Petition for Writ of Certiorari — Winn-Dixie Stores, Inc. v. National Labor Relations Board

Supreme Court brief1966

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OPINIONS BELOW Moh ane

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. QUESTIONS. PRESENTED *__-----;,,- 2. 2

STATUTE WiVOnve oo os Sg

STATEMENT On Tie CARE 8:

1¢ The Board’s findings of fact sonics eget

2. The Board’s conclusions and order ______ 6

: 3.. The Decision of the Court PW nae

+ DITTO cept taste hospi ststit scotia 8

I. Fifth, Circuit RAE Fibreboard £10 * Br

II. Conflict Among the Circuits Mc "8

II. N.L.R.B.’s Departure from Fibreboard __18

CONCLUSION aie NNO seca ee

APPENDIX *____- ti Nee shits hfe acon

CITATIONS

AUTHORITY CITED~

Cases:: are

‘1. American Oil Co.; 151 N.L.R.B. 421 (1965) —

2... Brown Transport Corp., 140 N.LAR.B

+ 954 (1963). :

» . 3. Fibreboard Paper Products Corp. v. N.LR. B.,

a 379 U.S.203 (1964) |

4. Jays.Foods v. N.L.R.B., 292 F. 2d 317 7 (7th Cir:

1961)

$. N.LRB. VE: Adios ‘Beiry, Inc., 350 F. 2d 108

| (8th Cir. 1965), cert. den. 382 U.S. 1011

° jk ay) pe

6. N.L.R.B. v. American- ddiafactuting Co. of oe

o Texas, 351 F.2d 74 (5th Cir. 1965)

ria as N L.R:B. v. Burns International’ Detective

(iw “Agency, 346°F. 2d 897 (8th Cir. 1965) .

i‘. ” NLRB. v. Darlington Mfg. Co.; 380 U.S. 263

-9.: NLRB. v. - M. Lassing, 284 F. 2d 781 (6th’

| Cir. 1960) |

10. .N.L.R.B. v. Rowei Plating & Polishing Co. Inc.;

350 F, 2d 191 (3rd Cir. 1965). -

a | > Renton News Record, 136 NLRB. 1294

te a |

12... Shell Oil Cow (Detroit, Michigan, 149 N.L.R.B. °

305 (1964)

Statutes:

| National Labor Relations nek as scant (61 —

Stat. 136, 29 U.S.C. 151 é¢ seq.) ree:

called the Act):

' Section 8 (d)

APT AAR PN een cH ee Sn

-# —— “ aes ta . - “9 ee os 2.

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Supreme Court of the United States.

‘No.

WINN-DIXIE STORES, INC.

: : | eae _. Petitioner,

yy :

NATIONAL LABOR RELATIONS BOARD,

; orn Respondent.

_ PETITION FOR WRIT OF CERTIORARI TO.

_ THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT a

Petitioner, Winn - Dixie. Stores, Inc., by and

through its undersigned counsel, petition for a Writ -

of Certiorari to review the judgment of the Court of’ ”

Appeals for the Fifth Circuit entered in this case May

19,1966. et asa

OPINIONS BELOW.

The decision of the Court. of Appeals (Attached

_ hereto as Appendix A) is reported at 62 L.R.R.M.

' 2218,53 LC ti, 243 (not yet reported in official re-

ports). The judgment of the Court of Appeals is at-

: sitihad hereto’as Asean B: The Siljnn of fact, con-

- clusions of law and order of the Board are reported at -

147 N.R.L.B. 788, 56/L.R.R.M. 1266, 1964 CCH

N.L.R.B. 1 13, 210, and are in the Transcript 0 of Rec- ep

ord, Volume I, PP. 70 and 28.

“JURISDICTION ~

The judgment. of the Court of Appeals w was entered

‘on May 19, 1966. (infra, p. 22) The jurisdiction of this

- Court. is inyoked under 28 U.S.C. 1254 (1)-and Sec-

tion 10 (e) of the National Labor Relations Act, as

: es 29 U. S. C.. 160(e).

" QUESTIONS PRESENTED

1) Whether the Court of Appeals erroneously in-

terpreted the Supreme Court’s decision in Fibreboard

| ° Paper Products Corp. v. N.L.R:B., 379 U. S. 203 |

+, (1964), in holding that Petitioner had a) duty to bar-

gain with its employees’ bargaining representative about —

Petitioner’ s decision to completely discontinue its cheese

processing operation, such decision having been found

by the Court to have been based solely on economic .

_ considerations,

2. Whether the decision by the Fifth Circuit Court :

of Appeals herein is in direct conflict with the decision —

‘of the Eighth Circuit Court of Appeals-in N.L.R.B. v.

Adams Dairy, Inc., 350 F.2d 108 (8th Cir. 1965), cert.

denied, 382 U.S. 1011. (1966), and N.L.R.B. v.. Burns

International Detective Agency, 346 F.2d 897 (8th

Cir. 1965), and the decision of the Third Circuit Court -

of Appeals in N.L.R.B. v..Royal Plating and Polishing

Co. Inc., 350 F.2d 191 (1965),

3. Whether the closing down of an entire segment 4

of-a corporation’s operation for purely economic rea- -

P . pinion io

° Pe .

sons is-a decision which must first " bargained sua |

with the employees’ bargaining representative under

Section 8 3(d) of the N.L.R-A. as being ancissue regard-

ing . “wages, hours, and other,t terms and conditions

of cuagllinunedi™: parm a

STATUTES mies

The relevant | provisions of the National Labor Rela-

tions Act, as amended (61 Stat. 136, 29 asia 151,

_ et seq.) are as follows:

Sec.8 ae : ee

ee ( d): : -

_ For the purposes of this section, to bargain callec- -

tively is the performance of the mutual obligation

_ + of the employer and the representative of the em-

ployees to meet at ‘reasonable times and confer in

good faith with respect to wages, hours, and other -

terms and conditions of employment, or the nego-

tiation of an agreement, or’ any question arising

| thereunder, and the execution of a written contract’ --

incorporating. any agreement reached if requested

by either party, but such obligation does not compel

either party to agree to a if inane or — ae

making of a, concession.

_ STATEMENT OF .THE CASE

}. The Board's Findings of Fact

‘The facts in ‘this case are relatively simple and un-

controverted, the real issue being the legal ramifications

. stemming from the facts.

Winn-Dixie Stores, Inc. isa F Florida corporation <

which owns dnd operates a multistate chain of retail ° -

food stores. The a is divided into 8 ee :

each of which is a complete operasionel unit perform-

ing all buying, selling, and warehousing functions in

connection with the operation of the retail stores with-

in each division. The Jacksonvilje Division consists of

95 retail stores, and at the time of this case, was headed

. by J. Wirtz Nease, a vice president of the Company.

In January of 1961, Nease-initiated a plan of cutting

and wrapping cheese for all of the stores at the central

warehouse én Jacksonville, It was reported.at a meeting

in October, 1962, that all ofthe Company’s divisions, ©

‘except Jacksonville, were handling prepackaged cheese

rather than packaging the cheese themselves. At this

time Nease decided to try out a similar plan and about

March .15, 1963, his buyer placed a small order for

prepackaged cheese with Kraft Food Company. From

this experiment he found that it was far more economi-

cal to purchase prepackaged cheese from processors

than for the Division to package the cheese itself.

