Dixon Distributing Co., Inc.

DIXON DISTRIBUTING CO. 241 Dixon Distributing Company, Inc. and Local Union No. 406, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri- ca, Ind. Cases 7-CA-10176 and 7-CA-10622 June 10, 1974 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On November 30, 1973, Administrative Law Judge Melvin J. Welles issued the attached Decision in this proceeding. Thereafter, the Charging Party filed exceptions and the Respondent filed exceptions and a supporting brief. The Respondent also filed an answering brief to the Charging Party's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs' and has decided to affirm the rulings, findings,2 and conclusions of the Administrative Law Judge and to adopt his recommended Order. In the absence of exceptions thereto, we adopt pro forma the Administrative Law Judge's 8(a)(3) and (1) findings with respect to Robert Green. Member Jenkins, as set forth in his separate opinion attached hereto, and Member Penello adopt the Administrative Law Judge's conclusion that Respondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the Union on and after July 23, 1973, the date on which the Union was certified. Member Kennedy would not find any 8(aX5) violation in accordance with his dissent in the representation case on which the Charging Party's certification is predicated.3 Members Kennedy and Penello adopt the Admin- istrative Law Judge's finding that Respondent did not violate Section 8(aX5) and (1) of the Act by putting in effect on February 15, 1973, certain changes in the employees' delivery routes. Member Kennedy finds no violation again in accordance with his dissent in the representation case on which the Charging Party's certification is predicated. Member Penello finds no violation since he is in agreement with the conclusion of the Administrative Law Judge I The Respondent moved that the Board reconsider its decision in the underlying representation case, Dixon Distributing Co.,IInc, 204 NLRB '1155', in which the Charging Party herein was certified as the collective- bargaining representative of Respondent 's driver-salesmen and helpers. In the alternative, Respondent moved that the representation case be reopened for the purpose of holding a hearing to adduce further testimony. For the reasons previously stated in the poor decision, Respondent's motion is hereby denied. Member Kennedy, for the reasons set forth in his dissenting that Respondent satisfied its duty to bargain on the issue at the February 15 meeting with the two union business agents. Member Penello finds that Laney & Duke Storage Warehouse Co., Inc., 151 NLRB 248, enfd. 369 F.2d 859 (C.A. 5, 1966), and King Radio Corporation, Inc., 166 NLRB 649, relied upon by Member Jenkins, are distinguishable, since the unilateral changes after the election and before certification in those cases occurred without notice to or consultation with the Union. It is immaterial that the discussion herein occurred at the request of the Union rather than having been initiated by the Respondent. Member Jenkins disagrees and would find the 8(a)(5) violation for the reasons set forth in his separate opinion herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent, Dixon Distributing Company, Inc., Traverse City, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. MEMBER JENKINS, concurring in part and dissenting in part: I join in my colleagues' pro forma adoption of the Administrative Law Judge's finding that Respondent violated Section 8(a)(3) and (1) of the Act by changing the method of payment of employee Robert Green, and his dismissal of an independent 8(a)(1) allegation. I also join with Member Penello in adopting the Administrative Law Judge's finding that Respondent violated Section 8(a)(5) and (1) by refusing to bargain with the Union on and after July 27, 1973, the date on which the Union was certified. However, I am unable to join with my colleagues in adopting the finding of the Administrative Law Judge that Respondent did not violate Section 8(a)(5) of the Act by putting in effect on February 19, 1973, certain changes in the employees' delivery routes. As the Administrative Law Judge stated, the changes occurred about 10 days after the Union's 5 to 2 victory in the election, but before the Union was certified on July 27, 1973. opinion in the prior decision, would grant Respondent 's motion. 2 The Administrative Law Judge incorrectly referred to the Board's certification of representative in the underlying representation case as having issued on "July 27, 1973" instead of "July 23, 1973" in the following places: subsection A, the first paragraph of subsection D, and Conclusion of Law 2. 3 204 NLRB No. 159. 