Jefferson Stores, Inc.

JEFFFRSON STORES, INC. Jefferson Stores, Inc. and Carpenters' District Coun- cil of Miami, Florida and Vicinity.' Case 12- CA-8802 November 18, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MtMII.RS JENKINS AND PENEIIt.O On June 26, 1980, Administrative Law Judge Michael O. Miller issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, the Charg- ing Party filed exceptions and a supporting brief, and Respondent 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, find- ings,2 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 complaint be, and it hereby is, dismissed in its entirety. I We hereby amend the caption to reflect the correct name of the Charging P'arty. 2 In his Decision, he Administrative Law Judge found, in agreement with Respondent, that he General Counsel did not establish the appro- priateness of an overall bargaining unit herein or the Union's majority status in any appropriate unit at the time the Union requested Respond- ent's signature on the contract As we adopt the Administrative Law Judge's conclusion that Respondent was not obligated to sign the 1979 82 Master Carpenters Agreement. we need not reach. and therefore dis- avow any reliance upon, his discussion concerning the unit question. Member Jenkins additionally does not rely on the Administrative L.aw Judge's discussion of lack of notice to Respondent of he opening of con- tract negotiations. nor upon Ruan Tranvporr Corporatin. 234 NLRB 241 (1978), in which he dissented DECISION STATEMENT OF HE CASI MICHAEI. O. MILt.ER, Administrative Law Judge: This case was heard by me in Coral Gables, Florida, on Feb- ruary 21, 1980, based on a charge filed on September 20, 1979, by Carpenters' District Counsel of Miami, Florida and Vicinity, herein called the Union, and a complaint issued by the Regional Director for 12 of the National Labor Relations Board, herein called the Board, on Oc- tober 26, 1979. The complaint alleges that Jefferson Stores, Inc., herein called Respondent, violated Section 8(a)(5) and (I) of the National Labor Relations Act, herein called the Act, by refusing to sign an agreed-to collective-bargaining agreement. Respondent's timely filed answer denied the commission of any unfair labor practices. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and to cross- examine witnesses, and to argue orally. Briefs, which have been carefully considered, were filed by the Gener- al Counsel, Respondent, and the Union. Upon the entire record, including my careful observa- tion of the witnesses and their demeanor, I make the fol- lowing: FINDINGS OF FACT I. JURISI)ICTION Respondent is a Florida corporation, with its main of- fices in Miami, Florida, engaged in the retail sale of mer- chandise at stores in Miami and other Florida locations. The complaint alleges, Respondent admitted, and I find and conclude that Respondent satisfies the Board's stand- ards for the assertion of jurisdiction over businesses en- gaged in the retail sale of merchandise and is now, and has been at all times material herein, an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. The complaint alleges, the Respondent admits, and I find and conclude that the Union is now, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. ii. the alleged unfair labor practice A. he Facts Respondent was acquired by Montgomery Ward, as a wholly owned subsidiary, in 1973.1 In 1974, a program of refixturing and remodeling Respondent's stores was begun. Because Respondent had no in-house staff to assume the responsibility for such renovation, Montgom- ery Ward assigned Edward F. McDonald, its store layout supervisor, to oversee the work. In October or November 1974, McDonald went from Chicago, Illinois (Montgomery Ward's headquarters), to Florida, where he began the refixturing and departmental layout of the West Palm Beach store. He supervised that and related work from late 1974 until about August 1975. The carpentry foreman whom McDonald had brought with him hired carpenters for that job directly off the street and through the Union's hiring hall. At the time that Respondent commenced its refixtur- ing and remodeling program in 1974, the Union was party to a collective-bargaining agreement, referred to as the Master Carpenters Agreement, with a group of em- ployer associations engaged in the contracting industry in and around Miami, Florida. 