Nash-Finch Co.

National Labor Relations Board - Board Decisions

Apr 8, 1953

103 N.L.R.B. 1695 (N.L.R.B. 1953)

NASH-FINCH COMPANY 1695
is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of
the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
5. Respondent has not engaged in any unfair labor practices, as alleged in
the complaint, in connection with the grant of a night-shift bonus, the installa-
tion of new water coolers, and the furnishing of coffee and doughnuts, free of
cost, to its employees.
6. Respondent has not discharged or failed and refused to reinstate Sogge or
Thorkildsen because of union or concerted activities as alleged in the complaint.
7. The conduct of employees Bell, Aggerson, and Duncan during the strike
bars their right to reinstatement and back pay.
[Recommendations omitted from publication in this volume.]
NASH -FINCH COMPANY and GENERAL DRIVERS, HELPERS, WAREHOUSE-
MEN, DAIRY EMPLOYEES AND INSIDE WORKERS UNION, LOCAL 116,
AFL. Case No. 18-CA-369. April 8, 1953
Decision and Order
On September 22, 1952, Trial Examiner David London issued his
Intermediate Report in the above-entitled proceeding, finding that
Respondent had engaged and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, Respondent filed excep-
tions to the Intermediate Report and a brief in support of its excep-
tions.,
The Board has reviewed the Trial Examiner's rulings made at the
hearing and finds that no prejudicial error was committed 2 The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the following modifications and
additions :
1. We agree with the Trial Examiner's finding that Respondent
unilaterally terminated certain existing benefits (group life insurance,
hospitalization coverage, and Christmas bonus) for the drivers and
warehousemen represented by the Union, and that by doing so Re-
spondent violated Section 8 (a) (5) and (1) of the Act.
1 Respondent's request for oral argument is denied because the record and brief ade-
quately set forth the positions of the parties.
2 At the hearing the Trial Examiner sustained an objection to a question directed to
Union Negotiator Stolz as to whether, in July 1951, he understood that the collective
contract then negotiated superseded certain individual employment contracts. For
reasons set forth below, we find no merit in Respondent's exception to this ruling.
103 NLRB No. 149.
1696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is Respondent's contention that a contract which it entered into
with the Union on July 23, 1951, and the events preceding the signing
of that contract, spelled out a waiver or acquiescence by the Union in
the elimination of the benefits. Like the Trial Examiner, we find
this contention to be without merit. Viewed in the light most favor-
able to Respondent, the facts establish no more than an agreement on
the part of the Union that Respondent be free of any contractual obli-
gation to maintain the benefits for the duration of the contract. Re-
spondent thus assumes that a union's willingness to forego contractual
obligation by the employer to maintain certain existing working con-
ditions must also be viewed as a grant of permission by the union to
the employer to alter those conditions without consulting it or bar-
gaining collectively about them. We see no justification for such an
assumption. A union might well be willing to concede the former
without being willing to concede the latter.3
Respondent also argues that the Union negotiators, when they signed
the contract, were aware of Respondent's intention to eliminate the
group life insurance, hospitalization coverage, and Christmas bonus
without further discussion. As proof, it points to threats, which the
Trial Examiner found were made to the drivers and warehousemen in
May 1951 by executives of Respondent, to the effect that these benefits
would be withdrawn if the employees voted for the Union in the im-
pending Board election. It argues that the Union negotiators' failure
to insist on writing the life insurance, hospitalization, and bonus
benefits into the July 23 contract in the fact of these preelection
threats demonstrated the Union's willingness to accept the elimination
of those benefits without further bargaining. However, the threats
were to alter existing conditions of work if the Union won an election,
irrespective of what demands the Union might thereafter make, and
thus were threats to commit an unfair labor practice. The Union's
negotiators were not required to assume that Respondent would also
carry out such threats unless restrained by contract. The cursory
mention made of insurance and bonus during the negotiations, more-
over, indicated that Respondent intended to continue those benefits,
not withdraw them 4
We therefore find, as did the Trial Examiner, that elimination of
life insurance, hospitalization, and Christmas bonus was not fully
"It is therefore irrelevant whether or not Union Negotiator Stolz understood that the
collective contract signed on July 23, 1951, superseded the individual employment con-
tracts of certain of the employee, in which the benefits in question were expressly assured.
See footnote 2, supra.
4 According to Union Negotiator Helvig's credited testimony, during the discussion of
the Union's request for increased wages "Mr. Ferguson brought out that the Company did a
lot of good things for their people and that a raise of that kind was going to be extremely
expensive and cost the Company a lot of money in addition to oh, things like insurance
and bonus and other conditions that they were already giving the people."
NASH-FINCH COMPANY 1697
discussed or consciously explored preliminary to the signing of the
July 23, 1951, contract and that the Union's signing of this contract
did not constitute a waiver of its statutory right that Respondent
bargain with it regarding any changes in these conditions of work.5
2. Like the Trial Examiner, we also find that Respondent' s elimina-
tion of the life insurance and hospitalization programs and Christmas
bonus violated Section 8 (a) (3) of the Act. As in all cases of alleged
violation of that Section, the problem here is one of appraising
Respondent's actual motives. As background for that appraisal we
consider the clear hostility to the Union shown by the above-mentioned
threats, made by Personnel Director Ferguson and Branch Manager
Wertin shortly before the Board-conducted election of May 14, 1951,
to the effect that, if the employees voted for the Union, their life
insurance, hospitalization, and Christmas bonus would be taken away .6
Respondent also revealed union animus by the way in which it
handled the negotiation of the July 23, 1951, contract with the Union.
