Hickory Farms of Ohio

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