Lou Stecher'S Super Markets

LOU STECHER'S SUPER MARKETS Lou Stecher's Super Markets and United Food and Commercial Workers Union, Local No. 88, AFL-CIO. Case 14-CA-15779 21 May 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 18 January 1983 Administrative Law Judge, Steven M. Charno issued the attached decision. The Respondent filed exceptions and a supporting brief. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings, and conclusions only to the extent consistent with this Decision and Order. The Respondent operates two independent retail grocery stores, where the Union has represented meatcutter employees for approximately 30 years.l The. parties' most recent contract expired on 30 January 1982,2 and like previous contracts it con tained a provision requiring that beef and other types of meat be "cut, weighed, sliced,' and wrapped on the premises." This provision effec- tively prohibited the Respondent from using "boxed beef," which is broken down, cut, boxed, trimmed, and packaged before it reaches the gro- cery store. The judge found that meatcutters per-' form less work on boxed beef than on the sides of beef traditionally permitted by the parties' con- tracts. The Union also represents in different units the employees in chain supermarkets and in other inde- pendent retail grocery stores. In July 1981 the Union and the chain stores negotiated a contract permitting the use of boxed beef while simulta- neously guaranteeing the jobs of meatcutter em-, ployees. The Respondent and the other independ- ents' were not parties to this agreement. The judge found that the Respondent's president Stecher and Union Representative Geigle met on 4, 5, 'and 8 February to negotiate a new contract.3 On 4 February Stecher stated that he was willing to meet every"day at l 'o'clock until an agreement 'was reached. Geigle provided Stecher with a copy of the Union's most recent - contract with the chain' i The most recent contract describes the unit as follows [A]ll meat, fish , poultry, barbecue , cooked meat and delicatessen de- partment employees, including head meat cutters, journeymen, ap- prentices and wrappers employed in Self-Service and Service mar- kets 2 Unless otherwise specified, all dates herein refer to 1982 a The judge found that Stecher and Geigle were in general agreement concerning the substance of the meetings , but he noted that Stecher re- called three meetings while Geigle recalled only two The judge credited Stecher's testimony that the parties met on three occasions 475 stores, and they agreed to meet at 1 o'clock on the following day. Stecher reviewed the chain store agreement, and on 5 February he orally presented Geigle with proposals based on that agreement. Stecher stated his opposition to a wage increase, and he proposed that two "floating holidays". be deleted and that the maximum vacation be reduced to 3 weeks. Stecher also wanted 'to eliminate bene- fits for employees injured off the job, and he pro- posed that sick pay begin on the second day of ab- sence. In addition, he wanted the total cost of an arbitration to be paid by the loser. The judge found that the parties reached agreement on some issues but not others.4 - Stecher also demanded that the management- rights clause be modified to permit the use of boxed beef. Geigle stated that the Respondent would have to guarantee the jobs of meat depart- ment employees before the Union would agree to such a change. Stecher would not agree to a job guarantee, and he stated that he would not sign any contract which did not contain his proposed modifications. Geigle indicated that he would take Stecher's proposals "under advisement," but that he could not agree to any concessions at that time. The parties met again on 8 February but were unable to -reach any further agreement. Geigle re- viewed his notes from the previous meeting, and he told Stecher that "we're real far apart" and that "[t]here's just no way that we can get together." Geigle indicated" that the Union wanted to meet with other independent stores to "put together an independent package," and he concluded by stat- ing, "We'll'get back to you." Although Geigle ini- tially intended to resume negotiations on 11 or 12 February, there was actually no further contact be- tween the parties until 26 February. In late February the Union heard a rumor that the Respondent was planning to introduce boxed beef into its stores, and on 26 February Union Rep- resentative Blassie asked Stecher whether he in- tended to do so. Stecher responded that the Union had been putting him off, that he was losing busi- ness because he was being undersold by the chain stores, and that he needed the boxed beef to fight his competition. Blassie replied, ."Well, don't do it. We'll have something for you. We'll get something 4"The parties.reached agreement on the preamble and provisions gov- erning employment referral, strikes„seniority, transfers, leaves of absence, injury on the job, funeral leave, jury service, safety and sanitation, sepa- rability, store deliveries, and the date of expiration The parties were unable to agree on provisions governing bargaining rights, union security and visitation, management rights, grievances and arbitration , hours and working conditions, vacations, Sundays and holidays, health and welfare and pension benefits for meat, fish, and deli department employees, tech- nological change, wage rates and job descriptions, sick pay, store closing, and successors and assigns 275 NLRB No. 71 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD together. Just leave this thing set for awhile." Stecher stated adamantly that he needed the boxed beef and that he intended to use it to save his busi- ness. - -On 1 and 2 March the Respondent began using boxed beef in its stores and on 2 March the em- ployees voted • to strike if the beef was not re- moved. On 3 March the Union's president Leech again told Stecher that the Respondent could use boxed beef in exchange for job guarantees. The employees went on strike when Stecher continued to refuse. The judge found that the Respondent's decision to use boxed beef was a mandatory subject