Winn-Dixie Stores, Inc.

National Labor Relations Board - Board Decisions

Jun 21, 1976

224 N.L.R.B. 1418 (N.L.R.B. 1976)

1418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Winn -Dixie Stores , Inc. and Amalgamated Meat Cut-
ters and Butcher Workmen of North America,
AFL-CIO . Case 12-CA-4695
June 21, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING,
JENKINS, AND PENELLO
On September 5, 1974, Administrative Law Judge
Joel A. Harmatz issued the attached Decision in this
proceeding. Thereafter, the Respondent, the Acting
General Counsel, hereafter referred to as General
Counsel, and the Charging Party filed exceptions
with supporting briefs, the Respondent filed an an-
swering brief to the General Counsel's exceptions
and supporting brief, and the Charging Party filed an
answering brief to the Respondent's exceptions and
supporting brief.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge with
the following modifications.
1. We agree with the Administrative Law Judge
insofar as he found various violations of Section
8(a)(1) and (5) of the Act.
The General Counsel and the Charging Party con-
tend, contrary to the Administrative Law Judge's
conclusion, that the Respondent also violated Sec-
tion 8(a)(1) of the Act by maintaining an exclusion-
ary clause in its pension/profit-sharing plan whereby
employees subsequently covered by any other pen-
sion plan would automatically be excluded from
Respondent's plan with forfeiture of all previously
vested interests; Section 8(a)(3) of the Act by exclud-
ing its employees at the Jacksonville, Florida, ware-
house from its pension/profit-sharing plan when they
became covered by the Charging Party's pension
plan with a resultant forfeiture of the employees' pre-
viously vested interests in Respondent's plan; and
Section 8(a)(5) of the Act by refusing to bargain with
the Charging Party over automatically excluding em-
ployees covered by some other form of retirement
program established through the process of collective
bargaining and by refusing to bargain with the
Charging Party over the forfeiture of employees' pre-
viously vested interests in Respondent's pension/
profit-sharing plan. We find merit in these conten-
tions.
The record shows that for many years Respondent
has maintained its profit-sharing plan. To be eligible
to participate, an employee must be employed for a
period of 5 years. Contributions are made into a fund
with pro rata personal accounts being set up for each
participating employee. Benefits become due upon
an employee's death, disability, or normal retire-
ment, or upon discharge after reaching retirement
age for other than various serious breaches of con-
duct. Benefits are made in periodic payments and,
except for very limited exceptions, none of the pay-
ment optior.s involves a lump sum payment. Benefit
payments continue until the employee's account is
exhausted. The plan also permits those employees
who earn less than $8,500 annually to take out in
cash payments each year a sum up to $300.
Comparing the instant facts with those present in
The Kroger Co., 164 NLRB 362 (1967), enfd. 401
F.2d 682 (C.A. 6, 1968), cert. denied 395 U.S. 904
(1969), the Administrative Law Judge concluded that
the pension/profit-sharing plan was in fact a retire-
ment- or pension-type plan, that it was not inconsis-
tent with the principles of good-faith bargaining for
the Respondent to insist adamantly on either one
plan or the other but not both, and that
Respondent's position during bargaining did not vio-
late Section 8(a)(1), (3), or (5) of the Act.
In our opinion, the Administrative Law Judge has
misconstrued the scope of Respondent's pension/
profit-sharing plan and, in doing so, incorrectly ap-
plied the principles set out in the Kroger Co. case. In
Kroger, the Board found that the employer violated
Section 8(a)(1), (3), and (5) of the Act by maintaining
an exclusionary clause in its pension/profit-sharing
program similar to the exclusionary clause set out as
article II, section 2.4(b), of Respondent's plan.' In
Kroger, as in the case herein, the exclusionary clause
provided for the exclusion of, or ineligibility to par-
ticipate on the part of, employees covered by some
other form of retirement program. In the instant
case, during the course of bargaining in 1969 up
through the execution of the February 6, 1971, con-
tract, Respondent adamantly took the position that
the employees could be covered by either
Respondent's plan or the Union's plan, but that the
employees could not be covered by both. Thus the
issue here is whether the Respondent's position taken
Art q , sec 2 4(b), excludes
Employees who, as a result of collective bargaining, have entered into a
written agreement by which Employer agrees to contribute funds for
the benefit of such employees to some form of Pension Retirement
Program (other than "Program" herein)
On June 25, 1971, following the execution of the February 6, 1971, con-
tract art 11, sec 2 4(b), then excluded
Employees who, as a result of collective bargaining , have entered into a
written agreement with the Employer by which the Employer has
agreed to contribute funds for the benefit of such employees to some
form of Pension or Retirement Program (other than "Program" herein)
and who have been excluded from this Program by agreement of the
parties
224 NLRB No. 190
WINN-DIXIE STORES, INC.
and maintained up until June 25, 1971, when the
plan was amended violated the Act. In Kroger, the
issue was whether or not the exclusionary clause in
the Kroger profit-sharing plan, as distinguished from
Kroger's pension plan, discriminated against em-
ployees engaging in protected concerted activities. In
Kroger, the end result, simply stated, was that em-
ployees represented by the union had a pension plan,
whereas unrepresented employees had a pension
plan and a profit-sharing plan, a situation that clearly
discriminated against those employees who had
elected to engage in collective bargaining.
We do not agree with the Administrative Law
Judge's conclusion that the instant plan is simply a
retirement or pension plan. In our opinion,
Respondent's plan is nothing more than a bonus plan
or, as it has been frequently referred to, a profit-shar-
ing plan. Under article III of the plan, the
Respondent's annual contributions are limited to
certain percentages of "the consolidated net income"
of the Respondent and its several subsidiaries. Obvi-
ously, if there is no "consolidated net income," under
the terms of the plan there would be no contribution
to the fund. On the other hand, the bonus character-
istics of the fund are clearly shown by the fact that
after the closing of the fiscal years ending June 1968
and June 1969, Respondent's board of directors
passed resolutions noting:
WHEREAS, Employer has realized an increase in
sales and profits for the fiscal year ending June
29, 1968 .. . .Z
In each of these resolutions, the board of directors
authorized contributions which, if they were in fact
higher than those provided for under the terms of
article III of the plan, were to be paid in at the higher
level.' In these circumstances, eligible employees
could only expect contributions to their accounts if
there was a profit, and possible additional contribu-
tions in any given year only if profits were higher
than under normal conditions. In addition, eligibility
to participate in the plan's benefits is substantially
limited in that only those employees who have been
continuously employed for a period of at least 5
years are eligible, and even then eligibility only be-
comes final if and when an employee, otherwise eligi-
ble, applies for participation in the plan. In our opin-
ion, the fact that enjoyment of the benefits derived
from Respondent's contributions is deferred until a
point of time normally associated with retirement
does not alter the basic makeup of the plan.
2 The identical resolution was passed for the 1969 fiscal year
s Both resolutions clearly limited the increased contributions to the re-
spective fiscal years
1419
However, even if we were to agree with the Ad-
ministrative Law Judge's conclusion that the plan is
a retirement plan, we would still reach the same re-
sults insofar as the violations of the Act are con-
cerned and the remedy appropriate thereto. Accept-
ing, arguendo, the Administrative Law Judge's
conclusion that Respondent's plan is a retirement
plan, and that, therefore, an employer can insist on
one plan or the other, it is clear that Respondent's
plan in fact includes an aspect which is unrelated to
retirement. Under the terms of article VI, section 6.2,
one-third of the annual contribution allocated to any
participating employee whose income for the preced-
ing fiscal year was less than $8,500 "shall be paid to
him in cash . . . PROVIDED HOWEVER, such cash pay-
ment shall, in no event, exceed $300.00 in any year."
Under this phase of the plan, most if not all of the
unit employees eligible to participate in the plan
would receive an annual distribution of a sum of
money.4 In these circumstances, again accepting ar-
guendo the contention that the plan is a retirement
plan, it is also clear that the plan is in part a profit-
sharing plan. Notwithstanding this, Respondent
through the plan's exclusionary clause , precluded
any bargaining on the profit-sharing aspect of the
plan and, in accord with the exclusionary clause,
Respondent's negotiators would not discuss and ada-
mantly insisted that the Union take either its own
plan or Respondent's plan. In these circumstances, it
is clear that Respondent violated Section 8(a)(5) and
(1) of the Act by refusing until June 25, 1971, to
bargain over the various aspects of the plan and also
violated Section 8(a)(3) of the Act by unlawfully ex-
cluding eligible unit employees from in any way par-
ticipating in the plan. From this, it also follows that
Respondent's adamant insistence that all employees
covered by the union-sponsored plan forfeit their in-
terests in the plan violated Section 8(a)(5) and (1) of
the Act, and that Respondent's actual forfeiture of
the unit employees' interests in the plan violated Sec-
tion 8(a)(3) of the Act.'
In any event, whether the plan is designated a
profit-sharing plan or a retirement plan plus a profit-
sharing plan, the Union, as the certified representa-
tive of the unit employees, had the right to negotiate
all aspects of the plan, and the Respondent had the
obligation to negotiate and bargain in good faith
with the Union as to all aspects of the plan. The vice
in Respondent's conduct, however, is that with its
4 Based on the wage rates in effect in the 1969-7I period, and absent
extraordinary overtime work, the annual compensation of each of the em-
ployees in the unit would be substantially less than $8,500.
5 During the course of the hearing, Respondent represented that although
the 1970 and 1971 contracts provided for forfeiture of the employees' indi-
vidual accounts in the plan , the accounts of the unit employees were being
held, apparently in some form of escrow, pending the outcome of this case
1420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
absolute take-it-or-leave-it position it refused to bar-
gain over any aspect of the plan, thus denying to the
unit employees their rights under Section 7 of the
Act. Accordingly, to remedy this unfair labor prac-
tice, we shall issue an order restoring the status quo
ante, making the employees whole for the losses they
have suffered as a result of Respondent's unfair labor
practices, and requiring the Respondent to bargain
with the Union with regard to the profit-sharing
plan.
2. We agree with the Respondent that the Admin-
istrative Law Judge's ruling that the Charging Party's
contention that the Respondent had engaged in sur-
face bargaining and that the issue was properly be-
fore him for resolution was erroneous. The record
shows that in the initial charge filed herein, the
Charging Party alleged numerous violations of Sec-
tion 8(a)(5) and (1) of the Act, including, inter aka,
that Respondent failed and refused to bargain in
good faith. Following investigation, the Regional Di-
rector dismissed the charges in their entirety. There-
after, the Charging Party appealed the dismissal by
the Regional Director to the General Counsel. Al-
though the appeal was granted in part, the complaint
which issued alleged only various specific conduct as
being violative of Section 8(a)(5) of the Act.
During the course of the hearing, the General
Counsel introduced evidence directed toward estab-
lishing that Respondent by various acts and conduct
had violated Section 8(a)(5) of the Act. Thereafter,
the Charging Party attempted to introduce into the
record evidence of other conduct in support of its
contention that the Respondent had engaged in sur-
face bargaining throughout the period involved. In
each instance when the Charging Party attempted to
introduce such evidence into the record, both the
General Counsel and the Respondent objected to the
admission of such testimony on the grounds that the
questions went beyond the scope of the complaint. In
the various ensuing colloquies following objection to
certain lines of examination, the General Counsel
steadfastly adhered to his position that it was his in-
tention "to limit this case, insofar as possible, to the
allegations of the complaint."
Notwithstanding the General Counsel's position
and objection to the admission of any evidence that
went beyond the scope of the complaint, the Admin-
istrative Law Judge, in his Decision, concluded that
the General Counsel, in practical effect, had taken a
position which rendered the Charging Party's con-
tention as to surface bargaining a viable issue in this
case. Following this, the Administrative Law Judge
received into evidence testimony regarding certain
conduct proffered by the Charging Party in support
of its claim that Respondent engaged in surface bar-
gaining, and based on such testimony concluded that
Respondent had in fact engaged in surface bargain-
ing in violation of Section 8(a)(5) of the Act.
After a careful review of the record, we reject the
conclusion of the Administrative Law Judge that the
General Counsel in effect acquiesced in permitting
the Charging Party to extend the allegations of the
complaint. Section 3(d) of the Act gives the General
Counsel the "final authority" over the "investigation
of charges and issuance of complaints under section
10" of the Act. The authority of the Administrative
Law Judge to amend the complaint under Section
10(b) of the Act is clearly limited to those instances
where the amendment is sought or consented to by
the General Counsel, or where evidence has been re-
ceived into the record without objection.6 As noted
above, the original charge contained an allegation
that Respondent engaged in bad-faith bargaining.
This charge was rejected by the Regional Director
and, on appeal to the General Counsel, the dismissal
of this portion of the charge was sustained. The rec-
ord also shows that the General Counsel during the
entire course of the hearing consistently objected to
the admission of any evidence which went beyond
the scope of the allegations in the complaint.' At the
same time, the record also shows that on two occa-
sions, the General Counsel moved to amend the
complaint as to specific allegations, neither of which
was in any way related to the Charging Party's con-
tention that Respondent engaged in surface bargain-
ing. In such circumstances, particularly the General
Counsel's refusal to amend the complaint to include
an allegation of surface bargaining and his objection
to the admission of any evidence beyond the scope of
the complaint, the Administrative Law Judge's con-
clusion that the General Counsel's "position" had
"rendered the Charging Party's contention as to sur-
face bargaining a viable issue in this case" is without
support in the record and is hereby reversed.8 Ac-
cordingly, we do not adopt those portions of the Ad-
ministrative Law Judge's Decision relating to the sur-
face bargaining issue.
3. We also find merit in Respondent's exceptions
to the Administrative Law Judge's award of litigation
expenses to the Charging Party. In Heck's, Inc., 215
NLRB 765 (1974), the Board reviewed and fully con-
sidered the question of the award of litigation expen-
ses and court costs to a charging party. In our deci-
6 International Union of Electrical, Radio and Machine Workers, AFL-CIO
[NECO Electrical Products Corp I v N L R B, 289 F 2d 757 (C A D C,
1960), N L R B v Raytheon Company, 445 F 2d 272 (C A 9, 1971)
' In other instances when Respondent objected to certain questions pro-
pounded by the Charging Party, the General Counsel invariably j oined in
the objection, again citing the fact that the evidence sought to be introduced
went beyond the scope of the complaint
8 GTE Automatic Electric, Inc, 196 NLRB 902 (1972)
WINN-DIXIE STORES, INC.
Sion in Heck's, we reaffirmed our position 9 that the
award of litigation expenses, except in extraordinary
circumstances involving frivolous defenses, would
discourage respondents from gaining access to the
appropriate forum in order to fully litigate "debat-
able" defenses.
Applying this principle to the instant case, it is
clear that Respondent's defenses were not frivolous.
As noted earlier, the original charge was dismissed
by the Regional Director, and it was only after an
extended review of the case on the Charging Party's
appeal to the General Counsel that a very limited
and specific complaint issued. The complaint alleged
6 independent violations of Section 8(a)(1) of the
Act, 13 independent violations of Section 8(a)(5) of
the Act, and 1 violation of Section 8(a)(3) of the Act.
In addition, during the course of the hearing, the
General Counsel amended the complaint to allege
two additional violations. Out of approximately 20
specific violations, the Administrative Law Judge
found merit in the Respondent's positions as to 8 of
them, recommending dismissal of those sections of
the complaint. In addition, while we have found mer-
it in the General Counsel's and Charging Party's ex-
ceptions to the Administrative Law Judge's recom-
mendations with regard to the pension/profit-sharing
plan and have reversed his conclusions as to that is-
sue, it still must be noted that the Administrative
Law Judge found merit in Respondent's defense to
this allegation. In these circumstances, we conclude
that Respondent's defenses were not frivolous and
that the award of litigation expenses and costs to the
Charging Party was erroneous; accordingly, we do
not adopt the portions of the Administrative Law
Judge's Decision and recommended remedy relating
to the award of litigation costs.
ADDITIONAL CONCLUSIONS OF LAW
Add the following as Conclusions of Law 14, 15,
and 16:
"14. By maintaining and continuing to maintain
until June 25, 1971, a pension/profit-sharing plan
which by its terms automatically excludes from parti-
cipation employees covered by a pension plan result-
ing from collective bargaining through a labor orga-
nization, Respondent has interfered with, restrained,
and coerced its employees in their exercise of the
rights guaranteed in Section 7 of the Act, and has
thereby violated Section 8(a)(1) thereof; has discour-
aged and, by adhering to its insistence that unit em-
ployees be excluded from its plan, continues to dis-
9 Tudee Products, Inc, 194 NLRB 1234, 1236 (1972), 196 NLRB 158
(1972)
1421
courage membership and activities on behalf of
Amalgamated Meat Cutters and Butcher Workmen
of North America, AFL-CIO, and has and is thereby
violating Section 8(a)(3) of the Act; and has refused
to bargain with and continues to refuse to bargain
with the above-named labor organization, thereby vi-
olating Section 8(a)(5) of the Act.
"15. By adamantly insisting on and refusing to
bargain with the above-named labor organization
over the forfeiture of the vested rights of unit em-
ployees in the pension/profit-sharing plan who be-
came covered by a pension plan resulting from col-
lective bargaining through the above-named labor
organization, Respondent has violated and continues
to violate Section 8(a)(5) and (1) of the Act.
"16. By forfeiting the vested rights of unit employ-
ees in the pension/profit-sharing plan who became
covered by a pension plan resulting from collective
bargaining through the above-named labor organiza-
tion, Respondent has violated and continues to vio-
late Section 8(a)(3) and (1) of the Act."
THE REMEDY
The Administrative Law Judge, having concluded
that Respondent did not violate the Act with regard
to the pension/profit-sharing plan, made no recom-
mendations for a remedial order with regard to this
matter. Having found that Respondent violated Sec-
tion 8(a)(1), (3), and (5) of the Act, we shall enter an
appropriate order. With regard to the maintenance of
the exclusionary clause, although Respondent, on
June 25, 1971, amended the clause to eliminate auto-
matic exclusion, we will require the Respondent to
cease and desist from maintaining any such exclu-
sionary clause and to post a notice to this effect. Fur-
ther, we shall order the Respondent to cease and
desist from making any changes in its
pension/profit-sharing plan insofar as it may affect
employees in the appropriate unit without first noti-
fying the Union as to proposed changes and bargain-
ing with the Union upon its request with regard to
any such proposed changes. We shall also order the
Respondent, upon request of the Union, to bargain
collectively with the said Union with respect to the
pension/profit-sharing plan, including bargaining as
to the right of eligible unit employees to participate
in any cash distributions notwithstanding the fact
that they are or have been covered by any other pen-
sion plan, as well as bargaining as to the right of
those employees who had become eligible to partici-
pate in the plan prior to February 6, 1970, to retain
their vested interests in the said plan. We shall also
order Respondent to reinstate in the plan the ac-
counts of those employees whom Respondent had
1422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
deemed to have forfeited them as a result of having
become covered by another plan, and to open ac-
counts in the names of those employees who would
have otherwise become eligible to participate in the
plan subsequent to February 6, 1970. We further,
shall order Respondent to make said employees' ac-
counts whole for any losses of company contribu-
tions (less the annual cash distribution required be-
low) and the earnings those accounts would have
earned in the same ratio as contributions and earned
income are reflected in the active employee accounts
during the period from the date Respondent forfeited
the accounts and terminated further eligibility to the
date Respondent complies with our Order herein. Fi-
nally, we shall order that the Respondent in making
whole those unit employees who were participa its in
the plan as of February 6, 1970, and those unit em-
ployees who otherwise would have become eligible to
participate in the plan from February 6, 1970, to the
date Respondent complies with this Order shall pay
to each employee a sum of money equal to one-third
the annual contribution to each account, but not to
exceed the sum of $300 per annum. Nothing herein
shall preclude any employee eligible to receive cash
payment pursuant to our Order from electing to have
said sums credited in whole or in part to his account.
All payment and/or credits to accounts ordered
herein shall bear interest at 6 percent per annum.
We have also carefully considered the Administra-
tive Law Judge's recommendations as to the remain-
der of the remedy, and the Respondent's exceptions
thereto, and, although we have made no finding with
regard to the Administrative Law Judge's conclusion
that Respondent engaged in "surface" bargaining, a
conclusion on which the Administrative Law Judge
relied in major part in fashioning his recommended
remedy, we are of the opinion that Respondent's
conduct found violative of the Act herein is of suffi-
cient gravity to justify the application of his recom-
mendations at this time. Accordingly, we adopt the
Administrative Law Judge's recommendations that,
in addition to posting the required notice to employ-
ees, Respondent mail a copy of the notice to each
employee, that the notice be read to groups of em-
ployees by company officials, that the notice be post-
ed at all of the Respondent's facilities within the
Jacksonville division, and that the Union be granted
access to bulletin boards and all places where notices
are customarily posted in the Jacksonville warehouse
for a period of 1 year.
In addition, in view of the fact that Respondent
immediately following the Union's 1969 recertifica-
tion violated Section 8(a)(5) by its unilateral grant of
increased insurance benefits as well as its unilateral
grant of the August 3, 1969, wage increase prior to
any impasse in bargaining, we agree with the Admin-
istrative Law Judge that the certification year shall
commence to run from the date Respondent com-
plies with our Order herein.
We are also of the opinion that the unilateral
granting of the aforementioned benefits as well as the
unilateral wage increase of January 29, 1973, would
necessarily impede the progress of collective bargain-
ing, thereby possibly causing the unit employees to
suffer the loss of enjoyment of benefits they might
otherwise have received. Accordingly, we also adopt
the Administrative Law Judge's recommendation
that a comparable warehouse of Respondent be se-
lected and a comparison and determination be made
with respect to benefits the unit employees may have
lost because of Respondent's unfair labor practices,
and, in the event it is shown that unit employees have
in fact suffered loss of benefits, that Respondent
make the unit employees whole for such losses.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor Re-
lations Board hereby orders that the Respondent,
Winn-Dixie Stores, Inc., Jacksonville , Florida, its of-
ficers, agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Promulgating , maintaining , and enforcing an
unlawful, broad no-solicitation rule which precludes
employees from engaging in union activity on non-
working time.
(b) Promulgating , maintaining , and enforcing an
unlawful , broad no-distribution rule which precludes
employees from engaging in union activity in non-
working areas on nonworking time.
(c) Announcing increased insurance benefits so as
to influence employees to refrain from designating a
bargaining representative.
(d) Making substantial gifts, in the form of free
dinners and door prizes , to induce employees to re-
frain from designating a bargaining representative.
(e) Instructing employees to stop engaging in
union activity.
(f) Promulgating and maintaining an exclusionary
clause which disqualifies or excludes from participa-
tion in its pension profit-sharing plan employees cov-
ered by a pension plan resulting from collective bar-
gaining through a labor organization.
(g) Refusing to bargain collectively with Amalga-
mated Meat Cutters and Butcher Workmen of North
America, AFL-CIO, in the unit described below by
adamantly insisting on and refusing to discuss with
the said labor organization exclusion of unit employ-
ees from participation in Respondent 's pension/prof-
WINN DIXIE STORES, INC 1423
it-sharing plan upon being covered by another pen-
sion plan resulting from collective bargaining
The appropriate unit is
All employees engaged in the receiving, ship-
ping, and processing of all food and sundry
products at the Employer's warehouse at Jack-
sonville, Florida, excluding all employees in the
meat and cheese processing and packaging de-
partment, all garage and mechanical mainte-
nance employees, carpenters, regular mainte-
nance personnel, truckdrivers, and helpers,
office clerical employees, guards, and supervi-
sors as defined in the Act
(h) Refusing to bargain collectively with the
above-named labor organization by adamantly in-
sisting on and refusing to discuss the forfeiture of the
vested rights of unit employees in its pension/profit-
sharing plan who became covered by another pen-
sion plan resulting from collective bargaining
(i) Refusing to bargain collectively with the said
labor organization by, unilaterally, and without no-
tice or prior consultation, granting wage increases or
increased insurance benefits to employees in the
above-described unit
(0) Refusing to bargain in good faith by refusing to
permit the Union to conduct mplant job studies
through an independent engineer designated by the
Union, and by denying union representatives access,
free of any unreasonable conditions, to the ware-
house for investigation of safety and sanitary condi-
tions, and the extent to which supervisors perform
unit work
(k) Forfeiting the vested rights of unit employees
in its pension/profit-sharing plan without first bar-
gaining with the above-named labor organization
over such forfeiture
(1) Making any changes in its pension/profit-shar-
ing plan that will affect the rights of unit employees
without first notifying the above-named labor orga-
nization, and, upon its request, bargaining with it
over such changes
(m) In any other manner interfering with, restrain-
ing, or coercing its employees in the exercise of their
rights guaranteed in Section 7 of the Act
2 Take the following affirmative action which is
necessary to effectuate the policies of the Act
(a) Upon request, bargain collectively and in good
faith with the above-named labor organization, as
the exclusive representative of all the employees in
the unit described above, concerning unit employees'
participation in its pension/profit-sharing plan, for-
feiture of the unit employees' vested interests in its
pension/profit-sharing plan, changes in employees'
insurance plans and benefits, employees' wage in-
creases, and the right of engineers and representa-
tives designated by the Union to access, free of any
unreasonable conditions, to the warehouse for time
and job studies, investigation of safety and sanitary
conditions, and the extent to which supervisors per-
form unit work Respondent shall also bargain as to
wages, hours of employment, and other conditions of
employment, and, if an understanding is reached,
embody such understanding in a signed agreement
(b) Reinstate in its pension/profit-sharing plan the
accounts of those unit employees who were eligible
to participate in the said plan as of February 6, 1970,
and whose accounts were forfeited, and open ac-
counts in the names of those unit employees who
would have otherwise become eligible to participate
in said plan subsequent to February 6, 1970, and
prior to compliance with our Order herein
(c) Make whole the employees referred to in sub-
paragraph (b) immediately above by paying into said
accounts a sum of money, the amount of which is to
be determined hereinafter at the compliance stage of
this proceeding in the manner explained in the sec-
tion of this Decision entitled "The Remedy "
(d) Make whole employees in the appropriate unit
at the Jacksonville warehouse for losses sustained in
the totality of their wage and fringe benefit levels
resulting from Respondent's impeding of the normal
course of collective bargaining by virtue of its unfair
labor practices herein, said amounts, if any, to be
computed in the manner set forth in the section of
the Administrative Law Judge's Decision entitled
"The Remedy "
(e) Post at all its locations within the Jacksonville
division copies of the attached notice marked "Ap-
pendix " 10 Copies of said notice, on forms provided
by the Regional Director for Region 12, 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
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 said notices are not
altered, defaced, or covered by any other material
(f) Mail a signed copy of said notice marked "Ap-
pendix" to each employee in the appropriate unit at
the Jacksonville warehouse immediately upon receipt
thereof from the Regional Director for Region 12
(g) Convene during working time, by departments
or shifts, all employees in said appropriate collective-
bargaining unit at which a responsible official of the
10 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
1424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent, namely, a department head or higher
level official, shall read to said employees the con-
tents of the attached notice marked "Appendix."
(h) Upon request of the Union, made within 1
month after issuance of a final order in this proceed-
ing, or compliance herewith, immediately grant the
Union and its representatives reasonable access, for a
period of 1 year, to the bulletin boards at the Jack-
sonville warehouse and all places where notices to
employees are customarily posted at said location.
(i) 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 due under the terms of this Order.
(j) Notify the Regional Director for Region 12, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
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 both sides had an opportu-
nity to present evidence, the National Labor Rela-
tions Board has found we have violated the National
Labor Relations Act and we have been ordered to
post this notice.
The Act gives the employees the following
rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choosing
To engage in activities together for the pur-
pose of collective bargaining or other mutual
aid or protection
To refrain from the exercise of any such ac-
tivities.
WE WILL NOT announce, maintain, or enforce
rules prohibiting you from soliciting for the
Union on your own time, nor will we announce,
maintain, or enforce rules prohibiting you from
distributing union literature in nonworking ar-
eas on your nonworking time.
WE WILL NOT announce or grant benefits in
any form to influence your right as employees to
decide whether or not you wish to be repre-
sented by Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-
CIO.
WE WILL NOT order you to stop engaging in
activity in support of Amalgamated Meat Cut-
ters and Butcher Workmen of North America,
AFL-CIO.
WE WILL NOT refuse to bargain collectively
with Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO, in the
unit described below by adamantly insisting on
and refusing to discuss with the said labor orga-
nization exclusion of unit employees from parti-
cipation in our pension/profit-sharing plan
upon being covered by another pension plan re-
sulting from collective bargaining. The appro-
priate unit is:
All employees engaged in the receiving, ship-
ping, and processing of all food and sundry
products at the Employer's warehouse at
Jacksonville, Florida; excluding all employees
in the meat and cheese processing and pack-
aging department, all garage and mechanical
maintenance employees, carpenters, regular
maintenance personnel, truckdrivers, and
helpers, office clerical employees, guards, and
supervisors as defined in the Act.
