Chambersburg County Market

National Labor Relations Board - Board Decisions

Apr 14, 1989

293 N.L.R.B. 654 (N.L.R.B. 1989)

654 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Hoover Enterprises , Inc d/b/a Chambersburg
County Market and United Food and Commer-
cial Workers International Union, Local 1357,
AFL-CIO-CLC Case 6-CA-19345
April 14, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN, CRACRAFT, AND HIGGINS
On September 25, 1987, Administrative Law
Judge John H West issued the attached decision
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed an answering
brief
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,2 findings,
and conclusions only to the extent consistent with
this Decision and Order
In June 1985 the Respondent began operations
and voluntarily recognized the Union based on ma-
jority support of the store employees determined
by a card check The Respondent and the Union
negotiated for an initial contract from late August
until early November 1985 The judge found that
by November 11 the parties had agreed on all
terms and conditions of employment, including a
union-security clause, to be incorporated into a col-
lective-bargaining agreement However, on No-
vember 11, James Hoover, the Respondent's presi
dent, orally informed the Union that he was revok-
ing his earlier agreement to the inclusion of a
union-security clause On November 12 the Union
requested that the Respondent implement the
agreement presented at the November 11 meeting
in its entirety and on November 18 requested that
Hoover sign the contract
On November 29 Hoover informed the Union in
writing that he would not agree to the contract if it
contained the union security clause The Union
made a second request to sign on December 6 and,
in answer, the Respondent, on December 10, stated
unequivocally that it would sign and implement the
contract only if the union-security clause were de-
leted
The Union filed its original charge alleging
8(a)(5) violations on July 21, 1986 The judge con-
' The Respondent has requested oral argument The request is denied
as the record exceptions and briefs adequately present the issues and the
positions of the parties
2 The Respondent filed a motion to admit rejected evidence The Gen
eral Counsel filed an opposition and a motion to strike portions of the
Respondent s brief We need not rule on these motions because for the
reasons set forth below we find it unnecessary to reach the issues that
they address namely the Respondents defenses of res judicata and col
lateral estoppel
sidered the Respondent's 10(b) defense and found
that the Union's filing of a civil suit in U S district
court on January 22, 1986, seeking specific per-
formance of the contract, constituted a demand to
abide by the contract made within 6 months of the
charge The judge, relying on a "continuing viola-
tion" theory, discussed in full below, found that the
Respondent was not justified in rescinding its
agreement to the union-security clause on Novem-
ber 11, 1985, and that, therefore, the refusal to exe
cute and implement the contract in November and
December constituted an unfair labor practice ena-
bling him also to find a January 22, 1986 continu-
ing violation
The judge found that Section 10(b) did not bar
the complaint allegation that the Respondent vio-
lated Section 8(a)(5) by refusing to execute, on and
after November 11, 1985, a previously agreed-on
collective-bargaining agreement, even though the
charge was not filed within 6 months of the Re
spondent's initial unequivocal refusals to execute
that contract 3 We disagree In so doing, we note
the judge's reliance on a line of Board decisions
concluding with Torrington Construction Co, 235
NLRB 1540 fn 2 (1978),4 in which the Board held
that a charge is timely filed if brought within 6
months of any refusal to execute a contract Under
this line of cases, a charge is timely filed even
when the initial refusal to execute occurred more
than 6 months prior to the filing of the charge
This conclusion is premised on the theory that a
later refusal to execute a bargaining agreement con-
stitutes a "continuing violation" and, therefore, the
initial refusal does not trigger the time bar of Sec-
tion 10(b) After careful reconsideration, we have
concluded that this interpretation of Section 10(b)
should be abandoned Accordingly, we overrule
Torrington Construction Co, and similar cases to the
extent they find that a refusal to execute a bargain
ing agreement constitutes a continuing violation
Strict adherence to the 10(b) limitation is pre-
scribed by authoritative precedent and by legisla
tive history In Machinists Local 1424 v NLRB, 362
U S 411, 419 (1960), the Supreme Court set forth
the dual policies underlying Section 10(b)
a Sec 10(b) provides in relevant part
That no complaint shall issue based upon any unfair labor practice
occurring more than six months prior to the filing of the charge with
the Board and the service of a copy thereof upon the person against
whom such charge is made
4 See Serv All Co 199 NLRB 1131 fn 1 (1972) enf denied 491 F 2d
1273 (10th Or 1974) McCready & Sons 195 NLRB 28 30 (1972) enf
denied 482 F 2d 872 (6th Or 1973) Field & Sons 189 NLRB 406 408
(1971) enf denied 462 F 2d 748 (1st Cir 1972) Strong Roofing & Insulat
ing Co 152 NLRB 9 10 fn 2 (1965) enfd as modified 386 F 2d 929 (9th
Cir 1967) revd on other grounds 393 U S 357 (1969)
293 NLRB No 78
CHAMBERSBURG COUNTY MARKET
These policies are to bar litigation over past
events "after records have been destroyed,
witnesses have gone elsewhere, and recollec-
tions of the events in question have become
dim and confused," H R Rep No 245, 80th
Cong, 1st Sess, p 40, and of course to stabi-
lize existing bargaining relationships
Our continued adherence to the theory that a re-
fusal to execute a bargaining agreement constitutes
a continuing violation would vitiate these funda
mental policies
A respondent charged with refusing to execute a
labor contract would predictably defend by deny-
ing that a contract binding on him had been
formed This is in fact the defense the Respondent
here has asserted Establishment of such a defense
would necessarily require reference to the facts and
circumstances surrounding the contract negotia-
tions The comments of the Sixth Circuit in NLRB
v McCready & Sons, supra, 482 F 2d at 875, are in-
structive here
With the passage of time those facts become
harder to prove as memories fade and wit-
nesses become unavailable Adoption of the
position urged upon us by the Board [that a
refusal to execute a labor contract constitutes a
continuing violation] would allow a charge to
be brought at the whim of a union at any time
within the term of the contract at issue-in
this case three years During this period, the
employer is left in a precarious position, uncer-
tain of his liability and bearing an onus of de
fense which increases with time
Permitting litigation based on stale charges under
such circumstances thereby denies a respondent a
reasonable opportunity to prepare a defense and is
inconsistent with the design of Section 10(b)
Application of the continuing violation doctrine
to a refusal to execute a bargaining contract would
also frustrate Section 10(b)'s goal of strengthening
and defending the stability of bargaining relation-
ships To ensure this stability, parties in a collec-
tive-bargaining relationship must at all times be
able to assess their obligations to each other expe
ditiously and with reasonable certainty Once a
party refuses to execute a contract, a dispute is
clearly drawn To permit a challenge to this refusal
to execute at any time during the term of the con-
tract would leave the parties' relationship uncertain
for a protracted period of time
The faithful application of Section 10(b) would
not work undue hardship on the party challenging
the refusal to execute That party is as much on
notice that an unfair labor practice may have oc-
curred with the initial refusal to execute as with
655
subsequent refusals It is not unreasonable to re
quire that party to file a charge within 6 months of
the initial refusal to challenge that allegedly unlaw-
ful act and other resulting illegal conduct
Hence, we will no longer treat a party's continu-
ing refusal to execute a bargaining agreement as a
continuing violation of the Act This view is con-
sonant with those of most of the courts of appeals
that have addressed this issue 5 Accordingly, a
charge alleging an unlawful refusal to execute a
bargaining contract is cognizable only when filed
within 6 months of the time at which the charging
party is on notice of an initial refusal to execute 6
Because the unfair labor practice charge in this
proceeding was filed on July 21, 1986, litigation of
any refusal to execute occurring before January 21,
1986, would be barred by Section 10(b) Because
the Union was on clear notice of refusals to sign
before that date, its charge was untimely Accord-
ingly, we will dismiss all portions of the complaint
that allege 8(a)(5) violations with respect to failure
to execute and abide by the collective-bargaining
agreement negotiated in November 1985 '
A different result, however, is required with re
spect to the complaint allegations that the Re-
spondent violated Section 8(a)(5) on April 15, 1986,
by withdrawing recognition from the Union and in
