Foodway

National Labor Relations Board - Board Decisions

Jan 5, 1978

234 N.L.R.B. 72 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Winn-Dixie Texas, Inc., d/b/a Foodway and Retail
Clerks International Association, Local 462, AFL-
CIO. Case 28-CA-4150
January 5, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
On September 16, 1977, Administrative Law Judge
James T. Barker issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the Charging Party filed
an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Winn-Dixie Texas, Inc.,
d/b/a Foodway, Fort Worth, Texas, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
DECISION
STATEMENT OF THE CASE
JAMES T. BARKER, Administrative Law Judge: This case
was heard before me at El Paso, Texas, on June 28, 1977,
pursuant to a complaint and notice of hearing issued on
April 5, 1977, by the Regional Director of the National
Labor Relations Board for Region 28. The complaint and
notice of hearing was based upon a charge filed on Decem-
ber 15, 1976, by Retail Clerks International Association,
Local 462, AFL-CIO, herein called the Union.' The par-
ties were accorded full opportunity to make opening state-
ments, to introduce relevant evidence, and to file briefs
with me. Briefs were timely filed by each of the parties.
Unless otherwise specified, all dates herein refer to the calendar year
1976.
2 At the outset of the hearing, over objections of Respondent, the Gener-
al Counsel was permitted to amend the complaint in certain particulars to
add new 8(aX5) and (I) allegations pertaining to the asserted attempt by
Respondent to undermine the representative status of the Union. I reaffirm
my ruling permitting the amendment.
234 NLRB No. 7
Based upon the entire record in this case,2 my observa-
tion of the witnesses, and the briefs of the parties, I make
the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is, and has been at all times material herein,
a corporation duly organized under the laws of the State of
Texas. At all relevant times, Respondent has maintained its
principal office and place of business in Fort Worth, Texas,
and has operated and maintained retail stores and other
facilities in Carlsbad, New Mexico, and Las Cruces, New
Mexico, as well as other places in the State of New Mexico
and other States of the United States. Moreover, at all
relevant times, Respondent has engaged at said retail stores
and other facilities in the sale and distribution of groceries,
meats, produce, and related products.
During the 12-month period immediately preceding the
issuance of the complaint herein, Respondent, in the course
and conduct of its business operations, purchased goods
and materials valued in excess of $50,000, which were
transported in interstate commerce and delivered to its
places of business in the State of New Mexico directly from
States of the United States other than the State of New
Mexico. During the same period of time, Respondent, in
the course and conduct of its business operations, sold and
distributed groceries, meats, and related products valued in
excess of $500,000.
Based upon these facts, which are not in dispute, I find
that at all times material herein Respondent has been and
presently is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent concedes, and I find, that at all times mate-
rial herein the Union has been, and presently is, a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNLAWFUL CONDUCT
A. The Issues
The principal issues in this proceeding are (I) whether
Respondent unlawfully withdrew an operationwide offer
extended to unit employees, to participate in and purchase
stock under its existing stock purchase plan; whether Re-
spondent refused to bargain collectively with the Union
concerning application of the stock purchase plan to unit
employees; (2) whether by posting on its employee bulletin
board certain correspondence between the Company and
the Union relating to the stock purchase plan Respondent
attempted to undermine the Union, all in violation of Sec-
tion 8(aX5) of the Act; and (3) whether by and through
statements of its supervisors, Respondent engaged in inde-
By order dated July 21, 1977, the posthearing motion of counsel for the
General Counsel for admission of certain preheanng documents filed with
the Board in relation to Respondent's June 3, 1977, Motion for Summary
Judgment were received in evidence, not as substantive evidence but as a
record of the preheating chronology of pleadings and relevant material filed
by the parties in the instant matter.
72
FOODWAY
pendent violations of Section 8(a)(1). Subsumed with the
first-stated issue is the question whether, in fact, in light of
the decision in Westinghouse Electric Corporation, 122
NLRB 1466 (1959), Respondent was obligated to engage in
collective bargaining with the Union concerning a stock
purchase plan assertedly available to employees on a com-
panywide basis, and whether the correspondence between
the Company and the Union referred to in (2), above, was
altered by handwritten textual additions in a manner calcu-
lated to undermine the Union.
B. Pertinent Facts
1. Background facts
On or about August 30, pursuant to an acquisition ar-
rangement with Kimbell's, Inc., Respondent commenced
operations at two retail stores located in Carlsbad and Las
Cruces, New Mexico, respectively. At all material times
prior and subsequent to August 30, the Union has been the
exclusive collective-bargaining representative in the collec-
tive-bargaining units described below:
All regular full-time and all regular part-time em-
ployees and courtesy clerks employed in the Carlsbad,
New Mexico, operation of Respondent who are en-
gaged in handling or selling merchandise or performing
other services incidental thereto, excluding store overall
manager, guards, all employees working exclusively in
the meat department, and supervisors as defined in the
Act.
All employees employed in the Las Cruces, New
Mexico, operation of Respondent, excluding all manag-
ers, guards, office clerical employees, watchmen, em-
ployees working in the meat department, and supervi-
sors as defined in the Act.3
For a substantial period of time prior to August 30,
Winn-Dixie Stores, Inc., herein called Winn-Dixie, had
maintained a stock purchase plan for the employees of the
corporation, including its subsidiary operations. The plan
was created and exists for the avowed purpose of encourag-
ing eligible employees to purchase and own the common
stock of Winn-Dixie, thereby promoting their increased
interest in the affairs, growth, and development of the
Company. The plan in effect on August 30 was one bearing
a revision date of October 5, 1973. In February 1976 an
offering under this revised plan had been made by Respon-
dent to its employees. Prior and subsequent to the actual
acquisition of the Carlsbad and Las Cruces stores, Respon-
dent's management gave consideration to the propriety of
extending the plan to employees of the Carlsbad and Las
Cruces operations. No stock purchase plan had been in
effect at the stores under Kimbell, Inc., ownership. In due
course, on October 1, at a stockholders meeting, the share-
3 The appropriateness of these units is not in issue. Respondent con-
tends, however, that assistant managers are supervisors within the meaning
of the Act and should be excluded from the units.