WE WILL NOT refuse to bargain with the above-
named labor organization in the appropriate
unit by adamantly insisting on and refusing to
discuss the forfeiture of the vested rights of unit
employees in our pension/profit-sharing plan
who became covered by another pension plan
resulting from collective bargaining.
WE WILL NOT refuse to bargain with the above-
named labor organization in the appropriate
unit by unilaterally, and without notice or prior
consultation, granting wage increases or in-
creased insurance benefits to our employees in
the appropriate unit.
WE WILL NOT refuse to bargain in good faith
by refusing to permit the Union to conduct in-
plant job studies through an independent engi-
neer designated by the Union, and by denying
union representatives investigation of safety and
sanitary conditions, and the extent to which su-
pervisors perform unit work.
WE WILL NOT forfeit the vested rights of unit
employees in our pension/profit-sharing plan
without first bargaining with the above-named
labor organization over such forfeiture.
WE WILL NOT make any changes in our pen-
sion/profit-sharing plan that will affect the
rights of unit employees without first notifying
the above-named labor organization, and, upon
its request, bargaining with it over such changes.
WINN-DIXIE STORES, INC
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights guaranteed in Section 7
of the Act
WE WILL, upon request, bargain collectively
and in good faith with the above-named labor
organization, as the exclusive representative of
all the employees in the unit described above,
concerning unit employees' participation in our
pension/profit-sharing plan, forfeiture of the
unit employees vested interests in our pension/
profit-sharing plan, changes in insurance plans
and benefits, wage increases, the right of engi-
neers and representatives designated by the
Union to access, free of any unreasonable con-
ditions, to the warehouse for time and job stud-
ies, investigation of safety and sanitary condi-
tions, and the extent to which supervisors
perform unit work, as well as wages, hours of
employment, and other conditions of employ-
ment, and, if an understanding is reached, em-
body such understanding in a signed agreement
WE WILL reinstate in our pension/profit-shar-
ing plan the accounts of those unit employees
who were eligible to participate in the said plan
as of February 6, 1970, and whose accounts
were forfeited, and open accounts in the names
of those unit employees who would have other-
wise become eligible to participate in said plan
subsequent to February 6, 1970, and prior to
compliance with the Order of the National La-
bor Relations Board
WE WILL make whole the employees referred
to in the paragraph immediately above by pay-
ing into each of said accounts a sum of money
the amount of which is to be determined herein-
after at the compliance stage of this proceeding
in the manner explained in the section of the
Board's Decision and Order entitled "The Rem-
edy"
WE WILL make whole employees in the appro-
priate unit at the Jacksonville warehouse for
losses sustained in the totality of their wage and
fringe benefit levels resulting from our impeding
of the normal course of collective bargaining by
virtue of our unfair labor practices herein, said
amounts, if any, to be computed in the manner
set forth in the section of the Administrative
Law Judge's Decision entitled "The Remedy "
WINN-DIXIE STORES, INC
DECISION
STATEMENT OF THE CASE
1425
JOEL A HARMATZ, Administrative Law Judge This case
was heard in Jacksonville, Florida, on January 14 through
21, March 5 through 8, and April 8 through 12, 1974 The
charges were filed November 21, 1969, with amendments
thereto filed on January 30 and February 17, 1970 The
complaint, however, did not issue until October 30, 1973 It
alleged that between May 21, 1969, and various dates in
1973, Respondent violated Section 8(a)(1) by promulgat-
ing, maintaining, and enforcing an unlawful no-solicita-
tion-no-distribution rule, by promising and granting ben-
efits, by warning employees to desist from union activity,
and by encouraging employees to revoke dues-checkoff au-
thorizations, and Section 8(a)(5) by unilaterally changing
terms and conditions of employment, by refusing to com-
ply with the union requests for information relevant to col-
lective bargaining, by refusing the Union the right to con-
duct a timestudy through an engineer employed by the
Union, and an mplant investigation of safety and sanitary
conditions, and by unilaterally furnishing names and ad-
dresses of unit employees to a private insurance company
to allow the latter to solicit insurance sales among unit
employees and then deducting premiums for the insurance
sold from employees' paychecks The complaint further al-
leges that Respondent violated Section 8(a)(1), (3), and (5)
of the Act by refusing the Union's request that unit em-
ployees be included in the Respondent's profit sharing pro-
gram, and by causing forfeiture of employee profit sharing
accounts The Respondent duly filed an answer denying
the commission of any unfair labor practices At the close
of the evidentiary portion of the hearing, the General
Counsel presented oral argument, and thereafter briefs
were filed by the Charging Party, Respondent and the
General Counsel
Upon the entire record, including my observation of the
witnesses and their demeanor while testifying, and careful
consideration of the posthearing briefs, I make the follow-
ing
FINDINGS OF FACT
I RESPONDENT' S BUSINESS
Respondent is a Florida corporation, with its home of-
fice in Jacksonville, Florida, from which it is engaged in
the operation of retail grocery stores on a multistore basis
In the course and conduct of said operations, Respondent
annually derives gross revenues exceeding $500,000 and
annually ships goods and materials in excess of $50,000
from its Jacksonville, Florida, warehouse directly to points
outside the State of Florida
The complaint alleges, the answer admits, and I find that
Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act
1426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
Allied Food Workers District Union 433, Amalgamated
Meat Cutters and Butcher Workmen of North America,
AFL-CIO, is, and at all times material has been, a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
This case involves a longstanding controversy between
Winn-Dixie and the Meat Cutters Union growing out of
the latter's representation of employees at Respondent's
Jacksonville warehouse.
Respondent maintains retail stores and related support
facilities in some 11 States, where it employs a work force
numbering some 30,000. Winn-Dixie's hostility to employ-
ee organization at its various locations and its frequent dis-
regard of their statutory rights is well documented in the
various volumes of the NLRB reports. Indeed although
Winn-Dixie has bargained and executed contracts with
unions at several of its facilities, the present proceeding
involves the only remaining unit of employees with union
representation in the entire Winn-Dixie enterprise.
Briefly, the history of bargaining involved here shows
that the Union in 1963 first began an organization cam-
paign l among the warehouse employees in Jacksonville.
Ultimately the Union, on May 5, 1966, was certified as
their exclusive bargaining representative.2
Some 2 years after the certification, on May 16, 1968, the
Respondent and the Union executed their first collective-
bargaining agreement, which had a scheduled expiration
date of May 15, 1969. During the term of that agreement,
and within the "open period" thereof, a decertification pe-
tition was filed on March 17, 1969. An election was con-
ducted on that petition on July 23, 1969, with the Union
again designated as majority representative, and again cer-
tified as such on July 31, 1969. One segment of the present
complaint relates to independent 8(a)(1) violations, attrib-
uted to the Employer in the course of its effort ' to oust the
Union through the July 1969 election.
Following this election, the Union and Respondent com-
menced negotiations for a new contract in August 1969.
The Union at that time sought wide scale revisions of the
prior contract, and generally it is fair to state that Respon-
dent simply sought extension of the earlier agreement. Fi-
nally, after 18 negotiation sessions, a new I-year contract
was executed on February 6, 1970. In the course of these
negotiations, on November 21, 1969, the original charge
i For an accounting of Winn-Dixie unfair labor practices in the course of
this campaign, see Winn-Dixie Stores, Inc, 153 NLRB 273 (1965), and the
civil contempt proceeding reported at 353 F 2d 76 (C A 5, 1965)
2
The certified unit consists of all employees engaged in the receiving,
shipping, and processing of all food and sundry products at the Employer's
warehouse at Jacksonville, Florida, excluding all employees in the meat and
cheese processing and packaging department, all garage and mechanical
maintenance employees, carpenters, regular maintenance personnel, truck-
drivers, and helpers, office clerical employees, guards and supervisors as
defined in the Act
giving rise to this complaint was filed. Following the filing
of this charge, two amended charges were filed, with the
last dated February 17, 1970.
Upon expiration of the 1970 contract, after just two ne-
gotiation sessions, the parties on February 6, 1971, execu-
ted a successor contract also for a 1-year term.
Following expiration of that contract, another decertifi-
cation petition was filed on April 7, 1972, in Case 12-RD-
245. Thereafter on October 30, 1973, while that decertifica-
tion proceeding was still pending, the complaint issued on
the instant charges.3 The Regional Director subsequently
dismissed that petition without a hearing, pending determi-
nation of the alleged unfair labor practices.
On January 18, 1974, the Board, through its Deputy Ex-
ecutive Secretary, noting the dissent of Member Kennedy,
issued a Ruling on Administrative Appeal, in effect, up-
holding the Regional Director's administrative dismissal of
the decertification petition in Case 12-RD-245. The Board
denied the appeal from the Regional Director' s dismissal
on grounds that, in view of the issuance of the instant com-
plaint, "there is no reasonable cause to believe that the
instant petition at this time raises a real question concern-
ing representation, within the meaning of Section 9 of the
Act."
In the interim, after a hiatus in bargaining prompted by
the decertification petition, the parties again met beginning
on December 22, 1972. Thereafter, they negotiated on
about 17 different occasions until the January 10, 1974,
session, which was held just 4 days prior to the opening of
the instant hearing. To date, I have received no notification
that the recent bargaining has successfully concluded with
execution of a new contract, nor have I been advised that
bargaining is still in progress.
B. The Issues
This case presents a host of separate unfair labor prac-
tice issues, dating back to the preelection campaign in
1969, and extending through the 1973 negotiations which
remained in a continuing state through the course of the
instant hearing.
A number of independent 8(a)(1) allegations are in-
volved. Other than to state that these alleged violations are
confined to the years 1969 through 1971, no useful purpose
would be served by at this point again outlining the various
alleged offenses involved here; they will be treated immedi-
ately below.
The independent 8(a)(5) violations stem essentially from
3 The delay between the filing of the charges and issuance of the com-
plaint has been attributed to abortive settlement efforts I note that the
complaint was issued in this case after the Charging Party instituted a man-
damus action against the General Counsel on March 12, 1973, in the United
States District Court, Middle District of Florida, Jacksonville Division,
seeking to compel the General Counsel to act on its pending charges
On September 21, 1972, various employee supporters of the decertifica-
tion effort filed suit in the U S District Court for the Middle District of
Florida, Jacksonville Division, seeking to compel the Board to process the
petition in Case 12-RD-245 Michael Bishop, et at v N L R B, No 72-705-
CIV-JS At that time in accordance with Board policy, action on the peti-
tion had been held in abeyance pending the General Counsel' s determina-
tion as to whether a complaint would issue on the instant charges The civil
suit apparently is still pending, and probably now involves a challenge to
the Board's having dismissed the petition on January 18, 1974
WINN-DIXIE STORES , INC. 1427
the 1969-70 contract negotiations and involve, in the main,
various instances of alleged unilateral changes in terms and
conditions of employment as well as refusals to provide
relevant bargaining data to the Union or interference with
the Union's opportunity to obtain such information.
Although not an issue specified in the complaint, the
Charging Party strongly argues that Respondent, since the
decertification election in 1969, and despite the subsequent
execution of two collective-bargaining agreements, has
bargained in derogation of the Union 's status as bargaining
representative, has acted as if the Union did not exist at all,
and has engaged in a flagrant course of conduct geared to
undermine the Union-all motivated by a desire to rid it-
self of the Union at the Jacksonville warehouse. When this
issue was articulated by counsel for the Charging Party, it
was apparent to all involved in the proceeding that the
theory put forth gave rise to a surface bargaining issue,
placing in controversy Respondent's subjective state of
mind as evidence by its conduct both at and away from the
bargaining table from 1969 to the present. Despite the
sweeping scope of such an inquiry , and its obvious impact
on the duration of the hearing, the General Counsel includ-
ed no allegation in the complaint to that effect , and sought
no amendment which would incorporate the surface bar-
gaining issue into the pleadings . Nonetheless, during the
early stages of the hearing, the General Counsel did repre-
sent that I would be free to make a surface bargaining
finding if the total record supported the contentions of the
Charging Party. Based on this representation, it was my
opinion that the General Counsel, in practical effect, had
taken a position which rendered the Charging Party's con-
tention a viable issue in this case . Cf. Jefferson Chemical
Company, Inc., 200 NLRB 992 (1972). Respondent was
duly made aware of my views in that regard and was ac-
corded every opportunity to defend against the Charging
Party's assertion . In these circumstances , I regard the ques-
tion of whether or not the Company was guilty of subjec-
tive bad faith in its dealings with the Union since 1969 as
one of the key questions presented in this proceeding.
Finally the complaint alleges that Respondent, since
1969, violated Section 8(a)(1), (3), and (5) of the Act by its
policy of excluding from the Company's profit sharing
plan, employees who are covered by a union pension plan.
Briefly, by way of background, the record shows that prior
to execution of the February 6, 1970, collective-bargaining
agreement , members of the bargaining unit were eligible to
participate in the Company's profit sharing plan. At that
time, the plan itself, foreclosed participation by employees
covered by a union pension plan. During the 1969-70 ne-
gotiations and at all succeeding negotiations this exclusion-
ary policy was implemented by company negotiators, who
informed the Union that the company would agree to
either its profit sharing plan or the union pension plan, but
not both. The 1970 agreement for the first time provided
for a union pension plan, and in consequence unit employ-
ees lost their profit sharing eligibility and those who had
achieved the status of participants, sustained a forfeiture of
their profit sharing accounts. It is claimed that the
Company's insistence upon exclusion of unit employees
from its profit sharing plan, its refusal of the Union's re-
quest for their inclusion, and its thereby causing forfeiture
of participation and divestiture of vested profit sharing ac-
counts, violated Section 8(a)(1), (3), and (5) of the Act.
Remedially , at stake in this proceeding , are the conven-
tional cease -and-desist and affirmative orders. Further, the
General Counsel and Charging Party request full restora-
tion of unit employees to the profit sharing plan as if they
had been eligible continuously since 1970. In addition, the
Charging Party claims that the flagrant unfair labor prac-
tices involved here as well as Respondent 's past record of
hostility to employee organizational rights, warrants ex-
traordinary remedies , including compensation to the
Charging Party for its organization and litigation expenses.
Also involved is the question of whether alleged 8(a)(5)
violations were committed within the certification year fol-
lowing the 1969 election, and , if so, whether present exten-
sion of the certification year would effectuate statutory
policies, despite the fact that two contracts were subse-
quently executed by the parties. This, and also the question
of whether Respondent engaged in other unfair labor prac-
tices of a type tending to induce employee defections from
the Union and their decertification activity, will bear crit-
ically upon the question of whether the Union 's status as
incumbent representative will be assured against the possi-
ble raising of a question concerning representation of any
time prior to the remedying of any and all such unfair
labor practices.
C. Interference, Restraint, and Coercion 5
1. The no-solicitation and no-distribution rule
At the hearing, the parties stipulated , that , at least be-
tween May 21, 1969, and March 6, 1970, Respondent pro-
mulgated , maintained , and enforced the following:
SOLICITATION OR LITERATURE
DISTRIBUTING
1. No employee shall solicit any other person em-
ployed at the same location during the work-time of
either or at any time in the work or public areas of
company property. No employee shall solicit at any
time on company property any other person em-
ployed by the company at a different location. No
person (employee or non-employee ) shall distribute
5 The Charging Party, in its brief , for the first time argues certain indepen-
dent violations of Sec 8 (a)(1) which were neither alleged nor otherwise
asserted as unlawful by the General Counsel These contentions include (1)
allegedly coercive threats contained in antiunion propaganda during the
1969 election campaign , (2) surveillance of employee Webb's union activi-
ties, and (3) Respondent 's prepara tion and custody of dues-checkoff revoca-
tion forms Respondent plainly was afforded no opportunity to brief these
issues, and it is my opinion that while due process requires such an opportu-
nity, it would not effectuate statutory policy to further delay processing this
case in order that an additional brief addressed to these issues might be
filed Even were I to consider the merits of these issues , however, a serious
question would exist as to whether such action would interfere with the
General Counsel's exclusive control over the complaint In this regard the
General Counsel stated on the record that "any of the evidence that we
adduce was to those allegations, and only those allegations of the com-
plaint" In declining to consider Charging Party 's additional allegations, I
do wish to note that the evidence in question has been considered and relied
on in part in assessing the state of mind of Respondent throughout the
period in question here
1428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
literature at any time on company property, and no
nonemployee shall be permitted to solicit at any
time on company property, or during the work-time
of the employee when off company property.
2. Company property shall include all premises
owned, leased, or being used by the Company for
business purposes, including parking lots, retail
stores, warehouses, office buildings, garages, manu-
facturing plants, etc.
3. Solicitation or literature distribution shall be under-
stood to include, but not be limited to, the follow-
ing: Subscriptions for magazines or other periodi-
cals, insurance, membership in organizations,
including labor unions, cash donations; and the dis-
tribution of any written matter, except when specifi-
cally authorized by the company.
WINN-DIXIE STORES, INC.
Insofar as said restrictions apply to solicitation, employ-
ees, absent authorization from the Respondent, are ex-
pressly precluded from engaging in this form of protected
activity on company property during their nonworking
hours. Similarly with respect to distribution of union litera-
ture, employees, absent authorization from Respondent,
are precluded from engaging in such activity in nonwork-
ing areas,6 though on their own time. Under settled author-
ity such limitations on union solicitation and employee dis-
tribution of union literature "must be presumed to be an
unreasonable impediment to self-organization and there-
fore discriminatory in the absence of evidence that special
circumstances make the rule necessary in order to maintain
production or discipline." ' There being no showing that
the above interference with union activity was justified by
special circumstances, I find that Respondent violated Sec-
tion 8(a)(1) by promulgating, maintaining, and enforcing
the unlawfully broad no-solicitation and no-distribution
rules set forth in the above text.
In what, perhaps, represents an attempt to amplify
Respondent's enforcement of the above unlawful policy,
the complaint alleges a further violation of Section 8(a)(1)
based on a confrontation on or about August 16, 1969,
between C.G. Parsons, Respondent's superintendent of
services at that time, and employee Lawrence Webb 8 in
which Parsons allegedly warned Webb "to desist from
union activities and to cease soliciting for the Union."
In this regard the facts show that, after recertification of
the Union in 1969, negotiations on a new contract began in
August of that year. Webb was an employee member of the
Union's negotiating committee. After attending a negotiat-
ing session on August 5, 1969, he returned to work. In his
6 The definition of company property set forth in the above rule is broad
enough to include such nonworking areas as restrooms , parking lots, break,
and lunch areas
7 See Peyton Packing Company, Inc, 49 NLRB 828, 843-844 (1943), and
Republic Aviation Corporation v N L R B, 324 US 793, 803-804 (1945),
with respect to restrictions upon the right to engage in union solicitation,
and Stoddard-Quirk Manufacturing Co, 138 NLRB 615 (1962), for the stan-
dards governing employee distribution of union literature
8 Supermtend=nt of services appears to be the position occupied by the
highest ranking operating official in the warehouse with J R. King, the
division manager , his immediate superior
possession was a folder or notebook which contained
notes 9 he had taken at the negotiating session . Webb, prior
to returning to work, left the "notes" on a table in the
break area. Later, he observed one Charles Soles, a conced-
ed supervisor,10 going through the material left by Webb in
the break area. Webb, having observed this, sought out
Drug Superintendent Koontz, reporting that Soles was
going through his personal belongings. Webb urged
Koontz to instruct Soles not to tamper with his belongings.
Koontz after discussing the matter with Soles apparently
was satisfied that Soles did not know that the material
found in the break area belonged to Webb, and apparently
decided that Webb had acted improperly in "jumping" on
Soles for simply doing his duty; i.e., attempting to identify
what may well have been a misplaced business item. Ac-
cordingly, Koontz instructed Webb to return to work, but
then called for Service Superintendent Parsons.
On Parsons' arrival, Webb was called back to Koontz'
office. Koontz at that time reported to Parsons that Webb
had flared up at a supervisor without justification. What
transpired next is the subject of conflicting testimony. Ac-
cording to Webb, Parsons told him that he was tired of
Webb going around doing all this union stuff, and further
stated "Webb, I want you to stop this union stuff." Parsons
also referred to the above solicitation rule posted on the
bulletin board and told Webb to read it.
Neither Parsons nor Soles testified. According to
Koontz, however, Parsons simply informed Webb that
Soles acted properly and that Parsons verbally repri-
manded Webb for his unjustified reaction towards a super-
visor. According to Koontz, Webb became upset, and as-
serted that he was being picked on because of his union
activity. Parsons allegedly responded by stating that he
didn't want any talk about the Union, that the incident had
nothing to do with the Union, and that the issue was limit-
ed to why Webb jumped on a supervisor for doing his job.
Koontz relates that this was the only reference to the
Union in the entire incident.
I credit Webb over Koontz and find that he was instruct-
ed to refrain from union activity by Parsons. Koontz' ver-
sion was not persuasive and I consider the account of
Webb as the more probable. Most significant is the fact
that Koontz substantiated Webb's testimony that Parsons
in the course of this encounter referred Webb to the posted
no-solicitation and no-distribution rule." Such a reference
9 The evidence is in conflict as to whether the notes were contained in a
folder, as testified to by Webb or in a notebook similar to those which are
stock items in the warehouse and used by company personnel in the perfor-
mance of their duties, as related by William C Koontz, the drug and house-
ware superintendent . The evidence is also in conflict as to whether Webb's
name was written on the top of the notebook or folder, as the case may be
Neither issue need be resolved , for they present purely collateral credibility
conflicts no more susceptible to determination than the ultimate question of
credibility on which this allegation turns
10 Soles , before his advancement to a supervisory position, was the em-
ployee sponsor of the decertification petition which led to the election con-
ducted on July 23, 1969
ii Koontz , in order to enforce his testimony that Parsons made no refer-
ence to the Union other than that set forth in the prior paragraph, points to
the Company's "clear cut" policy that supervisors are not to discuss the
Union in the presence of employees However, I note that the unlawful
statement imputed to Parsons by Webb would not necessarily seem afoul of
that policy, for it is a fair assumption that supervisors were not precluded
from enforcing, by direct warnings, employee violations of the Company's
WINN-DIXIE STORES, INC.
is inconsistent with Koontz' testimony that Parsons only
mentioned the Union while ruling out its relevance to the
entire incident. This concession by Koontz negates the im-
pression he otherwise attempts to create to the effect that
Parsons was totally unconcerned with Webb's union activi-
ty. For there is no suggestion that Webb, apart from his
union activity, engaged in any conduct which would have
provoked this reminder of plant policy regarding solicita-
tion on company property.12 In sum I am satisfied that
Parson's conceded reference to the no-solicitation rule be-
trays the effort by Koontz to portray Parsons as having
made no restrictive statements concerning union activity,
and I find that said reference is consistent with the account
of Webb and convincingly demonstrates the truth of his
account. Accordingly, I find that Parsons, in effect, in-
structed Webb to cease engaging in union activity, and that
Respondent thereby violated Section 8(a)(1) of the Act.13
2. Preelection promises and grants of benefits
During the period preceding the decertification election
of July 23, 1969, Respondent engaged in a vigorous cam-
paign against the Union. As a part of this effort, on or
about July 17, 1969, Respondent conducted separate din-
ner meetings for unit employees 14 in the warehouse cafete-
ria. Employees were paid for time spent at the meetings
and provided a steak dinner. As each employee entered the
cafeteria, they signed their name to a slip of paper which
was placed in a container to facilitate a drawing for door
prizes. After the dinner, employees were subjected to an-
tiunion propaganda. Following the speakers the drawing
was held,15 with prizes awarded such as rifles, watches, vac-
uum cleaners, radios, and other gifts of like value.
Several independent violations of Section 8(a)(1) are as-
serted with respect to these dinner meetings. First, the
General Counsel and Charging Party argue that the con-
duct of a meeting for antiunion purposes, at which employ-
ees receive such benefits as compensation for time in at-
declared policy against union solicitation The statement attributed to Par-
sons through this allegation is consistent with Respondent 's no-solicitation
rule and could be construed as an implementation of the plant policy em-
bodied therein
a The probability of Webb's testimony is enhanced by the undertones of
unionism which underly this entire incident The situation finds its origin in
a clash between a former antiunion employee and a union adherent Even
assuming that Webb's conduct called for a reprimand, Koontz' handling of
the matter suggests a sensitivity towards Webb's union activity, for apart
from that, his conduct was hardly so serious as to preclude an experienced
department head such as Koontz from independently disposing of the mat-
ter His failure to do so and his calling in Parsons , the ranking management
functionary in the warehouse , suggests that far more was involved than
Webb's accusation against Soles
13 Insofar as this additional violation might be regarded as coextensive
with the previously found 8(a)(1) violation predicated upon enforcement of
the restrictive no-solicitation and no-distribution rules , I do not regard it as
cumulative , since Parsons statement might well have been interpreted as
extending to union activity conducted off company property
14 The size of the unit in relation to the limited number of employees that
could be accommodated in the cafeteria required the scheduling of several
such meetings for employees on the different warehouse shifts The several
meetings were conducted under the same conditions with identical format.
15
According to Adam Lee Moss, a former employee, and George Mann,
Jr, an incumbent employee, called by the General Counsel, about 20-25 of
the approximately 100 employees in attendance were recipients of door
prizes
1429
tending, a dinner, and door prizes, standing alone, consti-
tutes a grant of benefits which unlawfully interferes with
the employee's right to make a free and uncoerced choice
of a bargaining representative.16
From Board precedent, it appears that the lawfulness of
such beneficent gestures during a preelection campaign
turns on a matter of degree ; namely, whether the amenities
bestowed "would reasonably tend to have the effect that
... [employees] . . . would feel an obligation to vote
against the union , or otherwise impair their exercise of a
free choice." 11 Thus, in Hollywood Plastic, Inc., in accor-
dance with that test, a raffle of a single prize valued at or
about $80 on the day of the election, without any other
attendent benefits, and where the chance of winning was 1
out of 95, was held not to be unlawful. In Buzza-Cardozo, a
division of Gibson Greeting Cards, Inc., 177 NLRB 589
(1969), the employer's distribution, on the day before the
election , of envelopes containing 75 cents in coins, and a
raffle for an $84 prize was regarded as "gimmicks," whose
distribution failed to impair free choice. A like result was
reached in Jacqueline Cochran, Inc., 177 NLRB 837 (1969),
where the Board declined to set aside an election despite a
union's gift of a turkey to each employee, at a Christmas
party, where food and alcoholic beverages also were pro-
vided free of charge to,employees. In Fashion Fair, Inc.,
Cinbo, Inc., and Lois Price of Ohio, Inc., 157 NLRB 1645,
1646 (1966), the Board declined to find an 8(a)(1) violation
with respect to a preelection Christmas party held during
working hours, which exceeded the lavishness of past af-
fairs, and included door prizes, gifts for children, food, and
a dance band, but which was devoid of either antiunion
propaganda or reference to the union.
On the other hand, the Board in Preston Products Com-
pany, Inc., 18 approved a Trial Examiner's finding of an
8(a)(1) violation based on the employer's holding of a re-
ception and banquet, 2 days before an election, with hard
and soft liquid refreshments, corsages, and band, and
watches distributed to employees.
Although the question is not entirely free from doubt, I
am of the opinion that the dinner meeting involved here, in
terms of its impact upon employee choice, would parallel
that in Preston Products Company, Inc., supra, more closely
than the other cited cases. Here the dinner meeting, as di-
rector of employee relations, James Cameron, conceded,
was conducted as a forum for the announcement of new
benefits and antiunion dogma.19 Employees who attended
16 Charging Party and Respondent , in their respective briefs , dispute
whether a 1961 dinner meeting conducted at the Jacksonville warehouse
was found by a Trial Examiner , with Board approval, to have been an
independent violation of Sec 8 (a)(1) See Winn-Dixie Stores, Inc, 138
NLRB 1355 , 1364 (1962) In my view, that decision is ambiguous as to
whether or not such a violation was found It does appear that the com-
plaint in the earlier case alleged an independent 8(a)(1) violation based on
the employer 's "presenting gifts' to employees On the other hand, the Trial
Examiner in that decision does not specifically isolate his findings in a
manner making clear his intentions with respect to the dinner meeting, and
the remedial order fails to include provisions which would specifically or by
interpretation cover such a violation On balance , I regard this earlier deci-
sion as too vague to be of any precedential value.
