Carpenters District Council of Denver

CARPENTERS DISTRICT COUNCIL OF DENVER Carpenters District Council of Denver and Vicinity, AFL-CIO; and United Brotherhood of Carpenters and Joiners of America, Local Union No. 55, AFL-CIO and Rocky Mountain Prestress, Inc. Carpenters District Council of Denver and Vicinity, AFL-CIO; and United Brotherhood of Carpenters and Joiners of America, Local Union No. 55, AFL-CIO, and Craftsmen Construction Com- pany, Inc. Cases 27-CB-373 and 27-CB-374 June 28, 1968 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS FANNING, BROWN, AND ZAGORIA On January 6, 1967, Trial Examiner Herman Marx issued his Decision in the above-entitled proceeding, finding that the Respondent Unions had not engaged in certain unfair labor practices as alleged in the complaint and recommended dismis- sal of the complaint in its entirety. Thereafter, Charging Parties and the General Counsel filed;ex- ceptions to the Trial Examiner's Decision and sup- porting briefs, and the Respondent filed its brief with the Trial Examiner in support of the Trial Ex- aminer's Decision. 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 the case, and finds merit in the exceptions of the Charging Parties and General Counsel. Accordingly, the Board adopts the findings and conclusions of the Trial Examiner only to the extent that they are consistent with this Decision and Order. The Complaint alleges that the Respondent Unions have engaged in a strike to modify or ter- minate the existing collective-bargaining contract without complying with the terms of Section 8(d)(1), (3), and (4) of the National Labor Rela- tions Act, as amended, and have thereby refused to bargain collectively in good faith with the Charging Parties, and did engage in unfair labor practices af- fecting commerce within the meaning of Section 8(b)(3) of the Act. Henceforth, we shall refer to the Charging Parties as the Employer and the Respondent Unions as the Union.' ' The facts herein deal specifically with Rocky Mountain Prestress, Inc , and Local 55 ' The record does not indicate when the parties were to meet again 793 The sole issue presented in this case is whether the Union, which called a strike in support of its bargaining position for a new contract after the ex- piration of the old contract but less than 60 days after the Employer had given notice of a desire to terminate the contract and to negotiate regarding a new contract, has failed to comply with the notice and waiting period requirement of Section 8(d) of the Act, and thus refused to bargain in violation of Section 8(b)(3). The essential facts are not in dispute, and may be briefly summarized: There was in existence a col- lective-bargaining agreement between the parties. Article X of that agreement provided that the agreement was to "expire on April 30, 1966." The contract contained no provision for extension or renewal, and, as a contract between the parties herein, expired on April 30, 1966. On March 18, 1966, the Employer by letter gave notice of its intention "to terminate all existing con- tracts" with the Union "on the expiration date as provided in the contract, or 60 days from the date of this notice, whichever occurs later," and of its desire for "negotiations ... regarding a new con- tract. " A meeting of the parties to the existing contract was held on March 29, 1966, for the purpose of negotiating a new contract . At that meeting, the parties failed to resolve all of the issues and the parties agreed to meet again.2 On May 3, 1966, at a Delver construction site where the Employer was then engaged in perform- ing work as a contractor employing carpenters on the project, the Employer was approached by the Union and handed a proposed agreement, which it was asked to sign as the new agreement between the parties. The Employer asked for several days to consider the request. The Union insisted that the contract be signed "now" or it would withdraw and withhold carpenters from the project. The Em- ployer declined to sign at that point; thereupon the Union ordered the carpenters to walk out and began picketing the site. No carpenters worked at the project between the walkout on May 3 and the discontinuance of the picketing on May 23. Subsequently, on June 22, 1966, the parties entered into a new collective-bar- gaining agreement. The Trial Examiner recommended that the com- plaint be dismissed. He concluded that the General Counsel's thesis founders on the decisive fact that the However, in view of their initial meeting and intent to meet again, it ap- pears likely that the parties no longer considered the contract's automatic expiration date as crucial in terms of their negotiations for a new contract 172 NLRB No. 87 794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Carpenters Agreement expired by its own terms on April 30, 1966. The quoted provi- sions of Section 8(d) are expressly applicable only to a contract "in effect," and this is made additionally clear by the requirement of Sec- tion 8(d)(4) that the party desiring contract termination or modification continue "the ex- isting contract" in full force and effect for the prescribed period, without resorting to strike or lockout. The General Counsel's position would lead