4 Under the plan which was structured to comply with sec. 423(b) of the
Internal Revenue Code, stock purchase options are granted by a committee
comprised of the chairman of the board of directors of Winn-Dixie Stores,
Inc.. the corporate president, the financial vice president, and the executive
vice president. The committee possesses the sole discretion to determine at
holders of Winn-Dixie voted to amend the stock purchase
plan by increasing both the number of shares available for
purchase by employees and the aggregate number of shares
which an employee might purchase under the terms of the
plan. The October I action of the shareholders in modify-
ing the revised stock purchase plan was ratified by the
board of directors during the course of a meeting held
during the first week of November. A stock offering was
made in November under the terms of the newly revised
stock purchase plan. 4 The option price was set at $33.95
per share, or 88.9 percent of the fair market value of the
stock as of November 1. In accordance with the provisions
of the amended stock purchase plan, any employee qualify-
ing for participation in the plan is permitted to purchase a
maximum of 25 shares on a payroll deduction credit basis.
At the time of the November stock offering, Winn-Dixie
and its wholly owned subsidiaries employed approximately
41,900 employees, of whom approximately 24,400 were eli-
gible to participate in the plan. At the Carlsbad store a
maximum of 30 employees represented by the Union were
employed, and in the Las Cruces store approximately 28
such employees were on the payroll.
2. The alleged unlawful conduct
a. The stock offer communicated
On or about November 12, Dwight Stuckey, manager of
the Carlsbad store, approached Victor Echavarria and two
other employees as they were performing their work in the
store. Stuckey noted that the Company was offering a stock
purchase plan to employees. Stuckey mentioned the offer-
ing price and stated that a stock split was a possibility.
Stuckey also noted that the employees could purchase the
stock under a weekly payroll deduction arrangement. He
observed that he had some stock option applications, and
he would post a notice in the break room which the em-
ployees could sign; and he would make an application
available to them for completion. A paper was posted on
the bulletin board 2 days later with the notation, "We the
undersigned wish to buy the stock." Echavarria and ap-
proximately five other Carlsbad unit employees signed the
paper.
Later, soon after November 17, at the Las Cruces store,
Corrine Olivera, a unit employee at the Las Cruces opera-
tion, spoke with Ignacio Ulibarri, store manager at Las
Cruces. Ulibarri stated that he had just returned from a
meeting in Albuquerque, and the Company was going to be
offering benefits to employees, including an opportunity to
purchase stock of the Company. Olivera stated that she
surmised she could start investing, but Ulibarri stated that
she could not do so because she was member of the
Union. 5
In the meantime on Saturday, November 13, during the
course of a telephone call from Albuquerque to his Jack-
its regularly scheduled meeting held during the first week of each month
whether or not to grant options for purchase in that particular month. The
committee also determines the option price at which the shares will be
issued, and the price may not be less than 85 percent of the market value of
the stock as of the date of the offering.
I The foregoing is based on the credited and undisputed testimony of
Victor Echavarria and Corrine Olivera, respectively.
73
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sonville, Florida, office, Carlton Trosclair, labor relations
attorney for Winn-Dixie, learned of the stock offering un-
der the newly revised stock purchase plan. Trosclair in-
formed representatives of Winn-Dixie that the stock would
have to be made available through the bargaining represen-
tative of the employees in the Carlsbad and Las Cruces
stores. He volunteered to dispatch a telegram to the bar-
gaining representative.6s Trosclair subsequently learned
that a meeting had been held in the Albuquerque, New
Mexico, general offices on or about November 13, for the
purpose of explaining to the district supervisors, manage-
ment officials, and supervisors in attendance, the "mechan-
ics of the plan" insofar as employee subscription and par-
ticipation was concerned. Supervisors were instructed to
answer employee questions but not to discuss the plan
unless they had prior clearance from a representative of the
Union.
Thereafter, on Monday, November 15, Trosclair dis-
patched a telegram to James E. Eyer, president of the
Union, which read as follows:
Winn-Dixie Stores Inc plans to offer stock to all of
its employees through its employees stock purchase
plan. Eligible employees must have more than a years
service with the company.
Our employees having more than a years service with
the Foodway Stores in New Mexico are eligible to par-
ticipate in the plan.
The employees, some of whom Local 462 may repre-
sent, will be offered the opportunity to participate in
the plan unless you file written objections by giving
notice to our attorney, Mr. Robert P Tinnin Jr on or
before 5:00 pm Thursday November 18, 1976.
Under the terms of the revised stock purchase plan, op-
tions are exercised by employees by delivering an executed
subscription agreement to the Company. In order for an
employee to have participated under the stock offering per-
tinent herein, it was essential for options to have been exer-
cised prior to November 30. The November 18 response
date referred to in his telegram was selected by Trosclair in
consideration of the administrative requirements con-
nected with the offering and the November 30 cutoff date.
Eyer received Trosclair's telegram but was not familiar
with the details of the stock purchase plan. He had no
material describing the plan and had received no applica-
tion forms or other materials required of employees in the
exercise of the option to purchase stock under the plan.
Accordingly, he spoke by telephone with Gene Britton, the
International vice president of the Union, requesting ad-
vice. Britton instructed Eyer to dispatch a telegram re-
questing the Company to bargain concerning the matter.
