Hamady Bros. Food Markets, Inc.

National Labor Relations Board - Board Decisions

Jul 31, 1985

275 N.L.R.B. 1335 (N.L.R.B. 1985)

'HAMADY BROS FOOD MARKETS 1335
Hamady Bros. Food Markets, Inc. and General
Drivers & Helpers Local Union No. 332, Inter-
national Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America. Case
7-CA-23212
31 July 1985
DECISION AND ORDER'
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 28' September 1984 Administrative Law
Judge Karl H. Buschmann issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief and the Charging Party filed an
answer to the Respondent's exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to, a' three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order.
The judge found that the Respondent violated
Section 8(a)(5) and (1) by not restoring to the em-
ployees the benefits agreed upon in a letter of un-
derstanding, and by unilaterally implementing the
terms of its final proposal without reaching a
lawful impasse: The Respondent excepts to these
findings. We find merit in the Respondent's excep-
tions.
The Respondent is a supermarket chain engaged
in the retail sale and distribution of grocery and
household products. The Respondent's office em-
ployees have been represented by the Union since
1967. The most recent collective-bargaining agree-
ment covering these employees was in effect from
20 February 1983 to 18 February 1984.1 Appended
to and made part of the agreement was a letter of
understanding signed 1 July 1983 which provided
for the restoration on 19 February 19842 of certain
benefits that had been conceded by the Union for
the term of the 1983-1984 contract.3
The unit of employees represented by the Union consists of
All office and clerical employees employed by the Respondent at
its facility located at 3301 S Dort Highway, Flint, Michigan, but ex-
cluding usual confidential secretaries, supervisors, working supervi-
sors, security police, ,janitors, maintenance, casual and temporary em-
ployees such as "Kelly Girls "
2 Unless otherwise stated herein all dates are 1984
s This letter of understanding provided in pertinent part that the em-
ployees shall have certain benefits restored to their contract on 19 Febru-
ary 1984 unless otherwise negotiated and agreed between the parties
prior to that date The benefits are as follows •
4 hour holiday for Christmas Eve
4 hour holiday for New Year's Eve
I 1/2•personal holidays
3 paid sick days
In December 1983, the Respondent notified the
Union of its intention of terminating the existing
contract, and requested from the Union an early re-
opening of contract negotiations. On 30 December
1983, in the first of a series of five meetings be-
tween' the parties; the Respondent presented the
Union with, a detailed explanation of its critical fi-
nancial situation, stating that in order to avoid in-
curring further.' losses it was obliged to request
from all the unions that represented, its employees4
a 15-percent reduction in wages'and` benefits. The
Union responded by stating' that it was expecting
increases. The Respondent also presented a• new
pension plan,, assuring the Union that the benefits
of the new plan would equal or improve those of
the existing plan. The Union expressed its' tentative
approval of the pension plan.
'At the next meeting, held on 25 January, the Re-
spondent presented the Union a three-part proposal
consisting of changes in the employees' job classifi-
cations, a new, pension plan, and a list of conces-
sions in wages and benefits, including the Respond-
ent's estimate on•the cost'savings these concessions
would provide. The concessions requested in this
proposal consisted of. an hourly wage reduction of
$1; elimination of the personal holiday; replacement
of 3 sick "days with 2 annual leave days which
could be used as sick or personal; elimination of 1-
week vacation for those employees having accumu-
lated more than 1 week; and discontinuance of the
optical insurance program. The Union found these
concessions to be unacceptable. However, the
Union gave its tentative approval to the modifica-
tions in the employees' job descriptions and to the
new pension plan, indicating these changes would
need to be submitted for employee ratification.
Shortly after this meeting, the Union advised the
Respondent that the membership had rejected the
proposed concessions.