one to the plainly untenable course of treating the Carpenters Agreement as "in effect" and "ex- isting" after it had expired. We reach a contrary conclusion respecting the ap- plication of Section 8(d) of the Act to the situation before us.3 Initially, we believe that the Trial Examiner's conclusion that the parties' 1966 agreement was not in effect within the meaning of Section 8(d) stems from too great a "preoccupation with ordina- ry contract law"4 which fails to take into account the true nature and role of the collective-bargaining agreement in maintaining and sustaining a collec- tive-bargaining relationship. The collective bargaining agreement ... is more than a contract; it is a generalized code to cover a myriad of cases which the draftsmen cannot wholly anticipate .... It calls into being a new common law-the common law of a particular industry or of a particular plant.... A collective bargaining agreement is an ef- fort to erect a system of industrial self-govern- ment. When most parties enter into contrac- tual relationship they do so voluntarily, in the sense that there is no real compulsion to deal with one another, as opposed to dealing with other parties. This is not true of the labor agreement. The choice is generally not between entering or refusing to enter into the relationship, for that in all probability pre-ex- ists the negotiations. Rather it is between hav- ing that relationship governed by an agreed- upon rule of law or leaving each and every matter subject to a temporary resolution de- pendent solely upon the relative strength, at any given moment, of the contending forces.' Taking these considerations into account, we re- ject the Trial Examiner's apparent conclusion that the Union was not seeking modification of the terms of an existing contract simply because the 1966 agreement had terminated at the time of the Union's strike. Though that agreement had ter- minated by operation of its terms by the time the Union struck, the parties, prior to such termination, had exchanged bargaining proposals. By such ac- tion they recognized and asserted their continuing obligation to maintain their collective-bargaining relationship and attested their mutual desire to have that relationship continue to be governed "by an agreed upon rule of law" in preference to "leav- ing each and every matter subject to temporary resolution dependent solely upon the relative strength, at any moment, of the contending forces." Significantly, their proposals sought renegotiation only of certain provisions of the 1966 agreement. Clearly the remaining provisions continued to have force and effect as the "common law of the plant" and as the relevant measure by which to determine whether the terms and conditions of employment established therein were being maintained until changes were duly negotiated. The fact that there was a hiatus between the 1966 agreement and the agreement flowing out of the negotiations initiated by the Employer's notice does not mean that the provisions of the 1966 agreement were no longer of any force and effect in regulating the relationship of the parties. Accordingly, assessing the parties' contractual status in the light of the operating reali- ties of their collective-bargaining relationship, we conclude that the parties' 1966 agreement was "in effect" within the meaning of Section 8(d) during all material times. This conclusion finds further support in the legislative history of Section 8(d). The Senate Committee Report describes the purpose and effect of Section 8(d) in the following terms: Another substantive feature of this subsec- tion is a provision which relates to employers Section 8(d) of the Act, to the extent pertinent here, provides where there is in effect a collective-bargaining contract covering em- ployees in an industry affecting commerce , the duty to bargain collec- tively shall also mean that no party to such contract shall terminate or modify such contract, unless the party desiring such termination or modification- (I) serves a written notice upon the other party to the contract of the proposed 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, r (3) notifies the Federal Mediation and Conciliation Service within thirty days after such notice of the existence of a dispute, and simultaneously therewith notifies any State or Territorial agency established to mediate and conciliate disputes within the State or Territory where the dispute occurred, provided no agree- ment has been reached by that time, and (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 expira- tion date of such contract , whichever occurs later [Emphasis sup- plied ] 4 Steelworkers v American Manufacturing Co , 363 U S 564, 567 ' Steelworkers v Warrior & Gulf Navigation Co , 363 U S 574, 578-579, 580 CARPENTERS DISTRICT and labor organizations which are parties to collective agreements. Most agreements have an expiration date, with an automatic renewal clause in the absence of advance notice by either side of a desire to terminate or modify. Under this section, parties to collective agree- ments in the future would be required to give 60 days' notice in advance of the terminal date, if they desire to terminate or amend. Should the parties