May 1986 by implementing certain specified
changes in the employees' terms and conditions of
employment without notifying the Union or afford-
ing it an opportunity to bargain Here, there is no
10(b) issue because both the withdrawal and the
unilateral changes occurred within 6 months of the
5 See NLRB v Serv All Co supra at 1274-1275 NLRB v McCready &
Sons supra at 873-876 NLRB v Field & Sons supra at 750-751 But see
NLRB v Strong Roofing & Insulating Co supra at 930 It has been noted
that Strong may be construed as holding merely that the continuing viola
tion doctrine is applicable when the party has changed its reason for re
fusing to sign the contract McCready supra at 875 fn 3 Cf General
Marine Transport Corp v NLRB 619 F 2d 180 186 (2d Cir 1980) (con
tinning violation doctrine inapplicable to continued repudiation of multi
employer agreement) NLRB v Preston H Haskell Co 616 F 2d 136
139-142 (5th Cir 1980) (continuing violation doctrine inapplicable to
withdrawal from multtemployer bargaining unit)
6 We note that finding the continuing violation doctrine inapplicable to
refusals to execute bargaining agreements is not inconsistent with the
Board s holding in Farmingdale Iron Works 249 NLRB 98 99 (1980)
enfd mem 661 F 2d 910 (2d Cir 1981 ) that breaches of periodic con
tractual obligations may constitute separate and distinct violations that
can be remedied if within the 10(b) period See Beckley Belt Services Co
279 NLRB 512 fn 6 (1986) Breaches of periodic contractual obligations
fall within the first category of cases the Court defined in Machinists
Local 1424 v NLRB supra 362 U S at 416-417 which includes occur
rences within the 6-month limitations period that in and of themselves
may constitute as a substantive matter unfair labor practices Such
breaches are not merely reiterations of an initial unlawful act but are sep
arate unlawful acts based on separate obligations
' In view of our disposition of this portion of the case we find it un
necessary to pass on ( 1) the judge s finding that the Union s filing of the
January 22 1986 lawsuit constituted a continued demand to execute
the contract and (2) the judge s ruling on the merits of the Respondent s
defenses of res judicata and collateral estoppel
I
656 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
filing of the charge Although we agree with the
judge's conclusion that the Respondent violated
Section 8(a)(5), we do so only for the following
reasons
The Board has consistently held that where, as
here, an employer has voluntarily extended recog
nition to a union, the union is entitled to an irrebut-
table presumption of majority status until a reason-
able time for bargaining has elapsed After that
point the union enjoys a rebuttable presumption of
majority status This presumption can be rebutted
by an employer's showing that at the time of the
refusal to bargain the union did not have majority
status in fact, or that the employer had a good-faith
doubt of the union's majority status based on objec-
tive considerations See Royal Coach Lines, 282
NLRB 1037 at 1038 (1987)
Normally, the Board makes a threshold finding
about whether a reasonable time for bargaining has
passed before determining whether an employer's
evidence could support a good-faith doubt regard-
ing the union's majority status or a finding of no
majority in fact Brennan's Cadillac, 231 NLRB
225, 226 (1977) Here, however, we do not have to
decide the threshold issue because, even if a rea-
sonable period of time had elapsed, the Respondent
has submitted no record evidence bearing on the
issue of loss of majority support 8
Accordingly, we conclude that, by withdrawing
recognition from the Union on April 15, 1986, and
implementing certain unilateral changes in terms
and conditions of employment in May 1986, the
Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the
Act We will therefore order the Respondent to
cease and desist, to bargain on request with the
Union, and, if an understanding is reached, to
embody the understanding in a signed agreement
The Respondent is also ordered to cancel the un-
lawfully implemented changes if the Union so re-
quests
ORDER
The National Labor Relations Board orders that
the Respondent, Hoover Enterprises, Inc d/b/a
Chambersburg County Market, Chambersburg,
8 As noted by the judge the Respondents counsel in his brief to the
judge asserted that Hoover withdrew recognition from the Union after
receiving a petition signed by a majority of the employees stating that
they no longer desired the Union to serve as their representative Howev
er this justification is not substantiated by any testimony before the judge
or by any documents entered into the record The judge apparently in
recognition of this critical defect in the Respondent s defense relied on
his finding of a prior unfair labor practice related to contract execution to
find that even if the Union had lost majority support the petition was
tainted and could not be relied on by the Respondent However the
judge never made a finding that the Union had in fact lost the support of
the Company s employees
Pennsylvania, its officers, agents, successors, and
assigns, shall
1 Cease and desist from
(a) Granting wage increases, Sunday and night-
shift pay differentials, holiday pay, 1 week's vaca
tion after 1 year's service, and medical coverage
without affording the Union an opportunity to bar
gain about the changes as the exclusive representa
tive of the employees in the bargaining unit set out
below in paragraph 2(a)
(b) Withdrawing recognition of, and refusing to
bargain with, the Union as the exclusive represent
ative of the Respondent's employees in the bargain-
ing unit set out below in paragraph 2(a)
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex
ercise of the rights guaranteed them by Section 7
of the Act
2 Take the following affirmative action neces-
sary to effectuate the policies of the Act
(a) Restore recognition to and, on request, bar-
gain with the Union as the exclusive representative
of the employees in the following appropriate unit
concerning terms and conditions of employment
and, if an understanding is reached, embody the
understanding in a signed agreement
All employees employed by the Employer at
its Chambersburg, Pennsylvania facility, ex-
cluding directors, officers, shareholders of the
Employer, store director, store managers, meat
manager, frozen food manager, dairy manager,
produce manager, deli manager, bakery man
ager, confidential employees and guards pro-
fessional employees and other supervisors as
defined in the Act
(b) On request of the Union, cancel the unilateral
changes in employees' terms and conditions of em
ployment found unlawful herein
(c) Post at its facility in Chambersburg, Pennsyl
vania, copies of the attached notice marked "Ap-
pendix "9 Copies of the notice, on forms provided
by the Regional Director for Region 6, after being
signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediate-
ly upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material
9 If this Order is enforced by a judgment of a United States court of
appeals the words in the notice reading Posted by Order of the Nation
al 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
CHAMBERSBURG COUNTY MARKET
(d) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply
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 has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
WE WILL NOT grant wage increases, Sunday and
night shift pay differentials, holiday pay, 1 week's
vacation after 1 year's service, and medical cover-
age without affording the Union an opportunity to
bargain about the changes as the exclusive repre-
sentative of those of you in the bargaining unit set
out below
WE WILL NOT withdraw recognition of, and
refuse to bargain with, the Union as the exclusive
representative of those of you in the bargaining
unit set out below
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act
WE WILL, on request, bargain with the Union
and put in writing and sign any agreement reached
on terms and conditions of employment for our
employees in the bargaining unit
All employees employed by the Employer at
its Chambersburg, Pennsylvania facility, ex-
cluding directors, officers, shareholders of the
employer, store director, store managers, meat
manager, frozen food manager, dairy manager,
produce manager, deli manager, bakery man-
ager, confidential employees and guards, pro-
fessional employees and other supervisors as
defined in the Act
WE WILL, on request of the Union, cancel the
unilateral changes we made in your terms and con-
ditions of employment that the Board found to be
unlawful
HOOVER ENTERPRISES , INC D/B/A
CHAMBERSBURG COUNTY MARKET
Glenn M Olcerst Esq, for the General Counsel
Robert W Lambert Esq, of Indiana, Pennsylvania, for
the Respondent
DECISION
STATEMENT OF THE CASE
657
JOHN H WEST Administrative Law Judge on a
charge filed July 21, 1986 amended August 11 and 26
1986, against Hoover Enterprises Inc d/b/a Chambers
burg County Market, a complaint was issued September
5, 1986 and amended November 21, 1986 The amended
complaint alleges that Respondent violated Sections
8(a)(1) and (5) and Section 8(d) of the National Labor
Relations Act (Act) by withdrawing, without justifica
tion, a previously agreed to collective bargaining propos
al when it appeared that ratification was imminent, by
