Houchens Market of Elizabethtown, Inc. v. NLRB

• Citation: 375 F.2d 208
• Decision Date: 24 March 1967
• Docket Number: No. 16948.,16948.
• Parties: HOUCHENS MARKET OF ELIZABETHTOWN, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

375 F.2d 208 (1967)

HOUCHENS MARKET OF ELIZABETHTOWN, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 16948.

United States Court of Appeals Sixth Circuit.

March 24, 1967.

Ray B. Buckberry, Jr., Bowling Green, Ky. (Jerry L. Moore, Bell, Orr & Reynolds, Bowling Green, Ky., on the brief), for petitioner.

Theodore J. Martineau, Atty., N. L. R. B., Washington, D. C. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Allison W. Brown, Jr., Atty., N. L. R. B., Washington, D. C., on the brief), for respondent.

Before CELEBREZZE, PECK and McCREE, Circuit Judges.

CELEBREZZE, Circuit Judge.

This is a petition for review of a decision of the National Labor Relations Board in which the Board found that Houchens Market of Elizabethtown, Inc., hereinafter referred to as the Company, violated Section 8(a) (5) and (1) by refusing to bargain in good faith with Local 227 of the Amalgamated Meatcutters and Butcher Workmen of North America, AFL-CIO, hereinafter referred to as the Union. The National Labor Relations Board has cross-petitioned for enforcement of its Order.

The essential facts are uncontroverted. The Union, on June 12, 1964, was certified by the Board as the exclusive bargaining agent for Company employees. Between the period of June 30, 1964 and January 13, 1965, representatives of the Company and the Union met fourteen times in negotiating sessions. During the course of these negotiating meetings Robert G. Nutter, an officer of the Union, made statements to the effect that any contract proposal or recommendations would be subject to approval by the employees. The record further discloses that on November 5, 1964, the Company presented to the Union a written contract containing the counter-proposals of the Company. After discussion, the Union agreed to all the terms contained in the Company's proposed agreement, but requested that five additional items be included in the contract. The Company took them under advisement, and at a later date, through their Counsel Orr, informed the Union Counsel Segal they would accept two of the five proposals. That as to the remaining three proposals the parties would hold another bargaining session, scheduled for February 9, 1965.

On February 8, 1965, Segal called Orr and informed him that the Union would abandon its three remaining proposals. Orr at the close of the conversation for the first time affirmatively stated that the contract would have to be submitted to the employees for approval. Segal objected and responded that employee approval was "an internal matter" of the Union which "the Company had no right to get into", and that the Company was committing an unfair labor practice.

The same day, Segal addressed a letter to Orr in which he reiterated that the Union accepted the contract proposals as amended, and included therein text of language necessary to effect the changes. In addition, Segal stated:

"As I told you, I felt your condition was not proper and usurped the duty and responsibility of the certified collective bargaining agent, Local 227."

Orr, in turn, wrote Segal on February 9, 1965. In his letter Orr referred to the telephone conversation of the previous day and confirmed the Company's acceptance of two of the Union's proposals and rejection of the other three. Orr's letter went on to state:

"This will also confirm our conversation of yesterday with you to the effect that the Company desired and made as an item of bargaining the approval of the contract by a majority of the employees comprising the bargaining unit, and I suggested and am here offering a counterproposal styled Article XVII, Ratification, to become a part of the Company\'s Counterproposal of November 5, as amended."

The text of the counterproposal provided that the contract would not be executed by the Company until it had been ratified by a majority of the employees by either their signing a statement or by a secret ballot. Orr closed his letter as follows:

"* * * the representative of the Union having heretofore conducted the thirteen meetings prior to your coming into the negotiations on January 13, 1965, has stated that any contract agreed upon would necessarily be approved or ratified by a majority of the employees constituting the bargaining unit, and the Company is of the opinion that the approval of the agreement * * * by a majority of the employees will be beneficial to the employees, the Company and the Union and, therefore our counterproposal should be included in the contract."

The Company's proposed contract dated November 5, 1964, as amended by the two Union proposals subsequently agreed upon, contained no mention or suggestion of employee ratification. Nutter, who had been negotiator for the Union prior to the January 13, 1965, meeting, had verbally announced during previous bargaining meetings that "any contracts or any proposed contracts recommended by him would have to be approved by the employees". The Company's negotiators had not responded to Nutter's statements.

Union Counsel Segal, after receiving Orr's letter of February 9, 1965, telegraphed Orr on February 11th, as follows:

"Even though Houchens Market of Elizabethtown and Local Union 227 Meat Cutters have agreed on all terms of a collective bargaining agreement the Company now informs the Union that it will not execute said agreement until it has been ratified or approved by a majority of the employees in the bargaining unit. The Union feels that the Company\'s position constitutes unfair labor practice, and without in any way waiving that unfair labor practice, the Union intends to submit said agreed contract to the MPHS, by this action the Union in no way waives its right to contest the Company\'s action or to seek redress under the Labor Management Relations."

After hearing no further response from the Company, the Union, the following week, on February 15, 1965, initiated the instant unfair labor practice proceeding.

Upon the foregoing facts, the Board found that the Company refused to bargain in good faith with the Union, thereby violating Section 8(a) (5) and (1) of the Act, by insisting, on February 8, 1965, and thereafter, on employee ratification as a condition precedent to execution of the contract the parties had agreed upon. The Board's order requires the...