Furthermore, the prepackaged cheese was all center |

cut and quality, controlled, by a special patented inert

gas sealing process. This helped eliminate mold condi-

tions and gave the product a shelf life of 60 days, in

contrast to the 10 or 12 day shelf-life for cheese pack-

aged by the Company at the warehouse. Likewise, it

was discovered that buying prepackaged cheese resulted °

in a cost savings of two-cents a pound.

It was thereafter determined’ that the Company

would have to investigreat sum# of capital in order to

establish an operation which would enable it to enjoy

the same economic advantage and product quality

which could be received by purchasing the prepack- —

aged cheese from Kraft. This was true because ‘the

Company would have had to purchase a similar inert

gas sealing process, hire’ technically qualified persons

‘

° .

7 5

4 ‘s ‘ .

for its operations, construct an area exclusively for

cheese packaging, and incorporate in this new area. cer-

tain other devices to insure product quality. - 7

Therefore, the Company had tozchoose from among

the available alternatives and either: 1) continue the

old operation which had been proven to be unsatisfac- | .

tory, both as to cost and quality; 2) invest large sums

of capital in-new machinery and construction in order

to provide ‘a satisfactory operation; or 3) discontinue

entirely the packaging operation and purchase the

. cheésé in-a prepackaged form, thus combining the

benefits of incea8d quality and decreased costs with-

out the necessity of allocating large sums of capital.

As the record indicates, the Company determined that

the most favorable alternative was to discontinue the

cheese packaging operation entirely and buy the cheese

in prepackaged form directly from the processor. The

Trial Examiner, the Board, and the Court of Appeals

found that this decision was made for bona fide eco-

nomic reasons only and that there was no evidence that

the decision was motivated in the slightest by any anti-

union animus. ee =

The main issue which the Board had to determine

was whether the Company was duty bound under -

Section 8 (d) to bargain with union’ regarding its

, decision to discontinue the cheese Speration. "The Com-

pany maintained that this was completely a manage-

ment decision and not one which it had to first bargain

about with the union. |

Ih his Decision? issued on December 4, 1963, Trial .

. Examiner Reeves R. Hilton found that the Company

_ 1 Meat Cutters, Packing House and Allied Food Workers-Union, Local

433, Amalgamated Meat Cutters and Butcher Workmen of America,

AFL-CIO,

. 2 12%CA-2653, reported at 147 N.L.R.B. 795; Tranectige of Record,

Volume I, p. 28. . ..

had\been under a duty to bargain with the union before

_ reaching the decision to close the cheese operation, but

since he also found that that decision was lawfully mo-

tivated, it would serve no’ purpose at that late date to

require, in his remedy, that.the Company now bargain .

- about it. Accordingly, he found the Company ‘guilty

of a violation of Section 8 (a) (5) and (1) of the

- Act and recommended as his remedy that, among other .

| things, the Company be required to bargain with the

union concerning the effects of the discontinuance of

the cheese packaging operation on the employees con-

cerned. : :

In framing his remedy, Trial Examiner Hilton dis-

cussed the possibilities of directing the Company to

reinstate the operation and the displaced employees, ,

‘with back pay. ‘His decision not to require this was

' based ‘largely oh the fact that there was no question

but that the Company’s initial decision had been based

on purely economic considerations and on the fact that

such method of operation “may now be [completely]

- outmoded” (147 N. L. R.B. at 791). :

2. The Board's Conclusions and Order

On review of the facts and the Trial. Examiner’s

Decision, the Board reached ‘its conclusions and issued |

its Decision and Order’.on June 26, 1964. ;

‘In-its Decision the Board concurred with the Trial

Examiner that the Company’ had violated Section |

8(a) (5), and (1) of the Act by not bargaining with |

the union regarding its economic decision to close the

cheese packaging operation. However, as to the appro-

_ priate remedy, the Board:differed with the Trial Ex-

3,D-6108, reported at 147 N.L.R.B. 788; Transcript of Record, Volume

I, p. 70. ;

aminer and ordered that the Company bargain with the

union regarding the possible resumption of the cheese

operation as well as about the effects of the discontin-

‘‘uance on the involved employees; the Board ordered

_ also that the Company pay the discharged employees

. back pay from the date of their discharge to the date

the company fulfilled its bargaining obligation : as set

forth i in its order.

3. The Decision of the Court Below

Jurisdiction of the lower court was based on Section

10 (e) of the Act. The Court of Appeals for the Fifth

Circuit in a split decision affirmed the Board’s decision

-as to the Company’s duty to ‘bargain with the union -

regarding the discontinuance of the cheese packaging

operation. The Court’s Order of enforcement differed

from the Board’s only in that it said that any bargaining.

. concerning, whether the operation should be re-estab-

‘ lished would be a mere “exercise of futility”. The Court _

ordered that the Company bargain with the union only

regarding the effect of the discontinuance, and make

the employees whole for any loss of pay. '

‘In reaching its decision regarding the Company’s -

duty to bargain, a majority of the Court relied ex-

clusively on*its earlier decision in N.L.R.B. v. Ameri-

can Manufacturing. Company of Texas, 351 F. 2d 74

(Sth Cir. 1965), in which it first interpreted the de-

cision of Fibreboard Paper Products Corp. v. N.L.R.B,; .

supra. The portion of the American Manufacturing

holding which the court quoted and. upon which it

based its decision in the instant case is set out below.

““Of course it is now clear that the Board was correct

in finding that the Employer must negotiate the

decision to subcontract. Quite apart from anti-union

—_

8 | rN

. >

‘conduct, or here the claim of economic justification,

the decision to subcontract work is a subject for -

mandatory bargaining”. (351 F. 2d at 80)

The Court after this quote in- American Manufac-

turing went on to cite Fibreboard for the above propo-

sition. Thus the split*decision in the instant case clearly

rests upon the Fifth Circuit’s interpretation of the

Supreme Court’s decision in Fibreboard.

ARGUMENT

As the Supreme Court is undoubtedly well aware, its

ision in Fibreboard Paper Products Corp. v.

N.L.R.B., supra, has become a landmark decision in the

area of defining mandatory bargaining issues under

Section 8 (d) of the Act. This important area of con-

flict within the labor relations field and the interpreta-

tion of the National Labor Relations Act in this regard

runs to the very core of the philosophy of the Act itself.

On the one hand, too restrictive an interpretation of

the Section 8(d) obligation to “. . . confer in good

faith with respect to wages, hours, ‘and other terms and —

conditions of employment” would not grant the em-

ployee’s bargaining agent enough authority to be an

effective representative of the employees, while on the

other hand, too broad an interpretation would com- _

. pletely ham-string the power of management to make —

its decision regarding the economic welfare and =

direction of the-enterprise.

Petitioner would like to call the Cdurt’s attention to —

the fact that the Board, on every possible occasion, re-

fers to management’s duty to bargain with the.union as

existing over any decision which “affects” wages,

hours, terms and conditions of employment. Petitioner

is certaih that the Board is doing everything in its power

to obtain a ruling by this and other Courts that such is

the law. However, the Act only requires that manage-—

ment “confer in good faith with respect to wages,

hours, and other terms and conditions of employment”.

It does not require management to bargain regarding

‘any decision which merely “affects” wages, hours, etc.

