Foodway

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Winn-Dixie Texas, Inc., d/b/a Foodway and Retail Clerks International Association, Local 462, AFL- CIO. Case 28-CA-4150 January 5, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE On September 16, 1977, Administrative Law Judge James T. Barker issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the Charging Party filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the 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 and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Winn-Dixie Texas, Inc., d/b/a Foodway, Fort Worth, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. DECISION STATEMENT OF THE CASE JAMES T. BARKER, Administrative Law Judge: This case was heard before me at El Paso, Texas, on June 28, 1977, pursuant to a complaint and notice of hearing issued on April 5, 1977, by the Regional Director of the National Labor Relations Board for Region 28. The complaint and notice of hearing was based upon a charge filed on Decem- ber 15, 1976, by Retail Clerks International Association, Local 462, AFL-CIO, herein called the Union.' The par- ties were accorded full opportunity to make opening state- ments, to introduce relevant evidence, and to file briefs with me. Briefs were timely filed by each of the parties. Unless otherwise specified, all dates herein refer to the calendar year 1976. 2 At the outset of the hearing, over objections of Respondent, the Gener- al Counsel was permitted to amend the complaint in certain particulars to add new 8(aX5) and (I) allegations pertaining to the asserted attempt by Respondent to undermine the representative status of the Union. I reaffirm my ruling permitting the amendment. 234 NLRB No. 7 Based upon the entire record in this case,2 my observa- tion of the witnesses, and the briefs of the parties, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is, and has been at all times material herein, a corporation duly organized under the laws of the State of Texas. At all relevant times, Respondent has maintained its principal office and place of business in Fort Worth, Texas, and has operated and maintained retail stores and other facilities in Carlsbad, New Mexico, and Las Cruces, New Mexico, as well as other places in the State of New Mexico and other States of the United States. Moreover, at all relevant times, Respondent has engaged at said retail stores and other facilities in the sale and distribution of groceries, meats, produce, and related products. During the 12-month period immediately preceding the issuance of the complaint herein, Respondent, in the course and conduct of its business operations, purchased goods and materials valued in excess of $50,000, which were transported in interstate commerce and delivered to its places of business in the State of New Mexico directly from States of the United States other than the State of New Mexico. During the same period of time, Respondent, in the course and conduct of its business operations, sold and distributed groceries, meats, and related products valued in excess of $500,000. Based upon these facts, which are not in dispute, I find that at all times material herein Respondent has been and presently is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent concedes, and I find, that at all times mate- rial herein the Union has been, and presently is, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNLAWFUL CONDUCT A. The Issues The principal issues in this proceeding are (I) whether Respondent unlawfully withdrew an operationwide offer extended to unit employees, to participate in and purchase stock under its existing stock purchase plan; whether Re- spondent refused to bargain collectively with the Union concerning application of the stock purchase plan to unit employees; (2) whether by posting on its employee bulletin board certain correspondence between the Company and the Union relating to the stock purchase plan Respondent attempted to undermine the Union, all in violation of Sec- tion 8(aX5) of the Act; and (3) whether by and through statements of its supervisors, Respondent engaged in inde- By order dated July 21, 1977, the posthearing motion of counsel for the General Counsel for admission of certain preheanng documents filed with the Board in relation to Respondent's June 3, 1977, Motion for Summary Judgment were received in evidence, not as substantive evidence but as a record of the preheating chronology of pleadings and relevant material filed by the parties in the instant matter. 72 FOODWAY pendent violations of Section 8(a)(1). Subsumed with the first-stated issue is the question whether, in fact, in light of the decision in Westinghouse Electric Corporation, 122 NLRB 1466 (1959), Respondent was obligated to engage in collective bargaining with the Union concerning a stock purchase plan assertedly available to employees on a com- panywide basis, and whether the correspondence between the Company and the Union referred to in (2), above, was altered by handwritten textual additions in a manner calcu- lated to undermine the Union. B. Pertinent Facts 1. Background facts On or about August 30, pursuant to an acquisition ar- rangement with Kimbell's, Inc., Respondent commenced operations at two retail stores located in Carlsbad and Las Cruces, New Mexico, respectively. At all material times prior and subsequent to August 30, the Union has been the exclusive collective-bargaining representative in the collec- tive-bargaining units described below: All regular full-time and all regular part-time em- ployees and courtesy clerks employed in the Carlsbad, New Mexico, operation of Respondent who are en- gaged in handling or selling merchandise or performing other services incidental thereto, excluding store overall manager, guards, all employees working exclusively in the meat department, and supervisors as defined in the Act. All employees employed in the Las Cruces, New Mexico, operation of Respondent, excluding all manag- ers, guards, office clerical employees, watchmen, em- ployees working in the meat department, and supervi- sors as defined in the Act.3 For a substantial period of time prior to August 30, Winn-Dixie Stores, Inc., herein called Winn-Dixie, had maintained a stock purchase plan for the employees of the corporation, including its subsidiary operations. The plan was created and exists for the avowed purpose of encourag- ing eligible employees to purchase and own the common stock of Winn-Dixie, thereby promoting their increased interest in the affairs, growth, and development of the Company. The plan in effect on August 30 was one bearing a revision date of October 5, 1973. In February 1976 an offering under this revised plan had been made by Respon- dent to its employees. Prior and subsequent to the actual acquisition of the Carlsbad and Las Cruces stores, Respon- dent's management gave consideration to the propriety of extending the plan to employees of the Carlsbad and Las Cruces operations. No stock purchase plan had been in effect at the stores under Kimbell, Inc., ownership. In due course, on October 1, at a stockholders meeting, the share- 3 The appropriateness of these units is not in issue. Respondent con- tends, however, that assistant managers are supervisors within the meaning of the Act and should be excluded from the units. 