At the bargaining session of June 10, 1951, Respondent's representa-
tives, who had first offered a guaranteed work week of 40 hours (in
contrast with the Union's demand of 49), compromised on a guarantee
of 46 hours. But when Respondent typed up the final contract draft,
it silently added the phrase "if work is available," which would have
nullified the guarantee entirely. It did the same sort of thing with
respect to the maintenance-of-existing-benefits paragraph. Instead
of openly deleting the paragraph, which was in the tentative contract
draft, and calling the Union's attention to the deletion, Respondent
quietly made an inconspicuous change in wording which reduced the
paragraph to nonsense and nullified its effect.' Such practice is
evidence of resistance on the part of Respondent to the principle of
good-faith collective bargaining.
The reason for Respondent's behavior is further indicated by the
fact that, when it withdrew the hospitalization protection, it notified
neither the Union nor the employees concerned. Lacking this notifi-
cation, several of the employees found themselves without necessary
coverage when emergencies arose. In acting this way Respondent
could scarcely have been motivated by legitimate economic considera-
iN. L R B v. Jacobs Manufacturing Co., 196 F. 2d 680 ( C. A. 2), enfg. 94 NLRB
1214 , California Portland Cement Co ., 101 NLRB 1436.
9 Although these threats were voiced more than 6 months before the charges herein
and may not, because of Section 10 (b) of the Act, be themselves held to constitute unfair
labor practices , they may properly be considered as background evidence shedding light on
Respondent 's motives . N. L R. B. v General Shoe Corp ., 192 F. 2d 504 (C. A. 6), enfg.
90 NLRB 1330, cert . denied 343 U S. 904.
As tentatively agreed upon by the negotiators , the contract bound Respondent to main-
tain working conditions at the "highest minimum standards in effect at the time of the
signing of this agreement." Respondent changed this to read "the highest minimum stand-
ards specified in this agreement" ( emphasis added).
1698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions. Rather, it must have been acting from a desire to penalize its
employees for supporting the Union.
We are unable to accept Respondent's assertion that it withdrew the
benefits in question because of the low profit ratio at its Fargo ware-
house. Branch Manager Wertin never discussed the cost of either
the life insurance or the hospitalization program with Personnel Di-
rector Ferguson, who helped him negotiate the contract, nor with
Finch, Respondent's president. In fact, Wertin even testified that lie
thought the life insurance premiums were paid entirely by the
employees." As for the relation of the Christmas bonus to Respond-
ent's profits, it was not shown that the earnings at Fargo in 1951 were
any lower than in previous years in which a Christmas bonus was paid.
On all the facts, we find that Respondent discriminatorily termi-
nated its group life insurance and hospitalization programs and with-
held its customary Christmas bonus with respect to its drivers and
warehousemen at Fargo for the purpose of punishing these employees
for selecting the Union as their representative and for the purpose
of discouraging membership in the Union, in violation of Section 8
(a) (3) and (1) of the Act.
Remedy
Having found that Respondent's termination of group life insur-
ance, hospitalization coverage, and Christmas bonus violated Section
8 (a) (5), (3), and (1) of the Act, we will order that Respondent make
its employees whole for any losses sustained by them because of this
termination until such time as Respondent either shall have restored
the benefits or shall have terminated them nondiscriminatorily after
bargaining in good faith with the Union.9
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent, Nash-Finch Com-
pany, Fargo, North Dakota, its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Unilaterally changing the rates of pay, wages, hours of em-
ployment, life insurance program, hospitalization program, custom-
8 Respondent actually shared the cost of the life insurance . Its share of this cost for
the employees in the bargaining unit would have amounted to about $200 for the year
1951 if the policies had not been canceled. Considering that Respondent 's sales volume
at Fargo alone was about $3,000,000 in 1951, we do not believe that Respondent terminated
the life insurance program merely to save itself $200 a year.
® Waldoroth Label Corp ., 91 NLRB 673 , 675 ; Spitzer Motor Sales Co., 102 NLRB 409,;
N. L. it, B . v. Roure-Dupont Mfg., 199 F. 2d 631 ( C. A. 2) enfg. as modified 93 NLRB
1240.
NASH-FINCH COMPANY 1699
ary Christmas bonus, or any other conditions of employment, of its
employees in the appropriate unit described below, without bargaining
collectively with General Drivers, Helpers, Warehousemen, Dairy
Employees and Inside Workers Union, Local 116, AFL. The stipu-
lated appropriate unit is:
All warehousemen and truckdrivers employed at Respondent's
Fargo, North Dakota, plant, excluding office and clerical employees,
watchmen and guards, professional employees, and supervisors as
defined in the Act.
(b) Discouraging membership in the above-named Union or in any
other labor organization by discriminating against its employees in
regard to their hire or tenure of employment or any term or condition
of their employment.
(c) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of the rights guaranteed in
Section 7 of the Act, except to the extent permitted by the proviso to
Section 8 (a) (3) thereof.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act.
(a) Make whole its employees for any losses any of them may have
suffered or may suffer because of the termination of the group life
insurance and hospitalization programs in effect before July 23, 1951,
until such time as Respondent shall either have reinstated the pro-
grams or shall have terminated them nondiscriminatorily after bar-
gaining in good faith with the above-mentioned Union.