2 ' The record establishes that Respondent's labor relations functions are entirely independent of Montgomery Ward Z The employer associatlons party to the 1979-82 Master Carpenters Agreement (the one which the (ieneral Counsel contends Respondent is Continued 253 NLRB No. 48 353 I)ICISIO()NS ()F NATI()NAI .AB()R RLA I'I()NS 1B()Akl) It was stipulaited that neither Respondent nor Mont- gomery Ward was, at any relevant time, a member o, any of these employer associations. Nonetheless, without signing the 1972-75 agreement, any extension thereof, or any other collective-bargaining agreement while the West Palm Beach project was underway. Respondent paid all of its carpentry employees according to the terms of the then current Master Agreement, deducted union dues, and submitted those dues to the Union to- gether with all required fringe benefit fund payments. lThe payments were reported to the Union and to tile ap- propriate trustees on forms provided by a union business agent. At no time during this period, through August 1975, was Respondent asked to sign any collective-bar- gaining agreement. Ulpon completion of the West P'alm Beach store pro- ject, McDonald returned to Montgomery Ward in Chi- cago. Some 4 or 5 months later, in 1976, McDonald was again assigned to Respondent to supervise the remodel- ing of its store in Homestead, Florida. Once again, he brought his carpentry foreman with him, and, when car- penters were needed, that foreman contacted the Union's business agent. On June 4, 1976, Union Business Agent Paul Fortini came to the Homestead store and requested that McDonald sign the "extension and amendment to Master Carpenters Agreement," which extension incor- porated by reference the entire 1972-75 Master Carpen- ters Agreement, while extending its term and modifying certain provisions thereof. McDonald signed it, identify- ing himself, thereon, as the "store layout supervisor." The employer was identified on the signature page as "Montgomery Ward (Jefferson's)," with Montgomery Ward's Chicago address. The business of the employer, however, was described on the signature page as "Interi- or Remodeling & Fixtures, Etc."" McDonald was given a copy of the extension agreement and the 1972-75 Master Carpenters Agreement, which it incorporated. The Master Agreement provided, inter alia, as follows: Article I. 6. Application of Agreement: ohligated 1t) sign) are roward Builders Exchange lc.: l'he Associated G(eneral Conrac t ors of America. Inc. Soulh Florida Chapler I ltoe- builders and Cionlractors Associalion f Palm Beach C'unllt, llc; ald the Asociated (;eneral Contiractiors o, America, I nc, Flrida t:ast Ciast Chapter he list of empIloyer associatilons s, ho werc party I te 1972 75 agreemerit Wa'il solmevhal more extenisile ' ()ver the objeclion of the lfniin's counsel. Mcl)onald testified that. prirr ito sgniliig the extension agreement he told Fortini tiat ith agree- menl would "cer tile fixturing ad iling of he lnrolr f this particular stirre." liin resalualiorn of the extensionl agreement, (i C Ixh No. 4 I must cnclude thai agreemenl is clear and unamhiguous oi its face Tihus. to give efecl to McDl)onald's understlanding of an ral igremenll (strenlu- trusly disputed by the Union) would be to accept parol eidence for the purpose ,if varying the termls rf an unambiguous written agreemeti. As the ItBard has stated, acceptance of such evidence "must be rejected, riot only because it is at dds wsith the basic principals f contrlacl la., bhit behause it ould cause admirltlrais havoc i the processing of cases hy this Agency" Laun rvirrtlorr (rporation, 218 NLRIJ 591). fn (1)97S) (Comnpare 'rar l/tus, Ir. 173 NI.RB I132(1 (19)X), whereil the cointraLt prolsision irl qllestiol as ir' ulid ii be ambiguous aind thal arlbiguily Vias resolsed "by considering the ltllent and practice of' the contractling par- I es " The parties agree that terms of' this agreement shall apply to and cover all Employees within the territorial jurisdiction of the Union employed to perform or performing work within the trade juris- diction of tile IlUnions MEMORANDUM AGRKEEMENT 4. This Memorandum Agreement shall remain in full force and effect for the term of the Master Agreement and its Appendices. The Unions agree to send to the Employer a copy of any written notice to the Contractor Associations signatory to the Master Agreement and its Appendices in the event any renewal or modification or termination of said Agreement is desired prior to the expiration thereof. The Employer agrees ,o be bound by any re- newal or ,nodification or termlination of the Mastcr Agreement and its Appendices, negotiated by the signa- tory Contractor Asociations and the Unions. unles. an appropriate