their request for the financial and other in-
formation, saying they could not even think about pro-
ceeding or intelligently examining the Company's pro-
posals particularly without items 5, 6, and 7 of the
Union's request.
Carman emphasized that there was intense competition
at the retail level, that Acme Markets stores were being
undersold, and that the Lincoln plant could not sell to
anyone on the outside because "we're not competitive."
Niederdeppe asked why the Company was against open-
ing its books to "show how bad it is." Carman replied in
1669
effect that the Company was not asking for financial aid.
Carman further said that "the plant needs to go to block
ready beef. The plant needs more volume and that means
we have to be competitive and that means we have to go
on the street with our product."
Near the conclusion of the meeting, Niederdeppe said
that the Union would respond to the Company's propos-
als when the Company provided justification for needing
the concessions. Carman replied, "All we're saying and
all we ever said we want to be competitive. We want to
be competitive." Carman suggested that the Union go to
the employees and tell them that "the Union brought it
[the need to go to boxed beef) to our attention, the Com-
pany thought about it and said the Union is right," and
that the Company would provide assurance that if it
could get a long-term competitive contract, it would
invest money in "block ready beef." At another point,
Niederdeppe said, "You don't want to show us why you
need [the concessions]. You just say take our word for
it." Roger Worman responded to Niederdeppe, explain-
ing, "They're not saying they need it."' Carman added,
"We're saying we want to be competitive, that's what
we're saying."
At the end of the lengthy meeting, the Company made
a "final offer" which included withdrawal of its proposal
that employees contribute to their health and welfare
coverage, and a base labor rate of $8.50 rather than $8
per hour. The Union maintained its position that it
needed the information in order to evaluate its position.
The three items, namely, 5, 6, and 7, according to
Carman, "do not materially affect what we have been
discussing, Any reason that you can see that this is nec-
essary?" Niederdeppe said, in effect, it would reflect on
the Union's judgment regarding the Respondent's pro-
posals and would permit the Union to ascertain whether
the Company was competitive.
j. The November 9 negotiating meeting
On November 3, Carman wrote to Niederdeppe stat-
ing that, as a result of the Union's telegram of November
2 advising that the membership had rejected the Compa-
ny's final offer, the decision had been made to shut down
the plant permanently and that the Company would
enter into effects bargaining. The next meeting was held
on November 9. The same representatives were present.
Mueller said that there had been a membership meeting
to vote on the Company's final offer made at the preced-
ing meeting, and it had been overwhelmingly rejected.
Carman announced that the Company, being unable to
negotiate guidelines for continuation and expansion of
the plant, had made a decision to permanently shut it
down. Carman reviewed the events and said:
I think I can state that in all of our meetings we
have said that we sincerely want to keep the plant
open. I say that not just to say the Company wants
to keep the plant open but the Company wants to
keep the plant open because it is a good business
venture and it has produced good product and it
appeared as though there was an opportunity for
long-term continuation of the plant.
1670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He thereupon invited further discussion regarding the
Company's final offer in the event there had been some
misunderstanding. The Union requested information re-
garding the closing, and said it desired to engage in
good-faith negotiations about the effects of the closing
on the unit employees. Further, the union representative
expressed a desire to continue to negotiate a new con-
tract on the disclosure of the requested information.
After a recess, the Union presented a counterproposal,
which included the freezing of wages at their present
level. The Company did not immediately comment on
the proposal, but continued to respond to the questions
posed by the Union regarding the shutdown. Regarding
the proposal, Carman requested a caucus. However, the
meeting did not resume that day.
k. The November 10 negotiating meeting
The parties met again the following day, November
10, and continued to discuss the effects of the closing.
Carman responded to questions posed by the Union. Re-
garding plans for supplying the retail stores of Acme
Markets, Inc, with meat products, Carman said this
matter would be handled by Acme Markets, Inc. rather
than the Lincoln plant management.
1. The November 22 negotiating meeting
The final meeting prior to the plant closure was held
on November 22. Carman officially stated that the Com-
pany rejected the Union's November 9 proposal, al-
though it had apparently been previously understood by
the parties that the Respondent was not receptive to the
proposal. It was reiterated that the Lincoln plant would
not beacquiring any product, but rather Acme Markets,
Inc. would handle the supplying of the product to its
grocery stores. There was discussion about the contract
and Carman was asked by Louie Anderson, a union rep-
resentative, whether the Company needed what was em-
bodied in its "final offer" of October 28, in order to keep
the plant open. Carman replied:
With the items that we have put in there so far as a
commitment to block ready beef and a commitment
to keep the plant-open for five years, the answer is
yes. That's what we feel would be justification for
maintaining the business operation and expanding
yes.
Then the following took place:
Louie Anderson: And at this particular point in
time, it would appear that the Company has geared
a portion of this particular proposal to boxed beef
operation and some of the proposal is geared to
boxed beef. In other words can boxed beef be sepa-
rated out of the proposal which in effect would
change the bargaining operation around in these
particular negotiations?
Carman: I doubt it. As we have discussed across
the table on July 1, the members of the Union Com-
mittee that were in Bloomington clearly pointed out
to us that there was no security and no reason to do
anything if the Company was not going to boxed
beef. That's the only reason for the employees to
deal was if the Company would go boxed beef. I'm
not quoting anyone but I think the Union expressed
their position very clearly and I think it impressed
us, the management people that were there, and we
then discussed this with management and then the
boxed beef proposal did come up.
in. The December 6 negotiating meeting
As noted above, the plant was completely shut down
on December 4, after approximately a 1-month period
during which the operations were gradually phased out.
Another meeting was held on December 6, the day pre-
ceding the commencement of the hearing in this case.
Carman reiterated that the Company's proposals were
negotiable. There was discussion about the meaning of
"being competitive," particularly in view of the Re-
spondent's specific circumstances, and general discussion
of the Company's potential profitability in the context of
investing in a boxed beef operation. There was a reca-
pitulation of the various bargaining proposals advanced
throughout negotiations, and a somewhat modified pro-
posal by the Union which evoked the response from the
Respondent that the proposal was insufficient to "justify
an expenditure for block ready beef." The Company's
promise to keep the plant open for 5 years was discussed,
and Carman was asked how many employees the ,Com-
pany would promise to keep on the payroll. He an-
swered that the number was indefinite and depended on
the amount of business the Respondent could obtain; that
it would be "the number adequate to maintain operation
as a blocked beef plant" and that the Company 'would
work with the Union on the number of employees neces-
sary to staff the plant.
After a recess the Union modified its wage proposal,
reducing it from a proposed base rate of $9.59 to $9.30
per hour, made some additional modifications on con-
tract provisions regarding clothes changing time and va-
cations, and said that on this basis a contract could be
drawn up. Carman asked whether, tinder this new union
proposal, as under the Union's prior proposals, the Union
still insisted on retaining the right to reopen the contract
on September 1, 1984, on ,wages and COLA only, with
the right to strike in the event, no agreement on these
items was reached. The Union responded affirmatively.