_ Certainly it is common knowledge that virtually every

decision made by management which affects the des-

tiny of the corporation will indirectly affect some

“term or.condition of employment” of .that corpors-

tion’s employees. Thus, following the argument oi |

those who would broaden the meaning of Section 8 (d)

_to its ultimate logical conclusion would mean that

management would,have to schedule a meeting and

bargain with the union before making any decision

whatsoever. A situation as outlined above would in-

evitably result in a complete breakdown of the ef-

ficiency of American business and surely was not

contemplated by Congress when it passed the Act’ nor

this Court when it decided Fibreboard. Yet, this is pre-

cisely the theory that the Board seems to be espousing,

and whick some of the Circuit Courts of Appeals, par-

ticularly the Fifth Circuit, are beginning to accept.

Although both the majority and concurring opinions

in Fibreboard emphatically underscored the narrowness

of the decision to the facts presented, this case has

increasingly become the hook upon. which such an

expansive interpretation of the 8 ” bargaining obliga-

tion has been hung. |

Therefore, it is of crucial importance for this Court

to again speak on the question of the scope of the

Section 8(d) mandatory bargaining obligations of

management. This entire area has been thoroughly con-

fused since Fibreboard, and has left the circuits -in

10 ao

hopeless saith While Fibreboard gave this Court a

chance to illustrate at least “how far” the 8(d) obliga-

‘tion extended, the Court has not had an opportunity to .

“edefine the limitations of .this Section by deciding a

case which illustrates how far the obligation “does not .

go”. Petitioner submits’that such an illustration-must

be provided by this Court if the confusion is to cease, —

and that the instant case — an excellent yehiele—

for such an examination. ' teen ree

ear:

¢ 3 Fifth Circuit re ae Fibreboard

As shown by the quotation from American Manu-

facturing (page 7 above) which the Fifth Circuit

Court’ of Appeals used as a basis for deciding the instant

“case, that Court has construed Fibreboard to’ stand for

the proposition that all decisions to subcontract or to go

‘ out of business are subjects of mandatory bargaining.

- This conclusion is made by the Fifth Circuit Court of

Appeals based wholly on Fibreboard despite the fact the

Supreme Court clearly said in Fibreboard that:

“We are thus not expanding the scope of mandatory

bargaining to hold, as we do now, that the type of

‘contracting out’ involved in this case — the re-

placement of eniployees in the existing bargaining

_. unit with those of an independent: contractor to

do the same work under similar conditions of em-

| _ ployment — is a statutory subject of collective

bargaining under § 8 (d}. Our decision need not

and does not encompass other forms of ‘ contracting

out’ or ‘subcontracting’ which arise daily in our -

complex economy.” 379 U. S. at 215.

Furthermore, the activity involved in the instant

case was not subcontracting at all but rather the com-.

plete closing down of an‘operation. It did not involve.

NS Sitch re wets 1 aitike pare an —_—-. ee Sore ewe ee

the substitution of an independant contractor to pro-

vide the same work on the Company’s premises and

_ under the Company’s ultimate authority as in Fibre-

_ board. What happened in the instant case is that the —

Company found it significantly more prefitable to buy

the product prewrapped from the’ supplier as all the

_Company’s other divisions did. In this situation the

Company no longer maintains any responsibility for,

nor any control whatsoever over the cheese packaging

‘activity.

In fact, the instant.case involves : a complete closing

_ down of an economic agtivity rathef than subcontract-

" ing, and should therefore be governed. by the principles

. . of this Court’s decision in Darlington Manufacturing

_ Co,, 380 U.S. 263 (1965). The Darlington case clearly .

“ stands for the proposition that even a partial closing of

"a business is not an unfair labor practice in’ the absence

_of a showing of anti-union métivation prohibited by

the Act. Although the Darlington case involved the

closing down of an entire plant, and Winn-Dixie con-

tinues to utilize that warehouse for other operations,

the fact remains that the Company is no longer per- .

forming any kind of cheese packaging operation, either

at that warehouse or at any other place. Thus, Winn-

Dixie has clearly gone out of the cheese packaging

_ business just as Darlington went out of the textile busi-

ness. Therefore, under Darlington there should not be a

finding of an unfair labor practice based on the partial

closing, unless it can be shown to have been motivated

as in American Manufacturing, by an anti-union moti-

vation. It has conclusively been shown that there was

no such motivation in the instant case. |

Both the Board and the Fifth Circuit Court of Ap-

peals have tried, in total disregard of Darlington, to

classify the Company’s

“12

closing down” iQ the cheese

a.’ packaging operation under the semantic heading of

“subcontracting”, and then, by invoking its own ex-—

tended construction of the Fibreboard holding, find an

(a) (5) violation on the part of the Company. The

term subcontracting is a very illusive one, subject to

many shades of meaning. However, the term as used in

Fibreboard clearly referred to. an activity that the Com-

pany had continued to perform, and which merely

amounted to the substitution of the Company’s em-

ployee with those of an independent contractor to do

the same work under the same conditions, and.on the —

same premises. In the instant case the Company com-

pletely discontinued the entire processing and packag- ¢

ing operation, and thereafter only handled the product

as a retail sales distributor to the consumer which has

always been. the Company’ S primary economicy func-

tion. |

Moreover, as the evidence has proven, for the’ Com-

. pany to have continued this operation it would have

had to invest a large capital outlay in order to make

the cheese packaging operation a profitable enterprise.

Surely this is the type of decision which this Court

specifically excluded ‘from the mre of Fibreboard .

when it said:

ANS

“Decisions concerning the commitment of invest-

ment capital and the basic scope of the enterprise _

are not in themselves primarily about conditions of

employment, though the effect of the decision may ©

be necessarily to terminate employment. If, as I think

clear, the purpose of § 8(d) is to describe a limited

area subject to the duty of collective bargaining,

those management decisions which are fundamental -

to the basic direction of a corporate enterprise or.

which impinge only indirectly upon senethcoiii

security should be excluded from the area.” (379

U. S. at 223). Concurring opinion. :

Petitioner maintains that the instant case provides a

* perfect example of such a “‘basic” management decision

about which eee should not have to bargain

with theunion.. © | ;

Even if Petitioner conceded, for the sake of argu-

ment, that it had a duty to bargain with the union

concerning how to mitigate the.“‘effects” of such a de-

cision with regard to such matters as possible transfers,

severance pay, and the like, management clearly had

the right to make its initial decision without any con-

sultation with the union. This right belongs solely to —

management since the decision itself does not. pertain

to “terms or conditions of employment”, but rather is

one which involves the basic functioning and operation

of the Company and only incidentally affects theicon-

ditions of employment. This case involved no anti-

_union animus. The Company’s decision: is clearly one

involving a management prerogative and not a manda- .

tory subject of bargaining. Petitioner submiits that it —

did not violate the Section 8 (a) (5) of the Act by not

consulting with the union about its decision to cease

the operation.

Thus, it is Petitioner’s contention that inthe instant

case the Fifth Circuit Court of Appeals has committed —

two basic errors. First, it has extended the meaning of _

the term subcontracting to include the Company’ S.

complete closing down of an operation. And second, it

has erroneously | applied. Fibreboard and American

Manufacturing to require management to bargain

- about all economic business decisions.

