Ray's Liquor Store

National Labor Relations Board - Board Decisions

May 24, 1976

224 N.L.R.B. 26 (N.L.R.B. 1976)

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