After a caucus, the Company refused to accept the pro-
posal and the meeting concluded.
n. The December 13, negotiating meeting9
The transcript of the December 13 meeting shows that
the parties discussed boxed beef in detail. Carman, during
® The December 13 meeting took place during an adjournment of the
hearing herein . The transcript of this meeting , offered by the Respondent,
was placed in the rejected exhibits file, on the representation and strenu-
ous objection , by the General Counsel and the Union that it constituted
settlement discussions rather than ongoing contract negotiations Howev-
er, the parties were permitted to refer to the document when necessary
As counsel for the Union has based her- argument,- in significant respects,
on the-portion of the transcript of the December 13 meeting pertaining to
boxed beef, I make the exhibit a part of the record herein.
AMERICAN STORES PACKING CO. 1671
the early part of the meeting, stated that the Company
was unwilling to invest millions of dollars in a boxed
beef operation "where we are not wage rate, benefit
level and working condition competitive with the new
breed packers that are springing up all over the place in-
cluding the pork business," that the simple fact of the
matter is that a carcass beef plant like Lincoln does not
make sense anymore in the real world of the market-
place. Boxed beef is the name of the game, and that
"Acme needed to get into boxed beef." The Union, after
being furnished with some confidential statistics concern-
ing how much fresh beef and processed meat, including
pork, came through the plant, asked a number of specific
questions about the Company's need for a boxed beef op-
eration, including the exact amount of money the Com-
pany intended to invest, how many jobs would initially
be in the new boxed beef area and how many jobs it
would generate, how much volume in heads per hour
would be processed, and whether the Lincoln plant
could sell its products in the outside market. The Union
also renewed its request for the financial information.
At this point, Carman and the union representatives
engaged in a lengthy discussion of the answers to these
and other question which discussions comprise some 20
pages of the transcript and the greater portion, in terms
of substance, of the entire meeting. Carman' s answers
primarily consisted of lengthy explanations regarding the
need for planning and preparation, including modifica-
tion of retail store equipment, and the negotiation of
modifications to existing contracts with sister locals of
the Union dealing with the problems involving meatcut-
ters and the apprenticeship program at the retail grocery
stores upon the introduction of boxed beef.
Summarizing Carman's response to the questions, it
may be fairly concluded that he explored with the Union
the potentials of boxed beef vis-a-vis the Lincoln plant,
and stated, in effect, that although the opportunities were
unlimited, the answers to the questions posed by the
Union were necessarily indefinite, as final plans had not
yet been formulated and submitted, construction costs
were uncertain, and the, amount of production and
number of jobs would depend on how much business
could be generated.
3. The alleged threats of plant closure
Clifford Rotert is vice president of the Union. His im-
mediate supervisor was Robert Mills. On July 31, Art
Pudists, supervisor in quality control, came around on
his customary inspection tour and, according to Rotert,
said the people "ought to consider giving concessions
and taking the cuts to keep the plant open, that the Com-
pany wasn't kidding and they would close her down, and
that eight dollars an hour was better than unemploy-
ment." Rotert replied that the Company had not proven
the cuts were needed, and Pudists said the union leader-
ship was not telling the people the whole story and "If I
was a member of this union I'd tell the leadership to fuck
off and I would take the concessions because the Compa-
ny is not fooling around and they will close her down if
they don't get them." Then Pudists mentioned a newspa-
per article the Company had posted about the closing of
a warehouse in Baltimore and said, "It could very well
happen here."
Pudists, the assistant quality control supervisor as well
as a bacteriologist, makes routine inspection tours
through the plant. He supervises people in the lab, none
of whom are unit members , and has no authority over
unit members . Pudists testified that he has known Rotert
for 13 years and that the two are friends. However, he
did not know Rotert was a union officer at the time of
the conversation. Pudists testified that Rotert initiated
the subject of the concessions the Respondent was re-
questing . They began talking about the $8 per hour, and
Pudists said he would work for $8 per hour if he had to,
and that was plenty good for him. He denies telling
Rotert that he ought to work for $8 an hour, or that the
Union should grant concessions, but "may have" men-
tioned the possibility of the closing of the plant. I credit
Rotert's account of the conversation.
John Cerra has been employed at the Lincoln plant for
31 years and worked in the cured meats department. He
spoke with Chuck Neth, supervisor of the lab depart-
ment , apparently about July 12. Roger Worman, who
works next to Cerra, was also present. Cerra had a stick-
er on his hardhat with the legend "43. , set it free," as
did numerous employees who were unhappy about the
Respondent's unwillingness to pay the COLA. Cerra
began the conversation by saying, "I want my forty-
three cents." Neth said, according to Cerra, "John, you
better let go of your forty-three cents or they'll close the
plant." He added, "It doesn't only mean your job, it
means my job, too." Cerra said the concession would
cause him to lose $9000 a year, and that the Company
could close the plant insofar as he was concerned.
Roger Worman was the Union's chief steward at the
plant. Worman testified that during the aforementioned
conversation, Neth said the plant could close if we did
not accept these concessions . Worman replied that there
was a contract in effect until December 4, and that the
Union would not accept the concessions and would ne-
gotiate when the time was right in December.
Chuck Neth, a laboratory supervisor, has worked for
the Company 22 years. He inspects products on the pro-
duction floor, and directs people in the laboratory, in-
cluding Art Pudists, but has no direct authority over unit
employees. Neth testified that during the week of July
12, the only thing he said to Cerra was that both sides
would probably have to make concessions. He does not
recall what Roger Worman stated, or what he stated to
Worman during that conversation. He has known both
Cerra and Worman for 22 years, and considered Cerra to
be a friend. I credit Worman's account of the conversa-
tion, and find that Neth told both Cerra and Worman
that the plant "could" close if the Union did not accept
the concessions.
On July 6 or 7, Roger Worman's immediate supervisor
Bill Smith, in Smith's office, asked what kind of turnout
the Union had at the meeting the night before. Knowl-
edge of this extremely important meeting was wide-
spread. Worman said it was a good turnout. Smith asked
whether a vote was taken and Worman replied there was
nothing to vote on, that they had a contract until De-
1672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cember. Smith asked whether Worman realized that the
plant could close if the employees did not waive the
COLA, and mentioned that $8 was better than nothing.
Worman replied that to him and to the majority of
people in the plant, $8 was not better than nothing, and
said, "The membership is behind the committee in their
solidarity not to accept these concessions or waive the
43 cents cost of living." Smith did not testify in this pro-
ceeding. I credit Worman.
Richard Johnson, recording secretary, union steward,
and a member of the Union's negotiating committee, tes-
tified that in early July he had several conversations with
his supervisor Willie Mayers. Mayers asked what the em-
ployees were going to do, and said that, according to
Johnson, that if the employees did not take what the
Company offered, they would lock up the doors. During
the second conversation, Mayers asked Johnson if he had
been looking for other work. During the third conversa-
tion, in the presence of three other unit employees,
Mayers again asked whether they were going to go out
and look for jobs, and stated that if they did not accept
what was offered, the doors were going to be locked up.'