4 Under the plan which was structured to comply with sec. 423(b) of the Internal Revenue Code, stock purchase options are granted by a committee comprised of the chairman of the board of directors of Winn-Dixie Stores, Inc.. the corporate president, the financial vice president, and the executive vice president. The committee possesses the sole discretion to determine at holders of Winn-Dixie voted to amend the stock purchase plan by increasing both the number of shares available for purchase by employees and the aggregate number of shares which an employee might purchase under the terms of the plan. The October I action of the shareholders in modify- ing the revised stock purchase plan was ratified by the board of directors during the course of a meeting held during the first week of November. A stock offering was made in November under the terms of the newly revised stock purchase plan. 4 The option price was set at $33.95 per share, or 88.9 percent of the fair market value of the stock as of November 1. In accordance with the provisions of the amended stock purchase plan, any employee qualify- ing for participation in the plan is permitted to purchase a maximum of 25 shares on a payroll deduction credit basis. At the time of the November stock offering, Winn-Dixie and its wholly owned subsidiaries employed approximately 41,900 employees, of whom approximately 24,400 were eli- gible to participate in the plan. At the Carlsbad store a maximum of 30 employees represented by the Union were employed, and in the Las Cruces store approximately 28 such employees were on the payroll. 2. The alleged unlawful conduct a. The stock offer communicated On or about November 12, Dwight Stuckey, manager of the Carlsbad store, approached Victor Echavarria and two other employees as they were performing their work in the store. Stuckey noted that the Company was offering a stock purchase plan to employees. Stuckey mentioned the offer- ing price and stated that a stock split was a possibility. Stuckey also noted that the employees could purchase the stock under a weekly payroll deduction arrangement. He observed that he had some stock option applications, and he would post a notice in the break room which the em- ployees could sign; and he would make an application available to them for completion. A paper was posted on the bulletin board 2 days later with the notation, "We the undersigned wish to buy the stock." Echavarria and ap- proximately five other Carlsbad unit employees signed the paper. Later, soon after November 17, at the Las Cruces store, Corrine Olivera, a unit employee at the Las Cruces opera- tion, spoke with Ignacio Ulibarri, store manager at Las Cruces. Ulibarri stated that he had just returned from a meeting in Albuquerque, and the Company was going to be offering benefits to employees, including an opportunity to purchase stock of the Company. Olivera stated that she surmised she could start investing, but Ulibarri stated that she could not do so because she was member of the Union. 5 In the meantime on Saturday, November 13, during the course of a telephone call from Albuquerque to his Jack- its regularly scheduled meeting held during the first week of each month whether or not to grant options for purchase in that particular month. The committee also determines the option price at which the shares will be issued, and the price may not be less than 85 percent of the market value of the stock as of the date of the offering. I The foregoing is based on the credited and undisputed testimony of Victor Echavarria and Corrine Olivera, respectively. 73 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sonville, Florida, office, Carlton Trosclair, labor relations attorney for Winn-Dixie, learned of the stock offering un- der the newly revised stock purchase plan. Trosclair in- formed representatives of Winn-Dixie that the stock would have to be made available through the bargaining represen- tative of the employees in the Carlsbad and Las Cruces stores. He volunteered to dispatch a telegram to the bar- gaining representative.6s Trosclair subsequently learned that a meeting had been held in the Albuquerque, New Mexico, general offices on or about November 13, for the purpose of explaining to the district supervisors, manage- ment officials, and supervisors in attendance, the "mechan- ics of the plan" insofar as employee subscription and par- ticipation was concerned. Supervisors were instructed to answer employee questions but not to discuss the plan unless they had prior clearance from a representative of the Union. Thereafter, on Monday, November 15, Trosclair dis- patched a telegram to James E. Eyer, president of the Union, which read as follows: Winn-Dixie Stores Inc plans to offer stock to all of its employees through its employees stock purchase plan. Eligible employees must have more than a years service with the company. Our employees having more than a years service with the Foodway Stores in New Mexico are eligible to par- ticipate in the plan. The employees, some of whom Local 462 may repre- sent, will be offered the opportunity to participate in the plan unless you file written objections by giving notice to our attorney, Mr. Robert P Tinnin Jr on or before 5:00 pm Thursday November 18, 1976. Under the terms of the revised stock purchase plan, op- tions are exercised by employees by delivering an executed subscription agreement to the Company. In order for an employee to have participated under the stock offering per- tinent herein, it was essential for options to have been exer- cised prior to November 30. The November 18 response date referred to in his telegram was selected by Trosclair in consideration of the administrative requirements con- nected with the offering and the November 30 cutoff date. Eyer received Trosclair's telegram but was not familiar with the details of the stock purchase plan. He had no material describing the plan and had received no applica- tion forms or other materials required of employees in the exercise of the option to purchase stock under the plan. Accordingly, he spoke by telephone with Gene