Al the third meeting, held 10 February; the
Union officially rejected the proposed concessions
presented by the Respondent at the 'preceding
meeting. The Union insisted that, before it would
consider any concessions, the benefits conceded in
the 1983 letter of understanding had to be restored
to the 1984 contract.5 The Respondent again stated
its need for the requested concessions, citing its
precarious financial situation. '
4 In addition to the office and clerical employees, the Union also repre-
sents and has separate contracts covering computer operator's , mainte-
nance department employees, grocery warehouse employees, and
produce employees The Respondent's other employees are represented
by the United Food and Commercial Workers Local. 876 and the Amal-
gamated Meatcutters, Local 539
5 At this meeting the parties also discussed the issues of flextime, the
possibility of allowing the employees to drink coffee at their desks; and
health coverage for returning laid-off employees
275 NLRB No. 183
1336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On 20 February the parties met for, the fourth
time. On this occasion a Federal mediator was
present. Although the Union initially. requested a
65-cent increase, after meeting separately with the
mediator it withdrew that request and, proposed- a
1-year wage freeze instead. The. Respondent, in
turn, submitted its final proposal, which sought the
following, concessions: continued suspension of the
benefits conceded in 1983; a,dollar per hour wage
reduction; suspension of 1 additional personal holi-
day; suspension of 3 sick days; suspension of the
optical insurance program; and continuing the
office employees in the. same pension plan as the
management employees. The Union agreed, to dis-
cuss this proposal with. the Union's membership.
On 27- February the union membership voted to
reject the proposed concessions.
At the final. meeting on 28 February, the .Union
informed the Respondent thai.,the membership had
specifically rejected the $1 wage reduction-and the
suspension of the personal holiday, and had insisted
on the restoration of the benefits conceded in 1983.
The Union staffed, . however, that it would agree to
a wage freeze, to the new pension plan, to .the sus-
pension of the 3 sick days, and to the discontinu-
ance_of the optical insurance program. The Union
proposed a 2-month extension to the contracts with
the proviso that: it would not honor the picket lines
of other unions during that time. The Respondent
rejected that proposal, stating that the contract had
already been extended for 2 weeks and that a- fur-
ther extension would result in unaffordable losses.
Although the mediator then met individually with
the parties in a final attempt to reach an agreement,
both parties remained firm in their respective posi-
tions. The Respondent then stated that it -was
forced to implement the reductions and the meet-
ing ended with the understanding that any further
meetings would be arranged through the Federal
mediator; On 1. March the Respondent gave the
Union written confirmation of its intention, to im-
plement the provisions of its final proposal. On 5
March the Respondent unilaterally implemented
the terms of its final proposal.
The judge found- that the Respondent violated
Section 8(a)(5) and (1) by -not restoring to the em-
ployees on 19 February the benefits agreed to in
the 1983 letter of understanding. The Respondent
excepted contending that the benefits were auto-
matically restored and in effect as of 19 February
1984. We find merit in the Respondent's excep-
tions.. . . " -
6 This proposal would have enabled the Union to 'consider the re-
sponse.of the Retail Clerks and the Meatcutters to the Respondent's cost-
cutting proposal, since their contracts would have'expired by that time
There is insufficient evidence to determine that
the Respondent, in fact failed to restore the benefits
on 19 February. The -letter of understanding ex-
pressly provided that absent an agreement or nego-
tiation to the contrary the benefits would automati-
cally be restored to the employees on 19 February
unless otherwise negotiated by the parties. In light
of this express provision the burden is on the Gen-
eral Counsel to prove that the Respondent did not
in fact restore the benefits. Because of the nature of
the benefits there is no way to accurately test
whether, the Respondent failed to restore them
during the period between- 19 February-the date
the benefits were restored-and 28 February-the
date. the bargaining broke down. There is no evi-
dence that employees were denied any of these
benefits. Likewise there is no evidence that griev-
ances were-filed against the Respondent for not re-
storing these benefits. There is no other basis for
finding the benefits were not restored.7 Therefore,
we find that the General Counsel has not estab-
lished that the benefits set forth in the letter of un-
derstanding were not restored to the employees on
19 February. Accordingly, we shall dismiss the al-
legation of the complaint based on this alleged con-
duct. - '
- The judge found that the- Respondent violated
Section 8(a)(5) and (1) by unilaterally implementing
its final proposal on 5 March without the parties
having reached a lawful impasse. In doing so, he
concluded that the Respondent did not bargain in
good faith. We disagree.
