The Arundel Corp.

ARUNDEL CORP. 525 The Arundel Corporation and Baltimore Automotive Lodge No. 199, International Association of Ma- chinists and Aerospace Workers, AFL-CIO. Case 5-CA-6207 May 9, 1974 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO the Board. Thereafter, Respondent and the General Counsel each filed a brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the entire record in this case, including the briefs, and makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER Upon a charge filed July 17, 1973,1 by Baltimore Automotive Lodge No. 199, International Associa- tion of Machinists and Aerospace Wor)cers, AFL-CIO, herein called Charging Party, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 5, issued a complaint and notice of hearing on August 27 against The Arundel Corporation, herein called Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (5) of the National Labor Relations Act, as amended . Copies of the charge and complaint and notice of hearing2 before an Administrative Law Judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that since on or about July 23 Respondent has failed and refused to bargain in good faith with the Charging Party. In addition, the complaint also alleges that Respondent's alleged unfair labor practices have prolonged a strike in which certain of its employees have engaged. On October 23 Respondent, the Charging Party, and the General Counsel entered into a stipulation in which they agreed that certain formal papers filed in this proceeding and the stipulation, together with the exhibits attached thereto, constitute the entire record in this case. The parties waived a hearing before an Administrative Law Judge, the making of findings of facts and conclusions of law by an Administrative Law Judge, and the issuance of an Administrative Law Judge's Decision. They submitted this proceed- ing directly to the Board for findings of fact, conclusions of law, and the entry of an appropriate order by the Board. The parties waived oral argument in this case and requested that the Board set November 30 for the filing of beefs. On November 7 the Board issued its order approving stipulation and transferring proceeding to The Arundel Corporation, a Maryland corporation having its principal offices in Baltimore , Maryland, is engaged in the manufacture and sale of mixed concrete and related products. During the 12 months prior to the stipulation Respondent purchased and received materials valued in excess of $50,000 from points and places outside the State of Maryland. We find that Respondent is, and at all times material herein has been, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the purposes of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED The parties agree and we find that Charging Party is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Relevant Stipulated Facts Respondent and the Charging Party have had a series of collective-bargaining agreements since June 1968 covering a unit consisting of all maintenance machinists, automotive mechanics, helpers and apprentices employed by Respondent in its Concrete Department, Materials Division at Respondent's fleet repair shops, or places designated as fleet repair shops, but excluding all other employees , office clerical employees, professional employees, guards and supervisors as defined in the Act . Their most recent collective contract, effective July 1, 1972, contains a provision whereby upon request of either party the said contract may be reopened effective July 1, 1973, for the purpose of negotiating with respect to changes in wage rates and the rates of contributions to the health and welfare and pension funds. This reopener provision further states: "If the 1 Unless otherwise noted, all dates herein refer to 1973. rescheduling the hearing. Thereafter, on October 23 the Regional Director 2 On September 1 I the Regional Director issued and duly served on the issued and duly served on the parties an order postponing the hearing parties an order postponing the hearing indefinitely On October 15 the indefinitely. Acting Regional Director issued and duly served on the parties an order 210 NLRB No. 93 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD parties fail to reach agreement on this matter by 12:01 a.m. July 1, 1973, either party shall be permitted all legal or economic recourse in support of its demands notwithstanding any provisions in this Agreement to the contrary." This agreement also contains a no-strike no-lockout clause. On or about April 26 the Charging Party gave timely notice to Respondent pursuant to the afore- mentioned reopener provision of their current contract. The Charging Party also gave timely notice to the Federal Mediation and Conciliation Service as required by Section 8(d)(3) of the Act. On June 27 the first bargaining session concerning the reopener provision was held at Respondent's office. This negotiating session concluded with an understanding that Barre, Respondent's attorney, would contact Lewis, the Charging Party's business representative, the following week after the attorney had consulted with Respondent's officials; that in the meantime there would be no strike as of July 1; and that when matters were finalized they would be made retroactive to July 1. On July 6, in a telephone conversation, Barre informed Lewis that Respondent would meet the Charging Party's full demand concerning the rate of contribution to the health and welfare fund. Lewis advised that he would get back to Barre later. Barre then told Lewis that he was scheduled to leave that day for a vacation in London, England, and would not return until July 23, and asked Lewis what he wanted to do about closing the matter. Lewis replied that it could await Barre's return and that Lewis would "keep a blanket on everything" until Barre returned.3 On or about July 11 the Charging Party struck Respondent.4 Since on or about July 11 the Charging Party has requested and continues to request that Respondent meet and/or bargain with it concerning the matters set forth in the reopener provision of their current collective agreement. Since the start of the strike and thereafter, Respondent has refused to meet and/or bargain with the Charging Party as requested while the Charging Party and the employ- ees continue to engage in the strike. Since July 23 and thereafter Respondent has conditioned bargain- ing with the Charging Party upon the employees' and Charging Party's abandoning the strike which com- menced on July 11. 