Tiffany & Co.

TIFFANY & CO. Tiffany & Company and Local 1-J, Service Employ- ees International Union, AFL-CIO. Case 22- CA-11812 26 January 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER On 27 June 1983 Administrative Law Judge James F. Morton issued the attached decision. The General Counsel filed exceptions and a supporting brief, and Respondent filed cross-exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions' and to adopt the recommended Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. I In affirming the judge's recommendation that the complaint be dis- missed in its entirety, Chairman Dotson and Member Hunter do not adopt all of his rationale. DECISION STATEMENT OF THE CASE JAMES F. MORTON, Administrative Law Judge: Upon a charge filed on August 18, 1982, and amended on Oc- tober 6, 1982, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 22 issued a complaint against Tiffany & Company (Re- spondent) alleging that it violated Section 8(a)(l) and (5) of the National Labor Relations Act, as amended (the Act). Respondent filed an answer to that complaint. At the hearing held before me in Newark, New Jersey, on April 5 and 6, 1983, the General Counsel was permitted to amend the complaint to allege other violations of Sec- tion 8(a)(l) and (5) of the Act; Respondent's answer was correspondingly amended to place those allegations in issue in addition to those framed by the original plead- ings. Upon the entire record,' including my observation of the demeanor of the witnesses, and after due consider- ation of the briefs filed by the General Counsel and by Respondent, I make the following I The General Counsel's unopposed motion to correct the transcript dated May 10, 1983, is granted and received in evidence as G.C. Exh. 28. 268 NLRB No. 102 FINDINGS OF FACT I. JURISDICTION Respondent is a corporation of the State of New York engaged in retail sale at its stores in New York City and in other large cities. It also has a factory in Newark, New Jersey, the situs of the dispute in this case. Its oper- ations easily meet the Board's standard for retail con- cerns. Local 1-J, SEIU, AFL-CIO and its predecessor, Amalgamated Local Thirty Eight A, SEIU, AFL-CIO, have been labor organizations as defined in Section 2(5) of the Act. II. THE ALLEGED VIOLATIONS A. Background Respondent has about 1500 employees nationwide, of whom only about 110 at its Newark facility have been represented for purposes of collective bargaining. The Charging Party in this case, now Local l-J, represents a unit of approximately 90 production and maintenance employees there, but not the 20 employed in its engrav- ing, printing, and stamping departments there. Those 20 employees are represented by Local 26, Engraving Trades Union. The unit represented by Local l-J has been in exist- ence for many years. At one time Local 51, International Jewelry Workers Union represented that unit. In 1971, Local 51 was dissolved upon its merger with Local 38 of that International. In 1980, the IJWU merged with the Service Employees International Union; Local 38, IJWU then became Local 38A, SEIU. On June 13, 1980, Re- spondent and Local 38A had signed a collective-bargain- ing agreement retroactive to April 17, 1980, and to be ef- fective until April 17, 1982. As discussed below, Local 38A later became part of Local 1-J, SEIU; Local 1-J then became the successor to Local 38A's contract with Respondent. In April 1979, Avon Products Inc. acquired Respond- ent with the understanding that Respondent's chairman then, Walter Hoving, would retain control of Respond- ent's operations as long as he remained chairman. Hoving retired on December 31, 1980. The General Counsel asserts that, almost immediately thereafter, Re- spondent began and continued a campaign to undermine the incumbent union, Local 38A, Local 1-J's predecessor and that, in the period covered by Section 10(b) of the Act, Respondent has failed and refused to bargain collec- tively with Local 1-J. The pleadings in this case frame the issues discussed next. B. Issues The complaint originally alleged that Respondent had failed to bargain collectively with Local l-J 2 by having, in renewal contract negotiations in 1982, remained "fixed in its position that it would not agree to any form of union security and by adamantly refusing to consider any a Or, more exactly, with its predecessor Local 38A. The parties agreed that references to Local 38A pertain now to Local I-J. 647 DECISIONS OF NATIONAL LABOR RELATIONS BOARD modified form of union security as proposed by (Local I-J)." At the hearing, allegations were added that Re- spondent adamantly refused to consider any agreement providing for the checkoff of union dues and that Re- spondent unilaterally changed unit employees' wages and benefits. Those three allegations, of unlawful conduct (pertaining to the union shop clause and also the check- off clause and the alleged unilateral changes) were placed in issue by Respondent's answer, as amended. There is virtually no material dispute as to the relevant facts. C. The Alleged Indicia of Bad Faith Outside the 10(b) Period The General Counsel adduced evidence to show that, within 2 months of Hoving's leaving as chairman of Re- spondent, officers appointed by Avon Products Inc. granted benefits to unit employees after having effective- ly presented Local 1-J with a fait accompli insofar as any meaningful negotiations were concerned. The Gen- eral Counsel's witness testified that he received a letter dated February 5, 1981, from Respondent offering to put