:7 Hollywood Plastics, Inc, 177 NLRB 678, 681 (1969)
15 158 NLRB 322, 331-335 (1966)
19 In his opening remarks , J R King at the dinner meeting, stated "We
have asked you men to come here to dinner tonight so we could have the
Continued
1430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
received 3 hours' pay, were eligible for door prizes, and
furnished a steak dinner. In the circumstances, it is my
opinion the dinner meeting involved the exercise of eco-
nomic influence to impress employees with the Employer's
interest in a "no" vote under conditions, intended to dem-
onstrate management's goodheartedness. As it is my opin-
ion that the dinner meeting was conducted under circum-
stances which would tend to inspire uncommitted
employees to sense an obligation to support management's
position in the election. I find that Preston Products Compa-
ny, Inc. supra, is controlling, and that Respondent thereby
violated Section 8(a)(1) of the Act.20
The complaint further alleges an independent violation
of Section 8(a)(1) based on the announcement, at said din-
ner meetings, of increased hospitalization benefits.
It is undisputed that James Cameron, director of em-
ployee relations, at that time announced that, without cost
to employees, new insurance benefits would be granted al-
lowing for increases in lifetime major medical benefits, dai-
ly room and board benefits, and increases in allowances
for extra hospital charges. It is true, as Respondent's brief
observes, that Cameron, in announcing the new benefits,
made no reference to the Union or the upcoming election.
However, the improvements in benefits were mentioned in
the context of antiunion propaganda delivered to employ-
ees at that same dinner meeting. Thus, as employees en-
tered the cafeteria that evening, they were handed a letter,
signed by J.R. King and C. G. Parson, which was plainly
antiunion in tenor, and was calculated to drive home the
point that employee benefit programs, with specific refer-
ence to insurance, were better than those the Union could
offer. In addition, Cameron was followed by J.R. King to
the platform, who delivered a strongly worded antiunion
speech, stressing the benefits that Winn-Dixie had provid-
ed in contrast with the Union's collection of dues, without
delivering on promises. In such circumstances, Cameron's
failure to refer to the Union, fails to detract from the fact
that the announcement of the new benefits was woven into
and linked with the antiunion format of the dinner meet-
ings.
That these benefits were announced to influence em-
ployee choice is evident from the timing. Thus, the dinner
meetings were held on or about July 17. The announce-
ment was made at that time despite the fact that the bene-
fits were not to be effective until August 1. It will be re-
called that the election was scheduled for July 23. No
explanation is offered as to why announcement of these
new benefits was not deferred until after the election. I am
satisfied that Respondent timed this announcement as a
dramatic, specific, and unlawful illustration of the more
general theme contained in the antiunion propaganda as to
Winn-Dixie benefit programs, and was plainly calculated
to restrain employees in the exercise of their right freely to
designate a bargaining representative. I find that Respon-
dent thereby violated Section 8(a)(1) of the Act.21
opportunity to discuss the union election which involves you, me, Winn-
Dixie and the Butcher Workers Union
20 See , e g , Crown Laundry & Dry Cleaners Inc, and Gulf Linen Service,
Inc, 160 NLRB 746, 758 (1966)
21 Respondent defends Cameron's announcement on grounds that (1) the
announcement related to a companywide increase in hospitalization bene-
The complaint further alleges that a letter sent to unit
employees dated July 21, 1969, over the signature of King
and Parsons, contained unlawful promises of improved
benefits. The text of that letter states as follows:
At long last the National Labor Relations Board has
made arrangements for a secret election. The purpose
of the election is to determine if you want the union to
represent you. The union has claimed the right to rep-
resent you for many years. It was not until now that
you have the right to speak for yourselves.
You should make your decision after a study of the
facts.
1. What has the union been able to do for me?
2. Have I made the progress that I should have made?
3. Are my wages, hours and working conditions as
good as non-union warehouses?
If your answer to any of these questions is "NO" then
I feel you should vote "NO" in the election.
Because we have been required to spend so much time
and effort dealing with the union, we have not been
able to deal with our own warehouse problems. If you
vote "NO" then this time will be available for these
things. I think you have given the union ample time to
produce. They have not. Let's try another method
now. Let's try working together instead of against each
other.
I can live without the union-you can live without the
union-but we can't live without each other. Let's try
it by ourselves. VOTE "NO" in the election.
VOTE RIGHT-VOTE "NO"
Apparently, the General Counsel and Charging Party
equate the reference to "problems" as used in the fourth
paragraph of said letter, with preexisting benefit levels, and
construes the balance of that paragraph as an indication
that employment terms would improve if the Union were
defeated. In my opinion, the letter is vaguely worded and
fails to convey, even through implication, the idea that ex-
traordinary benefits would follow rejecting the Union. I
view the letter as within the ambit of Section 8(c) and as a
legitimate exercise of the right of free speech. Accordingly,
I shall recommend dismissal of this allegation of the com-
plaint.
fits, and (2) the changes were made pursuant to prior negotiations between
Respondent and the insurance carrier which covered a 9- to 10-month peri-
od Neither, in my opinion, privileged the Respondent prematurely to an-
nounce the new insurance benefits as part of its campaign to oust the
Union The fact that the benefits were granted on a companywide basis is
plainly immaterial as this hardly furnished an acceptable explanation for
the Company's failure to defer the announcement until after the election
Scanthn Electronics, Incorporated, 201 NLRB 888 (1973) Nor do the prior
negotiations with the carrier rise to a level which would permit employer
assertion of this benefit during the election campaign Said evidence hardly
establishes that the Company, prior to the election campaign, committed
itself or otherwise became obligated to confer these benefits Indeed
Respondent's own evidence shows that the Company did not approve these
changes until July 10, 1969, well after the filing of the petition on March 17,
1969, and only 2 weeks before the election See Newman-Green, Inc, 161
NLRB 1062, 1073-74 (1966), The May Department Stores Company, 191
NLRB 928 (1971)
WINN-DLXIE STORES, INC 1431
3 Solicitation of membership withdrawals
The complaint alleges an independent 8(a)(1) violation
based on the 1972 conduct of James Corley, Respondent's
superintendent of services, whereby Corley is alleged to
have unlawfully induced an employee to revoke his dues-
checkoff authorization
In support of this allegation, employee Homer Lee Aus-
tien testified that in the middle of 1972, he approached
Corley in the interest of borrowing $100 from the Compa-
ny Corley responded in words to the effect that he didn't
see why Austien would need a loan when he could afford
to pay union dues, and asked Austien if he would sign a
checkoff revocation slip, which according to Austien, Cor-
ley told him was "for to get out of the Union" Austien
signed the slip, because, as he asserts, he felt it was neces-
sary for him to do so in order to get the loan After Austien
signed the slip, Corley said "Well, all right, Austien, I'll see
what I can do for you " The check was delivered to Austien
2 days later
Corley, while conceding that he participated in a conver-
sation with Austien in December 1971 22 concerning a
loan, nonetheless denies that he raised the union-dues is-
sue According to Corley, when Austien requested the loan,
he first advised Austien concerning the desirability of
properly budgeting his money, and then tried to discourage
Austien from borrowing sums which would significantly
reduce his take-home pay Austien, apparently agreeing
with Corley's observations concerning take-home pay, then
stated that he also had his net return reduced by payment
of union dues, which he had to continue if he was to retain
his insurance Corley then pointed out to Austien that he
was incorrect in assuming that dues payment was a condi-
tion for continued insurance coverage, explaining that all
employees in the bargaining unit enjoy such coverage irre-
spective of union membership Austien then said that in
that case he did not want to pay the dues and asked how he
could avoid doing so Corley then obtained a checkoff re-
vocation slip from the "personnel trainer," which Austien
signed 23
22 This is the date appearing on Austien s checkoff revocation card and is
a more accurate indication of when this incident occurred than Austien s
testimony
23 The form signed by Austien reads
I hereby request Winn Dixie NOT to deduct $6 00 from my
pay each month for union dues
This request to remain in force until revoked by me in writing
Employee
Dated
Contrary to the Charging Party I see nothing sinister in management
preparation and maintenance of such forms if merely made available
to employees who express their desire to suspend checkoff Checkoff
authorizations give rise to an agency relationship between the employer
and employee which according to law must be subject to revocation
by the latter at regular intervals See Sec 302(c)(4) of the Act Further
more the Charging Party gains no support from Winn Dixie Stores
Inc and Winn Dixie Greenville Inc 128 NLRB 574 588 (1960) which
involved management preparation and custody of membership with
drawals Membership withdrawals hardly have the foundation of legiti
macy inherent in checkoff authorizations and present entirely different
problems under Sec 7 of the Act
Conceding that Corley was a high-ranking functionary
within a management structure that was hardly receptive to
employee organization, I cannot believe that Corley would
have made the statements attributed to him by Austien At
the time of this incident, the present unfair labor practice
charges and amendments thereto were on file The conduct
Austien describes represents a crude, unsophisticated inter-
ference with statutory rights of a type which, considering
Corley's past experience, I doubt he would have risked At
the same time, from my observation of Austien, I was not
impressed with his reliability as a witness, either in terms of
his capacity for recollection or his ability to perceive accu-
rately the significance of statements made as part of the
type of incident involved here I credit Corley, 4 and find
that he merely explained to Austien that continued insur-
ance coverage was not contingent on continued payment
of dues, and then on Austien's request, simply secured the
checkoff revocation for the latter's execution Accordingly,
as such assistance, on request of an employee, is not unlaw-
ful I shall recommend dismissal of this allegation of the
complaint 25
D Refusal To Bargain Unilateral Action and Denial of
Information and Refusal To Provide Information
1 Operational changes
The complaint alleged that Respondent independently
violated Section 8(a)(5) and (1) of the Act by making cer-
tain unilateral changes in working conditions in July, Au-
gust, September, and October 1969, all of which allegedly
resulted in job dislocation of employees In this connec-
tion, I note that, prior to these changes, the first collective-
bargaining agreement between the parties had expired on
May 16, 1969 That contract included as article XVI and
entitled, "Management Rights," the following
A The management of the Company's warehouse
and the direction of its working forces, including the
right to establish new jobs, starting times, the
amount of and type of work to be performed by its
employees, abolish or change existing jobs, increase
or decrease the number of jobs, temporarily or per-
manently, change materials, processes, products,
equipment or shift any of the processing, packaging
warehousing and delivery, to discontinue, tempo-
rarily or permanently, in whole or in part, its busi-
ness of packaging, warehousing and delivery, to in-
crease or decrease the number of working hours per
day or per week shall be vested exclusively in the
Company and not subject to arbitration The Com-
pany shall be the sole judge of applicants for em-
24 In so resolving credibility I have not overlooked testimony of a former
employee Wesley Phillips to the effect that some time in 1970 or 1971 he
asked Foreman Nix for a loan and Nix said he couldn t have a loan be
cause Phillips was Union However I find this testimony incredible for I
was not impressed with Phillips demeanor and am puzzled as to why if this
incident actually occurred Phillips on his own testimony was not deterred
from subsequently seeking loans from Nix which he did and which loans
were in fact granted
25 North American Aviation Inc 163 NLRB 863 (1967) KONO-TV-Mis
Sion Telecasting Corporation 163 NLRB 1005 (1967) Consolidated Rebuild
ers Inc 171 NLRB 1415 (1968)
1432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployment , their qualifications and physical fitness.
Subject to the provisions of this Agreement the
Company shall have the right to schedule and as-
sign work to employees to be performed , recall em-
ployees who are laid off, demote, suspend , disci-
pline and discharge for any cause not in violation of
this Agreement.
B. The Company reserves and retains in full and com-
pletely any and all management rights, prerogatives
and privileges including but not limited to de-
termining the amount of work to be performed by
its employees and the work to be performed, the
hours to be worked, to direct, and control ware-
house operations except to the extent that such
rights prerogatives and privileges are specifically
limited by this Agreement. These rights reserved by
management and not specifically limited by this
Agreement shall not be the subject of arbitration.
Article XXIV, entitled "Waiver," of that agreement, pro-
vides as follows:
The Company and the Union, for the life of this
Agreement, each voluntarily and unqualifiedly waives
the right, and each agrees that the other shall not be
obligated to bargain collectively with respect to any
subject or matter referred to or covered by this Agree-
ment, or with respect to any subject or matter not spe-
cifically referred to or covered in this Agreement.
Though the operational changes in issue came after expi-
ration of the contract, it is my opinion that Respondent,
nonetheless was free to assert that by virtue of article XVI
these operational changes constituted a legitimate exercise
of management prerogatives contractually established as
part of the custom and practice in the warehouse. The
Board, in Shell Oil Company, 149 NLRB 283, 287 (1964),
held that despite the absence of a formal extension agree-
ment, the rights and duties of parties to collective bargain-
ing, during the hiatus between contracts , pending its re-
newal or renegotiation, have the right and obligation to
maintain existing conditions of employment . Here, as in
Shell Oil, the Union at the time of the changes in question,
had proposed significant modification in the preexisting
management prerogatives clause.26 But as stated in that
case, ". . . the Union's demand to bargain for a modifica-
tion or elimination of the Respondent's established prac-
tice did not suspend the Respondent's right to maintain its
established practice any more than a demand by the Union
to modify the existing wage structure would suspend
Respondent 's obligation to maintain such wage structure
during negotiations." 27 Accordingly, I find that these
26 The Union in August 1969, proposed the following substitute for the
management-rights clause in the former contract
The management of the business and the direction of the working
forces, including the right to control operations, the right to introduce
improved production methods , are vested in the Employer, provided,
however that these rights shall be exercised with due regard for the
rights of the employees and provided further that it will not be used for
the purpose of discriminating against any employee or to nullify any
part of this agreement
27 Shell Oil Company, supra, 289
clauses are highly material to assessment of whether the
Employer was entitled, by virtue of existing practice, to
unilaterally determine and make the various changes set
forth in greater detail immediately below .28
a. Renumbering the aisles in the warehouse
The parties stipulated that:
At least before September 25, 1969, the Company
changed the designation of the aisles in the warehouse
from a numerical to an alphabetical system and rea-
ligned the method in which merchandise was slotted
into the aisle 29
This change was effected without prior notice, and with-
out providing the Union with a reasonable opportunity to
bargain.
The facts show that the warehousing system in effect at
the Jacksonville warehouse is a floating slot system. There
are about 20 aisles in the warehouse , with slots alongside
where merchandise is stored. Under the floating slot sys-
tem, incoming merchandise is placed in slots where room is
available. Slots are constantly vacated and filled , with the
same merchandise rarely returning in the same slot.
To fill orders coming from Respondent 's retail store, em-
ployees, called "selectors ," are used . The merchandise is
stored in numbered slots. The selectors are given invoices,
on which appears the numbered location or slot in which
the merchandise is stored . A data processing system is uti-
lized perpetually to identify the location of different prod-
ucts in the warehouse.
Prior to the change in issue here, the slots were identified
by a consecutive number system only. However, some dif-
ficulty was anticipated under this system because the data
processing system could only go up to four digits. Eventu-
ally, with the various new products coming into the ware-
house, slots had to be established which could not be iden-
tified within the framework of the limited four -digit data
processing system. There ,lus' were not enough numbers
available to cover the needed slots.
To solve this problem, the Company invoked the com-
bined alphabetical numbering system complained of here.
Each aisle was given a letter of the alphabet with the con-
stituent slots within the sections given numbers from one to
three digits.
From the foregoing, it is clear that this change merely
involved a modification of the means by which slots were
28 The General Counsel , in his brief, argues that the management preroga-
tives clause cannot "be regarded as controlling" because of the intervening
election and recertification of the Union Although I have no intention to
give controlling weight to these clauses, no authority is cited in support of
any conclusion that said clauses are immaterial and I perceive of no rational
basis for finding that practices under a previously expired contract cease
because of an intervening election , nor can I conceive of any reason why an
employer should be prejudiced in his right to assert preexisting conditions
simply because the union in that election is recertified One thing simply has
nothing to do with the other
29 1 do not regard the last clause of the stipulation as agreement that in
consequence of this change , merchandise was shifted to different slots or
locations As will be seen , infra, any such inference is contrary to the weight
of the credible evidence , and would represent an unfair construction of the
intention of Respondent 's counsel in entering said stipulation
WINN-DIXIE STORES, INC 1433
identified from straight number to lettered aisles, with
numbered slots Selectors continued to be apprised of mer-
chandise locations by indication on the invoices, with no
other changes in the means by which selectors performed
their work
Considering the nature of the change, I am unwilling to
assume that it resulted in any significant detrimental im-
pact on unit employees Indeed no disadvantage to selec-
tors has been shown by the credible evidence material to
this issue I do not credit the testimony of Leroy Coleman,
whose employment with Respondent terminated in De-
cember 1969 with his discharge Coleman testified that
this change resulted in the shifting of merchandise, thereby
making it more difficult for selectors to efficiently perform
their duties, causing their failure to meet production stan-
dards and a loss of bonuses In finding this testimony unre-
liable, I was not persuaded by Coleman's capacity for an
assessment of whether shifts in merchandise were a result
of the renumbering or attributable to other factors under
the "floating warehouse" system 30 Nor do I regard as reli-
able, his testimony that the job performance of selectors
suffered as a result of this change I was not sufficiently
impressed with Coleman's recollection, or, in the light of
his prior discharge, his objectivity to accept Coleman's tes-
timony that performance ratings regularly posted in the
warehouse showed that renumbering made it more difficult
for selectors to perform their duties Aside from the fore-
going, I regard Coleman's testimony as implausible, since
not substantiated by other evidence that employees were
engaged in moving merchandise at the time of the
changes 31 Further, from my understanding of the new
numbering system, a shift in merchandise would not be a
logical consequence thereof 32
In sum, it is my conclusion that the alphabetical num-
bering system did not adversely affect the employees, and
indeed it would seem to me that once the aisle letters were
reduced to memory, the selectors would be able to operate
with greater efficiency in locating merchandise than was
their experience under the old system
The Board has repeatedly stated that the principles re-
stricting unilateral action "are not meant to be hard and
fast rules to be mechanically applied irrespective of the
circumstances of the case " Minor changes, which may
even increase work volume, but which are "within the com-
pass of the job duties the affected employees were hired to
30 It will be recalled that under the floating warehouse system which at all
times material was in effect at Jacksonville the location of merchandise is
constantly subject to change so as to permit effective utilization of space
31 Credible testimony established that if such merchandise shifts had been
made fork lift operators who were in the unit would have been used for
that purpose There is no evidence from any employee to the effect that he
or she was engaged in such activity at the time of the alleged changes
32 Albert Gore the Union s attorney and a principal spokesman for the
Union during negotiations testified that the numbering resulted in a loss of
bonuses and reprimands but that testimony was clearly hearsay and as such
was incompetent See Rochester Telephone Corporation 190 NLRB 161 fn 7
(1971)
The Charging Party s reliance on documented summaries of bonuses re
ceived by employees including selectors between February 1 and August
16 1969 is of no aid to this analysis They do not coincide with the time
period in which the revised numbering system went into effect and in any
event are too speculative insofar as they are offered to link any loss of
bonuses with the change in question
perform" may not be so clearly beyond a normal manage-
ment function as to require prior notice to and consulta-
tion with the Union Irvington Motors, Inc, 147 NLRB 565,
566 (1964), The Little Rock Downtowner, Inc, 148 NLRB
717 (1964)
Here much aside from the management-rights clause,
which specifically reserves as exclusive management pre-
rogative, the right to "change temporarily or perma-
nently processes ' the lettering of the aisles result-
ed in no detrimental impact on unit employees, and its
relationship to conditions of work was so negligible as to
be comparable to a multitude of everyday management
decisions, which, if deemed subject to a duty of notice and
prior consultation , would pose a serious interference with
the effective discharge of management authority, while at
the same time having no overarching salutary effect upon
statutory bargaining objectives I shall recommend dismiss-
al of this allegation of the complaint
b Shift changesfall of 1969
The Jacksonville warehouse is divided into three depart-
ments ( 1) grocery, (2) perishables , and (3) drug and house-
wares The original complaint alleged two shift changes as
unilateral 8(a)(5) violations , one occurring in the perishable
warehouse and the other in the grocery department Evi-
dence came into the record relative to additional shift revi-
sions unilaterally made within this time frame and thereaf-
ter Much of this evidence is vague and is not regarded as
presenting a rounded picture of the circumstances concern-
ing the particular change The General Counsel, in the face
of these additional instances of unilateral action , amended
the complaint , prior to presentation of Respondent 's case,
only as to a single incident , namely , the addition of a night
shift in the drug department on or about October 13, 1969
No further amendments to the complaint with respect to
evidence bearing upon changes in hours of shifts were
sought by the General Counsel In fairness to Respondent,
considering the number of issues involved in this case, and
the amount of extraneous evidence admitted as possibly
relevant to an assessment of Respondent 's good or bad
faith during a period of almost 5 years, it is my opinion
that Respondent had no obligation to defend against any
unalleged unilateral changes, 3 and that the issues before
me are limited to those allegations in paragraph 10(a), (e),
and (n) of the complaint
As to the alleged changes in issue, it appears that at the
September 17, 1969, negotiation session, Albert Gore 34 in-
33 These include a warning to selectors and forklift operators that they
would be subject to discipline if responsible for damaged merchandise re
duction of work available to grocery forklift drivers in shipping and receiv
ing elimination of Monday night work for perishable warehouse crews in
1971 and addition of a night shift in the grocery department in 1973
34 Albert Gore a highly regarded member of the labor management bar
died suddenly during a weekend recess in the instant hearing Mr Gore
having been previously called to the stand as a witness for the General
Counsel had not at that time completed his testimony Upon subsequent
resumption of the hearing Respondent moved that his entire testimony be
stricken inasmuch as cross examination had not been completed I denied
said motion and upon Respondents appeal to the Board said ruling was
affirmed
As I made clear at the hearing however my ruling was not indicative of
Continued
1434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
quired as to whether any shift changes were contemplated
by the Company. The Company advised that on Septem-
ber 22, 1969, night schedules in the perishable warehouse
would be changed by eliminating Sunday day and night
work. This would be accomplished by shifting from what
had previously been a 4-night week to a 5-night week
(Monday through Friday). The Company advised that em-
ployees who had previously worked on Sunday would be
reassigned to work these other nights.
At that same session, the Union was informed that, also
effective September 22, 1969, the third shift for selectors in
the grocery department would be eliminated. The Compa-
ny explained that this third shift had previously been estab-
lished due to shortage of "mules," a type of equipment
used in the warehouse, but that, of late, the shift had be-
come unnecessary due to the Company's acquisition of ad-
ditional equipment.
Gore protested these changes 35 requesting that their im-
plementation be deferred, in order that the Union might
bargain after investigating whether the employees affected
approved or disapproved.
At the September 25 bargaining session, the Union again
referred to the changes, and, upon learning that the
changes had been put into effect, Gore demanded that they
be rolled back, and accused the Company of engaging in
unlawful unilateral action. The Company, through its
counsel, Bowden, indicated that he felt that the Company
had the right to take such action.
At the October 13, 1969, bargaining session, the Compa-
ny advised the Union of its desire to add a night shift in the
drug and houseware department. The Company advised
that this shift would be established on October 14, the next
night. Gore again asked that the Company hold back on
the change in order that he might check how employees
would be affected, and how the shift would be filled. Bow-
den advised that these were considerations that the Union
need not be concerned about as the Company had a right
to act in this respect on its own. When Gore again asked
that the Company delay implementation of the new shift,
Bowden reiterated that this was not a matter for the Union,
and the Company was just being good enough to keep the
Union informed as to what was happening. Gore then lec-
tured Bowden as to the legal right of the Union to bargain
with respect to hours of work. The next day, at the bargain-
m& session of October 14, the Union requested information
as to how the new shift would be filled. The Company
a disposition on my part to find Mr Gore's testimony as either credible or
otherwise entitled to weight Having carefully considered the testimony
against the entire record, I rely on Gore's accounts only where indicated
herein I note further that in each of those instances Gore's testimony is
either corroborated by other independently credible witnesses or involves
conceded facts Where I have found Gore's testimony unreliable, I have so
indicated in this decision, but only in areas where his testimony is deemed
material Mr Gore's testimony is not considered necessary to any findings
made against Respondent herein
35
Cameron's notes of the highlights of the bargaining session of Septem-
ber 25, 1969, reflect that company representatives advised Gore that Union
Representative Ackerman had previously agreed to the elimination of Sun-
day night work in the perishable warehouse Although it may well be that
Ackerman might have expressed his approval of elimination of Sunday
work generally, I am unwilling to find that Ackerman made any statements
constituting assent to said change in the absence of far clearer evidence than
appears on this record
advised that six volunteers, who were identified by name
for the Union's benefit, would be reassigned from other
shifts to the new shift, and that the vacancies created by
them on their former shift would be filled by new hires.
The Company indicated that volunteers were selected on
the basis of management discretion. Gore asked for time to
investigate among employees as to how the volunteers were
selected and other information and again asked that imple-
mentation of the change be held off. The Company advised
that the change would definitely be instituted that night.
With respect to each of the changes in working hours, it
is alleged that the Company's action resulted in job dislo-
cation of employees. It is plain, however, that the record is
barren of evidence that any layoffs, loss of earnings, or
other impaired benefits to employees resulted therefrom.
To assume that employees were disadvantaged by these
changes would be entirely speculative. If in fact, the
changes were contrary to employee interests it would seem
that information to this effect could readily have been de-
veloped for evidentiary presentation in this case. Insofar as
the Company claimed that these changes could be made
unilaterally as a matter of discretion, I note the opinion of
Albert Gore, as expressed from the witness stand, that by
virtue of the management prerogative clause in the expired
agreement, a grievance as to the instant changes would
have little chance of success.
The general rule is well settled that it is unlawful for an
employer to effect changes in those working conditions,
which qualify as mandatory subjects of collective bargain-
ing, without notification to and bargaining with the statu-
tory representative of its employees. It is also well settled
that shift changes are mandatory subjects of collective bar-
gaining.36 However, as heretofore indicated, the Board has
turned away from an inflexible application of these princi-
ples in order to avoid imposition of an all-encompassing
obligation to notify and bargain in advance of every
change in operation that may touch upon a term and con-
dition of employment.37
It is true, that here, in response to Gore's demand for a
forestalling and then a rollback in these changes, the
Company's response was to the effect that the subject mat-
ter was not of any concern to the Union, involved the exer-
cise of management rights, and thus was not bargainable.