Thus, on November 17, in response to Trosclair's earlier
telegram, Eyer dispatched a mailgram addressed to Robert
P. Tinnin, Jr., attorney for Respondent, containing the fol-
lowing message:
6 Carlton Trosclair credibly testified that he had been in Albuquerque
engaged in collective-bargaining negotiations during the early part of No-
vember and did not learn of the stock offering until his November 13
telephone call.
In response to telegram received from C J Trosclair
regarding Winn-Dixie's plan to offer stock to all of its
employees please be advised that it is our position that
the company must meet and negotiate with representa-
tives of this union prior to the implementation of such
plans. Local union will make representatives available
to meet at earliest possible dates to avoid any delay.
Following receipt of Eyer's telegram, by letter dated No-
vember 18, Tinnin responded as follows:
I am in receipt of your telegram of November 17,
1976. I sincerely regret that your union objects to im-
plementation of the company's stock purchase plan. No
other union has done so.
Since the stock purchase plan is being offered com-
pany-wide for the benefit of all employees in the com-
pany, there can be no variation in it. Therefore, there is
nothing about which we can negotiate.
Since your union objects to implementation of this
fringe benefit plan for its employees, employees work-
ing under the jurisdiction of your union will have the
distinction of being the only employees in the entire
retail operations of Winn-Dixie who will not be eligible
to participate.
b. The postings and related dialogue
Following Tinnin's dispatch of the November 18 letter,
Trosclair was contacted by Hobbes, western district man-
ager of Respondent, with authority over stores in New
Mexico. Hobbes informed Trosclair that there had been
several questions raised concerning the stock purchase
matter and, consequently, he asked if it were permissible
for him to post on the bulletin boards the exchange of
communications which had transpired concerning the plan.
Trosclair gave his permission but instructed Hobbes not to
alter any of the documents. On or about November 19,
copies of Tinnin's letter were posted in the Carlsbad and
Las Cruces stores. The copy posted in the Carlsbad store
was placed on the bulletin board in the employee break
room where it remained for approximately 6 to 8 weeks.
The copy posted in the Las Cruces store was initially
placed at the timeclock, but after a week or two it was
moved to the bulletin board where it remained until early
June.
The notice posted in the Carlsbad store came to the at-
tention of Victor Echavarria, an employee in the Carlsbad
store. When he first observed the posting, the November 18
letter contained a handwritten notation, "for non-union
employees only." The handwritten notation was that of
Dwight Stuckey, store manager.7 Within 2 or 3 hours after
he observed the notice, Echavarria spoke with Stuckey.
Richard Hall, the produce manager, and Randall Bolles,
the assistant manager, participated in the conversation.
Echavarria and Hall asked why the employees could not
purchase the stock. Stuckey replied that the Union did not
want the employees to have the stock. Hall observed that
7 Victor Echavama credibly testified that he had had occasion through-
out the 4 years of his employment at the Carlsbad store to observe the
handwriting of Dwight Stuckey, and I credit his testimony to the effect that
the handwritten notation was in Stuckey's handwriting.
74
FOODWAY
the Union was endeavoring to tell the employees how to
spend their money, and Stuckey stated that he agreed with
Hall's observation. s
Similarly, on Friday, November 19, at the Las Cruces
store, Carolyn Butts observed a posted copy of Tinnin's
letter containing the handprinted word "Notice" which
was twice underscored and which appeared in a prominent
position near the top of the letter and above the type writ-
ten portions thereof. The printed notation was that of Joe
Ornales, Respondent's district supervisor. Butts made a
comment to Ulibarri to the effect that the employees could
not buy stock. Ulibarri responded, "No, you belong to the
Union."
Eyer was absent from his office on business on Novem-
ber 19 and did not read Tinnin's letter until Monday, No-
vember 22. Eyer then met with Gene Britton and discussed
the content of the letter. Thereafter, Britton suggested that
Eyer file unfair labor practice charges. Britton and Eyer
did not discuss bargaining strategy with respect to the stock
offer, and Eyer was uncertain as to whether or not the
Company had an obligation to discuss the stock offer with
the Union. Eyer was of the opinion the filing of the charges
would lead to a resolution of the issue. Following receipt of
Tinnin's letter, the Union made no bargaining demand, in
terms either written or oral, that Respondent engage in
collective bargaining concerning the extension of the stock
purchase plan to unit employees.
In the meantime, upon his return to the office on Mon-
day, November 22, Eyer had on his desk a message inform-
ing him that he had received a telephone call from Richard
Hall the previous Friday. Eyer called Hall at the Carlsbad
store, and Hall asked Eyer why the Union was trying to
prevent the employees from participating in the stock pur-
chase plan. Eyer stated that the Union was attempting to
gather information concerning the plan but was not trying
to prevent employee participation. Eyer further explained,
in substance, the Union had a bargaining obligation with
respect to the employees, including union members, and it
was endeavoring to obtain further information concerning
the plan so that it could properly carry out its bargaining
obligation. Eyer and Hall spoke together for approximately
10 or 15 minutes.
Soon thereafter, Eyer received a telephone call from
Marcie Chavez, an employee at the Las Cruces store. Cha-
vez stated that a communication from Tinnin to Eyer had
been posted on the timeclock indicating the Union was
preventing employees from participating in the stock plan.
Chavez stated that this had generated a lot of hostility in
the store, and she suggested that Eyer come down to the
store.
Eyer went to the Las Cruces store with Martha Garza, a
union business agent. In the rest area of the store where the
timeclock is situated, they observed posted the November
18 letter from Tinnin to Eyer which employee Butts had
The foregoing is based on the credited testimony of Victor Echavarria.