fail to agree on a new con- tract in the next 30 days, the party taking the lead in refusing the old contract has the duty to notify the new Federal Mediation Service of the impasse. Should the notice not be given on time, irrespective of the presence or absence of a 60-day clause in the collective agreement, it becomes an unfair labor practice for an em- ployer to chage any of the terms or conditions specified in the contract for 60 days or to lock out his employees. Similarly, it is an unfair labor practice by a union to strike before the expiration of the 60-day period. Any employee who engages in a strike during the 60-day period would lose any rights under Sections 8, 9, and 10 of the Wagner Act, unless and until he is reemployed. It should be noted that this section does not render inoperative the obliga- tion to conform to notice provisions for longer periods, if the collective agreement so pro- vides. Failure to give such notice, however, does not become an unfair labor practice if the 60-day provision is complied with. (Sen. Rept. No. 105, 80th Cong., 1st Sess. 24.) As the Supreme Court has noted, "one thing, [this] most authoritative legislative gloss on §8(d) ... makes clear is that the statutory notice requirement operates wholly independently of whatever notice requirement the parties have fixed for them- selves."' Of like vein is Senator Taft's statement during debate in the Senate: We have provided in the revision of the collec- tive-bargaining procedure in connection with the mediation process, that before the end of any contract whether it contains a provision or not, either party who wishes to open the con- tract may give 60 days' notice in order to af- ford time for free collective bargaining, and then for the intervention of the Mediation Ser- vice. If such notice is given, the bill provides for no waiting period except during the life of the contract itself. If, however, either party N L R B v Lion Oil Company, 352 U S. 282, 292-293 Lion Oil Company, 109 NLRB 680, 683, N L.R B. v. Lion Oil Com- pany, 352 US 282,290-291 " Inasmuch as we are treating the Employer 's March 18 notice as the COUNCIL OF DENVER 795 neglects to give such notice and waits, let us say, until 30 days before the end of the con- tract to give the notice, then there is a waiting period provided during which the strike is an unlawful labor practice for 60 days from that time, or to the end of the contract and 30 days beyond that time. In that case there is a so- called waiting period during which a strike is il- legal, but it is only brought about by the failure of the union itself to give the notice which the bill requires shall be given. So it seems to me to be no real limitation of the rights of labor unions. (93 Cong. Rec. 3839) It is apparent from the foregoing legislative histo- ry that the absence of a notice provision on a col- lective-bargaining agreement does not eliminate the parties' obligation to serve a 60-day notice of intent to seek modification or termination of the agree- ment, to serve the 30-day notice on the mediation and conciliation services, and to avoid strikes or lockouts until 60 days from such notice. It is ap- parent also that the mere fact that a collective-bar- gaining agreement has terminated by operation of its terms at the time a strike or lockout begins does not excuse the parties' failure to have conformed to the notice and waiting provisions of Section 8(d), for 8(d)(4) requires them to maintain their con- tracts in full force and effect beyond its "expiration date," if such is necessary to achieve compliance with the 60-day notice provision. The term "expira- tion date" as used in Section 8(d)(1) and (4) has been construed by the Board, with Supreme Court approval, to encompass the actual termination date of a fixed term contract.7 This being the case, Sec- tion 8(d) requires the parties to such contract to serve a notice of modification or termination 60 days prior to such date or to maintain their agree- ment in effect beyond its termination date, until 60 days has run from whatever date such notice has been given. In the instant case, the Union struck within the 60-day period after the Employer served it with notice of a desire to terminate the 1966 agreement and to enter into negotiations for a succeeding con- tract. By such conduct, the Union failed to comply with the provisions of Section 8(d)(4), and we find, therefore, that its strike violated Section 8(b)(3) of the Act.8 Amended Conclusions of Law In view of our rejection of the Trial Examiner's conclusion that no violation of the Act was proved compliance with the notice requirements of Section 8(d)(I), we do not find the Union 's failure to give an 8(d)(3) notice to the mediation and con- ciliation services to be a violation of that section See Fort Smith Chair Company, 143 NLRB 5 I4 , 516-517 796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to have occurred , we do not adopt his Conclusion of Law 6. We substitute therefor the following Con- clusions of Law: By failing to continue in full force and effect, without resorting to strike, all the terms and conditions of the 1966 Carpenters agreement for a period of 60 days from the date the Em- ployer gave notice of its desire