On the other hand, there is no allegation that the shift
modifications were based upon anything other than legiti-
mate economic considerations, there is no showing that the
changes varied in degree or kind from those historically
made in the operation of the warehouse,38 nor does it ap-
pear that the employees sustained a resulting loss of earn-
ings or hours or that they were either inconvenienced or
otherwise affected to their detriment by these changes.39
Article XVI of the expired 1968 agreement, which I have
heretofore found, continued as part of the governing plant
36 See American Cyanamid Company, 185 NLRB 981, 984 (1970)
37 For a general survey of the cases and circumstance under which unila-
teral changes affecting mandatory subjects have been regarded as legiti-
mate, see United States Postal Service, 203 NLRB 916 (1973)
38 See Rochester Telephone Corporation, 190 NLRB 161, 164 (1971), West-
inghouse Electric Corporation (Mansfield Plant), 150 NLRB 1574, 1576
(1965), Westinghouse Electric Corp , Bettis Atomic Power Laboratory, 153
NLRB 443 (1965)
39 See American Oil Company, 151 NLRB 421, 422 (1965)
WINN DIXIE STORES INC 1435
practice through the period in which the instant changes
were made, specifically provides
The management of the Company's warehouse and
the direction of its working forces, including the right
to establish starting times, increase or de-
crease the number of jobs, or shift any of the
processing, packaging, warehousing and [or]
to increase or decrease the number of working hours
per day or per week shall be vested exclusively in the
Company and not subject to arbitration
Once again, I find myself in agreement with Mr Gore
insofar as he testified that the Union, in the face of such a
contractual preservation of management prerogatives,
would not succeed in maintaining a grievance on changes
of the nature in issue here The elimination of Sunday work
and the addition and elimination of shifts all fall within the
specific language according management the exclusive
right "to establish starting times," to "shift" operations,
and to increase or decrease "the daily and weekly working
hours " Accordingly, and as the changes were not shown to
be excessive or beyond the authority conferred upon man-
agement through article XVI, I find that the Respondent,
by virtue of the practice evidenced thereby, was privileged
to effect these changes without prior bargaining or consul-
tation with the Union 4° Accordingly, I shall recommend
dismissal of the 8(a)(5) allegation based on the elimination
of Sunday work in the perishable department, the elimina-
tion of a third shift for selectors in the grocery department,
and the addition of a third shift in the drug and house-
wares department
Koontz denied that he in 1969 had any such discussion
with employees concerning their use of the restrooms, or
that he ever accused employees of using restrooms too fre-
quently He admits to a discussion concerning the deface-
ment of the walls in the restrooms telling employees that
this would have to cease, and that, if said problem persist-
ed, doors would be removed from the restrooms, and the
first person caught defacing the walls would be fired
On this issue I am inclined to credit Koontz No witness
was called in corroboration of Webb,42 though it would
seem that imposition of such restriction on restrooms
would, if in fact promulgated, have made a sufficient im-
pression on employees to be within their clear recollection
Indeed, the unreasonableness of such a policy further con-
tributes to the implausible nature of Webb's testimony,
which, on balance, I regard as unreliable in this instance I
note, however, that even were I to accept Webb' s testimo
ny I would not find that his version of Koontz' admonition
rose to the level of a bargainable subject For it falls within
the day-to-day routine implementation of supervisory au-
thonty not of such pervasive import to affect the unit as a
whole All that is involved is a confrontation between a
supervisor and his subordinates, through which the former
seeks to maintain discipline, by calling a specific abuse to
his employees' attention 43 Accordingly, I find that Re-
spondent did not in August 1969, unilaterally modify its
restroom policy in contravention to its obligation to bar-
gain in good faith and I shall recommend dismissal of the
8(a)(5) and (1) allegation based thereon
2 Unilateral changes in benefits
c Alleged changes in restroom privileges
The complaint alleges that at some time in August 1969,
Respondent violated Section 8(a)(5) and (1) of the Act by
unilaterally changing restroom privileges through imposi-
tion of a limitation that such privileges be confined to
breaks and lunch periods, and by warning employees that
they would be discharged if they went to a restroom at any
other time This allegation is the subject of a factual dis-
pute The Company denies that it ever imposed such a
limitation on employee access to restrooms
The General Counsel produced a single witness who was
in a position to present competent evidence as to the modi-
fication alleged in the complaint He was Lawrence Webb,
who as will be recalled was permanently discharge by the
Respondent on September 11, 1969 According to Webb,
after the decertification election, Bill Koontz called a meet-
mg of the 40-50 employees in the drug and housewares
department Koontz is alleged by Webb to have then told
employees that if employees had to use the restrooms, "to
do it on break time or before we come to work or during
lunch, because he wasn't gonna have anyone just going in
and out of the bathroom to duck work" Webb further
testified that Koontz said that employees who failed to
abide by the ruling would be reprimanded 41
40 See e g Cello Foil Products Inc 178 NLRB 676 (1969)
41 Another version of Koontz alleged statement appearing in Webb s tes
timony is as follows
a Health insurance 1969
At the hearing, the General Counsel amended the com-
plaint to allege that Respondent violated Section 8(a)(5)
and (1) of the Act by unilaterally granting increases in ba-
sic hospital and surgical insurance without notice or con-
sultation with the Union The benefits involved here are
those previously announced by Cameron at the July 17,
1969, dinner meeting as part of the Employer's antiunion
campaign preceding the 1969 decertification election The
announcement of these benefits has heretofore been found
to have violated Section 8(a)(1) There is no dispute that
after the Union's recertification the improved revisions in
the health insurance program were put in effect on August
1, 1969 The Company did not notify the Union of these
He told us that it was-that they were having a problem with the peo
pie going in and out of the bathrooms and to curtail that he wanted
everyone to-that if they had to go to the bathroom to go before they
would start work in the mornings or during breaks or during the lunch
periods that when they were working he wanted them to stay in the
work area and complete the orders they were supposed to have them
done
42 Gore testified that at the August 13 1969 negotiating session he pro
tested the unilateral change in restroom privileges and that Bowden did not
challenge the assertion that restroom privileges had been changed I regard
this testimony as neutral and of no aid to an assessment of this issue Since
Gore admits that he did not at that time spell out the details of the change
the absence of a dental by Bowden can not be construed as an admission
that the restroom change was made
43 See e g The Little Rock Downtowner Inc 148 NLRB 717 719-720
(1964) Irvington Motors Inc 147 NLRB 565 566 (1964)
1436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
changes until the bargaining session of September 3, 1969
It is also a fact that, while Cameron had been engaged in
negotiations with the insurance carrier for some 10-12
months prior to Respondent's putting them into effect, the
Union was never notified that the Company contemplated
modification of the existing health insurance program
The Board has held that a grant of benefits, even though
calculated to undermine union activity and hence unlawful
under other sections of the Act, remains subject to the duty
to bargain in good faith prior to implementation of such
changes 44 Unlike Aero-Motive, here the 8(a)(1) violation is
predicated upon the announcement of benefits, while the
alleged Section 8(a)(5) relates to the separate offense of
granting benefits However, I regard this difference as im-
material, since insurance is predictably a subject for bar-
gaining which would be of concern to the Union, and when
granted on the heels of a decertification election, with
knowledge that efforts to negotiate a successor contract are
imminent, the grant of benefits goes beyond the usual tech-
nical disparagement of a umon's role as certified represen-
tative inherent in unilateral action For, in such circum-
stances the unilateral action removes a highly significant
mandatory subject of bargaining from negotiations, and
effectively denies the union an opportunity to act in its
representative capacity with respect to that matter As the
Supreme Court has stated " a circumvention of the
duty to negotiate frustrates the objective of Section
8(a)(5) much as does a flat refusal " 45 I find that Respon-
dent violated 8(a)(5) and (1) of the Act on August 1, 1969,
by unilaterally putting into effect the increased insurance
benefits
b The wage increase of August 3, 1969
A few days after the Umon's certification of July 31,
1969, and the initial bargaining session of August 1, 1969,
Respondent on August 3, 1969, posted the following an-
nouncement on warehouse bulletin boards
Effective, August 3, 1969, all hourly rates for nonsu-
pervisory employees of the drug, grocery and perish-
able warehouses will be increased 25¢ per hour
J R King
C G Parsons
By way of background, it appears that the last increase
previously accorded employees was on May 16, 1968, pur-
suant to the first collective-bargaining agreement covering
the unit That contract expired on May 16, 1969
During the preelection campaign on the 1969 decertifica-
tion petition and prior to the commencement of negotia-
tions, the following letter, dated June 4, 1969, was sent by
the Company to Roy Scheurich, international vice presi-
dent of District 9 of the Amalgamated Meat Cutters
Union
44Aero Motive Manufacturing Company 195 NLRB 790 793 (1972)
where the grant of special bonuses to nonstrikers was held to be both an
independent 8(a)(1) violation as an interference with the right to strike and
an 8(a)(5) violation because unilaterally invoked
45 N L R B v Benne Katz d/b/a Williamsburg Steel Products Co 369
U S 736 743 (1962)
Dear Mr Scheurich
This is to confirm our phone conversation of this
morning wherein I asked you if the union would agree
to our giving the Jacksonville warehouse employees an
across-the-board raise of 250 per hour effective imme-
diately You stated that you would not agree to our
doing so, that you felt we should negotiate about it
first
As you know, on March 28, 1969, Charlie Soles'
lawyer, Al Millar, sent us a letter, signed by 69 em-
ployees, a clear majority, stating that you did not rep-
resent them A copy of that letter was sent to you
You also know that you, through your attorney,
filed an unfair labor practice charge, which will block
the election until it is disposed of, and there is no tell-
ing how long that will be
Therefore, please reconsider our proposal that we
give the warehouse employees a 25¢ per hour raise,
effective June 9, 1969 These employees have not had
a raise since September 1967, and this raise is needed
in order for us to remain competitive in the labor mar-
ket If we do not hear from you to the contrary by the
close of business on Thursday, June 12, 1969, we shall
assume you agree to our giving the raise, effective
June 9, and it will be included in their pay for week-
ending June 14
Very truly,
David A Bartholf
On July 24, 1969, the Company's attorney, by letter, ad-
vised as follows
Dear Mr Scheurich
Now that the election has been concluded among
the warehouse employees of the Company at Jackson-
ville, Florida, it is imperative that we set up a meeting
to discuss a new contract, particularly wage rates
The turnover of employees is affecting the efficien-
cy of our operations and is rapidly approaching the
critical point among the employees you represent
In view of this development, I suggest that we meet
at 10 00 am on August 1, 1969, for the purpose of
negotiations Please advise me if this date is accept-
able
Yours very truly,
OR T Bowden
Thereafter, the first bargaining session was held on Au-
gust 1, 1969 Representing the Union were Scheurich, Rob-
ert Ackerman (secretary-treasurer of District Union 433),
and members of the employee negotiating committee Rep-
resenting the Company were Otto Bowden, an unidentified
attorney from Bowden s law firm, and Parsons No compa-
ny representative that attended this session was called to
testify
Uncontradicted testimony establishes that the Company
opened the meeting requesting union assent to the pro-
posed 25-cent increase Ackerman refused, countering with
a demand for a 75-cent increase, as well as 19 specific pro-
posed modifications of the expired agreement The Com-
pany requested that these proposals be placed in writing,
and there was no significant discussion of the Union's oral
WINN-DIXIE STORES , INC 1437
demands Instead the Union was advised that the only pur-
pose of the meeting was for the Company to obtain assent
on the 25-cent increase The meeting ended, without such
assent
By letter of August 2, 1969, Bowden to Scheurich, the
Union was informed as follows
Dear Mr Scheurich
It appeared that the union negotiating committee
did not seriously consider the Company's urgent re-
quest for an adjustment in rates for the warehouse
employees you represent
We attempted to show that the large turnover was a
critical problem and seriously affecting our entire
warehouse operations For example, 719% of our em-
ployees in the warehouse have been hired since Janu-
ary 1, 1969 This situation affects your members, and I
can sympathize with your efforts to maintain a current
list of employees
The Company recognized this now critical problem
during the term of the last labor agreement with your
union In fact, as far back as June 4, 1969, the Compa-
ny proposed and strongly urged that you consider an
immediate 25¢ per hour increase to the employees you
represent
The Company urged an early commencement of ne-
gotiations for a new contract to replace the expired
agreement, and again pointed out the pressing prob-
lems in regard to employee turnover
At our meeting on August 1, 1969, it was apparent
that the union did not intend to deal with the problem
at all, absent total capitulation by the Company on all
other contract terms In our meeting, August 1, 1969,
the Company proposed to put in a 25¢ per hour in-
crease immediately without prejudice to the union to
negotiate for additional amounts during the negotia-
tions As an experienced negotiator, you recognize
that the twenty odd major revisions suggested by your
committee will not be readily resolved and will require
extensive negotiations
The economic facts and well being of the Company
makes it imperative that some increase be put into
effect immediately The Company is putting into ef-
fect as of August 3, 1969, a general increase of 25¢ per
hour to all employees in the grocery, perishable and
drug housewares departments This will still leave our
employees 2 1/2¢ per hour behind Food Fair and 12
1/20 per hour behind A & P
We stand ready to explore this matter further with
you at any time and in any of its aspects
Very truly yours,
OR T Bowden
Thereafter, at the August 13, 1969, negotiating session,
Albert Gore joined the union negotiating team and protest-
ed the grant of the 25-cent increase without bargaining,46
46 The Charging Party contends that the 25 cent increase was not put into
effect on August 3 1969 but indeed that it was effective prior to the
negotiation session of August 1 1969 This claim is based on an interpreta
tion of C P Exh 5 which is a list of employees hired since June 1 1969
and their starting rates Said list was compiled by the Employer on request
accusing Bowden of engaging in an unfair labor practice,
and disputing the Company's claim that in order to avert
turnover, an immediate wage increase was necessary
The Company admits that this increase was put into ef-
fect unilaterally, le, without consent of the Union It
nonetheless contends that "once an employer informs a
union of its proposed actions and allows the union reason-
able time to discuss the change, it then may grant the
change even over the protest of the Union and even before
reaching an impasse" Application of such a view in the
context of this case would make a mockery of collective
bargaining For, it assumes that "reasonable time to dis-
cuss" is afforded simply by proposing the change in two
letters and then putting it into effect after a single bargain-
ing session and hence envisions contract negotiations as a
one-sided formality whereby mandatory subjects of bar-
gaining sought by an employer, need not await agreement
on a contract, but may be implemented directly simply be
being placed on the table, and remaining there only for the
period necessary to evoke union protestations On the facts
of this case, the Respondent asks me to endorse a notion
that only union proposals need be the subject of real nego-
tiations, with the employer free, at the outset of negotia-
tions, to determine independently what is necessary to pre-
serve the stability of its work force, and make those
innovations after a few expense- free gestures at the bar
gaining table The Fifth Circuit's decision in N L R B v
Tex-Tan, Inc, 318 F 2d 472 (CA 5, 1963), relied on by
Respondent, does not, on the facts of that case, support so
one-sided a view of the Congressional mandate of Section
10(d) of the Act The court in that case, as I interpret its
decision merely recognized a middle ground between view-
ing unilateral increases , prior to impasse, without union
assent as per se violations of the Act, and the countervail-
ing view that such increases are always lawful when imple-
mented after notice and consultation 41 In due respect, that
case appears limited to the fact pattern to which the court
addressed itself, and is so obviously distinguishable as to so
many tactors, that they do not bear repetition here
I am satisfied and find that the grant of a 25-cent in-
crease was unlawful Aside from the fact, that I do not
regard the letters and single meeting , as fulfilling
Respondent's duty to consult and negotiate before imple-
menting its own proposals, a serious question exists, as to
whether the Company's procedure was calculated to dis-
credit the Union and make true its preelection propaganda
to the effect that employees did not need union representa-
of the Union and furnished at the bargaining session of September 17 1969
Next to each name of each listed employee appears a column designated
Date another designated Job and another designated Pay As to five
of the listed employees the Pay column shows that their starting rate
reflected the 25 cent increase Because the date appearing next to their
names precedes August 3 1969 counsel for the Charging Party argues that
this document proves that the increase was effective in advance of that date
in my opinion the document is ambiguous on the present state of the rec
ord. No evidence exists as to whether the date thereon is simply a formal
date of hire or a date on which payroll status was achieved Furthermore
that the former rather than the latter was the case is suggested by the fact
that an employee by the name of C B Miller though having a date of hire
identical to two employees referred to by the Charging Party as supporting
its claim received a starting rate at the old wage level
47 This is not meant to suggest that the Board has adopted the view that
such a middle ground exists
1438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion In this regard, the Charging Party directs my atten-
tion to a letter, signed by C G Parsons, under date of July
8, 1969 This letter was sent shortly before the decertifica-
tion election and little more than 3 weeks before the in-
crease was put into effect Generally the theme of the letter
is that the warehouse employees did not need a union, and
adopted the argument that "the union did not do anything
for them " The letter includes the following statement
Only recently, the union prevented the company from
giving a salary increase which would have meant more
than $500 a year to every employee on a 40 hour
weekly basis
This letter was followed by another signed by Parsons and
dated July 16, 1969, which urged employees, if requested to
attend a union meeting, to ask a series of questions, includ-
ing
10 Did not Winn -Dixie offer a 25i per hour increase
across the board to all employees in this unit which
the union would not agree to put in
If the unilateral increase was not an extension of
Respondent 's prior efforts to disparage the Union ,48 it was
plainly an act in derogation of the bargaining process In
the face of Respondent 's preelection propaganda , and after
but one bargaining session, the grant of the increase would
hardly be construed by employees as derived from the pro-
cess of give and-take negotiations There can be no ques
tion that , despite the recent election , Respondent's action
would tend to weaken employee support of the Union As
for its impact on the bargaining process such a step, before
the Union request for sweeping modifications in the prior
contract reached the discussion stage, would forseeably en-
gender bitterness and hostility , before serious collective
bargaining could begin I cannot believe that Respondent
was unmindful of these consequences , and I find that, in
the circumstances, the grant of the August 3, 1969, wage
increase constituted unilateral action violative of Section
8(a)(5) and (1) of the Act 49 N L R B v Benne Katz, supra
c The wage increase of January 29, 1973
On February 6, 1971, a new 1-year contract was execu-
ted which merely extended the terms of the old contract,
48 Cf Tyson s Foods Inc 187 NLRB 525 530-531 (1970) Cranston Print
Works Company 115 NLRB 537 546-547 (1956)
49 The Respondent s claim that such action was necessary to remedy turn
over problems in the warehouse offers no defense to this violation Obvious
ly some form of necessity would always be an available defense to employ
ers seeking an increase in wage levels and if honored here would seriously
impair the concept that wages are to be negotiated at the bargaining table
See N L R B v Union Manufacturing Co 200 F 2d 656 659 (C A 5 1953)
50 The Union in 1971 agreed to back down from its demands for broad
modification of the prior agreement because according to Scheurich the
Union was losing members Agreement was reached after but two formal
negotiating sessions
The new modifications consisted of a provision granting union represen
tatives access to the plant to investigate a grievance after obtaining the
Company s permission which could not be denied unreasonably A further
modification related to a strictly internal union matter since it merely ac
knowledged that the Union s executive board had discretion over whether
or not a grievance should be processed
with two slight modifications 50 By virtue of that agree-
ment, unit employees received a 24-cent hourly increase
During the term of that agreement, the Union, in the late
fall of 1971, apparently, gave the statutory 60 day notice of
intent to terminate the above agreement In response there-
to, Bowden wrote Ackerman by letter dated December 3,
1971, as follows
Dear Mr Ackerman
Receipt is acknowledged of your letter advising that
you were serving your 60 day notice of your desire to
terminate the present agreement Please be advised
that inasmuch as this agreement does not expire until
February, we defer meetings at this time Your advice
in this regard will be appreciated
Very truly yours,
OR T Bowden
From the foregoing it is apparent and I find that the
Company saw no great urgency to conduct negotiations in
advance of the February 6, 1972, expiration date of the
existing contract
Thereafter, having heard nothing further from Bowden,
Scheurich, by letter dated February 2, 1972, requested a
meeting date Bowden responded to this letter on February
7, 1972, and a negotiation session was held on March 9,
1972
On April 7, 1972, a decertification petition was filed in
the appropriate unit In consequence, the Company sus-
pended negotiations indefinitely
Thereafter, according to James Corley, who in Septem-
ber 1970 replaced Parsons as service superintendent at the
warehouse, the Company was again experiencing turnover,
and, by December 1972, the situation had become critical
since almost 2 years had lapsed since employees had re-
ceived their last increase When apprised of this, officials of
the Company agreed with Corley's recommendation that
an increase be granted, and he was instructed to work up a
rate schedule and to contact Bowden to allow presentation
of such proposal to the Union In consequence, Bowden
sent the following letter to Scheurich, under date of De-
cember 4, 1972
Dear Sir
The Company has pointed out to me an acute
situation that has arise among their warehouse em-
ployees in Jacksonville, Florida
The last agreement was consummated on February
6, 1971 The employees have not received an increase
since that time due to the term of the contract in the
first instance, and subsequent proceedings before the
National Labor Relations Board in the second in-
stance
The rapid turnover of employees in the group is not
beneficial to the Company, or your membership, and
it is necessary for a wage increase to be instituted
among this group of employees at the earliest possible
time
I am enclosing with this letter a proposed 'Adden-
dum A" which reflect increases in rates the Company
proposes to put in among the warehouse employees at
WINN-DIXIE STORES, INC 1439
the earliest possible time, this week, if you have no
objection
If you desire to discuss this matter, let's set up an
early meeting so that this matter may be resolved and
the employees receive the increase without delay
Very truly yours,
OR T Bowden
That letter included an attached schedule of proposed
new rates for each of the classifications listed in the previ-
ously expired contract Comparison of the rates listed in
the attachment with those contained in that contract indi-
cates a percentage roughly amounting to a straight time
increase of 5 5 percent for each classification
On December 22, 1972, the parties met for the first time
since March 9 The Union again as in 1969 and 1971, made
proposals for substantial changes in the collective-bargain-
ing agreement The Company viewed the meeting as for
the limited purpose of obtaining union assent to its pro-
posed wage increases The Union's position at this, and an
additional four meetings in December and January, was
one of adamant opposition Through Ackerman, the Union
informed the Company that wage rates should be incorpo-
rated in a fully negotiated contract and that the Union
desired increased fringe benefits, specifically in the area of
health and welfare, and opposed prejudice to its demands
in this area by grant of an immediate wage increase Ba-
sically, the position of the parties remained unchanged
throughout these sessions with the Union resisting imple-
mentation of the increase, and the Company urging that
they be put in effect as soon as possible, while continuing
negotiations
However, Corley concedes that, at the December 28,
1972, meeting, with respect to the Union's proposed revi-
sions to the contract, "Bowden told Mr Ackerman
that we'd been working under this contract for some time,
and we hadn't had any problems with it, and all those
changes, he [Bowden] didn't see any reason why we
should make changes just for the sake of changing " 51
At no time during these meetings was the Union in-
formed that the Company was concerned that if it did not
put the 5 5 increase into effect immediately, the Cost of
Living Council's Phase III control year would expire, and
that the Company opined that it would thereby lose the
opportunity to grant such an increase As I interpret
Corley's testimony he too was not informed of this concern
until he received a phone call from Bowden, on the day
after the meeting of January 26, 1973 At that time Bowden
explained the problem and requested Corley to work up a
wage rate per hour schedule based on 5 5 percent Corley
prepared a schedule and by letter to Ackerman dated Jan-
uary 29, 1973, Bowden advised the Union as follows
51 At some point in January Ackerman called Bowden s attention to the
fact that the Employers health and welfare contribution was inadequate to
finance current benefit levels Bowden requested that Ackerman work out
cost figures on the increase necessary to maintain those levels After the
latter did so an agreement was reached on a 75 cent per employee per week
increase in the employers contribution
Dear Sir
Reference is made to our negotiations for an agree-
ment covering the captioned employees
While discussing the status of the negotiations with
the Company after our last session on January 26,
1973, it was pointed out that the control period under
Phase III ends on February 6, 1973, and it was feared
that any allowable increase due for the period Febru-
ary 7, 1972 to February 1973 would be lost if not used
prior to the end of the control period
Inasmuch as the Company has figured this allowa-
ble increase in the overall general increase, and fur-
ther, since it appears these employees have not re-
ceived an increase since February 7, 1971, it seemed
prudent to institute immediately an increase of 5 5
percent on the basic hourly rate so that the 1972 5 5
percent would not be jeopardized This partial in
crease will not prejudice further bargaining on the
subject in future sessions
I take this method to notify you of this action inas-
much as the next meeting will not be held until after
the end of the 1972-73 control period
Very truly yours,
O R T Bowden
Bowden did not testify, and the representation in his
letter that the control year problem was discussed on
January 26, 1973, is not consistent with any of the testimo-
ny relative to that matter, including that of Corley
At the hearing, the parties stipulated that the following
schedule reflects the increases that were put into effect on
or about January 29, 1973 This schedule and the informa-
tion contained thereon was not furnished to the Union un-
til March 29, 1973, following a union request
Old
Rate
New Amt
Rate Inc
%
Inc
Selectors $321 $341 + 20 6 23
Forklift
Operators 3 21 3 41 20 6 23
Laborers 3 16 3 29 + 13 411
Janitors 2 69 2 84 + 15 5 57
Sanitarian 2 97 3 11 + 14 471
Pricers 3 16 3 29 + 13 411
Prior to March 29, 1973, the Company had repeatedly
described the increase as 5 5 percent Thus, the Union for 2
months after the increase had been put into effect was kept
in the dark both as to the disparate application of the in-
crease among the various classifications and the reasons
therefore
As it turned out, the original wage proposal attached to
Bowden's December 4, 1972, letter is inconsistent with
both the amount of increase described by the Company at
the bargaining table and that subsequently put into effect
1440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The original schedule provided on December 4 was as fol-
lows 52
0-30
Days
30-60
Days
60-90
Days
Over 90
Days
Selectors $3 22 $3 32 $3 42 $3 62
Forklift
Operators 3 22 3 32 3 42 3 62
Laborers 3 00 3 10 3 24 344
Janitors 2 70 2 80 2 90 300
Sanitarian 300 3 10 3 24 344
Grocery
Repack 3 22 3 32 3 42 3 62
Stampers-
Pricers 3 00 3 10 3 24 344
Furthermore all wage increases set forth in the Decem-
ber 4, 1972, proposals differed in amount from those ulti-
mately granted, as reflected by the schedule delivered the
Union on March 29, 1973, with but a single classification
receiving an amount approximating the 5 5 increase de-
fined by the Company in the negotiations
In my judgment these variations between the rates actu-
ally put into effect and those actually proposed to the
Union were material and significant Respondent's action
was without notice to the union and effectively precluded
an opportunity to bargain over disparate percentages and
the amount of increase afforded the different classifica-
tions This deprived the Union any opportunity to assure
equitable wages among the classifications in the unit and
alone is enough to substantiate the violation alleged here I
find the 8(a)(5) and (1) violation on that basis alone
But even if the increases granted were coextensive with
the Company's previous offers, I would, based on the total
circumstances, find that the Company's procedure of pro-
posing an increase, then seeking out the Union for the pur-
pose of gaining assent, and then, over union protestation,
putting the increase into effect, all exhibited bad faith
In this regard I note that prior to the 1972-73 negotia-
tions the Union in 1969-70 negotiations and previously in
1971 sought sweeping revisions in prior contracts These
efforts were met with stiff opposition on each occasion
Some minor revisions were obtained, but with each con-
tract, so few the Union's bargaining objectives had been
realized that those that were are unworthy of mention
52 The preexisting rates under the 1971-72 contract are as follows
0 30
Days
3060
Days
6090
Days
Over 90
Days
Selectors $306 $3 11 $3 16 $321
Forklift
Operators 3 06 3 11 3 16 321
Laborers 3 01 3 06 3 11 3 16
Janitors 2 54 2 59 2 64 2 69
Sanitarian 2 82 2 87 2 92 2 97
Grocery
Repack 3 06 3 11 3 16 321
Any witness to these negotiations would quickly realize
that if there were any issue as to which the Company had a
flexible position it was wages Respondent had to remain
competitive in the labor market and, from time to time,
was impelled to increase wages
Yet in 1969, as I have heretofore found, Respondent un-
lawfully and effectively removed the wage issue from nego-
tiations At that time the Union had recently been certified
in a decertification election, despite Respondent's anti-
union campaign, stressing the uselessness of union repre-
sentation In 1972 another decertification petition was filed
and again, as in 1969, Respondent sought to place the
Union in a position of either agreeing to its self-determined
wage increase, or having the increases put into effect with-
out union assent This was done in 1973 after the Union
had placed on the table proposals again seeking wide scale
revisions in the prior contract, and after Bowden with re-
spect to the proposals, had informed the Union, as he had
done in past negotiations, that such modifications were un-
necessary When the increase was put into effect, the one
issue on which Respondent had demonstrated some flexi-
bility no longer could have significant influence on the ulti-
mate product of negotiations and, once again, the Union
could not take credit for achieving a significant benefit
through the bargaining process
This and other conduct 53 could only deepen employee
support of the then pending decertification effort 54
There quite plainly was no impasse as of January 29,
1973 And left by the wayside, as a result of the
Respondent's unilateral action, was the Union effort to
have additional fringe benefits financed through sums allo-
cated by the Company to the wage increases 55 Further-
more, as became clear after the increase was put into ef-
fect, a serious controversy existed as to whether or not the
Company would lose its right to grant the 5 5 increase after
expiration of the control year Since the control year issue
was not raised prior to Bowden's letter of January 29, 1973,
the Union was denied all opportunity to express its view on
that subject
I am persuaded that the 1973 increase was a repetition of
the pattern evidenced by that of August 3, 1969, whereby
the Company unilaterally stripped what it wanted from
bargaining at the very outset of negotiations, leaving the
remaining negotiations to a consideration of union objec-
53I credit the testimony of incumbent employees Elmer Knight and
Wayne Spear over the denials by Robert Blichmgton superintendent of the
grocery department that while the latter was distributing checks to grocery
department personnel at or about the time of the 1973 increase Blichington
informed them that the Union did not want to give the raise but the Compa
ny was going to give it anyway Blichmgton admits that he at the time of the
increase called to his office some 40 to 50 employees individually to give
them their checks and to explain the amounts thereof Through a series of
leading questions propounded by Respondents counsel Blichington denied
the statements Spear and Knight attributed to him I was persuaded by the
objectivity with which Spear testified as to other matters and am convinced
that as employees of a firm with so notorious a history of antiunion con
duct neither Spear nor Knight would have fabricated this incident
However I do not accept Spear s testimony as to the timing of this mci
dent for I am not persuaded that his capacity for recollection of such mat
ters was sufficiently keen as to render his testimony reliable in this regard
54 See Tyson s Foods Inc supra
55 See N L R B v Crompton Highland Mills 332 U S 217 (1949)
WINN-DIXIE STORES INC 1441
tives only I am persuaded that in both instances, these
steps were taken with knowledge of the adverse impact the
wage increases, to which the Union could not assent,
would have upon the Union's representative base It is also
clear that in both instances Respondent prematurely de-
nied the Union the opportunity to express itself as to highly