I do not credit the testimony of Echavarria to the extent that it could be
interpreted as inferring Stuckey himself stated, in specific terms, the Union
was endeavoring to tell the employees "how to spend their money."
9 I credit Carolyn Butts in this regard. The letter which Butts observed
posted had certain undersconng and additions which the General Counsel
does not appear to attribute to Respondent. Accordingly, I make no deter-
mination as to the responsibility for these essentially innocuous modifica-
tions.
earlier seen. The "Notice" notation was on the letter, as
described above.
c. The collective-bargaining meetings
Subsequent to the filing of the unfair labor practice
charge, there were no contacts between the parties until
February 1, 1977, when the first of a series of five collec-
tive-bargaining meetings were held for the purpose of nego-
tiating a new collective-bargaining agreement to replace
the agreement with Kimbell, Inc., scheduled to expire on
March 1, 1977. During the course of the February I meet-
ing, no mention was made of the stock purchase plan.
Discussion of the plan did transpire at the March 10 meet-
ing, the second bargaining session between the parties.
During the March 10 meeting, Eyer, who was serving as the
principal negotiator on behalf of the Union, lodged a gen-
eral request for information concerning the plan.'? No in-
formation concerning the plan was immediately dispatched
to the Union and, during the course of the third bargaining
session, on March 31, Eyer reminded Trosclair that he had
not been furnished the information which had previously
been requested. Trosclair stated, in substance, that he
thought the information had been dispatched to Eyer by
personnel but that, in any event, he would provide the
information which Eyer desired. Trosclair cautioned, how-
ever, in this connection, that, while he was willing to ex-
plain the plan, he could not negotiate separately with the
Union concerning its terms." The following day, Jack
Jones, director of personnel of Winn-Dixie, dispatched a
booklet containing a two-page explanation of the highlights
of the employee stock purchase plan. On April 5, 1977, the
Regional Director issued the instant complaint and notice
of hearing alleging 8(aX5) and (I) violations of the Act. On
May 5, Trosclair dispatched another copy of the employee
stock purchase plan booklet under covering letter ad-
dressed to Eyer. The letter read as follows:
In our negotiations scheduled for May 10, 1977,
please be advised that once again we would like to
explain in detail Winn-Dixie Stores, Inc., stock pur-
chase program.
Enclosed please find an employee booklet entitled,
"Stock Purchase Plan."
The scheduled May 10 meeting did transpire.
Prior to the commencement of the meeting, Trosclair and
Jones approached Eyer and asked if Eyer had received the
employee stock purchase plan booklet. He replied in the
affirmative. Eyer was then presented with a typewritten
affidavit executed by Jay Shepard Bryan, Jr., vice president
and secretary of Winn-Dixie. Trosclair stated that the affi-
davit would explain why the stock purchase plan could not
be modified. In connection with this, Trosclair also pre-
sented Eyer with a copy of provisions of the Internal Reve-
i' In finding that the request was a general one for information and not
for a copy of the plan itself I credit the testimony of Carlton Trosclair. In
testifying concerning this. James Eyer was uncertain as to the precise nature
of his request.
I Carlton Trosclair credibly testified, in substance, that the discussion of
the stock purchase plan transpired as a mere interlude in the discussion of
other bargaining proposals and information items.
75
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nue Code relating to the employee stock purchase plan. In
so doing, Trosclair told Eyer that in his opinion the Com-
pany could not negotiate separate terms and conditions
pertaining to the plan with the Union. In connection with
this discussion, some citation to case decisions were pre-
sented to Eyer. Eyer responded that he and his associates
were not attorneys, that there were pending unfair labor
practice charges covering the matter and that he would
refer to the attorneys for the Union the information which
had been supplied. Trosclair suggested that Eyer and his
associates should consult with their attorneys. There was
no discussion of the employee stock purchase plan during
the course of the May 10 meeting. Subsequent to the meet-
ing, Eyer dispatched the Bryan affidavit to the Union's
attorneys and discussed its contents with them. The parties
met in a final negotiating session on May 26, 1977, but no
discussion of the stock purchase plan ensued.
d. Pertinent code provisions
Trosclair testified that he interpreted section 423(bX4) of
the Internal Revenue Code as permitting the Company to
tender through the exclusive collective-bargaining repre-
sentative of employees an offer to the employees to pur-
chase stock of the Company. Trosclair further credibly tes-
tified that he interpreted the provisions of section 423(bX5)
of the code as requiring any offer of stock to employees to
be accomplished in a manner sufficient to assure that no
single employee or group of employees obtain any privi-
lege, concession, or advantage in purchase price not ac-
corded all employees to whom the stock is offered. Tros-
clair testified credibly that he informed the board of direc-
tors of his opinion in these respects. Trosclair further testi-
fied, in substance, these considerations formed the basis for
his opinion that he could not conduct negotiations on be-
half of Respondent with the Union relating to any separate
stock purchase plan or special conditions to be accorded
employees represented by the Union.
Code provisions which Trosclair considered and which
set forth the requirements which a given plan must contain
in order to qualify for special tax treatment under the terms
of the Code are as follows:
(4) under the terms of the plan, options are to be
granted to all employees of any corporation whose em-
ployees are granted any of such options by reason of
their employment by such corporation, except that
there may be excluded-
(A) employees who have been employed less than 2
years,
(B) employees whose customary employment is 20
hours or less per week,
(C) employees whose customary employment is for
not more than 5 months in any calendar year, and
(D) officers, persons whose principal duties consist
of supervising the work of other employees, or highly
compensated employees;
(5) under the terms of the plan, all employees grant-
ed such options shall have the same rights and privi-
leges, except that the amount of stock which may be
purchased by any employee under such option may
bear a uniform relationship to the total compensation,
or the basic or regular rate of compenstion, or employ-
ees, and the plan may provide that no employee may
purchase more than a maximum amount of stock fixed
under the plan; 26 USC §423(b).