of bar- gaining, and that the parties had not reached im- passe at the time the Respondent unilaterally began using the beef. He therefore concluded that the Re- spondent violated Section 8(a)(5) and (1) and that the striking employees were unfair labor practice strikers. We need not determine whether the Re- spondent's decision was a mandatory subject of bargaining. Even if we assume, arguendo, that the Respondent was obligated to bargain over the issue of boxed beef, we find that the parties had reached impasse over that issue by the time the Respondent acted unilaterally. In Taft Broadcasting Co.,5 the Board set forth the circumstances to be'considered in analyzing wheth- er parties have reached a bargaining impasse: Whether a bargaining impasse exists is a matter of judgment. The bargaining history, the good faith of the parties in negotiations, the length of the negotiations, the importance of the issue or issues as to which there is dis- agreement, the contemporaneous understand- ing of the parties as to the state of negotiations are all relevant factors to be considered in de- ciding whether an impasse in bargaining exist- ed. Applying the Taft analysis to this -case, we -first note that the Respondent has recognized the Union since 1952 and that- the parties have negotiated nu- merous collective-bargaining agreements, the most, recent - of- which -was effective, from, 28- January- 1979 until 30 January 1982. The parties' long 'bar- gaining history therefore lends support .to a finding of impasses ; , . . We also note that,' although: Stecher assumed, a firm bargaining posture from-the outset, the Gener- al Counsel' does 'not'contend' that Stecher's conduct amounted to bad-faith bargaining. In addition, we think it fair to conclude that both parties recog- nized the importance of the issue of boxed beef. The Union was clearly concerned with the possible impact on the job security of unit employees and the Respondent emphasized that other stores in the area had already begun utilizing boxed beef. We particularly emphasize that an impasse find- ing is warranted by the parties' contemporaneous understanding of the state of the negotiations. On 5 February the parties established their positions when Stecher demanded the -right to' use boxed beef without guaranteeing the jobs of unit employ- ees while the Union asserted that it could not agree to permit boxed beef without such a guarantee. On 8 February Geigle reviewed Stecher's proposals, including his proposal on boxed beef, and stated, "It looks like we're real far apart. There's just no - way that we can get together." Geigle also stated that the Union would "get back" to the Respond- ent after talking with other independent stores and putting together an "independent package." There was no further contact between the parties until 26 February when Blassie told Stecher not to intro- duce boxed beef because the Union intended to "get something together" for the negotiations:' We find that Geigle's. statement that he and Stecher were "real far apart" with "no way" to 'get together,".when coupled with the parties' sub- sequent failure to meet, establishes that each ac- knowledged the futility of further bargaining over boxed beef.'' Geigle's statement constituted a blunt recognition' that their . efforts had been , fruitless. When viewed against this background and when contrasted with their initial commitment to meet every day, the parties' subsequent lapse in commu- nications demonstrates that they considered their positions to be firmly entrenched and that they did not believe that any additional concessions would be forthcoming. Even when Stecher and Blassie fi- nally met on 26 February, it was not for the pur- pose of bargaining but rather to permit Blassie to confirm a rumor that Stecher was preparing to in- troduce boxed beef. A temporary lapse in commu- nications is not necessarily indicative of an impasse, but it assumes significance in this case , in light of the above circumstances. - In this context, a finding of impasse is not pre- cluded by Geigle's stated intention to "get back" to Stecher after assembling an "independent -pack- 5 '163 NLRB-475,1478 (1967),` petition for review denied 395 F 2d .622, (D C Cir 1968) i• . 6 Seattle-First National Bank, 267 NLRB 897, 898 (1983) Compare with Old Man's Home of Philadelphia, 265 NLRB 1632, 1634 (1982), in which the Board found that bargaining history did not'support•an im- passe finding where the parties were negotiating their initial contract ' - ' These circumstances distinguish this case from Into-Roto, Inc, 252 NLRB 764, 769 (1980) In that case the Board found that an impasse find- ing was not warranted by the parties' contemporaneous understanding of the negotiations in view of the parties ' continued willingness •to meet and the union negotiator's statement that "we were close and we weren't, really that far apart " - • " LOU STECHER'S SUPER MARKETS age." The-judge found that after their final meeting Geigle intended to resume negotiations on•11 or 12 February, but as we have noted the Union in fact did -not contact the Respondent until 26 February, when it simply sought, to confirm the rumor about boxed beef. In these circumstances, Geigle's prom- ise to "get back" to the Respondent does not estab- lish that at the time of the unilateral change either party believed that further bargaining would be productive. Rather, Geigle's decision not to follow' his original intention to resume negotiations on 1I.