Ray's Liquor Store

26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Henry Marx and Saul Greenburg, d/b/a Ray's Liquor Store and Retail Clerks Union, Local 1222, Retail Clerks International Association , AFL-CIO. Case 21-CA-13879 May 24, 1976 DECISION AND ORDER BY MEMBERS FANNING, PENELLO, AND WALTHER On February 9, 1976, Administrative Law Judge James S Jenson issued the attached Decision in this proceeding Thereafter, Respondent filed exceptions and the General Counsel filed an answering brief Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Henry Marx and Saul Greenburg, d/b/a Ray's Liquor Store, San Diego, California, its agents, successors, and assigns, shall take the action set forth in said recommended Order DECISION STATEMENT OF THE CASE JAMES S JENSON, Administrative Law Judge This case was heard before me in San Diego, California, on Decem- ber 10, 1975 The complaint, which issued on October 2, 1975, pursuant to a charge filed on August 8, 1975, alleges a violation of Section 8(a)(5) and (1) of the Act in that since on or about July 22, 1975, Respondent has failed and re- fused to execute a written collective-bargaining agreement embodying the terms and conditions of an agreement reached between Respondent and the Union Respondent denies the Union made a timely acceptance of its final offer and now conditions the signing of an agreement upon written assurance by the administrators of certain trust funds that they will allow Respondent to make contribu- tions to said trusts until May 31, 1976, in the same amounts Respondent paid into the trusts on April 1, 1975 All par- ties were afforded full opportunity to appear, to introduce evidence, to examine and cross-examine witnesses, to argue orally, and to file briefs A brief was filed by the General Counsel and has been carefully considered Upon the entire record in the case, and from my obser- vation of the witnesses and their demeanor, I make the following FINDINGS OF FACT I JURISDICTION Respondent, a partnership, is engaged in the sale of liq- uor and grocery items in San Diego, California During the past year, Respondent's gross revenue was in excess of $500,000 and it purchased and received goods valued in excess of $5,000, which originated outside the State of Cali- fornia Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act II THE LABOR ORGANIZATION INVOLVED Retail Clerks Union, Local 1222, Retail Clerks Interna- tional Association, AFL-CIO, is a labor organization with- in the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES Chronology of Events Since about 1964, Local 1222 has been the collective- bargaining representative of all employees employed by Respondent, excluding guards, professional employees, and supervisors as defined in the Act, a unit which Re- spondent admits is appropriate for collective-bargaining purposes The most recent executed agreement was effec- tive from April 1, 1972, to and including March 31, 1975, and from year to year thereafter unless notice to alter, ter- minate, or amend the agreement was given as provided therein Although not a part of the record, timely notice to either alter, terminate, or amend the agreement was appar- ently given, and Norman E Jones, on behalf of Respon- dent, and Robert Ryder, on behalf of the Union, entered into contract negotiations On June 3, 1975,1 Jones wrote Ryder the following letter This is in regard to the above subject matter and our meeting in your office in the morning of June 2nd After a long discussion with our client, the Compa- ny would propose the following for a new one (1) year agreement I Term of Agreement June 1, 1975, to May 31, 1976 2 Language of the old Agreement that expired be- tween the parties except as modified herein 3 All payments into any trusts be the same amounts as the Company paid on April 1, 1975, for the remainder of the agreement until May 31, 1976 4 Wages All employees on the payroll as of June 1, 1975, to receive a bonus payment of 15¢ per hour for all hours worked from November 4, 1974, to and 1 All dates herein are in 1975 unless otherwise stated 224 NLRB No 5 RAY'S LIQUOR STORE including April 1, 1975 However, said employees shall retain the rates they were paid on November 4, 1974, until the end of the Agreement on May 31, 1976 5 All new employees hired after June 1, 1975, shall start at the rate of $3 00 per hour and be raised 100 per hour every thirty (30) calendar days until they reach the rate of $4 20 per hour (after one (1) year of ser- vice) The above proposal is open until the close of busi- ness on June 13, 1975, and if we do not hear from you in writing that you have either accepted or rejected the above offer, by that date, then we will consider that the parties have come to an impass (sic) On June 6, Ryder responded with the following letter In reply to your letter dated June 3, 1975, Mr Ad- ams and I presented your last proposal to the member- ship on June 5th and the results are as follows (1) Items 1, 2 and 3 - accepted (2) Items 4 and 5 - rejected The reasons for the rejection are as follows (1) In Item 4, the 15¢ per hour proposed bonus pay- ment does not become and remain a part of the employees hourly rate of pay (2) In Item 5, we have expressed to you on numer- ous occasions that the present administration of this Local Union would not be agreeable to creating a "grandfather rate" The reasons for this are that we feel this could very well lead to discriminatory ac- tions being taken against our present members and secondly, even to the possibility of the company trying to find reasons to terminate them Mr Jones, we feel that this Local Union has been more than reasonable in its understanding of your clients economic situation