Allan Henk, vice president of the Union and a member
of the negotiating committee, had about three conversa-
tions with his supervisor Willie Mayers. The first was on
July 7. Mayers stated that if the employees did not
accept the Company's proposals the plant would prob-
ably be closed by the first of September and everyone,
including Mayers, would be without a job. He said sub-
stantially the same thing during two other conversations
in July.
Willie Mayers testified that Johnson initiated each of
the conversations, and asked him what he would do if
the plant closed. He denied telling employees that they
would be out of a job if the Company's proposals were
not accepted, or that the plant would probably close by
the first of September, or would lock its doors. He does
not specifically remember the conversations with Henk,
but testified that numerous employees would ask him
questions about the matter and he would give a similar
response. I credit Johnson and Henk.
Terry Jones, a union steward, was asked by Supervisor
Jim Lawson what he was wearing on his hat, referring
to the "43¢, set if free" sticker. Jones asked whether
Lawson wanted one. Later, Jones initiated the conversa-
tion by asking Lawson if minimum wage would be low
enough for him. Lawson replied, according to Jones,
"You guys should take whatever cut is necessary." Jones
then asked, "Do you mean the plant's going to close?"
Lawson said, "That's right."
Jim Lawson testified that he did not recall asking
Jones what was on his hat, and gave the following ac-
count of the subsequent conversation. Jones came into
Lawson's office and wanted to know how much interest
was going to be paid as a result of the failure of the
Company to timely pay the COLA. Lawson said there
were more serious things to worry about, and "If it was
me, I would just get on with the negotiations and save
our jobs, rather than worry about the 43 cents." Lawson
testified that any number of such discussions occurred
with many employees during this period of time. I credit
Lawson.
C. Analysis and Conclusions
1. Refusal to furnish information
It is alleged that the Respondent has failed and refused
to bargain with the Union concerning a new contract,
concerning its announced decision to close the Lincoln
plant , and concerning the effects of the closing on unit
employees , by failing to provide the Union with certain
requested information . There is no allegation of overall
bad faith or surface bargaining , ' 0 and at the outset of the
hearing the General Counsel and the Union took the po-
sition that the sole basis of the 8(a)(5) allegation herein
(apart from the alleged COLA, violation, infra) is the re-
fusal to furnish information.
From the initial July 1 meeting , the Respondent has
clearly taken the position that absent agreement on a
contract containing competitive wages and benefits, it
would most likely go out of business , and that its final
decision was dependent on the outcome of bargaining.
To be sure , the Company made it clear that the two mat-
ters were coextensive and virtually inseparable . Exten-
sive meetings and negotiations thereafter failed to result
in a resolution of the matter.
Even when the parties officially commenced "effects"
bargaining on November 9, they continued contract ne-
gotiations not only up' to the day of the actual closing
but even during the litigation of this matter before me,
clearly after effects bargaining had been concluded.' 1
Thus, it is clear that at all times material herein the par-
ties have been primarily engaged in contract negotia-
tions, implicitly characterized by the Respondent as deci-
sion bargaining.
Under the circumstances of the instant case, it would
appear that contract negotiations and decision bargaining
are synonymous , and it would serve no useful purpose to
conclude that the parties were engaged in one to the ex-
clusion of the other . A helpful explication of decision
bargaining is contained in Ozark Trailers, -161 NLRB 561,
569 (1966), wherein the Board states:
Accordingly, we think it no significant intrusion on
management freedom to run the business to require
that an employer-once he had reached the point of
thinking seriously about taking such an extraordi-
nary step as relocating or terminating a portion of
his business-discuss that step with the bargaining
representative of the employees who will be affect-
ed by his decision.
This, in effect , is what the Respondent did.
The Respondent now maintains that under the author-
ity of Textile Workers v. Darlington Co., 380 U.S. 263
is Counsel for the Union, subsequently, has made reference to other
conduct of the Respondent dunng the course of bargaining apparently in
support of a general surface bargaining or bad-faith bargaining theory.
While the Respondent was permitted to introduce evidence regarding the
entire course of bargaining in order to demonstrate that the Union, under
all the circumstances, was not entitled to the requested information, the
complaint was not somehow implicitly amended to contain any allega-
tions pertaining to surface bargaining or bad faith
i i Insofar as the record shows, agreement on a new contract and the
resultant reopening of the plant have certainly not been foreclosed.
AMERICAN STORES PACKING CO.
(1965), and First National Corp. v. NLRB, 452 U.S. 666
(1981), it was not obligated to bargain with respect to its
decision to close the plant as this is a permissive rather
than mandatory bargaining subject. Therefore, argues the
Respondent , its refusal to furnish information to the
Union could not be violative of the Act as the Respond-
ent had no bargaining obligation, and moreover could
have discontinued the bargaining at any time , with impu-
nity. See Kit Mfg. Co., 150 NLRB 662, 671 (1965), enfd.
365 F.2d 829 (9th Cir. 1966); NLRB v. Davidson, 318
F.2d 550, 557-558 (4th Cir. 1963).
In First National, the respondent summarily notified
certain employees of their termination as a result of its
decision to discontinue part of its business operations and
refused to even discussion the matter with the union.
Two additional considerations are of importance,
namely, that the union had recently been certified by the
Board as the employees ' collective-bargaining representa-
tive and thus had never maintained a bargaining relation-
ship with the union , and the respondent 's decision was
necessitated because one of its customers refused re-
spondent 's request to increase its fee for maintaining the
customer 's premises . The Supreme Court found that the
respondent was not required to bargain with the union
over its decision to shut down part of its business, hold-
ing that such a subject was permissive rather than man-
datory. The Court, however, expressly limited its hold-
ing to the specific facts of the case, emphasizing, inter
alia, that the union had no authority or control over the
management fee and could have offered little in the way
of a resolution of the matter, and that "an employer's ab-
rogation of ongoing negotiations or an existing bargain-
ing agreement" was not at issue. Elsewhere , in its deci-
sion, the Court noted , quoting from Fibreboard Corp. V.
NLRB, 379 U.S. 203 ( 1964), that an employer's desire to
reduce labor costs was "peculiarly suitable for resolution
within the collective bargaining framework."
It is clear that First National is not only factually dis-
tinguishable from the instant case but, moreover, the
Court's expressed limitation of its holding constitutes a
persuasive argument for the contrary result herein. Thus,
the parties here have engaged in extensive bargaining,
initiated by the Respondent , on an issue "peculiarly suita-
ble for the resolution within the collective bargaining
framework," i 2 namely, the terms and conditions, par-
ticularly wages, to be embodied in a collective-bargain-
ing contract.
