Winn-Dixie Stores, Inc.

National Labor Relations Board - Board Decisions

Aug 2, 1979

243 N.L.R.B. 972 (N.L.R.B. 1979)

I)l( ISI()NS ()OF NA INAI, ABO()R RI.I.A I ()NS BO)ARI)
Wilin-I)ixic Stores, Inc. and United Fnd and Corn-
nmercial Workers Internationlal Union, AFL-CIO().
('ase 12 (A 6434
August 2. 1979
DECISION AND ORDER
By CHAIRMAN FANNIN(; ANI) MEMBERS JENKINS
ANI) PENH.lt
Upon a charge filed by United Food and Commer-
cial Workers International Union, AFL-CIO (herein
called the Charging Party or the Union), the General
Counsel of' the National Labor Relations Board, by
the Regional Director for Region 12, issued a com-
plaint on May 17, 1978, against Winn-Dixie Stores,
Inc. (herein called Respondent). Copies of the charge
and the complaint and notice of hearing before an
administrative law judge were duly served on Re-
spondent and the Charging Party. In substance the
complaint alleges that Respondent violated Section
8(a)(5) and (I) of the National Labor Relations Act.
as amended, by refusing to bargain collectively with
the Union as the exclusive bargaining representative
of the employees in an appropriate unit by. on or
about July 7, 1974, at which time no impasse in bar-
gaining existed, unilaterally and over the Union's
protest granting a wage increase of from 56 to 81
cents per hour to the unit employees.
The amended answer duly filed by Respondent
substantially admits the jurisdictional and factual al-
legations of the complaint, but denies the commission
of any unfair labor practices.
On September 2, 1978, the Charging Party, the
General Counsel, and Respondent entered into a
stipulation in which they agreed that certain docu-
ments shall constitute the entire record herein2 and
that no oral testimony is necessary or desired by any
of the parties. Thus, the parties expressly waived all
intermediate proceedings before an administrative
law judge and petitioned that this case be transferred
to the Board for the purpose of making findings of
fact and conclusions of law and issuing an appropri-
ate Order, reserving to themselves only the right to
exercise any post-Board Order rights to which they
may be entitled.
By order dated November 16, 1978, the Board ap-
proved the stipulation, transferred the proceeding to
I The name of the Charging Party, formerly Amalgamated Meatcutters
and Butcher Workmen of North Amenca, AFL CIO. is amended to reflect
the change resulting from the merging of Retail Clerks International Associ-
ation and Amalgamated Meatcutters and Butcher Workmen of North Amer-
ica on June 7, 1979.
2 The stipulated record consists of the charge, complaint., answer, and the
stipulation and attached exhibits.
itsell: and set a date Ir the filing of hriefs. 'I hereafler ,
Respondent filed a brief which has been duly consid-
ered by the Board.
Pursuant to the provisions tof' Section 3(b) of' the
National Labor Relations Act, as amended, the Na-
tional abor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the entire record herein
as stipulated, by the parties, as well as the brief filed
by Respondent. and makes the following findings and
conclusions:
F-INI)IN(;S ()F L I
1. 111i BUHSINISS )1 RI.SI'()NI)I:NI
Winn-Dixie Stores, Inc., is a Florida corporation
engaged in the business of operating a multistate
chain of retail grocery stores with its home office in
Jacksonville, Florida. Respondent, in the course and
conduct of its business, annually receives gross rev-
enue in excess of $500,000 and annually ships goods
and materials valued in excess of $50,000 from its
Florida warehouse directly to points outside the State
of Florida. The complaint alleges, the answer admits.
and we find that Respondent is, and has been at all
times material, an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. lii L.ABO()R ()R(;ANIZAlI()N INVO()I.VIl)
The parties stipulated, and we find, that the Union
is, and has been at all times material herein, a labor
organization within the meaning of Section 2(5) of the
Act.
111. i AE(il) NIAIR .ABOR PRA( II( S
A. The Issue
The question presented is whether Respondent vio-
lated Section 8(a)(5) and (1I) of the Act by unilaterally
granting a wage increase to employees represented by
the Union.
