Foodway

National Labor Relations Board - Board Decisions

May 8, 1978

235 N.L.R.B. 1479 (N.L.R.B. 1978)

FOODWAY
Winn-Dixie Texas, Inc., d/b/a Foodway and Retail
Clerks International Association, Local 1564,
AFL-CIO. Cases 28-CA-4135 and 28-CA-4254
May 8, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On September 21, 1977, Administrative Law Judge
James M. Kennedy issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge,' to
modify his remedy,2 and to adopt his recommended
Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Winn-Dixie
Texas, Inc., d/b/a Foodway, Albuquerque, New
Mexico, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order.
[On October 4, 1978, Respondent and the Union
filed a joint motion to dismiss or, alternatively, to
remand to the Regional Director for approval of
withdrawal request, advising that the parties had
entered into a written agreement which settled all
existing disputes between them. On October 13, 1978,
the General Counsel advised the Board that he had
no objection to the joint motion. The Board consid-
ered the matter, granted Respondent and Union's
joint motion to dismiss, and dismissed the complaints
issued herein.]
I In adopting the Administrative Law Judge's findings and conclusions
we find it unnecessary to adopt fn. 13 of his Decision.
2 In the remedy section of his Decision, the Administrative Law Judge
erroneously referred to a fixed 7-percent interest and thereby failed to apply
properly the Board's "adjusted prime interest rate" formula which may vary
in the manner prescribed in Florida Steel Corporation. 231 NLRB 651 (1977).
See, generally, Isis Plumbing d Heating Co., 138 NLRB 716 (1962).
DECISION
STATEMENT OF THE CASE
JAMES M. KENNEDY, Administrative Law Judge: This
matter was heard before me at Albuquerque, New Mexico,
on April 7, 8, 18 and 19, 1977, pursuant to separate
complaints issued by the Regional Director for the Nation-
al Labor Relations Board for Region 28 which were
consolidated by his order of March 25, 1977. The charge in
Case 28-CA-4135 was filed by Retail Clerks International
Association, Local 1564, AFL-CIO (herein called the
Union) on December 1, 1976, and the charge in Case 28-
CA-4254 was filed by the Union on March 9, 1977. At the
hearing I permitted the General Counsel to amend the
complaint in certain respects. As amended, the complaint
alleges that Winn-Dixie Texas, Inc., d/b/a Foodway
(herein called Respondent) has engaged in certain viola-
tions of Section 8(aXl) and (5) of the National Labor
Relations Act, as amended.
Issues
1. Whether or not Respondent unlawfully refused to be
bound to a collective-bargaining agreement negotiated by a
group of retail supermarket chains covering their Albu-
querque, New Mexico, operations.
2. Whether or not certain of Respondent's unilateral
changes in working conditions violated Section 8(a)(5) of
the Act.
3. Whether or not Respondent interfered with, re-
strained, or co,rced employees in the exercise of their
Section 7 rights independent of the foregoing matters.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, to argue orally, and to file briefs. Briefs, which
have been carefully considered, were filed by all parties.
Upon the entire record of the case,' I make the
following:
FINDINGS OF FACT
I. RESPONDENT'S BUSINESS
Respondent is a Texas corporation which operates a
chain of supermarkets. Its principal office is located in Fort
Worth, Texas, but it maintains an office in Albuquerque,
New Mexico, from which it directs its New Mexico
operations. The only stores involved in this proceeding are
those located in Bernal;llo County, New Mexico; i.e.,
Albuquerque.
Respondent admits its gross retail sales annually exceed
$500,000, and in New Mexico it annually purchases goods
and materials valued in excess of $50,000 from sources
outside New Mexico. Accordingly, it admits, and I find,
that it has been at all material times an employer engaged
' Respondent's unopposed motion to correct the record is hereby
granted.
235 NLRB No. 208
1479
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that the Union is now,
and has been at all material times, a labor organization
within the meaning of Section 2(5) of the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
In Albuquerque, as well as in other areas of New Mexico,
there are five principal supermarket chains. These are
Safeway Stores, Inc.; Shop-Rite Foods, Inc., d/b/a Piggly-
Wiggly; Furr's, Inc.; Albertson's, Inc.; and the chain
known as Foodway, now owned by Respondent. Prior to
September 1976 the Foodway chain was owned by Kim-
bell, Inc. In September 1976 Kimbell sold its chain to
Respondent which continued to do business under the
Foodway trade name.
The Union represents the retail store employees at all
five chains. When Respondent purchased Foodway, it
continued to employ Kimbell's employees in their former
capacities and continued to recognize the Union as its
employees' bargaining representative, although it did not
sign the 1973-76 Kimbell contract when asked to do so. It
nonetheless maintained existing conditions in effect until
the Kimbell contract expired shortly thereafter on October
20, 1976.2
Although Respondent, in its answer, denied the General
Counsel's allegation that the Union represented a majority
of its Albuquerque retail store employees, the denial
appears to be pro forma and not seriously advanced.
Indeed, Respondent's prompt recognition of the Union, its
subsequent bargaining with it, and its October 20 lockout
coupled with its November 13 reinstatement of all locked-
out employees clearly indicate that the Union enjoyed
majority status at all material times. Except for its answer
Respondent has not contended otherwise, and the pre-
sumption of continued majority status applies to this
successor. Roman Catholic Diocese of Brooklyn, et al., 222
NLRB 1052(1976).
B. The 1973-76 Contracts
It is unnecessary to recount the multiemployer bargain-
ing history in Albuquerque in great detail. Suffice it to say
that it has occurred in slightly different forms since at least
1970. In July 1973, prior to the expiration of the agree-
ments then in effect, four of the chains (Albertson's had
not yet opened its Albuquerque store) signed and mailed a
joint "opener" letter to the Union. In that letter the four
chains stated, inter alia, "As has been our practice in the
past, the undersigned employers will continue to bargain
with your union jointly on a multi-employer basis." The
1973 negotiations resulted in four substantially identical
contracts which expired on October 20.
2 Hereinafter all dates are 1976 unless otherwise noted.
3 Similar letters were apparently sent to the other four chains as well.
4 Respondent. after the sale, merely took over Kimbell's Albuquerque
At some point during the life of that contract, Albert-
son's opened its Albuquerque store. In 1975, following an
NLRB representation election, the Union became the
certified representative of Albertson's retail store employ-
ees. On December 3, 1975, Albertson's signed a collective-
bargaining contract with the Union which also expired on
October 20. Although the Albertson's agreement was
substantially the same as the 1973-76 agreements signed by
the other four chains, it contained some minor differences.
Its recognition clause, for example, incorporated the unit
description appearing in the Board certification, and its
seniority provisions were limited to the single store. To be
sure, there are other minor differences as well, but I deem
them to be insignificant.
The 1973-76 contracts signed by the other four chains
also contained minor variances from each other. In general
these variances reflected the slight differences in each
chain's operations. Some chains had bakery employees,
others did not. Some chains had liquor departments, others
did not. Some chains had permitted assistant managers to
be included within the bargaining unit, others had not.
Except for these and perhaps other minor differences the
five contracts were substantially identical.