Therefore, we feel that the employee's request for you to delete Items 4 and 5 is not unreasonable We would appreciate a reply as soon as possible On June 19, Jones wrote the following letter to the Union, which was received June 23 This is in regard to the above subject matter and your last letter of June 6, 1975 The Company feels that they have given the Union their last and best offer as set forth in our letter to the Union, dated, June 3, 1975 You are aware that all stores in Ray's area are non- union and said firm should be a party to the Liquor Agreement rather than the chain-store agreement, but your Local would not agree to accept Rays' into and under such Agreement Therefore, the last offer of the Company is the only one they feel they can live with for the next year peri- od On June 27, Jones responded to the Union's letter of June 23, as follows 2 This is in regard to your letter of June 23, 1975, on the subject of Ray's Liquor Store and certain funds 2 The Union's letter of June 23 is not a part of the record 27 not being paid to certain Trusts As you are aware, both the Union and Company have cancelled the Agreement between the parties and it is the Company's understanding from the trust doc- uments that a Company not under contract with the Union can not pay into such funds Also, that the trusts will not accept such payments until an agree- ment has been reached and a signed copy is sent to their office Therefore, until a new agreement is reached be- tween the parties as set forth in the Company's last and final offer, the Company cannot and will not pay into funds On July 2, the Union sent the following Western Union mailgram to Jones THIS WILL SERVE TO ADVISE YOU THAT THE MEMBERSHIP EM PLOYED BY RAYS LIQUOR HAVE RATIFIED THE COMPANIES PRO POSAL AS OUTLINED IN YOUR JUNE 3 1975 CORRESPONDENCE THIS IS WITH THE UNDERSTANDING THAT IN REFERENCE TO ITEM 3 TRUST FUND CONTRIBUTIONS THAT THIS WILL BE EFFECTIVE FOR THE ENTIRE OF THE AGREEMENT JUNE 11975 TO MAY 31 1976 Jones responded with the following letter dated July 22 This is in regard to your mailgrams, dated, July 2 and 14, 1975, on the matter of Ray's Liquor Store In answer to your letter of July 2nd, the Union did not accept the offer as set forth by the terms of our offer to the Union dated, June 3, 1975 Further, we have been informed that the amounts paid into the trust will have to be raised from the amounts as set forth in the old agreement, and this the Company will not agree to On July 24, Ryder responded to Jones' last letter as fol- lows In reply to your letter dated June 22, 1975, I have the following remarks 1 Regarding the second paragraph which states, in part, " the Union did not accept the offer as set forth In our mailgram to you dated July 2nd, the Union notified you that the membership had ratified "the company's proposal as outlined in your June 3, 1975 correspondence" 2 As to your remark concerning trust fund contri- butions We have contacted Mr Glass at the trust fund of- fice and he has informed us that no one there had ever talked to Ray's Liquor, or any representative of the company, concerning the trust fund contributions Your remarks concerning the amounts is a complete mystery to us, due to the fact that the amount of con- tributions to the specific funds are the same now as they were so stated in your June 3rd proposal, " same amounts as the Company paid on April 1, 1975, In closing, I am completely amazed at this reaction to our members' ratification of your client's last pro- posal If I am misreading your intentions, please ac- cept my apology, but if the apology is not in line, 28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD forget it and be further advised that (a) If this Local Union has not received a commu- nication from you by the close of business on Wednes- day, July 30, 1975, we fully intend to file bad faith bargaining against your client and also take the appro- priate court action we deem necessary We will await your reply Jones' July 31 reply to Ryder is set forth below This is in regard to a letter from Mr Ryder, dated, July 24, 1975, in the matter of Ray's Liquor Store If you will read the letter from the undersigned to the Union, dated, June 3rd, the time limits for the offer was not met as well as the frozen payments to the trusts for the one (1) year period of time We have talked to two (2) persons at the trust as well as two (2) persons from the Food Employers Council and all agree that the payments into the re- tirement fund will have to be increased just to comply with the new pension act I also find this is true with a fund that I am involved with in the food industry in another area Therefore, the Union can not agree to freeze the amounts as the trusts will not let them do so for the one (1) year period of time and the Company will not agree to allow the Trustees to raise the rates during the term of the agreement as the proposal was no increas- es during the term of the agreement On August 8, the Union filed the charge initiating the complaint The General Counsel also introduced uncontradicted testimony to the effect that one of Respondent's owners told an employee in November that "it doesn't matter what they [the Board] decide The government can't make me sign anything " The General Counsel contends that by his June 19 letter to the Union, Jones renewed Respondent's June 3 propos- al, and that on July 2 the Union clearly and unequivocally accepted all of the terms in the June 3 proposal, and that Respondent has refused to bargain thereafter by refusing to sign the agreement and further seeking to modify the terms agreed upon before signing Respondent contends it has not refused to bargain since the Union