failing and refusing, since the November 12, 1985 union 1
request to execute a written contract embodying a full
and complete agreement reached on November 4, 1985,
by refusing, notwithstanding the Union's request on No
vember 12 and December 6, 1985, to abide by the collec
tive bargaining agreement reached on November 4, 1985,
by withdrawing on April 15, 1986 its recognition of the
Union as the exclusive collective bargaining representa
tive of the unit, and by implementing pay increases
Sunday and night shift pay differentials, holiday pay 1
week s vacation after 1 year s service and medical cov
erage in May 1986 without prior notice to the Union and
without having afforded the Union an opportunity to ne
gotiate and bargain as the exclusive representative of Re
spondent s employees In its reply to the amended com
plaint, Respondent asserts that the Union ceased being
the designated exclusive collective bargaining representa
tive of the unit after April 14, 1986 Further, Respondent
denies that it violated the Act It also raises two affirma
tive defenses, namely that certain of the allegations in
the complaint are barred by the statute of limitations and
that the issue of the existence or nonexistence of a collec
tive bargaining agreement between the Union and Re
spondent may not be relitigated in this proceeding under
the principles of res judicata, collateral estoppal, and
claims preclusion, as a result of certain findings an order
entered in Civil Action No 86-0406 in the United States
District Court for the Eastern District of Pennsylvania
A hearing was held in Chambersburg Pennsylvania
on December 3, 1986 on the entire record in this case
including my observation of the demeanor of witnesses
and consideration of the oral argument of the General
Counsel and the brief filed by Respondent in February
1987 I make the following
FINDINGS OF FACT
I JURISDICTION
Respondent, a Pennsylvania corporation, is engaged in
the retail sale of groceries with its principal offices locat
ed in Chambersburg, Pennsylvania The complaint al
leges, the Respondent admits, and I find that at all times
material, Respondent has been an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act It is also found that the Union has been a
'Hereinafter referred to as United Food and Commercial Workers
International Union Local 1357 AFL-CIO-CLC
658 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
labor organization within the meaning of Section 2(5) of
the Act
II THE ALLEGED UNFAIR LABOR PRACTICE
In about June 1985 James Hoover opened the Cham
bersburg County Market It has between 85 and 95 em
ployees Previously, Hoover operated a grocery store in
Barnesboro, Pennsylvania While still in Barnesboro,
Hoover began discussions regarding the involvement of
the Union at the Chambersburg facility with Russell
Fowble, the vice president of the Union Hoover al
lowed the Union to `come in and solicit the employees,"
he accepted the majority vote of the employees at the
Chambersburg store, which was demonstrated by a card
check, and he voluntarily granted recognition to the
Union
On June 26, 1985, Hoover, who is president of Re
spondent, entered into an agreement (G C Exh 23),
with Human Resources Management, Inc (H R M )
under which the latter agreed to provide "general labor
consultation services, including, but not limited to, con
tract administration, contract negotiations, and grievance
service and other related services 2 The agreement fur
ther provides
The Owner hereby agrees that within ten (10)
days from the date of this agreement it will notify
any and all labor organizations representing em
ployees of the Owner that HRM is authorized to
represent the Owner in all negotiations and/or dis
cussions relating to labor problems including con
tractual benefits and contractual negotiations so
long as the agreement is in effect 3
Frank Fenters and Frank Botta both of H R M , were
assigned to handle Respondent's account with the former
being the chief spokesman
Before negotiations on the collective bargaining agree
ment began , Hoover allegedly told Fenters that he ob
jected to a union security clause or a union shop clause
in4 any collective bargaining agreement covering the
Chambersburg store Assertedly, Fenters told Hoover
that the Union would never buy it
Fowble had a master contract proposal prepared and
contacted Fenters around August 23, 1985, to arrange a
meeting Farlier Hoover told Fowble that H R M would
be handling Respondent's labor negotiations and that
Fowble should call H R M in Pittsburgh, Pennsylvania
At the August 23 meeting Fowble and Grant Rhodes
who is a union business representative presented Fenters
and Botta with the Union s proposal for the contract
(G C Exh 2) 5 It was agreed at the August 23, 1985
meeting that the next meeting would be on September 5,
1985
2 H R M previously represented Hoover s Barnesboro store
3 At the time of the trial herein the agreement was still in effect
4 Such a clause was contained in the agreement between the Union and
Hoover s prior operation in Barnesboro
5 At no time during the August 23 1985 meeting was Fenters author
ity discussed Fowble testified that he was directed to speak to Fenters
by Hoover and Fenters presented himself as a negotiator
Hoover attended the September 5, 1985 negotiating
session but Fenters was the spokesman for the Company
at this and subsequent negotiating sessions Hoover and
Fenters, however, conferred and caucused throughout
the sessions Botta also attended for Respondent Fowble
and Rhodes attended for the Union, with the former
acting as the chief spokesman The Employer presented
its proposal (G C Exh 3) 8 Fowble testified that the
highlights were the union security clause with the Em
ployer proposing a 90 day period, pension with the Em
ployer proposing that the contract not provide for one,
no severance, and a health and welfare plan similar to
the Union's but it would be provided by the Employer
At the conclusion of the meeting arrangements were
made to meet on September 13, 1985
The same individuals, except Botta, attended the Sep
tember 13 session Fowbie testified that the parties
agreed to modify the union security clause article 2 2, to
provide for a 60 day period, which had been suggested
by the Employer, that Fenters agreed to this and Hoover
was present when he, Fenters, signified his agreement,
that it was agreed that the probationary period, article
8 2, would also be 60 days, that as agreement was
reached regarding each particular provision he indicated
this on his working copy (G C Exh 4),7 that Hoover
did not object or say anything when it was agreed that
the union security clause and the probation clause would
be modified to read 60 days, that at the end of the Sep
tember 13, 1985 negotiating session there were a number
of specified contract provisions still left on the table and
that Hoover requested him to send a copy of the trust
document governing the pension plan to Hoovers attor
ney, Lambert for his review 8
Hoover testified that he said a few things at the Sep
tember 13 meeting and it was either at this meeting or
possibly at the first on September 5 that he said some
thing about the union shop clause and [i]t was pushed
to the side, it was treated like a joke " Hoover could not
recall specifically what was resolved at the first two ne
gotiating sessions
With a cover letter dated September 25 1985 Fowble
forwarded the declaration of trust for the pension plan to
Lambert (G C Exh 5 )
The next negotiating session was held on October 7,
1985 Present were Hoover Fenters, Botta, Fowble, and
Rhodes With respect to this meeting , Fowble testified
that all outstanding issues were settled and the parties
`reached a final agreement He believed that when
Fenters agreed to each provision in Hoover s presence
without his objection that the agreement was final and
6 In its proposal the Employer specifically reserved the right to add to
delete from or otherwise modify these proposals at any time during ne
gotiations The Union s proposal contained similar language
7 On the working copy both the provision dealing with the union se
cunty clause and the probationary penod are marked 9/13 Fowble
testified that the 9/ 13 along with OK signifies agreement reached be
tween the Union H R M and the Employer on these provisions on that
date
8 Fowble testified that this was the first time Lambert s name came up
in negotiations that up to this point he was never told Lambert played
any kind of a role in negotiations and that he believed that he was nego
tiating with all the authorities necessary to commit to a contract
CHAMBERSBURG COUNTY MARKET
binding on the Company, that at the conclusion of the
meeting everyone shook hands9 and it was determined
that H R M would prepare the final document and mail
it to both parties who were to review it for errors In
Fowble's opinion the Employer agreed to a pension plan
on October 7 1985, that during this negotiating session
the Employer did not reserve any decision about the
health and welfare package, and that the extent of vaca
tions and the overtime rate to be paid certain employees
were not open issues at the end of this negotiating ses
sion
Regarding the October 7, 1985 negotiating session,
Fenters testified that at this session , as with the other ses
sions , when he agreed to a proposal at the table Hoover
