Koenig Brothers, Inc.

304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD KOENIG BROTHERS, INC., Petitioner and LUMBER AND SAW- MILL WORKERS, LOCAL NO. 2405, AFL. Case No. 19-RM- 124. April 20, 1954 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Albert Gese, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent employees of the Employer. 3. No question affecting commerce exists concerning the representation of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act, for the following reasons: The Employer and the Lumber and Sawmill Workers, Local No. 2405, AFL, herein called the Union, are presently parties to a collective-bargaining agreement. This agreement provides that it "shall become effective November 25,1952, and shall re- main in full force and effect until December 1, 1953, and from year to year thereafter, until either party notifies the other in writing of a desire to change, modify, or terminate this agree- ment at least sixty (60) days prior to an annual termination date.... By registered letter dated September 30, 1953, the Employer advised the Union of its desire to terminate the contract. As indicated by the registered postal return receipt, this letter was received by the Union on October 2, 1953. The Union, by correspondence with the Employer, maintained that the contract had been automatically renewed because the Employer's notice was not timely with respect to the terms of their agreement. The Union urges the renewed contract as a bar to this proceed- ing, while the Employer maintains that timely notice was given to forestall automatic renewal of the contract. The Board has strictly construed provisions which forestall automatic renewal clauses . Thus the Board hasheldthat where the existence or nonexistence of a contract bar depends upon the giving of a timely notice, the timeliness of such notice depends not upon the date of mailing but upon the date of receipt.' In the absence of mitigating circumstances, z an untimely notice will not prevent automatic renewal and the automatically renewed contract will bar a subsequent petition. In this case, the termination date - - the day preceding the first day of the new contract term - -was November 30, 1953. Including 'See Belle-Moc, Inc., 81 NLRB 6. 2 Cf. Augat Bros. Inc., 97 NLRB 993; Evans Milling Company, 94 NLRB 1127. 108 NLRB No. 67. CLAYTON & LAMBERT MANUFACTURING COMPANY 305 that day in the computation of the 60 days required by the con- tract,3 the Mill B date, or day on which the automatic renewal became operative , was October 2, 1953. The last day on which notice to forestall automatic renewal could be effective was October 1 , 1953.4 As notice was not received 'on or before Octo- ber 1, 1953 , we find that the contract was automatically renewed. The Employer urges that the Union , by its subsequent conduct, waived the defect in the notice . The record discloses that in its notice letter , the Employer indicated a willingness to meet with the Union prior to December 1, 1953 , "to discuss our reasons for the action. . . ." In its reply, the Union maintained that the notice was not timely and that it would "defend by all means available . . . all terms and conditions of the present working agreement as well' as the bargaining rights ...," but indicated a willingness to meet and confer "for the purpose of negotiating upon any changes to be proposed by either party to the working agreement." There is no indication that the Union at any time thereafter abandoned its initial position. In these circumstances , we view the Employer ' s September 30, 1953, letter and the Union ' s reply thereto as post-renewal requests to negotiate changes, having no effect upon the renewed contract as a bar to the petition herein.5 For the foregoing reasons, we find that the contract , as automatically renewed, is a bar to this proceeding. We shall therefore dismiss the petition without prejudice to the filing of a new petition a reason- able time before the automatic renewal date of the existing contract. [The Board dismissed the petition.] 3See Williams Laundry Company, et al., 97 NLRB 995; Golden Belt Manufacturing Com- pany, 103 NLRB 1543, and cases cited therein. 4A notice which will forestall automatic renewal must be received prior to the "Mill B" date. See Williams Laundry Company, supra p. 996. 5See Land O'Sun Dairies, Inc., 107 NLRB No. 253. CLAYTON & LAMBERT MANUFACTURING COMPANY and ELECTRICAL WORKERS UNION, LOCAL NO. 369, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, A. F. of L., Petitioner . Case No. 9-RC-2087. April 20, 1954 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Harold M. Kennedy , hearing officer . The hearing officer's rulings made 108 NLRB No. 64. 339676 0 - 55 - 21