(b) Make whole its employees for the withholding of their 1951
Christmas bonus by payment to each of a sum of money equal to
that which Respondent, in the absence of a discriminatory motive,
would have paid him, considering the various factors upon which
Respondent has in the past based its decisions regarding the size of
the Christmas bonus.
(c) Upon reasonable request, make available to the Board or its
agents, for examination and copying, all payroll records, social-
security payment records, timecards, personnel records, financial
statements, and all other records pertinent to an analysis of the
amounts due under the terms of this Order.
(d) Post at its Fargo, North Dakota, plant, copies of the notice
attached hereto and marked "Appendix A." 10 Copies of the notice, to
be furnished by the Regional Director for the Eighteenth Region,
shall, after being duly signed by Respondent's official representative,
be posted by it immediately upon receipt thereof, and maintained by
it for a period of sixty (60) consecutive days thereafter in conspicu-
'°In the event this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
1700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ous places, including all places where notices to its employees are
customarily posted. Reasonable steps shall be taken by Respondent
to insure that these notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director for the Eighteenth Region, in
writing, within ten (10) days from the date of this Order, what steps
it has taken to comply herewith.
CHAIRMAN HERZOG and MEMBER MURDOCK took no part in the con-
sideration of the above Decision and Order.
Appendix A
NOTICE TO ALL EMPLOYEES
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, we hereby notify our employees that:
WE WILL NOT unilaterally change the rates of pay, wages, hours
of employment, life insurance program, hospitalization program,
customary Christmas bonus, or any other conditions of employ-
ment, of our employees in the appropriate unit described below,
without bargaining collectively with GENERAL DRIVERS, HELPERS,
WAREHOUSEMEN, DAIRY EMPLOYEES AND INSIDE WORKERS UNION,
LOCAL 116, AFL. The appropriate unit is :
All warehousemen and truckdrivers employed at our Fargo,
North Dakota plant, excluding office and clerical employees,
watchmen and guards, professional employees, and super-
visors as defined in the Act.
WE WILL NOT discourage membership in the above-named Union
or in any other labor organization by discriminating against our
employees in regard to their hire or tenure of employment or any
term or condition of their employment.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of their right to
self-organization, to form labor organizations, to join or assist
the above-named Union or any other labor organization, to bar-
gain collectively through representatives of their own choosing,
and to engage in concerted activities for the purposes of collective
bargaining or other mutual aid or protection, and to refrain from
any or all of 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 as authorized by Sec-
tion 8 (a) (3) of the Act.
NASH-FINCH COMPANY 1701
WE WILL make our employees whole, in the manner ordered by
the National Labor Relations Board, for any losses any of them
have suffered or may suffer because of the discrimination against
them.
All our employees are free to become or remain members of GEN-
ERAL DRIVERS, HELPERS, WAREHOUSEMEN, DAIRY EMPLOYEES AND IN-
SIDE WORKERS UNION5 LOCAL 116, AFL, or any other labor organi-
zation.
NASH-FINCH COMPANY,
Employer.
Dated -------------------- By --------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Intermediate Report
STATEMENT OF THE CASE
Upon a charge , and an amended charge, filed by General Drivers, Helpers,
Warehousemen , Dairy Employees and Inside Workers Union , Local 116,
A. F. of L., herein called the Union , the General Counsel of the National Labor
Relations Board issued a complaint against Nash -Finch Company , herein called
Respondent , alleging that Respondent had engaged in and was engaging in un-
fair labor practices within the meaning of Section 8 ( a) (1), (3), and (5),
and Section 2 (6) and ( 7) of the National Labor Relations Act, as amended, 61
Stat. 136, herein called the Act. Copies of the complaint , the charge, the amended
charge, and notice of hearing were duly served on all parties.
With respect to the unfair labor practices , the complaint alleged, in substance,
that on specified dates between July 26 and December 25, 1951 , without consulting
or notifying the duly designated bargaining representative of a specified unit of
its employees, Respondent canceled, discontinued , and terminated hospitalization
insurance and group life insurance plans then in effect for the employees in
said unit, and failed and refused to pay to these employees the customary
Christmas bonus paid annually to all the employees of Respondent . Respondent's
answer admitted certain allegations of the complaint but denied that it was
guilty of the unfair labor practices alleged therein. The answer further pleaded
that a certain contract entered into by Respondent and the Union on or about
July 26, 1951 , "sets out in detail all of the rights of the employees of the unit
to compensation ; that by and in said contract , [ the Union ] waived any rights
of the employees to receive the benefits " aforementioned.
Pursuant to notice , a hearing was held at Fargo, North Dakota, on August 4,
1952, before the undersigned duly designated Trial Examiner . The General
Counsel and Respondent were represented by counsel. Full opportunity to be
heard , to examine and cross -examine all witnesses , and to introduce evidence
pertaining to the issues was accorded all parties . Since the close of the hearing,
briefs have been received from the General Counsel and Respondent which have
been duly considered.
257965-54-vol. 103-108
1702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, and from my observation of the witnesses
at the hearing, I make the following :
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Nash-Finch Company is a corporation organized under and existing by virtue
of the laws of the State of Delaware, having its principal office and place of
business at Minneapolis, Minnesota. Respondent operates in excess of 50 plants
located in several States of the United States, including the States of Minnesota,
Iowa, North Dakota, South Dakota, Montana, Oklahoma, and Washington, at
which it is engaged in the wholesale distribution of foods and other products.
