Dick Brothers, Inc.

DICK BROTHERS, INC. 451 in the face of its recent actions, is to leave the parties that come before the Board in that state of confusion which the absence of an established rule inevitably creates. To depart from established practice without so much as acknowledging that fact serves only to add bewilderment to a dilemma-a result good conscience and sound administration should, at all costs, seek to avoid. Under the circumstances, and for the reasons above stated, I would hold the so-called "Supplemental Agreement" no bar, and would ,entertain the petition on the merits. MEMBER MURDOCK took no part in the consideration of the above Decision and Order. DICK BROTHERS, INC. and STEEL WORKERS FEDERATION, PETITIONER. Case No. 4-RC-2430. October 22,1954 Decision and Order Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before William Naimark, 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 National Labor Relations Act. 2. The labor organizations involved claim to represent employees of the Employer. 3. The Petitioner, Steel Workers Federation, filed its petition herein on June 23, 1954, seeking to represent a unit composed of all produc- tion and maintenance employees at the Employer's Reading, Penn- sylvania, plant, excluding all office clerical employees, professional employees, guards, and supervisors as defined in the Act. The Em- ployer and the Intervenor, United Steelworkers of America, CIO, contend, in substance, that this proceeding is barred by a settlement agreement, settling alleged violations of Section 8 (a) (5) and (1) of the Act, which was entered into by the Employer and the Inter- venor with the approval of the Regional Director, and by a certain bargaining contract executed by them approximately 2 days thereafter as a result of the bargaining prescribed in the settlement agreement. The facts of the case are briefly as follows : On January 7, 1953, the Employer and the Intervenor entered into a collective-bargaining agreement which was to remain in effect until September 1, 1954, and thereafter unless terminated on 60 days' notice. This agreement also provided for a midterm reopening to negotiate wage rates. On June 110 NLRB No. 81. 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 23, 1953, the Intervenor timely notified the Employer of its desire 10 negotiate wage modifications pursuant to the midterm wage reopening provision. Several meetings were thereafter held for this purpose but no agreement was reached. On July 27, 1953, the Petitioner herein filed a petition seeking an election and the Intervenor interposed its contract of January 7, 1953, as a bar. The Board found, in accord with the Intervenor's contention, that the contract precluded that proceeding.' It also appears that the Petitioner called a strike in order to effect a termination of the Intervenor's 1953 contract with the Employer. As e result of the strike, the Employer notwithstanding its contract with the- Intervenor, refused to recognize any labor organization as the bargain- ing representative of its employees. Thereupon, on September 23, 1953, the Intervenor filed an unfair labor practice charge against the Employer, alleging, inter alia, that the Employer refused to bargain collectively with it as the majority representative of its employees and thereby violated Section 8 (a) (5) and (1) of the Act. On Novem- ber 20, 1953, the Regional Director dismissed the unfair labor practice charges as being without merit, and the Intervenor appealed the dis- missal to the General Counsel. On April 22, 1954, the General Coun- sel sustained the Intervenor's appeal as to the dismissal of the 8 (a) (5) and (1) charge and directed the Regional Director to process the- charge. On June 17, 1954, the Petitioner again requested recognition of the Employer as the majority representative of its employees and approximately a week later, on June 23, 1954, filed its petition herein- On June 29, 1954, the Employer and the Intervenor, with the ap- proval of the Regional Director, entered into a settlement agreement which provided, in substance, that the Employer would cease and de- sist from interfering with, restraining, or coercing its employees; that the Employer would recognize the Intervenor as the exclusive bargain- ing representative of all the Employer's employees described in the Jan- uary 7, 1953, agreement; that the Employer would bargain collective- ly with the Intervenor concerning wages, hours, and other conditions. of employment; and that the Employer would post notices to that ef- fect. As a consequence of the bargaining directed by the settlement agreement, the Intervenor and the Employer, on July 1, 1954, signed an amended contract, which extended the term of the 1953 contract to, September 1, 1956. It is the foregoing settlement agreement and the resultant contract that the Employer and the Intervenor contend constitute a bar to a de- termination of representatives at this time. More specifically, the In- tervenor argues that, as in the case of bargaining orders of the Board, effectuation of the policies of the Act requires that the Employer honor- 1 See Dick Brothers, Inc., 107 NLRB 1054. DICK BROTHERS, INC. 453 its bargaining obligation provided for in a settlement agreement for a reasonable period of time, which had not yet elapsed at the time the contract in question was concluded, and that no question concerning representation may be raised while the effects of the Employer's un- fair labor practices were being remedied by the Employer's