Winn-Dixie Stores, Inc. v. N.L.R.B.

• Decision Date: 17 February 1978
• Docket Number: AFL-CI,Nos. 76-2733 and 76-3558,WINN-DIXIE,P,s. 76-2733 and 76-3558
• Citation: 567 F.2d 1343
• Parties: 97 L.R.R.M. (BNA) 2866, 83 Lab.Cas. P 10,385 STORES, INC., Petitioner-Cross Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner. AMALGAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA,etitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1343

567 F.2d 1343

97 L.R.R.M. (BNA) 2866, 83 Lab.Cas. P 10,385

WINN-DIXIE STORES, INC., Petitioner-Cross Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner.

AMALGAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH

AMERICA, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

Nos. 76-2733 and 76-3558.

United States Court of Appeals Fifth Circuit.

Feb. 17, 1978.

Charles F. Henley, Jr., William H. Andrews, Jacksonville, Fla., for Winn-Dixie Stores, Inc.

Elliott Moore, Deputy Associate Gen. Counsel, William R. Stewart, David F. Zorensky, John S. Irving, John E. Higgins, Jr., Carl L. Taylor, N.L.R.B., Washington, D. C., for N.L.R.B.

Linda R. Hirshman, Robert S. Sugarman, Joseph M. Jacobs, Chicago, Ill., for Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO.

Harold A. Boire, Reg. Director, Region 12, N.L.R.B., Tampa, Fla., for other interested parties.

Petitions for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.

Before WISDOM and GEE, Circuit Judges, and VAN PELT ^*, District judge.

GEE, Circuit Judge:

In No. 76-2733, Winn-Dixie Stores, Inc. ("Winn-Dixie" or "the company") petitions this court for review of an order of the National Labor Relations Board ("the Board"), and the Board cross-applies for enforcement of its order. In No. 76-3558, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO ("the union") petitions this court for review of the same Board order. Winn-Dixie has intervened in No. 76-3558; the union has intervened in No. 76-2733.

Winn-Dixie, a Florida corporation with headquarters in Jacksonville, operates a chain of supermarkets throughout the southeastern United States. It has a history of labor controversies and has appeared before the Board and this court several times. ¹ The issues involved in this case arise out of incidents taking place in the company's Jacksonville warehouse during the period from 1969 to 1973.

The Board found that Winn-Dixie had violated section 8(a)(3), (5) and (1) of the National Labor Relations Act ("the Act"), 29 U.S.C. § 158(a)(3), (5) and (1), by committing the following acts: (1) maintaining a profitsharing/retirement plan which by its terms precluded coverage of employees who were covered by a pension plan as a result of collective bargaining; (2) refusing to bargain over the possibility of unionized employees getting coverage under both the company's profitsharing/retirement plan and a union-proposed pension plan; and (3) unilaterally increasing insurance benefits and wages. ² The Board ordered the company to post notices of the Board's action in all the warehouses in the Jacksonville division, to mail a copy of the notice to each employee, to read the notice aloud to the employees, and to grant the union access to bulletin boards for one year. The Board also ordered two forms of monetary relief: (1) with respect to the company's profitsharing/retirement plan, the company must reinstate the funds in the accounts forfeited by employees as a result of the 1970 collective bargaining agreement, open accounts for those employees who would have become eligible for the company plan since 1970, and contribute the funds that should have gone into those accounts including annual payments of up to $300 for those employees eligible for such benefits; and (2) the company must make the unit employees whole for any losses they may have suffered as a result of the company's unfair labor practices by compensating employees for any differences in benefits which exist between the Jacksonville warehouse and another comparable warehouse in the Winn-Dixie system. ³

The company contests all aspects of the Board's findings and order described above. The union complains of the Board's failure to find additional unfair labor practices and the Board's refusal to award litigation expenses and excess organization expenses.

The Profitsharing Plan

At all times relevant to the issues in this case, Winn-Dixie has administered a profitsharing plan for its employees. Participation in the plan is voluntary. In order to be eligible for participation an employee must be at least twenty-one years old and have at least five years of continuous employment with the company. Each participating employee is given a separate account to which the company makes annual contributions on the basis of a certain percentage of the company's profits for that year.

