Employers' Assn. of Bldg. Metal Fabricators, Etc.

382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employers' Association of Building Metal Fabricators, Rhode' Island District ; Rumford Steel Products , Inc.; Tower Iron Works, Inc.; John E . Cox Company, Inc.; and Providence Steel & Iron Company and Shopmen's Local Union No. 523, International Association of Bridge, Structural and Orna- mental Iron Workers, AFL-CIO. Case No. 1-CA-4246. Octo- ber 30, 1964 DECISION AND ORDER On March 10, 1964, Trial Examiner Eugene E. Dixon issued his Decision in the above-entitled proceeding finding that the Respond- ents had engaged in and were engaging in certain unfair labor prac- tices within the meaning of the Act, and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Decision. Thereafter, both the General Coun- sel and the Respondent filed exceptions to the Decision and briefs in support thereof. The Respondents also filed a motion to dismiss the complaint or in the alternative to remand the case for further hear- ing. The General Counsel filed a motion in opposition thereto, and Respondents filed an answer to the General Counsel's opposition mo- tion.' . , Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Mem- bers Leedom and Jenkins]. 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 Trial Examiner's Decision, the exceptions and briefs, the motions, and the entire record in this case and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the following modifications. We agree with the Trial Examiner's finding that the Respond- ent Association and Respondents Tower and Providence Steel vio- lated Section 8(a) (1) and (5) of the Act by refusing to honor the Union's request for information with respect to the seniority position, classification, and rate of pay of bargaining unit employees. Also, like the Trial Examiner, we find that Respondents Cox and Rumford substantially complied with the Union's request for this information, and therefore we shall dismiss those allegations of the complaint re- lating to these individual Respondents. 1 Our findings with respect to these motions appear below. 149 NLRB No. 45. EMPLOYERS' ASSN. OF BLDG. METAL FABRICATORS, ETC. 383 We also agree with the Trial Examiner that the Union satisfied the notice requirements of Section 8(d )2 of the Act, and therefore that the issuance of a bargaining order is appropriate. However, in reaching this conclusion we rely solely upon the following evidence : As more fully described in the Trial Examiner's Decision, the rec- ord establishes that the Respondents have recognized the Union as the contractual representative of their employees for more than 10 years. The most recent contract was effective from September 1, 1960, to August 31, 1963, with provision for a 1-year automatic re- newal unless written notice of intention to terminate was given not less than 60 or more than 90 days prior to the expiration date. Pursuant to the terms of the contract, the Union, on June 27, 1963, sent formal notice by certified mail to Respondent Association of its intention to terminate the existing agreement, and by regular mail to the other Respondents. For some unexplained reason, the certified- mail notice was not actually received until July 8, some 11 days after mailing. Less than 60 days thereafter, on September 3, 1963, the Union called a strike at the Association members' plants which was still in progress at the time of the hearing. Respondents contend that they did not receive the Union's certified- mail notice at least 60 days before the advent of the strike as required by Section 8(d) and therefore under the terms of this provision, the strike was illegal and all strikers lost their status as employees un- less and until reemployed by their Employer.3 Consequently,' Re- spondents argue, the Union cannot be presumed to be the majority representative of the bargaining unit employees, and, absent such a finding, a Section 8 (a) (5) allegation can not be sustained. - : ` - We disagree. In our opinion - the" Union's notice must be found timely under Section 8(d) in the special circumstances of this case. s Section 8(d) of the Act provides in pertinent part as follows: .. . Provided, That where there is in effect a collective-bargaining contract covering employees in an industry affecting commerce, the duty to bargain collectively shall also mean that no party to such contract shall terminate or modify such contract. unless the party desiring such termination or modification- (1) serves a written notice upon the other party to the contract of the pro- posed termination or modification sixty days prior to the expiration date thereof, or in the event such contract contains no expiration date, sixty days prior to the time it is proposed to make such termination or modification : s s r , s « s t (4) continues in full force and effect, without resorting to strike or lockout, all the terms and conditions of the existing contract for a period of sixty days after such notice is given or until the expiration date of such contract. whichever occurs later: Any employee who engages in a strike within the sixty-day period specified in this subsection shall lose his status as an employee of the employer engaged in the particular labor dispute, for the purposes of sections 8, 9, and 10 of this Act, as amended, but such loss of status for such employees shall terminate if and when he is reemployed by such employer. 3 See footnote 2, supra. 384 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD The notice, sent by certified mail, return receipt requested, was ad- dressed to "Mr. William McLeod, secretary, Building Metal Fabri- cators, 27 Sims Avenue, Providence, Rhode Islalid." It is undis- puted that this address was the only one ever given to the Union by the Association, and that previous correspondence from the Union to the Association was sent to this address. The Sims Avenue address is also the address of Providence Steel, one of the Respondent Com- panies, and McLeod, who is secretary of the Association, is also the vice president of Providence Steel. At the hearing, however, it was established that neither the Association nor Providence Steel received mail at the foregoing address. Instead, under an arrangement with the local post office, all mail addressed to 27 Sims Avenue was de- livered to a post office box maintained by Providence Steel .4 _ According to the testimony of a post office official, under