written notice Is sent to the Unions and the Aosociations at leas.t vixtY dayv prior to Mfarch 31, 1975.4 [Emphasis supplied.] In June or July 1976, Respondent began its third re- modeling project, the store in North Miami Beach. This job ran simultaneously with its Homestead store project. Carpenters emploved on this project were paid the wages and fringe benefits described in the Master Car- penters Agreement, and their dues and fringe benefits were deducted and forwarded to the Union. During this same period of time, the Union and the signatory em- ployer associations reached a new Master Carpenters Agreement, effective April 1, 1976, through March 31, 1979. According to Fortini, the Union's normal practice was to send copies of new Master Agreements to all of the signatories shown in the last agreement. Fortini therefore believed that the 1976-79 agreement would have been sent to Montgomery Ward in Chicago. The record con- tains no evidence that it was, in fact, sent to either Mont- gomery Ward or Respondent. On September 9, 1976, at the North Miami Beach store, McDonald signed the memorandum agreement ap- pended to the new Master Carpenters Agreement. Prior to the signing, the signature page was filled out by some- one other than the union representatives. It listed the em- ployer as "Montgomery Ward (Jefferson)," with Jeffer- son's Miami, Florida, main office address. Under "De- scription of Business," it read: Retail Job at Jefferson Store 2 901 N. Miami Blvd. N. Miami Beach, FL t4 ht' exnsinll ;igreentelll Ialrnrllded the ldate It read "'Narch 31. 197h " 154 JFFRSON SO()RES. INC McDonald signed this document as "Store Development Manager." and Fortini signed for the Union.: The new agreement contained unit language and language pertain- ing to agreement to modifications and renewals identical to the 1972-75 agreement. Noting tire corroboration of Fortlini's testimony by Brown, apparent weaknesses in McDonald's ability to recall all of the ev ents fully and accurately, and the im- plausibility that i:ortini, as union business agent. would volunteer that the agreement was only for the North Miami Beach job, when he knew that Respondent was engaging in other remodeling projects within the Union's jurisdiction, I must credit the testimony of Fortini to the extent that it differs from that of MNcDonald. McDonald continued his employment with Montgom- ery Ward, assigned to Jefferson stores as store layout su- pervisor or "corporate store development manager, Montgomery Ward," until his retirement in June 1979. During that period, McDonald worked on approximately eight additional remodeling projects for Respondent. On all eight. Respondent paid the wage rates and benefits provided in the then current Master Carpenters Agree- ment." Appropriate reporting forms, signed by Mc- Donald, were submitted to the Union and to the fund trustees, for all of the carpenters employed on ll of the remodeling projects, until McDonald's retirement According to McDonald he signed the Union's agree- ments in June and September 1976, without ever consult- ing with his superiors in either Montgomery Ward or Jefferson. In fact, he claimed that he did not inform his superiors about the signing of those agreements until about a year after he had signed them, and he never gave copies to any of his superiors. John B. Hill. Re- spondent's executive vice president, and previously its di- rector of operations, who was responsible for store re- modeling from March 1977, testified that he had no knowledge of the collective-bargaining agreements until sometime in 1979. subsequent to the ratification of the 1979-82 Master Agreement. He did. however, know that Respondent was emploNing union carpenters and was complying with the Union's wage and fringe benefits re- quirement. He also knew of correspondence from Jeffer- soil's to the Union, dealing with changes in starting times and other contractually required matters. On January 22, 1979, the Union sent a letter expressing its intention to reopen the negotiations for a contract for the period beginning April 1, 1979, to each of the em- Mcol)ilnald recalled signinlg tih 1s l Uellnvll o the das tha it as first presenlted to lhin h) I riii and irl% iin , another htlsines agetill le ,laimned that }irliti expr-ss stated thai the grCMe inl tas for his joh, suhlch 3 as the North Nlltmi Heach ioh b Iiron Istifted thal he had per- 'onally droppeld off a cop (f Ihe agreemellt ea rlier. and thenll had re- turned 'sith IIornlli to seccure MItl),)olll', signature IlosesCer. he