Conclusions
I find that Respondent violated Section 8(aXl) and (5) of
the Act, as alleged in the amended complaint.
Initially, I conclude that Respondent violated its collec-
tive-bargaining duty by failing to meet and bargain with
the Union concerning the application of its stock purchase
plan to the employees comprising the units represented by
the Union at the Carlsbad and Las Cruces stores. Basic to
this conclusion is the finding that the stock purchase plan,
and its application to unit employees, constitutes a benefit
and a term and condition of employment over which Re-
spondent was legally obligated to bargain. The B. F. Good-
rich Company, 195 NLRB 914 (1972); Richfield Oil Corpo-
ration, 110 NLRB 356 (1954); cf. Westinghouse Electric
Corporation, 122 NLRB 1466 (1959), enfd. sub nom Inter-
national Union of Electrical, Radio and Machine Workers,
AFL-CIO v. N.LR.B., 273 F.2d 243 (C.A. 3, 1959). Implic-
it in this finding is the determination that the plan confers
upon eligible employees a potential pecuniary advantage
flowing from the opportunity accorded eligible employees
through the plan to invoke their option to purchase stock
of the Company on a partial extension of credit and at a
discount from fair market value with the consequential
opportunity for capital gain realization. That the Company
recognizes the stock plan as an emolument of significant
value is to be inferred from the fact that the plan is struc-
tured with the objection and purpose of maximizing em-
ployee productivity and minimizing employee turnover
through the device of promoting the long-term interest of
participating employees "in the affairs, growth, and devel-
opment" of the Company. It is, of course, true, as Respon-
dent contends, that the plan here under scrutiny appears, in
contrast to the plan which was the subject of evaluation in
Richfield Oil, to place emphasis on stock acquisition rather
than stock accumulation and, contrary to the plan in Rich-
field, provides for no monetary contribution on the part of
the employer. However, given the character of the benefit
accorded employees by the plan, these considerations form
an insufficient basis, in my opinion, for excluding the in-
stant plan from the realm of mandatory bargaining topics.
See The B. F. Goodrich Company, supra. Cf. Richfield Oil
Corporation, supra.
Without conceding that the employee stock purchase
plan is a mandatory subject of bargaining, Respondent
contends, in any event, that the instant record does not
disclose a refusal on its part to engage in collective bargain-
ing with the Union. Rather, contends Respondent, the evi-
dence discloses a willingness on its part to discuss the terms
of the stock purchase plan with the Union, accompanied,
however, by a caveat that the Company would be preclud-
ed by applicable and controlling provisions of the Internal
Revenue Code from negotiating a separate option price or
different terms and conditions applicable only to unit em-
ployees. In other words, contends Respondent, it was not
obligated to bargain with the Union concerning issues af-
fecting the companywide application of the plan. I view the
76
FOODWAY
record evidence differently. To be certain, any effort to
extend to unit employees the benefits of the stock purchase
plan available to other Winn-Dixie employees was foresee-
ably laden with practical difficulties. However, as the Gen-
eral Counsel contends, and as my scrutiny of the provisions
of the Internal Revenue Code cited to me by the parties
discloses, there is no prohibition in the code against em-
ployer negotiations with collective-bargaining agents con-
cerning provisions of any covered plan but, rather an em-
phasis upon equality of rights and privileges conferred
through participation in the plan. But, in any event, finding
as I do that the plan constitutes a mandatory bargaining
subject, the matter is controlled by the decision of the
Board in Tide Water Associated Oil Company, 85 NLRB
1096 (1949), wherein the Board stated (at 1097):
. . . we have recently held, and our decisions have
been affirmed by the Courts, that practical difficulties
encountered by an employer in negotiating about a
pension plan with the representative of a portion of his
employees, all of whom are covered by a company-
wide pension plan, do not eliminate his duty to bargain
within an appropriate unit. [Footnote citations omit-
ted.]
There are, of course, factual distinctions between the
instant case and Tide Water but, in my view, this does not
serve to erode the applicability of the principle enunciated
therein by the Board. While there is nothing in the Act
which empowers the Board to fashion the terms of any
collective-bargaining agreement or to alter plans, pro-
grams, or contract terms generated by virtue of the bar-
gaining process, the Board is entrusted with authority un-
der the Act to foster true collective bargaining and to po-
lice attempted circumvention of that process. An integral
element of that authority is the power to issue a bargaining
order in a circumstance wherein one of the parties to the
bargaining process enters into collective bargaining with a
predisposition and fixed mind not to bargain, in fact. Gulf
Power Company, 156 NLRB 622, 626 (1966), and cases
cited therein. See also May Aluminum, Inc., 160 NLRB 575,
610-611 (1966), cf. Westinghouse Electric Corporation, su-
pra. Section 8(d) of the Act imposed upon Respondent the
obligation not only to notify the Union of the decision to
extend the stock plan to the unit employees, but to accord
the Union reasonable notice and opportunity to meet at
reasonable times and confer in good faith concerning not
only each and every term of the plan but about the application
of the plan to unit employees. As stated in May Aluminum,
Inc., supra.
The employer must recognize the rights of the union in
fact as well as in theory such as its right to bargain on
all terms and conditions of employment, its right to
information, to explanations, to be consulted, to ask
pertinent questions and to have them answered, to have
all of its proposals considered on their merits.