was present and he, Fenters, would consult with Hoover
either at the table or in the hall or before the meeting,
before acknowledging agreement Fenters also testified
that the general rule of his relationship with Hoover was
that he would get an agreement from Hoover before he,
Fenters, would agree to anything with the Union, that
only a part of the union shop provision, article 2 2, was
in issue , namely, [t]ime frame of when they would
become eligible to join the union " Fenters testifed that
the Employer's counterproposal of 60 days for the union
shop provision was agreed to by the Union in Hoover's
presence, that the 60 days also applied to the probation
ary provision and there was a meeting of minds as the
period of time that both the union shop provision and
the probationary period would apply Fenters was only
informed that the only aspect of the union shop provi
sion that was in issue was the particular period applica
ble and this is all he spoke about, that Hoover never told
him that there was an objection to there being a union
shop at the involved store, that in his mind he knew that
Hoover had agreed to a union shop, and the only ques
tion he discussed with Hoover was what period of time
should apply to the union shop provision Fenters said
no one ever proposed to eliminate the union shop alto
gether at the table He is certain that on October 7, 1985,
the parties had agreed to all the language in the union
shop provision, article 2 2, and that on October 7 1985
there was complete agreement on all the outstanding
issues except the pension 10 At the conclusion of the ses
sion Fenters asked Fowble 'do we have an agreement
and Fowble said yes and then everyone including
Hoover, shook hands, that the pension issue was re
solved shortly after October 17, 1985, that with the reso
lution of the pension question the parties had reached a
final unconditional agreement and that arrangements
were made that Fowble and Hoover would subsequently
get together and go over the agreement for typographi
9 Fowble testified that he did not recall shaking hands with these mdi
viduals at the conclusion of the prior negotiating sessions
10 Botts s notes of the session regarding the holiday week provision
show that the parties agreed to time and a half rather than double time
and under sec 14 1 Benefits Botts s notes show 2 weeks vacation after
3 years and omit 3 weeks after 8 years Fenters testified that on October
7 1985 the parties agreed to 2 weeks vacation after 3 years continuous
service He also testified that during a holiday week overtime at time and
a half would be paid after 32 hours work and that notwithstanding that
none of these agreements were ever included in the written documents
agreement was reached on them at the table
659
cal errors, grammatical errors or what have you" before
it got punted up in final form
Botta, who at the time of the trial here had become a
practicing attorney, testified regarding the October 7,
1985 negotiating session that the final understanding with
respect to vacations was 2 weeks after 3 years and a 3
week vacation was omitted during the term of the agree
ment Botta also stated the parties agreed at this session
that the holiday week provision would be 32 hours with
time and a half
Hoover testified that at the end of the October 7, 1985
session certain items remained open, namely, pension,
health care, overtime on holiday weeks, successorship,
and perhaps one or two other points With respect to
this session he also testified that at the end of this meet
ing it was his understanding that regarding vacation it
was 1 week, 1 year and that was it At that point, he had
not agreed to 2 weeks' vacation And that while he and
Fowble shook hands at the conclusion of this meeting
they also shook hands after the two prior sessions
Hoover said no later meeting was scheduled at that time
and "typically we did not schedule another meeting at
the end of a negotiating session ' Hoover stated that re
garding pension and health and welfare, the Union was
going to get copies of their programs for the Employer
to review and HRM was to put together the package as
they understood it and give it to me to review " He did
not believe that there was a binding contract at the end
of the October 7, 1985 session Hoover said , I felt there
had to be another meeting , there was no doubt in my
mind there was going to be another meeting ' and that 8
to 10 years ago he personally negotiated a labor con
tract i
On rebuttal Fowble, with respect to the October 7,
1985 session , testified that at the end of the session
Fenters asked if we have an agreement ' and when
Fowble said yes he shook Fenters' and Hoover s hands
He did not recall shaking their hands at the end of the
prior two sessions Fowble felt that the pension issue was
resolved on October 7, 1985, because the amount in
volved namely 15 cents was agreed to and the only
thing Hoover was concerned about was his withdrawal
liability and that is why he wanted his attorney to look
at this aspect of the plan Fowble stated that subsequent
ly when there was a problem with the pension docu
ments he in order to avoid further delay, dropped the
pension proposal in late October 1985, and with the
agreement of the Employer had the 15 cents put into
wages t i
With a cover letter dated October 11 1985 Botta for
warded a document titled CONTRACT AGREE
MENTS to Fowble (G C Exh 6) In the letter Botta
indicated that he had sent a copy to Hoover for his
review, and that he, Botta, was awaiting a response from
Hoover and his attorney regarding the pension plan
Fowble telephoned Botta to point out some errors in the
document and H R M agreed to the modifications The
document contains the following on page 1 thereof '5
" With a cover letter dated October 9 1985 Lambert returned the
declaration of trust to Fowble indicating that it was incomplete and
pages were out of order
660 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Art 2 2 Union Shop Change the thirty first (31st) day to
the sixtieth (60th) day
With respect to General Counsels Exhibit 6, Fenters
testified that regarding vacation it states only Omit (3)
weeks vacation after eight (8) weeks [sic] of continuous
service " He specifically recalls that the agreement at the
table was 2 weeks after 3 years Fenters also said that
H R M handles in excess of 250 contracts a year and uti
lizes a word processor, and that is where the errors oc
curred He said that the document, regarding holiday
week, does not state 32 hours, but rather reads Remains
the same' which refers to the Employer s original pro
posal (G C Exh 3), and refers which speaks to 40 hours
Fowble received the following letter dated October
17, 1985 with an attachment from Botta
Re Chambersburg County Market
Dear Russ
Enclosed you will find corrections for CHAM
BERSBURG COUNTY MARKET s wage rates
The correction which I have found is to change the
thirty (30) day probationary period to our agreed
sixty (60) day probationary period
I understand that James Hoover s attorney has
requested additional information regarding your
Pension Fund This remains the only issue that is
open
Should you have any questions, I will be pleased
to answer them
The enclosed CONTRACT AGREEMENTS repeat
the alleged errors described in the next paragraph
With a cover letter dated October 30, 1985 , Fowble
forwarded a synopsis of the health and welfare benefit
plan for the Chambersburg County Market (G C Exh
9)
On November 4 1985 Botta forwarded the following
letter (G C Exh 24) to Hoover
Dear Jim
I have enclosed a completed contract which both
parties have collectively agreed Also you will find
a drafted Agreement which I would ask you to sign
along with Russ Fowble after the two of you have
initialled each page
Should you have any questions regarding the
contract or the Agreement, please contact me
The attachment contained a union shop clause which re
ferred to the 60th day
On November 4 1985 Botta also forwarded the fol
lowing (G C Exh 10)
Re Chambersburg County Market
Dear Mr Fowble
Enclosed you will find the collective bargaining
agreement which has been finalized in a contract
format I have also drafted an Agreement which I
would ask each party to sign after your review of
the contract
Should you have any questions regarding the
contract or the Agreement please feel free to con
tact me 12
With respect to his above described November 4, 1985
correspondence Botta testified that
A See, because I wasn t part of all the negotiat
ing sessions, I think it needs to be explained that our
company dust finished the negotiations for Cumber
land County Market which sounds similar to Chain
bersburg County Market They re both County
Markets they both start with Cs and there was
some kind of misunderstanding, whenever this con
tract was put together for those reasons I would sit
down at the word processor and say okay, to my
secretary, are you ready to put together the con
tracts that we have so far for Chambersburg and I
remember her, you know, getting that confused
with Cumberland County Market And, so, when
ever they were put together, and because I was not
part of the full negotiating sessions, that s-this is
why there was some misunderstandings of what
we re discussing here today with the forty hour bid
in and the other matters of vacation
Q So, did you call Mr Hoover or did he call
you?