C. The 1976 Negotiations
I. The Union's communications with Respondent
On August 10, 1976, the Union's executive officer,
Virden R. Gentry, sent Jack Jones, then a vice president of
Kimbell, Inc., officed in Fort Worth, Texas, a reopener
letter advising that the Union wished to negotiate a
successor contract to the 1973-76 contract which was due
to expire on October 20.3 Kimbell's attorney, Robert P.
Tinnin, Jr., of Albuquerque, who now represents Respon-
dent in this matter, answered Gentry's letter on August 26
advising him that a sale of Kimbell's assets, including all
the Albuquerque stores (as well as stores outside Albuquer-
que), was imminent and would be completed within the
week. Tinnin offered to discuss the matter further, but the
tone of his letter suggested that the Union would be
advised to await the consummation of the sale.
Following that exchange, on September 1 Gentry sent a
mailgram to Respondent's Albuquerque office 4 advising
that it was the majority representative of its Foodway retail
store employees in various cities, including Albuquerque,
and demanding immediate recognition and good-faith
bargaining at the earliest possible date. Gentry also asked
that Respondent not change the existing terms and condi-
tions of employment set forth in the Kimbell contract. On
September 8 Jones, who had become Respondent's director
of industrial relations, advised the Union that Respondent
would recognize the Union so long as it represented a
majority of Respondent's employees at each of its loca-
tions. On September 20 Gentry wrote another letter to
Jones seeking certain information which he had asked
Jones to supply in his letter of August 10 when Jones was
employed by Kimbell. On September 22 the Union's
attorney, Gerald R. Bloomfield, wrote Jones asking, in
office and continued to operate the New Mexico portion of the chain from
there.
1480
FOODWAY
effect, that Respondent sign the Kimbell contract. Jones
referred Bloomfield's letter to Carlton J. Trosclair, a Winn-
Dixie staff attorney in Jacksonville, Florida. On October 6
Trosclair replied by letter to Bloomfield averring that
Respondent was not bound by the Kimbell agreement and
therefore denied Bloomfield's request to sign the Kimbell
agreement. Trosclair said, however, that Respondent
would bargain "in good faith" with the Union at each
location where the Union represented a majority of its
employees. Moreover, Trosclair specifically said that Re-
spondent recognized its successorship obligations and
would notify the Union if it decided to make any changes
in existing conditions as set forth in the Kimbell agree-
ment.
2. The initial group
In the meantime bargaining for a new contract had
begun. The first meeting was held on September 15 at the
Union's office in Albuquerque. Representing the Union
were Gentry and the Union's negotiating committee
consisting of employees from the various chains. The
employer representatives were Lyle Setter from Safeway,
Cliff Fielding from Shop-Rite, and Bob Hurmence from
Furr's. These three chains had agreed in principle with the
Union that the negotiations would be on a multiemployer
basis. Also present at the meeting were Jed Pritchett from
Albertson's and Attorney Tinnin from Respondent. Tinnin
told the Union that although he was representing Respon-
dent he was only at the meeting as an observer, and at
future meetings other representatives would appear for
Respondent. In addition, Tinnin stated Respondent had
not yet determined whether it was going to participate in
multiemployer negotiations, and a determination regarding
that would have to be made at some later date.
Pritchett, for Albertson's, also said he was present as an
observer. He complained his contract had not been
properly opened. He noted Albertson's had not in the past
been party to multiemployer negotiations, and that its
contract was different. He said he was not sure if
Albertson's was going to be participating in multiemployer
negotiations, but he wanted to be present because the
negotiations would have a substantial impact on any new
contract; thus he was a very interested observer.
After these remarks were made, the Union presented the
employers with a copy of its initial proposal. Shortly
thereafter, the meeting ended so the employers could study
it.
The next meeting was held on September 28 at the
Airport Marina Hotel in Albuquerque. Representing the
Union in addition to Gentry was Ray Haggard, an
assistant to Eugene Britton, the International vice presi-
dent of the Retail Clerks International Association in
Dallas. Beginning with this meeting, Haggard began to
take an active role on behalf of the Union. Haggard had
been directed by Britton to assist in negotiations because
Britton foresaw a lengthy strike and was concerned about
what he viewed as Respondent's equivocation over its
obligations as well as its intentions.
Representing the employer group, as before, were Setter,
Fielding, and Hurmence. Present for Respondent were
Tinnin, Trosclair, and Jones. Pritchett arrived late. At this
meeting Tinnin and Pritchett reiterated the positions they
had taken at the earlier meeting regarding their observer
status. The employer group then gave the Union a
counteroffer, and, after caucusing, the Union advised the
group that its counteroffer was rejected. The parties agreed
to meet again on October 14.
3. Respondent and Albertson's join the group
On October 14 another meeting was held at the Airport
Marina Hotel. Because Respondent had learned the Union
was concerned about Respondent's status and position in
group bargaining, Respondent had decided to join the
group. To this end Tinnin prepared a letter which Hur-
mence delivered to Haggard that evening. The letter,
although written on Tinnin's letterhead, was worded as the
Union's invitation to Respondent to join the employer
group. Haggard was troubled by the language and after the
meeting referred the letter to Britton. In the meantime
Tinnin and Trosclair advised Setter, Fielding, and Hur-
mence that Respondent would join the group. Several
employer witnesses testified that during the negotiations
that day Respondent's decision to join the group was
communicated to either Gentry or Haggard, though Hag-
gard did not recall it.
Haggard believed Respondent had, by its presence,
already bound itself to the group, and he feared the
"invitation" language of the letter might, in the event of a
bargaining breakdown, be construed as an admission that
the Union had not considered Respondent a part of the
group. He transmitted the letter to Britton in Dallas, who
had his legal staff analyze it.
Within a day or two, Tinnin and Britton had a telephone
conversation in which Tinnin explained the purpose of the
letter saying it was to reassure the Union that Respondent
did not intend to act in an obstructionist manner. Britton
told Tinnin a decision would be made on signing the letter
shortly. On October 16, while in Albuquerque on another
matter, Britton instructed the Union's attorney, Gerald R.
Bloomfield, to sign the letter with one modification.
On Sunday, October 17, Tinnin met with Bloomfield at
Bloomfield's office and affixed his signature approving the
language in the letter. Aside from the last sentence, and
language appropriate to Bloomfield's letterhead, the text is
that drafted earlier by Tinnin. The letter reads as follows:
I am in receipt of Mr. Trosclair's letter of October 6,
1976. In behalf of Retail Clerk International Associa-
tion Local 1564, Winn-Dixie of Texas, Inc., d/b/a
Foodway is invited to join the joint bargaining current-
ly in progress in Albuquerque for a contract to succeed
the current industry contract which expires on October
20, 1976. In addition, it is understood and agreed that
Winn-Dixie of Texas, Inc. d/b/a Foodway does hereby
agree to be bound by the Collective Bargaining Agreement
adopted by the majority of the industry group. [Emphasis
supplied.]
It should be mentioned at this point that the employer
group had not formalized its rules of operation. Its only
rule was that any offer made to the Union had to be
unanimous, and, if an employer wished to offer more than
1481
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a pending group offer, it was to give the other members of
the group 24 hours' notice; if the others did not match the
increase, that employer would be released from the group.
It is undisputed that this rule was never communicated to
any union official during the entire course of the instant
dispute.