The judge acknowledged the Respondent's criti-
cal financial situation, the long-term bargaining re-
lationship existing between the parties, and that the
Board has found impasse even where the parties
engage in'few bargaining sessions. The judge found
that the Respondent had been willing to meet with
the Union at reasonable times and was represented
by experienced negotiators. Nonetheless, the judge
found that the Respondent's bad faith was demon-
strated by its refusal to accede to the Union's re-
quests 'that the provisions of the letter of under-
standing be restored in the 1984-1985 contract, its
' The judge concluded that the Respondent effectively admitted that
the benefits had not been restored relying on the fact that the Respondent
in its 20 February proposal and in its I March letter to the Union called
for the "continued suspension" of the benefits of the letter of understand-
ing We find the use of these phrases insufficient to constitute an admis-
sion Rather, their use seems to be explained by the fact that during the
negotiations the discussion centered around the next collective-bargaining
agreement and whether the benefits suspended during the ,term of the
1983 contract would continue to be suspended in the next collective-bar-
gaining agreement Thus, the use of the phrase "continued to be suspend-
ed" appears to be directed at whether or not the benefits would be re-
stored in the next collective-bargaining agreement and does not by itself
establish any refusal by the Respondent to honor its commitments in the
letter of understanding
HAMADY BROS FOOD MARKETS 1337
rejection of the Union 's wage feeze and contract
extension proposals , and its submission of a final
proposal to the Union which , in essence , reiterated
the provisions of its initial proposal presented to
the Union on 25 January . Furthermore , the judge
concluded that the Respondent did not modify its
proposals , while the Union agreed to the Respond-
ent's requests concerning the pension plan, the op -
tical insurance , and the suspension of the 3 days of-
sick leave. -
Unlike the judge, we find that the Respondent
did not engage in bad -faith bargaining but rather
undertook hard bargaining . Since the inception of
the negotiations , the Respondent advised the Union
of its perilous financial situation and stated that in
order to avoid further losses it needed to reduce its
costs. The Respondent explained to the Union that
as a result of the financial crisis it was obliged to
insist on further reductions than those which had
already been conceded in the 1983 -1984 contract.
Although the Union never questioned or disputed
the Respondent 's financial situation it refused to
recognize the Respondent 's need for further reduc-
tions. The Union , on the other hand , maintained its
position that , before it would grant ' the Respondent
any concessions, it required that the benefits con-
ceded in 1983 be restored to the 1984 contract. The
Union 's position was unacceptable to the Respond-
ent since in fact it would have resulted in an in-
crease rather than a decrease in costs. Although as
the judge notes the Union agreed to some of the
Respondent 's proposals , the Union at all times in-
sisted on the restoration of the conceded benefits to
the 1984 contract. The practical effect of agreeing
to such a proposal would have been that the reduc-
tions in cost resulting from the Union's acquies-
cence to some concessions would have been offset
by the increased costs resulting from the restora-
tion of the benefits conceded in 1983.
The judge in his decision suggests that the Re-
spondent 's final proposal entailed further conces-
sions from those initially submitted to the Union on
25 January by specifically providing for the contin-
ued suspension of the benefits of the letter of un-
derstanding. This interpretation obviates the reali-
ties of the negotiations in the present case. The Re-
spondent at all times clearly manifested that it was
seeking from the Union further reductions from
those already conceded by the Union in 1983. The,
Respondent 's initial proposal implicitly adopted this
position by requesting only those concessions
which in the Respondent 's view would result in re-
ductions from its current costs . In its final proposal
the Respondent specifically responded to the
Union 's insistence on the restoration of the conced-'
ed benefits by reiterating its position that these
must "continue to be suspended " in the, 1984 con-
tract and actually modified its position by with-
drawing its proviso regarding the employees' vaca-
tion leave time . Thus, the Respondent in its final
proposal did not increase its demands on the Union
but only requested those concessions which in its
view would be responsive to its financial situation
by reducing present costs. . ,
We recognize that the Respondent's position at
all times entailed a reduction in. the benefits of the
employees as established in the 1983- 1984 contract.
However, the Respondent 's firmness in insisting on
a position which if accepted would have reduced
the employees ' existing benefits cannot of itself be
evidence of bad faith .8 Atlanta Hilton & Tower, 271
NLRB 1600 ( 1984). Based on the foregoing we
conclude that the Respondent bargained in good
faith with the Union.