Britton, the International vice president of the Union, requesting ad- vice. Britton instructed Eyer to dispatch a telegram re- questing the Company to bargain concerning the matter. Thus, on November 17, in response to Trosclair's earlier telegram, Eyer dispatched a mailgram addressed to Robert P. Tinnin, Jr., attorney for Respondent, containing the fol- lowing message: 6 Carlton Trosclair credibly testified that he had been in Albuquerque engaged in collective-bargaining negotiations during the early part of No- vember and did not learn of the stock offering until his November 13 telephone call. In response to telegram received from C J Trosclair regarding Winn-Dixie's plan to offer stock to all of its employees please be advised that it is our position that the company must meet and negotiate with representa- tives of this union prior to the implementation of such plans. Local union will make representatives available to meet at earliest possible dates to avoid any delay. Following receipt of Eyer's telegram, by letter dated No- vember 18, Tinnin responded as follows: I am in receipt of your telegram of November 17, 1976. I sincerely regret that your union objects to im- plementation of the company's stock purchase plan. No other union has done so. Since the stock purchase plan is being offered com- pany-wide for the benefit of all employees in the com- pany, there can be no variation in it. Therefore, there is nothing about which we can negotiate. Since your union objects to implementation of this fringe benefit plan for its employees, employees work- ing under the jurisdiction of your union will have the distinction of being the only employees in the entire retail operations of Winn-Dixie who will not be eligible to participate. b. The postings and related dialogue Following Tinnin's dispatch of the November 18 letter, Trosclair was contacted by Hobbes, western district man- ager of Respondent, with authority over stores in New Mexico. Hobbes informed Trosclair that there had been several questions raised concerning the stock purchase matter and, consequently, he asked if it were permissible for him to post on the bulletin boards the exchange of communications which had transpired concerning the plan. Trosclair gave his permission but instructed Hobbes not to alter any of the documents. On or about November 19, copies of Tinnin's letter were posted in the Carlsbad and Las Cruces stores. The copy posted in the Carlsbad store was placed on the bulletin board in the employee break room where it remained for approximately 6 to 8 weeks. The copy posted in the Las Cruces store was initially placed at the timeclock, but after a week or two it was moved to the bulletin board where it remained until early June. The notice posted in the Carlsbad store came to the at- tention of Victor Echavarria, an employee in the Carlsbad store. When he first observed the posting, the November 18 letter contained a handwritten notation, "for non-union employees only." The handwritten notation was that of Dwight Stuckey, store manager.7 Within 2 or 3 hours after he observed the notice, Echavarria spoke with Stuckey. Richard Hall, the produce manager, and Randall Bolles, the assistant manager, participated in the conversation. Echavarria and Hall asked why the employees could not purchase the stock. Stuckey replied that the Union did not want the employees to have the stock. Hall observed that 7 Victor Echavama credibly testified that he had had occasion through- out the 4 years of his employment at the Carlsbad store to observe the handwriting of Dwight Stuckey, and I credit his testimony to the effect that the handwritten notation was in Stuckey's handwriting. 74 FOODWAY the Union was endeavoring to tell the employees how to spend their money, and Stuckey stated that he agreed with Hall's observation. s Similarly, on Friday, November 19, at the Las Cruces store, Carolyn Butts observed a posted copy of Tinnin's letter containing the handprinted word "Notice" which was twice underscored and which appeared in a prominent position near the top of the letter and above the type writ- ten portions thereof. The printed notation was that of Joe Ornales, Respondent's district supervisor. Butts made a comment to Ulibarri to the effect that the employees could not buy stock. Ulibarri responded, "No, you belong to the Union." Eyer was absent from his office on business on Novem- ber 19 and did not read Tinnin's letter until Monday, No- vember 22. Eyer then met with Gene Britton and discussed the content of the letter. Thereafter, Britton suggested that Eyer file unfair labor practice charges. Britton and Eyer did not discuss bargaining strategy with respect to the stock offer, and Eyer was uncertain as to whether or not the Company had an obligation to discuss the stock offer with the Union. Eyer was of the opinion the filing of the charges would lead to a resolution of the issue. Following receipt of Tinnin's letter, the Union made no bargaining demand, in terms either written or oral, that Respondent engage in collective bargaining concerning the extension of the stock purchase plan to unit employees. In the meantime, upon his return to the office on Mon- day, November 22, Eyer had on his desk a message inform- ing him that he had received a telephone call from Richard Hall the previous Friday. Eyer called Hall at the Carlsbad store, and Hall asked Eyer why the Union was trying to prevent the employees from participating in the stock pur- chase plan. Eyer stated that the Union was attempting to gather information concerning the plan but was not trying to prevent employee participation. Eyer further explained, in substance, the Union had a bargaining obligation with respect to the employees, including union members, and it was endeavoring to obtain further information concerning the plan so that it could properly carry out its bargaining obligation. Eyer and Hall spoke together for approximately 10 or 15 minutes. Soon thereafter, Eyer received a telephone call from Marcie Chavez, an employee at the Las Cruces store. Cha- vez stated that a communication from Tinnin to Eyer had been posted on the timeclock indicating the Union was preventing employees from participating in the stock plan. Chavez stated that this had generated a lot of hostility in the store, and she suggested that Eyer come down to the store. Eyer went to the Las Cruces store with Martha Garza, a union business agent. In the rest area of the store where the timeclock is situated, they observed posted the November 18 letter from Tinnin to Eyer which employee Butts had The foregoing is based on the credited testimony of Victor Echavarria. I do not credit the testimony of Echavarria to the extent that it could be interpreted as inferring Stuckey himself stated, in specific terms, the Union was endeavoring to tell the employees "how to spend their money." 