Moreover , the Respondent hoped that the negotiations
would culminate in an agreement which would enable it
to proceed with its determination to convert to a boxed
beef operation, with all the resulting economic benefits
that such an arrangement would bring . To this end, it
was, in effect, seeking financial assistance from the
Union . Assuming arguendo that bargaining on such a
matter, crucial to the Union and the Respondent alike, is
merely permissive in nature , the Union would thereby be
denied any bargaining equality as the Respondent could,
with impunity , dictate the course of the negotiations in-
cluding the extent to which it was willing to furnish in-
formation . Thus, the Respondent would be at liberty to
12 Fibreboard Corp v NLRB, supra , Ozark Trailers, supra
1673
circumvent every principle of good-faith bargaining,
while the Union , given the facts in the instant case,
would be denied information to which it is entitled in
order to fulfill its obligation to the employees, infra. Fur-
ther, to conclude that such bargaining is permissive in
nature would tend to result in a gross abuse of the bar-
gaining process, as there can be little doubt that employ-
ers would assert, for tactical rather than good-faith rea-
sons, that absent a satisfactory labor agreement they in-
tended to close all or part of the business, thereby setting
the stage for permissive bargaining.
Even assuming arguendo that the bargaining which
took place was permissive rather than mandatory bar-
gaining, it would appear that once an employer has invit-
ed the union to participate in such a decision , the estab-
lished principles of mandatory bargaining , including the
requirement that, absent immediate business necessity,
bargaining should proceed to impasse before unilateral
action is permitted , should govern the subsequent bar-
gaining relationship . In an analogous factual situation,
Goodyear Aerospace Corp., 204 NLRB 831, 832 (1973),
modified 497 F.2d 474 (6th Cir. 1974),13 the Board found
that where the parties entered into a consensual (mid-
term) rather than obligatory bargaining relationship, the
employer was nevertheless obligated to furnish the
Union with requested financial data , despite the employ-
er's defense that it need not have bargained at all.
The Board's rationale is instructive:
In the concurring part of his separate opinion,
Chairman Miller agrees that the Respondent 's initi-
ation of and solicitation of direct dealings with em-
ployees violated Section 8(a)(5) and (1) of the Act.
In his dissenting part, however , he divorces Re-
spondent 's refusal to disclose its financial picture,
when the Union asked Respondent to support its
claim that that it could not afford to meet contract
terms, from the whole pattern of Respondent's con-
duct . The Chairman states that the statute alters the
normal bargaining obligation in this case , presum-
ably because under Section 8(d) neither party need
consent to a modification of its contract in mid-
term.2
The Board , with court approval, long ago reject-
ed such an interpretation . The Board held that this
portion of Section 8 (d) was designed for the protec-
tion of the party to a collective-bargaining agree-
ment who wishes to preserve the status quo as to
matters covered therein , not for the party who
wishes to change it.3 The section was "designed to
be used as a shield, not as a sword ."4 Where, as
here, a party proposes an unsettling change during
the contract term , he indicates a desire not to hold
firm to the terms and conditions of the contract, at
least with respect to that change . In this situation
there is no reason for not requiring him to fulfill his
normal bargaining obligation about the proposal
12 The court reversed the Board 's holding on this issue, but for reasons
not material herein
1674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which he himself irritated, if the other party requests
it.
2 Sec. 8(d) provides, in relevant part, that the party shall be re-
quired to "discuss or agree to any modification of the terms and
conditions contained in a contract for a fixed period, if such modi-
fication is to become effective before such terms and conditions
can be reopened under the provisions of the contract "
3 Equitable Life Insurance Company, 133 NLRB 1675 General
Electric Company, 150 NLRB 192, 269, enfd 418 F.2d 736, 747-749
(C A 2), cert denied 397 U S 965
4 General Electric Company, 418 F 2d 736, 747 (C A 2)
Similarly, it would appear that the concept of permis-
sive bargaining was not designed to be used as a sword
by an employer to enable it to avoid what would other-
wise be its bargaining obligation, and to concomitantly
deny a union the very bargaining equality which it needs
in order to negotiate a mutually satisfactory resolution of
the issue. Principles of permissive bargaining preserve a
party's right to unilaterally withdraw from such discus-
sions at any time. This option is deemed necessary in
order to encourage, but not require a party to enter into
discussions concerning nonmandatory matters. Kit Mfg.
Co., supra; NLRB v. Davidson, supra. However, where
the employer has initiated the discussion for its own ben-
efit, as in the instant case, such principles do not seem
applicable, and to permit a total rejection of well-estab-
lished bargaining criteria as the Respondent here advo-
cates under the guise of permissive bargaining, would
appear to merely give deference to form over substance.
Moreover, by negotiating on this matter at length, the
Respondent has thereby dispelled any argument that it
otherwise may have had to the effect that, as stated by
the Court in First National, business exigencies may re-
quire "great need for speed, flexibility and secrecy"
which a duty to bargain would necessarily nullify.
Having initiated a bargaining relationship of this nature,
regardless of its obligation to do so, I conclude that the
Respondent should be required to fulfill the requirements
of good-faith bargaining, including the furnishing of rele-
vant information. To determine that no such bargaining
obligation exists would render such discussions, whether
characterized as mandatory or permissive, illusory, and
would, as a practical matter, subvert the very purpose
for which the parties were meeting.14
Similarly, I find without merit the Respondent's con-
tention that the management rights clause" permits the
14 From the foregoing, I conclude that under the circumstances of this
case, the Respondent was obliged to refrain from unilateral conduct until
an impasse had been reached However, the complaint was not couched
in language consistent with an impasse theory, nor was the case so litigat-
ed, and therefore whether an impasse in negotiations had been reached
by the parties is purely academic at this juncture
is The management rights clause, art II of the contract, states in perti-
nent part as follows
The Company retains the sole right to manage its business and direct
the working force, including the rights to decide the number and lo-
cation of plants, the machine and tool equipment, the products to be
manufactured, the method of manufacturing, the schedule of produc-
tion, the processes of manufacturing or assembling, together with all
designing, engineering , and the control of raw materials, semi-manu-
factured and finished goods which may be incorporated into the
products manufactured
This clause is further modified by a letter of intent, contained in the con-
tract, which provides that "It is agreed that the phrase 'to determine
Respondent to close the plant or remove the work from
the bargaining unit without first bargaining with the
Union.
The management rights clause does not constitute the
clear and unmistakable contractual waiver necessary to
effectively deprive the Union of its collective-bargaining
rights. See Milwaukee Spring, 265 NLRB 206 (1982); Eq-
uitable Gas Co., 245 NLRB 260 (1979); and Park Ohio In-
dustries, 257 NLRB 413 (1981).
As the Board stated in Park Ohio Industries, supra, at
414, "Such waiver may be found in express contract lan-
guage or in unequivocal extrinsic evidence bearing upon
ambiguous contractual language." In the instant case the
contract language granting the Respondent the "rights to
decide the number and location of plants" is not carte
blanche license to entirely shut down its business oper-
ations. Rather, this language may be reasonably inter-
preted to mean that the Company has the right to unilat-
erally open other plants rather than expand the Lincoln
facility.
