Budd Electronics, Inc.

498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In these circumstances, and in accord with established Board prece- dent, the Board would assert jurisdiction over Terrizzi, the primary Employer, and Schmidt, the secondary employer, affected by the Petitioner's secondary activities, whether or not such activities are in fact violative of Section 8(b) (4) of the Act.5 In view of the fore- going, the Board finds no merit in the primary Employer's conten- tion that the Petitioner's secondary activity may not be violative of Section 8(b) (4) of the Act, nor in the further contention that the dispute is nonlabor in character. Advisory opinions are rendered only on the jurisdictional issue presented by the facts submitted and the Board will not presume to render an opinion on whether the sub- ject matter of the dispute is governed by the Act. See Board's State- ments of Procedures, Section 101.40. Finally, the fact that neither Schmidt nor Chester Association are parties to the court litigation or to the proceeding herein would not prevent the Board from asserting jurisdiction herein.' Accordingly, the parties are therefore advised, under Section 102.103 of the Board's Rules and Regulations, Series 8, as amended, that, on the facts here present, the commerce operations of Terrizzi, the primary Employer, and those of Schmidt, the secondary employer, at Philadelphia, Pennsylvania, the location affected by the Petitioner's secondary conduct are such that the Board would assert jurisdiction with respect to labor disputes cognizable under Section 8 or 10 of the Act. See Jemcon Broadcasting Company, supra; and Madison Building if Construction Trades Council , et at. (Wallace Hildebrandt, et at., d/b/a H d K Lathing Co., at al.), 134 NLRB 517. See Jemcon Broadcasting Co., supra, where none of the secondary employers affected by the anion 's activities therein were parties to the court litigation or to the Board's advisory opinion proceeding. Budd Electronics , Inc., and Lewyt Corporation, Co-Employers and David J. Rivkin. Case No. 2-CA.-7/.96. June 6, 1962 DECISION AND ORDER On May 24, 1,961, Trial Examiner William Seagle issued his Inter- mediate Report in the above-entitled proceeding, finding that Re- spondent Budd Electronics, Inc. (referred to herein as Budd), had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain af- firmative action. The Trial Examiner also recommended that the com- plaint be dismissed is to Respondent Lewyt Corporation. Thereafter, the Respondents and Local 1614, International Brotherhood of Elec- trical Workers. AFL-CIO (referred to herein as the Union), filed 1,37 NLRB No. 53. BUDD ELECTRONICS, INC., AND LEWYT CORPORATION 499 exceptions and briefs in opposition to the Intermediate Report. The General Counsel also filed exceptions and a supporting brief as to certain factual findings of the Trial Examiner and as to his recom- mended dismissal of the complaint against Respondent Lewyt. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermedi- ate Report, the exceptions and briefs, and the entire record in this case and, finding merit in the exceptions of the Respondents and the Union, hereby adopts the findings, conclusions, and recommendations of the Trial Examiner only insofar as they are consistent with our Decision and Order. The complaint alleged that the Respondents had discriminatorily discharged six timekeepers for engaging in a protected strike. The Respondents and the Union contended that the timekeepers were dis- charged because of their unprotected activities in engaging in a strike which was in violation of the no-strike clause contained in a valid existing contract between Budd and the Union. Whether the strike is to be considered as a protected or an unprotected activity depends solely on whether the contract which covered the timekeepers was in effect on the date of their strike, July 1, 1960. Contrary to the Trial Examiner, we conclude that the contract was in effect, that the no- strike clause was violated by the concerted action of the timekeepers, and that their discharge was not a violation of Section 8 (a) (1) or (3). The Union represented two separate units at the Budd plant; a pro- duction and maintenance unit consisting of about 600 employees and a timekeepers unit consisting only of the 6 employees involved here. The contract for the production and maintenance unit had a termina- tion date of April 30, 1960, while the termination date under the time- keepers contract was May 30, 1960. Both contracts provided for automatic renewal unless either party gave notice of modification or termination at least 60 days in advance of the respective termination dates. Both contracts contained no-strike clauses providing that viola- tion could result in immediate discharge of the strikers and legal action against the Union. The Union sent appropriate notice of its intention to modify the production and maintenance agreement and the parties commenced bargaining thereon approximately 60 days before April 30. Realizing that they were unable to negotiate a new agreement by April 30, they agreed to extend the production and maintenance contract un- til June 30, and negotiations thereon continued until about midnight, June 29, when the parties finally settled on terms for it new produc- tion and maintenance. contract. While. these protracted , negotia- tions were going on,. the Union 'had failed' to .give, notice. of 500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD any intention to modify the timekeepers contract 1 and no formal action was taken as to it, either before or after its termination date of May 30. When final settlement was reached on the terms of the production and maintenance contract, the parties prepared to con- sider modification of the timekeepers agreement. Budd's negotiator said that he would stay all night if necessary, but in view of the hour and because Sanchez, the president of the Union, was scheduled to begin his vacation on the next day or so, the Union and Budd agreed that they would wait another 2 weeks until Sanchez returned, before negotiating an agreement for the timekeepers. The next day, June 30, when the timekeepers reported for work, they learned what had hap- pened the night before. The following day, July 1, with no notifica- .tion to their Employer and without the approval of their Union, the six timekeepers concertedly left their jobs. On learning of their walkout, Budd immediately discharged them. The. Trial Examiner found that the timekeepers' action could not have violated the no-strike clause of the timekeepers contract, since he also found that such agreement had expired on June 30, upon ,expiration of the April 30-June 30 extension agreement. He believed that the actions of Budd and the Union during the negotiations prior to June 30 indicated an intent on their part to abandon the whole ne- gotiating scheme contemplated by the timekeepers contract, of which the no-strike clause was a part. We do not believe that the Trial Examiner's conclusions about the presumed intention of the parties to terminate the contract are in fact supported by the record. We find no basis for concluding that Budd or the Union intended the timekeepers agreement to expire either on May 30 or June 30. On the contrary, we are satisfied that the parties, concerned with the major problem of reaching an agreement for the production and maintenance unit of 600 employees, considered that negotiations for a timekeepers agreement could perhaps be quickly disposed of once settlement had been reached in the larger unit. Ab- sent any 60-day notice to modify or terminate the timekeepers agree- ment, this agreement would have automatically renewed itself by June 1, 1960, unless such renewal was otherwise forestalled meanwhile, by agreement. A party's untimely notice to modify the agreement would not by itself forestall automatic renewal but would be treated merely as a request for modification by mutual assent.' Here, the i This is the finding made by the Trial Examiner. The General Counsel 's exceptions contend that the Union had sent a written notice to forestall the automatic renewal of the timekeepers contract , based on a prehearing affidavit of Budd's personnel manager that such a notice had been received . The Trial Examiner, however, credited the testi- mony of the personnel manager at the hearing, which was corroborated by that of the Union's president, that no such notice had been received or sent . We see no reason to overrule the Trial Examiner's finding that the Union had failed to give Budd timely notice of its desire to modify the timekeepers contract. s Deiuwe Metal Furniture Company, 121 NLRB 995, 1002. THE F. A. BARTLETT TREE EXPERT Co. 501 mutual assent of Budd and the Union on June 29 to negotiate changes in the old agreement clearly manifested their understanding that the timekeepers agreement, as automatically renewed on May 30, would remain in effect until modified, and nothing that the parties did before or after June 29 indicates a contrary intention.3 Thus, in the absence of any showing that Budd and the Union had terminated the timekeepers contract, we find that it was in effect on July 1 when the timekeepers engaged in their strike. The Respondent was therefore free under terms of the no-strike clause to discharge these employees for their contract violation. We shall accordingly dismiss the complaint. [The Board dismissed the complaint.] 8 See New England Lead Burning Company, Inc , 133 NLRB 863 , where the Board found that a notice of termination may be revoked by a mutual oral agreement the effect of which was to permit automatic renewal of a contract. The F. A. Bartlett Tree Expert Co., Petitioner and International Hod Carriers, Building and Common Laborers Union of America, AFL-CIO, Local No. 1353. Case No. 9-RM-251. June 6, 196 SUPPLEMENTAL DECISION AND DIRECTION OF SECOND ELECTION Pursuant to a Decision and Order of the National Labor Relations Board 1 dated July 27, 1961, a hearing was held on August 18, 1961, before Cassius B. Gravitt, Jr., hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. In its petition, the Employer requests an election in a unit comprised of all employees employed and working out of the Charleston, West Virginia, office of the Employer and under the supervision and direc- tion of the local supervisor of that office, excluding office clerical em- ployees, temporary employees, technical employees, professional em- ployees, guards, and supervisors as defined in the Act. The Union agrees to the appropriateness of this unit, which is the unit certified by the Board in August 1959 and covered by contract between the Em- ployer and the Union, except that the Union, contrary to the Em- ployer, would include temporary employees and exclude temporary foremen. The Employer, which is engaged chiefly in line clearance for a power company within a 50-mile radius of Charleston, trims and fells trees, 1 Not published in NLRB volumes. 137 NLRB No. 56.