immediately into effect extensive improvements in the in- surance and disability benefits programs of the employ- ees in the Local 1-J unit. That letter requested Local l-J to advise whether it had any objections. Local 1-J's rep- resentative testified that he could not object as the Union had unsuccessfully sought those very improvements in contract negotiations in preceding years. Respondent thereupon adduced evidence as follows. In December 1980 (Hoving was to retire later that month), Respondent began to develop a revised benefits package for all of its 1500 employees nationwide. On February 2, 1981, it sent form letters to all its nonunion personnel no- tifying them of improvements. The unrepresented cleri- cal employees at Respondent's Newark plant were among those notified. On February 5, 1981, Respondent wrote Local l-J and offered to put those same benefits into effect immediately for the employees represented by Local l-J. It appears that a similar offer was made to Local 26 respecting the engraving unit employees at Newark. Local l-J informed Respondent that it was pleased with the new coverages. Upon receiving Local l-J's consent, Respondent notified the employees Local l-J represented of those additional benefits. A similar procedure was followed by Respondent in October 1981 when improved retirement benefits and a new dental plan were put in effect for all 1500 employees. Again, Local l-J was asked if it had any objections and when Respondent was advised that Local 1-J's representative accepted those improvements, the unit employees at Newark were notified by Respondent of those new bene- fits. I find it difficult to attribute bad faith to Respondent in its offers to Local 1-J to include the unit employees in the new benefits programs with its nonrepresented per- sonnel. It seems unlikely to me that Respondent would contrive to grant substantial benefits to more than 1500 unrepresented employees in order to have the opportuni- ty to bypass Local 1-J. Had it intended them to under- mine Local l-J, it might have sought to withhold those new benefits from the employees represented by Local 1 -J. D. The 1982 Negotiations On January 28, 1982, Local 38A (Local I-J's prede- cessor) wrote Respondent that it desired to negotiate a contract to replace the one then scheduled to expire on April 17, 1982. Respondent wrote Local 38A on Febru- ary 11 suggesting that the first negotiation session be held on February 17; it also notified Local 38A in that letter that the new agreement would not provide for ret- roactivity if negotiations were not concluded by April 17. In past negotiations, agreements had been reached after the old contracts expired and those renewal agree- ments provided for retroactivity. The General Counsel suggests that Respondent's statement of position, in its February 11, 1982, letter as to retroactivity is indicative of its overall bad faith. I can give little weight to that contention as it is undisputed that Respondent was in, and continued, the practice of paying the employees on Local 38A's negotiating team for the time they were en- gaged in negotiations in lieu of working and as Respond- ent was stating that it was pressing for an early agree- ment and as it was offering to meet promptly with Local 38A to that end. Local 38A could not meet with Respondent until March 11. It presented its demands and received Re- spondent's. Respondent's first proposal carried a shock wave that reverberated throughout all the negotiation sessions and established the basis for the General Coun- sel's allegations in this case. Respondent proposed that the union-shop and checkoff provisions that had been in the Local 38A contracts and those of its predecessors for many, many years should be deleted and that the con- tract contain instead a statement that union membership and dues payments are matters of individual freedom and should not be conditions of employment. Local 38A's representative told Respondent's representative that, in years past, it had made concessions to obtain the union- shop and checkoff clauses and explained why it felt it was essential that those claims remain in the contract. Respondent's representative explained Respondent's posi- tion. Essentially it was, and has consistently been, that "the open shop [is] based upon [Respondent's] formally held philosophical belief that every individual should have a freedom of choice with respect to union member- ship." Respondent's view is that there can be either an open shop or a union shop and that there "is nothing really in between." As to the checkoff clause, Respond- ent advised Local 38A that its basic policy is to "maxi- mize" the take-home pay of its employees and that it is opposed to making any deductions from gross wages which it is not legally bound to deduct. Local 38A's represenative thereupon stated that he could not sign any contract that did not contain provi- sions for a union shop and for the checking off of union dues. The parties met again on March 15 and 19. At those sessions, Local 38A spent most of the time trying to get Respondent to abandon its position on an open shop clause and the elimination of the checkoff clause. Re- 648 TIFFANY & CO. spondent offered to provide Local 38A with a table in its cafeteria where it could collect dues. That offer was re- jected. Local 38A left the third meeting in anger. No date was set for a fourth meeting. Respondent wrote the Union urging that negotiations be resumed. After further correspondence and telephone discus- sions, the fourth meeting was held