9 It appears that similar arrangements had occurred in the past. Thus, the terms and conditions of the current contract were agreed to on June 30, 1972. However, this agreement was not reduced to writing or executed until Lewis' return from vacation in the latter part of July 1972. 4 The current contract contains the following termination notice provision If either the Employer or the Union reopens this Agreement for change or amendment as provided herein and if the Employer and the Union do not arrive at a mutually satisfactory Agreement by the Since July 11 the Charging Party has not made any unconditional offer on behalf of the striking employ- ees to abandon the strike and return to work, nor has any striking employee individually made any uncon- ditional offer to return to work. As of July 23, no unit employee covered by the current collective contract had been discharged or replaced. B. Contentions of the Parties General Counsel contends that the termination notice provision refers only to the agreement's final termination period, July 1, 1974, and is not applica- ble to the reopener provision, and hence the Charging Party's failure to give Respondent such notice was not a violation of the collective contract. However, General Counsel does concede that the Charging Party's strike was commenced on July 11 in violation of the agreement's no-strike provision; that on June 27 the no-strike clause had been extended from July 1 until the July 6 telephone conversation between Respondent's attorney, Bane, and the Charging Party's business representative, Lewis; and that as a result of the telephone conversation, that provision was further extended from July 6 to July 23, the date of Bane's return. General Counsel contends that the no-strike extension expired on July 23 and that as of that date the Charging Party was no longer engaged in an unprotected economic strike. It is General Counsel's position that the expiration of the no-strike extension was a condition precedent to a lawful economic strike; he argues that since nothing more than "the mere passage of time" was involved as a condition precedent, and that time has passed, the Charging Party was not required to abandon the strike which started July 11 and have the employees return to work before it could engage in a lawful economic strike. General Counsel asserts it would be requiring a futile act to say that the strike had to be abandoned on or after July 23 because as of that date a strike over the failure to reach agreement on the reopener issues would have been, without question, a protected economic strike. Consequently, to require that the July 11 strike be abandoned on or after July 23 before a protected strike could take place, General Counsel argues, would be requiring no more than a brief interruption in this work stoppage. expiration date of this Agreement, the Agreement shall continue in full force and effect until such time as either the Employer or the Union shall terminate this Agreement by giving the other formal written notice of its desire and intent to terminate this Agreement five (5) work days in advance of the actual termination date. The parties are in disagreement as to whether or not the Charging Party was required by the above provision to give such notice to Respondent before commencing the strike. However, they agree that no such notice was given by the Charging Party. ARUNDEL CORP. General Counsel contends that Respondent has violated Section 8(a)(5) and (1) of the Act by its failure and refusal to meet and/or bargain with the Charging Party after July 23 and by its conditioning of bargaining since July 23 upon the employees' and the Charging Party's abandoning the strike which commenced on July 11. General Counsel further contends that the July 11 strike was converted from an unprotected economic strike to an unfair labor practice strike on or about July 23 by Respondent's alleged unlawful refusal to bargain. Respondent contends that the Charging Party has violated their collective-bargaining agreement by striking in violation of the no-strike clause; that this strike, which has never been terminated, did not become either a lawful economic strike or an unfair labor practice strike as of July 23; and that so long as this strike continues, it is under no obligation to meet or bargain with the Charging Party. Respondent further contends that the Charging Party was required to furnish it with the notice called for in their contract's notice of termination provision. C. Discussion and Conclusions We agree with Respondent that the Charging Party's strike, which commenced July 11 as an unprotected strike in violation of the parties' no- strike agreement, did not become either a lawful economic strike or an unfair labor practice strike on or after July 23 and, so long as this strike continues, Respondent is under no obligation to meet or bargain with the Charging Party. It is undisputed that the Charging Party's strike started on July 11 in violation of the July 6 agreement between Lewis and Barre to extend the contract's no-strike provision and defer bargaining on the reopener issues while Barre was on vacation. This agreement clearly contemplat- ed further discussions between Lewis and Barre concerning Respondent's July 6 offer on the reopen- er issues after Barre's return, which was not to occur until July 23. Certainly this agreement contemplated allowance of a reasonable period after July 23 and did not mean that unless the reopener issues were settled on July 23 upon Barre's return from Europe that very day the Charging Party would be free to engage in a lawful economic strike against Respon- dent. The exact terminal date of the no-strike extension herein is indeterminable because the Charging Party's unprotected strike in repudiation of its agreement removed Respondent's obligation to S Since it is clear that the Charging Party commenced this strike in violation of the contractual no-strike provision and, we find, can only correct this unprotected action, under the circumstances of this case, by terminating this strike, we need not pass upon Respondent 's further contention, involving a matter of