9 I credit Carolyn Butts in this regard. The letter which Butts observed posted had certain undersconng and additions which the General Counsel does not appear to attribute to Respondent. Accordingly, I make no deter- mination as to the responsibility for these essentially innocuous modifica- tions. earlier seen. The "Notice" notation was on the letter, as described above. c. The collective-bargaining meetings Subsequent to the filing of the unfair labor practice charge, there were no contacts between the parties until February 1, 1977, when the first of a series of five collec- tive-bargaining meetings were held for the purpose of nego- tiating a new collective-bargaining agreement to replace the agreement with Kimbell, Inc., scheduled to expire on March 1, 1977. During the course of the February I meet- ing, no mention was made of the stock purchase plan. Discussion of the plan did transpire at the March 10 meet- ing, the second bargaining session between the parties. During the March 10 meeting, Eyer, who was serving as the principal negotiator on behalf of the Union, lodged a gen- eral request for information concerning the plan.'? No in- formation concerning the plan was immediately dispatched to the Union and, during the course of the third bargaining session, on March 31, Eyer reminded Trosclair that he had not been furnished the information which had previously been requested. Trosclair stated, in substance, that he thought the information had been dispatched to Eyer by personnel but that, in any event, he would provide the information which Eyer desired. Trosclair cautioned, how- ever, in this connection, that, while he was willing to ex- plain the plan, he could not negotiate separately with the Union concerning its terms." The following day, Jack Jones, director of personnel of Winn-Dixie, dispatched a booklet containing a two-page explanation of the highlights of the employee stock purchase plan. On April 5, 1977, the Regional Director issued the instant complaint and notice of hearing alleging 8(aX5) and (I) violations of the Act. On May 5, Trosclair dispatched another copy of the employee stock purchase plan booklet under covering letter ad- dressed to Eyer. The letter read as follows: In our negotiations scheduled for May 10, 1977, please be advised that once again we would like to explain in detail Winn-Dixie Stores, Inc., stock pur- chase program. Enclosed please find an employee booklet entitled, "Stock Purchase Plan." The scheduled May 10 meeting did transpire. Prior to the commencement of the meeting, Trosclair and Jones approached Eyer and asked if Eyer had received the employee stock purchase plan booklet. He replied in the affirmative. Eyer was then presented with a typewritten affidavit executed by Jay Shepard Bryan, Jr., vice president and secretary of Winn-Dixie. Trosclair stated that the affi- davit would explain why the stock purchase plan could not be modified. In connection with this, Trosclair also pre- sented Eyer with a copy of provisions of the Internal Reve- i' In finding that the request was a general one for information and not for a copy of the plan itself I credit the testimony of Carlton Trosclair. In testifying concerning this. James Eyer was uncertain as to the precise nature of his request. I Carlton Trosclair credibly testified, in substance, that the discussion of the stock purchase plan transpired as a mere interlude in the discussion of other bargaining proposals and information items. 75 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nue Code relating to the employee stock purchase plan. In so doing, Trosclair told Eyer that in his opinion the Com- pany could not negotiate separate terms and conditions pertaining to the plan with the Union. In connection with this discussion, some citation to case decisions were pre- sented to Eyer. Eyer responded that he and his associates were not attorneys, that there were pending unfair labor practice charges covering the matter and that he would refer to the attorneys for the Union the information which had been supplied. Trosclair suggested that Eyer and his associates should consult with their attorneys. There was no discussion of the employee stock purchase plan during the course of the May 10 meeting. Subsequent to the meet- ing, Eyer dispatched the Bryan affidavit to the Union's attorneys and discussed its contents with them. The parties met in a final negotiating session on May 26, 1977, but no discussion of the stock purchase plan ensued. d. Pertinent code provisions Trosclair testified that he interpreted section 423(bX4) of the Internal Revenue Code as permitting the Company to tender through the exclusive collective-bargaining repre- sentative of employees an offer to the employees to pur- chase stock of the Company. Trosclair further credibly tes- tified that he interpreted the provisions of section 423(bX5) of the code as requiring any offer of stock to employees to be accomplished in a manner sufficient to assure that no single employee or group of employees obtain any privi- lege, concession, or advantage in purchase price not ac- corded all employees to whom the stock is offered. Tros- clair testified credibly that he informed the board of direc- tors of his opinion in these respects. Trosclair further testi- fied, in substance, these considerations formed the basis for his opinion that he could not conduct negotiations on be- half of Respondent with the Union relating to any separate stock purchase plan or special conditions to be accorded employees represented by the Union. Code provisions which Trosclair considered and which set forth the requirements which a given plan must contain in order to qualify for special tax treatment under the terms of the Code are as follows: (4) under the terms of the plan, options are to be granted to all employees of any corporation whose em- ployees are granted any of such options by reason of their employment by such corporation, except that there may be excluded- (A) employees who have been employed less than 2 years, (B) employees whose customary employment is 20 hours or less per week, (C) employees whose customary employment is for not more than 5 months in any calendar year, and (D) officers, persons whose principal duties consist of supervising the work of other employees, or highly compensated employees; (5) under the terms of the plan, all employees grant- ed such options shall have the same rights and privi- leges, except that the amount of stock which may be purchased by any employee under such option may bear a uniform relationship to the