A Well, I received phone calls after-after I put
together the orig-the very first-
Q Okay
A - contract of November 4th Okay I put it
together with my secretary Mr Fenters was not in
the office, that was to be held for Mr Fenters
review, but it went through the mail Since it went
through the mail, Mr Fenters was not able to
review it, therefore, there was these misunderstand
rags that we had And so I would receive phone
calls from Mr Fowble and I notified Mr Hoover
that there was going to be changes to be made and
that s why the arangements were made for Mr
Fowble and Mr Hoover to de-initial all of those
Articles
Q All right But I m saying between October
17th and November 4th your deposition says that
you had a number of phone conversations with Mr
Hoover
A There s no question about it
Q Okay And did you review the contents of
the November 4th document that you were assumed
to be mailing to him during those conversations?
A The full contents I did not go over fully I
went over those items and I notified Mr Hoover
that it had gone out without the appropriate review
with the chief negotiator from our company And,
for him to look it over and to get back to me and
12 Fenters testified that when the attachment to both November 4
1985 letters to the parties left H R M s office sec 13 2 referring to hoh
day week stated 40 hours and stated double time as opposed to time and
a half and that the changes which appear were made after H R M mailed
the document Also sec 14 1 stated
1 week vacation after 1 year continuous service
2 weeks vacation after 5 years continuous service
CHAMBERSBURG COUNTY MARKET
that, whenever the time came for him and Mr
Fowble to review it to initial it , so there was no
misunderstanding of any of the Articles
Q And during those-I guess Mr Hoover had
your October 17th s document in hand during that
period Did he raise questions with you about that
document while you were compiling the November
4th document?
A No
Q Well, did he raise any questions with regard
to the union security clause?
A No, he didn t
Q Okay Did the union ever request any substan
tive changes in the November 4th document to
you? The union, now
A The union-I got phone calls from Mr
Fowble that there were some discrepancies that he
had and that I told him that I'd have to check with
Mr Fenters in order to reassure him of-that they
were agreed to
Q Okay You're referring to the union security
clause?
A No, I'm not referring to the union security
clause because I wasn t put on notice until Novem
ber 11th
Q Okay What are you referring to?
A Well, there was-there was the forty to
thirty two hour bit that was in question and the va
cation was in question and helped him clarify them
Q Okay So, it turned out that these were just
errors and that s why he was meeting to correct
them with Mr Hoover?
A Well, whether I could describe them as being
errors or whether they were negotiated I had to be
reassured because I was not, like again , I was not
part of all the sessions
Q Okay
A During negotiation
On redirect Botta testified that it is possible that re
mains the same" regarding section 13 2 refers back to the
Employers September 5 1985 proposal referring to time
and a half The same paragraph however, refers to 40
hours
With Hoover s permission 13 Rhodes posted the fol
lowing notice, which was signed by Fowble in the in
volved store on November 4 1985
To All Employees of County Market, Chambers
burg, PA
Dear Employee
A special meeting is scheduled for Monday No
vember 11, 1985, at 8 00 P M at the Holiday Inn,
Chambersburg, PA at which time the Negotiating
Committee for the Union will present the Employ
er s final offer for your new Contract for your ac
ceptance or rejection
Looking forward to seeing you at the meeting
13 Hoover first checked with Lambert
661
Hoover testified that he also called Fenters on
Monday November 4 1985, and asked Fenters why the
Union was posting a notice when we didn t have a
complete agreement and Frank said don t worry about
it everything will be worked out 14
The following Wednesday or Thursday, just before he
received Botta s November 4 1985 mailing, Hoover ac
cording to his testimony received a telephone call from
Fowble who wanted to set up a date for a meeting The
two agreed on 11 am on November 11 1985, so that
according to Hoover s testimony, everything could be
ironed out in time for the ratification meeting Hoover
also testified that he told Fowble that he didn t know
why they were having a ratification meeting when we
didn t have this completed yet, and that there were
problems with the agreement because I didn t feel that
everything had been worked out
On rebuttal, Fowble testified regarding the telephone
conversation described in the next preceding paragraph
that he did not say anything to Hoover about continuing
negotiations and Hoover did not say anything to him
about continuing negotiations Fowble did not recall
Hoover saying anything about not having a complete
agreement or rushing the matter in light of the ratifica
tion vote, and also that Hoover did not say there were
problems because there were issues that were open
Regarding November 11, 1985 Fowble testified that
he and Rhodes met with Hoover and a management rep
resentative in Hoover s store at about 10 am Fowble
also stated that between October 17 and the November
11, 1985 meeting he did not receive notification from
Hoover or anyone at H R M that there was a problem
with any of the provisions that had been agreed to previ
ously He said the purpose of the meeting was to correct
typographical errors, that this was the first time he met
with Hoover without Fenters being present that he and
Hoover made a number of corrections so that the docu
ment would reflect what had already been agreed and
nonsubstantial changes i e, the name of the owner etc
initialing the provisions as they went along Fowble said
Hoover refused to initial the union shop provision and
that he and Hoover discussed this matter by themselves
in the hall with Fowble saying it had never been a prob
lem in negotiations and they were not there to negoti
ate 15 He stated Hoover ended the conversation indicat
mg that 'it will be all right Lets just go back in and
continue to go through the contract that section 13 2
was changed to reflect the already agreed 32 hours that
following the conclusion of the initialling of the
document except for Article 2 2 Mr Hoover and I,
again went out in the hallway to discuss his objec
tion, his problem with 2 2 Again I can t recall the
exact conversation except for at the conclusion he
14 Hoover received the health and welfare package the first week in
November
15 It was stipulated that his Union represented employees at Hoover s
prior business and as indicated in fn 4 supra the pertinent collective
bargaining agreement contained a union shop clause On another occasion
during the November 11 1985 meeting Fowble reminded Hoover that
they were not there to negotiate namely regarding sec 10 2 and
Hoover then initialed the provision
662 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
said, look I don t have much of a problem with it,
but I want to give my attorney the courtesy of a
phone call, and 111 get back to you this afternoon
And, with that assurance, I left,
that Hoover called Fowble that afternoon and said that
he, Hoover, would not agree to the union shop clause
being put in the contract He then called Fenters who
said, `Well, you were supposed to meet this morning just
to fix typographical errors This is the first I d heard it
was a problem , that Fenters said he would call Hoover,
that subsequently Fenters called and said
he had talked to Mr Hoover, he can t get him to
move, he does not understand He had never heard
it was a problem before this point, this day He
didn t know that there was a problem with the
union shop He can t understand what s wrong with
the man He just doesn t understand He says I in
sorry
Fenters said that November 11, 1985 was the first time
he or any representative of the Union had heard that
there was a problem with section 2 2, and that the em
ployees ratified the agreement with the union shop
clause in it
On cross examination, Fowble testified regarding his
November 11, 1985 meeting with Hoover that it was not
his understanding that prior to November 11, 1985, the
2 week vacation had never been resolved 16 Fowble said
that with respect to the successorship clause, section 12
Hoover on November 11, 1985 wanted it to extend only
up to the date of any transfer and this change was made
but there was no negotiating over this,17 Fowble also
stated that during the ratification meeting he asked about
the union shop and he told the employees that there was
a bit of a problem with that [b]ut I think we can get it
resolved , and that he believed that he told the employ
ees that Hoover had agreed to the union shop clause up
