Sel-Low Discount

National Labor Relations Board - Board Decisions

Aug 10, 1973

205 N.L.R.B. 449 (N.L.R.B. 1973)

SEL-LOW DISCOUNT
Yellow Front Stores d/b/a Sel-Low Discount and Re-
tail Clerks International Association , Local No. 102,
AFL-CIO. Cases 27-CA-3510 and 27-CA-3719
August 10, 1973
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
Upon a charge duly filed in Case 27-CA-3510' by
Retail Clerks International Association, Local No.
102, AFL-CIO, herein called the Union, against Yel-
low Front Stores d/b/a Sel-Low Discount, herein
called Respondent; and upon a charge filed in Case
27-CA-3719 2 by the Union against the Respondent,
the General Counsel of the National Labor Relations
Board, by its Regional Director for Region 27, issued
and duly served on the parties an Order consolidating
cases, complaint and notice of hearing dated Decem-
ber 15, 1972.
The complaint alleges in substance that Respon-
dent violated Section 8(a)(1) and (5) of the Act by a
unilateral grant of benefits on January 3, 1972; by a
refusal to sign a collective-bargaining agreement upon
which the parties reached full and final accord on
October 13, 1972; by dilatory bargaining tactics un-
dertaken since January 1, 1972; and by a general en-
gagement in surface bargaining since January 1, 1972.
The Respondent's answer admits certain factual alle-
gations of the complaint but denies the commission of
any unfair labor practices.
On May 9, 1973, all parties to this proceeding en-
tered into a stipulation of facts and of the record. The
parties agreed that the stipulation of facts and of the
record constitutes the entire record and that no oral
testimony is necessary or desired by any of the parties.
They waived a hearing before an Administrative Law
Judge, the making of findings of facts and conclusions
of law by an Administrative Law Judge, and the is-
suance of an Administrative Law Judge's Decision,
and submitted the proceeding for findings of fact and
conclusions of law and an order directly to the Board.
On May 17, 1973, the Board approved the stipulation
and ordered the proceedings transferred to the Board.
Thereafter, the General Counsel and Respondent
filed briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the entire record herein
' This charge was filed on March 27, 1972, and amended on April 17, 1972
2 This charge was filed on December I, 1972
and the briefs and makes the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
449
In the course of its business operations within the
State of Wyoming , Respondent annually has a gross
volume of business in excess of $500 ,000 and purchas-
es and receives goods and materials valued in excess
of $50 ,000 directly from sources located outside the
State of Wyoming. The complaint alleges,
Respondent 's answer admits, and we find that Re-
spondent is, and at all times material has been, an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
The complaint alleges, Respondent's answer ad-
mits, and we find that the Union is, and at all times
material has been, a labor organization within the
meaning of Section 2(5) fo the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. The Stipulated Facts
On January 1, 1972,3 Respondent purchased a
small chain of five retail "discount" stores located in
Colorado and Wyoming. The store which is the sub-
ject of the instant proceeding is one of those five
stores and is located in Rock Springs, Wyoming. The
seller and prior owner of these discount stores was
Star Sales Company, d/b/a Sel-Low Stores. The pur-
chaser was Valley Distributing Company, which does
business under the name "Yellow Front," and the
store in question here, together with the other stores
acquired from Star Sales, has since been designated as
a "Yellow Front Store."
On February 24, 1971, pursuant to a petition that
had been filed by the Union, the Board conducted an
election at the store here in question 4 As a result of
that election, the Union was certified as the bargain-
ing representative of the employees in the collective-
bargaining unit.5 At the time Respondent acquired the
store and assumed control of its operations, it agreed
with the Union to enter into collective-bargaining
negotiations and the first meeting between the parties
took place in Salt Lake City, Utah, in December
1971.6 No agreement was reached at this meeting.
3 All dates are 1972 unless otherwise indicated
° Case 27-RC-3878
5 The unit certified was all employees of the Rock Springs, Wyoming,
store, but excluding the store managers , assistant store managers , guards and
supervisors as defined in the Act
6 The parties stipulated that the Respondent is a successor employer
205 NLRB No. 64
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the time of Respondent's takeover of the five
stores, it extended to these stores the then existing
wage and fringe benefit program in force at its other
stores so that all its employees would be receiving the
same benefits.' These benefits were new to the Rock
Springs store and to the other Sel-Low stores and
included one-half the Blue Cross plan, $2,000 worth
of life insurance paid for by Respondent, time-and-a-
half the regular rate of pay for holidays worked, a
2-week maximum vacation for employees, participa-
tion in the company profit-sharing plan, payment of
tuition for employees at the local junior college, and
an employee's discount privilege of 25 percent on
merchandise bought from Respondent.