agree- merit, he said, sA i n signe i is preetece Stmilar[>. Fortini tesilfied Ihat he venl I,) the North Milmil tea;hl l store at least Is\ice. one ,ith Itrown. to secure Mcl)onall signature iBoti: BroHr,n and f-,rtnl tcstl- fed that, on their first IIt together Ito Ihal sore. hetl hey asked ssh) Mcl))nald haid ,,t s1.d tlie iitratl, M),Donald repled thai he had] tl( heard froir ( htiag it el , t ak . . ,t haI lt rll ll h I is Iortnlti denied that h had ax ili- eisMlit svith 1tit)oiald ... ierrirnig a per Joh contraitc" Ite admttled hl,,t cer. notiing the language typed ot the agreetrneli. il'eltheless. t :lth lll prlelstilllg that apparent hmllilation " Based on the latllure of the. srk, it nrla he assumed th;il he Nnrlh Milaull Be;ach pruile t Jiflcrsr,on Slire No 2. ;a11 cltilpl eltd sinitrl lllte Itl 177 ployer associations who ere signatory to the 1976-79 Master Agreement. Copies of that letter were, if the Union's normal business practice was followed, also sent to each of the employers who were themselves signatory to that agreement. That letter stated that the Union would negotiate with a committee appointed by the em- ployer associations, on behalf of each employer. It also stated that the Union expected each employer to honor the product of these negotiations. The General Counsel introduced into evidence, copies of those letters together with two postal service return receipts. One was ad- dressed to Montgomery Ward (ith no indication that it was itended for Jefferson stores) at the Miami address shown for the employer on the signature page of the 1976-79 Master Agreement. It purports to be signed, as received, by someone whose name appears to be Herman Bass. The other was purportedly mailed to Montgomery Ward in Chicago, Illinois. The Union received no re- sponse to either of these communications. Hill testified that he never saw a copy of either of these letters prior to the Union's subsequent demand (discussed infra) that Respondent sign the new Master Agreement. An exami- nation of Respondent's employment rolls for a period of 10 weeks surrounding January 22, 1979, reveals no em- ployee by the name of Herman Bass or bearing any name similar to that. The Union and the employer associations reached agreement on a new Master Carpenters Agreement, for 1979-82, sometime in April 1979, and the Union sent each of the employers a letter setting forth the new wage rates, benefits, and other changes on April 16, 1979. 11 stated that each emplo\er would receive the contract, for signing, as soon as they were printed. McDonald was shown this letter by a business agent. He was not, how- ever, ever asked to sign the new agreement. In June 1979, the Union's business representative, Mario Alleva, met with Hill at Hill's office in North Miami Beach. Alleva requested that Hill sign the new agreement, contending that Respondent was obligated to do so He pointed out that Respondent used union em- ployees on all of their jobs. Hill denied that they wuere obligated to sign, acknowledged that they did use union employees on their jobs, and "probably would continue to do so on a job-by-job basis," and refused to sign the Master Agreement. Respondent has continued to refuse to sign the current Master Carpenters Agreement. How- ever, it stipulated that "any and all carpenters employed on the Jefferson Stores' payroll" have been paid the wage rates, have been provided the fringe benefits, and have had their dues deducted consistent with the current Master Carpenters Agreement. The record does not establish whether, at the time that Respondent was requested and refused to sign the new Master Agreement it was then engaged in any remodel- ing work or employed any carpenters. Similarly, though the complaint alleges that a unit consisting of "all car- penters employed by Respondent who are employed within the Union's territorial jurisdiction" is a unit ap- propriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. an allegation denied by Respondent, the record contains no evidence, 355 I)ECISIONS ()OF NATIONAL LABOR RELATIONS OARD aside from the agreements, to establish,the appropriate- ness of such a unit. B. Analysis and Conclusions The General Counsel and the Union contend that, by virtue of its execution of the 1976-79 Master Carpenters Agreement, Respondent agreed to be bound by any re- newal or modification of that agreement by the Union and the employer associations. They further contend that Respondent was given timely notice of the Union's inten- tion to reopen negotiations following expiration of