to that morning
Rhodes testified that the notes he took were my own
personal notes for recall at negotiation sessions
[a]nd as far as right now I'm not sure on some of the
items Some were very sketchy some were complete 18
18 Fowble s negotiating notes do not reflect that Hoover ever agreed
to 2 weeks after 3 years or that with respect to Sec 13 2 holiday week
the parties agreed on time and a half before November 11 1985 On redi
rect he pointed out that he was the Union s chief spokesman and some
times when he is engaged in negotiating things are left out of his notes
Rhodes was supposed to take notes which matter will be treated infra
17 Fowble testified that par 9 of the onginal complaint issued in this
proceeding on September 5 1986 G C Exh 1(g) states On various
dates between September 1 1985 and November 11 1985 Respondent
and the Union met for the purpose of engaging in negotiations As
noted above the amended complaint alleges a full and complete agree
ment on November 4 1985 The onginal complaint also states that on or
about November 11 1985 the Union and Respondent reached full and
complete agreement with respect to terms and conditions of employment
of the unit to be incorporated into a collective bargaining agreement be
tween the Union and Respondent Fowble testified that the November
11 1985 date in the original complaint is incorrect
18 His notes do not reflect that any agreement was reached pnor to
November 11 1985 regarding 2 weeks vacation or whether it would
occur after 3 or 5 years or whether overtime would be paid at the rate of
double time or time and a half
Rhodes testified regarding the November 11 1985 meet
ing with Hoover that Fowble and Hoover they had al
ready agreed on when an employee would be entitled to
2 weeks' vacation, and on 32 hours with respect to holi
day week
Fenters testified, regarding the November 11, 1985
Fowble/Hoover meeting that it was his understanding
that the meeting was for proofreading purposes only and
not for negotiations, that the corrections made at that
meeting were merely corrections to reflect what the par
ties had agreed to at the table Fenters also said that No
vember 11, 1985, was the first time he heard that Hoover
objected to the union shop provision 19 Hoover told
Fenters on November 11 that some employees had ap
proached him wanting to know why they had to join the
Union against their will and Hoover respected their
wishes Fenter stated that is why Hoover would not
agree to the union security clause, and that he called
Fowble back and told him Hoover would not agree to
the union security clause
Regarding the November 11, 1985 meeting with the
union representatives, Hoover testified that he asked
Store Manager Mike Shaffner to attend more or less
just to balance out the table I d never met with the
Union alone, I didn t feel comfortable doing it
Hoover said there was considerable discussion on the
successorship provision, 1 2, and Fowble did not want to
change it, that he refused to initial the union shop provi
sion
because, probably from the middle of October on, I
was, what I call barraged by employees asking me
if they had to join the union They were voicing
their objection to the union, and I just didn't feel
that I should have to force them to join a union if
they didn't want to join it
Hoover had not agreed pnor to this meeting that the
overtime in section 13 2 holiday week would begin after
32 hours, that the time and a half was first agreed to at
this meeting and therefore the changes made in section
13 6 were not merely typographical Before this meeting
there was no agreement for any more than 1 week s va
cation after 1 year and he was surprised when he saw 2
weeks vacation after 5 years The Employer s original
proposal, General Counsels Exhibit 3 proposed 2 weeks
vacation after 5 years continuous service Hoover stated
that in a deposition he indicated that he had agreed to
article 2 2 and then changed his mind about his previous
agreement to article 2 2 on November 11, 1985 that he
believed the language in the Employers onginal propos
al reserving the right to amend modify or revoke al
lowed him to revoke his agreement to the union shop
clause on November 11 before the ratification vote
Hoover testified
19 Botta also first learned of Hoover s objection on November 11
1985 Fenters testified that dung negotiations a question came up about
whether people who belonged to a religion that objected to unions would
have to join and it was concluded that they would but the moneys they
contributed would go to a charity of their choice Botta corroborated
this To his knowledge no one of such a religious persuasion worked at
Hoover s store and the discussion was a general one
CHAMBERSBURG COUNTY MARKET
[T]he main reason I changed my mind on the
issue was, my employees objected to it
Q How did they know what was in the proposed
contract?
A They wanted to know, if the union came in if
they had to join the union And, I told them, as it
stands right now, yes
Q So, you were talking directly to the employ
ees about what was on the table?
A No, sir If they asked me that specific ques
tion, I gave them that answer
Q Well, then your answer to me is , yes They
asked you questions about what was transpiring at
the bargaining table and you answered them
A They didn t ask me questions, they asked me
that specific, one question
Q How many employees asked you that ques
tion?
A I don't know exactly, at least a dozen Now,
when I say a dozen, let me qualify that, that doesn t
mean that a dozen people voiced their objection to
me personally But, I heard through my managers
at the store, of at least a dozen people were upset
A We he and the employees didn t discuss a rati
fication meeting
Q But, you knew there was one?
A I knew that sooner or later there had to be
one
Q Instead, you decided, on the eve of the ratifi
cation meeting, that you were going to revoke what
you had previously agreed to Correct?
A I don t know if it s fair to say that I decided
on the eve but it was the eleventh hour, but at the
same time , I in not the guy that set that meeting up
Q But, the first time you told the union or HRM
that you had made up your mind-
A That s correct, we re not going to argue about
that
Q Okay Was November 11th? Correct?
A That's right That s right
Q Okay
Q And it is also a fact, is it not that is the only
thing in your own mind that stands between you
and a contract with this Union, everything else is
resolved, even in your own mind?
A [No response]
Q As of November l lth?
A As of the end of our meeting on November
11th, yes
Q Okay So this is the one and only thing in
your mind at least that stands between you signing
that agreement voluntarily correct?
A Yes
Shaffner20 testified with respect to the November 11,
1985 meeting that he could not remember the specifics of
663
what was discussed, and that it is possible the give and
take that occurred at the meeting related to what each
side believed had been agreed to previously
On November 12, 1985, Fowble forwarded the follow
ing (G C Exh 12) to Fenters
Dear Mr Fenters
It has been brought to the attention of the Union
that certain employees employed by County Mar
kets Chambersburg are being scheduled to work
split shifts by mutual agreement
The Union fully expects that those employees
who, by mutual agreement are working split shifts,
will continue to do so, and the practice of schedul
ing split shifts will be eliminated by attrition
It is also the understanding of the Union that cer
tarn part time employees have been assigned to
work in excess of 30 hours per week The Union
does not expect that any of those employees will
have their hours reduced by virtue of the ratifica
tion of the contract Those employees who have
been assigned to work more than 30 hours per week
will continue to do so, and this practice also will be
eliminated through attrition
Please indicate your concurrence with this under
standing by signing and returning a copy of this
letter to the Union office
For the Company For the Union
While Fowble signed on November 12, 1985, the Com
pany never signed this document
On November 12 1985, Fowble sent the following
mailgram to Fenters
PLEASE BE ADVISED THAT THE FINAL PROPOSAL WE
RECEIVED FROM YOU ON NOVEMBER 4, 1985 HAS
BEEN PRESENTED TO THE EMPLOYEES OF COUNTY
MARKET CHAMBERSBURG PENNSYLVANIA ON NO
VEMBER 11 1985 AT WHICH TIME THE MEMBERSHIP
APPROVED AND RATIFIED YOUR FINAL PROPOSAL
PLEASE IMMEDIATELY IMPLEMENT THE AGREEMENT
IN ITS ENTIRETY
On November 15, 1985 Fowble and Fenters met and
both initialed and dated the contract (G C Exh 15 (in its
final form which included section 2 2, the union shop
provision, and which involved a 3 year term
On November 18, 1985 Fenters forwarded the follow
ing, General Counsels Exhibit 25, to Hoover
Dear Sir
Enclosed is a copy of the telegram received from