com- pliance with the terms of the settlement agreement. The Employer contends that, in compliance with the settlement agreement in an effort to stabilize its industrial relations, it executed the amended contract and, therefore, a present election is untimely. The Petitioner, on the other hand, maintains that, as it requested recognition and filed its peti- tion before the automatic renewal date of the 1953 contract and the ex- ecution of the extension of this contract on July 1, 1954, neither con- tract should preclude a determination of representatives. In Poole Foundry c6 Machine 00.2 the Board was confronted with a comparable question as to the effect of a settlement agreement, based on 8 (a) (5) and (1) charges, upon the right of employees to file a decertification petition after the execution of a settlement agreement, and the related question of the length of time that the employer was obligated to bargain with the union pursuant to such an agreement. In that case, the parties had signed a settlement agreement, like the one here involved, which provided that the respondent therein would bargain with the union and post notices at its plant for 60 days in- forming the employees of its intention to do so. Thereafter, certain employees filed a petition to decertify the union, and the Board, in sustaining the Regional Director's dismissal of the decertification petition, stated that the "Employer and the [union were] entitled to a reasonable time within which to effectuate the provisions of the set- tlement agreement . . . free from rival claims and petitions. . . ." In finding that the employer unlawfully refused to bargain with the union after the dismissal of the decertification petition the Board stated : 2 It is well settled that after the Board finds that an employer has failed in his statutory duty to bargain with a union, and orders the employer to bargain, such an order must be carried out for a reasonable time thereafter without regard to whether or not there are fluctuations in the majority status of the union during that period. Such a rule has been considered necessary to give the order to bargain its fullest effect, i. e., to give the parties to the controversy a reasonable time in which to conclude a contract. Similarly, a settlement agreement containing a bargaining pro- vision, if it is to achieve its purpose, must be treated as giving the parties thereto a reasonable time in which to conclude a con- 2 95 NLRB 34 ; enfd. 192 F 2d 740; cert denied 342 U. S 954. 3 95 NLRB 34, 30 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tract. We therefore hold that after providing in the settlement agreement that it would bargain with the Union, the Respondent was under an obligation to honor that agreement for a reasonable time after its execution without questioning the representative' status of the Union. . . ." [Emphasis supplied.] The Fourth Circuit enforced the Board's order, holding that the• respondent-employer by entering into the settlement agreement was "bound to bargain in good faith with the Union for a reasonable pe- riod of time after such agreement without questioning the Union's lack of majority." The court observed that : 4 If a settlement agreement is to have any real force, it would seem' that a reasonable time must be afforded in which a status fixed' by the agreement is to operate. Otherwise, settlement agreements- might indeed have little practical effect as an amicable and judi- cious means to expeditious disposal of disputes arising under the, terms of the Act... . In passing on the contention that the Board's order denied the em- ployees the right to choose freely their representative, the court stated that the employees could file a decertification petition after the settle-- ment agreement had been in effect a reasonable length of time. We find that the reasoning of the Poole case is equally applicable to the present case. Here, the Intervenor had diligently filed unfair- labor practice charges long before the filing of the instant representa- tion petition. Significantly, the Petitioner's strike was a contribut- ing factor, if not the cause, of the Employer's unlawful refusal to, accord the Intervenor the recognition the Act guaranteed it as the. exclusive bargaining representative of the Employer's employees. Whatever delay there was in processing these charges to a successful' conclusion was not due to any fault on the part of the Intervenor. As the parties have reached agreement on the settlement of these charges with approval of the Regional Director, we find that effectua- tion of the policies of the Act requires that they be given a reasonable- time within which to carry out the provisions of the settlement agree- ment free of rival union claims and petitions. Indeed, in fulfillment of the very purposes of the settlement agreement, the parties executed a contract within such reasonable time. In these circumstances, we find that the settlement agreement, as well as the July 1, 1954, agree- ment, precludes an election at this time. Accordingly, we shall dis- miss the petition. [The Board dismissed the petition.] + 192 F 2d 740, 743. The court also pointed out that if this were not the rule, it would permit an employer to commit an unfair labor practice by refusing to bargain with a union, sign a settlement agreement undertaking to bargain with the union , then attempt to have a new union certified when dissatisfaction with the old union arose among the employees because of the unfair labor practice.