total compensation, or the basic or regular rate of compenstion, or employ- ees, and the plan may provide that no employee may purchase more than a maximum amount of stock fixed under the plan; 26 USC §423(b). Conclusions I find that Respondent violated Section 8(aXl) and (5) of the Act, as alleged in the amended complaint. Initially, I conclude that Respondent violated its collec- tive-bargaining duty by failing to meet and bargain with the Union concerning the application of its stock purchase plan to the employees comprising the units represented by the Union at the Carlsbad and Las Cruces stores. Basic to this conclusion is the finding that the stock purchase plan, and its application to unit employees, constitutes a benefit and a term and condition of employment over which Re- spondent was legally obligated to bargain. The B. F. Good- rich Company, 195 NLRB 914 (1972); Richfield Oil Corpo- ration, 110 NLRB 356 (1954); cf. Westinghouse Electric Corporation, 122 NLRB 1466 (1959), enfd. sub nom Inter- national Union of Electrical, Radio and Machine Workers, AFL-CIO v. N.LR.B., 273 F.2d 243 (C.A. 3, 1959). Implic- it in this finding is the determination that the plan confers upon eligible employees a potential pecuniary advantage flowing from the opportunity accorded eligible employees through the plan to invoke their option to purchase stock of the Company on a partial extension of credit and at a discount from fair market value with the consequential opportunity for capital gain realization. That the Company recognizes the stock plan as an emolument of significant value is to be inferred from the fact that the plan is struc- tured with the objection and purpose of maximizing em- ployee productivity and minimizing employee turnover through the device of promoting the long-term interest of participating employees "in the affairs, growth, and devel- opment" of the Company. It is, of course, true, as Respon- dent contends, that the plan here under scrutiny appears, in contrast to the plan which was the subject of evaluation in Richfield Oil, to place emphasis on stock acquisition rather than stock accumulation and, contrary to the plan in Rich- field, provides for no monetary contribution on the part of the employer. However, given the character of the benefit accorded employees by the plan, these considerations form an insufficient basis, in my opinion, for excluding the in- stant plan from the realm of mandatory bargaining topics. See The B. F. Goodrich Company, supra. Cf. Richfield Oil Corporation, supra. Without conceding that the employee stock purchase plan is a mandatory subject of bargaining, Respondent contends, in any event, that the instant record does not disclose a refusal on its part to engage in collective bargain- ing with the Union. Rather, contends Respondent, the evi- dence discloses a willingness on its part to discuss the terms of the stock purchase plan with the Union, accompanied, however, by a caveat that the Company would be preclud- ed by applicable and controlling provisions of the Internal Revenue Code from negotiating a separate option price or different terms and conditions applicable only to unit em- ployees. In other words, contends Respondent, it was not obligated to bargain with the Union concerning issues af- fecting the companywide application of the plan. I view the 76 FOODWAY record evidence differently. To be certain, any effort to extend to unit employees the benefits of the stock purchase plan available to other Winn-Dixie employees was foresee- ably laden with practical difficulties. However, as the Gen- eral Counsel contends, and as my scrutiny of the provisions of the Internal Revenue Code cited to me by the parties discloses, there is no prohibition in the code against em- ployer negotiations with collective-bargaining agents con- cerning provisions of any covered plan but, rather an em- phasis upon equality of rights and privileges conferred through participation in the plan. But, in any event, finding as I do that the plan constitutes a mandatory bargaining subject, the matter is controlled by the decision of the Board in Tide Water Associated Oil Company, 85 NLRB 1096 (1949), wherein the Board stated (at 1097): . . . we have recently held, and our decisions have been affirmed by the Courts, that practical difficulties encountered by an employer in negotiating about a pension plan with the representative of a portion of his employees, all of whom are covered by a company- wide pension plan, do not eliminate his duty to bargain within an appropriate unit. [Footnote citations omit- ted.] There are, of course, factual distinctions between the instant case and Tide Water but, in my view, this does not serve to erode the applicability of the principle enunciated therein by the Board. While there is nothing in the Act which empowers the Board to fashion the terms of any collective-bargaining agreement or to alter plans, pro- grams, or contract terms generated by virtue of the bar- gaining process, the Board is entrusted with authority un- der the Act to foster true collective bargaining and to po- lice attempted circumvention of that process. An integral element of that authority is the power to issue a bargaining order in a circumstance wherein one of the parties to the bargaining process enters into collective bargaining with a predisposition and fixed mind not to bargain, in fact. Gulf Power Company, 156 NLRB 622, 626 (1966), and cases cited therein. See also May Aluminum, Inc., 160 NLRB 575, 610-611 (1966), cf. Westinghouse Electric Corporation, su- pra. Section 8(d) of the Act imposed upon Respondent the obligation not only to notify the Union of the decision to extend the stock plan to the unit employees, but to accord the Union reasonable notice and opportunity to meet at reasonable times and confer in good faith concerning not only each and every term of the plan but about the application of the plan to unit employees. As stated in May Aluminum, Inc., supra. The employer must recognize the rights of the union in fact as well as in theory such as its right to bargain on all terms and conditions of employment, its right to information, to explanations, to be consulted, to ask pertinent questions and to have them answered, to have all of its proposals considered on their merits. It may well be that practical considerations arising from the mandate of the Internal Revenue Code would, upon close bargaining table scrutiny, militate against substantial change in the terms and coverage of the plan as proffered by the Company. It may be also that the Union, upon careful reflection fostered by the bargaining process, would have acquiesced in all features of the plan as proffered by the Company. On the