Russ Fowble
Also enclosed are two copies of your contract
Please sign both of them, retain one for your file
and reference , and return the second copy to this
office
Subsequently, Hoover forwarded the following docu
ment (G C Exh 14)
20 He no longer worked for Respondent at the time of the trial here MEMORANDUM
664 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
November 29, 1985
To Russell J Fowble U F C W 1357 and Employ
ees of Chambersburg County Market
From James C Hoover President
Reference Contract Negotiations
In reference to the status of contract negotiations,
Russell J Fowble and I last met on November 11,
1985, at which time we reviewed our respective po
sitions concerning the contract negotiations At that
time we reviewed a proposed written contract,
paragraph by paragraph, and appeared to reach an
agreement in principle subject to employee ratifica
tion on all points except over the Union Shop re
quirement designated as Article 2 2 All other parts
of the proposed written contract were initialled by
us
The company has objected and continues to
object to the union shop requirements and will not
agree to a contract containing this clause We
strongly believe in the principle of free choice, that
is, that the employees themselves should have the
right to decide whether to join the union or not to
join At no time will we, or can we under law, in
fluence this decision, but we still believe that the
choice should be personal to the worker
It is my understanding that the proposed contract
has been presented to the employees for review
The proposed contract is also available for inspec
tion at the store office We await your response and
are hopeful that we have arrived at an agreement
that can be immediately implemented
On December 6, 1985, Fowble forwarded the follow
mg letter (G C Exh 16)
Dear Mr Hoover
Local 1357 Representatives of employees em
ployed at County Market had negotiated in good
faith with authorized representatives of County
Market and reached agreement on a Collective Bar
gaining Agreement This Agreement was ratified by
the membership affected
We are given to understand that you have failed
to implement the terms and conditions outlined in
this Agreement We expect that you will immediate
ly and retro actively place this Agreement in full
and complete effect This includes, but is not limited
to wage increases and fnnge benefits
If you have any questions please call me direct
ly
Lambert responded by letter dated December 10, 1985
(G C Exh 17) as follows
Dear Mr Fowble
James C Hoover, President of Hoover Enter
prises Inc, d/b/a Chambersburg County Market,
has provided me with a copy of your letter of De
cember 6, 1985 and requested that I respond to your
comments
Mr Hoover met with you on November 11 1985
concerning the contract negotiations and, at that
time, both of you reviewed a proposed written con
tract and appeared to agree upon all points in the
written proposal except one, the Union Shop
clause designated as Article 2 2 therein To signify
this understanding, each of you initialed all remain
mg parts of the proposed written agreement
You indicate that This Agreement was ratified
by the employees If the proposed written agree
ment was ratified by the employees without the
Union Shop Clause, then we do indeed have mutual
assent and a formal contract, although we have not
been so informed If this is the case, we apologize
for any misunderstanding and we will immediately
and retroactively accord full faith and credit to the
Agreement, including, but not limited to, the wage
increase and fringe benefits
On the other hand, if the employees ratified the
proposed written contract, with the Union Shop
Clause in place having been informed that manage
ment agreed to the provision no agreement has
been reached and a very serious misrepresentation
and violation of law has occurred
Kindly set the record straight If we indeed have
an agreement we stand ready and willing to imme
diately implement [retroactively to the date of ratifi
cation] the terms of the agreement [Emphasis in
original ]
On the date specified the following (G C Exh 18)
was forwarded by Fowble and Rhodes
December 13 1985
To All Employees of County Market, Chambers
burg Pennsylvania
Dear Brother and Sister
Local 1357 negotiated and you ratified a con
tract with your Employer The Employer is now
attempting to avoid his responsibilities under this
Agreement
Every Official of Local 1357 is committed to
making sure you receive each and every benefit due
to you under your contract We will do all in our
power to accomplish this and are currently work
mg to have you receive your wages and other bene
fits
Enclosed you will find a copy of a letter sent to
Mr James Hoover about this
If you have any questions do not hesitate to con
tact me Together we will be successful and you
will receive your proper wages and benefits
Rhodes gave the following testimony about a conver
sation he allegedly had with Hoover `in or around De
cember 1985
A Went in his office, and I asked Jim, I said, Jim
I said , what is the problem And, Jim said what do
you mean I said Jim, what's-what s the-what s
the big deal about the union security clause I said,
you never had a problem before I said, it was
something that was negotiated I said and you
CHAMBERSBURG COUNTY MARKET
agreed upon it on the 7th He said, well, he said
I in sure there isn t going to be a problem on it He
says, I don t think there will be a problem on it at
all And, I said, okay Jim, thanks And then I left
Assertedly, Rhodes told Fowble about the conversation
Fowble did not corroborate this
When asked about this alleged conversation Hoover
testified
A It was hard for me to stay in my chair at that
point because I ve never, since I ve come to Chain
bersburg, met privately with anyone from the
Union
Q Did this meeting occur?
A No, sir
Q Did you ever make such a statement to Grant
Rhodes?
A No sir
On cross examination Hoover testified
Q Okay I think we re straight on that Now,
you-I think at one point you indicated that you
had never met privately with the union In fact, you
met privately with Mr Fowble with regard to the
card check, isn t that correct?
A No sir What I said was, that after formal ne
gotiations started, I d never met privately with a
member of the union
As set forth in paragraph 16 of the amended com
plaint, on January 22, 1986, the Union filed a complaint
in Civil Action No 86-0406 against Respondent in the
United States District Court for the Eastern District of
Pennsylvania (G C Exh 19) claiming that there was a
valid and binding contract 21
Rhodes testified that following the filing of this action
on January 22, 1986 Hoover did not notify the Union
that he would agree to the union shop clause
Rhodes also testified that in and around March 1986
he had the following conversation with Hoover at the in
volved store
And I had, basically asked Jim the same question
Jim, on-in December you assured me there wasn t
going to be a problem What is the problem now
Jim I said it s been a couple of months, and I said,
you know I said I just can t understand you And
I said, you re-I said what the world are you hold
ing up everything for And Jim says, Grant, he
says, I-again , I will assure you there wont be a
problem And with that we broke off the conver
sation
21 While I would not admit into evidence here the transcript in that
proceeding Respondent s rejected Exh 2 (A nonjury trial was held on
October 14 1986) and while I would not hold the record here open to
incorporate the final order of the court in that proceeding I will take
official notice of the court s memorandum and order dated February 27
1987 a copy of which was attached to the Charging Party s opposition
to Respondents motion to reopen the proceedings to receive that deci
sion The General Counsel also opposed the motion In view of this
action Respondents aforestated motion to reopen is denied
665
Rhodes testified that he also told Fowble about this con
versation with Hoover Fowble did not corroborate
this 22
With respect to the alleged conversation described in
the next paragraph, Hoover testified
A I in not saying that I didn t see Rhodes in
March he may have been in the store but I never
made that comment
Q And, in the Federal Court proceedings, had
you denied that any contract existed?
A Yes
Testifying herein Fowble answered no' to the follow
ing question
Q At any time during May of 1986 or prior to
May of 1986 or since May of 1986, has the union
ever received any notice or opportunity to bargain
with respect to various pay increases at the Cham
bersburg County Market with respect to Sunday
and night pay differentials, with respect to holiday
pay, or the employers providing one week's vaca
tion after one year of service or changes in medical
insurance coverage with respect to the employees
that you represent?