to terminate such agreement, as provided by Section 8(d)(4) of the Act, the Respondent Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(3) of the Act. The aforesaid unfair labor practice is an unfair labor practice affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respon- dent, Carpenters District Council of Denver and Vincinity, AFL-CIO; and United Brotherhood of Carpenters and Joiners of America, Local Union No. 55, AFL-CIO, their officers, agents, and representatives, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Rocky Mountain Prestress, Inc., concerning the termina- tion or modification of a collective-bargaining agreement with said Company by failing to con- tinue in full force and effect, without resorting to strike, all the terms and conditions of said collec- tive-bargaining agreement for a period of 60 days from the date the said Company gave notice of ter- mination of said agreement, or until the expiration date of said agreement , whichever occurs later, as provided by Section 8(d)(4) of the Act. (b) Engaging in, calling , or causing the em- ployees of Rocky Mountain Prestress, Inc., to en- gage in , a strike without first having complied with the requirements of Section 8(d) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Post at their business offices copies of the at- tached notice marked "Appendix."9 Copies of said notice, on forms provided by the Regional Director for Region 27, after being duly signed by Respon- dent Unions' representatives, shall be posted by Respondent Unions immediately upon receipt thereof, and be maintained by them for 60 consecu- tive days thereafter, in conspicuous places, includ- ing all places where notices to their members 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. (b) Furnish to the Regional Director for Region 27 signed copies of the attached notice marked "Appendix," for posting, the Company willing, at Rocky Mountain Prestress, Inc.'s facilities in places where notices to employees are customarily posted. The notices shall be maintained there for a period of 60 consecutive days thereafter. Copies of said notice, to be furnished by the Regional Director for Region 27, shall, after being duly signed by official representatives of the Respondent as provided in paragraph 2(a) of this Order, be forthwith returned to the Regional Director for such posting. (c) Notify the Regional Director for Region 27, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. APPENDIX NOTICE TO ALL MEMBERS 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 NOT in the future refuse to bargain collectively with Rocky Mountain Prestress, Inc., concerning the termination or modifica- tion of a collective-bargaining agreement with said Company by failing to continue in full force and effect, without resorting to strike, all the terms and conditions of said collective-bar- gaining agreement for a period of 60 days from the date the said Company gave notice of ter- mination of said agreement, or until the expira- tion date of said agreement, whichever occurs later as provided by Section 8(d)(4) of the Act. WE WILL NOT engage in, call, or cause the employees of Rocky Mountain Prestress, Inc., to engage in, a strike without first having com- plied with the provisions of Section 8(d)of the Act. UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, LOCAL UNION No. 55, AFL-CIO (Labor Organization) In the event that this Order is enforced by a decree of a United States Dated By Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals Enforc- ing an Order " (Representative ) (Title) CARPENTERS DISTRICT COUNCIL OF DENVER 797 CARPENTERS DISTRICT COUNCIL OF DENVER AND VICINITY, AFL-CIO (Labor Organization) Dated By (Representative ) (Title) This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. If members have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, New Custom House, Room 260, 721 19th Street, Denver, Colorado, Telephone 297-3551. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE The complaint alleges, in substance, that the Respondents, two labor organizations, Carpenters District Council of Denver and Vicinity, AFL-CIO, and United Brotherhood of Carpenters and Joiners of America, Local Union No. 55 (herein, respec- tively, the District Council and the Local, and, col- lectively, the Respondent Unions), have refused to bargain with two employers, Rocky Mountain Prestress, Inc., and Craftsmen Construction Com- pany, Inc., in violation of Section 8(b)(3) of the National Labor Relations Act, as amended ( herein the Act).' The Respondents have jointly filed an answer which, in material substance, denies the commis- sion of the unfair labor practices imputed to them in the complaint.' All parties appeared through respective counsel at a hearing upon the issues held before me, as duly designated Trial Examiner, and were afforded a full opportunity to adduce evidence, examine and cross-examine witnesses , and submit oral argument and briefs.' Upon the entire record, from my observation of the witnesses, and having read and considered the briefs filed with me, I make the following: FINDINGS OF FACT 1. NATURE OF THE BUSINESS OF THE EMPLOYERS INVOLVED; JURISDICTION OF THE BOARD Rocky Mountain Prestress, Inc., and