Mason City Builders Supply Co.

MASON CITY BUILDERS SUPPLY CO. 177 Mason City Builders Supply Co. and Local Union No. 828, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri- ca. Case 18-CA-3174 Upon consideration of the entire record and of the briefs filed by General Counsel and by Respondent, I make the following: FINDINGS OF FACT September 16, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On June 16, 1971, Trial Examiner Frederick U. Reel issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in certain unfair labor practices and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief. The Respondent filed a brief in response to General Counsel's exception and in support of the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. 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 hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommend- ed Order of the Trial Examiner and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE FREDERICK U. REEL, Trial Examiner: This proceeding, heard at Mason City, Iowa, on May 4, 1971, pursuant to a charge filed the preceding March 8, and a complaint issued April 7, presents the question whether Respondent, herein called the Company, violated Section 8(a)(5) and (1) of the Act when it took the position that its contract with the Charging Party, herein called the Union, had automatically renewed and that Respondent was therefore not obligated to bargain with the Union over a new contract. 1. THE BUSINESS OF THE COMPANY AND THE LABOR ORGANIZATION INVOLVED The Company, an Iowa corporation engaged at Mason City in the wholesale distribution of building materials, annually ships goods valued in excess of $50,000 to points directly outside the State, and is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES In 1968 the Company and the Union entered into a 3- year contract covering the company employees in an appropriate unit. Article 35 of the contract provided in part: This Agreement shall be effective on the 12th day of March, 1968 and remain in full force and effect until the 12th day of March 1971 and from year to year thereafter, provided, however, that either party to this Agreement may present to the other party, in writing, a notification to modify or terminate this Agreement, at least sixty (60) days before the termination date. Such notice by either party shall include all requested changes in the agreement, including termination thereof if such be the desire of either party, and negotiations thereafter shall be limited to the requested changes set forth therein. On December 10, 1970, the Union wrote the Company as follows, but received no reply: As per Article 35, of the present agreement between Mason City Builders Supply Co. and Local Union No. 828, kindly accept this communication as official notice of our desire to negotiate certain changes and modifications in the present agreement. We will contact you in the near future to arrange a date and place for the purpose of negotiating said changes as we desire to have the new agreement become effective as of March 12, 1971. On January 15, 1971, less than 60 days before March 12, the Union sent the Company a letter enclosing the Union's contract proposals and requesting a meeting for the purpose of commencing contract negotiations. Again the Company made no reply. At a meeting between company and union representatives on February 25, 1971, the Company took the position, to which it still adheres, that the existing contract had automatically renewed for one more year because the Union had not given timely notice of its requested changes. On January 7, 1971, the Company filed a petition with the Regional Director seeking an election among the employees in the unit covered by the collective-bargaining agreement. Late in January the parties agreed to a consent election, which was held on March 11. The Union won the election and has been certified. 193 NLRB No. 36 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon those facts it seems clear to me that the Company's position is correct, and the contract automatically renewed. The contract provided for automatic renewal unless timely notice was given of "all requested changes," and of the two notices in this case one did not contain the changes and the other was untimely. The Company was under no duty to reply to the first notice, which by its terms did not appear to require a reply. There may have been a lack of courtesy in ignoring the second notice. That notice, however, was untimely, and hence imposed no legal duty on the Company. General Counsel suggests that the Company by filing its petition and by going to an election was in effect conceding that the contract was about to expire. At the time the petition was filed, however, the Union still had time to give proper notice of its requested changes. To be sure the Company, after the contract had automatically renewed, agreed to, and participated in, a consent election. This did not absolve the Union of its earlier failure to give the proper notice. Cf. Moore Drop Forging Co., 168 NLRB 984; Deluxe Metal Furniture Co., 121 NLRB 995, 1000, 1002. If the i In view of my disposition of the case, it is unnecessary to reach the Company's contention that the Union failed to give proper notice under Section 8(d) to the Iowa authorities. The record establishes that such notice would have been an idle gesture as the state agency merely files the notices it receives pursuant to that Section and takes no action on them Cf Brotherhood of Locomotive Firemen, etc (Phelps Dodge Corp) v N L R B, 302 F.2d 198 (C.A. 9) Also, under the Board's decision in South Texas Chapter, Associated General Contractors, 190 NLRB No 73, it makes no practical difference whether the employer has or has not erred in taking the position that the contract renewed , for even if he erred , his only liability for that violation is to bargain, an obligation he cheerfully accepts 1 year later, or long before the Board's bargaining order, if contested in court, would be enforceable . I regard H K Porter v. N L R B, 397 U S 99, as inapposite, for in that case the Board was instructed not to write a substantive term into the contract Assuming, as of course I must for Union had lost the election, a question might have arisen as to the vitality of the automatically renewed contract, but there is no need to grasp that nettle here. General Counsel argues that the Certification of Representatives "should be given its normal effect," but this means no more in the context of this case than that the Union continues to enjoy representative, and indeed now certified, status, which the Company in no way disputes.' CONCLUSIONS OF LAW 1. The contract between the Company and the Union automatically renewed for 1 year when the Union failed to give the detailed notice of proposed changes within 60 days of the expiration date. 2. The Company has not committed the unfair labor practices alleged in the complaint. RECOMMENDED ORDER The complaint should be, and hereby is, dismissed. present purposes, the soundness of the Board decision in Ex-Cell-O Corporation, 185 NLRB No 20, reversed on motion for summary judgment 76 LRRM 2753 (C A D C , 1971), I regard the problem here presented as distinguishable, for in Ex-Cell-O the Board's order to bargain at least has some future significance in remedying an unfair labor practice , whereas in the South Texas case (or in this case if a violation was committed ) the so- called remedial order is a futility as the violation by its nature has a termination date . Also the remedy the Board rejected in Ex-Cell-0 would have fixed a wage retroactively , whereas that proposed in South Texas (but rejected by the Board) would leave the past wage open to bargaining If the Board should reverse the decision here and find a violation, it might wish to reconsider its South Texas "remedy" in the light of the considerations expressed in J P Stevens Co v. N L R B, 417 F 2d 533, 539, In. 10 (C.A. 5)