In order to resolve whether the Respondent vio-
lated the Act by unilaterally implementing its pro-
posals on 5 March ; we must decide whether the
parties bargained to an impasse : The judge did not
address specifically the issue of whether an impasse
had been reached before the Respondent imple-
mented its final offer.
The Board has held that:
Whether a bargaining impasse exists is a
matter of judgment . The bargaining history,
the good faith of the parties in negotiations,
the length of the . negotiations , the importance
of the issue or issues as to which there is dis-
agreement, the contemporaneous understand-
ing of the parties-as to the state of the negotia-
tions are all relevant factors to be considered
in deciding whether an impasse in bargaining
existed.
Taft Broadcasting Co., 163 NLRB 475, 478 ( 1967),
petition for review denied 395 F.2d 622 (D.C. Cir.
1968). We find that these factors when applied to
the circumstances in this case support a finding that
the parties were at impasse . Although the parties
met only five times, the number of bargaining ses-
sions has not precluded a finding of impasse where,
as here , the parties engaged in good -faith bargain-
ing. Bell Transit Co., 271 NLRB 1272 (1984). Fur-
ther , the Respondent 's repeated requests for cost
reductions and the Union 's insistence on the resto-
ration of the benefits were issues - of central impor-
tance to both parties. After both parties reasserted
8 The Union alleged that the Respondent 's bad faith was demonstrated
by the Respondent 's failure to implement on 19 February the terms of the
1983 letter of understanding In light of our dismissal of the allegations
with respect to the alleged failure to restore the benefits set forth in the
letter of understanding , we find the Union 's argument to be without
merit
1338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their respective positions, the Respondent an-
nounced it would implement its final proposal and
received no response from the Union. Thus, at the
parties' last meeting on 28 February it was clear
that an impasse had been reached.
Accordingly, we find that the Respondent did
not violate Section 8(a)(5) and (1) by unilaterally
implementing its proposals because the Respondent
had bargained in good faith to an impasse.9 There-
fore, we shall dismiss this. allegation of the. com-
plaint. -
- ORDER
The complaint is. dismissed.
MEMBER DENNIS, dissenting.
Contrary to my colleagues, I would find that the
Respondent violated Section 8(a)(5) and (1) of the
Act by failing to restore the benefits agreed to in
the 1 July 1983 letter of understanding. Although
the majority finds .insufficient evidence to establish
that the Respondent failed to restore the benefits,
as agreed, the Respondent's 1 March 1984 letter to
the Union states, "The benefits conceded in 1983,
which were to be reinstated as :of February ' 19,
1984, are to continue to be suspended." The plain
meaning of this statement is that the benefits had
not, in fact, been restored- on 19 February' 1984. I
find that such refusal to restore the benefits violat-
ed Section 8(a)(5) of the Act. Accordingly, I
would- also find that the subsequent bargaining' was
tainted by the Respondent's unfair labor practice
and that the Respondent did not bargain to impasse
in good faith. Thus, 'I agree with -the judge that the
Respondent further violated Section 8(a)(5) and (1)
by its unilateral implementation of its proposed
concessions.
9 It is well settled that after bargaining to a lawful impasse the employ-
er does not 'violate Sec 8(a)(5) by making unilateral changes NLRB v
Katz , 369 U S 736, 745 (1962)
DECISION
KARL H. - BUSCHMANN, Administrative Law Judge.
This case was tried in Burton, Michigan, on July-:18,
1984. The charges were filed'on March. 12, 1984;,by the
Union and a. complaint issued on April 17, 1984; :alleging
in substance that the Respondent .(I) refused to restore
the employees' holidays and sick-leave benefits as agreed
to in a letter of understanding, and' (2), unilaterally and,
without • reaching an impasse, 'changed - the employees'
working conditions, including a reduction in'-wages; -in
violation of Section 8(a)(5) and (1) -of the- Act., : • ' '
On the entire record, including my observation of the
demeanor of the witnesses and after consideraton of the
briefs filed by the parties' I make the following
FINDINGS OF FACT
The Respondent, Hamady Bros. Food Markets, Inc., is
a Michigan corporation located at 3301 South Dort
Highway, Flint, Michigan, where it directs the operation
of several'retail stores engaged in the retail sale and-dis-
tribution of foods and related products. It is admittedly
an employer engaged in.commerce within the meaning
of Section 2(2), (6), and (7) of the Act. The Respondent
which, employs approximately 900 employees. in its 24
stores has had a bargaining relationship with several
unions, including the United Food and, Commercial
Workers, Local 876 and the, Amalgamated Meatcutters
Local 539 and the Charging Party.