the 1976-79 agreement and failed to signify its intention not to be bound by any renewal thereof. Moreover, Re- spondent implemented the terms and conditions of the new agreement when they became effective. Therefore, they argue, Respondent was bound to the results of the latest collective bargaining, had ratified it, or was es- topped from denying its applicability to Respondent. In so contending, both the General Counsel and the Union place principal reliance on Ted Hicks and Associates, Inc., 232 NLRB 712 (1977). Therein, the employer had signed a prehire memorandum agreement binding it to the pro- visions of an existing collective-bargaining agreement be- tween the union and an employer association of which it was not a member. That agreement provided, as does the instant Master Agreement, that the employer agreed to be bound by "any modifications, extensions, or renew- als." Thereafter, the employer among whose employees the union maintained an unchallenged majority status, adhered to all of the terms and conditions of the existing agreement. The Board held that by signing the prehire "memorandum agreement and implementing its terms," the employer was on notice that its "bargaining relation- ship would be governed by the subsequent modifications of the . . . base agreement," and that if it did not intend to be so bound, "it could have so stated in the memoran- dum agreement ... " The Board pointed out that the memorandum agreement could not be construed as an in- tention to delegate bargaining authority to the associ- ation or to be bound by group rather than individual action and held the memorandum agreement "to be a separate contract between respondent and the union, wherein respondent agrees to be individually bound by the results of the ongoing relationship .... " Respondent contends that it followed a practice, not arising from being party to any collective-bargaining agreement, of paying wages, providing fringe benefits, and deducting dues consistent with the current Master Carpenters Agreement. It further contends that the agreements were signed by McDonald without authority, each, by its terms was limited to a particular project, and thus any contractual obligation arising from the signing of those agreements terminated at the conclusion of the respective projects. Respondent therefore argues that it is under no contractual obligation to sign the current Master Carpenters Agreement. Finally, Respondent con- tends that the General Counsel has failed to establiah that the carpenters employed by Respondent constituted an appropriate collective-bargaining unit, or that the Union had been designated as the bargaining representa- tive of a majority of Respondent's employees in any ap- propriate bargaining unit. Based on the record before me and the contentions and arguments of the parties, I am compelled to con- clude, in agreement with Respondent, that there existed no obligation on Respondent to sign the 1979-82 Master Carpenters Agreement. Thus, though I find Edward Mc- Donald to have possessed at least apparent authority to contract with the Union on behalf of Jefferson stores, the documentary evidence compels the conclusion that, when he signed the memorandum agreement to the 1976-79 contract, he expressly limited its application to "Jefferson Store No 2" in North Miami Beach, Florida, thus distinguishing this case from Ted Hicks, supra. No parol evidence is necessary to support this conclusion; the words written on the signature page of the memoran- dum agreement and signed without revision or objection by Fortini must be given their plain meaning. 7 It is true that Respondent complied with all of the terms and conditions of the 1976-79 Master Agreement at every location wherein it employed carpenters. That compliance, however, does not establish that it was sig- natory to the Master Agreement for those locations or that it intended to be bound by the results of group bar- gaining for all of those locations and any others wherein it might engage in carpentry work in the future. See Ruan Transport Corporation, 234 NLRB 241 (1978); Desco Vitro-Glaze of Schenectady, Inc., 230 NLRB 379 (1977). Its compliance with the contract terms, including the payment of the contractually established wage rates, the payment of fringe benefits to the appropriate funds, and the deduction of dues must be viewed in light of Re- spondent's practices as established by its conduct regard- ing the carpenters employed on the West Palm Beach store. At that location, for a period of at least 8 