such cir- cumstances mail would travel a circuitous route. A letter such as the one in question, mailed at the local post office which services the Sims Avenue address, would be directed to the main post office in Providence for sorting. Because 27 Sims Avenue was a location serviced by the local post office, the letter would be returned there for delivery. However, because Providence Steel maintains its post of- fice box at the annex station in downtown Providence, the letter would be sent back to the main post office for routing to the annex station. As the letter here in question was sent by certified mail, it would not be placed in Providence Steel's post office box. Instead a notice of receipt of certified mail would be placed in the box and if the letter was not picked up within 5 days, a second notice would be placed in the box. As noted, the letter here in question was mailed on June 27, some 67 days before the commencement of the strike. It is also established that Respondent Association picked up the letter on July 8, some 11 days after mailing. What caused such an unusual delay ,can not be determined from the record before us. The post office maintains no records which would establish when the letter was delivered to the Annex station, when the notice of certified mail was placed in the post office box, or whether more than one notice was required before the letter was picked up. The post office official testified without contradiction that under normal conditions the letter would have been delivered to 27 Sims Avenue the following day while a letter delivered to the post office box maintained by Providence Steel would have been available for pick up no more than 2 days after its mailing. This testimony sAlthough McLeod denied that Providence Steel had made arrangements with the post office to have the Association 's mail delivered to Providence Steel 's post office box, he did admit that he regularly received Association mail in Providence Steel 's post office box, and that this matter was never brought to the attention of the post office. EMPLOYERS' ASSN. OF BLDG. METAL FABRICATORS, ETC. 385 clearly establishes that the letter had been nailed sufficiently before the critical notice date (60 days before commencement of the strike) to be received timely by Respondents. In all of the circumstances of this case, we are satisfied that the Union acted in good faith in mailing its notice to the only address provided by the Respondents, with ample time for delivery, and that it had the right to assume its notice would be timely received in the due course of the mails. Had it been aware that Respondent Asso- ciation's mail was circuitously delivered to a post office box, it might very well have chosen to use another form of notices In any event, we find that Respondents may not assert that the notice was not served in timely fashion, when Respondent Association arranged for it different method ' of delivery without notification to, the Union. Accordingly, we find that the Union's notice to the Association was timely with respect to the requirements of Section 8(d) (1) of the Acts 117hile our finding disposes of Respondents' principal contention that the Union's presumed majority status was destroyed because its Section 8(d) (1) notice was untimely, there remain for our consid- eration certain additional matters, which Respondents have raised in a motion filed with the Board during the pendency of this proceed- ing. In their motion, Respondents urged, the dismissal of the com- plaint on the following grounds occurring after the close of the hear- ing : (1) in a different proceeding, the General Counsel has ruled that the Union 'no longer, represented a majority of the employees employed by the Association members; and (2) the Respondent As- sociation has been dissolved and therefore the multiemployer unit found appropriate herein is no longer in existence. Neither of the grounds raised in Respondent's motion would war- rant dismissal of the complaint because these alleged grounds oc- curred after Respondents' commission of the unfair labor practices. However, these grounds do relate to the question of whether a bar- gaining order may be proper and they will be considered in that context. As to Respondents' first contention, we find that even though the Union may no longer represent a majority of-the employees in the bargaining unit, it would not serve to effectuate the policies of the Act to allow Respondents' unfair labor practices to go unremedied •in this instance. With respect to Respondents'. second contention, the c As noted , no post office records are kept as to when a certified letter is received by the station in which the post office box is located. Nor is there a record of the date on which the notice of certified mail is placed in the post office box, or whether additional notices were required . Thus by the simple expedient of ignoring the notice of certified mail, the date of receipt could be delayed. 6In view of our finding , we deem it unnecessary to pass upon the question of whether the notice requirement 6f Section 8(d)(1) of the Act was satisfied by separate notice to the individual Respondent Companies which comprised the Association. 7 7 0-0 76-6 5-v o f 14 9-2 6 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Board regards it as a compliance question, and is now making no final adjudication of the status of Respondent Association. Hence, we regard the request for such a ruling to be premature. Accord- ingly, we shall deny the motion at this time, but in so ruling, we expressly reserve the right to modify our order in the light of cir- cumstances not now clearly apparent. Accordingly, we shall order Respondent Association and Respond- ents Tower and Providence Steel 7 to furnish to the Union, upon re- quest, information with respect to the seniority position, classifica- tion, and rate of pay for their employees. ORDER Pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Re- spondent Employers' Association of Building Metal Fabricators, Rhode Island District, Providence, Rhode Island; Respondent Tower Iron Works, Inc., Seekonk, Massachusetts; and Respondent Provi- dence Steel and Iron Company, Providence, Rhode Island, their of- ficers, agents, successors, and assigns, shall: 1. Cease and desist from refusing to bargain collectively with Shopmen's Local Union No. 523, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, as the ex- clusive representative of the employees in the appropriate unit by refusing to furnish the Union the seniority position, classification, and rate of pay of each employee in the collective-bargaining unit. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request, furnish to the Union the name of -each em ployee in the bargaining unit together with his seniority position, classification, and rate of pay. (b) Post at their plants in Providence, Rhode Island, and, See- konk, Massachusetts, copies of the attached notice marked "Appen- dix." 8 Copies of said notice, to be furnished by the Regional Di- rector for Region 1, shall, after being duly signed by the Respond- ents' representatives, be posted by Respondents immediately upon receipt thereof, and be maintained by them for 60 consecutive days thereafter, in conspicuous places, including all places' where notices to employees are customarily posted. Reasonable steps shall be taken by Respondents to insure that said notices are not altered, defaced, or covered by any other material. 7 As we have dismissed the allegations of the complaint charging Respondents Cox and Rumford with violations of the Act, we do not deem it appropriate to include them in our Order. 8 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order " the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." EMPLOYERS' ASSN. OF BLDG. METAL FABRICATORS, ETC . 387 (c) Notify the Regional Director for Region 1, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. IT IS HEREBY FURTHER ORDERED that the allegations of the complaint charging Respondents Cox and Rumford with Section 8(a) (1) and (5) violations of the Act be, and they hereby are, dismissed. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : WE WILL, upon request, furnish to Shopmen's Local Union No. 523, International Association of Bridge, Structural and Orna- mental Iron Workers, AFL-CIO, the seniority position, classi- fication, and rate of pay of each employee in the bargaining unit herein. The bargaining unit is All production and maintenance employees of Rumford Steel Products, Inc., Providence, Rhode Island; Tower Iron Works, Inc., Seekonk, Massachusetts; John E. Cox Com- pany Inc., Fall River, Massachusetts; and Providence Steel & Iron Company, Providence, Rhode Island, -excluding of- fice or clerical employees, draftsmen, engineering employees, watchmen, guards, janitors, supervisors, and employees en- gaged in erection, installation, or construction work. EMPLOYERS' ASSOCIATION OF BUILDING METAL FABRICATORS, RHODE ISLAND DISTRICT, Dated---------------- Employer. By------------------------------------- (Representative ) ( Title) TOWER IRON WORKERS, INC., Employer. Dated---------------- By------------------------------------- (Representative ) (Title) PROVIDENCE STEEL AND IRON COMPANY, Employer. Dated---------------- By----------------------------------?-- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employees may communicate directly with the Board's Regional Office, Boston Five Cents Savings' Bank Building, 24 School Street, Boston, Massachusetts, Telephone No. 523-8100, if they have any question concerning this notice or compliance with its provisions.. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon charges filed on July 30, 1963, and on September 13, 1963, the Regional Director for Region 5 of the National Labor Relations Board, herein called the Board, issued a complaint on September 13, 1963, on behalf of the General Counsel of the Board against Employers ' Association of Building Metal Fabrica- tors, Rhode Island District; Rumford Steel Products , Inc.; Tower Iron Works, Inc.; John E. Cox Company, Inc.; and Providence Steel & Iron Company, the Respondents herein, alleging violations of Section 8(a)(1) and (5) of the Na- tional Labor Relations Act, as amended (61 Stat. 136), herein called the Act. In their duly filed answer the Respondents denied the commission of any unfair labor practices. Pursuant to notice a hearing was held before Trial Examiners Eugene E. Dixon in Providence , Rhode Island, on October 7, 1963. On November 20, 1963, the General Counsel filed a motion to reopen the record herein for the purpose of receiving in evidence documents pertaining to the filing by Respondents of charges against the Union herein alleging a violation of Section 8(b)(3) of the Act. On November 22 Respondents filed its opposition to said motion. The motion is hereby denied. On December 10, 1963, by letter to the parties I indicated that I needed additional evidence upon which to reach a decision herein as to ( 1) the cause of the strike which had started on September 3, 1963, and was still in progress on October 7, 1963, and (2 ) the reason for the 11-day lapse between the mailing by the Union of its June 21 , 1963, notice to the Association of its intention to terminate the collective-bargaining agreement and the Association's receipt there- of. By telegram dated January 8 , 1964, Respondents objected to the hearing being reopened, but moved in the alternative "that if hearing is reopened it not be limited in scope and any pertinent and relevant evidence on issues presented by the complaint should be received and parties should be given full opportunity for argument by briefs after the hearing, if any is held." On January 20, 1964 (a stipulation having failed to materialize), I reopened the hearing for the sole purpose indicated in my December 10 letter. At the re- opened hearing the parties stipulated that the cause of the strike "is not in issue at this time and, does not relate to the allegations now alleged in the instant complaint" and no evidence was offered on that question . Thereafter, the admis- sion of evidence was restricted to the two matters specifically referred to in my letter of December 10 notwithstanding attempts by both parties to adduce evi- dence as to other matters . In this connection, Respondents filed with the Board an interlocutory appeal from my ruling which was denied by the Board "without prejudice to the Respondents' right to renew their position in any exceptions which they may file to the Trial Examiner's Decision." Upon the entire record in the case and from my observation of the witness, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENTS Respondent Employers' Association at all times material has been an unincor- porated association consisting of Respondents Rumford, Tower, Cox, and Provi- dence Steel. Rumford and