It may well be that practical considerations arising from
the mandate of the Internal Revenue Code would, upon
close bargaining table scrutiny, militate against substantial
change in the terms and coverage of the plan as proffered
by the Company. It may be also that the Union, upon
careful reflection fostered by the bargaining process, would
have acquiesced in all features of the plan as proffered by
the Company. On the other hand a full and fair bargaining
table dialogue may have led to mutually agreed-upon mod-
ifications in the terms and coverage, or its application to
unit employees, which would have been entirely consistent
with the requirements of the revenue code and in no man-
ner erosive of the objectives and purposes of the company-
wide program. A third possibility existed, that of deadlock
or impasse. Nothing comprehended by the statute would
compel agreement by either party, given a good-faith effort
to achieve accord. H. K Porter Co., Inc. v. N.LR.B., 397
U.S. 99 (1970). But the salient principle applicable to the
instant inquiry is that the Union was entitled to an oppor-
tunity to negotiate concerning the matter and not to be
confronted in fact or in substance with afait accompli. See
Leeds & Northrop Company, 126 NLRB 987 (1967). The
General Counsel correctly contends that the Act is the
legislative scheme which, in final analysis, prescribes Re-
spondent's bargaining obligation. While the mandate and
requirements of other Federal statutes may serve to limit
the area of discretion which a party may exercise in fulfill-
ing his bargaining obligation, that party's obligation to en-
ter into the bargaining process in good faith is not thereby
minimized or obviated. See Melville Confections, Inc., 142
NLRB 1334 (1963); Overnite Transportation Company, Inc.,
157 NLRB 1185, fn. 2 (1966). I find that Respondent was
not excused by reason of provisions of the Internal Reve-
nue Code from entering into negotiations with the Union
concerning the plan. By its failure and refusal to honor the
Union's bargaining request, Respondent breached its obli-
gation to bargain in good faith over a mandatory bargain-
ing subject and thereby violated Section 8(aX5) and (1) of
the Act. This breach was not cured by the belated submis-
sion of fragments of material and of memoranda some 5 or
6 months subsequent to the Union's initial bargaining de-
mand.
This conclusion is based in part upon the implicit finding
that Respondent must bear responsibility for creating a
circumstance which limited the time available to the parties
for negotiations concerning the plan and its application to
the employees at Carlsbad and Las Cruces. There is, of
course, no warrant for an assumption that the acquisition
of the last named stores were achieved in a vacuum without
any awareness on the part of the board of directors and/or
the executive committee endowed with the responsibility
for approving the November 30 proffer of stock options. As
the record clearly establishes, the operative decision with
respect to the stock offer was, in fact, made after the acqui-
sition had become effective and, of course, there had been
a postacquisition prelude period of planning, preparation,
and consummation. Moreover, there is ample evidence to
suggest that, in deciding to extend the options to the em-
ployees of the newly acquired stores, careful scrutiny was
given by management and the executive committee to cer-
tain of the legal prerequisites assertedly imposed by the
Internal Revenue Code applicable to the stock offer, as
that offer applied to the Carlsbad and Las Cruces employ-
ees. I find merit in the contention of the Charging Party
that, in contrast to the deference given the Revenue Code
77
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
requirements, too little attention was given to the concomi-
tant collective-bargaining obligation accruing by virtue of
the proffer. In short, I find that Respondent failed to ac-
cord proper status and priority to the bargaining mandate
imposed by the statute. See "M" System, Inc., 129 NLRB
527, 547 (1960); N.L.R.B. v. Insurance Agents' International
Union, AFL-CIO [Prudential Insurance Co.], 361 U.S. 477,
505-506 (1960).
In this connection, I find that neither the limitations
imposed by the 3-week time parameters of the operative
decision and the November 30 option date nor the involve-
ment at a distant location of legal counsel excused Respon-
dent's failure to properly attend to its bargaining obliga-
tion. The first consideration was clearly foreseeable to Re-
spondent's managing agents and, even assuming the theo-
retical importance otherwise of the November 30 option
date, the choice of postponing the stock offer or - tying
Respondent's second exculpatory explanation to the first
- acting with immediate dispatch in consulting with the
Union resided with Respondent. It took neither course and
must bear the legal consequence of its choice. That its
house counsel and attorney, Carlton Trosclair, was in-
volved in other negotiations with other labor organizations
clearly does not serve to remove or diminish the legal im-
perative of timely attention on the part of Respondent to
the instant bargaining obligation imposed by statute. This
is particularly so in a situation, as here, where there is no
showing that responsible officials, facing administrative
deadlines possibly imparted by legal considerations, under-
took reasonable effort, routine or extraordinary, to achieve
expedited legal advice from the individual charged with the
responsibility for dispensing such advice, or from any duly
authorized subordinate of that individual.
Nor does the record establish that the Union waived its
bargaining rights or that it failed to make a proper bargain-
ing demand. A waiver of bargaining rights must be clear
and unequivocal and will not be inferred in the absence of
unmistakable evidence. See, e.g., Wayne's Olive Knoll
Farms, Inc., d/b/a Wayne's Dairy, 223 NLRB 260, 265
(1976). No evidence of this type is present here. It is, of
course, axiomatic that the duty to engage in collective bar-
gaining must be preceded by a proper bargaining demand.
The Union's telegraphic response of November 17 clearly
constituted such a demand. Respondent's contention that
Trosclair's earlier letter of November 15 solicited only the
filing of written objections from the Union, and not negoti-
ations, does not serve to modify thg nature of the response
filed by the Union. In specific terms, the Union sought to
bargain concerning the plan and nowhere did it lodge ob-
jections to the plan per se or to its eventual implementation
at the Carlsbad and Las Cruces stores. It is immaterial
whether or not Respondent considered bargaining to be
proper. Given the brevity of the timeframe established by
Respondent for union analysis of the plan, and considering
the specificity of the bargaining demand lodged by the
Union in its November 17 communication, it is reasonable
to assume, as I do, that in treating the Union's response as
a declination, absolute in terms, Respondent was giving the
most strict and, as I view the matter, unwarranted con-
struction to the content of the Union's response, and was
motivated in this by objectives other than legitimate busi-
ness ends.
