United Electronics Institute of Iowa

814 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Electronics Institute of Iowa and Local Union 347, International Brotherhood of Electrical Work- ers, AFL-CIO. Case 18-CA-4520 FINDINGS OF FACT 1. JURISDICTION February 9, 1976 DECISION AND ORDER By MEMBERS FANNING, JENKINS, AND PENELLO Upon a charge duly filed on March 26, 1975, by Local Union 347, International Brotherhood of Elec- trical Workers, AFL-CIO, hereinafter called the Union, the General Counsel of the National Labor Relations Board, by the Regional Director for Re- gion 18, issued a complaint and notice of hearing on July 8, 1975, against United Electronics Institute of Iowa, hereinafter called Respondent. The complaint alleged that Respondent had engaged in and was en- gaging in unfair labor practices affecting commerce within the meaning of Sections 8(a)(1) and (5) and 2(6) and (7) of the National Labor Relations Act, as amended. On July 11, 1975, Respondent filed a mo- tion to dismiss the complaint to which the General Counsel filed an opposition on July 16, 1975. On July 23, 1975, Administrative Law Judge Charles W. Schneider denied Respondent's motion. During this time, Respondent filed an answer to the complaint in which it denied the commission of the alleged unfair labor practices. On September 16, 22, and 23, 1975, the parties exe- cuted a stipulation of facts by which the parties waived a hearing before an Administrative Law Judge and the issuance of an Administrative Law Judge's Decision and recommended Order, and agreed to submit the case to the Board for findings of fact, conclusions of law, and an order, based on a record consisting of the stipulation and the exhibits attached thereto. Subsequently, the parties submitted an amendment to the stipulation concerning com- merce data. On September 26, 1975, the Board approved the stipulation of the parties and ordered the case trans- ferred to the Board, granting permission for the filing of briefs. Thereafter, both the General Counsel and the Respondent filed briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. Upon the basis of the stipulation, the briefs, and the entire record in this case, the Board makes the following: Respondent is and at all times material has been, an Iowa corporation engaged in the business of in- structing students in the field of electronics in West Des Moines, Iowa. It is a wholly owned subsidiary of United Electronics Institute, Inc., which maintains its principal place of business in Louisville, Ken- tucky. Respondent and United Electronics Institute, Inc., are and have been at all times material affiliated businesses with common ownership, offices, and op- erators and constituting a single integrated business enterprise administering a common labor relations policy affecting the employees of said companies. During the past calendar year, a representative peri- od Respondent and 'United Electronics Institute, Inc., derived gross revenues from their operations in excess of $1 million and purchased and received goods valued in excess of $50,000 at the West Des Moines, Iowa, facility directly from points located outside the State of Iowa. Respondent admitted, and we find, that the Em- ployer is, and at all times material herein has been, an employer as defined in Section 2(2) of the Act engaged in commerce and in operations affecting commerce as defined in Section 2(6) and (7) of the Act. H. THE LABOR ORGANIZATION INVOLVED Respondent admitted, and we find, that Local Union 347, International Brotherhood of Electrical Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICE The facts stipulated to by the parties indicate that the Union was certified by the Board on January 29, 1971, to represent all of Respondent's instructors, and since that time has entered into four 'collective- bargaining agreements with Respondent. Each of these agreements has provided for a termination date of April 30 with a 60-day notice requirement of an intent to modify or terminate the agreement prior to this date, that is by March 1. The contract clauses in question are in pertinent part as follows: Article I Section 1. This agreement shall take effect the 1st day of May, 1974, and shall remain in effect from year to year thereafter from the 1st day of May through the 30th day of April of each suc- 222 NLRB No. 121 UNITED ELECTRONICS INSTITUTE OF IOWA 815 ceeding year, unless changed or terminated in the way later provided herein. Section 2. Either party desiring to change or ter- minate this agreement must notify the other in writing, at least sixty (60) days prior to the ter- mination date of any subsequent year , hereinaf- ter referred to as "the anniversary date"... . The facts herein show that on Wednesday, Febru- ary 26, 1975, the Union mailed such a notice by reg- istered mail from West Des Moines, Iowa, to Respondent's administrative offices in Louisville, Kentucky. This notification arrived at the registry section of the Post Office in Louisville on Friday af- ternoon, February 28, 1975. On Saturday, March 1, 1975, it was dispatched to the distribution station for delivery to Respondent. The Post Office did not, however, attempt to make delivery on this date as Respondent is customarily closed on Saturdays. Nev- ertheless, Respondent's accounting department was in operation on this day and did receive special deliv- ery letters. Thus, delivery of the notice was not made until Monday, March 3, 1975. Thereafter, on March 12, 1975, Respondent notified the Union that it con- sidered the notice untimely, resulting in an automatic renewal of the contract and therefore not requiring Respondent to negotiate a new contract. It should be noted that no attempt was made by the Union to notify Respondent's school director in West Des Moines, Iowa, of the Union's intention to modify the contract. This method, however, was nev- er suggested by Respondent nor was it ever utilized in past negotiations. In the past, the Union has given notice on three occasions. It has mailed this notice on February 25, 1972, and February 23, 1973, and February 27, 1974. In each instance, Respondent was notified on or be- fore March i of that year. Admittedly, the Union did not investigate the time required for a letter to travel between the two cities, nor did it review its past prac- tice prior to sending the 1975 notice. A. Contentions of the Parties The General Counsel contends that Respondent violated Section 8(a)(5) and (1) of the Act by treating the contract as having been automatically renewed and refusing to meet and bargain in good faith with the Union. Notwithstanding the fact that the notice was untimely, it is argued that mitigating circum- stances exist which , according to Board precedent,' prevent the automatic renewal of the contract and give rise to the bargaining obligation. 