Craftsmen Construction Company, Inc. (herein, respectively, Rocky Mountain and Craftsmen), are both Colorado corporations. Each maintains its principal office and place of business in Denver, Colorado. Rocky Mountain is there engaged in the produc- tion, sale, and erection of prestress concrete forms; Craftsmen is a general contractor in the building and construction industry; and each is, and has been at all material times, an employer within the meaning of Section 2(2) of the Act. In the course and conduct of its business, Rocky Mountain annually sells and ships prestressed concrete building materials valued , in the ag- gregate, in excess of $50,000 directly from points inside the State of Colorado to locations outside thereof, and in the course and conduct of its busi- ness operations in that State, Craftsmen annually purchases materials valued, in the aggregate, in ex- cess of $50,000 from suppliers located outside the State of Colorado. By reason of their respective in- terstate transactions, described above, Rocky Mountain and Craftsmen are, and have been at all material times, engaged in interstate commerce, and in operations affecting such commerce, within the meaning of Section 2(6) and (7) of the Act. Accordingly, the Board has jurisdiction of the sub- ject matter of this proceeding. II. THE LABOR ORGANIZATIONS INVOLVED The Local is affiliated with the District Counsel; both are affiliated with a statewide organization called the Colorado State Council of Carpenters (herein the State Council) and an international labor body called the United Brotherhood of Car- penters and Joiners of America (herein the Brotherhood ); and both the District Council and the Local are, and have been at all material times, labor organizations within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Prefatory Statement Rocky Mountain and Craftsmen, although separate corporate entities and engaged in different 29 U S C Sec 151, et ieq ' The complaint was issued on July 26, 1966, and is based upon a charge filed by Rocky Mountain Prestress , Inc , on May 5 , 1966, in Case 27-CB-373, another charge filed on the same date in Case 27-CB-374 by Craftsmen Construction Company, Inc , and upon an amendment of each charge filed on July 20, 1966 The two cases have been duly consolidated for hearing Copies of each charge, each amendment thereof, the com- plaint, the order of consolidation , and a notice of hearing have duly served upon all parties entitled thereto A hearing upon the issues was held in Denver , Colorado, on September 8, 1966 ' Lines 21-22 on p 93 of the heanng transcript, by means of the sentence, "I do not think I will receive them ," makes it appear that G C Exhs 9, 10, and I I were excluded The transcript is amended to delete the quoted sen- tence, for I did not make the statement, as is evident from the fact that I stated my intention to receive the three exhibits at 1 17 on p 93 In order to eliminate any question regarding their evidentiary status, I reaffirm their admission I note , also, that the transcript is garbled or otherwise inaccu- rate at a number of other places , but as the record adequately reflects the material evidence and issues , in the absence of a motion by any of the parties, I dispense with any additional amendment 798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD types of business at separate locations, are, and have been at all material times, " a single employer" and "a single integrated business enterprise," with "common officers, ownership, (and) directors," and "a common labor policy ... affecting the em- ployees" of both companies. All "carpenters and joiners employed by Rocky Mountain in the State of Colorado performing field work outside of Rocky Mountain's plants [sic] in Englewood, Colorado, exclusive of all other em- ployees and supervisors as defined in the Act," con- stitute, and have constituted at all times material here , a unit appropriate for collective bargaining, within the meaning of Section 9(b) of the Act; and all "carpenters and joiners employed by Craftsmen in its business as a general contractor in the State of Colorado, exclusive of all other employees and su- pervisors as defined in the Act," constitute, and have constituted at all such times, a unit thus ap- propriate. The District Council and the Local are, and have been at all times material here , the bargaining representatives, within the meaning of Section 9(a) of the Act, of all the employees in each of the units described above. In October 1963, Craftsmen entered into a "Memorandum of Agreement" (herein the 1963 Memorandum ) with various labor organizations, in- cluding the District Council and the Local. In sub- stance, the instrument purportedly bound its parties to the provisions of five so-called "Building Con- struction Agreements," each described in the docu- ment by the names of parties thereto, and followed by a specification of its expiration date (May 31, 1964, for one "Agreement"; April 30, 1966, for another; May 31, 1966, for two; and July 1, 1966, for the last). On February 28, 1964, Rocky Mountain entered into a substantially similar "Memorandum of Agreement" (herein the 1964 Memorandum) with such labor organizations , including