Food And Commercial Workers, Local 274 (Millco, Inc.)

180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Food and Commercial Workers Union, Local 274, United Food and Commercial Workers International Union, AFL-CIO, CLC and Millco, Inc. Case 21-CB-8778 4 April 1986 DECISION AND ORDER By CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON On 16 July 1985 Administrative Law Judge Rus- sell L. Stevens issued the attached decision. The General Counsel and the Charging Party filed ex- ceptions and supporting briefs, and the Respondent filed an answering 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, I 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 sec III, par 27 of his decision and in Conclusion of Law 2, the judge inadvertently referred to Sec 8(b)(5), rather than 8(b)(3), in finding that the Respondent did not violate the Act as alleged We correct the error In sec III, par 21, the judge inadvertently stated that the employees ratified the contract 16 December 1982 The record reveals that the em- ployees ratified the contract 28 December In sec III, par 11, the judge inadvertently stated that the date of the Respondent's letter was 31 May 1982, rather than 1983 Mark B. Crowley, Esq., for the General Counsel. Glenn Rothner, Esq. (Reich, Adell & Crost), of Los Ange- les, California, for the Respondent. Lynn K. Thompson, Esq. (Musick, Peeler & Garrett), of Los Angeles, California, for the Charging Party. DECISION STATEMENT OF THE CASE RUSSELL L. STEVENS, Administrative Law Judge. This case was tried in Los Angeles, California, on 9 April 1985.11 The complaint, issued 10 July 1984, is based on a charge filed 7 March 1984 by Millco, Inc. (Millco). The complaint alleges that United Food and Commercial Workers Union, Local 274, United Food and Commer- cial Workers International Union, AFL-CIO, CLC (Re- spondent or Union), violated Section 8(b)(3) of the Na- tional Labor Relations Act. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-ex- i All dates hereinafter are in 1984, unless otherwise stated amine witnesses, to argue orally, and to file briefs. Briefs, which have been carefully considered, were filed on behalf of the General Counsel, the Respondent, and the Charging Party. On the entire record,2 and from my observation of the witnesses and their demeanor, I make the following FINDINGS OF FACT 1. JURISDICTION At all times material Millco , a California corporation, has been engaged in the business of beef fabrication at a facility located in Monterey Park, California. In the course and conduct of its business operations , Millco an- nually purchases and receives goods and products valued in excess of $50,000 directly from suppliers located out- side the State of California. Respondent admits, and I find, that Millco is, and at all times material has been, an employer engaged in com- merce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent is, and at all times material has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICE A. Background3 Although the parties have many points of controversy, the basic issue is whether or not their bargaining agree- ment ratified by employees 28 December 1982, and signed by representatives of Millco and the Union on 27 May 1983, contains an MFN (most-favored-nation) pro- vision. Since approximately 1970, the Union has represented Millco's unit employees and Respondent has had succes- sive bargaining agreements with Millco. Those agree- ments have been individually entered into since Millco never has been a member of a multiemployer associa- tion.' However, Millco consistently has signed the agree- ment reached by the Union and the Association (HRI), the most recent of which was the 1979-1982 agreement. The HRI agreement customarily is incorporated in a "bluebook," copies of which were provided to Millco and other companies who signed with the Union individ- ually rather than through HRI.5 2 At the trial, Respondent stated that the affirmative 10(b) defense set forth in the answer to the complaint, no longer is asserted as a defense U Exh 1 was marked for identification during the trial, and it is ad- mitted into evidence pursuant to posttrial written stipulation of the par- ties 3 This background summary is based on stipulations of counsel, and on testimony and evidence not in dispute * Much testimony was devoted to the fact that Millco's business is somewhat different from that of multiemployer bargaining members in Hotel, Restaurant & Institutional Meat Cutter Employer Association (HRI), discussed later However, that fact is irrelevant to the issues 3 Lee Miller, vice president of Millco, testified that he had a copy of the bluebook in his office and often referred to it 279 NLRB No. 26 FOOD & COMMERCIAL WORKERS , LOCAL 274 (MILLCO, INC.) The 1979-1982 HRI bluebook contained, inter alia, a most-favored-nation provision as section 6, in the same wording as earlier agreements. However, in 1979 HRI and the Union agreed to a modification of the