Nea 44%

I]. Conflict Among the Circuits -

‘Petitioner does not base his request for review solely .

on the conflict of the Fifth Circuit Court of Appeal’s

decision in the instant case with the meaning and intent -

of thé Supreme Court in the Fibreboard decision. Sev-

eral of the other circuit courts have examined the same

"questions involved in the instant.casé and resolved them

in favor of Petitioner, in direct conflict with the Fifth

Circuit Court of Appeals.

The instant case is the first one in which chi Fifth

Circuit Court of Appeals has clearly decided that: a

management decision to close down a portion - of a

Company’s operations, made solely for economic rea-

"Sons, is one which must first be bargained about with

the employees’ representative. Although the Court’s

_- prior decision in American. Manufacturing Company

of Texas, supra, seerns to stand for this same principle,

there is a very great difference in the factual situation. —

. involved. In American Manu facturing, the Company

‘was ‘found to have disbanded its trucking operation

in order to rid itself of the union. This illegal motiva-

tion clearly puts the Company in violation of the Act

under existing and well established precedent. There-

, fore, any language used by the Court in that decision _

pertaining to the mandatéry bargaining obligation of

an employer concerning a purely economic decision ©

was not necessary for the determination oft e. case and ©

thus merely constituted dicta. ’

Thus, the instant case, involving a purely * economic

decision” and the legal ramifications resulting there-

from in light of Pbibowd, was.a case of first it impres-

sion for the Fifth Circuit. Several other eircuits have

likewise been called upon to: decide whether similar

_ purely economic decisions were subjects of. mandatory

bargaining in abe of this Court’ s: decision in a Fibre-

board. 7

The Eighth Circuit has had occasion to decide two.

_» eases involving factual situations comparable to the _

ingtant case. In both cases that Court has reached a de- =

cision which. is exactly opposite to the Fifth Gircuit

Court of Appeals and is based for the most part on its —

divergent view as to the scope of the Fibrekoard de-

cision.

- The case of N.L.R.B. v. Burns. International Detec-

tive Agency, supra, p. 2, involved a ynit of guards

_ employed at Omaha, Nebraska. Tie Company. had

contracts to provide guard services to four custom-

. ers. Since two of: the customers had terminated their

contracts and a third man had given notice that. it

was about to terminate its contract also, the Com-—

"pany concluded that it could no longer operate eco-

ee nomically in~-the “Omaha: area. with ‘only the single |

‘remaining customer. It therefore terminated this con-

tract and closed its Omaha office. The Board held that

_ the Agency had committed an unfair labor practice by

terminating this contract without first bargaining with

_ the union about the decision. == 5 *.

. The Eighth Circuit Court of: Appeals sine this

ruling by the Board and stated its reasons why it did

not feel. that the Fibreboard situation was’ present,

which the Board had argued almost exclusively.

>. “In our present case, the employer had completely *

discontinued its. operation at Omaha. Unlike the

Fibreboard situation Burns is not continuing the .

- same work at the same plant under similar Conditions : ..

an employment. No form of contracting out or sub-

'- contracting is here involved. Burns for valid eco-

nomic.~“reasons has - withdrawn completely from | a

16 .

providing any services in the Omaha area.” 346 F, 2d

_ at90l.

and one in which the Eighth Circuit Court of Appeals’ .

decision is also in direct conflict with the Fifth Circuit

ae is N.L.R.B. v. Adams Dairy, Inc., supra, p. 2. F

‘In Adams, the Company found that its products dis-

tribution system-was not operating efficiently and felt

that it needed to change the operation. Thereafter for

putely economic reasons Adams decided to discontinue

the distributional part of its business altogether to con-

centrate on production. The effect of this decision was

"that all of the driver-salesmen were terminated and ‘the

Company thereafter gold its products through inde- - ~

pendent contractorswho in turn delivered the products

to. the ultimate consumers. Thus, the independent con-

tractors filled the same function that the Company’s

‘driver-salesmen had formerly provided.

The facts of this case are essentially the same as in the

instant_case. In both,

pletely discontinue a particular activity for purely

economic reasons. Both cases reflect a definite opera-

. tional change in the corporate and capital make-up of

the companies involved. This is greatly different from |

the situation in Fibreboard where the same function

(maintenance) was continued by the company and the

only change involvedthe substitution of workers to

, come into the plant and perform exactly the same work °

' formérly done by the company’s employees.

In a very well-reasoned opinion the Eighth Cireuit

‘ Court of Appeals pointed out the basic difference in

the Adams case (which holds equally well for the in-

stant case) that made the Fibreboard decision inappli-

cable. The court therein said:

=....°

cases a company decided to com-. ~

“In Adan Dairy there is a change in basic operating

procedure.in that the dairy liquidated that part of its

business handling distribution of milk products. Un-

like the situation in Fibreboard, jar was a change

in the capital structure of Adams Dairy which re-

sulted in a partial liquidation and a recoup of capital 7

investment. To require-Adams to bargain about its

decision to Paps. out the distribution aa of its busi- —

ness would significantly abridge its freedom to

manage its own affairs.. Bargaining is not contem-

plated in this area under the history and woage of

~ § 8(a) (5).”"350 F. 2d at 111.

It should be remembered that the Adams Deiry case

had been before this Court and was remanded to the

circuit court with explicit instructions to review its

previous decision in light of fibreboard decided subse-

quent to Adams Dairy. Thus, the final decision in |

Adams expressly reflects the Eighth Circuit Court’s

considered opinion as to the type of factual situation in

which the Fibreboard decision does not apply. After

re-examination of its initial decision in light of Fibre-

board, the Eighth Circuit Court said:

“Accordingly, this being only a partial closing, un-

stimulated by union animus, having its motivation

based solely in economics of operation, and not being

a substitution of one set of employees for another but -

an entire and independent operation, we reaffirm

our statements made in the original Adams Dairy

case.” 350 F. 2d at 1-13.

The Fifth Circuit Court of Appeals decision in thé

' instant case is likewise in conflict with the Third Cir-

cuit Court of Appeals over the interpretation of Fibre-

board. In the case of -N.L.R.B. v: Royal Plating & _

Polishing Co., supra, the company unilaterally closed 4

- down one of its two existing plants. The Board held

that the Company had violated Section 8 (a) (5) and

(1) of the Act by not first bargaining with the union

representative about the decision to close. In so ruling

the Board held that such a partial termination of oper-

ations is a mandatory subject of bargaining under Sec-

tion 8 (d) of the Act. The Fibreboard decision was

cited for the above. proposition. The Third Circuit

Court did not accept such an extension of the Fibre-

board doctrine, . and distinguished the two cases by |

saying:

“In the cited case. [Fibreboard] there was no change

in the economic direction of the company and the

_ same functions were to be performed by the. inde- ©

pendent contractor as were performed formerly by

the Company’s own employees. The decision of the

management in Fibreboard involved no decision’ re-

specting commitment of — investment.” 350

F, 2d at 195.

All three of the above cases were decided oan

to and after thorough examination of the Fibreboard

decision. The circuit courts-have long held that any

decision which materially changes the operations of a

corporation is purely one of management’s prerogatives

and not one that must be first bargained about with

aunion. This has been true even though these decisions

Have an “effect” on the terms and conditions of the

workers employment. Cf. Jays Foods v. N.L.R.B., 292

F, 2d 317 (7th Cir. 1961); and N.L.R.B. v. J. M. Lass-

ing, 284 F 2d 781 (6th Cir. 1960).