months, Respondent made all such payments and deductions not- withstanding that it had neither executed nor been re- quested to execute a collective-bargaining agreement. Such a practice, I find, whether lawful or not, negates the argument that subsequent compliance with the con- tractual terms at other locations establishes any adoption or ratification of the contract for those locations. As noted, the General Counsel contends that by taking no affirmative steps toward a separate agreement after notification of the upcoming negotiations, by voicing no objection to the provisions of the new contract when no- tified of them on April 16, 1979, and by putting the terms of the new agreement into effect, Respondent was bound to the results of those negotiations. Assuming that it would otherwise have been bound, the record fails to establish that Respondent was ever properly served with notice of intent to open negotiations; the letters of Janu- ary 22, 1979, were sent not to Jefferson, but to Montgo- mary Ward, and were, apparently, devoid of any refer- ence to an alleged contractual relationship between Jef- ferson stores and the Union. Moreover, the record fails to establish receipt of such letters by either Montgomery t hat McDonald may hae signed he earlier exren slon agreement with n1o such provable limitationl is immaterial Assuming that his signa- ture on that agreeenlt obligated Respondent io eecute the nent (i.e, the 1976- 7) colleclive-bargaining agreementl the record reveals that Re- spondecnt did comply. How.uer, in its compliance it limited the uture ap- pllhabilit oif thait rlew aontract lo the one location 356 JFFFl-tRSON SO()RtS. INC' Ward or Jefferson. Further, it is undisputed that Mc- Donald was not asked to sign the 1979-82 agreement when he was showsn a summary of its new terms. Re- spondent did implement those new terms hut, in view of Respondent's practice of compl ing with all the terms and conditions of each current Master Agreement. as demonstrated by its conduct before it signed any such agreement, the implementation of those terms cannot he deemed acceptance of, or agreement to. the contract." Finally I note, i agreement wilh Respondent, that the General Counsel has established neither the appropriate- ness of an overall bargaining unit nor the Union's miajor- ity status in any appropriate unit at the time that Re- spondent was requested to sign the nev agreemcnit The 1976-79 agreement which McDonald did sign, being linm- ited to the one store as it was. cannot establish the ap- propriateness of a broader unit. No evidence was ad- duced as to any of the factors which might establish that a broad unit, as alleged in the complaint. is appropriate. And, though the parties stipulated that Respondent had ,\'cA, }tr, lipgaphcal t n,. .A 6 C ia rk & crm. r It . , 2 1 NLRB 317 (178) :it,-d h! the (cricral Cunl, Is disllgtlihldlc- 1Il that case, thc rcopcillndcn had iglinl n carliCr iagrcnlcnll hilldlflg it 1, ;1 currcn clontract ad anlls 1ricnrllniJ a;1rld rnlc, als thcreof, Wlihour lnll altilon 1hereafter, Tile Cnplioer "roulllic inmplcll entcd he ploXi (lll f suhSequCntll hIccCi', c ll.rlt I .-lriiulllll i l Ircic ,l t " 11 Ihil. IT1 lall i-;lc. I hale tlllll thal Rcp llt alc igrcrlltril ti }ith 1976h 7 con- tracl a% limiltcd to he North Mlilll tClctlh lorc complied with the mandates of the current Master Car- penters Agreements at all times relevant to this litigation, for "any and all carpenters employed on the Jefferson Store payroll," there was no evidence that, as of the time that the request to sign the contract was made, Respond- enl employed any carpenlters or intended to do so i the ful u re. For all of the foregoing reasons, I find hat Respond- ent ;as not obligated to sign the 1979 82 Master Car- penters Agreement. CoN I t;sI()N () 1 x\%' Respondent has not engaged in the unifair labor prac- tice alleged in the complaint herein. Upon the basis of the foregoing findings of fact, con- clusion of law, and the entire record in this proceeding. and pursuant to Section 1()(c) of the Act I hereby issue the fllowing recommended ORDER lht clomplaint herein is dismissed in its cntirety. II Ilci e,/t no crploii are fild i, proiidcd h .c I1)2 46 of thc Rule, and Regiilalions of the National ahor Relatior, oard. the find iip, Cotill'siilos,. iaild cl-iilldcd ()rdcr hrt'inll hall. a proidcd II1 Sec 12 48 of thc Rule, ind Rguilatin,, be tiipt hs the Board arid hiLcT lTr e it, finin gs. cilncluliills i1lld ()rJtr. ailn all hectiion, ll hreto shall h deelilted ' licd fr ll puirp cs 157