The Charging Party (Union), General Drivers and
Helpers Local Union No. 332, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, is admittedly a labor organization within the
meaning of-Section 2(5) of the Act. Its bargaining rela-
tionship with the' Respondent covered separate contracts
with five groups of employees, the computer operators,
the maintenance department employees, the grocery
warehouse employees, the produce employees, and the
office and clerical employees involved in this proceed-
ing. Since about 1967 the Union has represented Re-
spondent's clerical employees (approximately 18) in the
following unit appropriate for collective bargaining:
All office and clerical employees employed by Re-
spondent at its facility located at ' 3301 S. Dort
Highway, Flint, Michigan, but excluding usual con-
fidential secretaries, supervisors, working supervi-
sors, security, police, janitors, maintenance, casual
and temporary employees-such`as "Kelly girls."
The most . recent bargaining agreement between
Hamady Bros. and the Union concerning this unit of em-
ployees expired on February 18, 1984 (G.C. Exh 3). Ap-
-pended and made a part of the agreement was a "Letter
of Understanding" signed by representatives of the
Union and the Respondent on July 1, 1983, which pro-
vides as follows'
It is agreed between' Hamady Bros. Food Mar-
kets,, Inc., and. General Drivers Local 332, that
office employees shall have certain, benefits restored
to their contract on February 19, 1984, unless other-
wise negotiated and agreed between the parties
prior to that date
These benefits are as, follows: 4-hour holiday for
Christmas Eve;.4-hour holiday; for New Year's Eve; ,1-
1/2 personal holidays, 3 paid sick-days.
By separate letters dated December 16, 1983, Hamady
Bros. notified the -Union in pertinent part as follows:
The General Counsel did riot file a brief although requested to do so
HAMADY BROS FOOD MARKETS 1339
In accordance with Article XXIV -of. our current
bargaining unit agreement , which exp ires February
19, 1984, we are hereby serving notice on you that
we wish to terminate the Agreement [G.C. Exh. 4].
Hamady Bros . . : is in a critical emergency situa-
tion . We request a meeting , as soon as possible, to
discuss the early reopening of all of our, contracts
with Local 332 [G.C. Exh. 5].
The parties held five meetings at Respondent's offices,
beginning with its first meeting on December 30, 1983.
Representing the Union were Ronald Rouseau, the
Union's business agent, and Connie Robinson, the
Union's steward. The . Company was represented by
Norman Griffin, vice president and secretary of Hamady
Bros. In the first meeting, Griffin informed ,the Union
that the Company was experiencing financial difficulties
and would be requesting all unions to agree to a 15-per-
cent wage and benefit reduction, because of its severe fi-
nancial situation . The union representatives responded
that , they did not expect reductions in benefits but in-
creases in benefits and wages. Griffin also discussed a
new pension plan for the employees . He assured the
Union that a new pension , plan would be at least equal in
benefits to those of the old plan. The Union did not
oppose the proposed pension plan, and expressed its ten-
tative approval. The meeting lasted about an hour.
At the next meeting between the respective representa-
tives on January 25, 1984, which lasted about 2 hours,
the Company presented the Union with a document
which itemized the concessions expected by the • Re-
spondent and which in substance amounted to "a dollar
per hour reduction to eliminate one personal holiday, to
eliminate three sick days and to eliminate one week of
vacation, to discontinue the optical insurance." The doc-
ument also explained _the details of the new pension plan
and a 'description of new job classifications affecting ,the
employees (G.C. Exh. 7). The Union gave its tentative
approval to the proposed pension plan and the new em-
ployee classification schedule but indicated that these
changes would have to be submitted to the membership..
