NLRB v. Ogle Protection Service, Inc.

Decision Date07 April 1967
Docket NumberNo. 16996.,16996.
Citation375 F.2d 497
PartiesNATIONAL LABOR RELATIONS BOARD, Petitioner, v. OGLE PROTECTION SERVICE, INC., and James L. Ogle, an individual, Respondent.
CourtU.S. Court of Appeals — Sixth Circuit

Clarice Feldman, N.L.R.B., Washington, D. C., Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, Elliott Moore, Attorney, N.L.R.B., Washington, D. C., on brief, for petitioner.

David E. Burgess, Detroit, Mich., MacFarlane, Tolleson, Burgess & Mead, Robert D. Welchli, Detroit, Mich., on brief, for respondents.

Before O'SULLIVAN and PHILLIPS, Circuit Judges, and CECIL, Senior Circuit Judge.

CECIL, Senior Circuit Judge.

This cause is before the Court upon the petition of the National Labor Relations Board for enforcement of its order, issued November 6, 1964, against Ogle Protection Service, Inc. and James L. Ogle, the respondents herein. This Court has jurisdiction of the proceeding, the alleged unfair labor practices having occurred in Detroit, Michigan, within this judicial circuit. Section 160(e), Title 29, U.S.C. The Board determined that the respondents committed unfair labor practices in violation of Sections 158 (a) (1), (3) and (5), Title 29, U.S.C.

Ogle Protection Service, Inc., hereafter referred to as respondent, is a Michigan corporation, engaged in the business of providing plant protection services for commercial establishments and hospitals. All of respondent's stock is owned by James L. Ogle, its president and general manager, and his wife, a director of the corporation, but otherwise inactive in the business.

Since 1957, the International Union, United Plant Guard Workers of America, Local 114, hereafter referred to as the Union, has been the collective bargaining representative of respondent's employees. Benton Bilbrey and Willie England were president and vice president, respectively, of the local union. More than sixty days prior to the expiration, on July 15, 1962, of the then existing collective bargaining agreement, the Union sent respondent a notice of termination and a request to negotiate a new contract. After a preliminary meeting on July 9th, the parties on July 10, 1962, signed an agreement extending the contract indefinitely subject to termination at ten days' written notice by either party.

At a meeting on August 14, 1962, Ogle agreed to all provisions of a new contract except those classified as "economic", which included holidays and holiday pay, insurance and wage scales. A third meeting on September 19, 1962, still did not produce agreement on the economic issues. Ogle, because of illness, cancelled two meetings which were scheduled to take place in early October. Bilbrey telephoned Ogle on October 9th and accused him of stalling. Ogle countered by saying that the union was trying to put him out of business. A strike vote was called on October 16th. Although a strike was authorized, it never took place. When Bilbrey telephoned Ogle on October 18th to resume negotiations, Ogle said that he was sick and that David Colman, an attorney, who had previously negotiated a contract with the Union for the respondent, would represent the respondent. Bilbrey testified that Ogle stated to him that Colman had full authority to negotiate the contract. Ogle never specifically denied making this statement, but repeatedly testified that he only called Colman in to assist him, and did not authorize him to agree to a contract.

A meeting was arranged and held on November 2, 1962, between Colman, Bilbrey and three employee committeemen. Colman requested and the Union acceded to certain language changes in portions of the contract already agreed upon. With respect to certain Union requests Bilbrey stated that Colman said that although he had full authority to reach an agreement, he felt that he should first consult with Ogle. Colman was never called to testify.

The next meeting was held at respondent's offices, with Bilbrey, England and the three committeemen representing the Union, and Colman and Ogle representing the respondent. The Union agreed to withdraw several proposals made at the previous session. Those present disagreed as to whether or not the parties agreed to a wage scale. Bilbrey, England and one committeeman testified that Ogle agreed to the new wage scale, "even though it might break him." The Union did agree at this time to another meeting in January in the event respondent could not shift the cost of the wage increase onto their customers. Ogle and the two other committeemen testified that everything but wages was agreed to and that they would meet again in January to discuss wages. These two committeemen turned against the Union in early 1963 and were called as witnesses by the respondent. The hearing examiner concluded that Ogle reluctantly agreed to a wage increase with the expectation that if he could not obtain corresponding increases from his customers, the scale would be lowered by subsequent negotiations. Bilbrey stated that having agreed to the terms it was decided that Colman would draw up the completed contract.