211 NLRB No. 2 242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD My colleagues do not dispute that the route changes herein involve changing terms and condi- tions of employment which are mandatory subjects of bargaining. It is also clear that Respondent had a duty to bargain with the Union with respect to such changes during the period between the time of the election and the issuance of a certification by the Board.4 The Administrative Law Judge concluded that Respondent satisfied what duty to bargain it had at a meeting held February 15, 1973, with two union business agents. I disagree. The record reveals that Respondent did not give the Union notice of the route changes, but rather it appears that Union Business Agent Wilder requested a meeting with Respondent President Dixon after Wilder was told by employee Taylor that Respon- dent planned to institute the change. On February 15, 1973, Wilder and another union business agent, Anderson, called on Dixon and brought up the matter of the route changes. Wilder stated that Dixon should negotiate with the Union about these changes. Dixon replied that he was going to make the changes, and explained his reasons for doing so. Wilder repeated that Dixon should negoti- ate with the Union about the changes. Anderson testified that the meeting ended after Anderson said that they were going to file unfair labor practice charges if Dixon instituted the changes. Although Dixon denied that he was told at the meeting that the Union was going to file charges, it is uncontroverted that Wilder telephoned Dixon the next day and again requested negotiations on the route changes. Wilder told Dixon that if he wouldn't negotiate on the route changes or set a meeting to negotiate on the route changes, then Wilder would file unfair labor practice charges. Dixon replied that he was going to make the changes. From the above, I conclude that Respondent did not bargain in good faith with the Union on February 15, 1973, concerning the route changes. It is undenied that the Union brought the issue up and requested negotiations. Dixon's statement that he was going to make the changes, and his repeated rejection of the Union's request to negotiate the matter, is not bargaining within the meaning of Section 8(d) of the Act merely because Dixon explained his reasons for the action. Thus, Respon- dent did not present the Union with a proposal, but rather the Union was faced with a fait accompli. Accordingly, I would reverse the finding of the Administrative Law Judge and find an additional violation of Section 8(a)(5) for Respondent's unilat- eral changes in the employees' delivery routes. 4 Laney & Duke Storage Warehouse Co., Inc., 151 NLRB 248 , enfd. 369 F.2d 859 (C.A. 5, 1966); King Radio Corporation Inc., 166 NLRB 649. DECISION STATEMENT OF THE CASE MELVIN J. WELLES, Administrative Law Judge: This case was heard at Traverse City, Michigan, on October 9, 1973, based on charges filed on February 28 and September 20, 1973, and a consolidated complaint issued September 26, 1973, alleging that Respondent violated Section 8(a)(1)(3) and (5) of the Act. Respondent denied that it engaged in any unfair labor practices, except that it admits that it has refused to bargain with the Union in order to obtain judicial review of the Board's Decision and Certification of Representatives . The General Counsel and Respondent have filed briefs, which have been carefully considered. Upon the entire record in the case , including my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER AND THE LABOR ORGANIZATION INVOLVED Respondent, a Michigan corporation, is engaged in the sale and distribution of beer and other beverages at its place of business in Traverse City, Michigan. During the year ending December 31, 1972, it had a gross revenue of more than $500,000, and received goods and materials valued in excess of $50,000 from points outside the State of Michigan. I find that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A. Introduction-The Issues On February 9, 1973, the Union "won" a Board- conducted election among the employees (driver-salesmen and helpers) by a vote of 5 to 2. Respondent thereafter filed objections to the election, which were ultimately, on July 27, 1973, overruled by the Board, and the Union was thereupon certified. The unfair labor practices alleged in this case include (1) a threat to the employees, prior to the election, of a loss of benefits if the Union won the election, (2) a discriminatory reduction in the pay of employee Green, immediately after the election, (3) a unilateral change in the drivers' routes, effected shortly after the election, and (4) a refusal to bargain, following the Board's certification. B. The Alleged 8(a)(1) The General Counsel alleges that Respondent, in violation of Section 8(a)(1), threatened employees with loss of benefits if the Union won the election. To support this allegation, the General Counsel adduced testimony from two witnesses, Allen Taylor and Robert Green, with respect to statements made by Robert Dixon, Respon- dent's president, at a sales meeting of the employees prior to the February 9, 1973, election. According to Taylor, Dixon responded to an employee inquiry about the existing DIXON DISTRIBUTING CO. profit-sharing plan by stating that "he would try to encourage the Union to .bring in the retirement plan and try to get out [sic,] the profit sharing plan and if the Union came in, that he felt that he would do anything in his power to make sure of this and if the Union went in he would try his damdest not to let anybody get anymore of the profit sharing than possible." Taylor added that Dixon said "normally anybody that was in the union would take the retirement and it wouldn't be feasible to have two retirements," and that "he would be inclined to accept it [the union retirement plan]." Green testified that "the way I understood it he [Dixon] said if the union came in that he had his option which he was referring to Teamster 's union retirement or the profit sharing as far as he was concerned, we would not have the profit sharing. He would try to get rid of the profit sharing." Green added