failed to make a timely acceptance of its final offer which expired at the close of business on June 13 Respondent also contends the Union is not able to comply with item No 3 in its June 3 final proposal that "all pay- ments into any trust be the same amounts as the company paid on April 1, 1975, for the remainder of the agreement until May 31, 1976," as evidenced by testimony of the ad- ministrator of the funds to the effect that the trust provi- sions in the new amendments to the master agreement be- tween the various Retail Clerks Local unions and the Food Employers Council, Inc, provides for an increase in fund contributions, and that the administrator was not aware that any employer had ever made payments into the vari- ous funds which differed from the master agreement, or that Local 1222 had made a request of the trustees of the funds for a variance in the amount of payments in Respondent's case Respondent contended at the hearing that article XXIV, 3(a), (iv) found at p 14 of Respondent's Exhibit 1, consisting of the modifications to the master agreement between the Food Employers Council and the various Retail Clerk local unions, which was signed on September 1 (long after the Union accepted Respondent's June 3 proposal), applied to Respondent and meant that the trustees could unilaterally change the contributions which Respondent might agree to Respondent asserts now, and in a letter dated August 8 from Jones to Ryder, which the Union denies it received, that "as soon as the Union gives us a letter from both trusts that the Employer can pay only the amounts we offered to the Union-Em- ployer plans for the one (1) year period of time, then we will sign the agreement " Analysis The collective-bargaining unit and the Union's represen- tative capacity are not in dispute The complaint alleges that on or about July 2, Respondent and the Union reached agreement on the terms of a new collective-bar- gaining agreement, that the Union has requested Respon- dent to execute a written collective-bargaining agreement embodying the terms agreed upon, and that on and after July 22 Respondent has refused to execute said agreement in violation of Section 8(a)(5) and (1) of the Act Section 8(d) of the Act defines collective bargaining as including "the execution of a written contract incorporat- ing any agreement reached if requested by either party " The single issue here is whether the parties reached an agreement which Respondent has refused to honor On the basis of all the evidence, it is my conclusion that the General Counsel has proven by a preponderance of the evidence that an agreement was reached and that Respon- dent has refused to bargain in good faith by declining to execute and abide by said agreement It is fundamental that the formation of a contract con- templates an outstanding offer and its unconditional ac- ceptance A careful examination of the correspondence convinces me that Respondent's offer of June 3 was in fact outstanding when, on July 2, it was unconditionally accept- ed by the Union After outlining Respondent's proposal in its letter to the Union dated June 3, Jones concluded with the following paragraph "The above proposal is open until the close of business on June 13, 1975, and if we do not hear from you in writing that you have either accepted or rejected the above offer, by that date, then we will consider that the parties have come to an impass (sic) " While Respondent now contends the offer was revoked on June 13 by virtue of its not having been accepted by that date, the foregoing language, when considered in con- junction with the later correspondence, convinces me the purported June 13 revocation of the offer is an after- thought to avoid signing an agreement In this regard, it is noted that Jones did not state in the June 3 letter that the offer was revoked, rescinded, or withdrawn with the close of business on June 13 Instead, he stated that after that date Respondent would consider that the parties had come to an "impass" (sic) in bargaining An impasse in bargain- ing means that the parties are deadlocked, or are at a point in negotiations when neither party will, for the time being, RAY'S LIQUOR STORE make a further concession . An impasse or deadlock, how- ever, does not constitute a withdrawal , rescission, or revo- cation of an outstanding offer. Later correspondence from Respondent clearly implies that the June 3 offer remained outstanding . In his June 19 letter, Jones referred to Respondent's "last and best offer" dated June 3, which "is the only one they feel they can live with for the next year period ." And, more importantly, he concluded his letter of June 27 with the statement "there- fore, until a new agreement is reached between the parties as set forth in the Company 's last and final offer, the Company cannot and will not pay into funds ." (Emphasis supplied.) The word "until" indicates a continuance of an action or condition to a specified time, here , "a new agreement is reached . . . as set forth in the Company's last and final offer . ..." Accordingly, I find that Respondent and the Union reached complete agreement on the terms of a col- lective-bargaining agreement when , on July 2, the Union advised Respondent that the membership had ratified Respondent's June 3 proposal, noting specifically item No. 3 covering trust fund contributions.3 Within the month, however, Respondent sought to repu- diate the agreement by contending it had not been accept- ed in accordance with the June 3 offer , and for the further reason "that the amounts to be paid into the Trust will have to be raised from the amounts as set forth in the old agreement and this the Company will not agree to." De- spite