- or 12 February is further evidence that he had re- signed himself to the futility of bargaining.8 - ." A finding of impasse is also consistent with Blas sie's assertion to Stecher, on 26 February that the Union would "get something together" for the ne-' gotiations. In".that same conversation Stecher con- firmed that he intended to begin using boxed beet, and Blassie told him not to do it and to-wait, awhile. It was in this context that Blassie also as-' serted that the Union would "get something to- gether." We think it clear that. Blassie's statement. was simply part of an attempt to- dissuade Stecher, from using boxed beef and that Blassie was not, stating a belief that progress could -be made through further negotiations. We are also not persuaded that an impasse find. ing is precluded by the fact that the parties met. on ; only three occasions. The Board has stated that it does not apply a rigid formula in determining- whether the length of the negotiations is indicative, of an impasse.9 In light of the evidence that the parties had clearly recognized the futility of further- bargaining, we conclude that an impasse finding is, consistent with the abbreviated nature :of the- nego- tiations. . ' In view of the foregoing, we find that the parties' were at impasse over the issue of boxed beef when the Respondent unilaterally introduced the beef, into its stores. Therefore, assuming arguendo" that the Respondent was obligated'to bargain 'over the introduction of boxed beef into its stores, -we find that the Respondent met- that obligation. - Conse- quently, we conclude 'that the Respondent- did not ; violate Section 8(a)(5) and (1), and we shall dismiss the complaint. - ORDER "_• The complaint is -dismissed. ` 8 Geigle also testified that he ' originally wanted to wait until 11 or 12 February to resume negotiations because Stecher had become -"upset" and Geigle wanted to give him a week to "cool off" We do not consider' this -evidence to be inconsistent with, our finding that the parties recog-• nized the futility of further bargaining If anything , the testimony demon- strates that Stecher had become extremely angry and that consequently' his position had become more firmly entrenched - ., , I - i 9 Bell Transit Co, 271 NLRB 1272, 1273 fn •. 10 (1984) i,,, : - 47T- MEMBER .DENNIS, dissenting. -Contrary to the- majority, I would adopt the ad- ministrative law judge's decision in this case. I agree with,the judge's finding that the parties had not bargained to impasse when the Respondent uni- laterally introduced boxed beef into its stores.' - As, the judge reasoned,' the Union and the Re- spondent had met on only three occasions for short s periods to negotiate- a new 'contract before the Re- spondent implemented its decision to use boxed beef, which-the parties' previous contracts- prohibit- ed. The three meetings occurred on 3 days in less than a week, and only one of the- -meetings lasted more than a half hour: At the first meeting, the Union merely., presented its proposed contract, which was the master agreement it had recently, negotiated with a, group of chain 'supermarkets. At the second, meeting,- which lasted an hour and -a half, the Respondent stated its position orally as to each provision of the Union's proposed. contract. During the- second meeting, the parties reached agreement on 12 noneconomic matters, but did not agree on any economic terms or- on many major clauses such as management rights, the grievance procedure, and union security. The Respondent proposed to delete a number of existing benefits, to give no wage increases, and to modify-the--old management-rights clause to allow the use of boxed beef as' provided in the Union's new- chain store agreement . The Union-.stated the Respondent would have. to guarantee the - jobs of unit-employ- ees in order to use -boxed beef, pursuant to - the chain store',contract:2 The. Respondent stated that it-did not,want to guarantee- jobs and that it would not sign a contract without its proposed modifica- tions. The Union ended the session, by, stating it would fake-the Respondent's proposals ."under ad- visement," but'it could not agree to concessions "at this time.'-' - .. ' The -last_ meeting was very brief. The -Union re- viewed its notes, stated they were "real far,apart" - Boxed beef differs from the beef the Respondent- previously sold in that itieguires less work on the Respondent's premises to prepare it for sale The judge found that the use of boxed beef "is an attempt to take' work formerly done by. bargaining unit employees and have, that work done by persons outside the ,unit" (JD slip op at 8) • - ' I agree with the Judge that the Respondent's •dei:ision to use boxed beef was a-mandatory subject of bargaining Applying the two-step test set forth in my concurring. opinion, in Otis Elevator Co`, 269 NLRB 891, 898 (1984),'Ifind first that the Respondent's decision-was "amenable to reso lutton ,through the .bargaining process Indeed , the judge found that"'[al` desire to reduce ilabor .coit is the sole , demonstrated economic motivation behind Respondent's decision to use 'boxed beef" (JD slip op at 9). Second, I find that the benefit achieved by subjecting the Respondent's decision to the bargaining process outweighs any burdens placed on man- - agement that are apparent from the record - . The Union had just negotiated a change in the chain store master contract, effective 6 months before the Respondent 's contract expired, al- lowing the chain stores,to use boxed beef in return for job guarantees for, the meatcutter employees - - , _ 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and there was "no way" they could get together, but said the Union would "get back" to the. Re- spondent after the meeting with . other independent stores to "put together an independent -package."3 The Union did not schedule any meetings with the Respondent for several weeks because the Re- spondent's president had seemed "upset" at the third meeting and the Union wanted to give him some time to "cool off.' before- meeting again. About 2 weeks after the third meeting, the Union heard a rumor from employees that the Re- spondent planned to start using boxed beef the fol- lowing week. When the Union confronted the Re- spondent, the Respondent's president said he needed to use boxed beef to fight his competition. The Union asked the Respondent not 'to do it, but to wait and the Union , would "get something 'to- gether" for negotiations. The next : week, however, the Respondent began-using boxed beef. I agree with the judge's conclusion ' that no im- passe occurred because the negotiations were not "exhaustive" and the parties' differences were not "irreconcilable." In reaching this conclusion, I rely on -the following factors. =First, the