Providence Steel are corporations duly organized under and existing by virtue of the laws of the State of Rhode Island. Tower and Cox are corporations duly organized under and existing by virtue of the laws of the Commonwealth of Massachusetts. Respondent Employers' Association, Rumford, and Providence Steel maintain their principal offices and places of business in Providence, Rhode Island. Tower maintains its principal office, and place of busines in Seekonk, Massachusetts, and Cox maintains its principal office and place of business in Fall River, Massachusetts. Respondents Rumford, Tower, Cox, and Providence Steel in the course and conduct of their business cause and continuously have caused, at all times material herein, large quantities of iron and steel used by them to be purchased and transported in interstate commerce from and through various States of the United EMPLOYERS ' ASSN. OF BLDG . METAL FABRICATORS , ETC. 389 States other than the States of Massachusetts and Rhode Island, and cause and continually have caused, at all times material herein, substantial quantities of iron and steel to be sold and transported from said plants in interstate commerce to States of the United States other than the States of Massachusetts and Rhode Island. Each of said Respondents received at their respective locations goods valued in excess of • $50,000 annually directed from points located outside their respective States and shipped from their respective locations goods valued in excess of $50,000 annually directly to points outside their respective States. Re- spondents Rumford, Tower, Cox, and Providence Steel are engaged in commerce as defined in Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION Shopmen's Local Union No. 523, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO is a labor organization as defined in Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES As indicated, the Respondents herein are four companies joined together in an association (also a Respondent herein) called Building Metal Fabricators-Rhode Island District, Providence, Rhode Island. For over 10 years the Union has had a bargaining relationship with Respondents. The current or last contract with the Association and the four Companies was in effect from September 1, 1960, to August 31, 1963. The agreement provided for automatic renewal of 1 year unless written notice of intention to terminate was given no less than 60 or more than 90 days prior to the stated expiration date. The bargaining unit covered by this contract (as it had been in substance for the past 10 years) was all the production and maintenance employees of the four Employers, excluding office or clerical employees, draftsmen, engineering employees, watchmen, guards, janitors, super- visors, and employees engaged in erection, installation, or construction work.' I find this to be an appropriate unit for the purposes of collective bargaining within the meaning of the Act. On November 19, 1962, the Union wrote letters, to each of the four Companies requesting the seniority position, classification, and rate of pay of each individual employee member of the Union, stating that "this information is necessary so that we may prepare our proposed collective-bargaining agreement with the Building Metal Fabricators, of which you are a member." On November 26, 1962, Cox replied in writing supplying the requested information. Having had no replies from the other three as of March 1963, the Union again requested in writing of the three the information it had previously sought. On March 21, 1963, Rumford wrote the Union supplying "basically" the information which had been requested Shortly thereafter, the Union's business agent, Robert Thomas, had several telephone conversations with various representatives of Tower and Rumford about the matter of the Union's request. The substance of Respondents' position as revealed in these conversations was that they did not wish to give the information because they felt it might cause trouble, among the employees. They indicated they were willing to give the classification and the seniority position of the individ- ual employees, but not their individual wage rates. They further indicated to Thomas that he could look at the company records to ascertain the individual rates but could not make a written record of the information. Thereafter, in early April, both - Tower and Rumford wrote the Union giving lists of the employees but referring the Union to the minimum rates for the classifications contained in the contract On April 19, 1963, Thomas then wrote the secretary of the Association (with copies to each of the four Companies), reiterating the Union's demand for the information it was seeking. By letter dated June 21, 1963, directed to William McLeod, the secretary' of the Association, the Union notified the Respondents of its desire to terminate the old contract and negotiate a new one. Union Business Agent Robert Thomas testified that he mailed (by certified mail) the letter in question (with copies-by ordinary mail to each of the four members of the Association) on June 27. This date of mailing is verified by the certified mail post office receipt received in evidence. 'In the complaint the unit is described simply as all the production and maintenance employees exclusive of all supervisors as defined in the Act While this is substantially the same as is set forth in the contract , I would follow ' this more detailed description ,which is contained in the contract. 