MFN pro- vision as well as of some other provisions. A memoran- dum of agreement was signed by the Union and its signa- tory employers, including Millco, setting forth those changes in the bluebook that had been agreed to. The changed section 6 read as follows: Section 6-Favored Nations Clause The present language will be deleted, however, the parties to the Collective Bargaining Agreement will negotiate more acceptable language reflecting the parties' understanding of the intent of this section. HRI and the Union agreed to a reworded section 6 within 2 months, and that change, together with the others included within the 1979 memorandum of agree- ment, was incorporated in the 1979-1982 bluebook, which was not printed until after the MFN modifications were agreed to Although- HRI and the Union agreed to the changes mentioned above, there was no negotiation between the Union and Millco, nor any other employer with whom the Union had independent contracts, nor was there any agreement, relative to a reworded MFN for the individ- ual 1979-1982 agreement. There is no evidence that Millco automatically was bound to the reworded section 6 in the absence of negotiated change.6 However, a copy of the bluebook for 1979-1982, which included the changed section 6, was given to Millco's representative prior to the 1982 negotiations, as noted later. HRI and the Union negotiated a successor to the 1979-1982 blue- book, and the MFN provision was deleted in its entirety from the successor agreement, upon the insistence of the Union. On 12 January 1982 Millco notified the Union by letter that Charles W. Steese had been retained "to handle all matters pertaining to our labor agreement and negotiations," and that all future contact should be with him. Charles Steese is with Steese & Steese, Limited, an industrial relations consultant. His son, Steven Steese, is vice president and general counsel of the firm. Steese & Steese made little inquiry, if any, of Millco relative to Millco's bargaining history with the Union. Charles Steese credibly testified "as far as I was concerned what- ever the HRI group did is what they (note: Millco) had agreed to do." Steese & Steese never had represented any HRI members, or HRI itself. During 1982 negotia- tions for a successor to the 1979-1982 contract, Steese & Steese represented general independents, including King Meat Company, Triangle Cold Storage and Processing Company, Geldin Meat Company, and Holiday Meat Company, in addition to Millco. Independent employers bargained together with the Union in 1982, but Steese & Steese represented them individually, and not as a group, 8 It is clear that the individual agreement between Millco and Re- spondent was not a "me too" agreement If it was, there would have been no necessity for Millco to enter into a separate memorandum in 1979 relative to deletion of the MFN provision 181 although some of them in earlier years had belonged to a now-disbanded organization called Vernon Meat Dealers Association. The first 1982 bargaining session between the Union and the independents represented by Steese & Steese oc- curred on 5 October of that year. On 2 November 1982 Geldin and the Union reached an agreement, with their contract being embodied in a document in evidence as Joint Exhibit 9. The contract is for the term 1 October 1982 to 1 October 1985 and is based on a summary of agreement (Jt. Exh. 8) covering 18 items that reflect changes in Geldin's 1979-1982 total agreement with the Union.' So far as an MFN provision is concerned, no such provision was contained in Geldin's 1979-1982 contract, nor is there one in Geldin's 1982-1985 contract. Further, the subject of an MFN provision was not brought up in the 1982 negotiations between the Union and Geldin, or the other independents.8 Geldin was the lead company in the 1982 independent negotiations. It was Millco's desire to have a contract similar to that of Geldin, particularly so far as wages were concerned. On 4 November 1982 Don Holeman, who represented the Union, and Charles Steese signed a summary of contract changes that would be embodied in a total contract. The first 17 items on the list of changes" were taken from the Geldin summary agreement dis- cussed above, and the last six items were added pursuant to negotiations, as provisions sought by Millco. The sum- mary agreement that was reached was presented to Re- spondent's membership for possible acceptance, but it was turned down. On 16 December 1982 Steven Steese wrote a letter to Holeman and stated, inter alia: Miller Meat Company's last, best and final offer is the same collective bargaining agreement that your Union has with Geldin Meat Company and Holiday Meat Company. 