Under the plan employees or their heirs become entitled to payment from their accounts upon retirement, death, or termination of employment with the company for reasons other than theft or other conduct detrimental to the company. In addition, the plan provides for annual cash payments of up to $300 for eligible employees who earn under $8,500 per year. All of the unionized employees in the Jacksonville warehouse earned less than this amount.

Until it was amended in 1971, the company's plan contained a provision, Article II, Section 2.4(b), which excluded from participation in the plan:

Employees who as a result of collective bargaining have entered into a written agreement by which Employer agrees to contribute funds for the benefit of such employees to some form of retirement program.

Thus, by its terms the company plan precluded the possibility that the unit employees could be covered simultaneously by the company plan and a pension plan proposed by the union. ⁴

The company's position at the bargaining table was that such "double coverage" was not a negotiable matter. The ALJ found no violation in the existence of the clause or in the company's adamant refusal to bargain over dual coverage. The ALJ reasoned that since the company plan was really a retirement or pension plan, the company could rightfully refuse to bargain over simultaneous coverage under two pension plans.

The Board reversed the ALJ on the grounds that the company plan was funded by a percentage of company profits and thus differed from the standard pension plan under which an employee can be sure that his or her account will increase by a set amount every year. According to the Board, the fact that the company's profitsharing plan provided for disbursal of benefits at a time normally associated with retirement plans did not change the basic nature of the company's plan. In the alternative, the Board found that even if the company's plan was a pension plan, it included one provision not usually associated with retirement plans, viz, eligible employees earning less than $8,500 per year were entitled to receive up to $300 per year in cash payments. Thus, the company's plan was in part a profitsharing plan providing for annual cash bonuses.

In its brief the Board cites Kroger Co. v. NLRB, 401 F.2d 682 (6th Cir. 1968), cert. denied, 395 U.S. 904, 89 S.Ct. 1743, 23 L.Ed.2d 217 (1969), for the proposition that a company cannot exclude from participation in a profitsharing plan those employees who acquire a pension plan as a result of collective bargaining. Kroger maintained both a profitsharing plan and a retirement plan. The Sixth Circuit held that the exclusionary clause in the profitsharing plan, the only company plan at issue in that case, and Kroger's refusal to bargain over coverage of the unionized employees under both the union pension plan and the company profitsharing plan violated section 8(a)(5) and (1) of the Act.

Winn-Dixie would distinguish Kroger on the ground that Kroger had two plans, i. e., one a profitsharing plan and the other a retirement plan. The exclusionary clause in the profitsharing plan could not be supported by any "double coverage" argument since Kroger's profitsharing plan was in no sense a retirement plan. Exclusion of the unionized employees from Kroger's plans left them with only the union-proposed pension plan, while the remaining employees had both a pension plan and a profitsharing plan.

Here Winn-Dixie maintains one plan which incorporates both profitsharing and retirement aspects. Thus, we are presented with a more complex situation than was the Sixth Circuit in Kroger.

Without attempting to discern the "basic nature" of the Winn-Dixie plan and without deciding whether a company may refuse to bargain over exact duplication of benefits, we believe that Winn-Dixie's position violated its statutory duty to bargain. Even assuming that there is no duty to bargain over duplicate benefits, a company's duty to bargain becomes more and more clear as the differences in the two plans become greater. If this were not the case, a company could avoid the effect of Kroger by merely consolidating a pension plan and a profitsharing plan into one combined plan.

Here the differences between the company plan and the union plan are sufficient to give rise to a duty to bargain over coverage under both plans. The company plan is funded by contributions directly related to company profits for a given year. The union plan is funded by fixed contributions which do not vary from year to year with the successes or failures of the company. The company's plan is voluntary; the union's plan is not. An employee becomes eligible under the company plan after five years; under the union plan an employee becomes eligible after sixty days. The company plan provides for cash payments of up to $300 per year. There can be no doubt that the prospect of annual payments in such an amount would be of great interest to the unionized employees, all of whom earned less than $8,500 per year. We therefore conclude that there is substantial evidence to support the Board's finding that the existence of the original clause 2.4(b) violated section 8(a)(3) of the Act, and the company's refusal to bargain over coverage under both plans violated section 8(a)(5) and (1) of the Act.

The Board also held that the company's insistence that eligible employees forfeit their existing accounts under the company plan violated section 8(a)(5) and (1) of the Act and...