very short length of the negotiations strongly supports a find- ing that no impasse occurred . Thus, the parties met on only 3 days, for a total of merely 2 to 3 hours, during I week, and the entire course of the negoti- ations before the Respondent - made a unilateral change was just over 4 weeks. Further, the parties discussed their substantive proposals at only one of the meetings, where they reached agreement on a number of issues and the Union showed • an intent to make later movement by stating that it could not agree' to concessions "at this.time." Second, although the issue as to the use of boxed beef was certainly important to the parties, it was only one of a number of important issues on which they disagreed during their brief negotiations, in- cluding all of the economic issues. There was cer- tainly room for further bargaining and concessions on these other issues, and therefore a "package" could have been "put together," as the Union pro- posed. Third, the parties' contemporaneous understand- ing as to the state of the 'negotiations shows • that both expected to meet again for further bargaining. Although the Respondent established a firm posi- tion on its proposals at the second bargaining ses- sion, the Union did not reject. the Respondent's proposed modifications,_.but rather agreed to take 3 The Union and the independents had traditionally engaged in such pattern bargaining , where the Union and certain independents negotiated an agreement similar to the chain ' store master contract and the Respond- ent would then sign the independent contract with some minor modifica- tions them "under advisement." Further, the Respondent met again with the .Union a few days later, and at this meeting the Union stated it wanted to "put to- gether an independent package," thus indicating it wanted to formulate a counterproposal.4 Even after the Union learned of the Respondent's pro- posed unilateral change, -it. still offered to "get something together" for negotiations. Contrary to the majority, I do not view the Union's failure to respond to the Respondent's oral contract proposals for 3 weeks as an admission that no further movement was possible in the negotia- tions. The Respondent did not indicate that an im- mediate reply was necessary or that it was under any tremendous financial pressure due to competi- tion with chain stores selling boxed beef so that it needed to act quickly. Rather, it appears that the chain stores had been using boxed beef for 6 months before the parties' contract expired without the Respondent's requesting any relief from the Union. Moreover, the parties' bargaining history shows that the Union's conduct, in suspending bar- gaining while it negotiated a pattern agreement for independents, was consistent with the parties' past practice. Finally, the Respondent showed bad faith in planning to make a unilateral change without di- rectly notifying the Union of its plans or giving the Union an opportunity to bargain further before it implemented its initial proposal to use boxed beef. Even when the Union confronted the Respondent after hearing a rumor about the Respondent's inten- tion to use boxed beef, the Respondent never of- fered to meet with the Union to discuss its plans. I would find that no impasse had occurred when the Respondent unilaterally introduced boxed beef into its stores, and I would adopt the judge's deci- sion. Accordingly, I dissent. * In light of all the other statements showing that the parties anticipat- ed further bargaining, I would not find that an impasse was established merely by the Union's statement that the parties were "real far apart" and that there was "no way" they could get together Most significantly, after making these statements, the Union said it would "get back" to the Respondent after meeting with other independent stores to "put together an independent package " DECISION STATEMENT OF THE CASE STEVEN M. CHARNO, Administrative Law Judge. In response to a charge filed March 4, 1982,• a complaint was issued on June '22, 1982, which alleged that Lou Stecher's Super Markets (Respondent) had violated Sec- tion 8(a)(1) and (5) of the National Labor Relations Act by unilaterally modifying the terms and conditions of employment without giving the United Food and Com- mercial Workers Union, Local No. 88, AFL-CIO. (the LOU STECHER'S SUPER MARKETS Union) notice thereof or an opportunity to bargain. Re-. spondent's answer denies the commission' of any unfair; labor practice. . . ' A hearing was held before me at' St. Louis, Missouri, on July 9, 1982. Briefs were filed by the General Counsel, and Respondent under extended due date of August 30, 1982. FINDINGS OF FACT 1. JURISDICTION, Respondent is a Missouri corporation which operates two retail grocery stores in St. Louis, Missouri. One of the stores, which houses Respondent's offices, is located on Brentwood Boulevard; the other is situated-, on Watson Road. During the year ending December 31,. 1981, a representative period,- Respondent derived gross revenues in excess of'$500,000 in the-course and conduct of its business operations. During that period, in the course of its operations, Respondent purchased and re= ceived products, goods,' and materials valued in excess of $10,000 from points outside Missouri: It is admitted,' and - I find, that Respondent is an-employer engaged in com- merce within-the meaning of the Act. - - The Union is admitted to be, and I find is, a labor or- ganization within the meaning of the Act. - II. THE ALLEGED UNFAIR LABOR PRACTICE A. Background' - At all times material, Respondent has employed three meatcutters at its Brentwood Boulevard store and two meatcutters and' one owner-supervisor -at its Watson' Road store. For the past 30 years, the'Unicin has been` the collective-bargaining representative for the meatcut= ters- employed by Respondent. The ' most ' recent' contract' between, Respondent and the Union, which expired 'on' January 31, 1982, identified the. appropriate bargaining unit as: , . [A]ll meat, fish, poultry, barbecue, cooked meat arid delicatessen department 'employees,-, including' head- meat cutters, journeymen, apprentices and wrappers employed in Self-Service and Service markets. Traditionally, the Union has entered a single. master' agreement with the chain supermarkets operating in the St. Louis metropolitan, area and has then entered. separate agreements, tailored to a smaller volume of= business,. with independent supermarket operators, such as Re- spondent. The collective-bargaining agreements in effect between Respondent and the Union between.