On August 15, 1986, Fowble sent the following mail
gram (G C Exh 20) to Hoover
MR HOOVER THIS IS PART OF OUR CONTINUING
DEMAND THAT YOU PROPERLY SIGN THE AGREED
UPON CONTRACT BETWEEN LOCAL 1357 AND
HOOVER ENTERPRISES INC TRADING AS COUNTY
MARKET
WE HAVE BEEN CONTINUOUSLY DEMANDING YOUR
EXECUTION OF THE AGREEMENT SINCE NOVEMBER
1985 AND YOUR OBLIGATION TO DO SO AND TO
PROPERLY HONOR THE TERMS CONTINUES
Analysis
Section 8(a)(5) of the Act states that it is an unfair
labor practice for an employer to refuse to bargain col
lectively with the representatives of his employees
And Section 8(d) of the Act states that for pur
poses of Section 8
to bargain collectively is the performance of the
mutual obligation of the employer and the repre
sentative of the employees to execute a
written contract incorporating any agreement
reached if requested by either party
Hoover s representatives in the involved negotiations
assert that there was an agreement before the above de
scribed November 11 1985 meeting The union repre
sentatives who participated agree The only participant
in the negotiations who disagrees is Hoover He claims
22 It was stipulated that the depositions given by Fowble and Rhodes
on August 6 1986 regarding the action described in fn 21 supra do not
mention the above described alleged Rhodes/Hoover December 1985 and
March 1986 conversations
666 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that the November 11 session was a negotiating session
notwithstanding the fact that he agreed to the meeting
knowing that the people he hired to negotiate for him
were not going to be present The person Hoover asked
to attend the meeting with him, Shaffner, did not cor
roborate Hoover s position Changes were made in the
document utilized during the meeting Such changes,
however, did not result in a negotiating session taking
place Such changes were for the most part corrections
or dealt with form and not substance To the extent
Hoover asserts the contrary, he is not credited
Hoover himself conceded that on November 11, 1985,
he revoked what he had previously agreed to, namely
the union shop clause, and that as of the end of the meet
ing on November 11 the only thing that stood between
him and signing the agreement voluntarily was the
union shop clause Hoover claims he believed that the
language in the Employers original proposal reserving
the right to revoke allowed him to revoke his prior
agreement to the union shop clause before the employees
ratified the agreement
Unlike Pipe Line Development Co 272 NLRB 48
(1984) there were no changed circumstances here After
agreeing to the union shop clause Respondent did not ex
penence organizational or operational changes that it
might argue justify a change in its position
In this type of case there can be a meeting of the
minds notwithstanding the fact that Hoover did not sign
the agreement As stated by the administrative law
judge, and affirmed by the Board in Pepsi Cola Bottling
Co, 251 NLRB 187 at 189 (1980)
the General Counsel correctly observes the Board
is not strictly bound by the technical rules of con
tract law N L R B v Donkin s Inn Inc, 532 F 2d
138, 141-142 (9th Cir 1976) Consistent therewith,
in a ruling which I find not materially distinct from
the issue framed here, the Board held that an em
ployer violated Section 8(a)(5) of the Act by its re
fusal to enter a written agreement based on its pre
viously made complete contract proposal accepted
by the Union but only after the latter had rejected
that offer on two prior occasions See Penasquitos
Gardens Inc, 236 NLRB 994, 995 (1978) enfd 604
F 2d 225 (9th Cir 1979) As I understand the prece
dent of the Board, a complete package proposal
made on behalf of either party through negotiations
remains viable, and upon acceptance in toto must be
executed as part of the statutory duty to bargain in
good faith, unless expressly withdrawn prior to
such acceptance, or defeased by an event upon
which the offer was expressly made contingent at a
time prior to acceptance Respondent in the instant
case took no such steps and when the Union aban
doned all collateral demands, and elected to accept
this complete package, a binding agreement was
consumate Respondent violated Section 8(a)(5) and
(1) by refusing to execute a signed contract
The parties had an agreement before November 11,
1985 By refusing to sign and execute the agreement,
Hoover violated the Act Respondent argues that the 6
month statute of limitations set forth in Section 10(b) of
the Act is a bar in that the statute provides, inter alia,
that no complaint shall issue based upon any unfair
labor practice occurring more than six months prior to
the filing of the charge with the Board and the service of
a copy thereof The initial charge here was not
filed until July 21, 1986 The General Counsel argues
that a subsequent refusal to sign a labor contract within
the Section 10(b) period constitutes a continued refusal
to bargain violation even if the initial refusal is outside
the 6 month statute of limitations 23
As stated in Chesapeake & Potomac Telephone Co, 259
NLRB 225 at 230 (1981)
The Board s theory of continuing violations
has been upheld by many circuit courts of appeals
International Union United Automobile Aerospace
and Agricultural Implement Workers of America
AFL-CIO v NL R B, 363 F 2d 702 706-707 (D C
Cir 1966), N L R B v Joseph T Strong d/b/a
Strong Roofing and Insulating Co, 386 F 2d 929,
930-931 (9th Cir 1967) reversed on other grounds
393 U S 357 (1969), J Ray McDermott & Co Inc
v NLRB, 571 F 2d 850, 858 (5th Cir 1978),
NL R B v Basic Wire Products Inc, 516 F 2d 261
267-268 (6th Cir 1975) But its support has been far
from universal NLRB v ServAll Co, 491 F 2d
1273, 1275 (10th Cir 1974), NLRB v McCready
and Sons Inc, 482 F 2d 872, 875 (6th Cir 1973)
NLRB v Field & Sons Inc, 462 F 2d 748 750-
755 (1st Cir 1972), (rationale questioned in
McCready), General Marine Transport Corporation v
NL R B, 619 F 2d 180, 186-188 (2d Cir 1980) It is
clear that, until this conflict is revolved by the Su
preme Court I must apply Board law and dismiss
the instant defense Capitol Foods Inc d/b/a
Schultes IGA Foodliner, 241 NLRB 855, 856 (1979)
Another case cited by Respondent on brief can be added
to those that question the Board s position namely,
NLRB v Al Bryant Inc, 711 F 2d 543 (3d Cir 1983)
Nonetheless I am bound by Board law Consequently
Respondents 10(b) argument must fail
Similarly , its res judicata , collateral estoppel and claim
preclusion argument must fail As the court points out in
the related civil action described in footnote 21 supra
cases involving allegedly improper refusal to fi
nalize a collective bargaining agreement which
the present case exemplifies , can best be addressed
in the pending NLRB proceeding I conclude that
this action is premature at best, and that this court
should defer to the primary jurisdiction of the
NLRB Plaintiff's complaint will therefore be dis
missed , without prejudice to reinstatement after
completion of the administrative proceeding
23 The General Counsel s concealment argument has no ment in that
Rhodes testimony regarding his meetings alone with Hoover in and
around December 1985 and March 1986 is incredible
CHAMBERSBURG COUNTY MARKET
Respondent admits that on or about April 15, 1986, it
withdrew its recognition of the Union as the exclusive
collective bargaining representative of the unit, and that
in or about May 1986 it implemented specified changes
in the terms and conditions of employment because rec
ognition had been withdrawn, the Union was not notified
of these changes and afforded an opportunity to negoti-
ate and bargain Respondent's counsel points out that
Hoover withdrew recognition of the Union after receipt
of a petition signed by a majority of the employees that
they no longer desired the Union to serve as their bar
gaining representative If the Union had, in fact, lost the
support of a majority of employees, that loss of support
was the direct result of Respondent's above-described
unfair labor practice As pointed out in Mark Twain
Marine Industries, 254 NLRB 1095 at 1114 (1981), 'Re
spondent is precluded from utilizing the fruits of its own
violations, as a defense
It follows, therefore, that Respondent also violated the
Act by making the aforementioned changes without
notice to the Union and affording it the opportunity to
bargain
CONCLUSIONS OF LAW
1 Respondent is an employer within the meaning of
Section 2(2) of the Act and 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 mean
ing of Section 2(5) of the Act
3 Respondent violated Sections 8(a)(1) and (5) and
8(d) of the Act by, without justification, withdrawing a
previously agreed to collective bargaining proposal, by
failing and refusing to execute a written contract em
bodying a full and complete agreement reached by it and
the Union, by failing and refusing to abide by the collec
667
tive bargaining agreement , by withdrawing its recogni
tion of the Union, and by implementing specified
changes in terms and conditions of employment without
prior notice to the Union and without having afforded
the Union an opportunity to negotiate and bargain
4 The aforesaid unfair labor practices constitute unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices within the meaning of Sections
8(d) and 8(a)(1) and (5) of the Act, it shall be recom
mended that Respondent cease and desist therefrom and
take certain affirmative action
Respondent shall be required to recognize United
Food and Commercial Workers International Union,
Local 1357, AFL-CIO-CLC, and to execute and give
effect to the collective bargaining agreement in question
as of January 21 1986,24 and to make the involved em
ployees whole for any loss of earnings or other compen
sation they may have suffered by the unlawful refusal to
apply the appropriate collective bargaining agreement,
with interest as authorized by New Horizons for the Re
tarded, 283 NLRB 1173 (1987)
[Recommended Order omitted from publication ]
24 General Counsel indicated that the only reason the complaint alleges
that the Union filed the civil action described in In 21 supra is for the
limited purpose of showing a continued demand with the sixty-the
pending period that s it While as pointed out by Respondent on brief
the Union s filing the January 22 1986 complaint would not toll the stat
ute of limitations it would constitute a demand When Respondent failed
and refused again to execute a written contract it again violated the Act
i