that Dixon "didn't say to the fact that he was going to. He said he was going to try, so no, it is not a threat to me, no." Dixon testified that when asked about the profit-sharing plan, he said that he""knew of several wholesalers who had contracts. I had seen several contracts and that I had never seen a contract with a bonus, cash bonus provision and a profit sharing provision as reports to the contract . . . and that it was my opinion that the union preferred their own health and welfare and retirement package." There is no substantial difference between the two versions. Accepting fully the testimony of Taylor and Green, I nevertheless do not find Dixon's remarks, in the circumstances, to constitute a threat of loss of benefit. At most, Dixon was telling the employees , in response to a question from one of them about the profit-sharing plan, that the particular benefit might be lost , but not as a result of employer action, rather as a possible result of bargain- ing. The Board quite recently dismissed an 8(a)(1) allegation in a closely analogous factual situation in Appleton Discount, Inc., 205 NLRB No. 58, despite the fact that there, unlike here, the company was found guilty of violating Section 8(a)(1) in several other respects. In the instant case, there is no context of other independent 8(a)(1) violations, and no animus has been shown. Accordingly, I find no violation of the Act in this respect. C. The Alleged Unlawful Change in Green's Status Some time in September 1972, employee Robert Green gave Dixon notice that he was leaving. He had been a driver-salesman. Just prior to his last day of employment, he told Dixon he had decided not to leave, and asked for his job back. Green was told by Dixon he would have to go back to work as a helper, because the route Green had driven had been promised to someone else. Green told Dixon that he would not be getting a full 40 hours in, and Dixon told him, according to Green, that when he had to work Saturdays, Dixon would "pay him the difference to make forty hours for you," even if he only worked "thirty- three, thirty five hours." 1 Green did in fact receive a full 40 hours' pay, although working less than that number of hours, during most, if not all, weeks in January 1973. Starting right after the election, however, he was paid only i Dixon testified that he did not "guarantee" Green a 40-hour week He added that he "possibly did tell him that I would try to take care of him and 243 for actual time worked. This change in his status is alleged as having been "in retaliation for the election results," and therefore violative of Section 8(a)(3) and (1) of the Act. Because there is no evidence to show that Dixon knew or suspected that Green had been active in union activities, or even that he had voted for the Union in the election (Green testified that he never indicated how he voted in the election; Dixon testified that Green may have told him at one time that he voted against the Union), and also because there is no evidence that Dixon was "retaliating" against any particular individual because of the Union's victory, I do not find that the "reduction" was motivated by anything to do with Green personally. Dixon testified, however, that his "understanding" with Green changed following the union victory in the election, because "When I contemplated contract employment, I didn't think having the precedent of paying a man for not working was a good thing so I reverted back to paying people for exactly what they did." Dixon went on to say "they voted for it and I assumed that we might be negotiating contract and I didn't want to have some precedent of paying some guy for staying home .... And I had only done it for a short time and I thought I would bail out of this one right now." This testimony, alleges the General Counsel, establishes a violation of the Act, for it demonstrates that but for the union victory in the election, Dixon would have continued, at least for a while, to pay Green for time not worked, in accordance with their "understanding." Respondent ar- gues, however, that "the inference, if any, to be drawn from this comment should be tempered by the record as a whole," that is, by the absence of any showing of antiunion activities or attitude by the Company, and by the fact that "it is doubtful that a pay practice in existence for one month, with respect to Saturdays only, constitutes an established and regular condition of employment." Although, as I already indicated, I am satisfied that Dixon's explanation was an honest one, and was not designed to conceal any antiunion, or retaliatory motiva- tion, the explanation itself does, as the General Counsel contends, establish the violation. But for the victory of the Union in the election, Dixon would, by his own admission, not even have considered changing Green's payment to an actual hours worked basis at that time. It is understandable that an employer, contemplating that he may be negotiat- ing a contract with a union for the first time, would not want to start negotiations encumbered by a practice of paying an employee for time not actually worked, that he would want, to use Dixon's words, to "bail out of this one right now." To understand the motivation, however, and even to characterize it, as I do in this case, as not motivated by "hostility" toward the Union, is not to say that the conduct is any the less violative of the Act. From the employees' standpoint, a benefit previously bestowed has been taken away as a direct result of the Union's 5 to 2 victory in the election. That this is "discrimination . . . to discourage membership" in the union is self-evident. That there may not have been a "guarantee" to Green of continued 40-hour pay for less than 40 hours worked does make it worth his while. and in fact in January I am sure that I paid him forty hours for weeks that he didn 't work anywhere near forty." 