the Respondent Unions, purportedly binding the parties to the terms (with some exceptions not material here) of the five "Building Construction Agreements," list- ing them, together with the respective expiration dates, substantially as in the 1963 Memorandum. Only one of the "Building Construction Agree- ments" is in evidence (G.C. Exh. 2). It consists of a printed form of contract bearing the label "Carpen- ters' Agreement" (thus designated herein), and by force of the execution of each memorandum of agreement became a contract between the em- ployer signatory to the memorandum and the Respondent Unions, prescribing terms and condi- tions of employment for employees in the respec- tive units described above.4 The Carptenters Agree- ment provided (in article X) that it was to "expire on April 30, 1966"; contained no provision for ex- tension or renewal; and as a contract between Craftsmen and the Respondent Unions and between Rocky Mountain and the two labor or- ganizations , did, in fact, expire on April 30, 1966.5 On March 18, 1966, Rocky Mountain wrote to the State Council, giving notice, in substance, of its intention "to terminate all existing contracts" between Rocky Mountain and the Respondent Unions (and other labor organizations not involved here) "on the expiration date as provided in such contracts, or sixty days from the date of this notice, whichever occurs later," and, in effect, requesting "negotiations ... regarding a new contract." The letter resulted in a meeting on March 29, 1966, between Rocky Mountain's president, Frank M. Hall, and others, on behalf of that Company, and representatives of the State and District Coun- cils. The parties present "discussed a possible new agreement with Rocky Mountain," and a major focus of discussion, if not the principal one, was a request by Rocky Mountain for written contractual provisions authorizing it to use "composite crews" of carpenters and laborers in the erection of "precast-prestress concrete products" at construc- tion projects. (Craftsmen and Rocky Mountain had been using such crews under an oral understanding they had reached with the State and District Coun- cils in 1961, and reaffirmed in 1965.) The union representatives rejected the request for written "composite crew" arrangements on the ground that ' Both the 1963 and 1964 Memoranda were purportedly signed on be- half of the State Council and its Colorado affiliates , including the Respon- dent Unions, by one Roy Bergh, a representative of the Brotherhood At the hearing, the Respondent Unions conceded , by stipulation , that they "ratified policed enforced," and "became parties to" the Carpen- ters Agreement The issues here hinge on the effect to be given to the ex- piration date of the Carpenters Agreement , and thus, in view of the stipula- tion, it is actually immaterial whether Bergh had authority to execute the 1963 and 1964 Memoranda on behalf of the Respondent Unions However, I note a claim by them ( unsupported by any evidence ) that Bergh lacked such authority The stipulation itself would warrant an inference that he possessed it, but it may be noted , in addition , that in 1961, Bergh , purpor- tedly on behalf of the same labor organizations mentioned in the 1963 and 1964 Memoranda , entered into similar written arrangements with Crafts- men (in 1961) and Rocky Mountain (in 1962), whereby the parties agreed to be bound by a collective -bargaining agreement (G C Exh 4) due, by its terms, to expire on June 30, 1963 , that the latter contract was signed by Bergh , Robert F Lumping , president of the District Council, and G E White, chairman of the District Council's negotiating committee and a business representative of the Local, that that contract contained provi- sions obligating employers bound by the contract to "give the Union first opportunity " to supply labor covered by the agreement, and that such labor was, in fact , supplied to Craftsmen and Rocky Mountain during the term of the contract The total record , in short , warrants a conclusion, and I find, that Bergh had at least apparent authority from the Respondent Unions to execute the 1963 and 1964 Memoranda on their behalf ' 1 note , in passing, that provisions of article X dealing with reopening of terms of the Carpenters Agreement are immaterial to any issue here The reopener provisions specified that in the event a "current existing collec- tive bargaining agreement between the Union ( the State Council , District Council, and their affiliated locals) and Associated Building Contractors of Colorado, Inc , shall be reopened during the term of this contract upon any matter contained therein , this contract may be reopened" upon a prescribed notice There is no evidence that any of the reopener provisions have ever been invoked , whether by Craftsmen or Rocky Mountain, or by Associated Building Contractors of Colorado, Inc (an organization, by the way, to which neither Craftsmen nor Rocky Mountain has ever belonged). CARPENTERS DISTRICT COUNCIL OF DENVER 799 the unions involved would have to make similar concessions to other employers under certain con- tracts then in effect . The issue was not resolved, and the parties agreed to meet again. On May 3, 1966, at a Denver