on April 7. In be- tween the third and fourth sessions, Respondent had reached a renewal contract with Local 26 covering the 20 engravers. Incidentally, the Local 26 contracts never contained union-shop or checkoff provisions; Local 26 is composed of only those 20 employees and it appears that it is to their advantage to maintain a separate identity, by reason of their craft, for purposes of separate bargaining. Local 38A merged into Local 1-J on April 1, 1982. Perhaps that had something to do with Local 38A's not having acceded to Respondent's request for an early fourth session. I note too that Respondent raised no ob- jection to Local I-J's successorship claim and instead honored it and met with its representative, as related next. At the April 7 meeting, Respondent expanded on its initial economic proposals by offering a 9-percent in- crease, a 25-cent-an-hour. increase in minimum and start- ing rates, and by agreeing to two of Local l-J's demands respecting vacation pay. Local l-J's principal negotiator was the same individual who had conducted Local 38A's negotiations. He ignored Respondent's economic propos- als and asked if Respondent deducted moneys from em- ployee wages for other purposes, such as for charities. Respondent replied that that practice had been discontin- ued. Respondent offered to make some arrangement whereby Local l-J could collect its dues and told Local l-J it would endeavor to make it as convenient as possi- ble for that to be done. Local 1-J did not accept. The meeting ended with an agreement to meet again on April 12. On April 12, Local I-J demanded a 2-year contract and substantial wage increases. Respondent offered to modify its proposal for a I-year contract term to a 2-year term with a wage reopener in the second year. It appears that the remainder of the meeting was then devoted to discussing Respondent's philosophy as to the union-shop and checkoff provisions. Respondent sought to schedule the next session for April 14 but Local 1-J advised that it could not meet until April 16. On April 16, Local l-J advised that while it would not agree with Respondent's putting a 9 percent wage in- crease into effect when the then existing contract ex- pired, Local I-J could not stop Respondent from doing that. There then was a discussion about insurance ex- penses; Local l-J sought data and was given it. The dis- cussion turned shortly afterwards to the union-shop and checkoff issues without progress thereon. The next meeting was held on April 22. Respondent presented its "final" offer; therein it conceded to Local 1-J's demand as to retroactivity and made other conces- sions on wages and other economic matters. Its final offer revised its earlier proposal that affirmative open shop language be put in the contract; Respondent's final offer contemplated the removal of the union-shop and checkoff clauses. The discussion turned to the union- shop and checkoff matters with predictable results. Afterwards, Respondent distributed to the unit employ- ees copies of the offers it had made in that negotiation session. Three subsequent meetings were held. At two of these, a state mediator was present. Negotiations at those three sessions bogged down in the disputes respecting the union-shop and checkoff clauses. On May 19, Respond- ent put its final offer (made on April 22) into effect. The General Counsel contends that the wage increases and other changes resulting therefrom constituted unlawful unilateral changes as the General Counsel asserts that the bargaining "deadlock" was the result of Respondent's bad faith and that it therefore was not a lawful impasse. On August 13, Local 1-J sought a maintenance-of- membership clause. Respondent rejected it, asserting that such a clause was a form of union security. On Septem- ber 29, Local 1-J modified that proposal but again Re- spondent rejected it as it was still a form of union securi- ty. On October 29, Respondent offered to put a clause in the contract obligating it to notify Local 1-J within the first 30 days of a new employee's hiring date, of the name and address of that employee and obligating Re- spondent further to provide Local 1-J with a suitable place within its factory for the Union to recruit bargain- ing unit employees to membership. Local l-J has ig- nored that offer. E. Analysis The General Counsel contends that the basic theory of his case is that, from Respondent's change in bargaining practices in 1981 and 1982 (including the modification in benefits in February and October 1981, the elimination of retroactivity at the outset of negotiations in 1982, and the insistence upon deletion of the union-security and check- off clauses) it must be inferred that Respondent engaged in bad-faith bargaining. Respondent's view is that no in- ference of bad faith on its part can be drawn from the totality of the evidence. I observed earlier, respecting the midterm contract im- provements in 1981, that they were done only after the assent of Local 38A was obtained and that it was im- probable that Respondent would have drawn up those improvements to undermine Local 38A as it represented but 90 of about 1500 employees affected. More likely, the new management at Respondent sought, in 1981, to establish a favorable climate for its new management among all 1500 employees upon the retirement of its longtime chairman, Walter Hoving. The offers of in- creased benefits in 1981 cannot have been aimed at un- dermining the Union. The General Counsel maintains that the letters in 1981 were not offers but rather were given the Union as a fait accompli. It is easily inferred from the way Respondent presented those proposals that Respondent presumed the Union's ready acceptance of those proposals. That could show that Respondent may have had a disdain towards its obligation to deal with the Union but it cannot show that Respondent violated that obligation. 