244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not alter this conclusion. For the question is not whether the "condition of employment" had become unalterably fixed, or whether Dixon was legally obligated by any contract of employment to continue paying Green for time not worked; it is, rather, why Dixon stopped paying Green for time not worked. As to that, as already stated, I perforce must accept Dixon's own reason. Respondent argues that perhaps by February 19, some 10 days after the change in Green's status, Green would no longer have received pay for hours not worked because no more Saturday work was done, and the extra payments were keyed to Green's performing some work on Saturday. I do not think the evidence is completely clear to the effect that never thereafter was Saturday work done. In any event, this goes to the amount of backpay due Green rather than to whether the change was as a matter of law a violation of Section 8(a)(3) and (1) of the Act. For the foregoing reasons, I conclude that it was. D. The Alleged Unilateral Change in Delivery Routes As noted above, the complaint alleges that certain changes in the employees' delivery routes, put into effect about February 19, 1973, were made unilaterally, and therefore that Respondent violated Section 8(a)(5) of the Act. The changes occurred about 10 days after the Union's 5 to 2 victory in the election, but long before the Union was certified, on July 27, 1973. Although the question as to when a bargaining obligation arises after an election is "won" but before the union is certified is peripherally present as an issue here, I need not resolve that question, for Respondent agrees, as stated in its brief, that "an employer is not free to take advantage of the hiatus between election and certification by unilaterally changing terms and conditions of employment which are mandatory subjects of bargaining." Respondent argues, however, that route changes of the type involved here do not constitute a mandatory subject of bargaining. Although I am inclined to disagree, this question too needs no resolution by me, for I agree with Respondent's final argument that it did in fact satisfy what duty to bargain it had at a meeting held February 15 with two union business agents. Bargaining has never meant reaching agreement. Even with full-fledged bargaining for a contract going on, or during a contract term, matters arise where the exigencies and economics of a situation seem to require rather prompt action. In such circumstances, "bargaining" may well be in good faith, and lawful, without being protracted, and without any agreement being reached. At the February 15 meeting, furthermore, there may well have been indications that the union agents were accepting Dixon's explanation, and agreeing to the changes, although when charges were filed the next day it was obvious that either there had been no agreement or that the Union had a change of heart. But the changes in routes had been a matter under considera- tion by the Company for a long time prior to the February 9 election, and the need for relatively early action had come to a head because of certain new beer accounts the 2 This finding, and the order entered hereinafter, obviates the need to pass upon the General Counsel's motion for summary judgment on this Company was to receive. The discussion of February 15 at the very least represented an airing of the matter, and an exchange of views. That it did not actually result in agreement is of no consequence, for an impasse in bargaining, as long as the bargaining has been in good faith, permits a company to effect whatever changes it had proposed to make. This is particularly true during a period when a resolution of the question concerning representa- tion is still pending because of unresolved objections. For, as stated by Dixon on the stand, management does need to run its business, and changes in operations toward that end often cannot await the ultimate full-fledged contract bargaining with a certified incumbent union. There is plainly no hard and fast rule applicable to all situations or all "changes." The nature of a particular change, whether it is reasonably necessary to put it into effect at the time, its effect upon employees, and a host of other considerations all bear o:i whether what bargaining obligation does exist has been satisfied by the bargaining that took place. In this case, the session between Dixon and the two union agents, albeit only about 20 minutes in length, sufficed, in my opinion, to satisfy that obligation. Union Business Agent Robert Anderson testified, with respect to the February 15 meeting, that "it was just a matter of two sides taking a position," and that the subject of route changes was discussed "in some detail." The other union business agent present at that meeting, Raymond Wilder, went into some detail with respect to what Dixon told them about the route changes, with