Thereafter, on March 7, the employees at the store
here in question filed a decertification petition. A
hearing was scheduled on that petition but before the
date set for the hearing, the Union filed an unfair
labor practice charge in Case 27-CA-3510 and, as a
result, the hearing on the petition was postponed in-
definitely.
On June 7, Respondent and the Union entered into
a settlement agreement in Case 27-CA-3510 which
was subsequently approved by the Regional Director
for Region 27. The settlement agreement provided
that the Respondent should bargain with the Union
on request regarding wages, hours, and working con-
ditions, including but not limited to health benefits,
life insurance, holiday pay, vacations, profit sharing,
and other fringe benefits. On August 22, the unfair
labor practice case was "closed upon compliance"
and was to remain closed as long as there was compli-
ance with the terms of the settlement agreement.
In accord with the settlement agreement, the Union
wrote Respondent on June 9 requesting meetings for
negotiations but Respondent's attorney responded on
June 13 that the person in charge of Respondent's
operations was then unavailable and that Respondent
would contact the Union in a couple of days. By June
28 when it had heard nothing further from Respon-
dent, the Union contacted Respondent again asking
for meetings and this time requesting copies of
Respondent's existing fringe benefit plans.
Respondent's attorney sent copies of such plans on
July 6 and notified the Union that he would be out of
town for a few days but would call the Union to
arrange a meeting when he returned. However, having
heard nothing from Respondent, the Union, on Au-
gust 17, sent a letter to Respondent's attorney with a
revised contract proposal enclosed and again asked
for a negotiation meeting. On August 19,
7 The benefits were then in use by Respondent on a companywide basis
and the five stores' employees did not receive any benefit that did not already
exist in all other of the Yellow Front Stores in the western United States
Respondent's attorney wrote the Union indicating he
would call during the week of August 28 to schedule
a bargaining session. Such contact was made and a
meeting was scheduled for September 11 in Seattle,
Washington.
On September 11, the Union and Respondent's au-
thorized representative met in Seattle and concluded
negotiations on major portions of a collective-bar-
gaining agreement. Agreement was not reached on all
matters at this meeting inasmuch as several items
were left open subject to further review and discussion
but it was not anticipated that additional meetings
would be necessary.
Agreement on all items was reached a short time
thereafter and, on September 22, Respondent,
through its representative, forwarded to the Union a
draft of agreement which had been revised from a
draft previously submitted by the Union. The draft
was prepared in accordance with the items formally
resolved at the Seattle meeting and with items subse-
quently discussed and agreed on by phone. On Sep-
tember 23, the Union signed the contract and mailed
it immediately to Respondent for signature.
However, it was discovered that, by oversight, the
proposed draft contained a provision with respect to
union shop cards which had inadvertently been al-
lowed to remain in the union proposal. As soon as the
error was discovered, Respondent, by letter of Sep-
tember 27, advised the Union that the provision
should have been omitted. Respondent received word
from the Union on October 13 that the language dele-
tion with respect to the provision on union shop cards
was acceptable and agreeable to the Union. There-
fore, the parties stipulated that on October 13 the
Union and Respondent had reached a fully negotiat-
ed agreement which had been fully reduced to writing
with the exception that a paragraph was to be deleted
from the draft which was for signature. The Union
had already affixed its signature to the uncorrected
draft.
On October 27, before the correction of the draft
had been made by Respondent and before it had
executed the contract, Respondent was advised by
Region 27 of the Board that the Regional Office had
received what amounted to a petition from the em-
ployees of the Rock Springs store requesting that an
election be held. The petition was in letter form and
the Regional Office forwarded to the employees ap-
propriate forms for the filing of an election petition.
After several attempts to reach Respondent's attor-
ney by phone, the Union, on November 7, mailed a
letter to Respondent which advised that the Union's
calls to Respondent's attorney had not been answered
and inquired as to why the Union had not received the
signed contracts from Respondent. On November 21,
SEL-LOW DISCOUNT
a union representative called Respondent's attorney
and inquired about the whereabouts of the contract.
Respondent's attorney stated that he had been busy
in court and had not had the opportunity to revise the
contract. He stated he would do so, however, within
the next couple of days. Respondent subsequently
advised the Board that in view of the employee's peti-
tion for decertification, and no contract having been
signed, it could not cause execution of the contract,
thereby creating a contract bar to the election sought.