On October 19 and 20 a marathon bargaining session
was held at the Airport Marina. Representatives of all
parties, including Albertson's, were present. At that time
Pritchett advised that Albertson's would also join the
employer group.
In the early morning hours of October 20, the employer
group, now clearly consisting of all five chains, retired to
Tinnin's office where a "final offer" was prepared. By this
time all parties were aware that absent an agreement a
strike would commence immediately. The Union had
assembled its membership at the Albuquerque civic audito-
rium, and its officials took the group's final offer to its
membership for a vote. The vote resulted in rejection of the
offer, and the following morning Respondent struck all the
Safeway stores in Albuquerque. In response to the Safeway
strike, the other four chains locked their employees out.
The strike and lockout in Albuquerque continued until
November 12 or 13. In addition to striking Safeway's
Albuquerque stores, the Union also struck Safeway's stores
in the outlying cities of Santa Fe, Los Alamos, Taos, and
Las Vegas.
On October 27 the parties met again at the Airport
Marina Hotel, and, although there was little progress, the
parties attempted to clarify issues and positions. During
that day, Albertson's Pritchett told Haggard that, although
he was bound to agree to any of the changes agreed upon
between the Union and the employer group, nevertheless
he wanted to carry over the differences contained in the old
contract to the new contract. Haggard replied it was the
Union's intention to seek uniform contracts, and he
couldn't give Pritchett any assurance on his request until
after he knew what the group contract was.
As the strike and lockout progressed, the parties began to
cast about looking for means to resolve the dispute. No
negotiations whatsoever had been conducted by the Union
regarding any of the chains' stores located outside the city.
This resulted in Safeway's filing an unfair labor practice
charge, Case 28-CB-I 119, on October 29, accusing the
Union of refusing to bargain over Safeway's stores located
5 Television newscast:
Indications are that there may be a significant change in tactics by the
Retail Clerks Union, but no one will say anything for the public record.
It appears an agreement with all five supermarket chains (they are
Furr's, Piggly Wiggly, Safeway, Foodway, and Albertson's) is far off.
Negotiations broke down two weeks ago, and no new talks have been
set. So union leaders may be trying a new approach. They may decide
to sign separate agreements with each company. Local Union leader
Virden Gentry is in San Francisco right now, talking privately with
Safeway officials, and a meeting has been set here in town Thursday
with Piggly Wiggly officials. What the Union may be thinking is. . . if
you can't fight them together . . .get the agreements one at a time. A
reliable source says the Foodway organization (which is under the new
ownership of Winn-Dixie) is the major obstacle to a joint agreement,
that in fact an agreement could have been reached and the strike
averted if it hadn't been for Foodway. So, union leaders may be trying
outside the city. At approximately the same time Britton,
knowing that the Albuquerque negotiations were at a
standstill, decided progress elsewhere in the State might
have a beneficial effect in Albuquerque. These two factors
resulted in telephone conversations between Britton and
Herman Webber, a Safeway vice president and the manag-
er of that firm's industrial relations department in San
Mateo, California. At Britton's suggestion Webber ar-
ranged a collective-bargaining meeting between the Union
and Safeway at the San Francisco Airport Hyatt House in
Burlingame, California. Attending on behalf of the Union
were Haggard, Britton, who had come from Dallas, and
Gentry. Representing Safeway were Webber and Setter,
who had come from his office in Phoenix. The evidence is
clear that both the Union and Safeway intended to resolve
the out-of-city contracts (Santa Fe, Los Alamos, Taos, and
Las Vegas) and had no specific intention of settling the
Albuquerque contracts. Of course, it is equally true that
each hoped settlement of the out-of-city contracts would
serve as a basis for resolving the Albuquerque dispute.
Despite this intention two news reports were circulated
in Albuquerque to the effect that Safeway and the Union
were attempting to settle the Albuquerque dispute. One
Albuquerque television station, on its November 8, 6 p.m.
newscast, said the Union was apparently changing its
tactics; that Gentry was in San Francisco talking privately
with Safeway and had scheduled another meeting shortly
with Shop-Rite. The following morning the Albuquerque
Journal carried a story written by Winthrop Quigley, its
labor reporter, quoting an International union representa-
tive, Gary Nebeker, as saying that union officials were
meeting with Safeway officials in Oakland, California. The
full texts of both news reports are set forth in the footnote
below.5 Although the news reports did not clearly state that
the California discussions were intended to settle the
Albuquerque dispute, all the bargainers for each employer
as well as the Union so interpreted them.
The first thing which Webber and Britton discussed in
Burlingame was the misconception created by the reports.
Webber, who was upset by the reports, said he believed the
reports would have a deleterious effect on Safeway's
relationship with the other Albuquerque chains. He said
Safeway has a very firm policy in situations where it
negotiates on a multiemployer basis that it not engage in
outside negotiations without the approval of the multiem-
to settle things by fighting smaller battles one at a time rather than a
head to head confrontation with all five.
-Bill Dobbeck, Action 7 News.
Newspaper article:
TOP SAFEWAY OFFICIALS TALK TO UNION TEAM
Striking clerks' union representatives met Monday night with top
Safeway labor relations executives in Oakland, Calif., to "clarify issues"
and "open lines of communications," union spokesman Gary Nebeker
said.
"We're hoping Safeway will be the company that is instrumental in
getting the other companies to continue to negotiate together," said
Nebeker, a Denver-based representative of the International Retail
Clerks Union.
He stressed, "These are not really negotiating sessions." And he
added, "We're not going all the way to Oakland to bring back (a
contract offer) that is less than the membership has already turned
down."
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FOODWAY
ployer group. Britton replied that he was quite upset with
the union official who gave the story, and he made it quite
clear to Webber that the Union was not in Burlingame for
the purpose of negotiating concerning Albuquerque.
Safeway and the Union then began negotiating a
contract covering the northern New Mexico towns. On the
following day they reached an agreement subject only to
ratification by the Union's membership.
In the meantime, Respondent's Trosclair and Furr's
Hurmence, believing Safeway had broken its agreement
with the group regarding Albuquerque, began considering
what steps they should take to withdraw from the group.
On November 10 Tinnin wired Britton demanding that he
cease direct bargaining with Safeway. Britton did not
respond undoubtedly because he knew the Union had not
done so and also because he knew Safeway would shortly
straighten the matter out with the other members of the
employer group.
On November 10 representatives of all five employers
met at Tinnin's office in Albuquerque. During that meeting
Safeway's Setter outlined the out-of-city settlement which
Safeway had concluded in Burlingame. Upon analyzing
that agreement and comparing it with the group's "final
offer" of October 20 in Albuquerque, the employers
noticed that in redistributing certain moneys Safeway had
failed to apply a 10-cent wage reduction in all of the
categories covered. Setter acknowledged his mistake, but
the other employers decided Safeway's out-of-city settle-
ment was too costly to apply to Albuquerque. Setter asked
Fielding, who was scheduled to meet with Gentry on
November 11 regarding Shop-Rite's out-of-city stores, to
advise the Union of the mistake and to ask for a change.
Although the record is not clear regarding how the change
was actually carried out, it is clear that at some point on
November 11 the Union agreed Setter had made an error
and adjusted the Safeway out-of-city contract accordingly.