Bilbrey agreed to draft the contract, after being informed twice by Colman that the press of other work prevented him starting it. On December 11, 1962, the contract was completed with the exception of the insurance clause. Bilbrey called Colman and Colman dictated the clause to Bilbrey's secretary over the telephone. On the following day, Bilbrey sent six copies of the contract to Colman's office, and Colman agreed to have them signed by December 14th. Not having received them on the 14th, Bilbrey called Colman who said that other matters had prevented him from looking at them. Colman said he would study them over the weekend and would deliver them signed on Monday morning, December 18th. When he did not receive them on December 18, 1962, Bilbrey called Colman who said that he had proofread the contracts, found them satisfactory, would send them over to Ogle for signature and that Ogle would deliver them to Bilbrey by the close of the day. At 9:30 that evening, Bilbrey called Colman at his home to inform him that he had not yet received the signed copies. Bilbrey had called a ratification meeting for the next morning. Colman was suprised that Bilbrey did not have the papers and told him to call back in an hour. Bilbrey did so and Colman said that Ogle promised to have the signed contracts at the union hall by nine o'clock the next morning, before the ratification meeting.

Even though the papers were not there as scheduled Bilbrey went ahead with the meeting, and those present voted to ratify. Following the meeting Bilbrey telephoned Ogle who said that his son had taken the copies to respondent's office by mistake. When Bilbrey accused Ogle of stalling again, Ogle replied, according to Bilbrey, "I'll tell you right now, I'm not going to go through with this agreement." Bilbrey replied that he believed there was a contract and was sending England to pick up the signed contracts. When England went to pick them up he was only given two copies, both unsigned. Ogle stated to England that he was glad that his son had made the mistake because now he was not going to sign them. Several subsequent meetings did not produce any change in the positions of the parties.

On January 18, 1963 Ogle sent the Union a ten-day notice terminating the interim agreement of July 10, 1962. Ogle testified that this notice was intended to be a total severance of all relations with the Union. Between February 4th and May 20, 1963, the Union sent five written grievances to the respondent by certified mail, all of which were returned unopened. On February 4, 1963, Ogle refused to process a grievance presented by a union committeeman stating, "As far as we are concerned, we have no union."

On this state of the record the hearing ing examiner and the Board found that the respondent violated Section 158(a) (5) and (1), Title 29, U.S.C., by repudiating and refusing to sign a collective bargaining agreement reached earlier, and by refusing to recognize and negotiate with the Union concerning grievances after January 18, 1963. The Board ordered respondent to sign the agreement if requested by the Union, or, if no such request was made, to bargain for a new contract, and to cease and desist from refusing to recognize and deal with the Union with respect to its employees' grievances.

Section 158(a) (5) makes it an unfair labor practice for an employer "to refuse to bargain collectively with the representatives of his employees, * * *." Section 158(d) states that included within the obligation to bargain collectively is "the execution of a written contract incorporating any agreement reached if requested by either party, * * *." Failure to execute and sign an agreement incorporating the terms of a negotiated contract is an unfair labor practice. H. J. Heinz Co. v. N.L.R.B., 311 U.S. 514, 61 S.Ct. 320, 85 L.Ed. 309; N.L.R.B. v. Ohio Car & Truck Leasing, Inc., 361 F.2d 404 (C.A. 6); Stackhouse Oldsmobile, Inc. v. N.L.R.B., 330 F.2d 559 (C.A. 6); Standard Oil Company v. N.L.R.B., 322 F.2d 40 (C.A. 6).

The scope of our review is limited to determining if the record contains substantial evidence to support the findings of the Board. Section 160(e), Title 29, U.S.C.; Universal Camera Corporation v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456; National Labor Relations Board v. Denver Bldg. & Const. Trades Council, 341 U.S. 675, 71 S.Ct. 943, 95 L.Ed. 1284. The credibility of witnesses is generally a matter for the determination of the hearing examiner and the Board. Keener Rubber, Inc. v. N.L.R.B., 326 F.2d 968 (C.A. 6), cert. den. 377 U.S. 934, 84 S.Ct. 1337, 12 L.Ed.2d 297; N.L.R.B. v. Herman Bros. Pet Supply, Inc., 325 F.2d 68 (C.A. 6); N.L.R.B. v. Bendix Corporation (Research Lab. Div.), 299 F.2d 308 (C.A. 6), cert. den. 371 U.S. 827, 83 S.Ct. 47, 9 L.Ed.2d 65. We...

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