'Evans Milling Company, 94 NLRB 1127 (1951); Koenig Brothers Inc, 108 NLRB 304 (1954). On the other hand, Respondent asserts that there was no violative conduct herein as the notice was untimely, and timely notice is the precondition to an obligation to bargain . Furthermore, Respondent claims that Board precedent supports its position that failure to receive timely notice results in auto- matic renewal of the contract.' Respondent - also ar- gues that the Union engaged in "brinksmanship" in the late mailing of the letter and knew there was no possibility of the notice arriving on time. B. Analysis and Conclusions - There is no dispute that the Union's notice of in- tention to modify the contract was untimely. The question is whether or not this untimely notice fore- stalled the automatic renewal of the collective-bar- gaining agreement. In our view, the notice did act to prevent the automatic renewal of the agreement, giv- ing rise, therefore, to an obligation on the part of Respondent to bargain in good faith ; an obligation which was not fulfilled. It is true that the Board has said that provisions for forestalling automatic renewal of contracts are to be "strictly construed." 3 It is also established, however, that the Board will consider mitigating circumstances in determining the timeliness of a notice .4 Therefore, if the notice is delayed by conditions beyond the con- trol of the sender (the Union herein) such untimely notice will prevent the automatic renewal of a con- tract .5 In the instant case, the Union's letter sent on Feb- ruary 26, 1975, arrived in Louisville on February 28, 1975, and could have been delivered on March 1 in a timely fashion had the Post Office attempted to do so. This is best evidenced by the fact that the Post Office actually delivered mail to Respondent on March 1. It would, therefore, be inequitable to penal- ize the Union for this delay which was beyond its control. It was, in addition, reasonable for the Union to assume that a timely delivery- would be possible because in the past it had mailed the notice as late as February 27 and Respondent had received it by March 1. Accordingly, we find that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to meet with the Union and bargain in good faith. ORDER Pursuant to Section 10(c) of the National Labor Zsawyer stores, Inc, 190 NLRB 651 (1971), Anchorage Laundry & Dry Cleaning Association, Inc, 216 NLRB No. 22 (1975) 3 Koenig Brothers, Inc., supra at 304 ; Sawyer Stores, Inc., supra at 652 ° Evans Milling Company, supra; Koenig Brothers, Inc, supra 5 General Maintenance Service Company, Inc., 182 NLRB 819(1970); Cen- tral Supply Company of Virginia, Inc, 217 NLRB No. 108 (1975). 816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Relations Act, as amended, the National Labor Re- writing, within 20 days from the date of this Order, lations Board hereby orders that the Respondent, what steps the Respondent has taken to comply here- United Electronics Institute of Iowa, West Des with. Moines, Iowa, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Failing and refusing to bargain collectively upon request with Local Union 347, International Brotherhood of Electrical Workers, AFL-CIO, as the exclusive representative of its employees in the ap- propriate unit described below with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an under- standing is reached, embody such understanding in a signed agreement. The bargaining unit is: All instructors of electronic technology em- ployed by the Respondent at its West Des Moines, Iowa, school, excluding office clerical employees, admission and placement depart- ment employees, all other employees, guards, and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights to self-organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or pro- tection, or to refrain from any and all such activities, except to the extent that such right is affected by the proviso to Section 8(a)(3) of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Bargain collectively, upon request, with Local Union 347, International Brotherhood of Electrical Workers, AFL-CIO, as the exclusive representative of the employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours of work, and other terms and conditions of employment, and, if an understanding is reached, embody such under- standing in a signed agreement. (b) Post at its facility in West Des Moines, Iowa, copies of the attached notice marked "Appendix." 6 Copies of said notice, on forms provided by the Re- gional Director for Region 18, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon re- ceipt thereof, and be maintained by it for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, de- faced, or covered by any other material. (c) Notify the Regional Director for Region 18, in 6 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT fail or refuse to bargain collec- tively, upon request, with Local Union 347, In- ternational Brotherhood of Electrical Workers, AFL-CIO, as the exclusive representative of our employees in the appropriate unit described be- low with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All instructors of electronic technology em- ployed by the Respondent at its West Des Moines, Iowa, school, excluding office clerical employees, admission and placement depart- ment employees, all other employees, guards, and supervisors as defined in the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights to self-organization, to form, join, or assist any labor organization, to bargain collectively through representatives, of their own choosing, and to engage in other con- certed activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, ex- cept to the extent that such right is affected by the proviso to Section 8(a)(3) of the Act. WE WILL bargain collectively, upon request, with Local Union 347, International Brother- hood of Electrical Workers, AFL-CIO, as the exclusive representative of our employees in the appropriate unit described above with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an understanding is reached, embody such un- derstanding in a signed agreement. UNITED ELECTRONICS INSTITUTE OF IOWA