respect to the new beer that was going to be available, the need for better distribution methods, and improved customer service. Anderson also testified that Dixon mentioned that "some of his routes were heavy on one side and some were light on another," confirming Dixon's testimony about the imbalance of the routes, and his employees having complained some time earlier about that and about having to work Saturdays. The meeting, in sum, did represent de facto bargaining about the single subject matter, a particular single aspect of the employees' "Working conditions," with which this allegation is concerned. I find, in all the circumstances, that Respondent did not violate Section 8(a)(5) and (1) of the Act in this respect. E. The Refusal To Bargain Respondent admits that it has refused to bargain in order to test, in the court of appeals, the validity of the Board's certification. I find, accordingly, that Respondent violated Section 8(a)(5) of the Act.2 CONCLUSIONS OF LAW 1. By unlawfully changing the method of payment of employee Robert Green, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 2. By refusing to bargain with the Union, on and after July 27, 1973, in the umt found appropriate by the Board in the representation proceeding, Respondent has engaged aspect of the complaint, on which I reserved ruling at the hearing DIXON DISTRIBUTING CO. in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 3. , The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom, and that it take certain affirmative action necessary to remedy the unfair labor practices and to effectuate the policies of the Act. Included in this affirmative action will be a recommendation that Respon- dent make whole Robert Green for losses he suffered as a result of the change in his method of payment in February 1973, with the payment of interest at the rate of 6 percent per annum. Isis Plumbing & Heating Co., 138 NLRB 716. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDERS Respondent, Dixon Distributing Company, Inc., Trav- erse City, Michigan, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Changing its employees methods of pay as a result of a union victory in a Board-conducted election. (b) Refusing to recognize Local Union No. 406, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind., as the exclusive collective-bargaining representative of its em- ployees in the following appropriate unit: All driver salesmen and driver salesmen helpers employed by the Employer at its Traverse City, Michigan, facility, but excluding transport drivers, warehouse employees, office clerical employees , guards and supervisors as defined in the Act and all other employees. (c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed by the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Make whole Robert Green, in the manner set forth in the section entitled "The Remedy," for any loss of earnings suffered by reason of the discriminatory change in his method of pay. (b) Upon request, recognize and bargain with the Union, as the exclusive collective-bargaining representative of the employees in the aforesaid appropriate unit, respecting rates of pay, wages, hours, or other terms and conditions of employment, and, if any understanding is reached, embody such understanding in a signed agreement. (c) Post at its place of business in Traverse City, Michigan, copies of the attached notice marked "Appen- dix."4 Copies of said notice, on forms provided by the Regional Director for Region 7 of the Board, after being duly signed by Respondent's authorized representative, shall be posted by it immediately upon receipt thereof, and 245 be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 7, in writing, within 20 days from the receipt of this Decision, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges unfair labor practices not specifically found herein. 3 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. 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. 4 In the event that the Board's 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 change employees' methods of pay as a result of the union winning an election. WE WILL pay Robert Green for losses he suffered as a result of our having discriminatorily changed his method of pay in February 1973. WE WILL bargain collectively with Local Union No. 406, International Brotherhood of Teamsters , Chauf- feurs, Warehousemen and Helpers of America, Ind., respecting rates of pay, wages, hours, or other terms and conditions of employment, as the representative of our employees in the following bargaining unit: All driver salesmen and driver salesmen helpers at out Traverse City, Michigan, facility, excluding transport drivers, warehouse employees , office clerical employees, guards, and supervisors as defined in the Act, and all other employees. WE WILL NOT in any like or related manner interfere with, restrain or coerce employees in the exercise of their rights guaranteed by the National Labor Relat- ions Act. DIXON DISTRIBUTING COMPANY, INC. (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 246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from the date of posting and must not be altered , defaced, its provisions may be directed to the Board's Office, 500 or covered by any other material. Book Buildings 1249 Washington, Detroit, Michigan Any questions concerning this notice or compliance with 48226, Telephone 313-226-3200.