urgent aspects of the Company's proposal As was true of
the 1969 increase, I find that Respondent's unilateral grant
of an increase on January 29, 1973, while negotiations were
in an ongoing state, was in complete disregard of the
Union's status and undermined the authority which the
Act bestowed upon the Union, in violation of Section
8(a)(5) of the Act 56
3 Alleged refusals to furnish information
a The cigarette stamper
The Company had a single employee in this classifica-
tion He was compensated on a cent-per-carton piece rate
basis After the Company granted the August 3, 1969, 25-
cent across-the-board increase, the Union became con-
cerned as to how that increase was applied to the cigarette
stamper Gore, at the bargaining session of September 25,
requested such information Bowden replied that he would
find out and advise the Union At the meeting of October
24, Gore was informed that the increase was applied on a
percentage basis, but, on inquiry, was not told what the
percentage was, as Bowden asserted that he did not know
The Union, despite an additional request at the session of
October 24, 1969, never received this information
On November 20, 1969, tentative agreement was reached
for a contract which would be based on Respondent's
negotiated settlement with the Teamsters Union at
Respondent's New Orleans warehouse At a follow up ses-
sion of February 6, 1970, a contract based on the New
Orleans agreement was executed Gore concedes that in
the course of that meeting, he questioned Bowden as to
why the Company had stricken the cigarette stamper clas-
sification from the Union's proposed draft agreement
Bowden informed Gore that, under the new contract, the
cigarette stamper would be treated as "grocery repack," an
hourly rated job The Union did not object to this revision
When in 1973 Gore again requested information concern-
ing the compensation of the cigarette stamper, he was in-
formed that that classification had not existed since execu-
tion of the 1970 contract, and that thereafter the former
cigarette stamper was given the hourly rate applicable to
"grocery repack " 57
Prior to the execution of the contract of February 6,
1970, Bowden by letter dated December 3, 1969, wrote
Gore, as follows
56 Although as heretofore indicated the necessity urged by Respondent in
support of the unilateral action furnished no defense any sympathy that
might ensue from Respondents plight is diminished by Bowden s refusal to
meet prior to expiration of the 1971 contract and the Company s persistent
opposition to Union efforts during 1969 and 1971 to stabilize terms and
conditions by execution of a 3 year contract
" Based on the combined testimony of Gore and James Corley
Dear Sir
Reference is made to the negotiations between the
Meatcutters Union and Winn-Dixie Stores, Inc in re-
gards to the above captioned unit
At our meeting on November 20, 1969, the Compa-
ny made a proposal to the union committee, through
you as spokesman, which you stated the Committee
accepted and would recommend to the employees in
the unit In view of this development and apparent
culmination of an agreement, I have advised the Com-
pany representatives to cease preparing certain infor-
mation that you had previously requested in the bar-
gaining sessions since it does not now serve any useful
purpose
I urge that your committee bring the offer of the
Company to the unit employees at the earliest possible
time so that the unit employees may commence to re-
ceive the benefits thereunder and a formal contract
executed in due course
Yours truly,
OR T Bowden
I agree with the Respondent that, in the context, "this
allegation is hardly a matter which deserves remedial atten-
tion of the Board " As indicated, upon execution of the
contract of February 6, 1970, the cigarette stamper was no
longer paid on piece rate basis Therefore information as to
the increased percentage he received as a result of the Au-
gust 3, 1969, increase had then become valueless 58 Accord-
ingly, although the Company should have accorded the in-
formation in timely fashion, I cannot, after placing this
incident in the total context of the negotiations, including
the vast amount of information requested and supplied,
attribute this matter to anything other than oversight, its
impact on the bargaining and the future relationship of the
parties was nil Having considered the nature of the alleged
offense against the total circumstances, I do not find that
Respondent, by failing to provide the information at a time
before the matter became academic, violated Section
8(a)(5) and (1) of the Act
b Employees with 20 years' service
The complaint alleges that Respondent violated Section
8(a)(5) and (1) during the 1969 negotiations and thereafter
by failing to comply with the Union's request for informa-
tion, listing the names of employees within its employ for
20 years or longer
Among its proposals in the 1969-70 negotiations, the
Union sought increased vacation benefits, allowing 4
weeks vacation after 20 years' service In response to this
proposal, the Company took the position that such a bene-
fit did not exist under companywide policy, that it wished
to maintain a uniform vacation policy throughout its oper
ations, and that a very difficult problem was presented by
the Union's proposal because such a benefit would have a
companywide impact on some 18,000 employees Gore
then asked for a list of names of employees in all the
58 It is a fair inference from the testimony of union representatives that
the Union s concern for the cigarette stamper was not based upon his not
receiving a fair share of the increase but a concern that the Company had
inequitably discriminated in his favor
1442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company's operations with 20 years' service or more, so
that the Union could evaluate the impact of its proposal
and its reasonableness The Company objected to provid-
ing the names of employees on a companywide basis, but
was willing to give the number of employees with 20 years'
service 59 Gore rejected this alternative, insisting that
names be provided, as only with the names could the infor-
mation afforded be verified 60 The information has never
been provided to the Union
The Company does not dispute the relevance generally
of the Union's request, but claims that knowledge as to the
number of employees with 20 years' service would suit the
Union's purposes, and that furnishing the names would be
too burdensome 61 At issue is whether the information, in
the form offered by the Company, was sufficient to satisfy
its obligation to bargain in good faith under Section
8(a)(5) Gore declined to accept the Company's proposal
that it furnish the number of employees companywide with
20 years of service There is no question that such informa-
tion, if accurate, would satisfy the Union's declared needs
to the same extent as providing the names Furthermore, it o
should be self evident that even disregarding Cameron's ings Co 86 NLRB 592 593
testimony in this regard, it would be less onerous for the
Company to furnish a number then to furnish names Nev-
ertheless, it is plain that with the names, the Union would
have the means whereby accuracy could be verified
Thus, the issue narrows upon whether the enhanced op-
portunities for verification imposed a statutory obligation
on Respondent to furnish the data in the form requested
There are no hard and fast rules governing this area of
the law, and the parties in their respective briefs have not
directed my attention to any authority having a direct
bearing upon this problem It does seem clear, however,
that requested, relevant information must be furnished in a
59 Based upon the credited testimony of Cameron who impressed me
with his candor and his apparent interest in revealing the facts as he re
called them whether or not damaging to the Company s cause His testimo
ny in this regard is consistent with his notes which were authenticated to
my satisfaction as having been taken by Cameron at the various bargaining
sessions transcribed shortly thereafter for reproduction by his secretary
and then adopted by Cameron after a review of the typewritten drafts Gore
denied that the Company ever offered the number of employees on a com
panywide basis I prefer Cameron s testimony as confirmed by his notes
over Gore as to this issue Gore as was true of Ackerman gave testimony
replete with conclusions and accusations which often upon examination
proved baseless His testimony reflected a perhaps justifiable deep resent
ment towards Bowden and the Company which left me with the decided
impression that his testimony where probative but contradicted need be
given close scrutiny I prefer Cameron over Gore as giving the more reli
able account as to this incident I note that Gore was not corroborated in
tiiis regard by any other member of the union negotiating team
so Also based on Cameron s credited testimony
61 Cameron testified that there was computerized data readily available as
to the number of employees working for the Company over a given period
of time but that this was not correlated with names and that therefore to
give the Union the information it requested would require compilation
through an independent search of personnel records I disagree with the
assertion in the Charging Party s brief that Cameron s testimony as to steps
the Company would have to take to divulge the list of names is rendered
inherently specious by the testimony of Personnel Director Fant Fant
merely related that the names of all employees companywide are on the
computer He did not indicate or provide a basis for inferring that the
names correlated with years of service of the employees was available on the
computer Fant s revelation is not inconsistent with Cameron s assertion
that a physical check of files was requisite to a satisfaction of the Union s
request
form which not only serves the purposes for which it was
requested, but which, objectively viewed, is not inherently
suspect in terms of its accuracy or reliability 62 In the pres-
ent case, any infirmity in the alternative proposed by the
Company would rest exclusively upon a subjective mistrust
of the latter's veracity
In N L R B v Truitt Manufacturing Co, 351 U S 149,
151 (1956), the Supreme Court endorsed approvingly the
Board's general policy as to the nature of the information
that an employer must provide to substantiate a position
taken in negotiations , stating as follows
In any event, the Board has heretofore taken the posi-
tion in cases such as this that "It is sufficient if the
information is made available in a manner not so bur-
densome or time-consuming as to impede the process
of bargaining " 2 And in this case the Board has held
substantiation of the company 's position requires no
more than "reasonable proof "
To recognize that the Union is entitled to the information
necessary to respond to the Company's position is one
thing, but to require that information, which satisfies that
test, be given in a form which enables the Union to make a
check of its truth is to apply the law on an assumption that
information furnished in the course of negotiations is likely
to have been fabricated and false 63 Determination as to
what constitutes "reasonable proof" ought not to be prem-
ised on such assumptions Furthermore, any holding that a
party requesting information is entitled to all that is neces-
sary to verify truth, would stand as an invitation to harass-
ing techniques, and would expose parties to endless inqui-
ry, which though collateral to the basic bargaining issue,
would nonetheless be relevant to the accuracy or credibili-
ty of the information offered Consistent with the Supreme
Court's observations in Truitt, supra, restraint should be
exercised before adopting an interpretation of the law with
such sweeping ramifications In this case, it is entirely pos
sible that had the Union availed itself of the information in
the offered form, the entire issue may well have been sub-
sumed in the bargaining process, without requiring the em-
ployer to develop the information in the specific form re-
62 See e g General Electric Company 186 NLRB 14 (1970) where a
Board panel over Chairman Miller s dissent concluded that a company s
offer of a video tape was not a legitimate alternative to the union s request
for an independent in plant evaluation because the video tape did not
constitute a necessarily reliable and reasonably expeditious substitute
for an in plant evaluation
63
Despite the Respondents hostility to employee organization generally
and to the Charging Union in particular I am unwilling to find on this
record that Respondent manifested a propensity to deliberately fabricate or
falsify any portion of the voluminous information it willingly provided the
Union in this case or in other respects The Charging Party would disagree
citing the Company s 1969 failure to provide the reserve accounts of em
ployee participants in the Company s Profit Sharing Plan and Bowden s
alleged 1973 statement that he did not think changes had been made in that
plan These instances are cited as proof of Respondents disposition to fur
nish false and inaccurate information In my opinion these instances either
standing alone or considered against the entire context of this bargaining
amounts to little more than oversight which I decline to adopt as a basis for
defining the Respondents statutory obligations
2Old Line Life Ins C 96 NLRB 499 503 Cincinnati Steel Cast
WINN DIXIE STORES INC 1443
quested, and without prejudicing the Union's ability to re-
spond to the Company s expressed concern as to the vaca-
tion issue For these reasons, I find that Respondent did
not violate Section 8(a)(5) and (1) of the Act by refusing to
provide the Union with a companywide list of names of
employees with service of 20 years or more 64
c Requested access for in -plant studies and investigations
The complaint alleges that Respondent further failed to
bargain in good faith (1) by imposing unlawful conditions
on the Union's right to conduct a timestudy in the ware-
house by an engineer employed by the Union, and (2) by
imposing improper conditions upon the Union's right to
inspect the sanitary facilities, safety equipment, and work
areas in the warehouse 65
No dispute exists as to the facts related to these allega-
tions At the September 25 and October 13, 1969, bargain-
ing sessions , the parties engaged in discussion of the
Respondent' s existing incentive pay program, and in con-
nection therewith, Gore on both occasions requested that a
Union industrial engineer be permitted to make an in-plant
study in order that the Union might evaluate on an in-
formed basis, Respondent's incentive program On both
occasions, the Company, in effect, withheld taking a posi-
tion, but indicated that the Union would be notified of its
view
In this connection, at the October 24, 1969, bargaining
session Bowden gave Gore the letter, set forth below
Dear Mr Gore
Re Jacksonville Warehouse
Engineering Study
The Company negotiating committee has consid-
ered your request to allow the Meatcutters Union to
make a time study of Winn-Dixie Stores, Inc, Jack-
sonville Warehouse This, of course, only in the unit
your union represents
We shall recommend to the Company that your re-
quests be granted with the following provisos
1 That the study be performed by an independent
engineer
2 That a Company representative accompany the
designated engineer
3 That all work sheets, memorandum, studies and re-
ports be made available to the Company
4 Such study shall not interfere with or impede the
Company operations
64 The General Electric case cited above is distinguishable Unlike the
instant case the employers offer there was in a form which would not
adequately provide the Union with the relevant information
65 Evidence was adduced that the Union requested access to investigate
whether supervisors were performing unit work It is undisputed that the
Employer imposed the identical condition on this inspection as it did with
respect to the items listed in (2) above The General Counsel in the early
stages of the hearing indicated that the supervisory inspection issue was
within the broad language of the complaint namely work areas and was
viewed as an independent violation of Sec 8(a)(5) Adequate notice was
provided Respondent the issue was fully litigated and I regard
Respondents alleged interference with the Unions right to inspect the
warehouse as an aid to determining whether supervisors were performing
unit work as a viable issue in this case
5 That the final summary of recommendations or
findings be made available to the Company
I am directing copies of this letter to several persons
who will be involved in the decision When I receive
their response, I will communicate with you
Yours truly,
OR T Bowden
When Gore asked if this was an offer, Bowden answered,
"no," but that it represented Bowden s recommendation to
the Company, which would require Company approval By
letter dated October 30, 1969, the Union was advised that
the Company consented to the Union's request provided
that the conditions set forth be observed
At the November 5 and 20, 1969, bargaining sessions,
Gore protested the Company's position, asserting that the
Union had the legal right to make the study with use of its
own designee and that the conditions imposed by the Com-
pany were inconsistent with Gore's request and illegal
Bowden adhered to the position previously taken by the
Company, and, according to Cameron's notes, when Gore
advised that an unfair labor practice charge had been filed,
Bowden responded " we will receive such charge and
upon consideration of litigation, we will make such ar-
rangements consistent with such decision " Also, at the
November 20 session, Gore in connection with pending
issues then on the table, requested access to the plant by
union representatives to inspect safety and sanitary condi-
tions and the degree to which supervisors were performing
unit work As to the latter requests, Bowden took the posi
tion that these inspections could only be made simulta-
neously with the study to be made by the independent en-
gineer Bowden thereby conditioned these additional
requests for plant access on union acceptance of the re-
strictions imposed on the timestudy request
The principles governing these allegations are ade-
quately set forth in the following quote, appearing in Wil-
son Athletic Goods Mfg Co, Inc, 169 NLRB 621 (1968)
It is well settled that Section 8(a)(5) of the Act imposes
an obligation upon an employer to furnish, upon re-
quest, all information relevant to the bargaining
representative's intelligent performance of its func-
tions compliance with the good-faith bargaining
prescribed by the Act required Respondent to cooper-
ate with the Union by making plant facilities available
to the Union for the conduct by the latter of its own
timestudies, unless the Union's request was improper
for some other reason or imposed an unreasonable
burden on Respondent
Here, Respondent does not dispute the relevance of the
timestudy and other in-plant inspections to the negotia-
tions, but defends solely on the ground that the Company's
position "was not unreasonable " Yet, Respondent has
made no showing that a granting of the Union' s requests,
without limitation, would have imposed any undue burden
upon, or unduly interfered with, production or discipline 66
Indeed, the contrary is suggested by the fact that in 1973,
66 See Fafnir Bearing Co 146 NLRB 1582 1586 ( 1964) In enforcing the
Boards decision at 362 F 2d 716 721 (1968) the Second Circuit Court of
Continued
1444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Company backed off of its previously expressed posi-
tion and did grant access to the plant to conduct such in-
spections, devoid of the limitations insisted on in 1969
Based upon the foregoing, I find that (1) the Union's
request for access by its representatives for the various pur-
poses set forth above was in pursuit of information rele-
vant to the performance of its bargaining obligations, (2)
the Respondent's refusal to permit a timestudy by a union
representative and free of other conditions was violative of
8(a)(5), and (3) the denial of union access for the purpose
of inspecting sanitary facilities, safety equipment, and su-
pervisory performance of work until such time as the
Union agreed to conduct a timestudy pursuant to the un-
lawful conditions imposed by Respondent, rendered these
latter denials equally violative of 8(a)(5) and (1) of the Act
4 Miscellaneous The furnishings of names and
addresses to American Heritage Life Insurance Company
The complaint contains a somewhat unusual allegation
to the effect that Respondent violated Section 8(a)(5) by, in
derogation of the Union's representative status, assisting,
arranging for, and furnishing names and addresses of unit
employees to American Heritage Life Insurance Company
to allow solicitation of insurance sales from the unit em-
ployees without any prior notice to the Union, and by
agreeing to deduct premiums for the insurance thereby
sold from the employees' paychecks
Since 1965, and continuing through the present, Respon-
dent has maintained an arrangement with American Heri-
tage Insurance Company whereby an employee purchasing
insurance from the latter may, upon execution of payroll
deduction authorization, have premiums deducted by Re-
spondent from their pay and forwarded to American Hen-
tage There is no direct evidence that the Respondent has
in any other fashion aided, abetted, or solicited American
Heritage or its agents in the latter's sale of insurance to
Winn-Dixie employees
Doss Powell, a general insurance agent, is principally
engaged in the sale of American Heritage Insurance poli-
cies It was Powell who, insofar as this record discloses,
solicited sales among unit employees He credibly testified
that neither Winn-Dixie nor sources within American Her-
itage ever furnished names and addresses of unit or other
employees of Respondent According to Powell, he at-
tempted to get such information from those sources, but
was unsuccessful because of a policy against release of
Appeals confirmed that access must be granted to union agents if the Em
ployer has not established that union conducted studies would have se
verely disrupted production where the information is not available to the
union from other sources Here the Company s oral responses to the Union
were less than informative with respect to the basis for its incentive system
sanitary and safety conditions and supervisory performance of unit work
employees could not be an accurate source of this information and the
Company s restrictive attitude towards plant access by union representa
tives generally precluded any assumption that the requisite information
would come into the hands of the Union in the course of its general servic
mg of this bargaining unit Hamburg Shirt Corporation v N L R B 419 F 2d
1275 (C A 8 1969) It is clear to me that the Union had no alternative
source of discovering the facts necessary to the exercise of an informed
judgment at the bargaining table
such information Powell testified that he secured names
and addresses from employees themselves Wayne Spear, a
witness for the General Counsel, testified that Powell
called on him in 1971 to solicit Spear to purchase insur-
ance Spear asked Powell how the latter got Spear's name
Powell said that he got it from Winn-Dixie This reference
in Spear's testimony, while not binding on Respondent and
plainly hearsay, is further diminished in significance by
Spear's further testimony that Powell asked Spear for
names of Winn-Dixie employees 67 I regard this latter testi-
mony as corroborative of Powell's assertion that Winn-
Dixie employees were his source of names Quite obvious-
ly, at the time of this incident, there would have been no
need for Powell to request names from employees as a so-
phisticated ploy to mask the true source of that informa-
tion Spear's testimony establishes that Powell sought such
information from him, and the only sensible interpretation
is that Powell did so because, as he relates, employees were
the only available source of this information
Based upon the foregoing I find that Respondent did not
aid, assist, or abet American Heritage by furnishing names
and addresses of unit employees for the purpose of allow-
ing American Heritage Insurance Company to solicit in-
surance sales from unit employees 69 Furthermore, I am
not persuaded that a typical premium payroll-deduction
arrangement between an employer and an insurance car-
rier, as is involved here, which predates a collective-bar-
gaining relationship, can reasonably be construed as main-
tained in derogation of a union's representative status or,
in any sense, as an arrangement tending to impede the
bargaining process An employer need not discontinue
such arrangement upon employee designation of a bargain-
ing agent I shall recommend dismissal of this 8(a)(5) and
(1) allegation as unsubstantiated by the record 70
67 Elmer Knight another witness for the General Counsel and an employ
ee of Winn Dixie testified that Powell asked him for addresses of Winn
Dixie s employees and while the balance of his testimony is not inconsistent
with that of Powell this aspect further substantiates Powell
68 The testimony of Frank Goethe also called by the General Counsel
does not contradict that of Powell Goethe simply relates that Powell told
him he had the names of Winn Dixie employees
69 In so finding I prefer the direct credible evidence furnished by Powell
Knight and Spear over the speculative inference Charging Party urges me
to draw on the limited basis that (1) Winn Dixie and American Heritage
have common officers and interlocking directorates and (2) the latter is and
has been a primary insurance carrier for the former
70 The Charging Party alleges that the American Heritage issue reflects
three separate violations of the Act i e (1) the underlying arrangement and
its implementation (2) the attempted deception of carrying premium deduc
tions under the heading Community Chest on payroll stubs and (3) the
refusal of the Unions request made in 1973 to have a union approved car
net solicit insurance under the same conditions as available to American
Heritage As to (1) above the findings made in the text dispose of this claim
subject to the possible addition that I see nothing in the payroll deduction
arrangement itself dating back to 1965 which in the context of this allega
tion would require its cancellation upon certification of a union on pain of
violating Sec 8(a)(5) Further both (2) and (3) above are raised for the first
time in Respondents brief and constitute a posthearing assertion of theo
rtes bearing no reasonable relationship to the matters alleged in the com
plaint Aside from the denial of due process to Respondent which would
ensue were I to make unfair labor practice findings as to (2) and (3) the
Charging Party by such assertions attempts to amend the complaint with
out assent of the General Counsel to incorporate theories and asserted
unfair labor practices not fully and fairly litigated Accordingly I do not
regard (2) and (3) above as properly before me for decision
WINN-DIXIE STORES, INC 1445
E Alleged 8(a)(5) Refusal To Bargain and 8(a)(3)
Discrimination With Respect to Profit Sharing
The Respondent, since prior to the advent of the Union,
has maintained a profit sharing plan on a companywide
basis That plan until June 25, 1971, included a provision,
article II, section 2 4(b), which excluded from participation
therein
Employees, who as a result of collective bargaining
have entered into a written agreement by which Em-
ployer agrees to contribute funds for the benefit of
such employees to some form of Retirement Program
(other than "Program" herein)
On June 25, 1971, the following revision was made to
article II, section 2 4(b), thereafter, excluding
Employees who, as a result of collective bargaining
have entered into a written agreement with the Em-
ployer by which the employer has agreed to contribute
funds for the benefit of such employees to some form
of Pension or Retirement Program (other than "Pro-
gram" herein) and who have been excluded from this
Program by agreement of the parties
As I understand the theory of the complaint, the issues
framed with respect to the profit sharing plan are as fol
lows (1) Whether Respondent's exclusionary policy as re-
flected by the original and amended revision of article II,
section 2 4(b), was inherently discriminatory as a device
discouraging union membership, (2) whether Respondent
by giving effect to said exclusionary policy in the course of
1969-70 and 1972-74 negotiations, refused to bargain with
respect to inclusion of profit sharing in any resulting col-
lective-bargaining agreement, and (3) whether Respondent,
having resisted inclusion of profit sharing in the February
6, 1970 collective-bargaining agreement, discriminatorily
caused unit employees to forfeit both their right to partici-
pate and their interest in the profit sharing plan
It is well settled that employer sponsored benefit plans
which automatically exclude employees who either join 71
or become represented by a union 72 are inherently dis-
criminatory and unlawful The vice in such exclusionary
provision obviously stems from the fact that employees
who join or select a union, in consequence of such an exer-
cise of Section 7 rights, sustain an immediate loss of an
existing interest, without assurances that such benefit or its
equivalent will subsequently be restored through the bar-
gaining process
However, both the original and present version of article
II, section 2 4(b), of the instant plan present a different
problem Neither in terms, nor application does section
2 4(b) operate to exclude represented employees without
regard for what ultimately transpired in negotiations In-
deed, the first contract, negotiated after the Union's 1966
certification in this case provided for continued coverage
71 Toffenetti Restaurant Company Inc 130 NLRB 1156 1173 (1961) Jim
0 Donnell Inc 123 NLRB 1639 (1959)
72 Melville Confections Inc 142 NLRB 1334 (1963) The B F Goodrich
Co 195 NLRB 914 (1972) Dura Corporation 156 NLRB 285 (1965) enfd
380 F 2d 970 (C A 6 1967) Cf The Rangair Corporation 157 NLRB 682
(1966)
of unit employees under Respondent's profit sharing plan
More closely related to this case are Board holdings that
exclusionary language in an employer profit sharing pro-
gram not materially dissimilar to the original version of
section 2 4(b) was unlawful in circumstances where such
exclusion limited the scope of collective bargaining, by pre-
cluding discussion of union pension arrangements during
negotiations Good-faith bargaining with respect to this
mandatory subject was subject to threatened forfeiture of
company sponsored profit sharing eligibility 73
By way of defense, Respondent argues that the instant
case is distinguishable from Kroger and Solo Cup, supra,
because, here, the profit sharing plan was, in fact, a retire-
ment or pension program, and therefore, conceding that
such benefits constitute a mandatory subject of bargaining,
the original exclusionary policy set forth in section 2 4(b)
as implemented by company negotiators was not tanta-
mount to a removal of any mandatory subject from good-
faith discussion In other words, assuming that the
Respondents premise is substantiated, it is argued that it
had no obligation to bargain as to inclusion of two distinct
retirement systems in a single collective-bargaining agree-
ment, that its duty to bargain in good faith was fully satis-
fied despite its insistence at the bargaining table that the
Union agree to retain the existing profit sharing plan as the
governing retirement system or take a pension system in
some other form In opposition to Respondent, it is argued
that whether or not the profit sharing plan is a retirement
arrangement, section 2 4(b) and its implementation during
the bargaining was unlawful Charging Party and the Gen-
eral Counsel also argue that the profit sharing plan is not a
retirement or pension program
Before embarking on analysis of Respondent's profit
sharing plan and a consideration of whether, if that plan is
a pension, the governing legal principles afford Respon
dent a meritorious defense to all allegations involved here,
it would be well to point out that it stands as uncontrovert-
ed fact on this record that Respondent at no time bar-
gained or expressed a willingness to bargain in good faith
with respect to union demands for both its own pension
program and the Company's profit sharing plan Respon-
dent in its brief does not contend to the contrary and evi-
dence by witnesses from all sides establishes that as of Feb-
ruary 6, 1970, upon execution of the collective-bargaining
agreement, which for the first time included a union pen-
sion plan, unit employees could no longer participate in
profit sharing 74 During negotiations leading to that agree-
ment consistent with the limitation set forth in section
2 4(b),75 the company negotiators repeatedly informed the
73 The Kroger Co 164 NLRB 362 (1967) enfd 399 F 2d 455 (C A 6
1968) Solo Cup Company 176 NLRB 823 (1969)
74 It was stipulated that since February 6 1970 no contributions have
been made to profit sharing accounts of employees in the bargaining unit It
was further stipulated that all unit employees having accounts whether vest
ed or nonvested have had said accounts maintained in the same fashion as
nonunit employees including crediting for income or loss except no contri
butions have been made in their behalf since June 30 1969 the annual
adjustment date under the plan Finally it was stipulated that neither the
Union nor employer had been informed that accounts have been main
tamed in this fashion
75 That the position of company negotiators in 1969-70 was dictated by
Continued
1446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union that they could not have both plans,76 but would
have to take one or the other 77 The negotations commenc-
ing in December 1972, which presently remain in an open
state , disclosed no change in the Respondent 's attitude
Though section 2 4(b) had been previously modified to im-
ply that forfeiture of proft sharing would depend on con-
tinuing collective bargaining and a mutual agreement to
that consequence , Employer negotiators remained ada-
mant in their refusal to discuss union requests for both
continued union pension and restoration of profit shar-
ing 78
the exclusionary provisions of the plan is evident from the following excerpt
from the testimony of James Cameron
If the bargaining committee had agreed in this contract to put
these employees in both the profit sharing plan and the Union pension
plan the profit sharing committee would not have permitted the
employees to participate in the profit sharing plan
76 Considered with Cameron s notes taken at the 1969-70 negotiation ses
sions and the testimony of all who attested to discussions of this issue at the
bargaining table in this period the following portion of Gore s testimony is
found to be representative of Respondents usual reaction to union requests
for both plans
We told the Company or wanted them to understand we were propos
mg both the pension plan and the Company profit sharing plan
And Mr Bowden said to me You can t be serious about that
And I said to him I in serious about that
And I was told Well you can t have both
77 One phase of Gore s testimony attributes statement to Bowden tending
to suggest that in one instance Bowden foreclosed the Union from opting
for continued profit sharing shortly before execution of the February 6
1970 agreement As I construe this testimony in context I give it no such
meaning Previously the parties at the November 20 1969 bargaining ses
sion and through subsequent correspondence had agreed to accept the
Teamsters New Orleans contract as a guideline for settlement of their own
negotiations That agreement provided for a union health welfare and pen
sion program At the opening of the February 6 1970 session the Union
tendered its draft agreement which Bowden then changed to conform to the
existing unit Gore seized upon these changes as an opportunity to reopen
the profit sharing issue and did so with Bowden responding that the Union
could not have both that was impossible According to Gore when he
was about to opt for profit sharing Bowden angrily interrupted No you
have no choice you got the pension because that s what you asked for An
argument then ensued between Gore and Bowden as to who asked for what
which ended when Bowden said that the Union had to sign the agreement
or get nothing
As I see this incident an agreement had been reached as to the basis for
a new contract The Union draft of this agreement as presented to Respon
dent at the February 6 1970 bargaining session which provided for cover
age of employees that it represented under a Teamsters health welfare and
pension program was so alien to customary union practice and attitudes
and indeed commonsense as to make it plainly predictable that Respondent
would reject such language This as well as the retroactive issue would be
reasonably understood by Bowden as a ploy through which the Union could
impute a reneging to the Respondent so as to permit further negotiations as
to matters the Respondent could rightfully assume were settled I can read
nothing significant in these circumstances into Bowden s having lost his
temper at this Juncture
7 James Corley who attended all 1972 negotiations except that of Janu
ary 14 1973 summed up the Company s position regarding profit sharing at
those bargaining sessions as follows
Examination by Respondent s counsel
Q All right sir
Getting back to the bargaining sessions of 1973 do you recall whether
or not the company s profit sharing plan was ever mentioned at any of
the negotiations sessions?
