Chambersburg County Market

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