At Fargo, North Dakota, it operates a plant engaged in the wholesale distribu-
tion of foods and other products. In the course and conduct of its business and
in the operation of the Fargo plant, with which we are here concerned, Respond-
ent causes, and has continuously caused, large quantities of foods and other
products to be purchased and transported in interstate commerce and from and
through States of the United States other than the State of North Dakota to the
Fargo plant, and causes, and has continuously caused large quantities of food
and other products to be sold and transported in interstate commerce from that
plant, to, through, and into States of the United States other than the State of
North Dakota. During the calendar year 1951, Respondent purchased products
valued in excess of $500,000 for distribution through the Fargo plant, of which
more than 90 percent represented purchases and shipments to the plant from
points outside the State of North Dakota. During the same period, Respondent
made sales from that plant valued in excess of $500,000, of which over 25 percent
represented sales and shipments to points outside the State of North Dakota.
Respondent admits, and I find, that it is engaged in commerce within the meaning
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
General Drivers, Helpers, Warehousemen, Dairy Employees and Inside Work-
ers Union, Local 116, AFL, is a labor organization admitting employees of Re-
spondent to membership.
HI. THE UNFAIR LABOR PRACTICES
A. Sequence of events
From about 1938-39 to October 1, 1931, Respondent provided its truckdrivers,
warehousemen and office employees with group life insurance issued by the
Traveller's Insurance Company of Hartford, Connecticut. The amount of cover-
age for the truckdrivers and warehousemen, the only employees with which we
are concerned, varied from $2,000 to $4,000 for each employee, the exact amount
being dependent upon the employee's annual earnings. Most of these employees
had policies for $4,000. The total annual premium charged by the insurance
company for each employee covered, due on October 1 of each year, was $9 per
$1,000 of insurance. Of this amount, Respondent paid $10.80 on a $2,000 policy,
$12.60 on a $3,000 policy and $7.20 on policies for $4,000. The remainder of the
premium was paid to Respondent by the employee involved. From 1939 or 1940
until about October 1, 1951, Respondent also provided hospitalization insurance
for all its warehousemen, truckdrivers, office employees, and immediate mem-
bers of their families, without cost to the employees. Both types of insurance
were in effect for similar classifications of employees in all of Respondent's other
NASH-FINCH COMPANY 1703
branch offices and warehouses in the North Dakota area. From 1942 to and
including 1950, all of Respondent's employees who had been employed for a
period of 6 months or more, except management employees and salesmen, also
received annually, in December of each year, uniform Christmas bonuses based
on Company earnings.
Prior to the entry of the Union as the bargaining agent of Respondent' s ware-
housemen and truckdrivers at Fargo, about half of these employees had in-
dividual, written employment contracts with Respondent which made provision
for both types of insurance and the Christmas bonus. The remainder of these
employees had no such contracts but nevertheless enjoyed the same benefits.
On April 11, 1951, the Union filed its petition with the Board (18-RC-1070)
seeking to be certified as bargaining representative for Respondent's truck-
drivers and warehousemen. During a morning about 2 to 3 weeks prior to
the Board election conducted on May 14, 1951, the warehousemen and truck-
drivers were notified of, and attended, a meeting at the Company's warehouse at
7:30 that evening. The assembly wa>+ addressed by C. W. Ferguson, Respond-
ent's personnel director who maintains his offices at the Company's headquarters
in Minneapolis. Ferguson told the men that if they joined the Union they
would lose their group life and hospitalization insurance and bonus.' The same
employees were directed to attend, and appeared, at a meeting at 6: 30 a. in.
on May 14, 1951, the day of the election. At this meeting, Branch Manager Wer-
tin told the employees, in substance, that if they voted for the Union their
bonus, hospitalization and group life insurance would be taken away 2 The
Union having won the election conducted on May 14, it was, on May 21, 1951, duly
certified by the Board's Acting Regional Director as, and ever since has been,
the bargaining representative for all warehousemen and truckdrivers employed by
Respondent at its Fargo, North Dakota, plant, excluding office and clerical em-
ployees, watchmen and guards, professional, and supervisory employees as
defined in the Act.
Respondent and the Union held their first bargaining conference at Respond-
ent's offices in Fargo on June 8, 1951. The Union was represented by Greg
Helvig, its secretary-treasurer and Al Stolz, a shop steward ; Respondent, by
Wertin and Ferguson. The Union there submitted a written proposal but there
was no discussion of its contents. Ferguson advised those in attendance that
he would have to take the proposal to Minneapolis for study and that the parties
"would negotiate sometime in the very near future." After several requests by
the Union for a conference, the same representatives met on July 10, 1951, at
which time the participants engaged in a discussion of the Union's proposal of
June 8 and a counterproposal submitted by Respondent. Neither document
contained specific amounts as a proposed wage rate. At that time, Respondent
maintained no uniform wage scale for its drivers and warehousemen, their pay
ranging from 75 cents to 96 cents an hour. The Union's objective with respect
to the rate of pay for these employees was to achieve the scale the Union had
negotiated with one of Respondent's competitors, the Red Owl stores, $1.20 an
"This finding is based on the credited and undenied testimony of Albert Stolz, William
Russell , Jr., and Roy Neubauer. Ferguson was not called as a witness. Though George
Wertin, Respondent's branch manager and Stanley Krause, assistant manager , were in
attendance at this meeting and testified at the hearing, neither one denied that Ferguson
made the threat found in the text.