IIL N.LR.B.'s Departure From Fibreboard

Finally, the petitioner wishes to point out just how

far the Board has gone-in n expanding the principles of

Fibreboard to further emphasize the importance and

necessity of this Court’s speaking again on the subject

of an employer’s duty to bargain about purely economic

decisions.

Ostensibly under the authority of Fibreboard, the

Board is attempting tostablish a whole new doctrine

which holds that every decision that management

makes which even “affects” the terms or conditions of -

employment is a decision which under Section 8 (d)

must first be bargained about with the union repre-.

sentative. Although most of the circuit courts do not

“accept such an extension of the Fibreboard doctrine,

' the Fifth Circuit Court of Appeals is headed in that .

direction, as witnessed by its ruling’in the instant case. «

' Such a doctrine followed to its logical conclusion

would inevitably bring every business decision within

the scope of mandatory collective bargaining, since

_ virtually every business decision will have an “affect”

- either directly or indirectly on all employees of the

' Company. |

A perfect example of the Board’s pursuance of such

a policy as mentioned above can be found in Renton

News Record, 136 N.L.R.B. 1294 (1962). In this case

\ the Board held that an employer must bargain with the

union befdte deciding upon the purchase of new. and

more efficient machinery. For other examples of this

trend see Brown Transport Corporation, 140 N.L.R.B. |

954 (1963), Shell Oil Company (Detroit, Michigan),

149 N.L.R.B. 305 (1964), and American Oil Com-

pany, 151 N.L.R.B. 421 (1965).

. The doctrine urged by the Board involves a radical

change in the whole system of management and our

entire economic system. Such a change would logically

lead to the management of business by joint company-

union committees. Surely such an extended interpre-

tation of the Section 8 (d) bargaining obligation was

never intended by Congress. Moreover, the Board’s

doctrine is wholly incompatible with the limiting lan-

guage used by this Court in Fibreboard, and flies direct-

ly in the face of Justice Stewart’s concurring opinion

which said, in part:

“Yet there are other areas where decisions by man-~

agement may quite clearly imperil job security, or

indeed terminate employment entirely. An enter-

prise may decide to invest in labor-saving machinery.

Another may resolve to liquidate its assets and go out:

of ‘business. Nothing the Court holds today should

be understood as imposing a duty to bargain col-

lectively regarding such mangerial decision, which

) lie at the core of entrepreneurial control.” 379 U. S.

| at 223.

Petitioner contends that in spite of the clear limita-.

tions of the. Fibreboard decision, in: the instant case the

Board has been successful in persuading the Fifth Cir-

cuit Court of Appeals to accept this radical departure

from Congressional intent. Moreover, in accepting this

departure the Fifth Circuit Court completely disre-

garded the precedent in other circuits as set out above,

and as originally argued by Petitioner before it. Thus,

this departure will force corporate management to bar-

gaitr over matters which historically and practically

must remain exclusively under its control.

| | CONCLUSION

| ‘he the foregoing, Petitioner has set out three different

be and compelling reasons why this Court should grant

Certiorari and thereby review the facts and legal con-

clusions involved in this case. The Petitioner has pre-

sented to the Court the erroneous applications of facts

and legal precedent used by the Fifth Circuit Court of

Appeals in this case; second, the conflict which exists

among the circuit courts as to the extent to which

_ the Fibreboard decision restricts rfianagement in making

economic decisions concerning the operation of its busi-

ness; and third, the dangerous ‘trend of argument and

administrative and judicial precedent which the Board

has pursued under the auspices of Fibreboard.

For the above reasons, and particularly because of

the far reaching consequences of the Fibreboard de-

_ cision and the great degree of confusion that exists as

to its meaning, as evidence by the Fifth Circyit Court

'. of Appeals decision in the instant case, Petitioner re-

_ spectfully prays that this Court grant its Petition for

Certiorari. Not only will justice be served in the instant

case by such a decision, but also by establishing further

guidelines to define the Section 8 (d) obligation in the

area of mandatory bargaining issues, this Court will

greatly + facilitate the administration of the Nationl

Labor Relations Act by both the circuit courts of

appeals, and the: Board with senpect to this critical” °

provision:

Renracefully submitted,

itt HAMILTON & BOWDEN

1056 Hendricks Ave. By: .

Jacksonville, Fla. 32207 .

| (O.R.T. Bowden)

(David A. Bartholf)

CERTIFICATE: OF SERVICE

Copies served per separate certificate filled herewith. —

APPENDIX “A”

ner | IN THE

~--.YNITED. STATES COURT OF APPEALS

: FOR THE FIFTH CIRCUIT

No. 22433

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

Versus

WINN- DIE STORES, INC...

Respondent.

Petition for Enforcement of an Order of the National

Labor Relations Board, sitting at Washington, D.C.

(May 19, 1966.)

Before PHILLIPS,* JONES and BROWN, Circuit Judges.

PHILLIPS, Circuit Judge: This is a proceeding to en-

- force an order of the National Labor Relations Boafd.'

Winn-Dixie Stores, Inc.,? the respondent, owns and operates

divisions. Each is a complete operational unit, performing

all the functions of buying and merchandising, including

warehousing. The head. of each division has final authority

with respect to administration and policy’ in his division.

*Of the Tenth Circuig, sitting by designation.

1 ‘Hereinafter called the Board.

a: Hereinafter. referred to as Winn-Dixie.

a multistate chain of. public food markets. It has eight |

ba Aneel AA hgh Renee pba

Winn-Dixie also maintains what is. known as a headquarters

staff, composed of specialists in the field of public market

operations and merchandising, including transportation and

warehousing. These specialists travel throughout Winn-

Dixie territory and elsewhere, observing methods employed

in Winn-Dixie stores and other like stores, carry on studies;

and make recommendations to the several divisions. The

division head may adopt,or not adopt such recommendations.

We are here concerned only with the Jacksonville Division .

éf Winn-Dixie, which embraces 95 stores, located in north,

central, and western Florida and southern Georgia. J. W.

Nease, a vice-president of ne was the head of the

Jacksonville Division. *

-In September, 1961, the Meat nr Packinghouse

and Allied Food Workers Union, Local 433, began a drive

to organize an appropriate unit of the meat processing, meat

packaging and cheese packaging oe in Winn-Dixie’s

Jacksonville warehouse.

On October 26, 1961, the Union had obtained authoriza-

tion cards from 22 of the 34: employees i in that unit and on

that ‘date advised Winn-Dixie of its status as representative

of the unit and requested recognition. On November 2,

1961, the Union sent Winn-Dixie a list of the names of the

employees who had. signed authorization cards. On Novem-

ber 3, 1961, Winn-Dixie advised the Union that it did not

believe the Union represented a majority of the employees

in the unit and refused ‘recognition unless and until certified .

by the Board. Thereupon, the Union posted a. list of the

names of the employees who had signed cards on the bulletin

board in the warehouse. Winn-Dixie supervisors urged the

employees to scratch their names from the list and engaged

in other unfair labor practices. That resulted in an unfair

labor practiée case before the Board,* which culminated in an

order of the Board, dated October 3, 1962, directing Winn-

Dixie to bargain with the Union. On March 27, 1963, the

Board: filed in this court .its petition for enforcement of

3 Hereinafter called the Union. -

4 In that proceeding the examiner found that re ee desired

to postpone, if not entirely evade, its duty to bargain with the Union

‘and had no intention to bargain.