With respect to the cut in wages and benefits, the Union
first demanded that the Company restore those benefits
contained in the Letter.of Understanding. dated July 1,
1983, and then expressed its opposition to the wage re-
duction but 'promised to submit the matter to the Union's;
membership. Within a day or two the Union's member-
ship considered and rejected the proposed concessions,
and the Company was advised accordingly.
During the next meeting on February 10, 1984, which
lasted longer than 2 hours, the Union first informed the
Company that the_ membership ' had turned down the
concessions. The Union then demanded that- the agree-
ment contained in the letter of understanding of July 1,
1983, be put into effect which, in substance, would have,
restored the benefits lost iii the prior contract. Respond
ent's representatives Griffin and Don Bailey, director of
finance and administration ,, reiterated their request for,
the concessions because of the Company's precarious fi-
nancial position. In response to the Union's additional re-
quests, the parties discussed the "possibility of, flextime for
the employees, and the possibility of allowing-employees
to drink coffee at their desk, as well as questions about
the effective dates for health insurance benefits of a laid-
off employee. The. meeting ended without reaching an
agreement on any. of the issues discussed and a request
by the Union for the future participation of a Federal
mediator. _ , .
The fourth meeting between the Union and the Com-
pany on February 20, 1984, included a Federal mediator,
Don Powers. Powers initially met separately with the
company representatives, Griffin • and Bailey, who
"brought him up to date on what had- transpired in nego-
tiations so-far " The mediator then met with Union Rep-
resentatives Rouseau, Robinson, and Katherine Gonyer,
an alternate steward Powers then met with' both parties.
The-Union proposed an hourly wage increase of 65 cents
for the next 3 years and again demanded the restoration
of the concessions specified in the .July 1, 1983 agree-
ment. Rouseau stated that he based his request for the
65-cent increase upon a Washington Post report that the
Company's chief executive, Alex Dandy, had donated
$25,000 to a Lebanese charity and explained how he had
divided that amount by total working,hours of approxi-
mately 18 employees. Griffin handed the Union its final
offer which, with minor exceptions, was identical to its
original request for a 15-percent cutback, and which pro-
vided for continued refusal to restore the benefits speci-
fied in the July 1, 1983 Letter of Understanding (G.C.
Exhs. 7 and' 8) After the parties had met again individ-
ually with the Federal mediator, the Union withdrew its
request for a wage increase and proposed to the Compa-
ny a wage freeze' foi• 1 year. However, the Company's
representatives insisted on their final offer. The Union
agreed to discuss the Company's final offer with its
membership
On February 27, the union membership voted to reject
the' concessions. And on February 28, 1984, the parties
held their 'fifth and final meeting which lasted for about
3 hours. The Union was represented by Ronald Rouseau,
Connie Robinson, and Katherine Gonyer and present for
the Company, were Norman Griffin,and Don Bailey.
Don Powers again attempted to bring the parties togeth-
er Rouseau informed the, company representatives that
the Union had rejected the concessions proposed by
them on February 20, 1984 This was followed by a de-
tailed discussion of the six concessions sought by the
Company. The first' concession, namely, a refusal to re-
store the benefits contained in the July 1, 1983 agree-
ment, was not :accepted by the Union. Similarly the
second -proposed concession, the 15-percent wage reduc-
tion , was not.acceptable to the Union. The Union offered
instead.a wage freeze. The- Union also refused the third
proposal which was.to- suspend one additional holiday.
The fourth'proposed concession, i.e., the suspension of 3
sick days, was agreeable to. the, Union, as were the sus-
pension of the optical insurance program, as well as the
last proposal relating to the employees' pension plan.
Following separate meetings by both parties, the Union
finally proposed that the Company at least agree to con-
tinue the contract to April 20, 1984, which would have
enabled the Union to consider the responses.of the other
unions, the Retail Clerks and the - Meatcutters, whose
1340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contracts would have expired by that time . However,
Griffin, upon consultation with Respondent's chief exec-
utive Dandy, rejected that proposal and informed the
Union that it would have to impose the concessions.