10 On 28 December 1982 Millco's unit employees voted to accept Millco's offer of 16 December 1982. The sum- mary agreement was retyped, and signed by Charles Steese and a union representative on 27 May 1983. ° It is not disputed that the summary of agreement was prepared by Geldin, so far as typing is concerned It is apparent that the predecessor of the complete contract, it Exh. 9, was not the 1979-1982 HRI con- tract-comparison of that contract with It Exh 9 shows substantial dif- ferences Further, the summary of agreement , it Exh 8, reflects lan- guage and text headings not from the bluebook for 1979-1982, but rather, from the independent agreement between Geldin and the Union for 1979-1982, in evidence as U Exh 1. 8 No MFN provision was included in the 1982-1985 contracts of any independent 8 it Exh 10 10 Holeman's notes were admitted into evidence over Millco's objec- tion However, those notes are not relied on for any finding or conclu- sion. It is apparent from Steven Steese's letter, and other evidence dis- cussed, that Millco was relying on the Geldm contract in making its offers to Respondent 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On 27 May 1983 Charles Steese informed Respondent that Millco wanted to invoke the MFN provision of its contract." i By letter of 31 May 1982 Respondent replied: Dear Mr. Steese: It is my understanding that the above-mentioned company has requested a meeting to discuss our current collective bargaining agreement in regards to alleged Favored Nations Clause. It is my firm conviction that there is no Favored Nations Clause in the current collective bargaining agreement. Further, it is very distressing to me that the company should attempt to post negotiate after once reaching a satisfactory agreement. However, we are willing to meet to further dis- cuss the situation, but in no way is this meeting to be construed as negotiations. If you still desire a meeting on this basis, please contact me for arrange- ments. Sincerely yours, /s/ Don Holeman, President UFCW Local 274 On 6 June 1983 representatives of Respondent and Millco met to discuss the existence in the agreement of an MFN provision. During the discussion, all the repre- sentatives agreed that at no time during negotiations for a 1982-1985 agreement was the subject of an MFN pro- vision discussed. On 7 June 1983 Steven Steese sent to Respondent a complete contract, embodying the 23 provisions earlier agreed to by Respondent and Millco as set forth in the summary agreement discussed above. The proposed con- tract included an MFN provision, and Holeman refused to sign unless the provision was deleted. Holeman sent back a proposed contract with the MFN provision delet- ed. The parties discussed the problem, and Holeman sug- gested that the MFN provision be left out of the con- tract, and that the matter be submitted to an arbitrator. The Steeses wanted, instead, to include the MFN provi- sion in the contract and to submit the matter to an arbi- trator when Millco sought to invoke the provision. This argument continued in letters from the Union to the Steeses on 4 January 1984 and the Steeses' reply of 13 February 1984. On 14 February 1984 Steven Steese wrote to Respond- ent as follows: Dear Mr. Holeman: The following constitute the company's proposals to settle the contract between Local 274 and Millco, Inc.: Section 5-Management Delete old language and insert attached language l i Holeman testified , without contradiction , that Charles Steese wanted to invoke the MFN provision because the Union recently had ne- gotiated a contract with Merchants Meat that provided for lower wages than those paid by Millco He said he objected , noting that , regardless of any contract provisions, Merchants Meat was in a business different from that of Millco Section 6-Most Favored Nations Delete entire section Section 10-Working Conditions Delete para- graph 10.4 Clothes changing allowance Section 12-Wages Delete paragraph 12.12 New rate-Gnnder-$5.50 for all present em- ployees Present employees-one dollar ($1.00) per hour reduction New Hire rates effective upon execution Journeyman $7.50 Skilled Knife Man $6.50 Semi-Skilled Knife Man $5.50 Common Labor $4.50 Section 14-Health and Welfare Delete 14.6-E, Supplemental disability Section 21-Term of Agreement Two (2) years from date execution Please contact my office so we may schedule ne- gotiating sessions. On 29 February 1984 Holeman replied to Steven Steese and stated, "Please be advised that Local 274 has no desire to reopen negotiations for [Millco] since, as you know, these negotiations were concluded well over a year ago." Several meetings were held by representatives of the parties, and they had several conversations after the let- ters quoted above, but they were not able to reach agree- ment. The Union steadfastly maintained that a contract had been negotiated as of 27 May 1983, and that the con- tract did not contain an MFN provision. Millco contends that the agreement was not complete, in that the parties mistakenly omitted an MFN provision from the agree- ment. B. Discussion Holeman testified that, from the beginning of negotia- tions and throughout their course, Millco wanted a con- tract similar to that of Geldin, principally in order to maintain wage levels equal to those of Geldin. However, as noted above, Millco wanted some provisions that varied somewhat from Geldin. Steven Steese testified, "Basically we talked more about Geldin Meat Company in the beginning than any other." (Note: any other company.) Steven Steese stated, "Well, we always bargained from the bluebook or the HRI Agreement." He further testified that he handled two arbitration matters with the Union, pursuant to the HRI agreement, and that he negotiated with the Union relative to certain matters included in Millco's move to Chino, California. 