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD However, another post office receipt received in evidence shows that the letter was not delivered until July 8. Thomas further testified that at the same time he mailed the notice to the Union, he also notified the Federal Conciliation and Mediation Service of the Union's intent to terminate the contract. As of July and August 1963, the Union represented a majority of the production and maintenance employees in each of Respondents' establishments.2 Pursuant to the Union's request, negotiations for a new contract began in August. Both sides agreed that neither was waiving any rights it might have by entering into negotiations. In a complete contract proposal submitted by the Union to the Company in August 1963, the following was proposed: The rates of pay set forth in subsection A of this section are minimum straight rates or hourly wage rates, and there is nothing contained herein that shall be construed as prohibiting or requiring the Company to grant individual em- ployees per length of service or other reasons, a wage increase which would result in such employees' regular straight time or hourly wage rate being in excess of the minimum rates that he or she receives. However, in the event that any such wage increases are granted The Company shall notify the Union in writing of the names of the employees, who are granted the increase, the amount of the increase , and the effective date thereon, and the reason therefore. While the previous contract had no prohibition against the Company's paying wage rates above the minimum , there was no provision in that contract for notice to the Union as to the specifics of such increases . Nor does the evidence show that such a demand was made in the 1960 negotiations. This matter of the Company's informing the, Union of increases it might make above the minimum rates provided for in the contract was discussed among the members of the Union's negotiating committee during the 1963 negotiations. "The general gist" of some of the committee members' comments made in this connection among themselves and not to the company negotiators was that it was none of the Union's business what the Companies paid the individuals so long as such payments were not below the minimum rates provided for in the con- tract. Notwithstanding these comments the Union made demands during nego- tiations for the information in question here. There was also mention made at these times about the charges which had been filed with the Board in this matter.3 On September 3, the Union went out on strike. There is no indication what the purpose of the strike was. Nor, as I have indicated, was any evidence offered to show the purpose. At no time prior to the hearing herein did Respondents raise any question about the appropriateness of the bargaining unit, which the Union claims to represent. However, in a meeting that the Union had on October 2, 1963, with the State and Federal conciliation people, the Union presented proposals then to be trans- mitted to the Company. One of these proposals contained a provision for the exclusion of leadmen from the bargaining unit. The evidence also shows that no rate or wage grievances arose during the 6 or 7 months before the contract expired, during which period the Union was considering and talking about a new contract . The evidence also shows that stewards in one company do not participate in grievances involving one of the other three company respondents . Also the employee-employer interchange regarding such things as overtime work and other matters of mutual interest, is strictly on a company-to-company basis, such matters in one company being of no concern to any of the other three companies. The evidence adduced by the General Counsel at the reopened hearing estab- lished in substance that under the usual practice and normal procedures of both the post office department and those responsible for picking up the mail of the Respond- ent Association, the notice of June 21 , 1963, to the Association of the intention to terminate the contract should have reached the desk of Association Secretary 2 In July, according to the checkoff lists of the various Companies , Cox had 3 union members, Providence 21, Rumford 31, and Tower 148. The figures for August were Cox 14, Providence 41, Rumford 32, and Tower 148; all constituting the majority of the employees in the units of the respective Companies at these times 8It will be recalled that the original charge was filed July 30, 1963 , and thus was pend- ing at the time negotiations began. EMPLOYERS' ASSN. OF BLDG. METAL FABRICATORS, ETC . 391 McLeod several days before the 60-day strike limitation contained in Section 8(d) of the Act became effective.4 Thus, the evidence shows that the letter in question was mailed from Olneyville, a suburb of Providence, on June 27. The letter was addressed to "Mr. William McLeod, secretary, Building Metal Fabricators, 27 Sims Avenue, Providence, Rhode Island" 5 which was the only address that had ever been given to the Union for the Association. Twenty-seven Sims Avenue is also the address of Respondent Providence Steel Company. Providence Steel Company maintains a post office box in the Providence annex post office and has an arrangement with the post office that all mail addressed to 27 Sims Avenue is to go to this box. According to the testimony of a post office official a letter mailed at the Olney- ville post office addressed to 27 Sims Avenue, Providence, would first go to the main post office in Providence for sorting. Because 27 Sims Avenue was a loca- tion serviced by the Olneyville post office, the letter would be returned to that post office for delivery. However, in this case since the arrangement was that all mail addressed to 27 Sims Avenue was to be delivered to a post office box at the annex station in downtown Providence, the letter would be sent back from Olneyville and routed to the annex station through the main post office. Conversely, mail depos- ited at the Olneyville post office addressed to a post office box at the annex station would go directly to the annex station after sorting at the main post office. A letter posted by certified mail, of course, is not placed in the post office box to be picked up as ordinary mail. Instead, a notice to the addressee is placed in the box with the information that a certified letter or certified mail has been received by the post office for the addressee and can be picked up by request. Cer- tified mail delivered to the annex station of downtown Providence can be called for and delivered at any time when the boxes are open to the box holders-namely 21 hours a day, 7 days a week. The undenied and credited testimony of Herman L. Toof, an officer of Provi- dence Steel, shows that for years the practice has been that the mail in the Com- pany's post office box is picked up daily either by him, his father, or McLeod and that all mail addressed to McLeod is placed on the latter's desk the same day that it is picked up. In his testimony McLeod at first testified that he was at work every day in the last week of June and the first week of July, except Saturdays, Sundays, and holidays. On cross-examination his assurance on this fact was considerably weakened. It is clear from the foregoing that the notification of the receipt of the certified letter in