construction site identified in the record as the Polo Club, where Craftsmen was then engaged in performing work as a contractor , employing carptenters on the project, a business agent of the Local gave Hall two identi- cal copies of a proposed agreement , one for Craft- smen and the other for Rocky Mountain ; and, in substance , asked Hall to sign them as the "new agreements " between the labor organizations named therein , including the Respondent Unions, and Craftsmen and Rocky Mountain . Hall said that he wanted several days to consider the request. Mc- Farland, after making a telephone call (for instruc- tions, as one may infer ), insisted that the contracts be signed "or there will be no men" (or, in other words, that the Respondent Unions would withdraw and withhold carpenters from the project). Hall declined to sign at that point ; McFarland thereupon told Craftsmen 's carpentry foreman "to quit right now"; and the latter and an unspecified number of Craftsmen employees complied. McFarland thereafter picketed the Polo Club site over a period beginning on May 5, 1966, and end- ing on May 23, 1966, carrying a sign bearing the legend : "Carpenters on strike against Rocky Moun- tain Prestress, Inc. for better working conditions. Carpenters' District Council." Although the picket- ing was conducted under the District Council's auspices, and the sign made no mention of Craft- smen , it is fair to conclude from the antecedent events and context of circumstances , and I find, that the picketing was directed against Craftsmen as well as Rocky Mountain, and that McFarland en- gaged in the activity on behalf of the Local as well as the District Council. No carpenters worked at the project between the walkout on May 3 and the discontinuance of the picketing on May 23, and the Local, although requested by Hall to supply carpenters for the pro- ject, did not do so during the period. Carpentry work was resumed at the Polo Club construction site on May 24, 1966, "on a limited basis" by another employer, apparently under a subcontract with Craftsmen . As is evident, the suspension of the carpentry work at the Polo Club project was due to a strike sponsored and conducted by the Respon- dent Unions against Craftsmen and Rocky Moun- tain. On June 22, 1966, Craftsmen and Rocky Moun- tain each entered into a collective -bargaining con- tract with the State Council and affiliated labor or- ganizations , including the Respondent Unions. By the time of execution of the agreements, the strike, as one may fairly infer, had ended . (I dispense with details of the new contract terms because they do not materially affect any result in this proceeding.) As the evidence establishes, without dispute, neither of the Respondent Unions gave any notice either to Craftsmen or Rocky Mountain of any proposed termination or modification of the Car- penters Agreement, nor of the existence of a dispute to the Federal Mediation and Conciliation Service or the Colorado State Industrial Commis- sion, which has the duty, under Colorado law (CRS Sec. 80-1 -27), to mediate and conciliate labor disputes. B. Discussion of the Issues; Concluding Findings The ultimate issue here is whether the Respon- dent Unions, by resorting to the strike , violated the bargaining obligation imposed upon them by Sec- tion 8(d) of the Act, which, to the extent pertinent here, provides: where there is in effect a collective -bargaining contract covering employees in an industry af- fecting commerce, the duty to bargain collec- tively shall also mean that no party to such contract shall terminate or modify such con- tract, unless the party desiring such termina- tion or modification- (1) serves a written notice upon the other party to the contract of the proposed ter- mination 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; * (3) notifies the Federal Mediation and Conciliation Service within thirty days after such notice of the existence of a dispute, and simultaneously therewith notifies any State or Territorial agency established to mediate and conciliate disputes within the State or Territory where the dispute occurred, provided no agreement has been reached by that time; and (4) continues in full force and effect, without resorting to strike or lock-out, 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. Invoking these provisions, and pointing to dif- ferences in terms between the contracts of June 22, 1966, and the Carpenters Agreement, the General Counsel asserts that the aim of the strike was, to quote from par. VII of the complaint, "to effect a change or modification of the terms and ... condi- tions of employment" contained in the Carpenters Agreement; and by striking for such a purpose, without complying with Section 8(d)(1), (3), and (4), the Respondent Unions, so the argument runs, 800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD failed in the bargaining duty imposed upon them by the relevant provisions of Section 8(d), and thereby violated Section 8(b)(3) of the Act.' This thesis founders on the decisive fact that the Carpenters Agreement expired by its own terms on April 30, 1966. The quoted provisions of Section 8(d) are expressly applicable only to a contract "in effect," and "existing " after it had expired . He cites no case that supports his position , and, indeed, in 1956, the then General Counsel expressed the view that the "[s]tatute imposes no duty to give notice of termination where [sic] contract terminated by its own provisions." (Administrative Decision, Case K-522, summarized in CCH, Par. 3200. 