Hickory Farms of Ohio

National Labor Relations Board - Board Decisions

Jan 19, 1976

222 N.L.R.B. 418 (N.L.R.B. 1976)

418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cheese Barn, Inc. , d/b/a Hickory Farms of Ohio and
Retail Clerks Union Local No. 1105, affiliated with
Retail Clerks International Association, AFL-CIO.
Case 19-CA-7619
January 19, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND PENELLO
On September 29, 1975, Administrative Law Judge
George Christensen issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General Coun-
sel filed a brief in support of the Administrative Law
Judge's Decision.
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 Respondent, Cheese Barn, Inc., d/b/a
Hickory Farms of Ohio, Seattle, Washington, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order.
DECISION
STATEMENT OF THE CASE
GEORGE CHRISTENSEN, Administrative Law Judge: On
June 17, 1975, I conducted a hearing at Seattle, Washing-
ton, to try issues raised by a complaint issued on April 17,
1975, on the basis of a charge filed by the Retail Clerks
Union Local No. 1105, affiliated with Retail Clerks Inter-
national Association, AFL-CIO,' on March 18, 1975. The
complaint alleged Cheese Barn, Inc., d/b/a Hickory Farms
of Ohio,' violated Section 8(a)(1) and (5) of the National
Labor Relations Act, as amended (hereafter called the
Act), by insisting upon the continued inclusion and perfor-
mance of a provision in a collective-bargaining agreement
i Hereafter called the Union.
2 Hereafter called the Respondent or the Company
with the Union requiring ratification of that agreement by
a majority of its employees covered thereby.
The Company conceded it refused to agree to the
Union's proposed deletion of the ratification provision
from the proposed agreement and to sign the agreement
with that provision deleted; the Company contends, how-
ever, it did not thereby violate the Act.
The issues are: (1) Whether the Company violated the
Act by refusing to consent to the Union's request that the
ratification provision be deleted from the agreement; and
(2) whether the Company violated the Act by refusing to
execute the agreement the Union proffered, containing all
the terms agreed upon previously except the ratification
provision.
The parties appeared by counsel at the hearing and were
afforded full opportunity to produce evidence, examine
and cross-examine witnesses, argue, and file briefs. Briefs
have been received from the General Counsel and the
Company.
Based upon my review of the entire record,' observation
of the witnesses, perusal of the briefs and research, I enter
the following:
FINDINGS OF FACT
1. JURISDICTION AND LABOR ORGANIZATION
The complaint alleged , the Company admitted, and I
find that the Company at all times pertinent was an em-
ployer engaged in commerce in a business affecting com-
merce, and the Union was a labor organization as those
terms are defined in Section 2(2), (5), (6), and (7) of the
Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts 4
In March of 1974 5 the Board issued a Gissel-type 6 order
directing the Company to bargain with the Union concern-
ing the rates of pay, wages, hours, and working conditions
of a unit of its employees consisting of "all employees at
the Northgate store, excluding supervisors and guards."
The Northgate store is one of a number of stores operat-
ed by the Company in the State of Washington. The Com-
pany is a retail seller of cheeses and other specialty food
items.
Upon receipt of the Board's Order, Rodger Derby, presi-
dent of the Company,7 retained Robert Nelsen and Associ-
ates, Inc., of Seattle 8 to bargain on its behalf with the
3 I grant the General Counsel's motion to correct the transcript, the errors
have been noted and corrected.
4 The facts are undisputed. They were either admitted, stipulated, or are
based upon the mutually corroboratory or undisputed testimony of the
Company and the Union negotiators.
5 All dates hereafter refer to 1974 unless otherwise specified.
6 N L R.B v. Gissel Packing Co, Inc, 395 U.S 575 (1969).
7 An admitted supervisor and agent of the Company acting on its behalf
8 Between March 29-September 21, Donald Dittman and Robert Nelsen
of Nelsen and Associates acted on the Company's behalf in conducting the
negotiations; after September 21 Nelsen alone acted on the Company's be-
half, it was admitted that Nelsen and Dittman were supervisors and agents
of the Company acting on its behalf at all times pertinent, and I so find.
222 NLRB No. 62
HICKORY FARMS OF OHIO
Union for an-agreement covering its Northgate store em-
ployees.
On March 29 Nelsen and Dittman met with Mervyn
Henderson, the Union's president, Allen Berglund, its sec-
retary-treasurer, and Thomas Ducharme and Claude Li-
day, its business representatives. The Union presented as a
proposed agreement with the Company its standard gro-
cery agreement covering King-Snohomish counties. The
parties agreed the initial contract would be a 1-year agree-
ment.