B. The Facts
On April 8, 1974, Respondent submitted a wage
proposal to the Union as part of a proposed compro-
mise in an attempt to settle an earlier case3 concern-
ing the same parties and bargaining unit involved
herein. The parties were unable to settle the earlier
case and thus the wage proposal was not imple-
mented at that time.
Winn-Dixie Stores, Inc. 224 NLRB 1418 (1976).
243 NLRB No. 151
"72
'INN-I)IXIt. SI()RIS. INC.('
By letters senl to Respondent and dated April 17
and 25. 1974. respectively. the l nion requested a Lite
for the purpose of collective bargaining. Bi letter
dated May 3. 1974. Respondent proposed a meeting
in early June. Respondent further proposed that the
wage increase proposed on April 8, 1974. "be put into
effect immediately without prejudice to further bar-
gaining on the subject." The Union responded to this
request by a letter dated May 6, 1974. in which it
rejected the offer to institute the wage increase, re-
quested resumption of bargaining, and stated its de-
sire to bargain with Respondent not only fr "wage
increases but increases in pensions, vacations, hospi-
talization, and other fringe benefits as well as terms
and conditions of employment."
Respondent and the Union met on June 24. 1974.
for the purpose of collective bargaining. At this meet-
ing the Union requested several different items of in-
formation, such as names of unit employees with
more than 20 years of service, the current benefits
offered by Respondent under its health insurance pro-
gram, a copy of crew averages, copies of' all written
reprimands, an update of a previously submitted list
of new hires and terminations, a copy of the turnover
report, and the hours worked for each shift b depart-
ment for the month of June 1974. During this meeting
the parties discussed the current collective-bargaining
contract 4 item by item and there was agreement on
certain contract items but no major change in posi-
tion by either party. Each side essentially restated its
previous position on all major open items of the con-
tract. Further, the parties discussed Respondent's
wage proposal which Respondent sought to imple-
ment immediately with the understanding that such
implementation would not foreclose further bargain-
ing on wages of any other subject matter of collective
bargaining. Respondent stated that it was anxious to
implement the wage proposal immediately because
the unit employees had not received a wage increase
in 18 months and such an increase would keep Re-
spondent's wage rates competitive with other employ-
ers in the area. The Union would not agree to the
implementation of the wage increase and instead
wanted to reach agreement on the following items
before giving any pay raise: night premium pay, holi-
day, vacations, pension plan, health and welfare, an
arbitration.
The parties met again on July I and 2, 1974, essen-
tially covering the same ground and reaching the
same results as they did at the June 24, 1974, meeting.
At the July 2 meeting Respondent advised the Union
' Although the collective-bargaining agreement discussed at this meeting
expired February 1972, by ils terms it was still being applied at all times
material herein.
th;ll it was i mplenlenlingl tile proposed lpc increa;se
etfective .ulN 7, 1974. and suggested hat tile parlties
post a joint notice of the wage increase advising the
employees that this was an interim wage increase and
that wages and all items in the contract were till
subject to current negotiations. The Union re ected
this proposal and advised Respondent that if the
wage increase was implemented the Union 4would ile
an unflir labor practice charge. Thereafter. urther
discussion ensued and again there was agreement and
counterproposals by both parties on items in the con-
tract. The meeting adjourned with the parties mutu-
ally agreeing to set the date tfr the next meeting hb
correspondence: however, no further negotiations
were held in 1974.
Effective July 7. 1974, Respondent implemented
the aorementioned wage increase.
C. ('tontltlioll Of it PttliCA
As stated, the complaint alleges that Respondent
unlawfully granted a wage increase to unit emplo -
ees. Neither the General Counsel nor the I nion has
filed a brief herein. In its brief" Respondent contends
that a unilateral change in wages or working condi-
tions by an employer during collective bargaining. in
the absence of an impasse. does not per se establish a
failure of the duty to bargain. Rather. Respondent
argues unilateral changes may be proper if the Ulnion
is given notice of the changes and an opportunit to
discuss them and make counterproposals.