24 _.

- that order. On November 19, 1963, this court ordered

enforcement of the Board’s order. Winn-Dixie Stores, Inc.,

- 138 N.L.R.B. 1355, N.L.R.B. v. Winn-Dixie. Stores, Inc.,.5

Cir., 324 F.2d 502. one 0 a

Following the advent of open-air refrigeration display

cases, marked changes took place in the merchandising of °

. perishable foods, meats, cheese and like products, especially |

in the prepackaging of them for display and sale to the.

. ultimate consumer. | ’

In 1940, Winn-Dixiegstarted packaging cheese in trans-

parent wrappers, using cellophane, saran, or other trans-

parent material and displaying it in open-air refrigerator

display cases. \ i |

In early 1961, the Jacksonville Division, after some

experimentation, began a cutting and wrapping of natural

cheese operation in its warehouse at Jacksonville, to pro-

yr random-weight packaged cheese for the stores in that

‘division. It purchased natural cheese in blocks of 40, 60,

or 640 pounds, sliced it in random sizes or weights to give

a customer a selection as to size of package, hand-wrapped

it in plastic film carrying Winn-Dixie’s label, sealed it with

heat, weighed the package, and marked the weight and price

- on the package. | ; :

- In 1962 and early 1963, the headquarters staff questioned

the operation at the Jacksonvilie warehouse. By October,

1962, the other divisions were buying all their prepackaged

random-weight natural cheese from cheese firm ‘proces-

sors and finding it very satisfactory. After the Jackson-

ville Division had made an analysis and study of its warehouse

operation, it decided in April, 1963, that from a cost, as

_ well'as a merchandising standpoint, it would be more ad-

vantageous to purchase prepackaged random-weight natural

_ cheese from cheese -processors. About April 12, 1963, the

Jacksonville Division, for lawful business reasons, discon- .

' tinued its-warehouse cutting and prepackaging of cheese.and’

thereafter procured prepackaged random-weight natural

cheese from Kraft and other cheese processors. The instant

case arises out of the discontinuance by Winn-Dixie of its

_. cheese cutting and prepackaging operation in its warehouse

at Jacksonville. . | ,

25.

‘ . G° e

‘ At the time it. closed such operation, the Jacksonville

Division had 10 employees in its warehouse cheese prepackag-

ing operation. It transferred four of such employees, all men,

to its beef processing operation and advised the other six ~

employees, all fernales, that they were being laid off perm-

anently. It did not advise the Union it was about to discon-

tinue its cheese packaging operation, and neither did it

discuss with the Union the closing of thé operation, or

whether the six employees laid off could be transferred to

other jobs with Winn-Dixie. All but one of the six had there-

tofore worked in Winn-Dixie stores. —

The six employees laid off inquired as to dito: dey

could be transferred to other jobs and were advised if. there

was an opening they would be called. -At the time of the .

hearing, they had not been offered other employment. The

manager of the Jacksonville Division testified that respon-

dent had studied the matter of suitable: spots for such Six

employees, but had been unable to find jobs for them.

The Union representative did not discuss the matter with

respondent, because he believed it would be futile to do so.

Based on charges that Winn-Dixie, at. its Jacksonville

Division, had failed to bargain with the Union’before closing

its warehouse. cheese prepackaging operation, a complaint was

filed against Winn-Dixie, in which it was alleged that re-

spondent used to bargain with the Union as the

_ representatiVe of the employees in the bargaining unit,.com-

posed of the employees i in the meat and cheese processing and

packaging operation in the Jacksonville warehouse, and that

* on’April 12, 1963, it had unilaterally discontinued its cheese —

cutting and prepackaging operation and unilaterally trans- —

ferred four of its employees i in such operation and terminated

the employment of six of its employees in such operation.

Sliced natural cheese is a highly perishable product. It is

subject to contamination by mold, rendering it unfit for

food. The mold is caused by bacteria in the air, on the clothes

or persons of employeés, or on other shings with which the

cheese comes in contact.

In. 1961, the Kraft Food Company éometrucced and has

since operated a pleat at es re ee. deyoted

26. ‘ sr |

solely to cutting and packaging random-weight natural |

cheese and things incidental to such an operation.

The cheese is cured ‘in blocks of 40, 60, or 640 pounds. )

- They ate. stored’ in coolers where: proper temperature: is"

maintained. Before being removed to the cutting room the ~

- blocks are cleaned and any discoloration and any mold is

_ removed. The blocks are clean and free from contamination

_ when they enter the cutting room. The cutting room is closed .

--and the air therein filtered and maintained at a constant

temperature. Sanitary precautions are taken with respect to.

~ the employees -who handle the cheese. They wear white coats.

air in the room is. sprayed periodically with’a solution to

kill bacteria. The cheese is cut with an air operated wire

cheese cutter, which operates automatically, and the ‘cut

Portions are deposited on a roll of paper. The cut cheese is

- then hand-wrapped in transparent material. In that final

operation, the interior of the package is flushed with inert

gas to force out the « oxygen and any mold. bacteria in the

package. The gas flush is a patented process. Kraft owns the

patent. The result is a packaged cheese that will have a shelf

life, that is, a freedom from mold, for 60 days. Kraft guaran-

tees a 60-day shelf life: . :

Cutting the cheese in random Sica gives a customer

a wider selection with es to the. amount of cheese he

purchases, ~

_ Only center cuts are ond =e cuts are not < panaes .

Crumbs are produced when blocks of cheese are cut. Kraft:

utilizes: the crumbs and avoids loss from crumbling, '. ,

Because of the longer shelf life, larger stocks can be carried |

‘on display shelves and understocking avoided. -

Kraft placed Winn-Dixie labels on. the natural cheese it

prepackaged for Winn-Dixie and stamped the weight and the

. price fixed by Winn-Dixie on each package.

While Winn-Dixie ‘endeavored to maintain sanitary

conditions where’ it carried on its cutting and packaging |

of its natural cheese.at its Jacksonville warehouse, the cheese

it cut and prepackaged had a shelf life of only 10 to 12 days.

As a-result, its.shelves at times were understocked and it |

suffered losses of cheese from mold. It was not able to utilize

Serre acer

cheese crumbs and the crumbs were a total hie It also pack

_ agedend cuts: —

At the time’ the Jacksonville Division discontinhed its

cutting and prepackaging of cheese, the price of natural

cheese prepackaged by Kraft and other processors had been -

_ reduced because of growing competition among the proc-

essors, and the Jacksonville. Division could purchase pre-_ ec

packaged cheese from, Kraft at substantially less cost than _

the cost of the cheese-purchased by the Division inblocks

and prepackaged by it, Longer shelf life enabled the Division

to maintain adequate stocks on its shelves without danger of 3

loss from, mold, which made for better merchandising, i in- 9%"

creased sales, and larger profits. - a

- _.It was not practical or economically feasible for the Jick-

| sonville Division, with its comparatively small operation, to

install the n theans, processes and practices to maintain sanitary

conditions in a cutting and prepackaging plant, like Kraft

did in its Mississippi plant. .