On April 17, Dittman countered with a proposed con-
tract which contained, inter alia, a duration provision for a
1-year term, with the dates blank.
The parties met for the second time on April 25 and
discussed the Company proposal. In the course of the
meeting, the Union informed the Company it intended to
submit any contract agreed upon in the negotiations to the
affected employees for ratification.
As a result of the April 25 discussion, on May 15 Ditt-
man submitted a second proposed contract containing a
number of revisions from the April 17 proposed contract.
The duration provision of this proposed contract continued
to provide a 1-year term with the dates filled in-July 1,
1974, through June 30, 1975.9
On June 4, the Union submitted, a list of proposed revi-
sions to the Company's proposed May 15, 1974, contract,
about 12 in number, and stated, with reference to the ter=
mination provision, it should be for 1 year from the date of
employee ratification.
The parties met again on June 26, July 16, September 20,
and October 2. On the latter date, Dittman submitted a
third proposed contract containing a revised duration pro-
vision reading the contract would be effective for 1 year
from the date of ratification.10 By this time the differences
between the parties were narrowed to three issues.
On October 7 Nelsen advised the Union the Company
was willing to accept the Union's proposals regarding two
of the three remaining issues in dispute, whereupon the
Union withdrew its proposal concerning the third and re-
maining issue . The, parties agreed they had a contract. The
Union negotiators advised the Company they would rec-
ommend and secure ratification and scheduled an October
8 meeting of the affected employees for that purpose.
At the October 8 union meeting, the employees voted to
reject,the agreement.
The Union went back to the Company and sought its
agreement to modifications of certain substantive provi-
sions of the agreement, without success.
On February 19, 1975, the Union submitted to Nelsen
for company signature four copies of the October 7 agree-
ment signed by its president, with one change-substitu-
tion as to the effective date, the date of signing, rather than
the date of ratification.
Nelsen sent the contracts to Derby.
On February 21, 1975, Derby advised Nelsen (in writing)
he would not sign or agree to the February 19, 1975, con-
tract or any contract other than one requiring employee
9 The parties thought they would have an agreement prior to July 1
10 Neither of the parties placed much significance on this change, it was
not discussed prior or subsequent to its insertion
419
ratification as a condition precedent.
On March 7, 1975, Nelsen advised the Union of Derby's
position. The Company at all times since has continued to
adhere to that position.
B. Analysis and Conclusions
The Board has consistently held that, while an employer
and the union representing his employees may voluntarily
agree to condition their agreement upon ratification by the
affected employees, the employer who insists upon such a
condition over union objection violates Section 8(a)(5) and
(1) of the Act.11
The Board held both union ratification (by vote of its
membership or governing board) and employer ratification
(by vote of its board of directors or stockholders) are inter-
nal procedures and therefore nonmandatory subjects for
collective bargaining; insistence thereupon, as the sole is-
sue preventing full and final agreement, is violative of the
Act.
In this case the question of ratification arose when the
Union responded to the Company's May 15 contract pro-
posal, wherein the proposed contract provided a 1-year
term extending from July 1, 1974, through June 30, 1975,
with the suggestion that the July 1, 1974, effective date and
June 30, 1975, expiration date might not be realistic in the
sense the Union might not be able to complete its ratifica-
tion procedures by the former date (July 1). The Union
conveyed this message as part of its June 4 list of proposed
revisions to the Company's May 15 proposal in the follow-
ing language: "19.1 (the duration provision) Dates subject
to time of ratification." The Union' s June 4 comment obvi-
ously was prompted by its observation that it was unlikely
the parties, with several material issues still in dispute (as
evidenced by the Union's June 4 letter), would be able to
reach final agreement in time for the Union to submit such
agreement to its members for ratification before July 1.
Thus the Union's June 4 letter was not a union proposal
that ratification be made a condition precedent to effectua-
tion of the final agreement.
Picking up the Umon's comment, the Company's third
(October 2) contract proposal provided the contract would
be effective for 1 year from the date the Union secured
ratification thereof.
The new language of the duration provision passed un-
noticed and was not discussed by the parties, intent as they
were on securing agreement on the three substantive issues
still separating them (which were resolved on October 8).