On November I I Shop-Rite settled its out-of-city contracts
with the Union, following Safeway's November 9 settle-
ment, as modified.
On November 12, another multiemployer bargaining
session was held. Like the October 20 and October 27
meetings it was under the auspices of Commissioner
Meywes of the Federal Mediation and Conciliation Ser-
vice. It was held at the Royal Inn in Albuquerque. The
Union and its committee were located in a first floor
conference room off the main lobby. The employer group
was located in a room upstairs. Most of the communica-
tions between the two were via the mediator. At some point
during the day, the employers decided that a one-to-one
6 In this meeting, as in others, the employers' representatives were
Fielding for Shop-Rite, Setter for Safeway, Hurmence for Furr's. Pritchett
for Albertson's, and Trosclair for Respondent. Also present were two
lawyers for Furr's and Attorney Tinnin for Respondent.
7 I confess to a certain amount of puzzlement regarding Respondent's
intransigence over the no-strike, no lockout clause (see art. XVIII of all
contracts or proposed contracts received in evidence). The 1973-76
contracts signed by all five chains contained an identical no-strike, no
lockout clause. That clause was carried forth by Safeway and Shop-Rite in
their 1976-79 out-of-city contracts. It was ultimately adopted by Safeway,
Shop-Rite, Furr's, and Albertson's for Albuquerque. However, the employer
group's October 20 "final offer" contained somewhat different language.
Unlike the language eventually agreed upon, it specifically barred from the
grievance-arbitration provisions any disciplinary action taken by manage-
discussion between Fielding and Haggard might be benefi-
cial. The mediator suggested this approach to the Union,
and, accordingly, Fielding and Haggard began a lengthy
series of discussions with each other. These generally took
place in the hotel lobby and after each discussion each
individual returned to his own group with proposals and
counterproposals. During these discussions, it is clear that
Fielding was speaking on behalf of the entire employer
group. 6
The parties slowly approached an agreement parallel to
that which Safeway had negotiated for its out-of-city stores
on November 9 and which Shop-Rite had adopted for its
out-of-city stores on November 11. Indeed, all of the
chains, except Respondent, had decided to accept Respon-
dent's offer. The principal obstacle was Trosclair's insis-
tence on certain no-strike language contained in the
group's October 20 "last offer"7 and a concession giving
assistant managers the option to exclude themselves from
the bargaining unit. The assistant manager concession had
been given to Furr's during the day.8 The Union would not
accede to Respondent's demands in this regard.
Because Respondent would not accept the proposal
following the out-of-city agreements, the group was not
unanimous. At that point, however, Safeway, Shop-Rite,
and Furr's were willing to accept the Union's proposal.
Albertson's, although not objecting to the agreement, did
not wish to mrke any proposal that was not unanimous. 9
Albertson's Pritchett decided, because of Respondent's
stance, it was unlikely a unanimous agreement would occur
that day. He went to the airport to catch a flight to his
headquarters in Boise, Idaho.
Trosclair and Setter then had a heated argument. The
result of this argument was that Setter, Fielding, and
Hurmence decided to accept the Union's offer. Trosclair
still refused to do so. The Union, although aware that
Respondent was still holding out, was unaware of the
extent of the disagreement between Trosclair and Setter.
Moreover, it was still unaware of the Employer's self-
imposed rule of unanimity knowing only that Tinnin had
signed the October 17 letter in which Respondent agreed to
be bound by a "majority" agreement.
In any event, Setter, Fielding, and Hurmence all met
with Haggard in a booth in the then-closed hotel restaurant
off the lobby. They had agreed to accept the Union's offer
and had composed identical speeches to give Haggard.
Haggard testified he believed Setter led off by saying "As
an official representative of the Safeway company we
accept your offer." According to Haggard, Hurmence and
Fielding followed nearly word for word except they
ment against an individual who allegedly engaged in a strike during the life
of the agreement. It appears to me the likelihood of such a grievance would
be small and have an insignificant economic impact upon an employer. It is
for that reason I am puzzled over Respondent's insistence on the October 20
language.
R On January 12, 1977, acting pursuant to unit clarification petitions filed
by Respondent, the Regional Director issued a Decision and Order
clarifying the unit. In that decision, which covered Respondent's 12
Albuquerque stores, he determined that the assistant store managers were
supervisors and excluded them from the bargaining unit. See Cases 28-UC-
68 through 79.
9 Fielding has reported the Union would not accept individual accep-
tances of its offer.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
substituted the names of their companies. Haggard did not
respond until all three had finished. He then said, "Gentle-
men, I heard what you said and I understand what you are
trying to do, but understand that when we reach an
agreement it will be an agreement with the entire group."
He then stated he wished to consult with either his
attorneys or his superior, and he left.' °
Approximately 2 hours passed while Haggard obtained
further instructions. During that period, while awaiting his
instructions, Haggard had several conversations with
Fielding in which Fielding asked him if the Union would
make any movement on the no-strike language and
assistant manager language for Winn-Dixie. This sort of
conversation occurred two or three times without immedi-
ate resolution.
In the meantime, Pritchett, whose flight had been
delayed, learned from Fielding of the attempted accep-
tance by Shop-Rite, Safeway, and Furr's. He telephoned
Haggard from the airport and said, "I want you to know
that I go along with everything they have agreed to in the
contract with the exception of those things that I have
talked to you about before, the things we had in our old
contract." Haggard told Pritchett he did not think those
differences would be a problem.
Finally, Haggard advised Fielding that the Union be-
lieved the group had accepted the Union's offer and was
taking the position that Respondent, as well as the four
others, was bound to the new contract.
Shortly thereafter the strike and lockout ended, including
Respondent's lockout of its employees. (Furr's may have
ended its lockout on November 12, rather than November
13.) On November 14 the Union presented what it
considered it to be the group's offer to its membership
consisting of approximately 1,000 employees from all five
chains. The agreement was ratified.
D. Maneuvering After November 12
In the meantime, on November 13 the Union sent a
mailgram (probably received on November 15) asking for a
meeting "for the purpose of executing the industry agree-
ment." On November 15 Tinnin wrote the Union saying he
had been attempting, through the Federal mediator, to
schedule a collective-bargaining meeting for that day, but
Commissioner Meywes had informed him the Union was
declining to meet. He went on to say that, despite the
Union's refusal to meet, the Company saw no reason not to
pay its employees "in accordance with current industry
practice in this area." Accordingly, he said, he had
authorized Respondent to put into effect wage rates
contained in an attached schedule contending the schedule
was identical to the wage rates contained in the new
contracts between the Union and Shop-Rite, Furr's, Safe-
way, and Albertson's. He asked if the Union had any
objection to that proposal saying, if the Union had no
i' There is some reason to think each of the three used the word
"individual" when making their acceptances. I find the word was not used
as Haggard had earlier rejected the concept of individual acceptances and as
the three were trying to satisfy both the Union and Respondent. Thus, to the
Union their identical and simultaneous acceptances would be construed as a
group acceptance and to Respondent could be viewed as individual
objection, the wage rates would be put into effect on
November 21.
Also on November 15 the Union advised Tinnin by
mailgram that its membership had ratified the new agree-
ment.