^1957 and January 30, 1982, contained a'provision which explicitly requires that certain types. of meat;: including.-beef,'_"must:_be!'cut, weighed; sliced, and: wrapped on the premises : -.i i The record establishes that, during the hLes of the vanous'collecuve- bargaining agreements in effect between Respondent and the Union; Re-' spondent used various sausages and pork which had been.prepared off its . premises There is no allegation or evidence that such use constituted a violation of any collective-bargaining agreement, and it is impossible' io determine from the record whether such use falls within `one of. the ex= 479 This -provision allows a' retail grocer to use sides of beef, which.consist of.steers which have been broken in half with the skirl, head, and entrails removed,' but not to use "boxed beef,"-which consists of a side of beef which has been broken down, center cut, boned, trimmed, and packaged away from the grocer's premises. More work must be done by, the meatcutters employed by a retail grocer in order-to prepare a side of beef-for• sale than to prepare "boxed beef." During the summer of 1981, the Union negotiated a new contract with the chain supermarkets. While this agreement permitted the chains to use "boxed beef," it contained a new clause which provided that existing meatcutters would be guaranteed their jobs. B. Negotiations In December 1981, the Union sent a letter to Respond- ent indicating that it-wished to negotiate a new agree- ment. Respondent's reply - expressed the same desire. During the last week in January 1982,2 the Union con- tacted Respondent, and the parties 'arranged a 'meeting for the first week in February: ' During the ensuing negotiations, Respondent was rep- re'sented"by its owner, Louis Stecher,` and -the. Union's iie- gotiator was 'its financial secretary, Robert eigle. The entire, course of negotiations took place' -during three meetings which, occurred in the first part of February. 3- "The-first meeting took place at the Union's office on, Thursday, February : 4. At : ,that 'meeting, Stecher told, Geigle that, Stecher, wished to 'meet;, with the Union every,,.day at 1 o'clock until an,`:agreement had been reached. Geigle, gave Stecher a copy, of the agreement which the Union' had negotiated with the , chain super- markets and ; suggested:, he read it in'preparation for their negotiations' the following:day: "! ' ' " Stecher and Geigle met' again' at 1`'".m. on Friday,' February 5. Stecher and Geigle reviewed `the chain store agreement with Stecher•= setting--forth' his= position 'as to each provision. Geigle,took. notes, !made, some comments, and asked questions: The. two .were able to -agree on a number of,noneconomic issues4 but, were unable to-reach, agreement .concerning the provisions which Respondent wished, to modify.s..With respect to the management- plicit exceptions to the provision which requires, that meat be prepared, on the employer's premises - • - 2 All dates hereinafter are 1982,, unless otherwise specified- '• 3 Stecher testified that the parties met on three occasions, but _Geigle only recalled the first two meetings . Inasmuch as both witnesses' itnesses are in general agreement as to ,'hat'tianspired during the meetinggs, the question of, what;took place atwhich meeting,istof little significance Geigle, how; ever, was less than .certain and could not recall particular details concern- ing-"the negotiations, while Stecher•s'testimony "was uniformly consistent and'sttaigfitforward 'This and my"observation of the witnesses while tes- tifying cause inc. to credit. Stecher over (Geigle •on; the question--of chro-, nology Tentative ag'reement was reached on the'"followmg' provisions pre-' amble, employment tieferral,' iio strike-ho lockout,` •senionty,-'transfers,, leaves of absence, injury on the job, funeral leave, jury service, health, welfare and pension contribution delinquencies, safety -and sanitation, separability: `store dehvehes, and expiration 5 Stecher and Geigle did not agree on the content of the following provisions bargaining rights, union security and visitation , management rights;' grievance` and arbitration: hours and wbrkmg'coriditions, vacs-' Continued 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rights provision, Stecher told Geigle that he wanted to modify the contract in order to allow Respondent's use of "boxed beef " -Geigle replied that if Respondent wanted "boxed beef," it would have to guarantee the jobs -of the affected union members. When the meeting ended, Geigle said he would take Stecher's oral contract proposal under advisement but that he could not make any concessions at that time. Stecher said he would not sign any contract that did not contain the modifications he had proposed.' No further agreements were reached when the parties met on Monday, February 8. After Geigle had reviewed the notes he had made concerning' Stecher's contract proposal, he made the following statement: - It looks like we're real far apart. There's just no way that we can get, together. We still want to-talk to the other independent's [sic] and put together an independent package. We'll get back to you - No date was set for another meeting, and no further meetings were held during February. It was Stecher's understanding that the Union would contact him to. set up another meeting. Geigle actually scheduled additional meetings in his calendar for February 11 and 12, but these never took, place. C. Respondent's Use of `Boxed Beef'", During last week of February, Respondent's-super- visor at the Brentwood -Boulevard store told one of the meatcutters that Respondent was going to begin using "boxed beef" the following