The proposal that the October 8 agreement not be effective
until the Union secured a majority vote ratifying its terms
did not become a disputed issue until the, Company ad-
vised the Union , in its March 7, 1975, rejection of the
Union's February 19, 1975, request that the Company sign
a contract (already signed by the. Union) containing ev-
erything set forth in the October 8 agreement other than
language stating the 1-year term the parties had agreed
upon would date from the date of execution thereof. By its
March 7, 1975, refection of the Union's February 19, 1975,
n C & W Lektra Bat Co, 209 NLRB 1038 (1974); Southeastern Michigan
Gas Company, 206 NLRB 60 (1973); Southland Dodge, Inc., 205 NLRB 276
(1973); Houchens Market of Elizabethtown, Inc., 155 NLRB 729 (1965)
420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proposed contract and insistence on union submission of
the agreed-upon rates of pay, wages, hours, and working
conditions to a vote of its members as a condition prece-
dent to effectuation of the contract, the Company insisted,
as the sole issue preventing agreement, on union agreement
(over its opposition) to a nonmandatory subject for collec-
tive bargaining and thereby violated the Act. Such is the
teaching of the Lektra Bat and other cases cited heretofore
in footnote 11, supra.
I therefore find and conclude that, by its insistence on
and after March 7, 1975, against union opposition that the
contract contain a provision requiring the Union to secure
employee ratification of the balance of its terms, the Com-
pany violated Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
1. At all times pertinent the Company was an employer
engaged in commerce in a business affecting commerce,
and the Union was a labor organization, as those terms are
defined in Section 2(2), (5), (6), and (7) of the Act.
2. Since March 1974 the Union has been the duly desig-
nated exclusive collective-bargaining representative of a
unit of the Company's employees consisting of "all em-
ployees at the Northgate store, excluding supervisors and
guards."
3. By refusing to sign the collective-bargaining agree-
ment signed by the Union and submitted to the Company
on February 19, 1975, unless that agreement contained a
provision requiring the Union to secure employee ratifica-
tion thereof, the Company violated Section 8(a)(5) and (1)
of the Act.
THE REMEDY
Having found the Respondent engaged in an unfair la-
bor practice, I shall recommend that it be directed to cease
and desist therefrom and take affirmative action designed
to effectuate the purposes of the Act.
It shall be recommended that the Company be ordered
to cease and desist from failing and/or refusing to execute
the February 19, 1975, contract signed by the Union and
proffered to the Company for its signature, and from fail-
ing and/or refusing to bargain with the Union at its request
concerning the rates of pay, wages, hours, and working
conditions of the unit employees.
It shall further be recommended that the Company be
directed to recognize the Union, to bargain with the Union
at its request concerning the rates of pay, wages, hours, and
working conditions of its employees in the unit heretofore
set forth, to execute the February 19, 1975, contract prof-
fered by the Union for the Company's signature, and to
grant such benefits and to make such payments as are
called for under the terms of that contract, either to the
Union or to the employees, both retroactively and pro-
spectively, from February 21, 1975.12
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 recommend that the Board issue the
following recommended:
ORDER 13
Respondent, Cheese Barn, Inc., d/b/a Hickory Farms of
Ohio, Seattle, Washington, its officers, agents, successors,
and assigns shall:
1. Cease and desist from failing and/or refusing to exe-
cute the contract submitted to the Company by the Union
and signed by it on February 19, 1975, and further cease
and desist from failing and/or refusing to bargain with the
Union at its request concerning the rates of pay, wages,
hours, and working conditions of its employees within the
unit set out heretofore.
2. Take the following affirmative action designed to ef-
fectuate the purposes of the Act:
(a) Recognize the Union as the exclusive collective-bar-
gaining representative of its employees within the unit de-
scribed heretofore, bargain with it at its request concerning
the rates of pay, wages, hours, and working conditions of
its employees within that unit, execute the contract signed
by the Union and submitted to it on February 19, 1975,
and make the Union and the unit employees whole for any
losses they may have suffered by reason of the Company's
failure and/or refusal to execute that contract and comply
with its terms from and after February 21, 1975.
(b) Comply with all terms and conditions of the contract
just referred to both for the balance of its term and retroac-
tively.
(c) Post at its Northgate store copies of the enclosed
notice marked "Appendix B." 14 Copies of said notice, on
forms provided by the Regional Director for Region 19,
after being signed by an authorized representative of the
Company, shall be posted immediately upon receipt there-
of, and maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken to insure that such notices are not altered, de-
faced, or covered by other material.
(d) Notify the Regional Director for Region 19, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
12 The record contains evidence that Derby advised Nelsen in writing on
February 21, 1975, that he would not sign or agree to the February 19, 1975,
contract signed by the Union and submitted to the Company for signature
on February 19, from that I presume that by February 21 the Company had
received the February 19, 1975, contract signed by the Union
13 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 he
deemed waived for all purposes.