On November 16 Tinnin wired Gentry contending
Respondent was not bound by the November 12 settlement
as, "you know full well that Winn-Dixie Texas, Inc., did
not make any such offer and that no offer was in fact made
on behalf of the employer group on November 12, 1976."
On November 17 Gentry sent a mailgram to Trosclair in
which he reaffirmed the Union's position that Respondent
"is part of the multi-employer bargaining group. Therefore
we request you meet with us for the purpose of executing
the recently negotiated contract for Bernalillo County."
On November 22 Gentry mailed Tinnin a draft of the
agreement for execution. Simultaneously, similar drafts
were sent to the other four employers. Some of the other
employers noticed certain discrepancies in the drafts as
submitted, and they were later corrected.
In the meantime, on November 23, Tinnin wrote Gentry
saying he had received the November 22 draft but claiming
Respondent "has not concluded a collective-bargaining
contract with your Union covering the employees of the
company in Bernalillo County, New Mexico. We are ready
and willing to meet at any time to negotiate a contract
covering these employees."
On the following day Tinnin wrote Gentry advising him
that Respondent wvould no longer honor any requests to
submit employee or union grievances to binding arbitra-
tion in Bernalillo, Santa Fe, and Los Alamos counties, and
in Taos.
Shortly thereafter, the corrected drafts were sent to the
other four employers. Gentry believes he also mailed such
a copy to Tinnin but can find no record of it. Tinnin claims
a corrected draft was not sent to him.
E. Alleged Restraint and Coercion
1. Unilateral changes
The General Counsel alleges that Respondent violated
Section 8(aX5) of the Act by refusing to check off dues
pursuant to the contract, refusing to implement the union-
security clause of the new agreement, and refusing to
process grievances under the contract. Respondent admits
it is not doing any of these things but contends it is
privileged not to do so as no contract is now in effect.
In addition, the General Counsel alleges that Respon-
dent violated Section 8(aX5) by not paying certain employ-
ees in accordance with the wage progression program set
forth in the contract and improperly compensating em-
ployees with regard to holiday and Sunday pay. The new
contract as accepted by the other four chains provides that
apprentice food clerks shall be paid in accordance with a
four-stage wage progression. Respondent's director of
acceptances. Even assuming, however, that individual acceptances were
being tendered, and even though the language used gave Haggard some
pause, the reality was that the three had given every appearance to the
Union as having accepted on a group basis. If the absence of two employers
raised any question, it was partially answered by Albertson's telephone
acceptance later.
1484
FOODWAY
industrial relations, Jack Jones, testified Respondent was
following that progression. However, a union organizer,
Diane Stout, testified the Union interpreted the provision
to provide for a "skip" of one of the stages. As I read the
contract, the "skip" is governed by ambiguous language."
In any event, Respondent is not giving its employees a
"skip."
With regard to holiday and Sunday pay provisions, I
found the testimony there to be confusing at best. Jones
testified it was Respondent's policy to pay an employee
time-and-a-half for hours worked over 40 per week and
time-and-a-half for Sunday hours. Article IX of the new
agreement requires that time-and-a-half be paid for hours
in excess of 8 in any day or in excess of 40 in any
workweek. However, the General Counsel did not show
any specific instances where Respondent's employees had
been improperly paid. He merely attempted to show that
the policies were not congruent.
2. The alleged threat
In connection with Respondent's admitted failure to
abide by the union-security clause of the putative new
agreement, one incident occurred involving Jack Bran-
nock, the manager of Respondent's Store No. 4. The Union
normally enforced the union-security clause by sending a
letter known variously as a "Request for Discharge" or "7-
Day Notice" to the store manager. The letter advised the
manager of the names of employees who were either
delinquent in their dues or who had not joined within the
requisite period of time. It further stated the employees had
7 days in which to fulfill their membership obligations and
advised the manager that after 7 days the named employ-
ees would not be eligible for further employment. Bran-
nock recalled he received such a letter in February 1977
and posted it on the store's timeclock. Several days later he
removed it, apparently after the named employees had paid
their dues.
3. Surveillance
On February 17, 1977, after having discussed certain
matters with Trosclair, Bob Hobbes, Respondent's opera-
tions manager, sent a memo to all of the Albuquerque and
Santa Fe store managers regarding visitation by union
representatives. Article VI(b) of both the 1973-76 and the
1976-79 contracts permitted authorized union representa-
tives the right to visit the store so long as there was no
unreasonable interference with the employer's business. It
further stated: "Time taken for such an interview in excess
of ten (10) minutes for each employee shall not be on
company time." Thus, a representative could speak to an
employee for longer than 10 minutes if the employee "went
off the clock." Hobbes' February 17, 1977, memo changed
this significantly. While it purported to direct the managers
to cooperate with the union agent by obtaining the
requested employee's presence, it directed the manager to
designate an area in the front of the store for the visit. It
further stated he was not to allow more than 10 minutes per
employee visit. It also directed the managers to prohibit the
11 See the first portion of app. A attached to each contract.
12 This is not alleged to be an unlawful unilateral change, probably
because no actual deviations from the contract were reported.
union representative any admittance to the backroom area
(where the timecards and work schedules were located). It
also noted that if more than one union representative
appeared, making it difficult for the manager to watch
them, he was to remove the store's timesheets and work
schedules until the representatives left.
On February 23 Trosclair wrote Gentry a letter asserting
that certain authorized agents of the Union were visiting
Respondent's Albuquerque stores during working hours,
and they had attempted to enter "restricted store areas
which are not accessible to the public and/or representa-
tives and/or authorized agents of Local 1564." He then
stated that because of the instant legal dispute Respondent
had advised its store managers to set aside a restricted area
in each store in order to accommodate visiting union
agents. He said the policy would remain in effect until (I)
such time as all legal matters had been resolved by the
NLRB and/or the courts and providing the Union repre-
sented a majority of Respondent's employees in the
appropriate bargaining unit, and/or (2) visiting agents of
Local 1564 complied with the Company's requests - i.e.,
that each union agent contact the appropriate store
manager for instructions which area the union agent may
visit, and that the request to interview an employee must be
made to the store manager; the request would be honored
providing the employee's absence did not interfere with
store operations.
As can be seen, Hobbes' memo and Trosclair's letter are
to some extent inconsistent, at least with regard to the
amount of time a union agent may visit with an employ-
ee.' 2 Be that as it may, both documents required union
agents' visits to be conducted in an area of the store
designated by the manager.
These memos were apparently triggered by a visit on
February 16, 1977, to Store No. 30 by Union Representa-
tives Bob Comeaux (an International representative),
Bernie Jaramillo, and Diane Stout. During that visit,
Comeaux requested of Store Manager John Morley to see
the timecards. Morley checked with his superiors and
afterwards denied the Union permission to do so. The
union representatives then asked to interview some em-
ployees, and Morley set aside a booth in front of the store.
While the union representatives were interviewing an
employee, Assistant Manager Edward Sanchez sat in a
booth next to them, listened, and took notes. He refused to
leave when Comeaux requested him to do so. The notes
Comeaux observed Sanchez taking consisted of the numer-
al "44" referring to the 44 hours which the employee was
then discussing.