' This finding is based on the credited testimony of Stolz, Russell, and Neubauer. Though
Wertin denied he made the threat attributed to him, he testified that he merely discussed
"the benefits the Company had been oioviding," but that the men "misinterpreted" his
remarks.
1704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hour . In that discussion , Ferguson took the position "that the Company did
a lot of good things for their people and that a raise of that kind was going to
be extremely expensive and cost the Company a lot of money in addition to
things like insurance and bonus and other conditions that they were already
giving their people." Doubt was also entertained whether the Wage Stabilization
Board would approve so large an increase . The thought was expressed, how-
ever , that such approval would not be required if the hourly rate was established
at 95 cents for beginners and $1 after the first 60 days of employment. This
scale was tentatively agreed to at that meeting and was the scale incorporated
in the contract which was subsequently executed on or about July 23, 1951.
At the July 10 meeting there was discussion concerning article 5 of the Union's
proposal , which read , in pertinent part, as follows :
5. The Employer agrees that all conditions of employment relating to
wages, hours of work , overtime differentials , and general working conditions
shall be maintained at not less than the highest minimum standards in effect
at the time of the signing of this agreement , and the conditions of employ-
ment shall be improved wherever specific provisions for improvement are
made elsewhere in this agreement.
Ferguson characterized the article as "vague" and the ensuing discussion dis-
closed that what the Union had in mind with reference to this article was the
continuation of "all the good conditions that they had." As an "example," how-
ever, Helvig cited the practice of morning and afternoon breaks for coffee.
There was also some discussion of the Union proposed 49-hour guaranteed work
and the Respondent 's counter offer of only 40 hour -guaranteed work, but agree-
ment was reached that the guaranteed workweek should consist of 46 hours.
Respondent was advised that the tentative agreement would have to be submitted
to the union membership for its approval . Such meetings were held on July 13
and July 16 , at which time the Union approved the tentative agreement reached
by its representatives . On July 17, the Union mailed to Ferguson at Minneap-
olis its second proposed draft of contract acceptable to it and incorporating the
wage scale previously agreed upon . This proposal also contained article 5 as
contained in the Union 's original proposal.
On July 20 , Helvig received a call from Wertin advising him that the contracts
were in his office, ready for signature . Helvig took the contracts , newly prepared
by Respondent and already signed in behalf of Respondent , to his office . Accord-
ing to Helvig, "the most pertinent things [he] was interested in was the work-
week and the wages ." He observed that the provision concerning a guaranteed
workweek had been changed so as to make the guaranteed week effective only
"if work is available " and that a provision for a specific "coffee time" had been
added to the contract . On the following Monday , July 23, 1951, he had a con-
ference with Wertin at which time Wertin agreed to strike the words "if work
is available" aforementioned , and also to change the provision for "coffee time"
as suggested by Helvig . The alterations were initialed by the two men and
Helvig signed the contract in behalf of the Union. Paragraph 5 of the executed
contract had also been changed from the two drafts proposed by the Union as
quoted above so as to read as follows :
5. Maintenance of standards . The Employer agrees that wages, hours of
work , overtime differentials , and general working conditions shall be main-
tained at not less than the highest minimum standards specified in this
agreement and the conditions of the employment shall be improved wherever
specific provisions for improvement are made elsewhere in this agreement.
NASH-FINCH COMPANY 1705
At the meeting of Helvig and Wertin on the 23rd , item 5 of the contract was not
discussed .'
On or about September 1, 1951, the warehousemen and truckdrivers were
notified by Respondent to surrender the life insurance certificates that had
previously been issued to them, and the group coverage was canceled effective
September 30, 1951. On or about the following October 7, when employee
Stolz' wife required hospitalization, he inquired of Assistant Manager Krause
whether his hospitalization insurance was still in, effect and was informed that
it was not. On or about October 22, 1951, the wife of employee Richard Olson
gave birth to a baby. Olson inquired of Krause whether he was covered by
hospitalization insurance and discovered he was without such protection. Re-
spondent admitted that it had withdrawn the group life insurance protection for
the truckdrivers and warehousemen as of September 30 and had prior thereto
also canceled the hospitalization insurance previously enjoyed by the same group.
On October 17, 1951, representatives of the Union met with Wertin and pro-
tested the cancellation of the insurance protection and were informed that this
matter "was handled by Minneapolis." On the same day, Helvig addressed
a letter to Harold Finch, Respondent's president, at Minneapolis, demanding
reinstatement of the insurance for the men involved; Helvig also advised that
if Respondent was unwilling to comply with this request that the Union was
willing to "arbitrate this matter."' Finch, on October 18, acknowledged the
letter and promised to reply to the Union's demand upon Ferguson's return to
Minneapolis about a week later. Though union representatives made several
further requests to arbitrate the dispute, Respondent ignored these importunities.
On December 20, 1951, Respondent paid an annual bonus of $60, but withheld
it from the warehousemen and the truckdrivers.
Concluding Findings
The sole issue involved in this case is whether or not hospitalization insurance
fully paid, and group life insurance partially paid for, by Respondent and
enjoyed by its employees prior to July 26, 1951, together with a Christmas bonus
consistently paid in previous years, could be unilaterally canceled, withdrawn
or withheld by Respondent after July 26, 1951, when Respondent and the Union
entered into a collective-bargaining agreement which made no explicit mention
of any of the benefits aforementioned.