The trial examiner deinih that uncontroverted evidénce

. established that the respondent “discontinued its. cheese

a provisions. It did not require the reestablishment of respon-

operation for sound business reasons, namely, the adoption» _

dising its prepackaged cheese products to the public, rather

than any opposition to organization.” The. Board concurred

in that finding. But the examiner found, as did the Board,

_ that respondent violated “Section 8 (a) (5) and (1) of the

Act.when it discontinued the cheese operation without prior

' notice’ to, or consultation with, the Union.” The examiner

also found that “the discharges were not violative of Sec-.

tion 8(a) (3).” The Board made no finding with respect.

to a violation of § 8 (a) (3).°

The order of the Board contained the ysual negative

dent’s cheese operation at the Jacksonville warehouse. It

ordered that the tac take he following affirmative -

. action: '

at osrhuas dik ous acai auaiiiienae ce da aaa,

tinued operation or the reinstatement with back pay of the six employees

" whose employment was discontinued.

2 cere: oor serra pene:

eB 28

““(a) Offer to, and upon requilt, bargain collec-

tively with, the Union concerning the resumption -

of its cheese processing and packaging. operation,

and if no agreement is reached with respect thereto,

bargain collectively with the Union concerning the

effects of the disGontinuance of its cheese process-

ing and packaging operation on the employees i in.

the. above-described unit.

, “(by Make Flo Heasley, Ossie Leggett, Mabel

‘"* Morrison, Polly Ramsey, Evelyn Spillers, and :

. Patricia Spires whole for- any loss of pay suffered

by them** * *,” .

It also contained the usual requirements. respecting the”

posting of notices and sporting of steps taken to ple al

with the order. :

It will be noted that the enitier decision and- onde of

the Board, by which it certified the Union as the bargain-

ing agent of the employees in the unit, found Winn-Dixie

had. violated § 8(a) (5) of the Act by failing to bargain

with the Union, and ordered it so to bargain, was entered

October 3, 1962; that Winn-Dixie did ‘hot assent to such

certification and refused to comply with the order to bar-

gain; that on March 27, 1963, the Board filed its petition

in this court for enforcement of that order; that this ‘court,

on December 1}, 1963, handed down its decision that such

order should be enforced; and that the failure to bargain,

upon which the order of the Bdard. in the instant case is

based, occurred during the period the proceedings for en-

” forcement of the earlier order were pending in this court.

\ Winn-Dixie contends it was under no duty to bargain:

- with the Union during the pendency of such proceedings.

Section 10(g) of ke Act (29 U.S.C.A.’ § 160(g)) ex-

pressly provides: “The commencement of proceedings under

6 * The order provided that the back pay liability should cease upon’

the occurrence of apy of the following conditions: “(1) reaching mutual

agreement with the Union relating to the subjects which t is

herein to bargain about; (2) bargaining to a bona fide impasse;

- (3) the failure of the Union t commence negotiations within 5 days of

the receipt of the Respondént’s notice of its desire to bargain with the

Union; ™) the failure of the Union to bargain thereafter in good faith.”

*.: e

subsection (e) or (f) of this section shall not, speci-

" Seay qntass Gy tin quien, qpesene os ety the Board’s

order.”””

We held Wins Dihais wai ant cllovsd of tes duty va chey

the order to bargain during pendency of the proceedings to

enforce the earlier order.*

In. N.L:R.B. v. American Manufacturing Company of

Texas, 5 Cir., 351 F.2d 74, the facts were these: American

was a manufacturer of oil field pumping equipment. For

‘many years prior to 1960, it had maintained a motor truck

transportation department, by means of which it delivered its

products to its customers throughout the United States

and Canada. On April 10, 1960, Local 47 of the International.

_ Brotherhood of Teamsters, Chauffeurs, Warehousemen'and_ -

- Helpers of America? became the bargaining representative .

, of the truck’ Mrivers in American’s transportation -depart-

ment. On April 11, 1960, Local 47 notified Ametican of that

fact: On Jung,18, 1960, without discussion or consultation

with Local 47, American posted a notice to the drivers that *

the transportation department was being abolished and chat .

all of jts motor truck transportation would be performed by .

C. & H. Tr Company, a certified, nonscheduled car-

rier. Two of truck ivers accepted other tendered em-

ployment. One ‘refused other tendered, employment. All

the others were laid off. Thereafter, and in September,

, 1960, American sold all of its trucks and related

equipment... The Board found American guilty of unfair

labor practices and ordered it to “(1) Resume trucking

operations which had been discontinued in June 1960; (2)

Offer reinstatement to all discharged drivers to their former

or substantially equivalent positions; and (3) Pay drivers

back pay from date of discharge * * *.” .

In holding the order, as modified by the court, should

be enforced, he cout at page 0 npr id

7 ‘Subsection (e for proceedings to enforce the Board’s

order in a court apps of the United Sees and becom (0,

a review of a final a ee

' of any person aggrieved thereby

& See Old King’ Cole, Inc. v. NLRB, 6 Cir., 260 F.2d 530, $32.

9 Hereinafter called Local 47.

30.

“Of course it is now clear that the‘Board was cor-

rect in finding that the Employer must negotiate |

the decision to subcontract. Quite apart from anti- °

union conduct; or here the claim of economic justi-

fication, the decision to subcontract work isa .

subject for mandatory bargaining.”

In the instant case, we think when Kraft or another pro-

cessor receives.an order from’Winn-Dixie for sliced and

prepackaged natural cheese and the processor selects a block

or blocks of cheese to be sliced and prepackaged in containers -

bearing Winn-Dixie’s label, with the weight of the package

‘ to be indicated thereon and with the price as directed by

‘Winn-Dixie to be stamped thereon, the block or blocks of

cheese so selected. become appropriated to the’ ‘Winn-Dixie

purchase contract. We think the situation is materially .

different from one where a processor offers and sells pre-

packaged‘natural cheese bearing the processor’s label:to retail

purchasers ‘generally. Had Winn-Dixie purchased blocks of

natural cheese and employed a processor as an independent

contractor to slice and prepackage it in packages bearing its

label, with the weight and the price directed by Winn-Dixie

stamped thereon, there could be no doubt the processor

would be performing the same work as Winn-Dixie had

theretofore performed with its own employees in its ware-

house. We see no material difference in the case we have

just hypothesized and the facts in the instant case, after the

processor selects the block or blocks of cheese to fill a Winn-

Dixie special order. Likewise, wé see no material difference

in the facts in the instant case and the American’ Manufac-

turing Compan case, if, as indicated in the opinion in the,

latter case, anti-union conduct and economic justification

may be laid aside in reaching the ultimate detision.

While there was a duty on the part of Winn-Dixie to

consult and bargain with the Union as the employees’

representative before discontinuing its cheese cutting and

prepackaging operation at its Jacksonville warehouse, we.

do not think at this late date it should be required to bargain

with the Union as to its reestablishment..That, because under

the facts proven by \uncontradicted evidence, we think

Winn-Dixie, for good and sufficient reasons, would un-

doubtedly refuse to reestablish such operation and that to

bargain with respect to such reestablishment would be a mere

“exercise in futility.”!° The order should be modified so as _

to eliminate that requirement. ;

On the authority of the American Danabariaadie Com-

pany case, which we feel impelled to follow, the order of

the Board as so modified will be enforced.

So ordered.

JONES, Circuit Sule dimeating:

The facts, as stated by the majority, appear to me as

the disclosure-of a situation clearly within the exclusive pre-

rogatives’ of management in all of its phases. ‘Therefore, :.

DISSENT.