12 Charles Steese testified, "the negotiations [in 1982] were based strictly on the hotel, restaurant and institu- tional agreement." He said Holeman gave him three 12 Charles Steese testified that the bluebook was an exhibit during arbi- tration and corroborated Steven Steese 's testimony concerning negotia- tions with the Union about Millco's move to Chino I agree with counsel for General Counsel, who stated in his brief his belief that these matters of arbitration and postevent negotiations are irrelevant to the issues FOOD & COMMERCIAL WORKERS, LOCAL 274 (MILLCO, INC.) copies of the bluebook on his request, shortly after the Union was notified that Steese & Steese were named by Millco to represent the Company. Charles Steese further testified that he never discussed an MFN provision with the Union until late 1982 or 1983, after negotiations had been concluded, and after the Union and Merchants Meat Company reached agreement on a contract. He said he and Holeman had two or three discussions on the telephone about the provision . He stated that, initially, Holeman contended that the MFN provision did not apply because Millco was not in the same business as HRI employers, but that later, in a meeting with Millco, Holeman contended that his agreement with Millco did not contain an MFN provision. Charles Steese testified, "our position was always that it was a part of the agree- ment and that it had been in the previous agreement and was never changed or discussed and that we weren't about to take it out." On cross-examination , Charles Steese testified that he never inquired whether there was replacement language for the MFN provision of the 1979-1982 HRI agreement. He said "No, as far as I was concerned whatever the HRI group did is what they [Millco] agreed to do." In discussing his negotiating strategy in 1982, as instructed by Millco, Charles Steese stated, "The principal problem they [Millco] had was that they were paying some 26 cents an hour more in wages than their competitors; and that was their primary goal at the time was to eliminate that differential." He further stated, "The terms of the Farmer John agreement were I think available at that time and any proposals we made to the Union would be based on what they had ne- gotiated with any other companies." He continued: "The proposals that we were making were as far as economics concerned the Geldin document. The other matters the language in the contract we left alone because we were satisfied with what was in the HRI agreement." Howev- er, he later stated that he proposed to Holeman "that he accept Geldin with economics and [in some cases] con- tract language changes." In view of what the parties did, it is apparent that the Steeses' contention that they negotiated with the Union on the "basis" of the HRI agreement is not factual. Clearly, Millco did not negotiate on the "basis" of any- thing in particular. The bluebook was not even men- tioned during the 1982 negotiations, so far as the record shows. At no point, prior to the matter first becoming an issue on 27 May 1983, did Millco contend that the memorandum of agreement ratified by the employees was to be grafted onto the bluebook. It is equally apparent that an MFN provision was not a matter of concern until well after the parties had com- pleted their negotiations for a new contract. Those nego- tiations were complete when the contract was ratified by employees on 16 December 1982. Not until 27 May 1983 did Millco claim MFN rights, after Merchants Meat ob- tained favorable wage rates from the Union. The Steeses did not go well-armed into the 1982 nego- tiations with the Union. They did not study the history of negotiations between HRI and Millco, and they never had represented HRI or any of its members. The matter of an MFN provision was not mentioned during negotia- tions, which extended from 5 October 1982 until 16 De- 183 cember 1982. Yet, during that period of time, HRI had negotiated a contract with the Union which did not con- tain a MFN provision; Millco held a copy of the 20 Oc- tober 1979 memorandum of agreement with the Union which contained a deletion of the MFN provision from its 1979-1982 contract; i a and Millco had not negotiated with the Union a reworded MFN provision as HRI had, prior to the 1982 HRI negotiations . It appears that Millco simply was not paying close attention to what was