Sel-Low Discount

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