an explicit agreement between the parties to the con- trary, Jones has remained adamant, and in his July 31 let- ter to the Union, and at the hearing herein, insisted that the Union could not make an agreement "to freeze" the amounts payable to the trusts under the contract. I have found nothing in the April 1, 1972-March 31, 1975 , collec- tive-bargaining agreement, as modified by the agreement of the parties (the June 3 letter), which prevents the Union from entering into such an agreement . Respondent asserts, however, that the agreement between the Food Employers Council, Inc., and the various locals of the Retail Clerks Union, including Local 1222 , provides for an increase in payments to the trust. That agreement , apparently, was not executed until September 1 and, of course , is not binding upon Respondent. In this posture , it can hardly be said that the 1972 to 1975 agreement , as modified by the Employer's June 3 proposal, is impossible of performance. Accordingly, I find that the General Counsel has proven by a preponderance of the evidence that Respondent has refused to bargain , as alleged in the complaint, by failing and refusing to execute the agreement reached on July 2.4 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, as set forth in section III, 3 The Union had previously indicated its acceptance of item No 3 in its letter to Jones of June 6 4 Although Respondent has not claimed that the Union never requested it to sign a collective-bargaining agreement, the Board has held that "the filing of the charge and the issuance of the complaint put it [the Employer] on notice of the Union's desires and are themselves sufficient to constitute a request to sign" East Texas Steel Castings Company, 191 NLRB 113, 114 (1971) 29 above, occurring in connection with the operations of Re- spondent as described in section 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 burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in, and is engaging in, certain unfair labor practices, I shall recom- mend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in this proceeding , I make the fol- lowing: CONCLUSIONS OF LAW 1 The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. All employees employed by Respondent, excluding all guards, professional employees, and supervisors as de- fined in the Act, constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Sec- tion 9(b) of the Act. 4: The Union is now, and at all times material herein has been, the exclusive representative of all employees in Lite aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By failing and refusing to execute and give effect to the collective-bargaining agreement between it and the Union, effective June 1, 1975, to May 31, 1976, Respon- dent has refused to bargain collectively with the Union and has thereby engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. Upon the basis of the foregoing findings of fact, conclu- sions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed: ORDERS The Respondent, Henry Marx and Saul Greenburg, d/b/a Ray's Liquor Store, San Diego, California, its agents, successors, and assigns, shall: 1. Cease and desist from: (a) Failing to execute and give effect to the collective- 5 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargaining agreement between it and Retail Clerks Union, sure that said notices are not altered, defaced, or covered Local 1222, Retail Clerks International Association, AFL- by any other material. CIO, effective June 1, 1975, to May 31, 1976. (d) Notify the Regional Director for Region 21, in writ- (b) In any like or related manner interfering with, re- ing, within 20 days from the date of this Order, what steps straining, or coercing their employees in their rights guar- Respondent has taken to comply herewith. anteed in Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Execute, deliver, and give effect to the collective-bar- gaining agreement between it and Retail Clerks Union, Lo- cal 1222, Retail Clerks International Association, AFL- CIO, effective June 1, 1975, to May 31, 1976. (b) Make all employees whole for any loss of earnings they may have suffered by reason of Respondent's failure to execute and give effect to said collective-bargaining agreement, including payments to the trusts as provided for therein. Interest shall be paid to the employees and to the trusts at the rate of 6 percent per annum as set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). (c) Post at its San Diego, California, facility copies of the attached notice marked "Appendix." 6 Copies of said notice, on forms provided by the Regional Director for Region 21, after being duly signed by its authorized repre- sentative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily post- ed. Reasonable steps shall be taken by Respondent to in- 6 In the event that the Board 's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board " shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board having found after a hearing that we violated Federal law by failing to execute and give effect to a collective-bargaining agreement: WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed under Section 7 of the Act. WE WILL execute , deliver, and give effect to our col- lective-bargaining agreement with Retail Clerks Union, Local 1222, Retail Clerks International Associ- ation, AFL-CIO, effective June 1, 1975, to May 31, 1976 WE WILL make our employees whole for any loss of pay they may have suffered by reason of our failure to give effect to the collective-bargaining agreement with said Union, including payments into the trusts as pro- vided for therein. HENRY MARX AND SAUL GREENBURG, d/b/a RAY'S LIQUOR STORE