contract interpretation , that the Charging Party's strike also violated their contract because the latter failed to furnish 527 resume bargaining over the reopener issues after Barre's return and it will have no obligation to engage in such bargaining, under the circumstances of the instant case where there is no evidence that the Respondent has engaged in any unfair labor prac- tices, until the Charging Party restores the status quo ante by terminating its unprotected strike .5 We reject General Counsel's argument that we would be calling for a futile act by requiring the Charging Party to terminate the strike which com- menced on July 11 before it could engage in a lawful economic strike. The Charging Party's July 6 agreement with Respondent contemplated further bargaining and it is wholly unwarranted and specula- tive to assume that such negotiations would have produced no settlement of the reopener issues and that a strike by the Charging Party would have been the inevitable result. As a general rule of law, one party to a contract need not perform if the other party refuses in a material respect to do so. The same rule applies to labor contracts.6 There can be no question, under the circumstances of the instant case, that the Charging Party's unprecipitated strike in violation of the no- strike provision constituted a material refusal to perform. Consequently, we find that Respondent was under no obligation to meet and bargain with the Charging Party so long as the strike which com- menced on July 11 continued and its conditioning of bargaining with the Charging Party on the latter's abandonment of this strike was not unlawful.? Accordingly, we shall dismiss the complaint in its entirety. CONCLUSIONS OF LAW 1. The Arundel Corporation is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. Baltimore Automotive Lodge No. 199, Interna- tional Association of Machinists and Aerospace Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent has not engaged in unfair labor practices as alleged in the complaint. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Respondent with the notice called for by their agreement's notice of termination provision. 6 United Electrical, Radio and Machine Workers of America, Local 1113 [Marathon Electric Manufacturing Corp.], v.N LR.B 223 F.2d 338, 341 (C.A.D.C., 1955), affg. 106 NLRB 1171, cert. denied 350 U.S. 981. 7 See Marathon Electric Mfg. Corp., 106 NLRB 1171, 1180. 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. MEMBER JENKINS, dissenting: If one believes, as I do, that the touchstone of a good collective-bargaining relationship is a spirit of cooperation and mutual trust among the parties, one cannot but be dismayed by the determination reached herein by my colleagues. In effect, their decision turns a voluntary and temporary commit- ment by a party to the collective-bargaining agree- ment into a permanent waiver of rights under that agreement. The facts are fully set forth in the majority opinion and need only be summarized here. In essence, they show that under the existing collective-bargaining agreement provision was made for a midterm reopener for the purpose of renegotiating wages and certain health, welfare, and pension contributions. The reopener clause specified that if the parties failed to reach agreement on these matters by July 1, 1973, "either party was permitted all legal or economic recourse in support of its demands notwithstanding any provisions in the agreement to the contrary." Acting pursuant to this clause, the Union gave timely notification of its desire to reopen and, on June 27, the parties met, but were unable to resolve all the issues. At this meeting, the Union agreed that the no- strike clause in the collective-bargaining agreement would be in effect until their next meeting and the Respondent in turn agreed to make any settlement reached retroactive to July 1. The parties next met on July 6 and, although some progress was made, the parties were unable to reach a final settlement on all the issues. At this juncture, Respondent's attorney advised the Union that he was leaving that day on vacation and would not return until July 23. The Respondent's attorney then asked the union repre- sentative what he wanted to do about closing the matter and the union representative replied that it could await the attorney's return and that he (the union representative) would "keep a blanket on everything" until the attorney returned. On July 11, the Union struck the Employer and this strike is apparently still in progress. Also since July 11, the Union has requested and continues to request bargaining, but the Respondent has refused to meet until such time as the Union chooses to abandon its strike. The complaint alleges that the Respondent has violated Section 8(a)(5) of the Act by its refusal to bargain with the Union on July 23 and thereafter and that this unlawful conduct has prolonged the 8 Although my colleagues find it unnecessary to reach the issue, I would find no merit in the Respondent's argument that the notice requirements in the termination clause of the agreement were applicable to any stake action taken pursuant to the reopener clause. The very language of the reopener strike, thereby converting it into an unfair labor practice strike. There appears to be little controversy over the interpretation to be placed on events prior to the July 6 meeting. It is admitted that the Union's request to reopen is both timely and a lawful exercise of its rights under the collective-bargaining agreement. It also seems clear, at least to me, that under the reopener clause the Union was permitted to strike in support of its demands if no agreement was reached by July 23 and that such action would be in no way limited by any other provisions in the collective- bargaining agreement, including the no-strike clauses Thus, it cannot be by virtue of the agreement itself that the Union is prohibited from striking and any such limitation must of necessity result from the separate and voluntary agreement of the parties. In this latter respect, the General Counsel concedes, and I agree, that the Union voluntarily obligated itself to be bound by the no-strike clause in the collective-bargaining agreement first until the meet- ing of July 6 and later until July 23, the date on which the Respondent's attorney