D. iscus.vsion
It is well settled that an employer violates Section
8(a)(5) of the Act by, during the course of negotia-
tions with its employees' bargaining representative
and at a time when no impasse exists, instituting uni-
lateral changes in terms and conditions of emploN-
ment.5
Respondent concedes that there was no impasse at
the time it unilaterally granted the wage increase at
issue here, but contends that its implementation of
the change was lawful despite the absence of impasse
because the Union was afforded notice and an oppor-
tunity to bargain. Thus, Respondent argues that by
providing the bargaining representative with notice of
the proposed wage increase and with an opportunity
to make couterproposals it satisfied its statutory bar-
gaining obligation. Respondent relies on, inter calia,
I N L.R.B. v. Benne Kat., etc. d/h/a Wiliamsbhurg Steel Products (C. 369
US. 736 (1962): Atlas Tack Corporation, 226 NLRB 222 (1976). en'fd. 559
F.2d 1201 (Ist Cir 1977) Federated Pubhlcaions., Inc., d/bha The Enquirer
and News, 221 NLRB 778 11975), enfd. 555 F.2d 144 (6th ('r. 1977). See also
Dust-Ter Serice. Inc., 214 NLRB 398. 406 (1974)
1)1 ( ISIt)NS ()I N INAI I AIl()R RKl.IA I I)NS IM)ARI)
14',-I)inic Si,'orcX, Inc v. .1..RB.. 567 1.2d 1343
(5th ('ir. 1978)," tLo support thllis contentionll oll 11I that
case, the ('oitipait\ h had, prior to instituting a wage
increase, noitlified te t I ion and nlet with it in a har-
gaining session aIt sl ich the I ]nion made counterpro-
posals but refused to assent to the increase. he
Board to lmnd that the i mplementation of' the wage in-
crease violated Section 8(a)(5) and (I) of the Act;
however, the court denied enforcemlenl of the Board's
()rder in this regard, citing its decisions in N.I.. R. .
Tc\-lt, hit'.. and 4. /. Bclo ( orp/oration (1 ',4,
71') v. N. .. R. B.' Ihe court sltated (567 F.2d at 1349):
It seemns clear that Winn-l)ixie has complied
with its statutorN duty to bargain. Before imple-
menting the chlange it gave the union notice ol
its desire to raise wages and met with the union
in a bairgaini ng session at which the union pre-
sented counterproposals.
Although we have accepted the court's decision as
the law of that case, we respectfully disagree with the
court's conclusion limiting the obligation of an em-
ployer to bargain with the representative o its em-
ployees prior to implementing a unilateral change.
Our view that. absent extenuati ig circumstances, an
employer must hargaill to impasse prior to imple-
menting unilateral changes in working conditions is
supported by the Supreme ('ourt's statement in
N.L. R.B. v. Kallz, .tpra, that:
A refusal to negotiate i /(c(t as to ain subject
which is within §8(d), and about which the union
seeks to negotiate, violates §8(a)(5) though the
employer has every desire to reach agreement
with the union upon an over-all collective agree-
ment and earnestly and in all good faith bargains
to that end. We hold that an employer's unilat-
eral change in conditions of employment under
negotiation is similarly a violation of §8(a)(5) for
it is a circumvention of the duty to negotiate
which frustrates the objectives of §8(a)(5) much
as does a flat refusal."'
'Enfg in part and denying enlfrcemet in part to IS'iIn,-Di i' Sl/,,r,. I ,
supra.
'318 F.2d 472. 479 (1963).
s411 F 2d 959, 970 971 (1969), cert. denied 396 U.S. 1007 (1970}.
9The possibility that extenuating circumstances could justify unilateral
action was explicitly noted by the Supreme (Court in N.I..RB. v. Katz, supra
at 748. Although Respondent represented to the Union that the reason for its
wage proposal was that it had been 18 months since the employees had
received a wage increase and such an increase was necessary to keep its wage
rates competitive with other employers in the area, Respondent has predi-
cated its defense on the proposition that it satisfied whatever bargaining
obligation it had prior to implementing the change by providing the Union
with notice and an opportunity to discuss and make counterproposals. 'hus,
while Respondent refers to these reasons as a "business emergency." the
thrust of its defense is that it bargained. In any event, we find that the record
is inadequate to support a compelling business justification defense excusing
Respondent's unilateral action.
°0 369 U.S. at 743.