In this regard, unpersuasive is Respondent's contention
that the Union sought by virtue of its response to engage in
negotiations concerning the companywide elements of the
plan, thereby rendering futile the entire bargaining process.
Assuming without deciding that an ingredient of the
Union's demand was a desire to negotiate with respect to
companywide features of the plan, there is nothing in the
Union's response of November 17 which declared that this
was the exclusive objective. Again, given the short notice
extended by Respondent and the proximity of the Novem-
ber 30 option date to the dispatch of Respondent's initial
communication, it was reasonable that Respondent would
infer that the Union would desire to proceed in a responsi-
ble manner in seeking to fulfill its obligation to unit em-
ployees by becoming informed through the bargaining pro-
cess of the applicable features and ramifications of the
plan. It is to be remembered, in this regard, Respondent
had not made available to the Union any of the particulars
of the plan, and this was a new bargaining relationship
without previous bargaining history to sustain it.
In this context, and as an assessment of the presence or
absence of a good-faith approach to the bargaining obliga-
tion on the part of Respondent, it is imperative to take into
account the out-of-hand manner in which Respondent by
virtue of its November 18 communication to the Union
rejected the Union's bargaining overtures. Cf. "M" System,
Inc., supra, 129 NLRB at 547. Not only did this communi-
cation constitute, in the circumstances from which it ema-
nated, a formidable showing of an absence of good faith, it
constituted as well an impermissible rejection of the bar-
gaining process which violated Section 8(aX5) and (1) of
the Act. It is on this basis that Respondent's reliance on
Westinghouse Electric Corporation, 122 NLRB 1466 (1959),
is misplaced. To this point in time Respondent had rejected
the concept of collective bargaining while the Union was
resolutely seeking to invoke the process.
But the matter does not rest here. The record evidence
discloses that, immediately upon dispatch of the November
18 communication from Respondent to the Union which,
in substance, rejected the Union's bargaining demand and
declared the futility of the bargaining process, store manag-
ers were given clearance to post the letter on employee
bulletin boards. The General Counsel is clearly correct in
his contention that the posting of the letter in altered form
containing the prominent notations "Notice" or "for non-
union employees only" constituted a daily and dramatic
reminder that employees were being penalized for their
union support and adherence. McCormick Longmeadow
Stone Co., Inc., 158 NLRB 1237 (1966). Even assuming the
absence of initial clearance on the part of a managing offi-
cial for the posting of copies of the letter in the respective
stores, responsibility must still be assessed against Respon-
dent for maintaining the letter in altered form. This is so
because these copies remained posted in the respective
stores for several weeks and there is no evidence of record
to suggest that any agent of Respondent took steps to ne-
gate or disavow the clear implication of the posting. The
totality of these considerations compels the conclusion,
which I reach, that Respondent unlawfully withdrew its
78
FOODWAY
offer of a benefit to unit employees and failed and refused
in violation of Section 8(a)(5) to engage in good-faith bar-
gaining with the Union concerning the stock purchase plan
and its application to unit employees.
In close analytical relationship, and independently viola-
tive of Section 8(a)(1) of the Act, are the separate com-
ments of Stuckey and Ulibarri to the effect that the inter-
position of the Union was responsible for the inability of
union adherents to participate in the stock purchase plan.
Kentron of Hawaii Ltd., el al., 214 NLRB 834 (1974). These
comments formed an integral element of Respondent's en-
tire course of conduct with respect to the application of the
plan to the employees at Carlsbad and Las Cruces and are
not rendered permissible by reason of the fact that the
supervisory comments were in response to questions ad-
dressed by employees which arose as a natural and foresee-
able consequence of the conduct of Respondent in permit-
ting the November 18 communication to be posted in al-
tered form and to remain in that condition in prominent
places on the bulletin boards of the store.
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent as set forth in section III,
above, occurring in connection with the operations of Re-
spondent as set forth in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices affecting commerce within the meaning of
Section 8(a)(5) and (1) of the Act, I shall recommend that it
be ordered to cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the
Act.
Having found that Respondent has refused to bargain
collectively with the Union regarding the participation of
unit employees in the plan, as well as the application of the
plan to them, both in violation of Section 8(a)5) and (I) of
the Act, I shall recommend that, upon request, it be or-
dered to bargain in good faith with the Union in these
respects from the date of the action of the board of direc-
tors, and its executive committee, taken during the first
week of November 1976, granting stock options under the
revised stock purchase plan. Cf. The B. F. Goodrich Conpa-
ny, 195 NLRB 914, 915 (1972). If an understanding is
reached by virtue of these collective-bargaining negotia-
tions it is recommended that Respondent be ordered to
embody such an understanding in a signed agreement.
Upon the basis of the foregoing findings of fact and the
entire record in this proceeding, I make the following:
12 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
CONCLUSIONS OF LAW
1. Winn-Dixie Texas, Inc., d/b/a Foodway, is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Retail Clerks International Association, Local 642,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. The collective-bargaining units described in section
III, above, constitute appropriate units for the purpose of
collective-bargaining within the meaning of Section 9(b) of
the Act.
4. At all material times herein the Union has been and
remains the exclusive collective-bargaining representative
of the employees in the aforesaid appropriate bargaining
units for the purposes of collective bargaining within the
meaning of Section 9(a) of the Act.