Similarily, the addition to the management rights
clause of the language contained in the letter of intent
giving the Respondent the right "to determine whether
and to what extent the work required in its business shall
be performed by employees covered by this Agreement"
does not explicitly give the Respondent the right to uni-
laterally close its business and/or transfer the entirety of
the work outside the bargaining unit . As the Board
stated, interpreting a similar clause, in Milwaukee Spring,
supra 265 NLRB at 210:
We read the management-rights clause as a gen-
eral reservation to the employer of the right to
make decisions about the types of products to be
manufactured, what equipment will be used, what
methods will be used, production schedule-in
short, the clause reserves to management the right
to decide whether, and how, its products will be
manufactured. But, we find nothing in this clause
which expressly grants Respondent the right to
move, transfer, or change the location of part of its
operations ... .
Moreover, the fact that the Respondent has purchased a
limited amount of meat from other sources certainly does
not warrant the conclusion that such past practice consti-
tutes a waiver by the Union permitting the Respondent
to cease its business operations.
Finally , assuming arguendo that the Respondent had
the contractual right to unilaterally discontinue its oper-
ations and/or assign unit work outside the bargaining
unit, it elected, rather, to engage in contract negotiations,
the outcome of which, it hoped, would enable it to
remain in business. Thus, even if the Respondent had the
contractual right to unilaterally close its Lincoln plant,
the contract certainly did not give it the unbridled right
whether and to what extent the work required in its business shall be per-
formed by employees covered by this Agreement' is a part of the Man-
agement Rights Clause, Article II of the current Labor Agreement as dis-
cussed and negotiated "
AMERICAN STORES PACKING CO
which it now claims, namely, to refuse to adhere to the
customary principles of mandatory bargaining.
The remaining issue is whether the Respondent was
required to furnish the requested information. While it
may be convincingly argued that for purposes of formu-
lating and presenting contract demands, access to the fi-
nancial' condition of an employer is at least as important
to a union as other information to which it is entitled as
a matter of right, sometimes referred to as an employer's
"general obligation" to furnish information, financial in-
formation has historically been accorded a special status.
NLRB v. Acme Industrial, 385 U.S. 432, 435-436 (1967);
Teleprompter Corp. v. NLRB, 570 F.2d 4 (1st Cir. 1977).
The Respondent's obligation to provide the requested in-
formation is governed by the principles enunciated in
NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956), and its
progeny. In Truitt, the Supreme Court held that the duty
to bargain in good faith requires that an assertion of in-
ability to pay may, "under the circumstances of the par-
ticular case," give rise to an obligation to provide finan-
cial information, because the Court stated:
Good faith bargaining requires that claims made by
either bargainer should be honest claims . This is
true about an asserted inability to pay an increase in
wages. If such an argument is important enough to
present in the give and take of bargaining, it is im-
portant enough to require some sort of proof of its
accuracy. And it would certainly not be farfetched
for a trier of fact to reach the conclusion that bar-
gaining lacks good faith when an employer me-
chanically repeats a claim of inability to pay with-
out making the slightest effort to substantiate the
claim.
The Truitt doctrine was discussed at length in Tele-
prompter Corp. v. NLRB, supra, and the court, at 570
F.2d 9 fn. 2, stated that:
While the Truitt court limited its holding, stating,
We do not hold, however, that in every case in
which economic inability is raised as an argument
against increased wages it automatically follows
that the employees are entitled to substantiating
evidence,
the case has become widely accepted as establish-
ing, for all practical purposes, just such an "auto-
matic" rule. [Citations omitted.]
Moreover, the court in Teleprompter stated that an em-
ployer's plea of poverty or financial inability did not
"trigger[s] carte blanche discovering rights," but rather
the union is entitled to what is "reasonably necessary to
permit a union to make a meaningful evaluation, from its
members' perspective, of the claim of financial inability."
Truitt has been very broadly interpreted by the Board
and courts to warrant the disclosure of financial informa-
tion in a wide range of circumstances. Succinctly stated,
an employer must furnish relevant financial information
if it bases its insistence on contract concessions or its
denial of wage increases or benefits on its ability to
1675
become or remain competitive.16 Further, even when an
employer expressly disavows that it is pleading poverty
or an inability to pay, and moreover maintains that it is
solvent or profitable, the duty nevertheless remains if, si-
multaneously, the employer takes the position that its
ability to remain competitive, or its margin or profit, or
its expected return on investment will be impaired by a
wage increase or the refusal of the union to accept a
concession.17 The rationale of the Board and courts is
generally couched in terms of a union's need for the in-
formation in order to make informed decisions and rec-
ommendations to its membership concerning the merits
of an employer's claim , and to enable it to suggest ap-
proaches which would permit an employer to maintain
or enhance its competitive position or its profits, other
than by adversely affecting the employees' wages and
benefits. 1111
However, the disclosure of financial information is not
mandated when an employer expresses a simple unwill-
ingness to increase wages or benefits, or demands con-
cessions from a union based solely on an unwillingness to
pay more than the employer's competitors. To insist on
paying no more for labor than the prevailing market
rate, in other words economic (wage and benefit) parity,
is not, standing alone, tantamount to asserting inability to
pay, but rather demonstrates a mere unwillingness to do
so. Thus, in Empire Terminal Warehouse Co., 151 NLRB
1359, 1360 (1965), enfd. sub nom . Teamsters Local 745 v.
NLRB, 355 F.2d 842 (D.C. Cir. 1966), the Board, distin-
guishing Truitt, supra, found that the employer did not
violate the Act by unilaterally decreasing wages some 20
percent without complying with the union's request for
financial information. The Board stated:
As the Trial Examiner found, the record clearly
shows that at no time during negotiations did the
Respondent claim that it was unable to meet the
Union's increased wage demands. Indeed, the Re-
spondent agreed that it had a lucrative business, and
pointed out that it was not pleading poverty or in-
ability to pay. The Respondent's only position on
the wage issue was that it was placed at a competi-
tive disadvantage, and was therefore unable to get
more business , because it was paying substantially
more in wages than were its competitors. It present-
ed proof of this. The Union not only had independ-
ent knowledge of the accuracy of the Respondent's
position, but also ignored the presented proof.
Similarly, in Charles E. Honaker, 147 NLRB 1184,
1188 (1964), the Board, distinguishing Truitt, found that
although an employer refused a union's wage increase re-
quest on the basis that it intended to "remain competi-
16 Stanley Building Specialties Co., 166 NLRB 984 (1967 ), enfd sub
nom United Steelworkers of America Y NLRB, 401 F 2d 343 (D.C. Or
1968); Hiney Printing Co., 262 NLRB 157 (1982 ), Peerless Distributing Co.,
144 NLRB 1510, 1514 (1963), Cincinnati Cordage & Paper Co, 141 NLRB
72, 77 (1963), Celotex Corp , 146 NLRB 48 (1968), enfd 364 F 2d 552 (5th
Cir 1966), cert denied 385 U S 987 (1966), Goodyear Aerospace Corp,
supra.