On November 22, a formal decertification petition
was filed on behalf of the employees of the Rock
Springs store.' The petition was dismissed by the Re-
gional Director for Region 27 on December 15 and
this dismissal was upheld by the Board on appeal by
the employees on March 26, 1973.
Respondent did not sign the agreed-upon contract
and as a result, the Union, on December 1, filed a
charge alleging a violation of Section 8(a)(5) of the
Act in this refusal.' Thereafter the complaint issued
on December 15 setting aside the prior settlement
agreement in Case 27-CA-3510 and consolidating
Cases 27-CA-3510 and 27-CA-3719 for hearing.
B. Discussion and Conclusions
General Counsel contends that Respondent's unila-
teral grant of benefits to the employees of its Rock
Springs store in January 1972 was in violation of Sec-
tion 8(a)(5) of the Act since Respondent was then
under a duty to bargain with the Union about these
benefits and failed to do so. Respondent argues that
the benefits given the Rock Springs store employees
were only those previously existing benefits which had
already been given to all its employees in all its stores
in the Western states and were the same benefits si-
multaneously given to the employees in the other four
Sel-Low stores it had acquired. Respondent argues
that the extension of these benefits was in no way
designed to interfere with the employees' rights under
the Act but merely represented its decision to extend
its benefits program consistently to all its employees.
We find, in agreement with the General Counsel,
that Respondent's unilateral grant of benefits in Janu-
ary 1972 to the employees of its Rock Springs, Wyo-
ming, store was in violation of Section 8(a)(5) of the
Act.
As a successor employer, Respondent was obligat-
ed to bargain with the incumbent Union. 1° In lines
with this obligation, the parties agreed to enter into
collective-bargaining negotiations and in fact held
s Case 27-RD-277
9 Case 27-CA-3719
10 N L R B v. Burns International Security Services, Inc, 406 U.S 272
(1972)
451
their first meeting in December 1971, a month before
Respondent formally took control of the Rock
Springs store. However, notwithstanding its agree-
ment to negotiate with the Union, Respondent, when
it took over the Rock Springs store, unilaterally
changed the working conditions of the employees
there by its extension to them of the then existing
wage and fringe benefit program in force at its various
other stores. While the Supreme Court stated in Burns
that a successor employer is ordinarily free to set ini-
tial terms on which it will hire the employees of a
predecessor, the Court also noted that once the suc-
cessor employer's obligation to bargain with the
union has become apparent, the employer is no longer
free to unilaterally alter the employees' working con-
ditions." In the instant case, by the time Respondent
made its unilateral changes, it had already agreed to
bargain with the Union as the employees' representa-
tive, as the parties stipulated, and hence its obligation
to bargain with the Union had become already appar-
ent when it instituted the changes. In such a situation,
its January 1972 grant of benefits was in violation of
Section 8(a)(5) of the Act.12
General Counsel contends that Respondent' s refus-
al to sign the contract agreed to on October 13 is a
violation of Section 8(a)(5) of the Act, while Respon-
dent contends that, since the contract was not signed
by both parties at the time the decertification petition
was filed on November 22, the petition was timely
filed and the employees should be allowed an elec-
tion."
It was stipulated by all the parties to this proceeding
that on October 13 the Union and Respondent
reached a fully negotiated agreement which had been
reduced to writing with the sole exception that Re-
spondent was to delete one paragraph from the draft
which was for signature. Notwithstanding the fact
that the parties had reached full agreement on a con-
tract and that only one paragraph, inadvertently
placed in the contract, was to be deleted, Respondent
never made the necessary deletion and return of the
proposal to the Union for its signature. Instead it
delayed resolution of this simple clerical matter for a
period of 39 days until the employees filed their for-
mal election petition. During this time period, the
Union many times attempted to contact Respondent
as to the reasons for this delay and on that occasion
when it finally was able to reach Respondent's attor-
11 Burns, supra
12 Respondent 's contention that it merely wished to keep all its employees'
benefits consistent does not address itself to the issue at hand Since it was
under an obligation to bargain with the Union, it could not, for whatever
reason or motivation , grant benefits to its employees without prior consulta-
tion and discussion with the Union
13 We note the decertification petition was dismissed by the Regional
Director on December 15 and an appeal of that dismissal was denied by the
Board on March 26, 1973
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ney, the Union was told only that the attorney had
been busy in court and had not been able to revise the
contract.14 The decertification petition was filed the
following day.