question would under normal procedures have been placed in the Provi- dence Steel Company box no more than 2 days after it has been mailed and that it would have reached McLeod's desk on.the same day. As to whether or not such notice was actually placed in the box at any time before July 8 (the date it was delivered) the evidence does not show. 4 Section 8(d) of the Act describes in some detail the duties and obligations of em- ployers and labor organizations in connection with collective bargaining. The pertinfnt parts of that section relied upon by Respondents herein as a defense are as follows: Provtided, That where there is in effect a collective-bargaining contract covering employees in an industry- affecting commerce, the duty to bargain collectively shall also mean that no party to such contract shall terminate or modify such contract, unless the party desiring such termination or modification- (1) serves a written notice upon the, other party to the contract of the pro- posed termination or modification sixty days prior to the expiration date thereof, or in the event such contract contains no expiration date, sixty days prior to the time it is proposed to make such termination or modification ; t « r « r r (4) continues in full force and effect, without resorting to strike or lockout, all the terms and conditions of the existing contract for a period of sixty days after such notice is given or until the expiration date of such contract, whichever occurs later: . . . Any employee who engages in a strike within the sixty-day period specified in this subsection shall lose his status as an employee of the employer engaged in the particular labor dispute,. for the purposes of sections 8, 9, and 10 of this Act, as amended, but such loss of status for such employee shall terminate if and when he is reemployed by such employer. 5 McLeod was also a vice president of Providence Steel Company. 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Contentions and Conclusions In its brief Respondents make the following contention: 1. The contract between the Respondents and the Union, signed on September 1, 1960, is still in existence and does not expire until August 31, 1964. II. The Union has waived its right to the requested information for the dura- tion of the contract. III The employees, by striking without first giving the notice required by Section 8(d) of the Act, have lost their status as employees and the Union therefore no longer has any employees of whom it is the bargaining representative. IV. Even if the employees did not lose their status as employees, there still is no affirmative evidence that the Union represents a majority of employees in an appropriate bargaining unit. V There never has been a finding in the past that the unit alleged in the complaint is an appropriate bargaining unit and there is no evidence on the present record upon which such a determination can be made. VI. The General Counsel has offered no evidence to prove his allegation that the information requested by the Union is relevant and necessary to the Union as the representative of the employees. VII. All of the information requested has been given by two of the Respond- ents so the complaint must be dismissed as to them, regardless of the Trial Examiner's findings on the issues raised herein. VIII. The Union's remedy here was through the grievance and arbitration procedure under the contract and it was foreclosed from going to the Board with the matter. As to I and II, Respondents rely on Shell Oil Company, and Shell Chemical Corporation, 93 NLRB 161, and Hearst Publishing Company, Inc. (Los Angeles Examiner Division), 113 NLRB 384 holding that parties may waive their statu- tory rights by collective bargaining. In the Shell case the union agreed in negotiations to a certain composition of its grievance committee and later at- tempted to go outside the bounds of its agreement in this respect. In the Hearst case, the union proposed a contract clause during negotiations that would give it the right to bargain on individual merit increases and would require the company to inform the union of all such increases. The company refused to accept this clause and the union signed a contract without it. Later, during the term of the contract, the union asked for substantially the same information that it had sought in its contract proposal. In both cases, the Board held that the employ- ers' refusals to accede to the unions' positions were not refusals to bargain within the meaning of Section 8(a)(5) of the Act on the grounds that in both instances the unions had bargained away and waived what statutory rights they had in the circumstances. Respondents contend that the Hearst case is particularly in point here because they claim the Union had made a similar proposal in the negotiations for the 1960 contract. But the evidence does not support Respondents. The evidence shows that such a proposal was made by the Union in the 1963 negotiations (which:were still in progress at the time of the hearing) but there is no probative evidence that a similar proposal was made in the 1960 negotiations. As to defense number IV, Respondents are also mistaken. The uncontroverted evidence shows that during July and August, a period during which the Union's demand was current and outstanding, the Union represented a majority of Re- spondents' employees in the bargaining unit; and in this connection (Respond- ents' defense number V), after the bargaining history here and with no question raised until the hearing -as to the appropriateness of the unit, Respondents are in poor position to claim that the unit is not appropriate. As to defense number VI, it is clear that there was no need to prove the relevance and necessity of the information here sought by the Union, since such relevance is presumed. Boston-Herald Traveler Corporation v. N.L.R.B., 223 F. 2d 58, 62-64 (C.A. 1). As to VIII, Respondents' reliance on The Timken Roller Bearing Co. v. N.L.R.B., 325 F. 2d 746 (C.A. 6), for the proposition that under the grievance and arbitration procedure contained in the contract here 6 the Union was fore- 6 This provision relied on states, "Should a grievance or dispute arise between the com- pany and the union (emphasis by Respondents) in connection with the application, inter- pretation, or alleged violation of any provision of this agreement, the complaining or aggrieved party shall serve notice thereof, in