happening and awoke to its situation after it realized that Merchants Meat had obtained lower wages from the Union than it had obtained. It does not appear that the Union made a mistake-it knew throughout the contro- versy that the MFN provision had been deleted from the HRI 1979-1982 contract, as well as from its 1979-1982 contract with Millco. Charles Steese testified that, his- torically, Millco did whatever HRI did, yet HRI, as did Millco, deleted the MFN provision from the 1979-1982 agreement, and HRI deleted the reworded MFN provi- sion, which Millco did not negotiate, from its 1982-1985 agreement. If Charles Steese was correct, then under any version of events, Millco could not convincingly argue that it had an MFN provision, since HRI did not have one in its 1982-1985 agreement. Millco's argument further is weakened by its reliance on the Geldin contract, which did not contain an MFN provision. As noted above, Steven Steese, in plain lan- guage, stated to the Union in his letter of 16 December 1982 "Miller's last, best and final offer is the same collec- tive bargaining agreement that your Union has with Geldin Meat Company and Holiday Meat Company" Several changes in contract language agreed to by the parties were drawn from the Geldin contract, not the bluebook. Patently, when Millco and the Union signed their memorandum of agreement on 27 May 1983, there was no mutual mistake of either fact or law. The Union and the unit employees accepted what Millco offered. The Charging Party argues that Respondent's position, if adopted, would result in an improper substitution of the Geldin agreement for the bluebook, as changed by the memorandum of agreement ratified by the employ- ees. However, such a substitution, if it properly can be called that, appears to be just what the Steeses pro- posed. i 4 Had they intended that the new agreement be the HRI contract, as modified by the memorandum agreement relating to changes, it must be presumed that they would have said so . They did not do that, however. They offered the Geldin contract, as modified. Through- out the entire negotiation period, it was the Geldin con- tract, with some reference to other independent con- tracts, that was discussed and emphasized. The bluebook was not mentioned. Respondent logically could only assume that such preoccupation with Geldin showed Millco's desire to have a contract like Geldin's. Further, Charles Steese's testimony made it quite clear that he 13 The General Counsel argues that neither of the Steeses had seen this memorandum prior to 6 June, but it was signed by the president of Mdico 14 As earlier noted , Millco did not enter into "me too " agreements with the Union, mandating compliance with any changes to the HRI agreement 184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was seeking a Geldin-like contract. He stated at one point, "But we were using the Geldin format because that's what we both had available after discussing for a number of months before that." Finally, it is the MFN provision that stands alone in contention between the parties, and it became an issue only after Merchants Meat obtained a contract favorable to it. There is no ar- gument that any other provisions of the Geldin agree- ment are distasteful to Millco, or are contrary to what the parties agreed.1 a By the end of the 1982 negotiations only Millco, of all meat dealers considered herein, lays claim to an MFN provision. As noted, the last such provision in a Geldin contract was in 1976-1979. The last such provision in an HRI contract was deleted in 1982 . Respondent did not mislead Millco or the Steeses, or withhold any pertinent facts from them. Millco offered a contract in plain lan- guage, and Respondent accepted the offer. It is not entirely clear that the facts show a mistake by anyone, as that term ordinarily is used . Certainly Re- spondent does not contend that it made a mistake. The most that can be said about Millco is that , possibly, it was inattentive and inexact in its dealings with Respond- ent. Possibly Millco signed an agreement it later realized it should not have, but Millco was the offeror. Absent 15 The last MFN provision in a Geldin agreement was in the 1976- 1979 contract fraud or misrepresentation, neither of which is estab- lished by this record, Millco must live by the contract it created.16 It is found that Respondent did not violate Section 8(b)(5) of the Act as alleged. CONCLUSIONS OF LAW 1. Millco, Inc. is, and at all times material has been, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent is, and at all times material has been, a labor organization within the meaning of Section 2(5) of the Act. Respondent did not, as alleged, violate Section 8(b)(5) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed'' ORDER The complaint is dismissed in its entirety. 16 Skyline Corp. P NLRB, 615 F 2d 1328 (5th Cir 1980), Teamsters Local 439, 196 NLRB 971 (1972) 17 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