As the parties had reached a binding agreement on
all of the terms of a collective-bargaining agreement
on October 13, we find Respondent's refusal to exe-
cute a written agreement embodying the terms that
had been agreed to by the parties to be a violation of
Section 8(a)(5) of the Act.15 Further, we find that
Respondent's inability for 39 days to revise the
agreed-upon contract by the simple deletion of one
paragraph constituted a dilatory bargaining tactic
and demonstrated that Respondent was not bargain-
ing in good faith from October 13 in further violation
of Section 8(a)(5) of the Act.16 We find no merit in
Respondent's contention that the decertification peti-
tion warranted its actions since its refusal to bargain,
by (1) its failure to sign the contract, and (2) its dilato-
ry bargaining tactics, predated the filing of the peti-
tion. We note that Respondent is further precluded
from using the filing of the decertification petition as
an excuse to refrain from bargaining with the Union
because of the settlement agreement which it signed
in June 1972 and which provided for bargaining with
the Union. The Board has held that where, as here, an
employer has entered into such a settlement agree-
ment he must continue bargaining for a "reasonable
time" and may not break off negotiations, merely
because of the filing of a decertification petition, even
if he believed in good faith that a question concerning
representation might exist.17 Thus, even if we were to
find no bad faith in Respondent's delaying the revi-
sion of the contract, we would find unjustified its
refusal to sign the agreed-to contract since such a
"reasonable time" as contemplated had not passed.18
THE REMEDY
Having found that Respondent has engaged in cer-
tain unfair labor practices, we shall order that it cease
and desist therefrom and take certain affirmative ac-
tion designed to effectuate the basic policies of the
Act. It has been found that Respondent has refused
14 We note that this contact was on November 21, some 38 days after the
parties reached agreement and some 24 days after Respondent was initially
notified of the employees ' attempt to secure an election
15 Lanham Hardwood Flooring Co, Inc, 158 NLRB 129, Adams Potato
Chi(s, Inc, 176 NLRB 130, enfd 430 F 2d 90 (C A 6, 1970)
1 See Lozano Enterprises, 143 NLRB 1347, enfd 327 F 2d 814 (C.A 9,
1964)
17 Poole Foundry and Machine Company, 95 NLRB 34, enfd 192 F.2d 740
(C A 4, 1951)
1s See e g, N J MacDonald & Sons, Inc 155 NLRB 57, enfd 53 LC para
11, 241, where the Board found that 6 months was not a reasonable time
where it found that the parties were extremely close to an agreement when
the petition was filed
to bargain collectively with Retail Clerks Internation-
al Association, Local No. 102, AFL-CIO, as the ex-
clusive representative of all employees in the
appropriate unit by unilaterally granting various ben-
efits on January 1, 1972. We shall therefore order
Respondent to cease and desist from such unilateral
action.
It has also been found that Respondent has refused
to bargaining collectively with Retail Clerks Interna-
tional Association, Local No. 102, AFL-CIO, by re-
fusing to sign the collective-bargaining agreement
upon which it and the aforesaid Union reached agree-
ment on October 13, 1972. We shall therefore order
Respondent, upon the Union's request, to sign such
agreement effective October 13, 1972, and to give ret-
roactive effect to the terms and conditions of the
agreement from October 13, 1972. If no such request
is made, we shall order Respondent, upon request, to
bargain collectively with the Union as the exclusive
representative of the employees in the appropriate
unit, and, if an understanding is reached, to embody
such understanding in a signed contract.19
We shall further order that if the Union requests
Respondent to sign the contract agreed to on October
13, 1972, that Respondent make whole the employees
in the unit found appropriate herein for any loss of
benefits they may have suffered from October 13,
1972, by reason of Respondent's failure to give effect
to the contract agreed upon, until the date of compli-
ance with this Order.
CONCLUSIONS OF LAW
1. Yellow Front Stores d/b/a Sel-Low Discount is
an employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act, and it will
effectuate the policies of the Act to assert jurisdiction
herein.
2. Retail Clerks International, Local No. 102,
AFL-CIO, is, and at all times material herein has
been, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. All employees employed by Respondent at its
Rock Springs, Wyoming, store, but excluding the
store managers, assistant store managers, guards and
supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4 At all times since March 4, 1971, and continuing
to date, the Union has been the exclusive collective-
bargaining representative of the employees in the unit
described above for the purpose of collective bargain-
19 Since the scope of our Order would be the same were we to find that
Respondent also bargained in bad faith from June to September 1972 and
that its total approach demonstrated it was engaging in surface bargaining,
we do not pass on these further contentions of the General Counsel.