was due to return from vacation. As a consequence, the General Counsel admits, and I again agree, that when the Union commenced its strike on July 11, it was acting in violation of the no-strike clause in the collective- bargaining agreement and thereby was engaging in an unprotected activity. The question to be answered though is not whether the strike was at one point an unprotected activity, but rather whether it is to remain so indefinitely and the answer to that question hinges upon the interpre- tation one places on the so-called understanding reached by the parties at the July 6 meeting. According to the view of my colleagues, the Union's July 6 commitment to "keep a blanket on every- thing" until the Respondent's attorney returned was in fact a concession that the no-strike clause limitations would remain in effect until such time as the parties had another opportunity to meet and discuss the issue, irrespective of any time limitations. As a consequence, they conclude that the exact terminal date of the no-strike extension is indeter- minable in these circumstances, but they also make it quite clear that they consider the no-strike clause coverage to remain in effect until such time as the Union elects to abandon its strike.9 I find myself somewhat aghast at the inference that any union would voluntarily agree to an unlimited extension of the coverage of a no-strike clause. Certainly, it must be considered as rather uncommon clause seems to establish precisely the opposite conclusion. 9 Presumably this situation could continue even after the normal termination date of the collective-bargaining agreement. ARUNDEL CORP. 529 for any party to accept a blanket restriction on a fundamental right while issues still remain to be resolved among the parties. The Union here certainly did not state on July 6 that the no-strike limitation would be effective until the parties again had the opportunity to meet and I do not believe we should draw such an inference especially when it seems to fly in the face of reality. Furthermore, under my colleagues' approach to this question their precondi- tion for eliminating the no-strike limitation would seemingly be satisfied by a temporary cessation of the strike coupled with a request for bargaining. Thus by this simple expedient what had been unprotected would now be protected and the Union could resume its strike activity with impunity. Such a result seems to me to suggest that the theory in its application has placed mere form over substance. In my opinion, the only logical interpretation that can be placed on the understanding of July 6 is one which gives full effect to the literal language of the statements made by each party. Thus, when the Respondent's attorney advised the Union that he would not be returning until July 23, the union representative replied that he would "keep a blanket on everything" until the attorney returned. No mention was made of the opportunity to meet again, it was purely and simply a commitment to take no strike action until July 23, at which time it was evidently anticipated that the Respondent's attorney would be available to respond to whatever course of action the Union chose to pursue. In these circumstances, I would find that on July 23 and thereafter there was no prohibition on the Union's right to strike, and with the removal of this disability the strike assumed the status of a protected activity. Although I accept the proposition that the Union's failure to observe the no-strike limitation agreed to constituted a material breach of their agreement which relieved the Respondent of its obligation to bargain, this situation obtains only so long as the vital elements remain unchanged. With the removal of the no-strike ban on July 23, it could no longer be said that the Union was refusing to meet its contractual obligations and, corresponding- ly, there was no justification for the Respondent's continued refusal to meet with the Union and bargain. The strike activity prior to July 23 while unprotected was not unlawful. The distinction is important. For example, a strike which is in violation of the requirements of Section 8(d) of the Act is unlawful and would result in the striking employees losing their status as employees by operation of law. In such circumstances, the strike would of course be illegal and its status could not be changed or converted by any outside factor and, hence, the employer would be under no obligation to bargain while it continued. Moreover, the very fact that the strikers in such a situation automatically lose their status as employees may result in a loss of majority status by the union which would justify the termina- tion of the bargaining relationship.'° However, the same considerations do not apply, when as here, the strike was not unlawful but was simply an unprotect- ed activity by virtue of the restrictions of the contract. If, as was the case here, the restriction no longer has application, there is no valid basis for concluding that the activity remains unprotected. An employer is not without recourse when faced with an unprotected strike. The Respondent could have, if it so chose, discharged the striking employees while they were engaged in this unprotected activity,ii but it elected not to do so and as of July 23 no unit employees had been discharged or replaced. As a consequence, it must be presumed that the Union's status as majority representative continued and that, as such, it can insist that the Respondent meet the bargaining obligations imposed by Section 8(d) of the Act. For these reasons, I would find that the Respon- dent violated Section 8(a)(5) of the Act by refusing on July 23, 1973, and thereafter to bargain with the Union as the representative of its employees. I would find that the Respondent's unlawful conduct has prolonged the strike, thereby converting it into an unfair labor practice strike. 10 This is precisely the situation involved in Marathon Electric Mfg Sec. 8(d) of the Act This is a far cry from the situation presented here. Corp, 106 NLRB 1171, cited and relied on by my colleagues in their 11 Cf. N LR. B v Insurance Agents ' International Union, AFL-CIO, 361 majority opinion. There, the employer's termination of its contract with the U.S 477 (1960). union followed the loss of majority status occasioned by the application of