One of the principles most deeply rooted in the law governing labor relations
is that the "employer's duty to bargain with the statutory representative of his
employees includes the duty to refrain from taking unilateral action with respect
R This finding is based on HelNig's testimony which is credited. When Wertin was asked
whether Helvig made any reference to this paragraph at the July 23 meeting he testified
as follows
Yes, Mr . Helvig made the statement , he says, "I see you changed No . 5," and I
said, "Yes." and that was all that was said about that.
I am unable to believe , regardless whether or not he realized the significance of the
change, that Helvig would have limited his reaction to the change in the article in the
manner testified to by Wertin.
' Article 24 of the contract between the parties contained the following provision for
arbitration
Any controversy arising over the interpretation of the terms and provisions of this
agreement shall be settled by negotiations between the Union and the Employer.
Such controversy may be referred to a Board of Arbitration composed of one (1) repre-
sentative of the Union and one (1) representative of the Employer and a third neutral
member selected by the first two. The majority decision of this Board shall be final
and binding on both the Union and Employer In any controversy so settled.
1706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to matters which are proper subjects for collective bargaining."' Equally well
established is the doctrine that group and hospitalization insurance, and the
award of a Christmas bonus, are emoluments of value which constitute part of
the "wages . . . or other conditions of employment" concerning which Section
8 (d) of the Act' requires an employer to bargain with his employees and in
connection with which he may not take unilateral action. W. W. Cross d Com-
pany, Inc., 77 NLRB 1162, 174 F. 2d 875 (C. A. 1) ; Inland Steel Company, 77
NLRB 1, enfd. 170 F. 2d 247 (C. A. 7), cert. den. 336 U. S. 960; General Motors,
81 NLRB 779; Tide Water Associated Oil Company, 85 NLRB 1096; Niles-Bement-
Pond Company, 97 NLRB 1492.
Factually, it is admitted here that at the time Respondent negotiated its
contract with the Union, its employees were receiving for their labor, in addition
to their hourly rate of pay, the three emoluments under consideration. In that
state of the record, and the Union then being the duly designated bargaining
representative of the employees, those wages and conditions of employment
could be changed only by resort to the bargaining process. Respondent could not
otherwise change them.
It is the position of Respondent, however, that article 5 of the contract, as
executed, clearly demonstrates that "both parties understood these benefits were
being discontinued." I cannot agree. The record does not disclose Respondent's
purpose in changing article 5 from the form in which it was submitted by the
Union and by which these benefits were expressly retained. No change in
phraseology from the original was suggested by either party during the negoti-
ations, and, as previously found, the newly phrased article was not discussed at
the time Wertin submitted the final contract already executed in Respondent's
behalf.
In any event, I cannot attribute to the article the legal significance and effect
attached to it by Respondent and pleaded in its answer-that by its execution, the
Union, "on behalf of the employees, waived any rights of the employees to receive
the benefits" under consideration. Rather, I am in accord with the views of the
General Counsel "that the clause is entirely useless and meaningless. It neither
states that existing benefits will be continued, or that they will not be continued.
It may be paraphrased as follows : 'The employer states that he will abide by the
terms of this contract.' " It would bestow a premium on "double talk" and
strife-provoking phraseology in labor contracts to translate this article into a
waiver of the "rights of the employees to receive the benefits" in question as
Respondent pleads. Rights guaranteed to employees should not be deemed to be
waived by phrases which convey no meaning. The Board has repeatedly ex-
pressed its reluctance "to deprive employees of any of the rights guaranteed
them by the Act in the absence of a clear and unmistakable showing of a waiver
of such rights." (Emphasis supplied.) Tide Water Associated Oil Company,
85 NLRB 1096; General Controls Co., 88 NLRB 1341.
The most liberal view that can be taken in behalf of Respondent's position
is that the clause is ambiguous and that the record should be searched to ascer-
tain whether in fact, as Respondent urges in its brief, "both parties understood
these benefits were being discontinued." The only representative of Respondent
at the negotiation meetings who testified at the hearing, was Wertin. When
5 The Board's Fifteenth Annual Report, page 122 ; Sixteenth Annual Report, page 199 ;
Fourteenth Annual Report, page 75, and cases cited therein.
6 "To bargain collectively is the performance of the mutual obligation of the employer
and the representative of the employees to meet at reasonable times and confer in good
faith with respect to wages, hours, and other terms and conditions of employment, or the
negotiation of an agreement , or any question arising thereunder . . . .
NASH-FINCH COMPANY 1707
he was asked whether anything was said during the entire course of the nego-
tiations concerning the benefits under consideration, he testified as follows :
Q. When you were discussing the changes in the contract with Mr. Helvig
on or about July 23' of 1951, was there any discussions specifically about
bonuses?
A. Never a word said about bonuses.
Q. Was there anything said specifically about group life insurance?
A. Never a word said about it.
Q. Do you remember whether anything was said about either of those
three things during the entire negotiation, that is, the two negotiating
meetings and your meetings with Mr. Helvig?
A. There never was anything said about insurance, hospitalization or
bonuses as any of the times of the negotiations or otherwise.
Q. At the meetings, your testimony refers to the meetings which Mr.
Ferguson attended as well as the meetings where you met with Mr. Helvig
alone?