Powers made a final attempt at modifying the Compa-
ny's position and requested it to lessen its demand. But
the Company responded that it could not. The meeting
ended with the Company's explanation to the Union that
the new rates would have to be imposed because of the
Company's poor financial position. The parties left the
meeting with the understanding that any further meeting
would be arranged through the Federal mediator Powers
and that the concessions would be implemented effective
March 5, 1984.
While the record is clear that the Company's proposed
wage concessions were in fact implemented , it is unclear
whether the Letter of Understanding of July 1, 1983,
was effectuated by the Company.*
Analysis
The severe financial position of Hamady Bros. was not
disputed and the impetus for Respondent's • efforts to
reduce its expenses by seeking concessions from the
Charging Party and,the other unions was not questioned,
but Respondent's conduct in unilaterally effectuating the
15-percent concessions for its clerical employees and the
failure to restore certain holiday and sick days in accord-
ance with the Memorandum of Understanding are at
issue.
The record is not entirely clear whether Respondent
had in fact restored the benefits which were the subject
of the Letter of Understanding -of July 1, 1983 The par-
ties are in apparent agreement that the practical effects
of a failure to restore those benefits could not be ade-
quately tested in the short time interval- between Febru-
ary 19, the date on which the benefits would be restored
"unless otherwise negotiated," and February 28, the date
on which bargaining broke down. Respondent argues
that in the absence of any evidence showing the"_ Re-
spondent's refusal to grant those benefits to an employee,
the clear language of the Letter of Understanding con-
trols to the effect that the benefits were automatically re-
stored The Union, on the other hand, relies on the Re-
spondent's conduct throughout the five bargaining ses-
sions during'which the Company failed to respond to the
Union's specific request to restore the benefits and upon
the Company's final proposal which , inter alia, 'states:
"Benefits conceded in 1983, to' continue to be suspend-
ed." Since' there is no evidence that the benefits were re-
stored, and since Respondent proposed on February 20
and thereafter a continuation of the suspension of the
benefits; it is the Union's position that the Company in
effect admitted that the benefits had not been restored.
Moreover, Respondent's letter of March 1, 1984, to the
Union informing it of the Company's implementation of
the concession states in relevant part: "The benefits con-
ceded in 1983, which were to be reinstated as of Febru-
ary 19, 1984, are to continue to be suspended." This was
a plain indication of Respondent' s state of mind at that
time that the benefits had not been restored on February
19, 1984, or thereafter. I accordingly find that Respond-
ent, without affording the Union the opportunity to bar-
gain ; failed to abide by the terms of the agreement
(Letter of Understanding) of July 1, 1983.
The next issue, whether the Respondent first bargained
in good faith over the reduction in pay and then unlaw-
fully implemented its proposal, must be determined by an
analysis of Respondent's total conduct during the negoti-
ations. The record shows in substance that the parties
met at reasonable times and at reasonable intervals with
experienced representatives. Yet, with-the 'exception "of
minor issues , the parties failed to reach an agreement
after five bargaining sessions . The most recent precedent
in this area is the Board's decision' in Bell Transit Co.,
27.1 NLRB 1272 '(1984). Relying on Taft Broadcasting
Co., 163 NLRB 475 (1967), petition for review denied
395 F.2d 622 '(D.C. Cir. ` 1968), the Board quoted 'the fol-
lowing test as to whether the parties had reached an im-
passe:
Whether 'a bargaining impasse exists is a matter of
judgment. The bargaining history, the good faith of
the parties in negotiations , the length of the negotia-
tions; the importance 'of the issue or issues as to
which there is disagreement , the contemporaneous
understanding of the parties as to the state of nego-
tiations are`'all relevant factors to be considered in
deciding whether an impasse in bargaining existed.