5. By posting in altered form in its Carlsbad and Las
Cruces stores copies of a communication from Respondent
to the Union dated November 18, 1976, thereby withdraw-
ing its offer to permit participation by unit employees in
the amended companywide stock purchase plan and plac-
ing the onus on the Union for the asserted exclusion of unit
employees from participation in the plan; by failing there-
after to make said plan available for participation by unit
employees; and by failing and refusing since on or about
November 18 to meet and bargain collectively with the
Union concerning the application of said plan to unit em-
ployees and the participation of unit employees in said
plan, Respondent engaged in conduct in violation of Sec-
tion 8(aX5) and (1) of the Act.
6. By representing to unit employees through state-
ments of supervisory personnel that the Union was respon-
sible for the exclusion of unit employees from participation
in the stock options being offered by it, Respondent en-
gaged in conduct in violation of Section 8(aX1) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
Upon the foregoing findings of fact and conclusions of
law, and the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER 12
The Respondent, Winn-Dixie Texas, Inc., Fort Worth,
Texas, d/b/a Foodway, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Misrepresenting to employees represented by the
Union and employed in the collective-bargaining units de-
scribed below that the Union is responsible for exclusion of
unit employees from participation in Respondent's stock
purchase plan, including the stock options made available
to qualifying employees companywide in November 1976.
(b) Withdrawing proffered offers of participation on the
part of unit employees in the companywide stock purchase
plan by posting communications from Respondent to the
Union in altered form and maintaining said communica-
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
79
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions on store bulletin boards attributing to the Union re-
sponsibility for the exclusion of unit employees from par-
ticipation in the stock purchase plan and placing the onus
on the Union for the continued exclusion of unit employees
in such participation.
(c) Failing and refusing to bargain collectively with Re-
tail Clerks International Association, Local 462, AFL-
CIO, as the exclusive representative of its employees in the
appropriate units described below, with regard to the appli-
cation of the stock purchase plan to employees employed
in said unit and their participation in said plan, from the
effective date of the action of its board of directors and its
executive committee taken during the first week of Novem-
ber 1976 in granting stock options under the revised stock
purchase plan. The appropriate bargaining units are:
All regular full-time and all regular part-time em-
ployees and courtesy clerks employed in the Carlsbad,
New Mexico, operation of Respondent who are en-
gaged in handling or selling merchandise or performing
other services incidental thereto, excluding store overall
manager, guards, all employees working exclusively in
the meat department, and supervisors as defined in the
Act.
All employees employed in the Las Cruces, New
Mexico, operation of Respondent, excluding all manag-
ers, guards, office clerical employees, watchmen, em-
ployees working in the meat department, and supervi-
sors as defined in the Act.
(d) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of their
right to self-organization, to form, join, or assist any labor
organization, to bargain collectively through representa-
tives of their own choosing, and to engage in other concert-
ed activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any or all
such activities.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Upon request, bargain collectively with Retail Clerks
International Association, Local 462, AFL-CIO, with re-
spect to application of the amended stock purchase plan to
employees employed in the above-described collective-bar-
gaining units, as well as their participation, if any, in said
plan, from the date of the action of the board of directors
taken during the first week of November 1976, extending
the offer of stock options under the amended stock pur-
chase plan and, if an understanding is reached, embody
such understanding in a said agreement.
(b) Post at its Carlsbad, New Mexico, and Las Cruces,
New Mexico, stores copies of the attached notice marked
"Appendix." 13 Copies of said notice, on forms provided by
the Regional Director for Region 28, after being duly
signed by Respondent's authorized representative, shall be
posted by Respondent immediately thereafter, in conspicu-
ous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by
Respondent to insure said notices are not altered, defaced,
or covered by any other material.
(c) Notify the Regional Director for Region 28, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
13 In the event that 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 National 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
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT misrepresent to unit employees that
the Union is responsible for exclusion of unit employ-
ees from participation in our companywide stock pur-
chase plan.
WE WILL NOT by engaging in any of the following
conduct fail or refuse to bargain collectively with Retail
Clerks International Association, Local 462, AFL-CIO,
as the exclusive bargaining representative of our em-
ployees in an appropriate bargaining unit:
Posting in altered form in our Carlsbad and/or
Las Cruces stores copies of a communication
from us to the Union dated November 18, 1976,
in which we, in effect, withdraw our earlier offer
to unit employees to participate in our amended
stock purchase plan and unfairly and improperly
blame the Union for making it impossible for unit
employees to participate in the plan.
Failing and refusing since or or about Novem-
ber 18 to meet and negotiate with the Union con-
cerning the application of our stock purchase
plan to unit employees and their participation in
the plan. The appropriate bargaining units are:
All regular full-time and all regular part-time
employees and courtesy clerks employed in the
Carlsbad, New Mexico, operation of Respondent
who are engaged in handling or selling merchan-
dise or performing other services incidental there-
to, excluding store overall manager, guards, all
employees working exclusively in the meat de-
partment, and supervisors as defined in the Act.
All employees employed in the Las Cruces,
New Mexico, operation of Respondent, excluding
all managers, guards, office clerical employees,
watchmen, employees working in the meat de-
partment, and supervisors as defined in the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of their right to self-organization, to form, join, or assist
any labor organization, to bargain collectively through
representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to re-
frain from any and all such activities.
80
FOODWAY
WE WILL, upon request, bargain collectively with Re-
tail Clerks International Association, Local 462, AFL-
CIO, with respect to application of the amended stock
purchase plan to employees employed in the above-de-
scribed collective-bargaining units from the date of the
action of the executive committee taken during the first
week of November 1976, extending the offer of stock
81
options under the amended stock purchase plan, and if
an understanding is reached, embody such understand-
ing in a signed agreement.
WrNN-DIXIE TEXAS, INC.,
D/B/A FOODWAY