17 See cases cited at fn . 16, above
19 Goodyear Aerospace Corp, supra.
1676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tive" with other service stations in the area, it was not
thereby required to furmsh the requested financial infor-
mation. The Board's rationale is as follows:
However, Respondent made it clear that it was
not pleading inability to pay, and therefore was
under no obligation to make known the author of
the surveys, or to provide the other financial data
requested by the Union. Of course, this mere asser-
tion on the part of Respondent cannot be accepted
at face value and must be examined in light of all
the circumstances surrounding the bargaining nego-
tiations. If, for example, Respondent meant by its
use of the phrase "to remain competitive" that a
wage increase would force it to raise its prices over
those of its competitors and hence result in a loss of
business, we would agree with the Trial Examiner
that, in effect, Respondent was pleading inability to
pay. However, we do not believe such is the case
here. While it is true Respondent discussed with the,
Union the cost of their wage proposals, we under-
stand Respondent's position to be essentially that it
was unwilling to pay more in wages and other eco-
nomic benefits than was being paid by the operators
of other service stations in the surrounding area.
The fact that Respondent operates the only service
stations located on the West Virginia turnpike, in a
sense insulates it from competition in the surround-
ing area. However, regardless of the effect a wage in-
crease would have on its competitive position, the Re-
spondent is legally entitled to take the position that it
will pay no more than the area wage scale. [Emphasis
added.)
See also Yore Cinema Corp., 254 NLRB 1288, 1292
(1981).
As stated in Pressman v. NLRB, 538 F.2d 496 (2d Cir.
1976), the test to be applied in such situations is whether,
under all the surrounding circumstances, the employer
has maintained that it "couldn't" pay or, alternatively,
that it "wouldn't" pay. The court further stated that "So
long as the Employer's refusal reasonably interpreted is
the result of financial inability to meet the employee's
demand rather than simple unwillingess to do so, the
exact formulation used by the Employer in conveying
this message is immaterial ." See also United Fire Proof
Warehouse Co. v. NLRB, 356 F.2d 494 (7th Cii. 1966).
The only factual issue in this entire matter that is not
documented by verbatim transcripts or documentary evi-
dence is whether Robert Carman uttered a "plea of pov-
erty" at the July 1 meeting. Not only is a determination
of this issue not critical to the case, it is, under the cir-
cumstances, superfluous. i 9 Thus, I deem it unnecessary
to make specific credibility resolutions on this point.
However, suffice it to say that the differing versions of
the alleged question posited to Carman which allegedly
prompted his "poverty" response, the differing tidies
during the course of the meeting when the exchange is
alleged to have taken place, the differing versions of
19 For purposes of expediency, I have not included in this decision all
the record evidence bearing on this issue.
who, specifically, allegedly asked Carman the question,
and the curious colloquies during several subsequent con-
versations and meetings at which time Carman's admit-
tedly portentous July 1 response was not even adverted
to, at the least, raises serious doubts regarding the accu-
racy of the union representatives' respective recollec-
tions.
There are two primary themes which pervade the
course of negotiations , namely, the Respondent's
financial/economic status, and boxed beef. The General
Counsel and the Union emphasize the significance of the
former, and the Respondent the latter. The "Company,"
insofar as this case is concerned, is a three-tiered entity.
The record shows that the parent, American Stores
Company, has been, at times material herein, doing well,
in fact making record profits. One of the major subsidiar-
ies, however, Acme Markets, Inc., had been having sig-
nificant profit difficulties which apparently prompted`an'
infusion of new blood into this -subsidiary, resulting in
the elimination of its unprofitable operations, primarily
certain retail grocery stores, and the streamlining of
other operations. American Stores Packing Company,
i.e., the Lincoln plant, being an operating division of
Acme Markets, Inc., was also carefully evaluated in
terms of its potential contribution to the overall health of
Acme Markets, Inc. The-evaluation resulted in a deter-
mination by Acme Markets, Inc. that a reduction of the
Lincoln plant's labor costs was a necessity. To summa-
rize , the record shows that the "Company's" is profita-
ble, that Acme Markets, Inc. is on the rebound, and that
while management , according to the October 7 letter set
out above, has never "stated that the Lincoln operation
has been unprofitable," nevertheless, the Respondent per-
sistently threaten, from July 1 and continuing thereafter,
to close the plant because absent substantial wages and
benefit concessions the continuing operation of the plant
could not be justified.
Clearly, contrary to the Respondent's position, the fi-
nancial scenario which it presented to the Union is tanta-
mount to asserting an inability to pay within the rational
of the foregoing cases. Thus, it was repeatedly asserted
that regardless of the degree of profitability, concessions
were a matter of financial necessity for the continued vi-
ability of the Lincoln plant. Certainly, such a position,
reasonably interpreted, does not demonstrate a mere un-
willingness by the Respondent to continue paying more
for labor than its competitors, but rather an assertion that
it is unable to do so. Whether the viability of the Lincoln
plant was based on its own profitability, or that of Acme
Markets, Inc., is significant only to the extent that the re-
quested financial information of both entities may be rel-
evant in order, to enable the Union to advise its members
whether the assertions of the Respondent appeared to be
in good faith, and to suggest methods to the Respondent
by which its profitability could be enhanced other than
through drastic wage concessions.
The record shows that at the July 1 meeting the Re-
spondent merely desired to negotiate "Language and
economic conditions to accommodate box beef oper-
ation." At this point, there had been no decision regard-
ing boxed beef, and the Respondent's proposal in this
AMERICAN STORES PACKING CO
regard could have been readily understood as an expres-
sion of its longstanding interest in boxed beef, which had
been under consideration for some 15 years. However,
the record abundantly supports the Respondent's conten-
tion that, largely as a result of the July 1 meeting, Acme
Markets, Inc. determined that the conversion to boxed
beef was a necessity. Thereafter it proposed such a con-
cept to the parent company which, in turn, indicated its
approval and agreed to allocate the funds for implement-
ing the conversion to boxed beef, provided that there be
competitive labor rates and a long-term contract contain-
ing a no-strike clause.
The General Counsel and counsel for the Union, in
their briefs, minimize the factual and legal significance of
the boxed beef operation in relation to the entire course
of bargaining. Counsel for the Union describes it as a
"carrot" which was offered to the Union and "a big un-
known."