other hand a full and fair bargaining table dialogue may have led to mutually agreed-upon mod- ifications in the terms and coverage, or its application to unit employees, which would have been entirely consistent with the requirements of the revenue code and in no man- ner erosive of the objectives and purposes of the company- wide program. A third possibility existed, that of deadlock or impasse. Nothing comprehended by the statute would compel agreement by either party, given a good-faith effort to achieve accord. H. K Porter Co., Inc. v. N.LR.B., 397 U.S. 99 (1970). But the salient principle applicable to the instant inquiry is that the Union was entitled to an oppor- tunity to negotiate concerning the matter and not to be confronted in fact or in substance with afait accompli. See Leeds & Northrop Company, 126 NLRB 987 (1967). The General Counsel correctly contends that the Act is the legislative scheme which, in final analysis, prescribes Re- spondent's bargaining obligation. While the mandate and requirements of other Federal statutes may serve to limit the area of discretion which a party may exercise in fulfill- ing his bargaining obligation, that party's obligation to en- ter into the bargaining process in good faith is not thereby minimized or obviated. See Melville Confections, Inc., 142 NLRB 1334 (1963); Overnite Transportation Company, Inc., 157 NLRB 1185, fn. 2 (1966). I find that Respondent was not excused by reason of provisions of the Internal Reve- nue Code from entering into negotiations with the Union concerning the plan. By its failure and refusal to honor the Union's bargaining request, Respondent breached its obli- gation to bargain in good faith over a mandatory bargain- ing subject and thereby violated Section 8(aX5) and (1) of the Act. This breach was not cured by the belated submis- sion of fragments of material and of memoranda some 5 or 6 months subsequent to the Union's initial bargaining de- mand. This conclusion is based in part upon the implicit finding that Respondent must bear responsibility for creating a circumstance which limited the time available to the parties for negotiations concerning the plan and its application to the employees at Carlsbad and Las Cruces. There is, of course, no warrant for an assumption that the acquisition of the last named stores were achieved in a vacuum without any awareness on the part of the board of directors and/or the executive committee endowed with the responsibility for approving the November 30 proffer of stock options. As the record clearly establishes, the operative decision with respect to the stock offer was, in fact, made after the acqui- sition had become effective and, of course, there had been a postacquisition prelude period of planning, preparation, and consummation. Moreover, there is ample evidence to suggest that, in deciding to extend the options to the em- ployees of the newly acquired stores, careful scrutiny was given by management and the executive committee to cer- tain of the legal prerequisites assertedly imposed by the Internal Revenue Code applicable to the stock offer, as that offer applied to the Carlsbad and Las Cruces employ- ees. I find merit in the contention of the Charging Party that, in contrast to the deference given the Revenue Code 77 DECISIONS OF NATIONAL LABOR RELATIONS BOARD requirements, too little attention was given to the concomi- tant collective-bargaining obligation accruing by virtue of the proffer. In short, I find that Respondent failed to ac- cord proper status and priority to the bargaining mandate imposed by the statute. See "M" System, Inc., 129 NLRB 527, 547 (1960); N.L.R.B. v. Insurance Agents' International Union, AFL-CIO [Prudential Insurance Co.], 361 U.S. 477, 505-506 (1960). In this connection, I find that neither the limitations imposed by the 3-week time parameters of the operative decision and the November 30 option date nor the involve- ment at a distant location of legal counsel excused Respon- dent's failure to properly attend to its bargaining obliga- tion. The first consideration was clearly foreseeable to Re- spondent's managing agents and, even assuming the theo- retical importance otherwise of the November 30 option date, the choice of postponing the stock offer or - tying Respondent's second exculpatory explanation to the first - acting with immediate dispatch in consulting with the Union resided with Respondent. It took neither course and must bear the legal consequence of its choice. That its house counsel and attorney, Carlton Trosclair, was in- volved in other negotiations with other labor organizations clearly does not serve to remove or diminish the legal im- perative of timely attention on the part of Respondent to the instant bargaining obligation imposed by statute. This is particularly so in a situation, as here, where there is no showing that responsible officials, facing administrative deadlines possibly imparted by legal considerations, under- took reasonable effort, routine or extraordinary, to achieve expedited legal advice from the individual charged with the responsibility for dispensing such advice, or from any duly authorized subordinate of that individual. Nor does the record establish that the Union waived its bargaining rights or that it failed to make a proper bargain- ing demand. A waiver of bargaining rights must be clear and unequivocal and will not be inferred in the absence of unmistakable evidence. See, e.g., Wayne's Olive Knoll Farms, Inc., d/b/a Wayne's Dairy, 223 NLRB 260, 265 (1976). No evidence of this type is present here. It is, of course, axiomatic that the duty to engage in collective bar- gaining must be preceded by a proper bargaining demand. The Union's telegraphic response of November 17 clearly constituted such a demand. Respondent's contention that Trosclair's earlier letter of November 15 solicited only the filing of written objections from the Union, and not negoti- ations, does not serve to modify thg nature of the response filed by the Union. In specific terms, the Union sought to bargain concerning the plan and nowhere did it lodge ob- jections to the plan per se or to its eventual implementation at the Carlsbad and Las Cruces stores. It is immaterial whether or not Respondent considered bargaining to be proper. Given the brevity of the timeframe established by Respondent for union analysis of the plan, and considering the specificity of the bargaining demand lodged by the Union in its November 17 communication, it is reasonable to assume, as I do, that in treating the Union's response as a declination, absolute in terms, Respondent was giving the most strict and, as I view the matter, unwarranted con- struction to the content of the Union's