A Yes sir many times
Q Do you remember when it was first mentioned and by whom9
A It was first mentioned by Mr Gore when he came in on the
negotiations
Q Do you remember what he said about it"
A Yes he said he wanted to reinstate the employees on the profit
I find that at all times material it was Respondent's un-
qualified and unyielding position that coverage of employ-
ee by both its profit sharing program and the union spon-
sored pension system was not only precluded , but was a
nonnegotiable subject in bargaining negotiations
Were it not for Respondent 's contention that its profit
sharing program was a pension or retirement system, the
finding made above , considered in the light of the Kroger
decision , would end the inquiry However, Kroger, presup-
poses that the profit sharing system in controversy is not a
pension system but one that returns some other form of
benefit
Thus, in Kroger the Company maintained its own retire-
ment plan and a separate savings and profit sharing plan
Both plans were subject to an exclusionary provision deny-
ing participation to employees covered by a union pension
plan The complaint alleged an 8(a)(1), (3), and (5) viola-
tion only with respect to Kroger's maintaining and giving
effect to the exclusionary provision insofar as it required a
forfeiture of savings and profit sharing eligibility Kroger's
right to bar employees covered by a union pension plan
from its own pension system was neither disputed nor
placed in issue by the complaint in that case Indeed, the
Trial Examiner in Kroger found the 8(a)(1), (3), and (5)
violations only after careful analysis and rejection of the
employer's defense that the savings and profit sharing plan
was a retirement plan On the facts , he viewed the former
as a benefit program distinct from a pension system The
plain implication that arises from Kroger supports the legal
sufficiency of Respondent 's claim that its own profit shar-
ing plan is a retirement program As I interpret Kroger that
defense must be rejected if the alleged violations herein are
to prevail The merit in such a defense is also suggested in
Solo Cup Company, 176 NLRB 823, 824 ( 1969), wherein at
fn 3 thereof the following is stated
This does not mean of course, that an employer may
not advise his employees , in a noncoercive fashion,
that pensions for those in the unit are subject to bar-
gaining and that if a separate pension plan for those in
the unit is agreed upon , coverage in the existing plan
will not be maintained , i e , the employer is not obli-
gated to provide double coverage 79
sharing program along with the union pension fund
Q Was this just proposed one time or was it-
A Oh many times many times profit sharing was discussed many
times at the negotiations meetings
Q Do you know what the company s position was in regard to this
proposal
A Yes Mr Bowden told him that the profit sharing program was
negotiated out of the previous contract that he agreed to it and that he
wasn t gonna put it back in just because he wanted him to
Q Do you recall any other reason9
A He told him that they wasn t gonna have both and he negotiated
it out in the first contract and he agreed to it
Q Was that position ever changed?
A No never changed
79 I do not agree with the Charging Party s assertion based essentially
upon Solo Cup that art II sec 2 4(b) and the bargaining pursuant thereto
would be unlawful even if the instant profit sharing plan were a retirement
system It is true that the Solo Cup decision does not include comprehensive
findings as to the nature of the profit sharing plan involved there and
hence with respect to this issue is sufficiently ambiguous as to permit the
Charging Party s interpretation of that case However in the face of the
footnote quoted from Solo Cup the heretofore expressed interpretation of
WINN DIXIE STORES INC 1447
The Profit Sharing Plan Pension system or other form of
benefit? The profit sharing plan involved here is based on
voluntary participation, with eligibility limited to regular,
full-time employees who have attained 21 years of age,
with 5 years continuous employment with the Company,
who have applied formally to participate in the program
Upon satisfaction of these eligibility standards, personal
accounts are set up for each employee participant Contn-
buttons are made by the Employer on a percentage of the
Employer's net earnings, but limited to a maximum of 15
percent of the total compensation of all participating em-
ployees of the Company, or any of its subsidiaries, re-
spectively This contribution is then allocated on a pro rata
basis to the participating employee's account 80 There is no
requirement that participating employees themselves make
contributions, but limited provision is made for voluntary
contributions 81
Participating employees or their heirs may realize the
beneficial interest in their accounts on either a full or par-
tial basis Prior thereto, participants possess no vested ben-
eficial interest in their accounts Full payment is allowed,
as the following conditions are met (a) an employee's
death, (b) an employee's disability, (c) an employee's re-
tirement on or after his normal retirement date, and (d) his
postretirement date discharge for reasons other than theft,
embezzlement, or other dishonesty or for conduct detri-
mental to the best interests of the Company Payment is
made on options specified in the plan, none of which in-
volve a lump-sum full payment, with all providing for dif-
ferent forms of periodic payment Benefit payments con-
tinue until such time as the participant's account is
exhausted
In addition to the foregoing, a participating employee's
interest in his account may be realized upon his discharge
the Kroger case and my own understanding of the limits of an employer s
statutory obligation to bargain I am unwilling to ascribe to the Board
reasoning to the effect that an employer cannot lawfully announce in ad
vance and adhere to the view that it will not agree to coverage of repre
sented employees by two distinct pension programs
Furthermore I cannot agree with the Charging Party that Sec 2 4(b) was
unlawful because promulgated and maintained in a coercive atmosphere It
is true that Respondent in this and other cases has engaged in unfair labor
practices and hardly has demonstrated a receptiveness to the principles of
self organization and collective bargaining Nonetheless the general animus
suggested by this history does not reach each and every act of Respondent
If it be true that the exclusionary policy is aimed simply at precluding dual
coverage with respect to a single benefit the wisdom in such a policy is so
compatible with commonsense as to be inherently lawful It should not be
disturbed by speculative inferences derived from unrelated present or past
unfair labor practices no matter how severe or extensive In the context of
the issue presented the argument made by Charging Party urges a sanction
not on the merits of the unfair labor alleged but more in the nature of a
punitive form of relief based on Respondents unlawful conduct in other
areas
80 The only exception to the account distribution feature is set forth in
Sec 8 2 Pursuant thereto employees earning less than $8 500 annually are
paid cash in the equivalent of one third of his share of the annual employer
allocation or $300 whichever is the lesser
Si The plan permits employee contributions on a purely voluntary basis
but in multiples of $100 only These employee contributions are maintained
in separate accounts which are not considered in determing the pro rata
amount of the Employers contribution or forfeitures to be allocated to the
participants personal account Such employee contributions share only in
the earnings of the trust on a pro rata basis After such contributions have
been held in trust for 2 years they may be withdrawn by the participant in
$100 multiples
or voluntary termination of employment if such termina-
tion occurs after attaining the age of 50 and after comple-
tion of 10 years or more of continuous service In such
event, the participant receives benefits up to 100 percent of
the value of his account, to be paid in the same manner as
if he had retired on or after his normal retirement date
Thus, here again, lump-sum cash payment of benefits is
not sanctioned
Provision is also made for partial vesting of a portion of
a participant's account if upon discharge or voluntary ter-
mination, he has attained the age of 35 Those eligible for
benefits under this provision do not receive 100 percent of
the value of their accounts but a fractional share based on
a prescribed formula The amount of the entitlement is to
be used to purchase a noncashable, single premium life
annuity with payments deferred until a participant reaches
the age of 60 Realization of benefits will only be in the
form of a lump-sum cash payment if the amount to which
the participant is entitled is insufficient to purchase an an-
nuity which provides an income for life in excess of $10
monthly upon reaching age 60
Those who cease to participate in the plan and fail to fall
into the above categories, retain no interest whatever in
their accounts, which are forfeited and then allocated and
credited to the accounts of other participants in the same
manner as the Employer contribution
In assessing whether this, as Respodent contends, is a
pension fund, it is significant that, unlike the Kroger case,
the unrepresented employees of Respondent must look to
the profit sharing plan as the exclusive source of retirement
benefits Winn-Dixie does not maintain any other system
of retirement or pension-type benefits
I am satisfied that the profit sharing plan involved here
is, in fact, a retirement program It is funded almost exclu-
sively by employer contributions Participants, upon at-
taining eligibility, have no vested immediate interest in
their accounts With two exceptions, benefits may only be
realized on termination of a participant's employment after
reaching the age of 50, or on their becoming physically
incapable of further employment All benefits are intended
to be paid in deferred, periodic form The exceptions relate
to the cash payment up to $300 annually to participants
earning less than $8,500 per year, and the cash payment
possibly available to employees terminating after age 35,
whose entitlement is insufficient to purchase the prescribed
life annuity The latter is incidential to the 35 or over par-
tial vesting provisions of the profit sharing plan 82 Al-
though I cannot reconcile the cash allotment to low wage
earners with classical objectives of a true pension arrange
ment, it nonetheless remains that two thirds of their annual
allocation goes into their profit sharing account earmarked
for their retirement or separation and the partial cash pay-
ment is too minor a contradiction in the overall scheme to
render ambiguous what otherwise is plainly a comprehen-
sive system of retirement benefits, with no benefits avail-
82 In may opinion this partial vesting feature is perfectly consistent with
the overall retirement scheme insofar as it allows some portability in pen
sion benefits as an alternative to the forfeiture normally sustained by those
who leave their employment before reaching retirement age or prior to
otherwise establishing eligibility for retirement benefits
1448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
able to employees until they are 50 years of age,83 or at an
earlier age, only if physically incapable of employment To
conclude that the Company is required to bargain to per-
mit a union pension plan to stand side by side with the
profit sharing program simply because of this isolated de-
parture from the overall objectives of the profit sharing
plan is to reach a hypertechnical conclusion, which in the
proverbial sense, allows "the tail to wag the dog "
In its brief, the Charging Party argues that Winn-Dixie's
profit sharing program "is hardly a comprehensive pro-
gram such as the Union's program, and retention of both
plans for the employees would not constitute double retire-
ment coverage " In support, Charging Party points to the
following characteristics of Respondent's plan (1) A work-
er is not eligible to participate until he has been with the
Company for 5 years, (2) the profit sharing program is not
funded by fixed payments and may fluctuate from year to
year depending on company profits, (3) a participant in the
profit sharing program "is absolutely entitled to a cash
payment of the amounts attributed to his account" upon
retirement, disability, or discharge for reasons other than
conduct detrimental to the best interest of the Employer,
and at age 35 an employee may even withdraw money ac-
cumulated in his account upon his voluntary departure
from the Company,84 (4) upon reaching the age of 50, an
employee with 10 continuous years of service is "entitled to
withdraw his entire amount from the profit sharing pro-
gram upon quitting," 85 (5) the value of the participant's
account varies with profitability, and, once exhausted, the
employee has no further security, and (6) the entire pro-
gram can be terminated at the whim of Winn-Dixie's board
of directors These contentions, to the extent that they ac-
curately portray the record, do not alter my conclusion
that the profit sharing plan is a retirement or pension sys-
tem They stress the qualitative disadvantages of the Winn-
Dixie pension plan, and accordingly are tantamount to an
argument that a pension plan is not a pension plan where
there is a better pension plan While arguments of this sort
might be used to persuade employees that the Meat Cutters
plan, by virtue of its funding eligibility requirements, secur-
ity, and benefits is preferable to the Employer's Plan, they
are hardly material to an assessment of whether section
2 4(b) violates the law Section 2 4(b) does not preclude the
Employer from bargaining as to any form of pension the
Union would seek The Union is free to negotiate thereby
with respect to a pension system, without limitation as to
the nature of eligibility, vesting, coverage, or benefits
sought The Employer, though acting in strict accord with
the original section 2 4(b) version at all times , has not de-
clined to bargain fully and in good faith with the Union as
83 The partial vesting provisions dealing with employees who reach the
age of 35 contemplates that payments be deferred until the participant
reaches the age of 60
84 Other than to point out that these observations made by the Charging
Party do not accord with my construction of the evidence I shall not refer
to them again See sec 7 3 and 7 3(b) of the Winn Dixie profit sharing plan
85 The above quote represents a somewhat loosely worded characteriza
tion of the nature of payment available to participants who reach 50 years
of age Sec 7 3(b) of the profit sharing plan incorporates sec 7 2(a) (b) (c)
and (d) as to the method of payment and no provision is included among
these sections which entitles a participant to lump sum withdrawal of an
entire amount All benefits are realized either directly or indirectly through
periodic installment payments
to such matters The Union, now, cannot argue that be-
cause the Employer did so, and because the negotiated
pension plan awards different or better benefits than those
available under profit sharing, the Employer now, as the
complaint alleges, could not lawfully refuse "the Union's
request that employees in the unit be permitted to
participate in the profit sharing program "
Conclusion as to the profit sharing issue Parties to collec-
tive bargaining, in order to fulfill their statutory obliga-
tions, must negotiate in good faith with respect to all man-
datory subjects of collective bargaining That pension or
retirement systems constitute a mandatory subject of bar-
gaining is no longer open to question Whether or not Re-
spondent offended statutory obligations in this regard,
considered in the light of my finding that the profit sharing
plan was a retirement system, necessarily turns on
Respondent's refusal to bargain as to the inclusion, in a
single collective-bargaining agreement, of two distinct re-
tirement systems For as heretofore indicated, nothing in
this record suggests an unwillingness on Respondent's part
to discuss, negotiate, and execute an agreement containing
retirement protection for unit employees, either in the form
of the Company's profit sharing plan, or any arrangement
proposed by the Union as an alternative thereto
Aside from my understanding of the Kroger and Solo
Cup Co, decisions, supra independent analysis persuades
me that this is all that Section 8(d) requires To require
employers to treat with a statutory representative as to
multiple forms of the same benefit, would hardly contri-
bute to a culmination of bargaining with dispatch, in a
manner free of confusion, and without concern that agree-
ments reached might not necessarily put matters to rest It
is enough that, as here, where an employer has demonstrat-
ed a will to negotiate fully with respect to the nature and
cost of a particular benefit, no further duty is imposed to
further discuss union demands that, despite agreement on
such benefit, the identical benefit be duplicated and con-
tinue to be made available through a separate program
The employer in these circumstances is free to insist that
the Union take the mandatory subject of bargaining in one
form or the other, but that it cannot have the benefit dupli-
cated through two differently structured programs
It follows, from the foregoing, including my finding that
the profit sharing plan is in essence a retirement program,
that the exclusionary policy set forth in the original and
amended version of article II, section 2 4(b), of the profit
sharing plan would not interfere with employees in the ex-
ercise of their Section 7 rights No threat is thereby posed
that designation of a collective-bargaining representative
carries a risk of loss with respect to an existing benefit
distinct from pension 86 Nor has the employer, by predeter-
86 Respondent maintains a separate Salary Continuance Program
which affords monetary protection in the event covered employees are un
able to earn a living because of physical disability Eligibility of participants
in this program is limited inter aka to employees enrolled in the profit
sharing plan Nonetheless I regard this fact as irrelevant to analysis of the
validity of the Company s actions under scrutiny here I so conclude be
cause art II sec 2 4(b) does not exclude from negotiations the salary
continuance program and the Union was free therefore to negotiate both its
own pension program and continued coverage for unit employees under the
salary continuance program There is no contention allegation or showing
that the Respondent refused to discuss or bargain with the Union concern
WINN DIXIE STORES, INC
mination, removed pensions by virtue of article II, section
2 4(b), as an appropriate subject for collective bargaining
Unlike Kroger, supra, where the exclusionary policy
reached both the employer's longstanding pension and dis-
tinct profit sharing program, and hence the negotiated
union pension plan, would leave represented employees
with a pension plan only, while nonunion employees con-
tinued to enjoy both the Company's pension and profit
sharing benefits, no such disparity based on union affilia-
tion flows from article II, section 2 4(b) In the instant case,
the exclusionary policy assumes a parity between repre-
sented employees and unrepresented employees, with all
employees on notice that upon designation of a bargaining
representative, a choice will be required of the latter, which
presumably will be reflective of the will of unit employees,
as to whether retirement benefits will be negotiated and
enjoyed in one form or the other Section 2 4(b) simply
places the Union in a position of judgment, as to whether
or not it should seek what it deems to be a superior pension
program as an alternative to that historically in effect Or-
ganizational interest under these circumstances would only
be diminished were the Union to opt for a program inferior
to that which exists under the Company's own sponsorship
Nothing in the Act is designed to save a union harmless in
the event of such miscalculation in the course of collective
bargaining
In sum, I view the exclusionary policy here as permitting
the Union to employ the bargaining process in quest of
whatever system of retirement benefits it deems desirable
and, thereafter, once agreement is reached on such de-
mand, to free the employer from negotiating with respect
to further demands that such benefits be duplicated
through continued coverage of unit employees under a
preexisting company sponsored retirement program In this
sense, I am satisfied that the instant case is distinguishable
from Kroger Section 2 4(b) at worst, precludes the Union
from negotiating two separate programs providing the
same benefit Such a limitation and its implementation in
bargaining is in no way inconsistent with the principles of
good-faith bargaining, and imposes no penalty on employ-
ees because they exercise Section 7 rights Any forfeiture of
accounts resulting from the Union's decision to adopt a
pension system different from that historically in effect,
would not, in the context of this case, flow from any em-
ployer action which could qualify as inherently destructive
of organizational rights, but from the uncoerced judgment
of the statutory representative as to what form of retire-
ment system best serves the interests of represented em-
ployees Accordingly, I shall recommend dismissal of the
allegations that Respondent by maintaining and giving ef-
fect to article II, section 2 4(b), of its profit sharing pro-
gram violated Section 8(a)(1), (3) and (5) of the Act
ing continued coverage under this or any other disability program sought by
the Union
87 N L R B v National Shoes Inc 208 F 2d 688 691-692 (C A 2)
F Overall Bad Faith
1449
1 Preliminary statement of issues and authorities noted
As previously noted in the introductory section of this
Decision the Charging Party, with assent of the General
Counsel, has effectively placed in issue the entirety of
Respondent's conduct both at and away from the bargain-
ing table, dating back to the resumption of negotiations
after the decertification election of July 1969 The issue
presented is one of subjective bad faith, requiring an as-
sessment of whether Respondent was simply engaged in a
course of hard bargaining, in the interest of seeking favor-
able agreement, which constitutes a perfectly legitimate ap-
proach to bargaining, or, on the contrary, whether its ap-
proach to negotiations reflected a proscribed bent to
manipulate the process to achieve ends inconsistent with
principles of collective bargaining and a good faith accep-
tance of the statutory mandate in this regard To the finder
of fact, and reviewing forums as well, drawing the distinc-
tion between proscribed and legitimate rigidity at the bar-
gaining table is no easy task "The problem is essentially to
determine from the record the intention or state of mind of
the [employer] in the matter of [its] negotiations with the
Union such a determination is a question of fact to be
determined from the whole record " 87 Section 8(d) defines
collective bargaining as "the performance of the mutual
obligation of the employer and the representative of the
employees to meet at reasonable times and confer in good
faith with respect to wages, hours, and other terms and
conditions of employment or, the negotiation of an agree-
ment " As recently stated in N L R B v Continental
Insurance Company, 495 F 2d 44, 47-48 (C A 2), " the
parties are obligated to do more than merely go through
the formalities of negotiation There must be a serious in-
tent to adjust differences and to reach an acceptable com-
mon ground, N L R B v Insurance Agents Union, 361 U S
477, 485 (1960) " Along the same lines, the following quote
appears in Sweeney & Company v N L R B, 437 F 2d 1127,
1134 (CA 5, 1971)
The obligation of the employer to bargain in good
faith does not require the yielding of positions fairly
maintained
"[W]hile the employer is assured these valuable rights,
he may not use them as a cloak In approaching it
from this vantage, one must recognize as well that bad
faith is prohibited though done with sophistication
and finesse Consequently, to sit at a bargaining table,
or to sit almost forever, or to make concessions here
and there, could be the very means by which to con-
ceal a purposeful strategy to make bargaining futile or
fail Hence, we have said in more colorful language it
takes more than mere `surface bargaining' or `shadow
boxing to a draw,' or `giving the Union a runaround
while purporting to be meeting with the Union for
purpose of collective bargaining "
1450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NLRB v Herman Sausage Co 275 F 2d 229, 231-
232 (5th Cir 1960)
2 Factual commentary
Entirely relevant to the factual inquiry is Respondent's
history of unfair labor practices at its various facilities, in-
cluding the Jacksonville warehouse This history outlined
below begins with Respondent's unlawful resistence to em-
ployee organizational rights at four retail locations in
North Carolina as detailed at 128 NLRB 574 (1960) Simi-
lar intimidation of employees in the course of an organiza
tional campaign at its Owensboro, Kentucky, retail store is
reported at 143 NLRB 848 (1963) 88 The decision reported
at 157 NLRB 657 (1966), reflects Respondent's campaign
of unlawful reprisals following a victory by a union in a
Board conducted election at its Greenville, South Carolina
warehouse 89 At 166 NLRB 227 (1967), unlawful interfer
ence with an attempt to organize Respondent's Tampa
warehouse is the subject of Board remedies 90 An organiza-
tion effort at the Hialiah warehouse is the subject of Board
unfair labor practice findings reported at 181 NLRB 611
(1970) The Board's decision at 207 NLRB 290 (1973), in-
volves discrimination by Respondent against strikers at a
store in Atlanta, Georgia
Employees at the Jacksonville warehouse were not insu-
lated from Winn-Dixie's practice of combatting employee
organization and collective bargaining via unfair labor
practices In September 1961, the Charging Union began
an organization drive among employees in the meat pro-
cessing, cheese, and cottage cheese department at that lo-
cation This effort was met by a concentrated campaign of
intimidation including coercive interrogation, soliciting
employee withdrawals from the Union, promises of bene-
fits, and threats of reduced benefits, all of which were com-
mitted during a compacted period of some 8 weeks The
Board in finding these unfair labor practices, issued a Joy
Silk 91 bargaining order 92
Thereafter, the cheese and meat processing operation at
Jacksonville was discontinued, without notification or bar-
gaining with the Union Winn Dixie was again adjudged to
have violated the law 93
In 1963 the Union began organizing employees who are
part of the present appropriate unit That effort encoun-
tered an intense antiunion campaign, pocked with serious
unfair labor practices, including interrogation, threats,
promises of benefits, soliciting employees to report on
union activities of other employees, and discrimination 94
as The Boards order in this case was enfd 341 F 2d 750 (C A 6 1965)
s9 Enfd 379 F 2d 958 (C A 4 1967)
90 Enfd 414 F 2d 786 (C A 5 1969)
9i
Joy Silk Mills Inc v N L R B 185 F 2d 732 (C A D C) That decision
was the forerunner to N L R B v Gissel Packing Co 395 U S 575 (1969)
92 138 NLRB 1355 (1962) enfd 324 F 2d 502 (C A 5 1963) The Board s
order in that case subsequently was the predicate for civil and criminal
contempt proceedings in the Fifth Circuit Court of Appeals See 353 F 2d 76
(CA 5 1965) and 386 F 2d 309 (CA 5 1967)
93 147 NLRB 788 enfd 361 F 2d 512 (C A 5 1966)
94 153 NLRB 273 At 410 F 2d 1119 (1969) the Fifth Circuit declined to
enforce the 8(a)(3) finding (Ethridge) But see also the civil contempt pro
ceeding reported at 353 F 2d 76 (C A 5 1965) which was predicated on the
Following issuance of the civil contempt decree in 1965,
criminal contempt proceedings were instituted in the Fifth
Circuit Court of Appeals, predicated, inter aha, upon sub-
sequent unlawful conduct by Winn-Dixie, including cer-
tain conduct directed at employees in the instant unit
Based on findings that Respondent, through supervisory
personnel, engaged in coercive interrogation, threats, and
solicitation of employee withdrawals from the Union,
Winn-Dixie was adjudged in criminal contempt 95
Notwithstanding Respondent 's manifest hostility to em-
ployee organization, and, indeed, the additional 8(a)(1) vi-
olations previously found herein, the Company failed in its
effort to defeat the Union as bargaining representative in
the present unit in the election of May 5, 1966 This record
does not touch on the ensuing negotiations which resulted
in a 1-year contract, but it was not until May 15, 1968, that
the parties executed their first collective- bargaining agree-
ment
The 1968 agreement did provide for checkoff, subject to
revocation at will, but in other respects represented an
agreement which, objectively viewed, no self-respecting la-
bor organization could live with indefinitely It reflects the
one-sided perspective frequently found in standard form
leases written by landlords in areas where there is a high
occupancy rate among available rental units
It includes one of the most comprehensive, yet specific,
management rights clauses (art XVI), supplemented by
"zipper' clause (art XXIV), that this reader has ever seen
In contrast to the reservations of management authority,
the contractual grievance procedures do not provide for
compulsory arbitration of unresolved difference (art XII),
but such matters are left to resolution through a relaxation
of the no-strike and no-lockout clause (art XII, sec e),
which relaxation is itself subject to certain prescribed limi-
tations
Little is afforded in the way of job security Seniority is
limited to departments, with such seniority terminated, in
ter aba, on permanent transfer to another department, an
act which may be accomplished by the Employer at its
discretion (see art VIII) Furthermore, seniority may only
be exercised with respect to layoff, recall, overtime, and
vacation preferences, with no specific contract language
affording senior employees any preference with respect to
promotion, shift selection, or transfers
That contract does not sanction union visitation or per-
nut access by nonemployee agents of the Union to the
plant On the other hand, the Union's right to utilize bulle-
tin boards is restricted to notices of union recreational and
social affairs, elections and results, appointments, and
meetings (art XV) The contract specifically bans the
Union from any other form of distribution or postings on
company property
On March 17, 1969, only 10 months after execution of
that agreement, a decertification petition was filed Winn-
Dixie again presented an opportunity to campaign against
the Union and had no intention of maintaining the posture
of a neutral A vigorous campaign was launched to secure
a "No" vote The theme of Respondent's propaganda was
8(a)(1) violations found by the Board in this case Winn Dixie at that time