writing, on the other not later than five (5) work days from the date the grievance or dispute occurred, or comes to the attention of the complaining or aggrieved party . . . . EMPLOYERS' ASSN. OF BLDG. METAL FABRICATORS, ETC. 393 closed from going to the Board with this matter is misplaced. As the court pointed out in that case, the right of the Union to wage information was not acquired through the bargaining agreement, whether the demand of the Union should be honored, accordingly, does not involve the interpretation or application of the agreement, which is necessary in order to- be eligible for arbitration, but, on the contrary, involves the interpretation and application of the National Labor Relations Act. This brings us to the key issue in the case, namely, whether the employees lost their status as employees (thus obviating Respondents' obligation to bargain with them) by reason of a failure to give Respondents the requisite notice under Section 8(d)(1) of the Act before engaging in a strike. The General Counsel admits that the general rule is that the timeliness of a Section 8(d)(1) notice depends not on the date of mailing but on the date it is actually received.? But he contends that the Union's letter of June 21, 1963, to the Association was timely under Section 8(d)(1) notwithstanding that its deliv- ery date was shown to have been only 57 days before the strike began.8 In this he relies on Vapor Recovery Systems Company, 133 NLRB 580, where the Board held that the timely placing of notice of an 8 (d) (1) registered letter in the post office box where mail was customarily called for was tantamount to receipt even though not picked up by the employer until after the 60-day limitation provided for in Section 8(d)(1) had expired. The Board's reasoning was that the union had done all it could to comply with the statute and that the failure of timely receipt was the result of the employer's own conduct. While there may be a suspicion that such is the case here, the fact is that there is no showing here as in the Vapor Recovery case that the notice was placed in the Providence Steel box at any date prior to July 8.9 Accordingly, any presumption of constructive delivery is effectively rebutted by the return receipt of the actual delivery date of July 8. In any event, the General Counsel further contends that even though it might be determined that the letter to the Association was not timely under the Act, the four letters mailed by regular mail on the same date, June 27, to the individual members of the Association were timely and constituted adequate notice both to them and (as members of an unincorporated association) to the Association itself. I agree and so find. As indicated the Board cases hold that notice under Section 8(d) to be effective must be received and that mailing is not sufficient per se. The Ohio Oil Com- pany, 91 NLRB 759; Koenig Brothers Inc., supra. However, where notice is properly mailed, its receipt will be presumed in the absence of evidence to the contrary, 39 Am. Jur. 249 sec. 28; and the presumption also arises that the receipt will be in the ordinary course of the public mails unless there is evidence to the contrary, 20 Am. Jur. 202, sec. 202. Here there is no denial by any of the four Respondent Companies that they in fact received the four letters in question before July 5, 1963. I find therefore that they were in fact received before that date. I further find that a period of 7 days is ample to encompass "the ordinary course of the public mails" between Olneyville and the three areas to which the letters were directed, all in a radius of 25 miles of Olneyville. The defense of noncompliance with Section 8(d)(1) of the Act having thus been disposed of, it is clear, and I find, that by their failure to produce the requested information the Respondent Association and the Respondents Tower and Providence Steel have engaged in unfair labor practices by refusing to bargain in violation of Section 8(a) (5) of the Act. As for Respondents Cox and Rumford, it is clear that they both complied with the Union's request, Cox on November 26, 1962, and Rumford on March 21, 1963. However, since the Association to which they belong never complied, and the Union's demand continued to be asserted as late as August of 1963 as to 7 Koenig Brothers, Inc., 108 NLRB 804. 8 As noted, the strike began on September 3. July 5 thus was the crucial date for the 60-day notice period provided for in Section 8(d). Accordingly a letter mailed on June 27 had an allowance of 7 days for delivery before the limitation in Section 8(d) became effective. 0 Respondents adduced evidence as to various incidents of delayed deliveries in the Providence post office. Quite apart from this evidence, as I commented at the hearing it is always a possibility that a given letter may be mishandled and delayed in the course of its postal transmission. 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the entire Association, I believe an order directed to them to produce the request- ed information will also be proper here. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The operations of Respondents, described in section I, above, occurring in connection with the unfair labor practices described in section III, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondents have engaged in certain unfair labor prac- tices, I shall recommend that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondents refused to bargain with the Union in violation of Section 8(a) (5) and (1) of the Act by refusing, on request, to furnish the rate of pay classification, and seniority position of each employee in the bargaining unit, I shall recommend that Respondents supply such information upon request. Because of the limited scope of Respondents' refusal to bargain, I shall not recommend that Respondents be ordered to cease and desist from the commission of other unfair labor practices. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: - CONCLUSIONS OF LAW 1. Respondents are, and at all times material. herein have been, employers within the meaning of Section 2(2) of the Act. 2. Shopmen's Local Union No. 523, International Association of Bridge, Struc- tural and Ornamental Iron Workers, AFL-CIO, is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees of Respondent Companies, ex- cluding office or clerical employees, draftsmen, engineering employees, watch- men, guards, janitors, supervisors, and employees engaged in erection, installa- tion, or construction work, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Shopmen's Local Union No. 523, International Association of Bridge, Struc- tural and Ornamental Iron Workers, AFL-CIO, is, and at all times material herein has been, the exclusive representative of the employees in the above-de- scribed unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing to give said Union the seniority position, classification, and rate of pay of each individual employee in the bargaining unit, Respondents have refused to bargain with Shopmen's Local Union No. 523, International Associa- tion of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, thus engag- ing in unfair labor practices in violation of Section 8(a)(5) and (1) of the Act. 6. The above-described unfair labor practices, occurring in connection with Respondents' operations, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof, and constitute unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the entire record in the case and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I hereby recommend that Respond- ents Employers' Association of Building Metal Fabricators, Rhode Island, Dis- trict; Rumford Steel Products, Inc.; Tower Iron Works, Inc.; John E. Cox Com- pany, Inc.; and Providence Steel and Iron Company, their-officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from refusing to bargain collectively with Shopmen's Lo- cal Union No. ^ 523, International Association of Bridge, Structural and Ornamen- tal Iron Workers, AFL-CIO, as the exclusive representative of the employees in the appropriate unit by refusing to furnish the, Union the seniority position, classification, and rate of pay of each employee in the collective-bargaining unit. EMPLOYERS' ASSN. OF BLDG. METAL FABRICATORS, ETC. 395 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Upon request furnish to the Union the name of each employee in the bargaining unit together with his seniority position , classification, and rate of pay. (b) Post at their plants in Providence , Rhode Island, Seekonk, Massachu- setts, and Fall River, Massachusetts , copies of the attached notice marked "Appen- dix." 10 Copies of said notice to be furnished by the Regional Director for Region 1, shall, after being signed by Respondents ' representatives, be posted by Respondents immediately upon receipt thereof and be maintained by them for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its employees are customarily posted . Reasonable steps shall be taken by Respondents to insure that said notices 'are not altered , defaced, or covered by any other material. (c) Notify the Regional Director for the Region 1 , in writing, within 20 days from the date of the receipt of this Decision, what steps have been taken to comply herewith.11 11 In the event that this Recommended Order be adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order be enforced by a decree of the United States Court of Appeals, the words "a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Deci- sion and Order" ii In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondents have taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended ,•we hereby notify you that: WE WILL, upon request, furnish Shopmen's Local Union No. 523, Interna- tional Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, the seniority position, classification , and rate of pay of each em- ployee in the bargaining unit herein. The bargaining unit is: All production and maintenance employees of Respondent Companies, excluding office or clerical employees, draftsmen , engineering em- ployees, watchmen, guards, janitors, supervisors , and employees en- gaged in erection , installation, or construction work. EMPLOYERS' ASSOCIATION OF BUILDING METAL FABRICATORS, RHODE ISLAND DISTRICT, Employer. Dated------------------- By-------------------------------------------- (Representative ) ( Title) RUMFORD STEEL PRODUCTS, INC., Employer. Dated------------------- By------------------------------------------- (Representative ) ( Title) TOWER IRON WORKS, INC., Employer. Dated------------------- Dated---------- ------- By-------------------------------------------- (Representative ) Title) JOHN E. COX, INC, Employer. By--=---------------------------------------- (Representative) ' (Title) PROVIDENCE STEEL AND IRON COMPANY, ° Employer. Dated------------------- By------------------------------------------- (Representative ) ( Title) 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional office, Boston Five Cents Savings Bank Building, 24 School Street, Boston, Massachusetts, Telephone No. 523-8100, if they have any question concerning this notice or compliance with its provisions. General Motors Corporation, Buick-Oldsmobile-Pontiac Assem- bly Division and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), AFL-CIO. Case No. 21-CA-5401. October 30, 1964 DECISION AND ORDER On May 5, 1964, Trial Examiner Howard Myers issued his De- cision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's De- cision. Thereafter, Respondent, the Union, and the General Counsel filed exceptions to the Trial Examiner's Decision and supporting briefs, and the General Counsel also filed an answering brief. 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 Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations only to the extent that they are consistent with this Decision and Order. The Trial Examiner found that Respondent failed and refused to fulfill its bargaining obligation in violation of Section 8(a) (5) and (1) of the Act by not giving prior notice to or consulting with the Union when it leased the OK parking lot at its South Gate, Cali- fornia, plant, to Pacific Motor Trucking Co.' on June 17, 1963, and contracted with that firm to have the latter's employees do work which Respondent's drivers had previously performed. We disagree for the reasons given below. The record shows ' that prior to June 17, 1963, an area near the plant was occupied by two parking lots. The OK parking lot in the western section of the area adjoined the end of the assembly line and was used by Respondent for temporarily parking cars while its car distribution department made up the loads to be turned over to PMT. The other lot, which was adjacent to but separated by a fence with a gate from the OK lot, was leased from Respondent by PMT for I Herein called PMT. 149 NLRB No. 40.