response, and was motivated in this by objectives other than legitimate busi- ness ends. In this regard, unpersuasive is Respondent's contention that the Union sought by virtue of its response to engage in negotiations concerning the companywide elements of the plan, thereby rendering futile the entire bargaining process. Assuming without deciding that an ingredient of the Union's demand was a desire to negotiate with respect to companywide features of the plan, there is nothing in the Union's response of November 17 which declared that this was the exclusive objective. Again, given the short notice extended by Respondent and the proximity of the Novem- ber 30 option date to the dispatch of Respondent's initial communication, it was reasonable that Respondent would infer that the Union would desire to proceed in a responsi- ble manner in seeking to fulfill its obligation to unit em- ployees by becoming informed through the bargaining pro- cess of the applicable features and ramifications of the plan. It is to be remembered, in this regard, Respondent had not made available to the Union any of the particulars of the plan, and this was a new bargaining relationship without previous bargaining history to sustain it. In this context, and as an assessment of the presence or absence of a good-faith approach to the bargaining obliga- tion on the part of Respondent, it is imperative to take into account the out-of-hand manner in which Respondent by virtue of its November 18 communication to the Union rejected the Union's bargaining overtures. Cf. "M" System, Inc., supra, 129 NLRB at 547. Not only did this communi- cation constitute, in the circumstances from which it ema- nated, a formidable showing of an absence of good faith, it constituted as well an impermissible rejection of the bar- gaining process which violated Section 8(aX5) and (1) of the Act. It is on this basis that Respondent's reliance on Westinghouse Electric Corporation, 122 NLRB 1466 (1959), is misplaced. To this point in time Respondent had rejected the concept of collective bargaining while the Union was resolutely seeking to invoke the process. But the matter does not rest here. The record evidence discloses that, immediately upon dispatch of the November 18 communication from Respondent to the Union which, in substance, rejected the Union's bargaining demand and declared the futility of the bargaining process, store manag- ers were given clearance to post the letter on employee bulletin boards. The General Counsel is clearly correct in his contention that the posting of the letter in altered form containing the prominent notations "Notice" or "for non- union employees only" constituted a daily and dramatic reminder that employees were being penalized for their union support and adherence. McCormick Longmeadow Stone Co., Inc., 158 NLRB 1237 (1966). Even assuming the absence of initial clearance on the part of a managing offi- cial for the posting of copies of the letter in the respective stores, responsibility must still be assessed against Respon- dent for maintaining the letter in altered form. This is so because these copies remained posted in the respective stores for several weeks and there is no evidence of record to suggest that any agent of Respondent took steps to ne- gate or disavow the clear implication of the posting. The totality of these considerations compels the conclusion, which I reach, that Respondent unlawfully withdrew its 78 FOODWAY offer of a benefit to unit employees and failed and refused in violation of Section 8(a)(5) to engage in good-faith bar- gaining with the Union concerning the stock purchase plan and its application to unit employees. In close analytical relationship, and independently viola- tive of Section 8(a)(1) of the Act, are the separate com- ments of Stuckey and Ulibarri to the effect that the inter- position of the Union was responsible for the inability of union adherents to participate in the stock purchase plan. Kentron of Hawaii Ltd., el al., 214 NLRB 834 (1974). These comments formed an integral element of Respondent's en- tire course of conduct with respect to the application of the plan to the employees at Carlsbad and Las Cruces and are not rendered permissible by reason of the fact that the supervisory comments were in response to questions ad- dressed by employees which arose as a natural and foresee- able consequence of the conduct of Respondent in permit- ting the November 18 communication to be posted in al- tered form and to remain in that condition in prominent places on the bulletin boards of the store. IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent as set forth in section III, above, occurring in connection with the operations of Re- spondent as set forth 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 obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) of the Act, I shall recommend that it be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent has refused to bargain collectively with the Union regarding the participation of unit employees in the plan, as well as the application of the plan to them, both in violation of Section 8(a)5) and (I) of the Act, I shall recommend that, upon request, it be or- dered to bargain in good faith with the Union in these respects from the date of the action of the board of direc- tors, and its executive committee, taken during the first week of November 1976, granting stock options under the revised stock purchase plan. Cf. The B. F. Goodrich Conpa- ny, 195 NLRB 914, 915 (1972). If an understanding is reached by virtue of these collective-bargaining negotia- tions it is recommended that Respondent be ordered to embody such an understanding in a signed agreement. Upon the basis of the foregoing findings of fact and the entire record in this proceeding, I make the following: 12 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. CONCLUSIONS OF LAW 1. Winn-Dixie Texas, Inc., d/b/a Foodway, is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Retail Clerks International Association, Local 642, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. The collective-bargaining units described in section III, above, constitute appropriate units for the purpose of collective-bargaining within the meaning of Section 9(b) of the Act. 4. At all material times herein the Union has been and remains the exclusive collective-bargaining representative of the employees in the aforesaid appropriate bargaining units for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By posting in altered form in its Carlsbad and Las Cruces stores copies of a communication from Respondent to the Union dated November 18, 1976, thereby withdraw- ing its offer to permit participation by unit