week The meatcutter told the shop steward, Robert Deutsch, who relayed the in- formation to an unnamed individual •at the union 'office. On Friday, February 26, the Union's business agent at the Watson Road store, Joseph Blassie, met with Stecher at one of Respondent's stores 6 Blassie said that he had been informed that Stecher intended to use "boxed beef." Stecher replied that the-Union had been putting him-off, that his business was going- down, and that he had to have something in order to fight his competition Blassie responded: Well, don't do it. We'll have something for you. We'll get something together. Just leave this thing set for awhile. Stecher was admant that he could not wait and that he intended to use "boxed beef." Later'that day, Blassie in- formed Geigle that Respondent was going to use "boxed beef' in its stores in violation of the collective-bargaining agreement. Geigle made no response to Blassie and took no action because he was leaving town for the weekend. tions, Sundays and holidays, health and welfare and pension-meat depart- ment employees, health and welfare and pension-fish department and deli department employees, technological change, wage rates and job descrip- tions, sick pay, store closing, and successors and assigns 6 Stecher could not recall exactly when Blassie visited him but testified that he'thought it was on the Monday preceding the strike'(March 1) Geigle's testimony that he was contacted by Blassie on Friday, February 26, was internally consistent and supported by corroborative detail Ac- cordingly, I credit Geigle over Stecher on this point On March 1, "boxed beef' was brought into the Brent- wood Boulevard store, and Deutsch called Edward Leech, the Union's president, to advise him of its arrival The following day, the Watson Road store received "boxed beef," and one of the meatcutters, Donald Smith, informed Leech by telephone.7 D. The Strike On March 2, a union meeting chaired by Leech was attended by the business' agents for both of Respondent's stores and the five meatcutters employed at. those stores. The meeting began with a discussion of the use of "boxed beef" at Respondent's stores. Leech told the at- tendees that the use of "boxed beef' violated the Union's expired contract with Respondent and that "boxed beef' was presently the subject of. negotiations between the Union and Respondent. Leech then'reviewed the remain- der of the oral contract proposals which Stecher had previously made to Geigle. After discussion, the Union members unanimously voted to reject Respondent's pro- posals.8 In a subsequent secret ballot, the Union's mem- bership unanimously voted in favor of a strike. Immedi- ately after the strike vote was taken, Leech told the meatcutters that they were to report for work as usual on March 3 and that, if he were successful the next day in convincing Stecher to remove the "boxed beef," there would be no strike'and contract negotiations would con- tinue.9 On March 3, the meatcutters who were scheduled to work the morning shift at Respondent's stores reported for work as usual . Around 6:45 a.m., Leech met Mel Traub, the business agent for Respondent's Brentwood Boulevard store. Together, they went to Stecher's office, and Leech asked Stecher to remove the "boxed beef." Stecher replied that he had to have the beef. Leech re- sponded that independent supermarkets, including Re- spondent, could have the beef, but they would have to accept job guarantees along with it. Stecher said he had to have "boxed beef' because his competition, a nearby chain store, had it and was underselling him on a par- ticular cut of meat. Leech pointed out that Respondent's competitor had a contract with the Union allowing the use of "boxed beef' and containing a job-security clause. ' Leech testified that he recalled receiving both telephone calls on March 1 Because Leech generally evidenced poor recollection and Smith's testimony on this point was cogent and consistent , I credit Smith a Leech and Deutsch both testified that rejection of Respondent's pro- posals was by formal vote, while Smith was uncertain whether rejection of the proposals had been informal or formal Based on my observation of the demeanor of the witnesses while testifying , I credit Deutsch and Leech on this question 9 Of the three witnesses who testified about the union meeting, only Smith actually gave evidence that the employees understood prior to the stoke vote that any stoke was contingent upon Respondent's continued refusal to remove ."boxed beef' from its stores This evidence was-not controverted by the other witnesses and is clearly supported by the ac- counts of all three witnesses concerning the remarks made following the stoke vote For the foregoing reasons and based on my observation of Smith while testifying , I credit him on this point In this context, I reject Deutsch's seeming admission that no vote was taken "on the fact that the boxed beef was brought in" as the product of an ambiguous question posed at the end of a confusing line of examination I credit, rather, Deutsch's prior and subsequent testimony to the contrary, which is straightforward, cogent, and fully corroborated by Leech and Smith - LOU STECHER;S SUPER MARKETS Leech said that a similar contract provision was available to all of the independent supermarkets . Stecher then stated that he had to have the "boxed beef," or he would be put out of business by his competition. Leech replied that he did not want to see Respondent go out of busi- ness, but he did want Stecher to remove the "boxed beef" and to continue negotiations.- Stecher again re- fused. Removal of the "boxed,beef' was the only subject discussed at this meeting. Leech left Stecher - and notified the employees who were scheduled to work that they were going on strike. The employees left the store and, approximately. 