After that incident, according to Stout, she had occasion
to visit eight stores between March 25 and April 4, 1977. At
each store the manager assigned her a place near the front
of the store and permitted her to interview employees for
short periods. In each instance either the manager or the
assistant manager stationed himself nearby and observed
the conversation until it ended. Although the distances
were within earshot, there is no evidence that the managers
actually heard the conversations, for the union representa-
tives and employees decided to speak in low tones.
1485
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. ANALYSIS AND CONCLUSIONS
A. Respondent's Refusal To Be Bound by the
Agreement
At the hearing the General Counsel and the Charging
Party had different, though not inconsistent, theories with
regard to the alleged 8(a)(5) violation involving Respon-
dent's refusal to be bound to the November 12 agreement.
The General Counsel was content to rely on Tinnin's
having signed on behalf of Respondent the October 17
letter in which Respondent agreed "to be bound by the
collective-bargaining agreement adopted by the majority of
the industry group." He argues that, because four of the
five members of the group accepted substantially identical
agreements on November 12, Respondent is therefore
bound pursuant to the terms of that letter. This theory is
analogous to a situation in which a small construction
contractor signs an agreement to be bound to any contract
negotiated by a larger industry group. See Nedco Construc-
tion Corp., 206 NLRB 150 (1973).
The Charging Party argues that the five chains com-
prised a multiemployer bargaining group and, without
regard to the October 17 letter, Respondent's refusal to be
bound by the group's decision constituted an untimely
withdrawal from the multiemployer group. See Retail
Associates, Inc., 120 NLRB 388 (1958); The Kroger Co., 148
NLRB 569 (1964); and Sheridan Creations, Inc., 148 NLRB
1503 (1964), enfd. 357 F.2d 245 (C.A. 2, 1966), cert. denied
385 U.S. 1005 (1967). The General Counsel does not
oppose the Charging Party's theory and accepts it as a
viable alternative.
Respondent defends both of these theories on the basis
that the multiemployer bargaining system which the em-
ployers had entered into was broken through no fault of its
own. It points to language in Retail Associates, supra, which
provides that in "unusual circumstances" an employer may
escape 8(a)(5) liability even if the withdrawal was techni-
cally untimely. It alleges that the "unusual circumstance"
here was fragmentation of the multiemployer group. It
argues further that the October 17 letter was binding upon
it only so long as the multiemployer group continued to
exist, and when, in its view, on November 12 the group
fragmented, the letter lost any viability it may once have
had.
Thus, giving deference to Respondent's defense, the
question I must answer is whether or not on November 12
the employer group fragmented. If I find it did fragment on
that day, I then must determine whether or not the October
17 letter is nonetheless binding upon Respondent.
As I have noted elsewhere in this Decision, no employer
official ever advised the Union about the group's "unanim-
ity rule." The only hint of any internal rule of which the
Union was aware was the October 17 letter in which
13 Respondent contended that Albuquerque Journal reporter Winthrop
Quigley had heard, and reported, a union official's statement against interest
with regard to what the Union was doing in California. Because Quigley had
no independent recollection of his conversation with the union official but
had made notes of it, and believing the matter might be relevant, I orally
directed Quigley to produce them. Acting upon instructions from his editor,
Quigley refused, citing first amendment grounds.
Respondent had stated that it would sign any agreement
reached by the "majority of the industry."
Beginning with the first bargaining session on September
15, the employer group consisted only of Safeway, Shop-
Rite, and Furr's. On October 14 Respondent joined the
group; its group membership was further sealed on Octo-
ber 17 when Tinnin signed the aforementioned letter. On
October 19-20 Albertson's joined the group.
That all five were members of the group is clearly
evidenced by their undisputed testimony as well as their
reaction to the Union's October 20 selective strike against
Safeway. All four other employers, including Respondent,
locked out their retail store employees. The strike and
lockout continued until at least November 12 when
contract settlement was either imminent or actually
reached.
It is quite clear that the Union's negotiation with
Safeway, occurring in Burlingame, California, covering the
out-of-city stores, has no legal significance here. It may
well be that Respondent and Furr's believed Safeway had
fragmented the group by negotiating an Albuquerque
settlement in California on November 8 and 9. Certainly,
the inaccurate news reports could reasonably have given
them that impression.' 3 However, any misunderstanding
the news reports may have caused was quickly corrected by
Safeway's Setter when he returned to Albuquerque and met
with the other employer representatives on November 10.
He presented them with an out-of-city contract, not an
Albuquerque contract, and they resumed bargaining on the
original multiemployer basis. Cf. Associated Shower Door
Co., Inc., 205 NLRB 677 (1973), enfd. 512 F.2d 230 (C.A. 9,
1975). I attach no significance to the fact that the Safeway
out-of-city contract contained a costly error which was
subsequently corrected before the Albuquerque negotia-
tions began on November 12.
Moreover, despite the apparent historical precedent set
in past negotiations whereby the Albuquerque negotiations
set the pattern for the out-of-city contracts, I find nothing
legally improper about the Union and Safeway agreeing to
the out-of-city contracts first. Both Britton's and Webber's
parallel hopes that settlement of the out-of-city contracts
would have a beneficial impact on Albuquerque do not
change this conclusion. Both the Union and the employers'
having out-of-city stores were obligated to bargain in good
faith over those stores, and they elected to do so. Indeed, it
is likely that Safeway's unfair labor practice charge against
the Union for refusing to bargain on the out-of-city stores
had merit. The Union had struck on October 20 and had
not demanded to negotiate over those stores until Britton
and Webber spoke on November 7.
Thus, until November 12, there was no reason to think
that the multiemployer group had fragmented. Even on
that day, in my view, no fragmentation occurred. Fragmen-
tation of the nature Respondent requires to insulate itself
from 8(a)(5) liability is conduct engaged in by either the
After hearing the remainder of the evidence, I determined Quigley's notes
not to be determinative of anything substantive. Nonetheless the Albuquer-
que Journal's response to my request was not a responsible act, constituted
poor citizenship at the very least, and cannot be condoned. Had the
evidence been significant, further action would have been appropriate;
however, because the evidence turned out to be irrelevant I have made no
recommendations in this regard.
1486
FOODWAY
Union or by other members of the group which is intended
to break up the group. N.L.R.B. v. Southwestern Colorado
Contractors Association, 447 F.2d 968, 970 (C.A. 10, 1971);
cf. Connell Typesetting Company, et al. 212 NLRB 918
(1974). That did not occur here. All that occurred was an
acceptance by first three and then four of the five
employers involved. Any "fragmentation" was simply due
to Respondent's own unwillingness to accept the bargain
struck by the other four. Thus, the only "fragmentation"
which occurred was that generated by Respondent. Cer-
tainly, none of the other four employers did anything to
destroy the group bargaining then in effect. The fact that
three of them resorted to some sort of programmed
acceptance attempting to appear, for Respondent's benefit,
to accept the Union's offer on an individual basis is no
evidence of fragmentation. The actions of those three
employers, later joined by the fourth, clearly appeared to
the Union as a group action. Even if their conduct violated
the group's internal "unanimity" rule, it did not constitute
"fragmentation" as defined in the cases cited above.