649 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I see nothing upon which an inference of bad faith can be drawn from Respondent's position in February 1982 that the renewed agreement would not be retroactive if reached after April 17, 1982-particularly as Respondent later conceded to Local I-J's demand for retroactivity. There remain the matters of the negotiations on the union-security clause and the dues-checkoff clause. The General Counsel relies on two cases3 to support the allegation that Respondent's unlawful insistence on deleting the union-security provisions from the contract violated the Act. In the first cited case, the Board af- firmed the holding that the employer's refusal to concede to a union-security proposal was unlawful as it was based on a "philosophical opposition" to any form of compul- sion. In the second cited case, the Board observed that the totality of the evidence, including the specious rea- sons offered by the employer there for rejecting the union-security proposals, established bad-faith bargaining. In the instant case, there is no evidence that Respondent offered specious grounds or engaged in devious conduct to avoid agreement. Respondent's witnesses testified that bargaining repre- sentatives had full authority to concede the union-securi- ty issue if that were the "best" strategy and that Re- spondent was "flexible" on that matter. There is no evi- dence however that Local l-J had any indication from Respondent that Respondent's representative could accede to any form of union security. Rather, the evi- dence is clear that it was in effect informed that he could discuss, consider, review, analyze, rephrase comments, and offer alternatives to, any form of union security but the evidence is entirely clear too that Local l-J was in- formed that there was no way that Respondent would ever agree to any form of union security. The General Counsel had indicated that, at one point in the course of the 1982 negotiations, Respondent "con- ditioned further bargaining on Local I-J's acceptance of an open shop and elimination of checkoff." It seems to me that observation was applicable for all of the sessions, insofar as Local l-J could see. The General Counsel thus contends that the holding in Preterm, supra, supports a finding that Respondent's "philosophy and opposition" to any form of union security violated the Act. Preterm holds that such a view point constitutes evidence of a re- fusal to confer in good faith and the particular facts of that case reveal that Preterm's concern was "disingen- uous" and that Preterm's total conduct in negotiations es- tablished that its purpose was to waste time in order to free itself of the need to bargain. The evidence in the in- stant case is insufficient to support a similar finding here. The issue to be decided in this case has been framed by the Board4 as follows: s Preterm. Inc., 240 NLRB 654, 673 (1979); Queen Mary Restaurants Corp., 219 NLRB 776, 777 (1975). 4 Church Point Wholesale Grocery Co., 215 NLRB 500 (1974). Did the Respondent negotiate with the Union in bad faith with the intention of avoiding reaching agreement or conditioning acceptance of terms and conditions which the Respondent knew or should have know were unacceptable to any self-respecting union? That issue was posed in a context similar to that of the instant case where Respondent entered negotiations with a view that it would "remain attached" to its philosophi- cal opposition to any form of union security. Not only did Respondent discuss and consider all view points pre- sented by Local 1-J as to the union-security issue, Re- spondent also offered alternatives and withdrew from its initial proposal that the contract contain an express open shop clause. That evidence, coupled with the overall evi- dence including the showing that Respondent pressed for an early agreement and offered substantial wage benefits and other concessions to induce agreement, compels me to follow clear Board precedent.5 Thus, I find that the General Counsel has not proved that Respondent en- gaged in bad-faith bargaining by its stated opposition to any form of union security. The same rationale applies to the allegation that Respondent's position vis-a-vis check- off of union dues constituted bad faith.6 Respecting the remaining allegations of the amended complaint, I find that an impasse had been reached at the time Respondent put into effect its final proposals. Thus, these contract changes were not unlawfully instituted. 7 CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Local 1-J is a labor organization as defined in Sec- tion 2(5) of the Act. 3. The evidence is insufficient to establish that Re- spondent violated Section 8(a)(1) and (5) as alleged in the complaint, as amended. On the foregoing findings of fact and conclusions of law and on the entire record, I issue the following rec- ommended ORDERs The complaint is dismissed in its entirety. 6 Deister Concentrator Co., 253 NLRB 358 (1980). See also Roanoke Iron & Bridge Works, Inc., 160 NLRB 175, 180 (1966). 6 Standard Trucking Co., 183 NLRB 564, 598 (1970). 7 R. A. Hatch Co., 263 NLRB 1221 (1982). ' If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. 650