14 In the event 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 "
HICKORY FARMS OF OHIO 421
May 17, 1976
ORDER CLARIFYING DECISION AND
ORDER
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND PENELLO
On January 19, 1976, the Board issued a Decision
and Order in the above-entitled proceeding' finding
that Respondent had violated Section 8(a)(5) and (1)
of the Act by refusing to sign a collective-bargaining
agreement. The Order required Respondent to
"make the Union and the unit employees whole for
any losses they may have suffered by reason of the
Company's failure and/or refusal to execute that
contract and comply with its terms from and after
February 21, 1975." Thereafter, a disagreement arose
as to the meaning of the above-quoted language in
connection with Respondent's attempt to comply
with the Order. The General Counsel contended that
the Order requires Respondent to pay to the Union
all dues and initiation fees which would have been
paid by union members during the 1-year term of the
contract but were not paid. Respondent, on the other
hand, asserted that since the contract involved had
no dues-checkoff provision and no provision requir-
ing Respondent to collect initiation fees for the
Union the Order did not require Respondent to pay
to the union dues or initiation fees which Respon-
dent was not required to collect under the contract.
On April 22, 1976, Respondent filed a motion for
reconsideration and clarification of the Board's Or-
der. On April 28, 1976, General Counsel filed a mem-
orandum in opposition to the motion.
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 Decision and Order
in this case, Respondent's motion, the General
Counsel's opposition, and the entire record in the
case, and finds merit in Respondent's motion.
In Southland Dodge, Inc., 205 NLRB 276, fn. 1
(1973), the Board stated:
Respondent has excepted to the Administra-
tive Law Judge's recommendation that it reim-
burse the Union for any loss of dues resulting
from Respondent's unlawful refusal to sign the
collective-bargaining agreement reached by the
parties. We find merit in the exception and shall
delete this provision from the Order. The Board
has ordered dues reimbursement in appropriate
cases only where employees have individually
signed dues checkoff authorizations. There is no
evidence of such signing in this case. According-
ly, the proposed remedy is inappropriate. Ogle
Protection Service, Inc., 183 NLRB 682; Creutz
Plating Corporation, 172 NLRB 1.
General Counsel argues that the Board intended,
sub silentio, to overrule the Southland Dodge decision.
The Board had no such intention. As employees had
not signed dues-checkoff authorizations in behalf of
the Union and, moreover, the contract which Re-
spondent unlawfully refused to sign contained no re-
quirement that Respondent check off dues and initi-
ation fees in behalf of the Union, we find that
Respondent was not required to reimburse the Union
for dues and initiation fees which it failed to collect
from employees during the term of the contract. Ac-
cordingly, we shall clarify the Decision and Order as
requested by Respondent.
ORDER
It is hereby ordered that said Decision and Order
be, and it hereby is, clarified as follows:
1. Substitute the following for paragraph 2(a) of
the existing Order:
"(a) Recognize the Union as the exclusive collec-
tive-bargaining representative of its employees within
the unit described heretofore; bargain with it at its
request concerning the rates of pay, wages, hours,
and working conditions of its employees within that
unit; execute the contract signed by the Union and
submitted to it on February 19, 1975; and make the
unit employees whole for any losses they may have
suffered by reason of the Company's failure and/or
refusal to execute that contract and comply with its
terms from and after February 21, 1975."
2. Substitute the attached notice for the notice rec-
ommended by the Administrative Law Judge and
adopted by the Board in its original Order.
'222 NLRB No 62
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to execute the agreement
signed by Retail Clerks Union Local No. 1105,
affiliated with Retail Clerks International Asso-
ciation, AFL-CIO, and submitted to us for our
signature on February 19, 1975.
WE WILL NOT fail or refuse to bargain with the
422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
aforesaid Union at its request concerning the
rates of pay, wages, hours, and working condi-
tions of a unit of our employees consisting of all
of our employees at the Northgate store, exclud-
ing supervisors and guards.
WE WILL recognize the above Union as the ex-
clusive 'collective-bargaining representative of
our employees in the above unit.
WE WILL meet and negotiate with the above
Union concerning the rates of pay, wages, hours,
and'working conditions of our employees in the
above unit at its request.
WE WILL execute the contract we negotiated
with the above Union covering the rates of pay,
wages, hours, and working conditions of the
aforesaid unit employees and submitted to us
for our signature on February 19, 1975, by the
Union.
WE WILL comply with all of the terms and
conditions of that agreement, both retroactively
and prospectively.
WE WILL make the unit employees whole for
any losses they may have suffered by our failure
to observe the rates of pay, wages, hours, and
working conditions set out in the- aforesaid
agreement from and after February 21, •1975.
CHEESE FARMS, INC., d/b/a HICKORY
FARMS OF OHIO