Yo See N.L.R.B. v. American Manufacturing Compaay of Texas, 5 Cir.,

351 F.2d 74, 81. 5:

| APPENDIX “BY

UNITED STATES COURT OF APPEALS ~

| FOR THE FIFTH CIRCUIT

NaTIoNat Lazor RELATIONS Boarp, ). :

Petitioner, ; :

v. ae » No. 22433

Wwine-Dene Stores, INc.,

Respondent.

DECREE

Before: Phillips, * Jones and Brown, Circuit Judges.

THIS CAUSE came on to be heard upon the pe-

tition of the National Labor Relations Board to enforce

its order dated June 26, 1964, directed against the

above-named Respondent, Winn-Dixie Stores, Inc., its

officers, agents, successors and assigns. The Court heard

thas considered the briefs and transcript of record filed

in this cause. On May 193.1966, the Court, being fully

advised in the premises, handed down its opinion grant-

ing enforcement of the Board’s said order as modified.

In conformity therewith, it is hereby

ORDERED, ADJUDGED AND DECREED by

cuit that Winn-Dixie Stores, Inc., its officers, agents,

successors, and assigns, shall:

° iva * Of the Tenth Circuit, _— by en

1. Cease and desist from:

(a) Refusing to bargain collectively with Meat

Cutters, Packinghouse and Allied Food Workers Union,

Local 433, Amalgamated Meat Cutters and Butcher ~

Workmen of North America, AFL-CIO, as the ex-

clusive representative of all of its employees in the

appropriate unit comprising all employees in the meat

and cheese processing and packaging department em-

ployed at the Respondent’ s warehouse in’ Jacksonville,

Florida, with respect to wages, hours, and other terms

and conditions of employment.

(b) Unilaterally subcontracting or discontinuing

_unit work, or otherwise unilaterally changing the °

wages, hours, and other terms and conditions of em-

ployment of unit employees without prior bargaining

with the above-named Union concerning such decision

and the affects thereof.

with, restraining, or coercing its employees in the exer-

' cise of the right to self-organization, to form labor

‘ organizations, to join or assist the above-named, Union,

or any other labor organization, to bargain collectively

through representatives of their own choosing, and to

engage in concerted activities for the purposes of col-

lective bargaining or other mutual aid or protection, as

guaranteed im Section 7 of the Act, or to refrain from

any and all such activities.

2. Take the following affirmative action which ‘the

Board has found will effectuate the policies of the Act:

(a) Offer to, and upon request, bargain col-

lectively with, the Union concerning the effects of the

. discontinuance of its cheesé processing and packaging

operation on the employees in the above-described unit.

(b) Make Flo Heasley, Ossie Leggett, Mabel

| 34

Morrison, Polly Ramsey, Evelyn Spillers, and Patricia

_ Spires whole for any loss’of pay suffered by them in

- the manner and under the conditions and circumstances

_ set forth in the section of the Board’s Decision entitled

“The Remedy. ” |

to the Board and its agents, for examination and copy-_

' ~ ing, all payroll records, social security payment records,

timecards, personnel records and reports, and all other:

rights of reinstatements under the terms of this Decree. —

(d) Post at its warehouse in Jacksonville, Flori-

da, copies of the notice attached hereto, marked Ap-

pendix. Copies of said notice, to be furnished by the

Regional Director of the National Labor Relations~

Board for the Twelfth Region, (Tampa, Florida) shall,

after being duly signed by an official representative of

_ the Respondent; be’posted by it immediately upon re-

ceipt thereof, and be maintained by it for 60 consecu-

tive days thereafter, i in conspicuous places, including all.

places where notices to its employees are customarily

posted. Reasonable steps shall be taken by the Repon-

dent to insure that said notice is not altered, defaced, or

covered by any other material.

(e) Notify the aforesaid: Regional Disectes in

writing, within 10:days from the date of this Decree,

what steps the Respondent has taken to comply here-_

with. = ye .

ENTERED June 10, 1966

‘(ORIGINAL FILED — JUNE 10, 1966) _

| APPENDIX

NOTICE TO ALL EMPLOYEES -

PURSUANT TO

A Decree of the United States Court of Appeals en-

forcing as modified an order of the National Labor Re-

lations Board, and in order to effectuate the policies of

the National Labor Relations cas as amended, “we

hereby notify our employees that:

WE WILL NOT refuse to bargain collectively with.

MEAT CUTTERS, PACKINGHOUSE AND AL- —

LIED FOOD WORKERS UNION, LOCAL 433,

AMALGAMATED MEAT CUTTERS AND

BUTCHER WORKMEN OF,.NORTH AMERICA, -..

“AFL-CIO, as the exclusive representative of all em-

ployeés in the appropriate unit comprising all em-

ployees in the meat and cheese processing and

' packaging department at our warehouse i in Jackson-

ville, Florida.

WE WILL NOT unilaterally subcontract or discon-

tinue our cheese processing and packaging operation

_ or otherwise unilaterally make changes in the wages,

hours, and other terms and conditions of employ- ,

without prior bargaining with the aforesaid Union.

WE WILL NOT in any like or related manner, |

interfere with, restrain, or coerce our employees in

the exercise of the right to self-organization, to form

labor organizations, to join or assist the above-named

vane or any other labor organization, to bargain

collectively chromgh representatives of their own

choosing, and to engage in concerted activities for

+ the purpose of collective bargaining ‘or other mutual

or protection, as guaranteed in Section 7 of the

Act, or to refrain from any and all such activities.

~ WE WILL, upon request, bargain collectively with

~ the above-named: Unioif'es the exclusive representa-

> tive of all employees in the aforesaid unit with re-

+ spect to the effects of our decision to discontinue our

ie processing and packaging operation. .

* WE WILL make Flo Heasley, Ossie Leggett, Mabel

- Morrison, Polly Ramsey, Evelyn Spillers,' and Pa-

.” tricia Spires whole for any loss of pay suffered by

‘-. them as a result of failure and refusal to bargain with

. the aforenamed Union concerning the discontinu-

> ance of our processing and packaging operation.

“Winn-Drxte Stores, INc.

(Employer)

. (Representative) (Title)

-’ This notice mustremain posted° for 60 consecutive

days from the date of posting, and must not be altered,

‘defaced, or covered by any other material.

, Employees may communicate directly with the

Board’s Regional Office, Room 706, Federal Office

Building, 500 Zack Street, Tampa, Florida 33602

(Tel. No. 228-7711), if they have any question con-

cerning this notice or compliance with its provisions.

UNITED STATES COURT OF APPEALS °

FOR THE FIFTH CIRCUIT -

NATIONAL LABOR RELATIONS Bonin, Ay .

Petitioner,

_ ae } No. 22433

Winn-Drx Stores, ec. Tae

Respondent.

CERTIFICATE OF SERVICE

“The undersigned certifies that one copy of the . .

Board’s proposed decree in the above case has this day

been served by first class mail upon the — party

at the address listed below:

-HamiLton, BowDEN & COFFMAN ~

_ Att: O,R.T. Bowden, Esquire

1056 Hendricks Avenue . _

Jacksonville 7, Florida ‘

/s/ MARCEL MALLET-PREVosT:

Marcet MALLET-PREVOST

Assistant General Counsel

National Labor Relations Board.

_ Dated at Washington, D. C.

_ this 3 1st day of May, 1966.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.