15 min- utes after the meeting between Leech and Stecher, a picket line was set up. The pickets' signs read , "Stecher's on Strike" and carried the Union's name or emblem. The strike was continuing at the time this case was heard. III. ANALYSIS The General Counsel contends that Respondent violat- ed Section 8(a)(5) by unilaterally implementing the use of "boxed beef" in its stores when such use was a subject of negotiation between Respondent and the Union. It is well established that, absent an impasse in negotiations, an employer's unilateral change in the conditions of em- ployment under negotiation is a violation of Section 8(a)(5). NLRB v. Katz, 369 U.S. 736, 743 (1962). Thus, this case presents two basic issues: ( 1) was an impasse reached in the negotiations between Respondent and the Union, and (2) was the use of "boxed beef' a term or condition of employment within the meaning of the Act. Impasse has been defined as "irreconcilable differences in the parties' positions , reached after exhaustive good- faith negotiations .. .." Carpenter Sprinkler Corp., 238 NLRB 974, 982 (1978), enfd. 605 F.2d 60 (2d Cir. 1979).: In determining whether an impasse has occurred, the Board has relied on the following factors: the bargaining . history, the good faith of the parties, the length of the negotiations, the importance of the issues as to which the parties disagree, and the parties' contemporaneous under- standing as to the state of negotiations . Inta-Roto, 252 NLRB 764, 768 (1980); Taft Broadcasting Co., 163 NLRB 475, 478 (1967), enfd. 395 F.2d 622 (D.C. Cir. 1968). Here, the parties expressed a mutual desire to negotiate a new contract and met for short periods on three occa- sions between February 4 and 8. At the second meeting on February 5, Respondent made a contract proposal. When the last meeting ended , the parties had reached no agreement on any of the economic issues, and both bar- gaining representatives clearly understood that they would meet again to continue negotiations: During the negotiations, Respondent did not apprise the Union that immediate action was required on the provision of its proposal concerning- "boxed beef." The Union did not reply to Respondent's proposal during the 3-week period between the last negotiating meeting and Respondent's introduction of "boxed beef', into its stores. Contrary to Respondent's argument on'brief, I do not find that the-Union delayed the negotiations in bad faith in order to secure a single agreement applicable to all of the independent grocers with which it bargained. First, it is clear that a union's desire to secure a master contract is not behavior intrinsically violative of the Act. See 481 Teamsters Local Union 301, 210 NLRB 783, 787 (1974). More significantly, the Union's failure to reply- to Re- spondent's contract proposal for a 3-week period, espe- cially in the absence of any, indication by Respondent, that an immediate reply was required, did not constitute an abdication of the Union's duty to bargain .in good faith. See Flowers Baking Co., 161 NLRB 1429, 1437 (1966). I therefore conclude that the Union has not been, shown to have engaged in surface bargaining or to have bargained in bad faith in any other way This, together with the fact that less than 1 week elapsed between the first point in time at which the Union could have learned of Respondent's intended use of "boxed- beef". and the time Respondent implemented that change, requires the further conclusion that the record provides no support for Respondent's position that "there existed a reasonable opportunity for 'the Union to have bargained on the question before unilateral action was taken by the Em- ployer." See NLRB v. Cone Mills Corp., 373 F.2d 595, 599 (4th Cir. 1967).10 In sum, the negotiations which took place fell far short of "exhaustive" and the record cannot support a finding that the parties' differences were "irreconcilable." At no time did either party refuse to engage in further negotia- tions, and there is no basis in' the record to conclude that the parties had reached a stage where further meetings would have been fruitless. I therefore find that an im- passe was not reached by Respondent and the Union prior to Respondent's implementation of the use of "boxed beef." Respondent argues that its use of "boxed beef' should be viewed as a legitimate entrepreneurial change of oper- ation rather than as a modification of a term or condition of employment which is a mandatory subject of bargain- ing. In support of its argument, Respondent contends that the use of "boxed beef' is an operational change de signed to make production more efficient, purportedly comparable to the introduction' of labor saving machin- ery. See Fibreboard -Corp. v. -NLRB, 379 U.S. 203; 223 (1964) (concurring opinion);. Winn-Dixie Stores, 224 NLRB 1418, 1433 (1976) This contention is unsupported by the record. The use of "boxed beef' is not a method of increasing efficiency or productivity of existing work- ers through the introduction of labor saving machinery or in any other fashion. It is an attempt to take work for- merly done by bargaining unit employees-and have that work done by persons outside'the unit. Respondent also contends its use of "boxed beef' has "an indirect and attenuated impact on the employment relationship" and that such use will produce no real change in its employees' working conditions. See First National Maintenance Corp. V. NLRB, 452 U.S. 666, 676- 677 (1981), Rochester Telephone Corp., 190 NLRB 161, 164 (1971) Again, Respondent's contention is without 10 Based on the findings and conclusions in the accompanying text, I find that the Union did not negotiate in bad faith prior to March 3 and conclude that evidence concerning the course of negotiations after that date, which was admitted over the General Counsel's objection , is irrele- vant to the issues before me Indeed , it is impossible to determine the extent to which any negotiations after March 3 may have been influenced by Respondent's unilateral action See NLRB v Katz, 369 U S -at 744 482 DECISIONS OF; NATIONAL LABOR RELATIONS BOARD record support. There' can be no question that the use of "boxed beef " will provide less work for the employees in the bargaining unit. "Boxed beef' differs from the beef previously sold by Respondent in that it requires less work on Respondent's premises to prepare it for sale. Therefore, I infer that Stecher's