A. That is correct.
Q. Your testimony is, that at none of those meetings was the subject of
these three mentioned?
A. Never.
Both negotiators for the Union testified. Stolz did not recall any discussion
with respect to either type of insurance or the bonus. Helvig testified that
during the discussion of the hourly wage "Mr. Ferguson brought out that the
Company did a lot of good things for their people and that a raise of that kind
was going to be extremely expensive and cost the Company a lot of money in
addition to oh, things like insurance and bonus and other conditions that they
were already giving the people."
On the entire record I am convinced that while insurance and bonus were
mentioned in the bargaining negotiations, the brief mention of these subjects
can only be characterized as a loose, desultory recital of benefits then enjoyed
by the employees and that no serious consideration was given by either party
to a barter of these rights for increased wages. The characterization I have
imposed upon the mention of these subjects finds support in Wertin's testimony
that none of them were even mentioned during the entire course of the negotia-
tions.' Certainly, if Respondent's contention that "both parties understood
these benefits were being discontinued," Wertin, as Respondent' s bargaining
representative, would have remembered that there was at least some discussion
on these subjects. On the entire record, I find that the Union did not during
the entire negotiations, nor by the contract executed with Respondent, expressly
waive or surrender the right of employees to receive the benefits of the life
and insurance policies and Christmas bonus previously enjoyed by them.
Notwithstanding the finding just made, Respondent presents the question
of whether or not emoluments of value enjoyed by employees at the time of
the execution of a collective-bargaining contract, but not specifically provided
for by that agreement, may thereafter be unilaterally withdrawn by the employer.
A somewhat similar problem was presented in Allied Mills, 82 NLRB 854 and
in Tide Water Associated Oil Company, 85, NLRB 1096. In both cases, an em-
'The transcript erroneously reports this date as "June 23." It is hereby corrected to
conform with the above text.
8I am convinced that Wertin did not wilfully testify falsely. Rather, I am persuaded
that the mention of Insurance and bonus was so cursory as to leave no Impression on his
mind.
1708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployer had, after the execution and during the life of a bargaining contract,
refused to bargain with the union on subjects not covered by the written contract.
The employer in both cases sought to defend its refusal on the ground that
Section 8 (d) of the Act withdrew any obligation to bargain on such subjects.
That section provides, in pertinent part, that the duties imposed on an employer
to bargain with its employees "shall not be construed as requiring either party
to discuss or agree to any modification of the terms and conditions contained
in a contract for a fixed period." In rejecting the employer's defense in both
cases, the Board stated "that this portion of Section 8 (d) refers to terms and
conditions which have been integrated and embodied into a writing. Conversely,
it does not have reference to matters relating to 'wages, hours and other terms
and conditions of employment,' which have not been reduced to writing. As
to the written terms of the contract either party may refuse to bargain further
about them . . . without committing an unfair labor practice. With respect
to unwritten terms dealing with 'wages, hours, and other conditions of em-
ployment,' the obligation remains on both parties to bargain continuously."
(Emphasis in original text.)
The same problem was again presented in Jacobs Manufacturing Company, 94
NLRB 1214, enforced 196 F. 2d 680 (C. A 2). In that case, the union, in 1949,
exercised its right during the life of a bargaining contract executed in 1948, to
reopen negotiations for the purpose of discussing "wage rates." In addition to a
request for a wage increase, the demands included a request that the employer
undertake the entire cost of an existing group insurance program, and another
request for the establishment of a pension plan. The group insurance plan then
in existence was not mentioned in the contract but had been discussed during
the negotiations for the 1948 contract. There was no mention of pensions in that
contract nor had that subject been discussed in the negotiations prior to the
execution of the 1948 contract. Three members of the Board, Chairman Herzog
and Members Houston and Styles, found that the company had unlawfully
refused to bargain concerning pensions because that subject had not been dis-
cussed during the negotiations for the 1948 contract. Members Houston and
Styles, relying on the Allied Mills and Tide Water cases were of the opinion that
the employer had also unlawfully refused to bargain concerning the group in-
surance. Chairman Herzog, however, was of the opinion that because "the
subject of group insurance was fully discussed . . [and] consciously ex-
plored, . . . [the] bargain sealed when the 1948 agreement was reached" relieved
the employer of the duty to bargain further on that subject during the life of the
contract. Member Murdock was of the opinion that the question for decision
should be disposed of on a ground not germane to our problem and therefore
found it unnecessary to reexamine the rule laid down in the Tide Water case,
a decision in which all five Board members concurred. Member Reynolds was the
only member of the Board who, in the Jacobs case, was of the opinion that Sec-
tion 8 (d) was erroneously interpreted in Tide Water and that there was "no
obligation on either party to a contract to bargain on any matter during the
term of the contract except as the express provisions of the contract may de-
mand."
Analysis of the opinions of all members of the Board in Jacobs establishes that
even under the varying views there expressed, the conclusion must be drawn
that under all the views there expressed, Respondent's unilateral action herein
must be deemed violative of the Act. Members Houston and Styles clearly ex-
pressed their adherence to the broad rule found in Tide Water. Chairman
Herzog's dissent on the subject of group insurance, was predicated on the fact
that that subject had been "fully discussed" and "consciously explored" in the
NASH-FINCH COMPANY 1709
negotiations that preceded the execution of the 1948 contract. Here, however,
it has been found that the disputed subjects were neither "fully discussed" nor
"consciously explored " If there had been a similar lack of discussion and ex-
ploration of the group insurance matter prior to the execution of the contract
in Jacobs, it is reasonable to assume that Chairman Herzog would have joined in
a finding that the employer had illegally refused to bargain on that subject
during the life of the collective bargaining agreement.