Contrary to the position of the Union and the General
Counsel, I conclude, on the basis of overwhelming
record evidence which need not be recapitulated here,
that at least since October 19, the date of the first official
negotiating meeting, and probably since sometime in
August, and at all times thereafter, the Respondent had
determined that a boxed beef operation was the sine qua
non of the Lincoln plant's continued existence. Further,
as a corollary, it was determined that an indispensable
prerequisite to converting to boxed beef was a competi-
tive (meaning wage and benefit parity with other boxed
beef producers) and long-term labor agreement. Thus, it
became crystal clear, regardless of the Company's initial
July 1 position, that boxed beef and competitive wages
and benefits were, in effect, synonymous, rather than
separate and distinct concepts.20 Under these circum-
stances, it seems that the Union would no more be enti-
tled to financial information to assist it in negotiating on
the issue of competitive wages, than it would be to insist
that it become a partner with the Respondent in deciding
whether to convert to boxed beef, a decision clearly re-
served solely to the Respondent by the management
rights clause, supra. Thus, despite its asserted financial
situation in early July, the Respondent's position clearly
changed to the extent that it was no longer maintaining
its inability to continue its former business operations
without the concessions, but rather was simply unwilling
to commence, in effect, a new boxed beef processing op-
eration absent a wage and benefit package that was sub-
stantially in line with other boxed beef processors. As a
result, the Respondent's financial or economic condition
was thus effectively deleted from the equation and was
no longer a matter warranting the production of financial
information. Therefore, I find the Union was not entitled
to the requested information, and I shall dismiss this alle-
gation of the complaint. Empire Terminal Warehouse Co.,
supra; Charles E. Honaker, supra .21
20 It should be noted in this regard, that the first and only time that
the Union ever asked Carman whether these concepts were separable
was on December 3, the day of the plant closure, and the Union was
given a negative response.
21 The entire thrust of the case, as litigated by the parties, concerns the
Respondent's refusal to furnish "financial" information which the Union
deemed necessary because of the Company's alleged plea of poverty
1671
2. Withholding of the cost-of-living adjustment
The Respondent contends that the withholding of the
COLA from July 5 to October 22 was not violative of
the Act and that, in any event, this allegation should be
dismissed because a settlement agreement regarding this
matter had been approved by the Regional Director for
Region 17.22 The Respondent's brief states that the
Company consistently acknowledged the employee's
legal entitlement to the COLA increase, but simply de-
ferred payment, pending negotiations, arguing that it was
permitted to withhold such payments under article II,
management rights clause, of the contract. The operative
language is, according, to, the Respondent: "Failure to
put into effect any term, condition, or provision of this
Agreement shall not be a waiver of such terms, condi-
tions, or provisions."
The quoted contract terminology, under the heading
of management rights, constitutes nothing more than an
intent by the Respondent to protect itself from a
"waiver" argument by the Union. Here, the Union is not
claiming that the Respondent has waived anything, but
merely that it has not adhered to the contract, and the
language certainly does not give the Respondent the
right to withhold wages whenever it so desires. The Re-
spondent's argument is clearly unfounded. Regarding the
matter of the settlement agreement, it appears that al-
though the Respondent was given assurance by a Board
agent that the settlement agreement had been verbally
"approved" and thereby would be executed by the Re-
gional Director, there was no abuse of discretion in the
Regional Director's subsequent determination to with-
draw whatever verbal approval may have been commu-
nicated to the Respondent, and to consolidate that matter
with the concurrent charge which had, in the interim,
been deemed to have merit. See Campbell Soup Co., 152
NLRB 1648 (1965); Wallace Corp. v. NLRB, 323 U.S.
248, 254-255 (1944). Thus, I also find that this argument
of the Respondent lacks merit.
It is clear, and I find, that by withholding the COLA
the Respondent has violated Section 8(a)(5) of the Act.
Such conduct constitutes a repudiation of the collective-
bargaining agreement rather than a contract violation not
cognizable by the Board, and under Section 8(d) of the
Act an employer is not permitted to make such contract
modifications absent consent of the union. Fairfield Nurs-
ing Home, 228 NLRB 1208 (1977); Oak Cliff-Golman
Baking Co., 207 NLRB 1063 (1973); Struthers Well Corp.,
245 NLRB 1170 (1979); Friederich Truck Service, 259
NLRB 1294, 1298 (1982).
3. The alleged threats
The law is clear that as enunciated by the Board in
Proctor & Gamble Mfg. Co., 160 NLRB 334, 340 (1966):
While some of the information requested may constitute other than strict-
ly financial information, it is clear that the failure to provide the financial
information, as a result of the alleged poverty plea was the only matter in
serious,contention throughout the course of this proceeding
22 On November 29, the Respondent instituted a lawsuit in the Federal
District Court for the District of Nebraska, captioned "Complaint for
Mandamus," in an attempt to require the Regional Director to honor the
terms of the settlement agreement The matter is apparently still pending
1678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As a matter of settled law, Section 8(a)(5) does not,
on a per se basis, preclude an employer from com-
municating , in noncoercive terms, with employees
during collective bargaining negotiations . The fact
that an employer chooses to inform employees of
the status of negotiations , or of proposals previously
made to the union , or of its version of a breakdown
in negotiations will not alone establish a failure to
bargain in good faith.
See also Wantagh Auto Sales, 177 NLRB 150, 154 (1969);
Stanley Oil Co., 213 NLRB 219, 225 (1974); AMF Incor-
porated-Union Machinery Division , 219 NLRB 903, 909
(1975); Adolf Coors Co., 235 NLRB 271, 276-277 (1978).
The General Counsel argues in her brief, without cita-
tion of any authority on this point, that although on July
1 at the bargaining table and on July 9 in a letter the Re-
spondent told the Union and the employees that, accord-
ing to the General Counsel's brief, "there could be prob-
lems with keeping the plant open," the gravamen of the
violation here is that supervisors , "in no uncertain
terms," told employees "that the plant was going to
close," and that the employees could have reasonably be-
lieved that the supervisors were privy to such definitive
information . Thus, according to the General Counsel,
this constituted an unlawful threat of plant closure.
The Respondent's avowed intentions were graphically
stated to the union representatives at the July I meeting,
and it may presumed that these matters were, in turn, re-
ported to the union membership at the July 6 meeting.
Moreover, the employees were directly advised of the
Respondent 's position by the July 9 letter which reiter-
ates what was told to the Union at the July 1 meeting,
and includes the statement that "unless we receive the
economic relief [i.e., the COLA and other contract con-
cessions] we have requested in the labor contract our
ability to maintain the Lincoln plant will be placed in se-
rious jeopardy." Further, the letter set forth the Re-
spondent 's opinion that the employees should have "an
opportunity to express [their] feelings by casting a
ballot."
There is no complaint allegation that the foregoing or
any other written communication from the Respondent
to its employees is violative of the Act in any respect.