Thus, from the Union's viewpoint the group had agreed
to its offer. The Union was well aware that Respondent
was not happy with what the other four had agreed to, but
it recognized the three simultaneous acceptances followed
by the fourth telephonic acceptance as what it objectively
was: a group acceptance.
I find, therefore, that the employer group was not
fragmented on November 12, and that Respondent violat-
ed Section 8(aX5) when it later refused to acknowledge and
sign the agreement.' 4 Retail Associates, Inc., supra; Sheri-
dan Creations, Inc., supra.
Respondent's claim that the history and present fact of
employer group members' signing separate agreements
containing variances on limited matters peculiar to their
particular operations requires the conclusion that there is
no multiemployer bargaining is in error. The Board has
held, originally in a representation case context, that such
variances neither negate the existence nor destroy an
established multiemployer unit. In The Kroger Co., 148
NLRB 569, 573 (1964), the Board said:
Petitioner further contends that the history of individu-
al adjustments negates the establishment or existence of
a multiemployer unit. We do not agree. The necessary
implication of this argument is that in multiemployer
bargaining a union and an individual employer mem-
ber of the group are automatically precluded from
negotiating separately on limited matters of peculiar
concern to the individual employer, unless such em-
ployer withdraws from the group. This is patently
unrealistic. The problems of each member of a multi-
employer group are understandably not always identi-
cal. While it may be to the best interest of the
employers and labor organizations involved to bargain
as a group about all matters of general concern - the
obvious reason for the formation and continuation of
any multiemployer unit - it may likewise be in the best
interest of all concerned not to burden the group
14 That the corrected drafts sent to the other chains may not have been
sent to Tinnin is no defense. The draft, or a copy, clearly exists and may
readily be submitted for execution.
negotiations with the limited problems of an individual
employer. Hence, we do not believe that the exercise of
a mutually recognized privilege to bargain individually
on limited matters, as in the present case, is inconsistent
with the concept of collective bargaining in a multiem-
ployer unit.... Moreover, to hold that such limited
separate bargaining invariably negates the existence of
or destroys an established multiemployer bargaining
unit would be to grant to an employer all the benefits of
multiemployer bargaining without assuming any of its
concomitant obligations.
See also Wm. T. Kirley Lumber Company, 189 NLRB 130
(1971).
The logic carries over to unfair labor practice complaints
as well. Local 260 of the Wood Wire and Metal Lathers
International Union, AFL-CIO (Associated Plastering and
Lathing Contractors of San Diego), 228 NLRB 1347 (1977),
citing Kroger; cf. Francis Chevrolet Company, 211 NLRB
740, 744 (1974), citing Kirley.
Thus, I reject Respondent's contention that signing
separate agreements, even those with variances, demon-
strates the lack of multiemployer collective bargaining in
this instance. Even the The Kroger Co.'5 case cited by
Respondent is not inconsistent with this conclusion. In that
case respondent, simultaneous with entering into multiem-
ployer negotiations, advised the union that it would not be
bound by multiemployer bargaining which would result in
a union-sponsored pension plan. When the group agreed to
such a contract respondent would not sign. The Board and
Court found no violation because the employer had,
following past practice, reserved that issue for separate
bargaining. Unlike the employer in that case, Respondent
made no such reservation on the subjects to which it now
objects - the no-strike clause and the assistant manager
option. Thus, I find that case inapposite.
Moreover, even if it can be said, as indeed I have said it
cannot, that the group did somehow fragment on Novem-
ber 12, the plain language of the October 17 letter would
bind Respondent to the industry agreement. The language
in that letter is clear, unmistakable, and unambiguous.
Tinnin's parole evidence attempting to limit the letter to
group bargaining simply will not lie. Tinnin, an experi-
enced labor lawyer, who has negotiated past contracts for
Respondent's predecessor since at least 1970, could have
made no mistake about it. The second sentence of the letter
constitutes the Union's invitation to Respondent to "join
the joint bargaining currently in progress in Albuquerque."
The third and last sentence states, "In addition, it is
understood and agreed that [Respondent] does hereby
agree to be bound by the Collective Bargaining Agreement
adopted by the majority of the industry group." That
language, in my opinion, is broad enough to bind Respon-
dent to sign the contract negotiated by a majority of the
employers then jointly negotiating with the Union whether
legally constituting a multi-employer group or not. Nedco
Construction Corp., supra. Accordingly, I find Respondent
violated Section 8(a)(5) under that theory as well.
'5 141 NLRB 564 (1963), affd. 330 F.2d 210 (C.A.D.C., 1964), cert.
denied 379 U.S. 929.
1487
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Other Alleged Violations
1. Unilateral changes
In section IV, A above I found Respondent bound by the
November 12 agreement. That agreement required Re-
spondent to do several things, including (1) pay apprentices
according to a progression program, (2) pay Sunday
workers a special Sunday overtime rate, (3) process
grievances under the grievance-arbitration clause, and (4)
collect union dues under the dues-checkoff clause.
With regard to the apprentice wage progression and the
Sunday overtime rate, I find the record to be confused and
incomplete, and I shall make no findings on those matters.
In any event, the 8(a)(5) "make whole" remedy recom-
mended below should adequately remedy any pay matters.
With regard to Respondent's refusal to honor the
grievance-arbitration and dues-checkoff clauses, however, I
am compelled to find a violation. Respondent, because of
its view that it had no contract, admittedly did not comply
with those two provisions. Those unilateral changes clearly
violated Section 8(a)(5) and (1) of the Act. Pacific Grinding
Wheel Co., Inc., 220 NLRB 1389 (1975).
2. The posting of the demand for discharge letter
When the Union's letter demanding the discharge of
certain named employees was posted near the timeclock by
Store Manager Brannock, Respondent was taking the
position that it had no collective-bargaining agreement
with the Union. It was, nonetheless, appearing to comply
with many of the contract's terms, wages in particular.
Respondent's employees had ratified the contract, and
many of them no doubt believed it was in effect. There is
no evidence in the record that Respondent ever told its
employees it had no agreement, although it did make that
contention to the Union. Thus, the employees' state of
mind must have been that there was an agreement.
Certainly, the fact that an agreement has not been signed
does not mean the union-security clause is unenforceable.
See Pacific Iron and Metal Co., 175 NLRB 604 (1969).
Thus, the extant atmosphere was the same as that under
which employees bound by union-security clauses live
every day. Enforcement of such a clause in that circum-
stance is, of course, perfectly lawful. That the company
policy here was to deny to the Union the existence of the
contract does not change the atmosphere. Thus, posting the
notice could not have had a coercive effect. Moreover, it
appears to me that the store manager was simply following
established store procedure when he posted the notice next
to the timeclock, and his conduct, therefore, had neither
unlawful motive nor a reasonably foreseeable impact
restraining and coercing employees in the exercise of their
Section 7 rights. I am, therefore, compelled to reject the
General Counsel's contention that the posting of the notice
constituted a threat violative of Section 8(a)(X ).
e6 The bargaining unit in the contract tendered shall be modified to
reflect the change wrought by the Regional Director's decision clanfying the
unit in Cases 28-UC-68 through 79.
