Empire Screen Printing, Inc.

718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Empire Screen Printing, Inc. and Elizabeth J. Kon.. kel, Petitioner and Chauffeurs, Teamsters,Ware. housemen and Helpers of America, Local 199, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 30-RD-536 May 22, 1980 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND TRUESDALE Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Floyd Child of the National Labor Relations Board. Fol- lowing the hearing, and pursuant to Section 102.67 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, by direction of the Regional Director for Region 30, this proceed- ing was transferred to the Board for decision. Thereafter, the Employer filed a brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby af- firmed. Upon the entire record in this proceeding, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act, and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The Union herein is a labor organization within the meaning of the Act and claims to repre- sent certain employees of the Employer. 3. No question concerning representation exists concerning the representation of employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. The facts giving rise to this proceeding are as follows: On September 25, 1978, the Employer and the Union entered into a 1-year collective-bargain- ing agreement, effective until September 25, 1979.1 The agreement contained an automatic renewal clause providing that the agreement would contin- ue year to year after its stated expiration date, unless either party gave written notice 60 to 90 days prior to the contract's anniversary date of a desire to modify or terminate the agreement. 2 If i All dates herein are in 1979 unless otherwise indicated. 2 Art. 37. sec. 1, provides: This Agreement shall be effective for a period of twelve (12) morths from the date of signing, and will continue from year to year thore- 249 NLRB No. 101 such notice were given, article 37, section 2, of the agreement further provided that the parties were to commence bargaining within 30 days of said notice and that the agreement would continue in effect "until either terminated by five (5) days' written notice or supplemented by a revised agreement." On May 30, 1979, the Union sent written notice to the Employer of its desire to modify the con- tract. Although the notice was untimely by several weeks, the Employer apparently did not object to the untimeliness of the notice or to the subsequent initiation, pursuant to article 37, section 2, of sub- stantive negotiations for a new contract. Bargaining sessions were held on August 30, September 6, and October 3. According to the minutes of the Octo- ber 3 bargaining session, a number of items were agreed upon, including the institution of a 10-per- cent across-the-board wage increase. Just prior to this bargaining session, the Employer, on Septem- ber 19, sent a written notice to the Union, pursuant to the renewal clause, of its desire to terminate the contract. On October 4, employee Elizabeth Konkel filed the instant decertification petition. At the hearing in this matter, the Union in es- sence asserted that the agreement reached with re- spect to the wage increase constituted a bar to the petition here.3 In its brief, the Employer noted that the agreement reached on the wage increase had not been reduced to writing and had not been signed. The Employer therefore argues that such "oral assent" to the wage proposal did not consti- tute, under well-established Board law,4 a bar to the petition here. We agree with the Employer that the oral agree- ment concerning the wage increase cannot serve as a bar to the instant petition. It is well established that oral agreements lack bar quality; and it is equally well settled that for an agreement to achieve bar quality it must contain substantial terms and conditions and must be signed by all par- ties to that agreement.5 Since this agreement satis- fies none of the foregoing requirements, it is not a bar to the processing of the petition here. While we agree with the Employer that the wage agreement cannot serve as a bar, there is a further issue in this case not addressed by the par- ties. That issue is whether the parties, by their course of bargaining conduct, can be said to have waived the untimeliness of the Union's notice to modify the contract, thereby forestalling renewal after as to all of its terms unless not more than ninety (90) nor less than sixty (60) days prior to said last mentioned date, or any year thereafter, written notice is given by either party that the contract (I) is terminated, or (2) is to be open for modification. 3 The Union did not file a brief. See Appalachian Shale Products Co., 121 NLRB 1160, 1161 (1958). Id. at 1161-64. EMPIRE SCREEN PRINTING, INC. 719 of the contract. We believe that question must be answered in the negative. In Deluxe Metal Furniture Company, 121 NLRB 995 (1958), the Board, in reconsidering its contract- bar rules, reversed its previous rule that a party may, by its conduct, waive the untimeliness of a notice under an automatic renewal provision, there- by precluding renewal of the contract.6 The Board has continued to adhere to the rule announced in Deluxe Metal Furniture. Thus, in Moore Drop Forg- ing Company, 168 NLRB 984 (1967), the Board re- fused to find a waiver of the contract's strict notice requirements from an employer's past practice of accepting the union's late notices and from its par- ' Thus the Board in Deluxe Metal Furniture overruled its earlier deci- sion in The Carter's Ink Company, 109 NLRB 1042 (1954), wherein the Board held that the employer, by accepting the union's late notice to modify and by consenting to bargaining for a new contract, thereby waived any defect in the timeliness of the notice. ticipation in substantive negotiations after receipt of the untimely notice. The Board therefore found that the contract had automatically renewed, thus barring the petition filed by an outside labor orga- nization. Similarly, here the contract specifically required timely notice of an intention to modify or terminate the existing contract in order to forestall renewal. Since it is clear that neither party gave such timely notice, the contract by its terms automatically re- newed for I more year. In these circumstances, the renewed contract constituted a bar to the decertifi- cation petition. We shall therefore order dismissal of that petition. ORDER It is hereby ordered that the petition filed herein be, and it hereby it, dismissed.