Nor is there an allegation of overall bad-faith bargaining
on the part of the Respondent . While it could be argued
that the statements by the supervisors were made during
the time that the Respondent , by unlawfully withholding
the COLA payments, was violating Section 8 (a)(5) of the
Act, as found above, and that therefore such communica-
tions to the employees constituted an attempt to require
the Union to agree to midterm contract concessions in
derogation of the provisions of Section 8(d) of the Act,
this argument has not been made . In any event, such an
cern to employees and supervisors alike, namely, wheth-
er they would continue to be employed in the near
future. Whether the supervisors were saying that absent
the concessions the plant may close , would close, would
probably close, or as Niederdeppe quoted Carman in the
July 1 meeting, "would more than likely not be there" in
December , it seems reasonable that the employees under-
stood, under the circumstances , that the supervisors were
enunciating their own opinions and placing their own in-
terpretations on the meaning of the Respondent's ex-
pressed and widely disseminated intentions . Moreover,
there was no evidence presented which would support
the General Counsel's contention that, in effect, the su-
pervisors were conveying "official" information which
the Union had not been previously given by the Re-
spondent . On the basis of the foregoing , I find that the
record evidence does not warrant the finding of a viola-
tion , and I shall dismiss this allegation of the complaint.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(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. The Respondent has violated Section 8(a)(5) and (1)
of the Act by delaying the payment of a contractual
cost-of-living adjustment form July 5 to October 22,
1982.
4. The Respondent has not otherwise violated the Act
as alleged.
THE REMEDY
Having found that the Respondent violated Section
8(a)(5) and (1) of the Act, I recommend that it be re-
quired to cease and desist therefrom and from in any like
or related manner interfering with, restraining , or coerc-
ing its employees in the exercise of their rights under
Section 7 of the Act. Further, the Respondent shall be'
required to make whole its employees, to the extent it
has not already done so, for its failure to timely pay the
contractual cost-of-living adjustment to which they were
entitled, with interest . The backpay will be computed in
the manner prescribed in F W. Woolworth Co., 90 NLRB
289 (1950), with interest thereon to be computed in the
manner prescribed in Florida Steel Corp., 231 NLRB 651
(1977).2 3
Moreover, in view of the fact that the Lincoln plant
has closed , the Respondent shall be required to mail the
notice attached as Appendix 2 to each of the employees
who are entitled to receive payments as specified above,
argument would appear to lack merit as the letter quoted
from above , posted during the same time period and con-
taining similar statements , is not alleged to be violative of
the Act.
The record shows that some 5 or so employees, out of
a unit of over 500 employees , during the course of casual
and frequently occurring conversations with supervisors,
entered into discussions regarding a topic of vital con- 23 See generally Isis Plumbing Co, 138 NLRB 716 (1962)
AMERICAN STORES PACKING CO.
On these findings of fact and conclusions of law and
on the entire record,24 I issue the following recommend-
ed25
ORDER
The Respondent, American Stores Packing Company,
a Division of Acme Markets, Inc., Lincoln, Nebraska, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to comply with the terms of a collective-
bargaining agreement by failing to timely pay the cost-
of-living adjustment increases as provided for therein.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make whole its employees, to the extent it has not
already done so, for their loss of earnings , with interest,
as a result of its unilateral action in the manner pre-
scribed in the remedy section of this decision.
(b) Mail to each of its employees who are entitled to
receive payments a copy of the attached notice marked
"Appendix 2."26 Copies of the notice shall be provided
by the Regional Director for Region 17, and shall be
signed by the Respondent's authorized representatives.
(c) 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 ORDERED that the complaint be dis-
missed insofar as it alleges violations of the Act not spe-
cifically found.
24 On April 18, 1983, as this decision was in the process of being print-
ed, I received a letter from the Respondent's counsel, withdrawing the
Respondent's prior objection to the General Counsel's motion to reopen
the record, as discussed above , and also withdrawing the Respondent's
motion to strike portions of the Charging Party's and the General Coun-
sel's posthearing briefs . Further, counsel for the Respondent has en-
closed, in a sealed envelope, a copy of the opinion of District Judge
Robert Van Pelt in the aforementioned Sec 10(j) proceeding (Civil
Action 82-LESS, Apr 8, 1983) 1 adhere to my ruling, set forth above,
regarding the General Counsel's motion and the briefs of counsel. More-
over, I have not unsealed the court's opinion
25 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.
26 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 "
APPENDIX 1
1. Consolidated balance sheet for the past 5 fiscal
years, and for the 8 months ending September 1, 1982,
including the annual reports of the Company for this
time period. This information should be provided on a
quarterly basis and on an annual basis and should be pro-
vided separately for the Lincoln plant, for the food proc-
essing facilities, and for the Company as a whole.
1679
2. Consolidated income statement for the past 5 fiscal
years, and for the 8 months ending September '1, 1982,
including the annual reports of the Company for this
time period. This information should be provided sepa-
rately for the Lincoln plant, for the food processing fa-
cilities, and for the Company as a whole.
3. All notes and explanations of accounting principles
as they apply to both balance sheets and income state-
ments.
4. A detailed explanation of the Company's debt situa-
tion, identifying all the holders of the Company's debt
and the specific amounts borrowed from each lender; the
terms of each debt agreement; the amount of short-term
credit available to,the Company from all sources; and a
12 month review listing short term borrowing balances
in the average interest for each month between June 1,
1981, and September 1, 1982.
5. A weekly summary of Lincoln plant operations, re-
porting the weekly slaughter and processing of beef and
pork processing separately, the total weekly profits for
slaughter and process of beef and pork processing sepa-
rately, the total weekly profit or loss per unit , the total
weekly operating costs and the weekly operating cost
per unit, the total weekly labor cost and the weekly
labor cost per unit for beef and pork separately. This in-
formation should be provided for the last 3 fiscal years
and for the period up through September 1, 1982.
6. A detailed explanation of where and how the Com-
pany proposes to perform the operations presently con-
ducted in the Lincoln plant, in the event the plant closes,
whether by transfer to another company plant,,subcon-
tract, sale or lease of the plant, or other arrangement, in=
eluding any feasibility studies, management reports, and
other documents containing projections, proposed budg-
ets, proposed labor costs, and proposed employee com-
plements.
7. A listing of all the repairs and maintenance per-
formed in the Lincoln plant during the last 3 fiscal years,
and fot the 8 months ending September 1, 1982, and the
total expense for such activity.
APPENDIX 2
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An agency of the United States Government
The National Labor Relations Act gives all employees
the following rights.
To organize themselves
To form, join, or support unions
To bargain as a group through representatives of
their own choosing
To act together for collective bargaining or other
mutual aid or protection
To refrain from any or all such activity.
WE WILL NOT refuse to bargain in good faith with
Local 22, United Food and Commerical Workers, AFL-
CIO, CLC as the collective-bargaining representative of
employees in the following unit:
1680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All employees at the Lincoln, Nebraska plant of
American Stores Packing Company, a Division of
Acme Markets, Inc., excluding office employees,
buyers, executives, guards and supervisors as de-
fined in the Act.
WE WILL NOT refuse to comply with the terms of a
collective-bargaining agreement by failing to timely pay
the cost-of-living adjustment increases as provided for
therein.
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL make you whole, with interest , for any loss
of wages which resulted from our failure to abide by this
provision of the contract.
AMERICAN STORES PACKING COMPANY, A
DIVISION OF ACME MARKETS, INC.
*U.S.GOVERNSENT PRINTING OFFICE: 1987-181-573:60000