3. The surveillance
When Respondent on February 16 and thereafter began
requiring union agents to interview employees under the
watchful eyes of the store managers, it clearly was engaging
in surveillance of employees' union activities. Although it
may be true that Respondent had a legitimate interest in
preventing disruption of its operations, that interest does
not extend to placing the visiting union agent and the
employee under the close scrutiny of management. Such
conduct clearly violates Section 8(a)(l) in that it necessarily
has a tendency to inhibit the free exchange of information
between the employee and his statutory representative.
This no doubt had the effect of impeding the Union from
effective representation during the period of this dispute.
At all times Respondent conceded its obligation to meet
and deal with the Union on a contract. That obligation
extended to recognizing the Union's other representational
interests in wages, hours, and working conditions as well.
Respondent's surveillance clearly interfered with the em-
ployees' Section 7 rights in that regard. See Guyan Valley
Hospital, Inc., 198 NLRB 107, 112 (1972).
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(5) and
(1) of the Act, I shall recommend that it be required to
cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act. The
affirmative action recommended shall include an order
requiring Respondent immediately to sign the industry
collective-bargaining agreement negotiated on November
12,16 and to give it any retroactive effect required to make
whole, where necessary, employees for lost wages or fringe
benefit contributions. In addition, Respondent shall give
the contract retroactive effect for the purpose of collecting
dues under the dues-checkoff clause and accepting and
processing grievances pursuant to the grievance-arbitration
provisions of the agreement. Any loss of earnings under the
recommended Order shall be computed in accordance with
the Board's formula set forth in F. W. Woolworth Company,
90 NLRB 289 (1950), together with interest at 7 percent per
year pursuant to Florida Steel Corporation 231 NLRB 651
(1977).
Upon the foregoing findings of fact and upon the entire
record in this case, I make the following:
CONCLUSIONS OF LAW
1. Respondent, Winn-Dixie Texas, Inc., d/b/a Food-
way, is an employer engaged in commerce and in an
industry affecting commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. Retail Clerks International Association, Local 1564,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. The following employees of Respondent constitute
an appropriate unit for collective bargaining within the
meaning of Section 9(b) of the Act:
1488
FOODWAY
All employees at Respondent's retail stores in Bernalil-
lo County, New Mexico, excluding office and clerical
employees, meat department employees, guards, and
supervisory employees as defined by the Labor Man-
agement Relations Act.17
4. At all times material the Union has represented a
majority of the employees in the bargaining unit described
in paragraph 3 above and, by virtue of Section 9(a) of the
Act, has been, and is now, the exclusive representative of
all employees in said unit for the purpose of collective
bargaining.
5. On November 12, Respondent became bound to the
industry agreement as negotiated between the Union and
the multiemployer group consisting of Safeway Stores,
Inc.; Shop-Rite Foods, Inc., d/b/a Piggly-Wiggly; Furr's,
Inc.; Albertson's, Inc.; and Respondent.
6. By refusing to acknowledge and sign the collective-
bargaining agreement reached on November 12, Respon-
dent failed in its duty to bargain collectively within the
meaning of Section 8(d) and thereby violated Section
8(a)(5) and (1) of the Act.
7. By unilaterally, and without notice to the Union,
refusing to honor the dues-collection and grievance-arbi-
tration clauses in its 1976-79 collective-bargaining contract
with the Union, Respondent violated Section 8(aX5) and
(1) of the Act.
8. By engaging in surveillance of its employees while
they conferred with their union representatives from
February 16, 1977, and thereafter, Respondent interfered
with, restrained, and coerced employees in the exercise of
their Section 7 rights and thereby violated Section 8(a)(l)
of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this case, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER 18
The Respondent, Winn-Dixie Texas, Inc., d/b/a Food-
way, Albuquerque, New Mexico, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Retail Clerks
International Association, Local 1564, AFL-CIO, in the
following appropriate bargaining unit:
All employees at Respondent's retail stores in Bernalil-
lo County, New Mexico, excluding office and clerical
employees, meat department employees, guards, and
supervisory employees as defined by the Labor Man-
agement Relations Act.
(b) Refusing to acknowledge and sign the written
collective-bargaining contract which was reached on No-
vember 12.
(c) Unilaterally, and without notice to the Union,
refusing to honor the dues-collection and grievance-arbi-
tration clauses in its 1976-79 collective-bargaining contract
with the Union.
(d) Engaging in surveillance of employees' union activi-
ties.
(e) In any other manner threatening, restraining, or
coercing employees in the exercise of their rights guaran-
teed them under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Immediately sign the collective-bargaining agreement
which was reached on November 12, and give it retroactive
effect to its effective date, November 14.
(b) Make whole employees for lost earnings, if any, in the
manner set forth in that portion of this Decision entitled
"The Remedy" and make such fringe benefit contributions
for the employees in the appropriate unit as required by the
collective-bargaining agreement found to be in effect
herein.
(c) Make whole, under the terms of the contract, the
Union for any lost dues (including interest) Respondent
should have collected on behalf of its employees and
accept and honor all grievances pursuant to the grievance-
arbitration provisions of the contract which may have
arisen during the period that Respondent refused to
acknowledge the agreement.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay and,'or
pension contributions due under the terms of this Order.
(e) Post at its Albuquerque, New Mexico, facilities copies
of the attached notice marked "Appendix." t9 Copies of the
notice, on forms provided by the Regional Director for
Region 28, after being duly signed by an authorized
representative of Respondent, shall be posted by Respon-
dent immediately upon receipt thereof, and be maintained
by it for a period of 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that the notices are not
altered, defaced or covered by any other material.
(f) Notify the Regional Director for Region 28, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the remainder of the
complaint be, and hereby is, dismissed.
17 The unit description is taken from the Regional Director's decision
clarifying the unit in Cases 28-UC-68 through 79.
is 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.
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.
19 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."
1489
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had the opportunity to
present evidence, the National Labor Relations Board has
found that we violated the National Labor Relations Act,
as amended, and we have been ordered to post this notice
to our employees.
The National Labor Relations Act, as amended, gives
all employees the following rights:
To organize themselves
To form, join, or support unions
To bargain as a group through a representative
they choose
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all such activity except
to the extent that the employees' bargaining
representative and employer have a collective-
bargaining agreement which imposes a lawful
requirement that employees become union mem-
bers.
AFL-CIO, by refusing to sign an agreed-upon collec-
tive-bargaining contract covering employees in the
following appropriate unit:
All employees employed at our retail stores in
Bernalillo County, New Mexico, excluding office
and clerical employees, meat department employ-
ees, guards, and supervisory employees as defined
by the Labor Management Relations Act.
WE WILL NOT engage in surveillance of our employ-
ees' union activities.
WE WILL NOT in any other manner interfere with any
of your rights set forth above which are guaranteed by
the National Labor Relations Act.
WE WILL sign the 1976-79 collective-bargaining
agreement reached on November 12, and give it
retroactive effect.
WE WILL make whole employees for lost earnings, if
any, including interest thereon, and we will make fringe
benefit payments as required by the agreement, both of
which have resulted from our failure to sign the 1976-
79 agreement.
WE WILL honor the dues-checkoff and grievance-
arbitration clauses of the 1976-79 agreement and give
them retroactive effect.
WE WILL NOT refuse to bargain collectively with
Retail Clerks International Association, Local 1564,
WINN-DIXIE TEXAS, INC.,
D/B/A FOODWAY
1490