79.)' This is plainly out of kilter with the position the General Counsel urges here. The 1965 determination was in harmony with the statutory language, and the General Counsel's contention here is at odds with it. The sum of the matter is that the record does not support the unfair labor practice allegations of the complaint, and I shall, accordingly, recommend its dismissal.' IV. CONCLUSIONS OF LAW Upon the basis of the foregoing findings of fact, and upon the entire record in this proceeding, I make the following conclusions of law: 1. Craftsmen and Rocky Mountain are, and have been at all material times, employers within the meaning of Section 2(2) of the Act. 2. The District Council and the Local, are, and It is evident that the General Counsel makes no claim that the aim of the strike was to modify any of the "Building Construction Agreements," other than the Carpenters Agreement , mentioned in the 1963 and 1964 Memoranda For one thing , of the five "Agreements " mentioned , only the Carpenters Agreement is in evidence, and for another matter, and more to the point, it is clear from pars. V-IXX of the complaint that its gravamen is that the Respondent Unions violated their bargaining obligation by engag- ing in a strike to modify a contract "effective until April 30, 1966" (the Carpenters Agreement , obviously) without complying with the relevent terms of Section 8(d) In short , the Carpenters Agreement is the only one of the five "Building Construction Agreements" that is material here, and I do not pass on any right or obligation arising out of, or relating to, any of the other four or the oral "composite crew " arrangements , which are similarly immaterial to the issues raised by the complaint. ' In his brief, the General Counsel sees support for his contentions in Lion Oil Co. v N L R B, 352 U S 282, Retail Clerks Local No. 1179 (J C Penney Co ), 109 NLRB 754, Local Union 219, Retail Clerks International Association , AFL-CIO, 120 NLRB 272, and Fort Smith Chair Company, 143 NLRB 514 I see no need for any extended exploration of these cases, for they do not involve the point in issue here and are thus inapposite This have been at all material times, labor organizations within the meaning of Section 2(5) of the Act. 3. All carpenters and joiners employed by Rocky Mountain in the State of Colorado performing field work outside of Rocky Mountain's plant in En- glewood, Colorado, exclusive of all other em- ployees and supervisors as defined in the Act, con- stitute, and have consituted at all material times, a unit appropriate for collective bargaining, within the meaning of Section 9(b) of the Act. 4. All Carpenters and joiners employed by Crafts- men in its business as a general contractor in the State of Colorado, exclusive of all other employees and supervisors as defined in the Act, constitute, and have constituted at all material times, a unit ap- propriate for collective bargaining, within the meaning of Section 9(b) of the Act. 5. The District Council and the Local are, and have been at all material times, the bargaining representatives, within the meaning of Section 9(a) of the Act, of all the employees in each of the units described above. 6. The evidence does not establish that the Dis- trict Council and the Local have engaged in the un- fair labor practices imputed to them in the com- plaint. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and the entire record in this proceeding, it is recommended that the National Labor Relations Board enter an order dismissing the complaint. view of Lion Oil is unaffected by the court 's observation there (at p. 290) that "[n]otice of desired termination would ordinarily precede the date when the contract would come to an end by its terms or would be automati- cally renewed in the absence of notice to terminate Therefore we conclude that Congress meant by 'expiration date' in §8(d )( I) to encompass both situations, and the same phase in 68(d)(4) must carry the same meaning " I do not read the first of the "situations" as referring to a contract that ex- pires by force of its own fixed termination date, as here , but, rather, to a case where the agreement is terminable before a specified expiration date for some reason such as, for example, a provision authorizing such earlier termination s There is some intimation in the General Counsel's brief (pp 7-8) that Rocky Mountain 's termination notice in its letter of March 18 , 1966, had the effect of making the strike unlawful The road by which the General Counsel reaches such a result is far from clear, but be that as it may, it is obvious that the notice could not affect the expiration date already pro- vided for the Carpenters Agreement by its own terms, and the letter could not have the effect of thrusting upon the Respondent Unions any obligation to conform to the notice and strike provisions of Section 8(d) in connec- tion with the contract