We rcogmize that in N.L.R.B. v. kta: the unilat-
eral wage increase lound t have violaited Section
8(a)(5) of the Act was granted without notice to the
union and that in the instant case Respondent noti-
tied the Ilnion of its desire to grant a wage increase
and in act met with the I[nion three times prior to
implementing the change. We conclude, however.
that the requirement that the parties reach impasse
before a unilateral change may he lawlully imple-
mnented, rather than merely discuss a proposed
change, is in accord with the basic tenets established
by the ('ourt in N.L.R.B. v. Katz, as quoted above,
and by Congress in enacting Section 8(d) of' the Act.
Indeed, under the Fifth Circuit Court of Appeals'
interpretation of the bargaining obligation, an em-
ployer would be entitled to change unilaterally any
term or condition ol employment, regardless of the
status oft negotiations with its employees' collective-
hargaining representative, as soon as the representa-
tive was notified of' the intended change and given an
opportunity to discuss it. By utilizing this approach
with respect to various employment contditions veri-
atrir, an employer eventually would be able to imple-
ment any and all changes it desired regardless of the
state of negotiations between the bargaining repre-
sentative of' its employees and itself'.
We do not believe that this method of "bargaining"
satisfies the definition of' the duty to bargain collec-
tivelv stated in Section 8(d) of the Act s "the per-
'formance of' the mutual obligation of the employer
and the representative of' the employees to meet at
reasonable times and confller in good tfith with re-
spect to wages, hours, and other terms and conditions
of employment." Instead, under this approach, form.
rather than substance, becomes the determinative fac-
tor in deciding whether the bargaining obligation has
been fulfilled. In consequence, meaningful collective
bargaining is precluded and the role of the bargaining
representative is effectively vitiated. We cannot en-
dorse an approach so clearly in disparagement of the
collective-bargaining process.
Bargaining presupposes negotiations-with atten-
dant give and take-between parties carried on in
good faith with the intention of reaching agreement
through compromise. As Professor Cox noted: "The
duty to bargain -to meet and treat--was imposed in
the hope that negotiations would lead to the kind of
rational exchange of facts and arguments which in-
creases mutual understanding and then results in
agreement. "'' Clearly this duty requires more than
going through the motions of proffering a specific
bargaining proposal as to one item while others are
undecided and merely giving the bargaining agent an
opportunity to respond. Such tactics amount to little
u ('ox, "The Duty to Bargain in Good Faith." 71 Harv. L. Rev. 1401,
1433 (1958).
'9741
WINN-DIXIE SORES. INC.
more than a ritual or pro/orma approach to bargain-
ing and hardly constitute the "kind of rational ex-
change of facts and arguments which increases mu-
tual understanding and then results in agreement." 2
We find here that Respondent's conduct concern-
ing the wage increase falls within the above descrip-
tion of ritual or pro forma bargaining. The facts show
that, from the time it announced its wage proposal,
Respondent intended to implement the increase re-
gardless of whether the Union agreed or objected to
it. Thus, the Respondent stressed that the proposed
increase would be "put into effect immediately."
When the Union rejected the proposal and suggested
bargaining first as to other related "money" matters
such as premium pay and benefits, Respondent ad-
hered to its position and at the parties' meeting on
July 2 in effect informed the Union that the increase
would be implemented with or without the Union's
acquiescence. In these circumstances, and in the ab-
sence of an impasse, Respondent's offer "to bargain"
about the wage increase was really more in the nature
of a proposal that the Union accept the increase "or
else." In other words, the Union was not so much
presented with an opportunity to bargain about the
wage increase as it was afforded a chance to give ap-
proval to Respondent's decision to grant it.l' Even
under the most permissive or limited view of the bar-
gaining process, such conduct on the part of Respon-
dent did not constitute good-faith bargaining, and we
so find.
On the basis of all the foregoing we find no merit
to Respondent's contention that it satisfied its obliga-
tion to bargain with the Union prior to granting the
wage increase, and conclude that Respondent refused
to bargain with the Union as the exclusive represent-
ative of the unit employees, at a time when no im-
passe in bargaining existed, by unilaterally granting a
wage increase and that, by so doing. Respondent vio-
lated Section 8(a)(5) and (I) of the Act.