professed desire to use "boxed beef' to meet his competition rested on his real- ization that such use would result in reduced labor costs. Support for this inference is found in the fact that the collective-bargaining agreements between the Union and grocers in the St. Louis area had, for a number of years, prohibited the use of preprocessed meat and, in 1981, conditioned the use of "boxed beef' by chain stores on the existence of job guarantees. For the foregoing rea- sons, _ I find that the use of "boxed beef" by Respondent had a substantial impact upon the work available for bar- gaining unit members. In First National Maintenance Corp. v. NLRB,, 452 U.S. at 679 (1981), the Supreme Court adopted a balancing test to determine whether an entrepreneurial change af- fecting the availability of continued employment was a mandatory subject of bargaining : whether the benefits of bargaining to the labor-management relationship and the collective-bargaining process outweigh the burden of bargaining on the employer's conduct of its'operations.1 i Here, the benefits to the labor,-management relationship and the bargaining process are clear. A desire to reduce labor cost is the sole, demonstrated economic motivation behind Respondent's decision to use "boxed beef." Labor cost is an issue particularly well suited for resolution within the collective-bargaining process. Fibreboard Corp. V. NLRB, 379 U.S. at 214. There is no indication in the record here that a further exploration of alternatives by Respondent and the Union would not result in a 'mu- tually acceptable resolution. of the issue. Furthermore, a refusal to resume bargaining on this issue would condone Respondent's abrogation of ongoing negotiations and would frustrate the legislative mandate underlying the bargaining process.. In contrast, the resumption of bar- gaining would appear to have virtually no impact on Re- spondent's conduct of its business. Bargaining will not alter Respondent's basic operation in any way. See Fibre- board Corp. V. NLRB, 379 U.S. at 213. Indeed, the extent to which the use of "boxed beef' would relieve any eco- nomic hardship which might be faced by Respondent is unascertainable on the record before me. For the forego- ing reasons, I conclude that the use of "boxed beef" is a mandatory subject of bargaining between Respondent and the -Union. Based, on the foregoing conclusions, I find that Respondent's unilateral use of "boxed beef" was an unfair labor practice -violative of Section 8(a)(5) of the Act. - i i While the standard established in First National Maintenance Corp is clearly applicable here, the facts on which the holding in that case rests differ markedly The economic factor underlying the entrepreneurial de- cision in that- case was one totally beyond the union's control Thus, it was apparent that any resort to the collective-bargaining process could hardly benefit either labor-management relations or the process itself In addition, the Supreme Court 'specifically noted that 'the operational change there involved did not constitute an abrogation of ongoing nego- tiations ' The General Counsel contends that the strike which followed Respondent's unilateral change in the terms and conditions of employment of its employees was an unfair labor practice strike, while Respondent argues that it was an economic strike' flowing from the' Union's admitted rejection of Respondent's contract proposal. Initially, I find it extremely improbable that the Union' would derive any advantage from an economic strike prior to the point in time when it formulated- its master agree- ment for independent grocers. More important,- the record clearly'shows that the sole reason for the strike which commenced on March 3 was Respondent's use of "boxed beef." Respondent's employees agreed on March 2 to continue working if "boxed beef" was removed from Respondent's stores the following day. On March 3, the sole subject of the discussion between Respondent and the Union prior to the strike was the removal of- - "boxed beef." Accordingly, I find that the strike which began on March 3 was caused by' Respondent's-.commis- sion of an unfair labor practice and was, therefore; an unfair labor practice strike. See Crystal Springs Shirt Corp., 245 NLRB 882, 885 (1979), enfd. 637 F.2d 399 (5th Cir. 1981). - CONCLUSIONS OF LAW 1. , The Respondent is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section;2(5) of the Act. 3. All meat, fish, poultry, barbecue, cooked meat and delicatessen employees, including head meatcutters, jour- neymen, apprentices, and wrappers employed in Self- Service and' Service markets, excluding guards and - su- pervisors as defined in the Act constitute a unit appropri- ate for the purpose of collective' bargaining within the meaning of Section 9(b) of the Act. 4. At all times material herein, the Union has been and is the collective-bargaining representative of employees in the unit defined in the preceding paragraph. . 5. By unilaterally modifying the terms and conditions of employement under negotiation, Respondent failed and refused to bargain in good faith with the Union and has engaged, in and is engaging in an unfair labor prac- tice in violation of Section 8(a)(5) of the Act. 6. By the foregoing conduct, Respondent has inter- fered with,. restrained, and coerced and is interfering with, restraining, and coercing its employees in the exer- cise of the rights guaranteed by Section 7 of the Act in violation of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 8.. The strike which commenced on March 3, 1982, was an unfair labor practice strike from its inception. REMEDY Since I have found that Respondent engaged in an unfair labor practice, it is necessary that Respondent be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the purposes of the Act. Such affirmative action shall include bargaining LOU STECHER'S SUPER MARKETS 483 collectively with the Union over the use of "boxed beef' change of a term or condition of employment prior to and bargaining collectively with the Union over any the implementation of such a change. [Recommended Order omitted from publication.]