And, though dissenting, Member Reynolds was of the opinion that the Act "im-
poses no obligation on either party to a contract to bargain on any matter during
the term of the contract except as the express provisions of the contract may
demand," his rationale for that determination compels the conclusion that if the
employer in Jacobs had unilaterally terminated the group insurance which the
employees were enjoying outside the provisions of the bargaining agreement
then in effect, that he would, in the judgment of Mr. Reynolds, have done so in
violation of the Act. Member Reynolds' entire argument was directed to the
need for stabilizing existing conditions. Thus, he reasoned that "when an
employer and a labor organiaztion have through the processes of collective bar-
gaining negotiated an agreement containing the terms and conditions of em-
ployment for a definite period of time, their total rights and obligations
emanating from the employer-employee relationship should remain filed for that
time. Stabilized therefore are the rights and obligations of the parties with
respect to all bargaining subjects whether the subjects are or are not specifically
set forth in the contract. . . . The basic terms and conditions of employment
existing at the time the collective bargaining agreement is executed, and which
are not specifically altered by, or mentioned in, the agreement, are part of the
status quo which the parties, by implication, consider as being adopted as an
essential element of the agreement " ° (Emphasis supplied.)
While it is true that all three cases last discussed concerned themselves not
with action unilaterally taken to change wages and conditions of employment
but merely with the refusal by an employer to bargain on a subject not expressly
covered by an existing bargaining agreement, the difference merely points up the
aggravated nature of Respondent's violative conduct herein. The rule estab-
lished in those cases, and the rationale by which the result was reached, lead
to the inescapable conclusion that an employer may not change existing terms
and conditions of employment, whether previously reduced to writing or not,
without first bargaining with the duly selected bargaining representative of the
employees.
On the entire record, I find that by unilaterally withdrawing the hospitaliza-
tion and group life insurance plans enjoyed by the warehousemen and truck-
drivers on July 23, 1951, and by withholding from the same employees the
Christmas bonus in December 1951, Respondent violated Section 8 (a) (5) of the
Act. By the same conduct, Respondent also discriminated in regard to the wages,
terms, and conditions of employment of the same employees, thereby discourag-
ing membership in the Union, in violation of Section 8 (a) (3) of the Act. By
said acts, Respondent interfered with, restrained, and coerced its employees in
the exercise of rights guaranteed by the Act and thereby violated Section 8
(a) (1) thereof.
9In N L. It. B v. J. H. 41llson & Company, 165 F. 2d 766 (C. A. 6), cert. den. 305
U S. 814, the Court said : "Nor do we see logical justification in the view that in entering
into a collective bargaining agreement for a new year, ez.en though the contract was silent
upon a controverted matter, the union should be held to have waived any rights secured
tinder the Act. . . . Such interpretation would seem to be disruptive rather than foster-
ing in its effect upon collective bargaining, the national desideratum disclosed in the broad
terms of the first section of the National Labor Relations Act." (Emphasis supplied.)
1710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring
in connection with the operations and activities of Respondent described in sec-
tion I, above, have a close, intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has discriminated in regard to the wages
and employment terms and conditions of its employees and that it has uni-
laterally changed those wages, terms, and conditions of employment, I will rec-
ommend that Respondent cease and desist therefrom and take certain affirmative
action, including the restoration of benefits unilaterally withdrawn and the
making whole of the employees so involved for any loss suffered by them as a
result of Respondent's unilateral action and discrimination. Because of the
nature of the unfair labor practices committed, particularly the discrimination
heretofore found, it will also be recommended, in order to make effective the
interdependent guarantees of Section 7 of the Act, the Respondent cease and
desist from in any manner infringing upon the rights guaranteed in Section
7 of the Act.
Upon the basis of the above findings of fact, and upon the entire record in
the case, I make the following :
CONCLUSIONS OF LAW
1. General Drivers, Helpers, Warehousemen, Dairy Employees and Inside
Workers Union, Local 116, AFL, is a labor organization within the meaning of
Section 2 (5) of the Act.
2. All warehousemen and truckdrivers employed by Nash-Finch Company at
its Fargo, North Dakota, plant, exclusive of office and clerical employees, watch-
men and guards, professional, and supervisory employees 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.
3. General Drivers, Helpers, Warehousemen, Dairy Employees and Inside
Workers Union, Local 116, AFL, ever since May 21, 1951, has been the exclusive
representative of all employees in the aforesaid appropriate unit for the purpose
of collective bargaining within the meaning of Section 9 (a) of the Act.
4. By unilaterally changing the wages, terms, or conditions of employment
of the employees in the above unit, Respondent has engaged and is engaging
in unfair labor practices within the meaning of Section 8 (a) (5) of the Act.
5. By discriminating in regard to the wages, terms, or conditions of employ-
ment of the employees in the above-described unit, Respondent has engaged and
is engaging in unfair labor practices within the meaning of Section 8 (a) (3)
of the Act.
6. By the acts aforementioned, Respondent has interfered with, restrained
and coerced its employees in the exercise of the rights guaranteed in Section 7
of the Act and has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]