IV. TE EFFECT OF THE UNFAIR ABOR PRACTI(CE
UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with Respon-
dent's operations described in section I, above, have a
close, intimate, and substantial relationship to trade,
traffic, and commerce among the several States and
tend to lead to labor disputes burdening and obstruct-
ing commerce and the free flow of commerce.
" Ibid. at 1433.
u Consequently. Respondent's assertion to the Union Ihat granting the
wage increase would not foreclose future bargaining i iimmaterial 1to the
determination that Respondent unlawfully implemented it
CON(CI.USIONS OF LAW
I. Winn-Dixie Stores, Inc., is an employer engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. United Food and Commercial Workers Interna-
tional Union, AFL CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. 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 pro-
cessing and packaging department, all garage and
mechanical maintenance employees. carpenters. regu-
lar maintenance personnel. truckdrivers and helpers,
office clerical employees, guards. and supervisors as
defined in the Act, constitute a unit appropriate tor
the purpose of collective bargaining within the mean-
ing of Section 9(b) of the Act.
4. United Food and Commercial Workers Interna-
tional Union, AFI.-CIO. has been and is the excilu-
sive representative of all employees in the aforesaid
appropriate unit for the purpose of collective hargain-
ing within the meaning of Section 9(a) of the Act.
5. B refusing to bargain collectively with the
above-named labor organization as the exclusive bar-
gaining representative of all its employees in the ap-
propriate unit, by, on or about July 7, 1974. at which
time no impasse in bargaining existed, unilaterally
granting a wage increase, Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) of( the Act.
6. B the aforesaid refusal to bargain. Respondent
has interfered with, restrained, nd coerced, and is
interfering with, restraining, and coercing. emplosees
in the exercise of the rights guaranteed to them in
Section 7 of the Act. and thereby has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)( I) of the Act.
7. The aforesaid labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Tlt RIiMFI)DY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)(5) and (1) of the Act, we shall
order that it cease and desist therefrom and, upon
request, bargain collectively with the Union as the
exclusive representative of all employees in the ap-
propriate unit.
ORDER
Pursuant to Section 10(c) of the National ahor
Relations Act, as amended, the National abor Rela-
975
DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
tions Board hereby orders that the Respondent,
Winn-Dixie Stores, Inc., Jacksonville, Florida, its offi-
cers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Making unilateral wage increases, in deroga-
tion of its bargaining obligation, to its employees rep-
resented by United Food and Commercial Workers
International Union, AFL CIO, in the appropriate
bargaining unit described below: provided, however.
that nothing herein shall require Respondent to vary
such minimum salary schedules as are already estab-
lished. The appropriate unit is:
All employees engaged in the receiving, ship-
ping, and processing of all food and sundry prod-
ucts at the Employer's warehouse at Jackson-
ville, 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 supervisors as
defined in the Act.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of their rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action to effectu-
ate 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.
(b) Post at its warehouse in Jacksonville, Florida,
copies of the attached notice marked "Appendix." '4
Copies of said notice, on forms provided by the Re-
gional Director for Region 12, after being duly signed
by Respondent's representative, 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
" 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
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.
(c) 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
NorIci T EMPI.()YITS
Pos'rII) BY ORDER OF t111l
NAIIONAI. LABOR R.Arl()ONS BOARI)
An Agency of the United States Government
WE WIll. N01 unilaterally implement wage in-
creases for employees in the bargaining unit de-
scribed below without first engaging in collective
bargaining with United Food and Commercial
Workers International Union, AFL.-CIO, al-
though this does not mean we are now required
to lower any minimum salary schedules pres-
ently established for these employees. The unit
is:
All employees engaged in the receiving.
shipping, and processing of all food and sun-
dry products at the Employer's warehouse at
Jacksonville, Florida: excluding all employees
in the meat and cheese processing and packag-
ing department, all garage and mechanical
maintenance employees, carpenters. regular
maintenance personnel, truckdrivers and help-
ers, office clerical employees, guards, and su-
pervisors as defined in the Act.
WE WILL N in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of rights guaranteed them by Sec-
tion 7 of the National Labor Relations Act.
WE WI.Ll, 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.
WINN-DIXIE SI'oRES, INC.
976