was adjudged in civil contempt
95 In re Winn Dixie Store Inc 386 F 2d 309 (C A 5 1967)
WINN DIXIE STORES, INC 1451
that the Union proved ineffective at the bargaining table
and was not needed by the employees, who might do as
well if not better without union representation The
Respondent's arguments, as stated in literature heretofore
and hereinafter set forth in this decision, contained an im-
plied acknowledgement of the weaknesses, from the
Union's point of view, of the 1968 agreement
I have found that Respondent in the 1969 campaign
could not confine its efforts to oust the union to legitimate
means but again violated Section 8(a)(1) by the announce-
ment of new insurance benefits, by promulgating, main-
taining, and enforcing a broad and unlawful no-solicitation
and no-distribution rule, and by conducting antiunion
meetings, complete with the type of amenities that would
tend to induce employees to support the Company's decer-
tification effort
Nonetheless, the Union was again certified on July 31,
1969
I am satisfied that the bargaining that followed included
unlawful tactics calculated to erode the bargaining process
by weakening the Union's negotiating position, and there-
by creating an atmosphere in which it could perpetuate the
appearance of truth in its 1969 campaign propaganda that
the employees did not need a union
Thus negotiations opened on August 1, 1969 Coinciding
with that event, was the Employer's unilateral grant of in-
creased health insurance, a fact as to which the Union was
not informed until the following month 96 The Respondent
at this meeting sought union assent to its proposed immedi-
ate grant of a 25-cent across-the-board increase The
Union vigorously opposed the increase,97 and presented
oral proposals for wide-scale revision in the 1968 agree-
ment
On August 3, 1969, over objection of the Union the un-
lawful increase of 25 cents was granted
The parties next met on August 13, 1969 At that meet-
ing the Union's proposal, in the form of a 67-page docu-
ment, was submitted in writing Ackerman the Union's sec-
retary-treasurer, explained the need for broad revision in
the contract because the Union regarded it as impossible to
administer, and because the Company's opposition to the
Union during the recent organizational campaign, made it
necessary for the Union to obtain a contract which would
reflect effective representation of employees Union pro
posals of significance related to (1) a reduction in the pro-
bationary period of from 30 to 60 days, (2) a right of refer-
ral by the Union of job applicants, without obligation on
the part of the Employer as to their hiring, (3) superseniori-
ty for union stewards, (4) plantwide seniority exercisable
with respect to transfer and promotion, (5) daily overtime
after 8 hours of work, voluntary overtime for work over 10
96 Negotiations for the insurance revisions had been going on for several
months before their implementation Nonetheless the Union though the
then certified bargaining representative was not informed of these negotia
Lions nor afforded any input whatever into Winn Dixie s contemplated
modification of this mandatory subject of collective bargaining
97 During the preelection campaign letters signed by C G Parsons dat
ed July 8 and 16 1969 respectively were distributed to employees criticiz
ing the Union for opposing this very increase during the preelection period
Against this background the Union could hardly assent to the increase at
the bargaining which followed without obtaining some concession from the
Company
hours in a day, and premium overtime for Saturday and
Sunday work, (6) increase in shift differential from $ 08 to
$ 14 hourly, (7) 5 weeks' vacation after 20 years' service, (8)
increasing paid holidays from five to six annually, (9) a
more limited management-prerogatives clause, (10) com-
pulsory arbitration, (11) a clause liberalizing Union use of
bulletin boards, and (12) union pension and welfare pro-
grams together with continued profit sharing
On August 20, 1969, the Company submitted its counter-
proposal, rejecting the substance of each of the Union's
demands outlined above, insisting instead on continued
adherence to the corresponding provisions in the 1968 con-
tract 98
In subsequent regotiating sessions it became evident
that the Union was seeking a 3-year contract, while the
Company insisted on the proposed 1-year agreement as set
forth in its original contract
As of November 20, 1969, the parties had met on some
16 occasions As of that time Respondent remained persis-
tent in its refusal to modify the 1968 agreement with re-
spect to (1) length of the probationary period, (2) union
referral of job applicants, (3) supersemority of union stew-
ards, (4) plantwide seniority, involuntary overtime, and
overtime premiums, (5) daily overtime, (6) shift differen-
tial, (7) vacation, (8) holidays, (9) compulsory arbitration,
and (10) union pension and welfare programs with contin-
ued profit sharing There had been some movement with
respect to the waiver clause, but, as I construe the record,
Respondent persistently adhered to its demand for renewal
of the management rights language contained in article
XVI, section A 99
Several days prior to the November 20, 1969, session,
Winn-Dixie had reached agreement with the Teamsters
covering a unit at its New Orleans warehouse In relation
thereto, Bowden, by letter dated November 17, 1969, wrote
Gore as follows
Dear Mr Gore
Re Winn-Dixie Stores, Inc
Jacksonville Warehouse Negotiations
Please be advised that negotiations in New Orleans
between the Teamsters Union and the Company have
98 This is not to say that the Company showed no disposition to make any
concessions However these related to lesser union demands having little
real impact on the internal labor relations structure and hardly of import to
employees Thus agreement was indicated with respect to a nondiscrimma
tion clause and the Union s proposal that probationary employees be sub
ject to contract provisions other than those affording protection against
discharge and the grievance machinery The Company also exhibited some
flexibility with respect to Union proposals regarding (1) jury duty (2) mili
tary service (3) safety committee (4) informing union as to new hires and
(5) defective equipment Specific counterproposals were made with respect
to (1) sanitary conditions (2) doctors leave privileges (3) union visitation
and (4) rest periods
The Union s demand for a 75 cent increase was countered with a pro
posed 10 cent increase
99 Cameron s notes with respect to the session of October 23 1969 sug
gests that an agreement was reached on general language proposed by Bow
den in lieu of Company Article XVI I cannot believe that this reference
insofar as it refers to the entirety of art XVI is accurate for that interpreta
Lion conflicts with the balance of the exchange of views reflected in these
notes The new offer may well have been in reference to art XVI sec B
which appears to be at least in intent consistent with the newly proposed
language
1452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been concluded and settled The Teamsters in New
Orleans accepted the old contract with very minor
modifications in reference to pay for night shift work
and a 25¢ per hour increase in the hourly rates
It appears to me that this should have an impact on
our negotiations in Jacksonville, since both of these
negotiations involve identical operations The New
Orleans contract and the Jacksonville contract in the
past have been almost identical in all respects There-
fore it would logically appear major modifications of
every article such as you have proposed in the Jack-
sonville contract are unreasonable and indicate you
have no real desire to bargain in good faith and con-
summate an agreement in Jacksonville
I earnestly request that you set aside your personal
ambition to renegotiate an entire new agreement and
allow us to proceed with what may appear to be neces-
sary modifications, using our old agreement as the
starting point This is historically the manner in which
renewal of existing contracts is accomplished
I urge you to consider your demands in this light so
that we can consummate a new agreement at the earli-
est opportunity
Yours truly,
O R T Bowden
The Union and the Company at the November 20 negotia-
tion session agreed to forego all that had transpired and
accept the New Orleans package as the basis for a new
1-year agreement The Union filed the instant unfair labor
practice charges on the very next day, November 21, 1969,
and finally, on February 6, 1970, the new agreement, de-
spite protestation by Gore, was executed
The agreement was virtually identical to the 1968 con-
tract covering the instant unit, but did include a 25-cent
across-the-board increase Differences from the old agree-
ment are limited to a reduction of the shift differential from
$ 08 hourly to $ 05 hourly, provisions for an additional
holiday, union sponsored health and welfare and retire-
ment , union sponsored pension, and deletion of profit
sharing It should be evident that, with the exception of the
wage increase , additional holiday, and coverage of union
health, welfare, and pension programs, this new contract
reflected a total capitulation by the Union to a renewal of
the 1968 collective-bargaining agreement Night-shift em-
ployees would be less than favorably impressed with the
3-cent reduction in their hourly shift differential
Acceptance of the New Orleans package, while involving
an almost total retreat from the Union's demands, was,
perhaps, dictated by conditions prevailing on November
20, 1969 It will be recalled that during the preelection
campaign of July 1969, which immediately preceded the
election, the Respondent, intent on sustaining a decertifi-
cation of the Union at the polls, campaigned on the theme
that the Union had achieved little for employees in past
bargaining and was unnecessary As of November 20,
1969, in contrast with the Employer's illicit grant of the
August 3, 1969, wage increase, and the August 1, 1969,
unlawful implementation of previously promised improve-
ments in health and medical insurance, there was not a
single enhancement in terms and conditions of employ-
ment for which the Union could share credit since execu-
tion of the collective-bargaining agreement of May 6, 1968
Insofar as the 1969 negotiations were concerned, positions
taken by the Employer at the bargaining table left the
Union little prospect for improving its record with respect
to the type of benefits which employees would readily
identify as constituting a tangible, immediate gain Thus, at
every turn, Respondent rejected without compromise or
counterproposal, union requests for additional vacations,
additional holidays,' increased shift differential, daily over-
time for work in excess of 8 hours, double time for Sunday
work and time and one-half for Saturday work, and ware-
housewide seniority It is my distinct impression that the
only alternative to acceptance of the New Orleans con-
tract, which was then available to the Union, was strike
action When one considers the impact of an unfair labor
practice history dating back to 1963 in the warehouse,
compounded by employee apathy towards strike action
that would necessarily result from the August 1969 grants
of the unilateral wage increase and improved insurance
benefits, one can readily understand why the Union opted
against this latter course of action Instead, a settlement
formula was accepted embodying the precise weaknesses
of the collective-bargaining agreement which preceded the
1969 decertification activity, and which was exploited by
the Respondent in its campaign effort to secure decertifica
tion of the Union Having settled on this basis, the Union
filed comprehensive unfair labor practice charges the next
day
The agreement based on the New Orleans contract was
executed on February 6, 1970, with a termination date of
February 6, 1971 By letter dated January 25, 1971, Scheu-
rich to Bowden, the Union forwarded proposals for revi-
sions to the existing contract Among the Union's propos-
als were (1) irrevocable checkoff for a period of 1 year, (2)
plantwide rather than departmental seniority, (3) daily
overtime for work in excess of 8 hours, double time for
Sunday work, and time and a half for Saturday work, (4)
increased shift differential to 15 cents, (5) 4 weeks' vaca-
tion after 15 years' service, (6) addition of a seventh holi-
day, (7) compulsory arbitration, broad no-strike and no-
lockout clause, (8) increased health and welfare contribu-
tion, (9) increased contribution to pension plan, (10)
agreement for a 3-year term, and (11) a "substantial" un-
defined wage increase At a negotiation session in March
1971, the Union's proposals were raised Scheurich, under
examination by counsel for the Charging Party, credibly
testified as to what transpired at that bargaining session as
follows 2
And, did you have another meeting with the compa-
ny at which you discussed these proposals"
A Yes, I did
The Union s demand for a sixth holiday was rejected at all times prior to
the settlement based on the New Orleans contract which contained such a
benefit
2 1 credit Scheurich whose testimony was uncontradicted His account of
the Company s position is consistent with that held by the latter in the 1969
negotiations as well as in the negotiations which followed in 1972 The
veracity of Scheurich in this respect is also borne out by the contents of the
agreement reached through the March 1971 meeting which shows that
apart from union visitation none of the Union s listed proposals were
adopted in the resulting contract
WINN DIXIE STORES INC 1453
Q And, do you recall approximately when that
meeting was?
A Well, I think it was about a month later-was
sometime around March or the spring-that time of
the year-
Q Sometime after January 259
A I think it was in March
Q All right
What happened at this second meeting?
A Well, we went through each and every item and
discussed it, and what the company would agree to
and what they would not agree to
Q All right
Q (By Ms Lonnquist) Now, referring you to the
first proposal, Mr Scheurich, do you recall what the
company's response to that request was?
A Only that they had check-off and that they
wasn't gonna change their position in the matter at all
We wanted the irrevocable check off and they said
no, they have a check-off that the company felt was
working all right, and they wasn't about to change
Q All right
And, how about the second proposal, in respect to
changes in seniority? What was the company's re-
sponse?
A Well, their position there was that we had a se-
niority by departments, and they were not gonna go to
plant-wide seniority
Q And, the third request, concerning rules-was
there any discussion of that?
A They said they had a clause in the agreement
and they felt that it was working all right, to their
satisfaction, they wasn't gonna change that
Q How about the fourth proposal, concerning dou-
ble time and time and a half after eight?
What was their response to that?
A They said they're paying time and a half after 40
hours, and that's as far as they were gonna go
Q And, the request for night premium, No 5-
what was the company's response?
A They said they wasn't gonna increase that
Q How about the vacation proposal, No 69
What was their response to that?
A They said that they didn't have four weeks vaca-
tion in any part of their section, and it would mean
that they'd have to change their whole company poli-
cy, and therefore, they're not gonna agree to any four
weeks vacation after 15 years
Q All right
Did you respond to that?
A Yes, I did
Q What did you say?
A I said, "Well, we're bargain for this unit It
doesn't affect all the employees in the company "
They said yes, that it would have an effect on them
Q So, did you ever reach an agreement on that?
A No
Q Okay
Now, in respect to the additional holiday, the
employee's birthday, what was the company's re-
sponse?
A They said they have a standard policy-compa-
ny policy on that, they wasn't expanding holidays
Q And, Proposal No 8, in respect to compulsory
arbitration-what was the company's response?
A They said they would not agree to compulsory
arbitration, that they were running the business, they
wasn't gonna have some outside arbitrator run the
business
Q How about Proposal 11, in respect to health and
welfare
Was there any agreement on that?
A No, they said they would not-they had a wel-
fare program that they were handling, and they wasn't
about to go into a different health and welfare pro-
gram
Q How about Proposal 12, in respect to the pen-
sion plan?
A Same thing, they would not move on a pension
plan, at all, at this time
Q And, the request for a three year agreement-
what was their response?
A They said they wasn't going to sign an agree-
ment that long, they thought a year was enough
Q All right
And, did you reach agreement that day)
A Yes, we did
Q On what basis')
A Well, there was two items which they agreed
upon
One was a right for visiting the plant in case of
grievances, that with the company permission we
could go in and look at the operation and see what the
grievance-why the grievance was taking effect
Q All right
And-
A We argued at some length on this, and they said
with the company permission, by calling first, they
would let us come in, and look at the operation to see
what it was about, so that we could adequately discuss
the grievance
Q Was there any other agreement?
A Yes, there was one other agreement that the
union had proposed, and that was the right for the
executive board of the union to make the determina-
tion as to whether or not a grievance should be pro-
cessed or not processed
Q That involved the internal workings of the
union9
A Yes
Q And, did you agree on any wages?
A Yes, we did
The company offered 24 cents an hour
Q And, did the union accept that?
A They did
Q Now, why did you accept the contract without
agreement on most of your proposals?
A Because the membership was dwindling, and
those that were there wanted the money, they needed
the money, and they decided that since we had the
other case before the National Labor Relations Board,
that they would accept it
1454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Once again the Union, apart from the wage increase of
24 cents, could show no tangible gains in such terms and
conditions of employment as seniority, overtime, shift dif-
ferential, vacation benefit, and compulsory arbitration
Upon expiration of the 1971 contract on February 6, 1972,
the Union's record in collective bargaining failed to show
any gains in these areas since May 1968, with collective
bargaining since that date producing tangible benefits to
employees limited to the 25-cent increase, the additional
holiday set forth in the 1970 contract, and the 24-cent in-
crease contained in that accepted by the Union in the 1971
negotiations 3 Indeed, apart from these increases, the rec-
ord does not suggest flexibility on Respondent's part as to
union demands, repeatedly made in negotiations since
1969, in these economic areas
The 1971 agreement was scheduled to expire on Febru-
ary 6, 1972 On December 3, 1971, Bowden wrote Acker-
man acknowledging the latter s notice to terminate, but de-
clining to meet for contract renewal negotiations at that
time, stating " inasmuch as this agreement does not
expire until February, we defer meetings at this time "
Thereafter, a negotiating meeting was held on March 9,
1972, which apparently was limited to union requests for
preliminary information Following that session, on April
7, 1972, another decertification petition was filed, and in
reliance thereon, Respondent suspended negotiations in-
definitely 4
As heretofore indicated, in late 1972 it was determined
by Respondent that it was necessary to grant employees a
wage increase The Union, by letter dated December 4,
1972, Bowden to Scheurich, was informed of Respondent's
intentions in this regard Pursuant thereto, the parties met
on December 22, 1972, for the first time since prior to the
filing of the decertification petition From the Company s
standpoint, the purpose of the meeting was, according to
the testimony of James Corley, "to put a pay raise in " At
the meeting the Union rejected the 5 5 increase proposed
by the Company as being inadequate, and requested bar-
gaining on some 15 different items, including shift differen-
tial, vacations, mandatory arbitration, irrevocable check-
off, and increased pension and hospitalization benefits
According to the credited testimony of Ackerman, Bowden
rejected these proposals, stating that the Company was not
there to discuss these changes, but only to discuss the
Company's proposed wage increase The meeting ended
with the Union refusing to accede to the Company's re-
quest that the increase be made effective immediately while
negotiations continue
A second meeting was held on December 28, 1972, with
the parties remaining steadfast According to Corley, Ack-
erman disputed the Company's reasoning that an immedi-
ate wage increase was necessary to cut down turnover, con-
3 It is true that commencing with the 1970 agreement employees became
covered by unicn health welfare and pension programs However they
thereby lost elig-bility to participate in profit sharing Any benefit to em
ployees resulting from this trade off is highly debatable with the answer
depending on the particular circumstances of the individual employee I
discount the 1970 modification in fringe programs in considering whether
Respondents firmly held positions at the bargaining table throughout nego
tiations eroded employee support of the Union
4 See C P Exhs 36(d) and 11(a)
tending instead that the Company needed more
fringe benefits, not necessarily rate per hour, [but] insur-
ance, pension fund, vacations, night premiums, et cetera-
the same deal " Bowden disagreed stating the wage in-
crease was what was needed With respect to the Union's
proposed contract changes, Corley describes Bowden's re-
sponse as follows
I think what Mr Bowden-as I remember, he told Mr
Ackerman that we'd been working under this contract
for some time, and we hadn't had any problem with it,
and all these changes he didn't think was necessary, he
didn't see any reason why we should make changes
just for the sake of changing
Meetings were held on January 8 and 16, 1973, which
resulted in no shift in position as to either the Company's
proposed increase or the Union's proposed contract modi-
fications I
A meeting was held on January 26, 1973, which was the
first that Gore attended At this time, company representa-
tives were questioned as to the nature and basis of its pro-
posed increase Gore argued that under Cost of Living
Counsel regulations unit employees were not restricted to
an increase of 5 5 percent Information was requested by
the Union as to the number of people in each classification
and the rate of pay for each category The Company indi-
cated that they would attempt to provide the information
by the next meeting 6
Before the parties could meet again, the Union, by letter
dated January 29, 1973, was notified by Bowden that a
5 5-percent increase would be put into effect immediately
With the grant of this increase, which I have heretofore
found unlawful, it became a fact that, in the period after
execution of the 1968 contract, the Union was able to ne-
gotiate across-the-board increases totaling only 49 cents
Yet, the Company, during that same period, in compare
son, through unlawful bypass of the bargaining process,
managed to grant unilateral increases, over understandable
union opposition, to unit classifications in the following
sums
Selector
Forklift Operators
Laborer
Janitors
Sanitarian
Pricers
$ 45
45
38
40
39
38
Thereafter the parties again met on March 15 and 29,
May 29, June 15 and 25, July 23 and 24, August 7 and 23,
September 12, October 1, and December 5, 1973, and Jan-
uary 10, 1974 The record suggests that these sessions in-
volved discussions concerning the January 29, 1973, wage
increase, the Company's reprimand policy, certain addi-
tional 1973 unilateral shift changes, profit sharing, arbitra-
5 Ackerman credibly testified that at the January 16 1973 session Bow
den said that The company s not gonna do anything about your proposals
Do you think it s necessary to even come back here any more and meets
Ackerman replied that the Union would modify its proposals and the meet
ing ended with the understanding that a further meeting would be held on
January 26 1973
6 Based on the combined testimony of Ackerman and Corley
WINN DIXIE STORES, INC 1455
tion, and, perhaps, a settlement of the instant unfair labor
practice proceeding However, according to the credited
testimony of Charles E Williams, an international repre-
sentative of the Union, who attended all meetings during
the 1972, 1973, and 1974 segment of negotiations, Bowden,
in the face of union demands for what it termed as a more
equitable workable agreement, "persisted in his view that
the old contract was adequate " Williams further testified
credibly and without contradiction that during the entire
course of these negotiations, when the Union's proposals
were discussed, Bowden would respond either "No" or
"that's not necessary" or "My position is the same, it
hasn't changed, the Company's position is the same " Wil-
hams testified and I find that during these sessions, the
Company persisted in its demand that the old contract be
renewed, while showing no movement, other than with re-
spect to its willingness to grant an additional 5 5-percent
wage increase and its earlier agreement to increase health
and welfare contributions by 75 cents weekly in order that
the then current benefit levels might be maintained
In my view, the issue of alleged subjective bad faith
turns on whether the totality of the evidence establishes
that Respondent sought, from 1969 to the present, to ma
copulate the bargaining process in a manner which would
encourage employees to reject union representation and
collective bargaining
True, this is not a case where it can be said that the
employer had no intention of reaching any form of agree-
ment, for, on February 6, 1970, and February 6, 1971, suc-
cessive 1-year collective-bargaining agreements were exe-
cuted, while the pending unfair labor practice charges were
pending Although surface bargaining contentions normal-
ly arise in situations where negotiations prove fruitless and
no agreement is reached, the fact that a union has de-
termined "that the advantages of a contract in hand out-
weigh those which the Union might later obtain ,"
does not exonerate an employer from the consequences of
a predetermined course which in other respects is inimical
to good faith bargaining The unfair labor practice would
nonetheless exist if, as is contended by the Charging Party,
Respondent by its conduct exhibited an intention to utilize
the bargaining process in a manner which would keep the
Union weak, and constantly vulnerable to decertification
activity Such an ulterior design, calculated ultimately to
" transform a possible good faith doubt of the Union's
majority into a bad-faith certainty,"8 can not be condoned
as satisfying the duty to bargain in good faith In such a
case, the bad-faith issue may not be regarded as mooted
out simply because the Union accepted contracts by yield-
mg to that which was made available by the Employer In
this regard, the principle expressed in N L R B v Yawman
& Erbe, supra, and the quote set forth below from General
Electric Company, Battery Products Capacitor Department
v NLRB 400 F 2d 713, 727 (C A 5, 1968), though in-
volving refusals to bargain of lesser degree than overall bad
faith, are equally apposite to the theory pressed by the
Charging Party in this case
7 See N L R B v Yawman & Erbe Mfg Co 187 F 2d 947 949
8 N L R B v Movie Star Inc Movie Star of Poplarville Inc 361 F 2d 346
351 (CA 5 1966)
we quote from Judge Friendly in Siegel Co v
N L R B, 2 Cir 1965, 340 F 2d 309, 310 "[W]hen the
issue has been pressed throughout, the party unable to
force the other to bargain or to include an agreed pro-
vision in the written contract does not `waive' a com-
pleted refusal to bargain simply by signing up for the
best it can get It would seriously contravene the basic
objective of industrial peace to place such a party in
the predicament where it could make a valid charge of
an unfair labor practice only if it forewent a contract
altogether " The latter expression reflects what has al-
ways been this Court's philosophy, see N L R B v
Item Co, supra, 220 F 2d at 958-959 (at [2]) and we
readily adhere to it in the case at bar
3 Concluding analysis
In its brief, Respondent asks " what is wrong with a
Company not wanting to change the terms of a collective-
bargaining agreement just to make the union stronger?" In
the abstract to ask that question is to answer it Obviously,
an employer, who accepts the bargaining process as the
means by which terms and condition of employment are
established, and proceeds to the table intent on negotiating
such matters fairly, is called upon to do no more However,
as is apparent from the foregoing facts as underscored by
the discussion to follow, this is not such a case
Here, Respondent at all times insisted on reexecution of
the 1968 agreement, which led to the decertification activi-
ty of 1969 During that campaign, that agreement was ex-
ploited in the Employer's antiumon propaganda as plain
evidence that the Union was ineffectual, that it could ac-
complish nothing, and that employees ought to get rid of it
Excerpts from the propaganda circulated by the Respon-
dent in this period are set forth below As will be seen the
propaganda not only argues as to the futility of union rep-
resentation, but so accurately predicts what subsequently
transpired between 1969 and 1974, that it constitutes reli-
able evidence of both the Employer's predetermination
with respect to, and state of mind during, the entire course
of the ensuing negotiations
(1) Parsons' letter to employees of July 15, 1969
These are a few examples of benefits you have at
Winn-Dixie, can the Union match them? We don't
believe they can
(2) J R King's letter to employees of July 8, 1969
the Butcherworkers contract ran out on May 16,
1969 after being in force for one year
We have never believed nor do we now feel, that you
need a union to represent you in your dealings with
Winn-Dixie Since a substantial number of employees
signed the petition to get rid of the union, they must
have felt that the union did not do anything for them
What has this union done for $72 00 per year dues
1456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Union has represented you for over a year We
are now asking for a chance to let you see how we can
operate without having to deal through a union What
we are asking is to be given the same chance as the
Union has been given If dealing with us on a direct
basis doesn't prove to be satisfactory, then you can go
back to the union It seems to us this is the only fair
way
(3) The joint King-Parsons letter to employees of July
18, 1969
You have been under a union for a long time Have
you been satisfied with the type of representation that
they have given you? What have you received for the
money you paid to the Union' Is your job easier9 Any
different then you had without a union?