employees in the amended companywide stock purchase plan and plac- ing the onus on the Union for the asserted exclusion of unit employees from participation in the plan; by failing there- after to make said plan available for participation by unit employees; and by failing and refusing since on or about November 18 to meet and bargain collectively with the Union concerning the application of said plan to unit em- ployees and the participation of unit employees in said plan, Respondent engaged in conduct in violation of Sec- tion 8(aX5) and (1) of the Act. 6. By representing to unit employees through state- ments of supervisory personnel that the Union was respon- sible for the exclusion of unit employees from participation in the stock options being offered by it, Respondent en- gaged in conduct in violation of Section 8(aX1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. Upon the foregoing findings of fact and conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 12 The Respondent, Winn-Dixie Texas, Inc., Fort Worth, Texas, d/b/a Foodway, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Misrepresenting to employees represented by the Union and employed in the collective-bargaining units de- scribed below that the Union is responsible for exclusion of unit employees from participation in Respondent's stock purchase plan, including the stock options made available to qualifying employees companywide in November 1976. (b) Withdrawing proffered offers of participation on the part of unit employees in the companywide stock purchase plan by posting communications from Respondent to the Union in altered form and maintaining said communica- 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 79 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions on store bulletin boards attributing to the Union re- sponsibility for the exclusion of unit employees from par- ticipation in the stock purchase plan and placing the onus on the Union for the continued exclusion of unit employees in such participation. (c) Failing and refusing to bargain collectively with Re- tail Clerks International Association, Local 462, AFL- CIO, as the exclusive representative of its employees in the appropriate units described below, with regard to the appli- cation of the stock purchase plan to employees employed in said unit and their participation in said plan, from the effective date of the action of its board of directors and its executive committee taken during the first week of Novem- ber 1976 in granting stock options under the revised stock purchase plan. The appropriate bargaining units are: All regular full-time and all regular part-time em- ployees and courtesy clerks employed in the Carlsbad, New Mexico, operation of Respondent who are en- gaged in handling or selling merchandise or performing other services incidental thereto, excluding store overall manager, guards, all employees working exclusively in the meat department, and supervisors as defined in the Act. All employees employed in the Las Cruces, New Mexico, operation of Respondent, excluding all manag- ers, guards, office clerical employees, watchmen, em- ployees working in the meat department, and supervi- sors as defined in the Act. (d) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist any labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in other concert- ed activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: (a) Upon request, bargain collectively with Retail Clerks International Association, Local 462, AFL-CIO, with re- spect to application of the amended stock purchase plan to employees employed in the above-described collective-bar- gaining units, as well as their participation, if any, in said plan, from the date of the action of the board of directors taken during the first week of November 1976, extending the offer of stock options under the amended stock pur- chase plan and, if an understanding is reached, embody such understanding in a said agreement. (b) Post at its Carlsbad, New Mexico, and Las Cruces, New Mexico, stores copies of the attached notice marked "Appendix." 13 Copies of said notice, on forms provided by the Regional Director for Region 28, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately thereafter, in conspicu- ous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 28, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 13 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT misrepresent to unit employees that the Union is responsible for exclusion of unit employ- ees from participation in our companywide stock pur- chase plan. WE WILL NOT by engaging in any of the following conduct fail or refuse to bargain collectively with Retail Clerks International Association, Local 462, AFL-CIO, as the exclusive bargaining representative of our em- ployees in an appropriate bargaining unit: Posting in altered form in our Carlsbad and/or Las Cruces stores copies of a communication from us to the Union dated November 18, 1976, in which we, in effect, withdraw our earlier offer to unit employees to participate in our amended stock purchase plan and unfairly and improperly blame the Union for making it impossible for unit employees to participate in the plan. Failing and refusing since or or about Novem- ber 18 to meet and negotiate with the Union con- cerning the application of our stock purchase plan to unit employees and their participation in the plan. The appropriate bargaining units are: All regular full-time and all regular part-time employees and courtesy clerks employed in the Carlsbad, New Mexico, operation of Respondent who are engaged in handling or selling merchan- dise or performing other services incidental there- to, excluding store overall manager, guards, all employees working exclusively in the meat de- partment, and supervisors as defined in the Act. All employees employed in the Las Cruces, New Mexico, operation of Respondent, excluding all managers, guards, office clerical employees, watchmen, employees working in the meat de- partment, and supervisors as defined in the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to re- frain from any and all such activities. 80 FOODWAY WE WILL, upon request, bargain collectively with Re- tail Clerks International Association, Local 462, AFL- CIO, with respect to application of the amended stock purchase plan to employees employed in the above-de- scribed collective-bargaining units from the date of the action of the executive committee taken during the first week of November 1976, extending the offer of stock 81 options under the amended stock purchase plan, and if an understanding is reached, embody such understand- ing in a signed agreement. WrNN-DIXIE TEXAS, INC., D/B/A FOODWAY