In Bell Transit, the Board (with Member Zimmerman
dissenting) found that the parties had reached an impasse
after only three meetings and that the respondent was
entitled to effectuate its proposal calling for wage reduc-
tions. There, as here, the respondent faced compelling fi-
nancial ' pressure to request pay concessions from the
union ,-and there, as here, the parties had enjoyed a bar-
gaining relationship for many years. However, of signifi-
cant and, in my opinion, of deciding difference was the
company's bargaining conduct. In Bell Transit, the Board
in finding a lawful impasse relied heavily upon the undis-
piited evidence "that the parties' instant, negotiations
were conducted in good faith " The same cannot be said
in the instant case The Respondent 's initial proposal
called for'a 15-percent concession 'or a $1 hourly pay cut
and Respondent imposed this proposal without modifica-
tion In addition, the Company demanded from the
Union other concessions. The Union agreed to half of
these concessions. For example, the Union agreed to
forgo optical insurance, to accept a new pension plan,
and to a suspension of sick leave: Indeed, in the opinion
of the Union, it "ended up with a worse package of con-
cessions when the Company unilaterally implemented its
proposals than it would have if Local 332 had accepted
the Company's' first offer." (C.P. Br. p. 12.) The' Re-
spondent effectuated after five negotiation sessions not
only the same wage cuts originally proposed but also re-
fused to 'respond to the Union's repeated request to re-
store those benefits already agreed to on July 1 , 1983, in
the Letter of Understanding While the Union had
agreed to several concessions, and given its assurance
"that it will not honor the picket lines of other unions,"
the Company refused to . make any concesssions to the
Union. When' the Union proposed a wage freeze, the
Company rejected it. And when the Union finally pro-
HAMADY BROS. FOOD MARKETS
posed a mere extension of the existing contract for only
2 months, the Company also rejected that The Respond-
ent clearly demonstrated an unusual degree of intransi-
gence which was decisively not conducive to reaching
an agreement. Even the Federal mediator's final appeal,
"if there- was any' way the Company could lessen [its]
demand," was rejected by Griffin and failed to moderate
Respondent's uncompromising position. To permit the
Respondent to implement its initial, proposal unchanged
after five bargaining sessions, iii the face of substantial
concessions already accepted, by the Union and without
any evidence of a compromising attitude by the' Re-
spondent-would make a mockery of the duty to bargain
in good faith. NLRB v. Reed & Prince Mfg. Co., 96
NLRB 850 (1951), `enfd. 205 F.2d 131 (1st Cir 1953),
cert denied 346 U S. 887 (1953) 1 have therefore no dif-
ficulty in finding that the Respondent violated Section
8(a)(5) and (1) of the Act when it unilaterally implement-
ed its proposed concessions under these circumstances.
CONCLUSIONS OF LAW
1. The Respondent, Hamady Bros. Food Markets, Inc.,
is an employer engaged. in commerce within the meaning
of Section 2(2), (6), and- (7) of the Act.
2. The -Charging Party, General Drivers & Helpers
Local Union No. 332, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, is-a labor organization within the meaning of
Section 2(5) of the Act
3. The' Union has been the exclusive bargaining repre-
sentative of the employees in the following unit appro-
priate for collective bargaining:
All office and clerical employees employed by Re-
spondent at its facility located at 3301 S 'Dort High-
1341
way, Flint, Michigan, but excluding usual confiden-
tial secretaries, supervisors, working supervisors, 'se-
curity police, janitors, maintenance, casual and tem-
porary employees such as "Kelly girls "
4. By refusing -to restore the benefits agreed to in the
Letter of Understanding on July 1, 1984, Respondent
violated Section 8(a)(5) and (1) of the Act'
5. By unilaterally implementing the proposed conces-
sions, including hourly wage cuts, for its employees in
the unit, described above, without bargaining in good
faith, Respondent violated Section 8(a)(5) and (1) of the
Act. '
THE.REMEDY-
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I find it necessary to order it
to cease and desist and 'to take certain affirmative action
designed to effectuate the policies of the Act.
Having further found that the Respondent failed to re-
store the benefits agreed to in the Letter of Understand-
ing on July 1, 1983, and.that the Respondent, unilaterally
implemented the proposed- concessions, including hourly
wage cuts for its unit employees, without bargaining in
good faith, Respondent will be ordered to bargain in
good faith and, if an agreement is reached, embody the
agreement in a signed document and, in the meantime,
make the affected, employees whole by restoring all the
benefits and by paying them the difference between the
amounts which the employees earned at the reduced
rates and the amounts' which .they would -have earned
but for Respondent's violation of the Act. Respondent
will also -be ordered to pay interest on such amounts as
computed in-Florida Steel Corp., 231 NLRB 651 (1977)
[Recommended Order omitted from publication.]