The Company urges you to vote "NO" in the election
and try the other way to handle your affairs You may
like it
(4) The speech of J R King delivered at the dinner
meeting on or about July 17, 1969
THE UNION IN ITS LITERATURE LISTS TEN ITEMS THE UNION
FEELS SHOULD BE CHANGED IN THE LAST AGREEMENT THE
WAREHOUSE CONTRACT HAD 52 ITEMS LISTED WHICH MEANS
THAT THE UNION WAS SATISFIED WITH THE REMAINDER THERE
IS A GREAT DEAL OF DIFFERENCE IN FEELING AND GETTING
THE UNION CAN HOPE AND PROMISE BUT THEY CANNOT
GUARANTEE ANYTHING ONLY THE COMPANY PAYS WAGES AND
WHEN THE COMPANY SPEAKS-YOU CAN BANK ON IT
THE NATIONAL LABOR RELATIONS BOARD HAS SET YOUR ELEC
TION FOR WEDNESDAY JULY 23 ON THAT DAY YOU WILL VOTE
FOR OR AGAINST THE CONTINUED REPRESENTATION BY THE
BUTCHER WORKERS UNION THE CHOICE IS YOURS THE LAW PRO
TECTS YOUR RIGHT TO MAKE A FREE AND SECRET CHOICE THE
TIME YOU HAVE SPENT DEALING WITH THIS UNION SHOULD GIVE
YOU PLENTY OF EVIDENCE UPON WHICH TO REACH YOUR DECI
SION JUST ASK YOURSELF THIS QUESTION- CAN I DEPEND UPON
THE PROMISE OF A UNION WHEN THAT UNION HAS FAILED TO
DELIVER ON PAST PROMISES
When as a result of the 1969 election, Respondent was
again required to bargain with the Union, the company
negotiators became the instrumentalities of the predilec-
tions set forth in the above propaganda In the final analy-
sis, every effort by the Union to depart from the 1968
agreement was met by tactics designed to convert seriously
pressed union proposals into empty promises Company
negotiations throughout seemed intent on bringing truth to
the preelection warnings, which went unheeded by the ma-
jority of employees in 1969, all with the apparent intention
of thereby ultimately persuading employees to once and
for all get rid of the Union
In the 1969 negotiations it became quickly evident that
the Respondent would seek to control the course of bar-
gaining by neutralizing any economic strength the Union
might muster in support of its demands, so as to place
Respondent in a position in which it could dictate settle-
ment terms On August 1, 1969, the same day as the first
negotiation session, Respondent unlawfully granted in-
creased health insurance benefits, and, 2 days later, unlaw-
fully granted a 25-cent wage increase These illicit tactics
not only denied the Union leverage to exact a quid pro quo
in exchange for its assent to management's desires in this
regard, but, in terms of its representative status, would,
among employees already influenced by long history of
unfair labor practices, diminish further the Union's capaci-
ty to call an effective strike This pattern was repeated by
the Respondent in January 1973, through the unlawful
grant of a 5 5-percent increase
That Respondent dominated the negotiations, and em
ployed this control to subvert the process to its own ends, is
obvious not only from the positions taken by Respondent
at the bargaining table, but also by the outcome of each set
of negotiations At each and every turn, Union proposals
in areas of immediate importance to all employees, such as
improved vacations, increased holidays, more flexible se-
niority, increased shift differential, meaningful arbitration,
and daily and weekend overtime, were, as Respondent's
1969 propaganda had forecast, reduced to empty promises
by Respondent's outright rejection In the negotiations of
1969-70, 1971, and 1972-74, respectively, Respondent per-
sisted in brushing these demands aside, advising the Union
that the 1968 agreement need not be changed as it had
worked satisfactorily The arrogance in such references to
the 1968 agreement should have been obvious The
Union's role in negotiating that contract was made the ob-
ject of ridicule in Respondent's 1969 antiunion preelection
propaganda It was that contract that foreshadowed the
1969 decertification activity, and indeed it was basically
the same contract which resulted in the 1970 or 1971 decer-
tification of the Teamsters at the New Orleans warehouse
By virtue of Respondent's control of the bargaining pro-
cess, and its inflexibility with respect to union demands in
the areas set forth above, the Union capitulated and the
1968 decertification oriented formula was resurrected in
the wake of both the 1970 and 1971 negotiations The 1971
agreement was followed by another decertification petition
in 1972, and though it is difficult to imagine how, in good
faith, Respondent in the negotiations that followed, could
continue to persist that the Union accept the 1968 formula,
that is precisely the posture that was assumed by
Respondent's negotiators
The Respondent's failure to make concessions or to
demonstrate flexibility in significant areas of employee in-
terest, was not indicative of the "chiseling" type of hard
bargaining that the Act tolerates Certain facts speak for
themselves During some 5 years of collective bargaining
which followed recertification of the Union, unit employ-
ees could look to that process as the source of improve-
ment in just two areas, namely, one paid holiday (1970
agreement), combined wage increases of 49 cents (25 cents
1970 agreement , 24 cents 1971 agreement) 9 On the other
9It will be recalled that despite inflexibility in those areas normally of
greatest interest to employees Respondent did show an interest in maintain
mg competitive wage levels However Respondent did not choose to adjust
wages entirely within the framework of good faith bargaining and as has
WINN-DIXIE STORES, INC 1457
hand, night-shift employees, effective February 6, 1970, to
the present, could blame the bargaining process for a re-
duction of their shift differential from 8 cents per hour to 5
cents hourly 10
Even discounting Respondent's history of unfair labor
practices and the declarations of intent expressed in its
1969 antiunion propaganda, it is difficult to imagine that
an effort would be made to defend such a record of bar-
gaining, on grounds that the employer bargained hard, but
in good faith Standing alone, the limited gains during the
5-years of negotiations warrant the inference that an enter-
prise of Winn Dixie's magnitude would have done better
had Winn-Dixie not approached the bargaining process
with ulterior designs, calculated to frustrate that statutorily
guaranteed method of setting terms and conditions of em-
ployment But considering this dismal record against the
background of Winn-Dixie's labor relations history in gen-
eral, and its attitude towards this Union and collective bar-
gaining as specifically reflected in its 1969 preelection pro-
paganda, a conclusion as to subjective bad faith is dictated
by direct evidence rather than inference By insisting upon
a contract formula that it had propagandized as evidencing
inept union representation, and which was known to have
been the vanguard of decertification activity both at New
Orleans and Jacksonville, Respondent plainly was seeking
to impose upon the Union an arrangement which would
bring about its demise Respondent's intention of manipu-
lating the negotiation process to bring about a reversal of
the results of the 1969 election, is also evident from its
refusal to begin negotiations prior to the expiration date of
existing contracts, and further by its rejection of Union
demands, made in each set of negotiations, for a contract
of 3 years duration In the total circumstance, I am satis-
fied that Respondent spurned these latter practices and
their stabilizing influences on the relationship with an eye
towards the Board's contract-bar rules and in order to
heighten employee opportunities for regular decertification
activity
On the basis of the foregoing I find that Respondent
since 1969 has utilized the collective-bargaining process as
a further step in its historic, unrelenting, and unlawful ef-
fort to eliminate the Union at the Jacksonville warehouse
I am satisfied that in the course of these negotiations Re-
spondent was at all times guided by the predictions in its
1969 antiunion propaganda, and that while going through
the motions of collective bargaining as to some issues, it
resisted all proposals that would enhance the Union's sta-
tus, while willing to settle only for terms which it knew
would place the Union's representative position in a con-
stantly vulnerable state Manipulation of the bargaining
process to pursue such predetermined ends is plainly an-
tithetical to the " duty on both sides to enter dis-
been heretofore indicated the value of unlawfully granted increases during
this period almost equaled those conveyed as a result of collective bargain
inp
° The only other departures from the 1968 agreement during the entire
period of bargaining could be described as limited to only neutral trade offs
or provisions of secondary significance of employees They consisted of
substitution of union pension health and welfare for profit sharing union
visitation privileges to investigate grievances and acknowledgement that
the Union s executive board has authority to decline to process a grievance
cussions with an open and fair nand, and a sincere purpose
to find a basis for agreement " 11 Accordingly, I find
that Respondent since August 1, 1969, has been guilty of
subjective bad faith in its negotiations with the Union, and
has thereby violated Section 8(a)(5) and (1) of the Act
Upon the basis of the foregoing findings and upon the
entire record in this proceeding, I make the following
CONCLUSIONS OF LAW
1 Respondent, Winn-Dixie Stores, Inc, is an employer
engaged in commerce and in operations affecting com-
merce within the meaning of Section 2(6) and (7) of the
Act
2 The Charging Party, Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act
3 All employees engaged in the receiving, shipping, and
processing of all food and sundry products at the
Employer's warehouse at Jacksonville, Florida, excluding
all employees in the meat and cheese processing and pack-
aging department, all garage and mechanical maintenance
employees, carpenters, regular maintenance personnel,
truckdrivers, and helpers, office clerical employees, guards
and supervisors as defined in the Act constituted a unit
appropriate for the purpose of collective bargaining within
the meaning of Section 9(b) of the Act
4 At all times since May 5, 1966, and continuing to
date, the Union has been the representative for purposes of
collective bargaining of the employees in the unit described
above within the meaning of Section 9(a) of the Act
5 By promulgating, maintaining, and enforcing unlaw-
fully broad no-solicitation and no-distribution rules, by an-
nouncing new insurance benefits in order to influence the
outcome of an election, by awarding employees amenities
to discourage their support of the Union, and by instruct-
ing an employee to cease engaging in union activity, Re-
spondent has interfered with, restrained, and coerced em-
ployees in the exercise of their Section 7 rights, and has
thereby violated Section 8(a)(1) of the Act
6 By unilaterally, over the Union's objections, during
the course of collective bargaining, granting wage increases
to unit employees, Respondent has refused to bargain in
good-faith and violated Section 8(a)(5) and (1) of the Act
7 By unilaterally granting employees improved health
insurance benefits without notification to the Union, and
without affording the Union an opportunity to negotiate,
Respondent has refused to bargain in good faith and has
violated Section 8(a)(5) and (1) of the Act
8 By effectively denying the Union's request for in-
plant job studies by an independent engineer designated by
the Union, and by denying union representatives access to
the warehouse for investigation of safety and sanitary con-
ditions, and the extent to which supervisors were perform-
ing unit work, all of which was necessary and relevant to
the Union s discharge of its bargaining obligations, Re-
spondent has refused to bargain in good faith and has vio-
lated Section 8(a)(5) and (1) of the Act
i Globe Cotton Mills v N L R B 103 F 2d 91 94 (C A 5)
1458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
9 By at all times since August 1, 1969 engaging in col-
lective bargaining with a predetermination to undermine
the Union, by limiting contractual settlements to agree-
ments which would maintain the Union's vulnerability to
decertification activity, and by at all times utilizing the bar-
gaining process as a means of ultimately getting rid of the
Union, Respondent has refused to bargain in good faith
and has violated Section 8(a)(5) and (1) of the Act
10 The aforedescribed unfair labor practices are unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act
11 Respondent has not independently violated Section
8(a)(1) of the Act through the alleged solicitation of mem-
bership withdrawals
12 Respondent had not violated Section 8(a)(5) and (1)
of the Act by changing the aisle designations in the ware-
house by eliminating, modifying, and adding shifts in the
fall of 1969, by allegedly changing restroom privileges, by
allegedly refusing to provide information as to compensa-
tion of the "cigarette stamper," by refusing to furnish in
formation as to names of all employees in the entire Com-
pany with 20 years or more service, and by allegedly
furnishing the names and addresses of unit employees to
American Heritage Insurance Company, and by making
payroll deductions on behalf of unit employees who pur-
chased insurance policies from that firm
13 Respondent has not violated Section 8(a)(1),(3), and
(5) of the Act, by maintaining and giving effect to the ex-
clusionary policy set forth in article II, section 2 4(b), of its
profit sharing plan, by refusing to bargain as to Union
demands for inclusion of both profit sharing and a union
pension plan in the resulting collective-bargaining agree-
ments, or by the forfeiture of eligibility and possible bene-
fits to unit employees resulting from the Respondent's re-
fusal to agree to the inclusion of both plans in any such
agreement
THE REMEDY
As is customary, I shall recommend the usual cease-and-
desist and affirmative provisions customarily applicable to
redress the independent 8(a)(1) violations found herein
Similarly, with respect to the independent 8(a)(5) viola-
tions, namely, the denials of access and unilateral grants of
benefits, I shall recommend that Respondent be ordered to
cease and desist therefrom, and, affirmatively, to bargain
in good faith with the Union as to such matters in the
future With respect to the overall bad faith exhibited by
Respondent since August 1, 1969, I shall recommend a
general bargaining order, with the understanding that the
certification year, the benefits of which unit employees
have been deprived, shall commence running en toto from
the date that Respondent commences to bargain in good
faith 12
The Charging Party, in addition to the foregoing tradi-
tional remedies, seeks extraordinary relief in both mone-
tary and nonmonetary forms The nonmonetary remedies
include requests for mailing of the notice to the home of
each unit employee, the posting of said notice at every
12 Stan Schulte Electric Inc 197 NLRB 638 640 (1972) Mar Jac Poultry
Company Inc 136 NLRB 785 (1962)
Winn-Dixie location within the Jacksonville division, the
reading of such notice by company officials to employees
in the appropriate unit, the granting of union access to
bulletin boards, the granting of union access to meet with
employees on company premises in nonworking areas on
nonworking time, and affording the Union the opportunity
to conduct meetings with employees on company premises
on company time
The Union also seeks monetary relief in the form of
reimbursement for its costs of litigation, including attorney
fees, and costs of organizing and reorganizing employees
There could be little quarrel with Charging Party's asser-
tion that extraordinary measures are necessary to redress
the Respondent's unfair labor practices in this case
Respondent's hostility towards employee organization in
the instant unit and throughout its operation, as manifest-
ed by its frequent appearance before the Board and the
courts, places it among the leading offenders of that phase
of the national labor policy, which Congress has entrusted
to the Board's administration In the instant case we are
involved with a unit of employees who, in the face of
Winn-Dixie unfair labor practices, in 1966 and 1969 ex-
pressed their desire for union representation in Board-con-
ducted elections Civil and criminal contempt citations
failed to deter Respondent's unrelenting campaign of ille-
gal opposition to employee organization in this unit, which
over the last 5 years effectively precluded good-faith bar-
gaining, and thereby denied employees the fruits of their
expressed choice for union representation In this period,
Respondent's commitment to operate a union-free enter-
prise has endured and but for this proceeding its objective
might well have been attained For, the Jacksonville ware-
house unit, which consists of the only remaining group of
employees with union representation within Respondent's
entire operation, was again challenged by decertification
petition in 1972 Were it not for the unfair labor practices
found herein, that decertification petition would have been
processed and very well might have produced a rejection of
the Union, a result which would not have stemmed from a
choice made in an atmosphere free of coercion
The unfair labor practices involved here are flagrant,
though subtle, and considered with the overall, historic an-
tiunion design of Respondent, consist of misconduct which
not only has an impact on the labor relations of its own
employees, but extends to generally threaten the rights of
employees of competitors in the food chain industry Mat-
ters have gone so far with Winn-Dixie as to make it clear
that a uniform pattern of adherence to congressional man-
dates can only be assured in this industry if remedies can
once and for all be devised which assure that employees of
Winn-Dixie enjoy the same quality of statutory protection
as their counterparts employed by firms whose labor rela-
tions policy reflects an acceptance of congressional guar-
antees in this area
The request by the Charging Party that Respondent be
required to mail a copy of the notice to each employee in
the appropriate unit 13 and to require that it be read to
13 See Heck s Inc 191 NLRB 886 887 (1971) and cases cited at fn 7
thereof
WINN-DIXIE STORES, INC 1459
groups of employees by company officials 14 has been
adopted by the Board and made the basis of remedial or-
ders in cases which show no greater persistent and unlaw-
ful effort to nullify employee rights than is illustrated both
here and through Winn-Dixie's history of contumacy with
respect to the Act It is my further opinion that, in view
of Wmn-Dixie's demonstrated propensity to draw on the
lack of achievement by Jacksonville employees through
collective bargaining in combatting the Union at other
locations,15-a lack of achievement attributable to
Respondent's own misconduct-it is plainly appropriate,
considering Respondent's overall union animus, to require
publication of the recommended notice at all locations
within the Jacksonville division I shall so recommend
Also consistent with Board remedial policy affecting em-
ployers who make a practice of violating the Act, I shall
recommend that the Union be granted access to bulletin
boards and all places where notices are customarily posted
in the Jacksonville warehouse, for a period of 1 year and
free of any contractual restriction 16 As for the Union's
request that it be given access to employees on company
property on nonworking time and nonworking areas, and
the right to address employees on company time, I shall
deny said request for the reasons stated in J P Stevens &
Co, Inc, 167 NLRB 266 (1971), and Hecks, Inc, 191
NLRB 886, 887 (1971), for I am not convinced that the
record includes a substantial showing that, at present, "al-
ternative means of access are clearly unavailable or have
been tried and found wanting " 17
With respect to organization costs, it is not evident from
nor suggested by this record that, since 1969, the Union
has engaged in any organizational activity That involved
in the 1969 campaign, however, stemmed from a decertifi-
cation petition, which was processed by the Board, pre-
sumably because untainted by unremedied unfair labor
practices In refusing to provide for reimbursement of or
ganizational expenses the Board has indicated that under
no circumstances will such relief be granted where there is
no showing of a "nexus" between Respondent's unlawful
conduct and the need for such expenditures 18 Here, as in-
dicated above, unlawful conduct is not shown to be caus-
ally related to any extraordinary organization expenses in
the past, and as for the future, the general bargaining order
coupled with extension of the certification year would
avert any future organizational expenses which could be
considered contemplated by the public interests involved 19
With respect to the Charging Union's claim for reim-
14 J P Stevens & Co Inc (Dubin Nathaniel Plants) 171 NLRB 1202 fn
1 In my opinion the reading of the notice by company officials is necessary
as an essential counterweight of assurance against Respondents sustained
10 year history of unlawful conduct in this unit Cf Heck s Inc supra 887
1 See 166 NLRB 227 230 (1967)
16 See cases cited at second fn 14
17 I would find that an imbalance has been created by Respondent s un
fair labor practices which would tend to critically impair the Umon s op
portunities for effective communication among all but the most militant
employee supporters of the Union at the Jacksonville warehouse Yet as
illogical as the law may appear in this regard under the precedent no weight
is accorded to a lack of access attributed to unfair labor practices instead
only imbalances attributable to physical factors are regarded as relevant to
the inquiry
Is Titdee Products Inc 194 NLRB 1234 (1972)
19 As indicated by the Supreme Court in N L R B v Food Store Employers
Union Local 347 [Heck s Inc] 86 LRRM 2209 decided May 24 1974 it
bursement of its costs of litigation, it is noted that in conse-
quence of Respondent's violations dating back to 1969, the
Union's legal resources have been called to the fray in at
least three different forums with respect to litigation relat-
ed to the processing of its unfair labor practice charges and
judicial proceedings resulting therefrom No doubt exists
that, but for this investment by the Union and the dedica-
tion of its attorneys, Respondent's unfair labor practices
would have gone undetected, while quietly proceeding to
final destruction of the statutory rights of employees in the
appropriate unit Were it not for these efforts, the public
rights to be vindicated under the Act would have been left
abandoned, leaving Winn-Dixie's exploits as a monument
to those who would defy the law in the interest of frustrat-
ing federally guaranteed rights by subjecting them to the
type of endurance struggle to which this record attests
True, the Board has suggested in other contexts that nor-
mally "litigation expenses are not securable by the Charg-
mg Party in Board proceedings even though the public in-
terest is served when the Charging Party protects its private
interests before the Board ' Tudee Products, Inc, 194
NLRB at 1236 Yet, the restraint reflected in this expres-
sion of remedial policy is not without exception For in
Tudee, supra, such relief was granted, with the Board agree-
mg with the Circuit Court of Appeals for the District of
Columbia, that, as the defenses to the refusal to bargain in
that case were frivolous, such a reimbursement order was
necessary to preserve access to the Board and courts in the
interest of discouraging frivolous litigation 20 Consistent
with that result the Board, on the other hand, has adhered
to its policy of declining such relief where the employer's
defense to the 8(a)(5) allegation is "debatable," even if the
unfair labor practices involved are of an aggravated nature
Thus, in Heck's Inc,21 the Board denied such a remedy
despite aggravated unfair labor practices, where there was
no finding that the defenses to the refusal to bargain were
frivolous, 2 stating that its "orders must be remedial, not
punitive, and collateral losses are not considered in fram-
is perhaps unclear whether the Board will under any circumstances award
such relief However from Titdee supra it plainly appears that no such
relief will be forthcoming where as here the requisite nexus does not exist
20 International Union of Electrical Radio and Machine Workers AFL-
CIO [Tndee Products Inc] v N L R B 426 F 2d 1234 (1970) cert denied
400 U S 950 (1970)
21 191 NLRB 886 at 889 See also Terri Flex Products Inc 200 NLRB 3
(1972) and Condon Transport Inc 211 NLRB 297 (1974)
22 In Titdee supra 194 NLRB at 1234 fn 4 the Board distinguished
Heck s supra stating that there the refusal to bargain rested upon
a debatable question
The evaluation of Board remedial policy as to such reimbursement is
made all the more interesting when one considers the following quote from
the majority decision in Ex Cell 0 Corporation 185 NLRB 107 109 (1970)
The court was of the opinion that the remedy was proper where the
employer had engaged in a manifestly unjustifiable refusal to bargain
and where its position was palpably without merit As in Quality
Rubber the court in Titdee Products distinguished those cases in which
the employers failure to bargain rested on a debatable question
With due respect for the opinion of the Court of Appeals for the Dis
trict of Columbia we cannot agree that the application of a compensa
tory remedy in 8(a)(5) cases can be fashioned on the subjective determi
nation that the position of one respondent is debatable while that of
another is frivolous What is debatable to the Board may appear
frivolous to a court and vice versa Thus the debatability of the
employers position in an 8 (a)(5) case would itself become a matter of
intense litigation
1460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing a reimbursement order." 191 NLRB at 889.23 As I con-
strue Board precedent, it is the last-quoted standard which
is determinative of the appropriateness of the relief in the
form under consideration here, and should there be a case
where such reimbursement is plainly remedial and neither
punitive, nor reflective of collateral relief, it is my opinion,
that the expressed policy of the Board does not require that
controlling weight be given to the distinction between
"frivolous" and "debatable" defenses.
I cannot say that issues raised by Respondent in defense
of this case are entirely immune from debate. It is plain,
however, at the same time, that the finding that Respon-
dent has engaged in 5 years of surface bargaining rests on
facts which are either uncontroverted or admitted by Re-
spondent. Nonetheless, as the General Counsel did not in-
clude such an allegation in the complaint, I am hard-
pressed to find that the defense to this overarching issue
was not frivolous. Indeed experience has shown that the
very nature of a subjective bad faith issue deems it entirely
unlikely that such a violation could be substantiated by
evidence so clear cut as to impel a conclusion as to which
reasonable men would not differ.
I recognize the Board's unwillingness, to date, to grant
litigation expenses in cases of an aggravated nature. Such
an approach is consistent with a sensible administration of
remedial policy. Though unfortunate, it is a fact that cases
involving flagrant violations of employee rights are con-
stantly presented for Board consideration, and it is plain
that aggravated unfair labor practices are always of vary-
ing degree and extraordinary relief ought not to be granted
simply because a particular fact pattern meets that descrip-
tion. Nonetheless, I cannot assume, in the absence of a far
clearer direction from the Board than presently exists that
it has assumed a "broad brush" stance in this area, and will
not consider any variance from the general policy against
incorporation of such a remedy where debatable issues
exist.
In this case, Respondent, 10 years after commencement
of employee organization efforts at the Jacksonville ware-
house, has yet to alter its dedication to outright rejection of
the principles of collective bargaining, and over the last 5
years, despite two certifications of the Union, and two con-
tempt citations, has rendered futile the expressed choice of
employees by subverting the bargaining process to an in-
strument for ousting the Union. It is difficult to assume
that Winn-Dixie will ever accept voluntarily the obliga-
tions that the law seeks to impose uniformly on all employ-
ers within its jurisdictional scope. Winn-Dixie, in my opin-
ion, has over the years engaged in an unlawful course of
conduct which now has matured to the point of forcing
23
Having little, if any, bearing on the present state of Board policy as to
costs of litigation, is the Circuit Court for the District of Columbia's en-
largement of the Board remedy in Heck's, Inc, to include such relief See
476 F 2d at 546 The Supreme Court granted the Board's petition for certio-
rari from that decision, and in N L R B v Food Store Employees Local 347
[Heck's Inc 1, 86 LRRM 2209, decided on May 24, 1974, the Court did not
pass upon the merits of the appropriate form of remedy, but held that the
Circuit Court did "err in failing to recognize the primary authority of the
Board, in the first instance, to fashion appropriate remedies Nevertheless,
the Supreme Court remanded the proceeding to the Board for clarification
of certain inconsistencies between Heck's and its latter decision in Tudee,
supra, 194 NLRB 1234, where such relief was granted
those, whose mission it is to ensure compliance with the
Act, to choose between forms of redress, with teeth, which
are nonetheless remedial and nonpunitive, and remedies
which have not in the past and are not likely in the future
to curb a recalcitrant employer whose defiance of the law,
if left undeterred, invites public ridicule of Board remedial
policy.
The nature of the unfair labor practices involved here,
and those directed at the Jacksonville warehouse in the
past as evident from other Board and Fifth Circuit deci-
sions, present a far more significant challenge to remedial
inventiveness that Ex-Cell-0,24 Heck's Inc.25 Tiidee,26 Terri-
Flex,27 and Russell Motors, Inc.28 Concedely, some of these
cases do involve unfair labor practices which may appro-
priately be characterized as flagrant. But none approxi-
mates Winn-Dixie's persistent defiance of the right of its
employees over a 10-year period, nor do they demonstrate
the ineffectiveness of past Board orders, court decrees, and
contempt citations, to assure employees at the Jacksonville
warehouse that the rights bestowed upon them by the stat-
ute have meaning.
Winn-Dixie is different. An urgency exists that means be
devised to get Winn-Dixie back to the bargaining table
under conditions that will permit employees to enjoy the
type of collective bargaining that they may rightfully as-
sume the law guarantees. In this connection, I see material
differences between the Board's reluctance to grant reim-
bursement of litigation fees in past decisions and certain
considerations in the instant record. As was true in Tiidee,
and cases where frivolous defenses are present, Respon-
dent, in at least one instance, rather than comply with what
was its clear statutory duty, directed the Union to file
charges to secure what was the latter's nondebatable
nght.29 This is just one concrete example of Respondent's
propensity to engage in conduct forcing the Union to liti-
gate, rather than bargain, in good faith. Indeed enforced
litigation, rather than compliance with statutory obliga-
tions, has been the byword of Respondent's unfair labor
practice history at the Jacksonville warehouse dating back
to 1963. Furthermore, it is fortunate that the Union was
persistent and regarded preservation of the rights of Jack-
sonville warehouse employees as worthy of investment, for,
I have heretofore indicated, that, as this record demon-
24 Ex-Cell-O, involved a refusal to bargain based on the employer's chal-
lenwe to the validity of an underlying Board certification
Heck's, Inc, 172 NLRB 2231 (1968), though involving an employer,
which like Winn-Dixie, has been a frequent subject of Board decisions,
involved aggravated unfair labor practices in an initial organization context,
involving the type refusal to bargain which might now be described as of the
Grssel, supra, variety
26 In Tudee, 174 NLRB 706 (1969), the refusal to bargain also related to
the employer's challenge to the validity of a certification, and other flagrant
8(a)(1) and (3) violations committed before and after the election involved
there
27 Terri-Flex, 200 NLRB 3 (1972), involved a refusal to bargain based on
an improper withdrawal from a multiemployer unit and repudiation of an
agreement reached through multiemployer bargaining
28 Russell Motors, 198 NLRB 351 (1972), involved unfair labor practices
growing out of an employer's execution of a contract and recognition of one
of the two rival unions
29 See sec III, D, 3, C, of this Decision, entitled, "Requested Access for
In-Plant Studies and Investigations," for the account of Bowden's statement
to Gore that the latter should go to the Board and that the Company would
comply with any resulting order
WINN-DIXIE STORES, INC. 1461
strates, the public interests to be vindicated by protecting
the rights of these employees would have been left unat-
tended were it not for both the Union's will to maintain its
position and the extraordinary diligence of its counsel
throughout the endurance struggle created by Winn-Dixie.
In these circumstances , it seems only fitting that the Winn-
Dixie tactic of forcing the Union to litigate as a condition
for survival as chosen representative of the Jacksonville
employees be neutralized by a remedy which makes the
Union whole for the costs of bringing meaning to the exer-
cise of such employee rights , while at the same time reduc-
ing the possibility that Respondent will repeat this tactic in
the course of future bargaining. Thus, that remedy is war-
ranted not only because of the aggravated and sustained
nature of the unfair labor practices involved here, but be-
cause, in the circumstances, such relief is remedial, non-
punitive, and contemplates the recovery of noncollateral
costs. See, e.g., United Steelworkers of America, AFL-CIO
[Metco, Inc.] v. N.L.R.B., 496 F.2d 1342, fn. 32 (C.A. 5,
(1974).
With respect to employees in the appropriate unit, fac-
tors in this record suggest that by virtue of their opting for
collective bargaining and Respondent's manipulation of
that process to achieve employee rejection of the Union,
these employees may well have been prejudiced with re-
spect to wage levels in relation to nonrepresented employ-
ees otherwise similarly situated. I see no reason why Jack-
sonville employees should be disadvantaged, without
remedy, by Respondent 's general refusal during negotia-
tions to make concessions which would tend to enhance
the Union's status in their eyes, or by delays occasioned by
unlawfully induced decertification activity. A specific non-
speculative standard exists against which any such losses
may be measured. It is a fair assumption, based upon
Respondent 's frequent expression of its desire to maintain
uniform terms and conditions throughout its operations
that, were it not for the experience with collective bargain-
ing at Jacksonville, employees at that location would have
received increases in amounts and at times corresponding
to their award to employees in like classifications at other
Winn-Dixie warehouses where there was no union repre-
sentation. Accordingly, I shall recommend that Respon-
dent make whole all employees in the appropriate unit,
retroactively to August 1, 1969, at the difference between
their rates of pay and that of employees in substantially
similar classifications at another of Respondent's non-
union warehouses, with said sums to be computed as retro-
active to the date general increases were granted at the
nonunion warehouse and, to be paid with interest at 6-
percent interest per annum as provided in Isis Plumbing &
Heating Co.,30 138 NLRB 716 (1962). This form of relief is
not designed to provide employees with the benefits that
they would have enjoyed had the Respondent bargained in
good faith, but simply seeks to expunge any prejudice that
may have resulted as to their wage levels vis-a -vis nonrepre-
sented employees, which is attributable to Respondent's
failure to bargain in good faith. It is in this sense that said
recommendation differs from that condemned by the
Board in Ex-Cell-O Corporation, 185 NLRB at 108-110.
Unlike the remedy considered there, the instant monetary
relief imposes no penalty or threat on an employer who
seeks judicial review of an allegedly unjust certification, it
does not seek to contrive a highly speculative status quo
ante, and does not conflict with the 8(d) restriction on the
Board's authority to compel a party "to agree to any sub-
stantive contractual provision of a collective-bargaining
agreement ." Cf. United Steelworkers of America, AFL-CIO
[H. K. Porter Co., Inc.] v. N.L.R.B, 397 U.S. 99 (1970).
In view of the extensive, flagrant, and prolonged nature
of the unfair labor practices involved here, I shall recom-
mend a broad cease-and-desist order.
[Recommended Order omitted from publication.]
30 Any question as to which of Respondent's warehouses would constitute
an effective measure under this provision relates to a matter best left to
compliance stages of the proceeding I regard this as a far more suitable
method of dealing with that question than my alternative inclination, which
would involve a reopening of the hearing under conditions which would
telegraph my view as to the merits of this case , prior to issuance of decision
In determmg whether Jacksonville employees have been prejudiced in
relation to the timing of amounts of general increases granted to unrepre-
sented employees , I am not unmindful that problems may be encountered in
selecting the nonunion warehouse which would constitute an appropriate
measure of Jacksonville losses Since it is the intent of this make-whole
provision to compensate Jacksonville employees only to the extent that they
have been disadvantaged by Respondent's denial of their right to bargain
collectively through their chosen representative , the amounts found due
should not reflect variations attributable o local labor market conditions
Therefore in the assessment of which warehouse constitutes the appropriate
measure, the selection should give controlling consideration to the compara-
bility between labor market conditions and costs in that area vis-a-vis Jack-
sonville If no such comparable nonunion warehouse exists, one should be
selected , but the amounts of general increases granted at that location
should be adjusted in accordance with accepted economic principles in or-
der to assure the local market variances do not influence the amounts ulti-
mately determined to be due