SEL-LOW DISCOUNT
Ing within the meaning of Section 9(a) of the Act.
5. By granting vacation allowances, health and life
insurance plans, holiday work pay, company profit-
sharing plans, payment of tuition for employees at the
local junior college, and clicoount privileges of 25 per-
cent to its employees, on or about January 1, 1972,
without notification to or consultation with the
Union, and by refusing since on or about October 13,
1972, to sign the collective-bargaining agreement with
the Union to which Respondent had previously
agreed, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(1) and (5) of the Act.
6. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that Respondent, Yellow
Front Stores d/b/a Sel-Low Discount, Phoenix, Ari-
zona, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Granting vacation allowances, health and life
insurance plans, holiday work pay, company profit-
sharing plans, payment of tuition for employees at the
local junior college, and discount privileges of 25 per-
cent to its employees without notification to or con-
sultation with Retail Clerks International
Association, Local No. 102, AFL-CIO.
(b) Refusing upon request of the aforesaid Union
to sign the collective-bargaining agreement agreed to
on October 13, 1972.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the right to self-organization, to form labor organiza-
tions, to join or assist the above-named or any other
labor organization, to bargain collectively through
representatives of their own choosing, to engage in
concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, and to re-
frain from any or all such activities, except to the
extent that such right may be affected by an agree-
ment requiring membership in a labor organization as
a condition of employment.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Upon request, forthwith execute and sign the
collective-bargaining contract agreed to on October
13, 1972, and give retroactive effect to the terms and
conditions of the contract from October 13, 1972, with
interest at 6 percent per annum for the loss of any
453
benefits which would have accrued to the employees
under the contract Respondent refused to sign.
(b) If no such request is made, then, upon request,
bargain collectively with Retail Clerks International
Association, Local No. 102, AFL-CIO, as the exclu-
sive representative of the employees in the appropri-
ate unit and, if an understanding is reached, embody
such understanding in a signed contract.
(c) Post at its place of business at Rock Springs,
Wyoming, copies of the attached notice marked "Ap-
pendix." 20 Copies of said notice, on forms provided
by the Regional Director for Region 27, after being
duly signed by Respondent's authorized representa-
tive, shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 consec-
utive days thereafter, in conspicuous places, including
all places where notices to its employees are custom-
arily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 27, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
20 In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Pursuant to a Decision and Order of the National
Labor Relations Board and in order to effectuate the
policies of the National Labor Relations Act, as
amended, we hereby notify you:
WE WILL NOT grant vacation allowances, health
and life insurance plans, holiday work pay, com-
pany profit-sharing plans, payment of tuition for
employees at the local junior college, and dis-
count privileges of 25 percent without notifica-
tion to and consultation with the Retail Clerks
International Association, Local No. 102, AFL-
CIO.
WE WILL, upon request, forthwith execute and
sign the collective-bargaining contract which we
agreed to with the Union on October 13, 1972,
and give retroactive effect to the terms and con-
ditions of the agreement from October 13, 1972,
454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with interest at 6 percent per annum for the loss
of any benefits which would have accrued to the
employees under the contract we refused to sign.
If no such request is made, WE WILL, upon re-
quest, bargain collectively with Retail Clerks In-
ternational Association, Local No. 102,
AFL-CIO, as the exclusive representative of the
employees in the appropriate unit and , if an un-
derstanding is reached, embody such under-
standing in a signed contract. The bargaining
unit is:
All employees employed by us at our Rock
Springs , Wyoming, store , but excluding the
store managers , assistant store managers,
guards, and supervisors as defined in the Act.
WE WILL NOT in any like or related manner in-
terfere with , restrain , or coerce our employees in
the exercise of their right of self -organization, to
form labor organizations, to join or assist the
above-named or any other labor organization, to
bargain collectively through representatives of
their own choosing , to engage in concerted activi-
ties for the purpose of collective bargaining or
other mutual aid or protection, and to refrain
from any or all such activities except to the extent
that such right may be affected by an agreement
requiring membership in a labor organization as
a condition of employment.
YELLOW FRONT STORES
d/b/a SEL-LOW DISCOUNT
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, U.S. Custom House, Room 260, 721
-19 Street, Denver, Colorado 80202, Telephone 303-
837-3551.