Bakery, Confectionery, Tobacco Workers & Grain Millers International Union Local No. 37 (Frisco Baki

372 NLRB No. 17 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Bakery, Confectionery, Tobacco Workers & Grain Millers International Union, Local No. 37 and Frisco Baking Company. Case 31–CB–279889 December 6, 2022 DECISION AND ORDER BY CHAIRMAN MCFERRAN AND MEMBERS KAPLAN AND RING Upon a charge filed on July 14, 2021, by Frisco Baking Company (the Employer), the General Counsel issued a complaint and notice of hearing on November 10, 2021, alleging that Bakery, Confectionery, Tobacco Workers & Grain Millers International Union, Local No. 37 (the Re- spondent or Union), has been violating Section 8(b)(3) of the Act by refusing to meet and bargain with the Employer over a successor collective-bargaining agreement. On No- vember 22, 2021, the Union filed an answer in which it denied the commission of any unfair labor practices and asserted various affirmative defenses.1 On February 25, 2022, the Union, the Employer, and the General Counsel filed a joint motion to waive a hearing by an administrative law judge and to submit this case to the Board for a decision based on a stipulated record. On April 5, 2022, the Board granted the parties’ joint motion.2 Thereafter, the Union, the Employer, and the General Counsel filed briefs. The Board has delegated its authority in this proceeding to a three-member panel. On the entire record and briefs, the Board makes the fol- lowing FINDINGS OF FACT I. JURISDICTION At all material times, the Employer has been a corpora- tion with an office and place of business in Los Angeles, California (the Employer’s facility), and has been a baking company. In conducting its operations during the 12- month period ending September 28, 2021, the Employer purchased and received goods valued in excess of $50,000 1 On November 30, 2021, the Union filed a Motion for Summary Judgment in which it urged the Board either to defer the complaint’s al- legations to the parties’ grievance-arbitration procedure or to dismiss the complaint on the merits in the absence of a genuine issue of material fact. The General Counsel filed an opposition to the motion. On January 14, 2022, the National Labor Relations Board denied the motion without prejudice to the Union’s right to renew its deferral argument after pre- senting evidence (or securing relevant stipulations of fact). 2 Two days after the Board granted the parties’ joint motion to trans- fer, the Union filed a renewed Motion for Summary Judgment. On April from other enterprises located within the State of Califor- nia, each of which had received these goods directly from points located outside the State of California. At all ma- terial times, the Employer has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. At all material times, the Union has been a labor organ- ization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Stipulated Facts Since at least July 1, 2018, and at all material times, the Employer has recognized the Union, based on Section 9(a) of the Act, as the exclusive collective-bargaining repre- sentative of the unit.3 This recognition has been embodied in successive collective-bargaining agreements, the most recent of which was effective on its face from July 1, 2018, through July 1, 2020 (2018 CBA). Article XXXIII of the 2018 CBA provides that the 2018 CBA would remain in effect “year to year . . . unless, upon sixty (60) days written notice by either party prior to May 1, 2020, [or] any sub- sequent yearly period, this Agreement shall be reopened for amendment or modification of its provisions.” The parties stipulated that article XXXIII required written no- tice by March 2, 2020, or by March 2 of any year thereaf- ter, to forestall automatic renewal and reopen the 2018 CBA for negotiation. It is undisputed that, under this pro- vision, the 2018 CBA automatically renewed and re- mained in effect through July 1, 2021. Prior to March 2, 2021, the deadline for forestalling the automatic renewal of the (extended) 2018 CBA, Union President Gregory May exchanged with the Employer’s owner, Damon Perata, the following emails regarding contract negotiations.  By email dated August 31, 2020, May asked Perata for his availability for negotiations. Perata replied by email on the same date, say- ing that he would “get a hold of [May] tomor- row regarding the contract.”  On September 10, 2020, May sent Perata an email with the subject line “Re: CBA, Negoti- ations.” May stated, “Can you please Send me 29, 2022, the Board denied that renewed Motion for Summary Judgment as moot because the case had already been transferred to the Board for a decision on the stipulated record. 3 The unit consists of “[e]very employee working in the following classifications: Foreman, Mixer, Oven Man, Journeyman Baker, Checker, Apprentice Rate #3, Apprentice Rate #2, Apprentice Rate #1, Mechanics, Cleaner/Packer, and Entry Level.” The unit is appropriate for the purposes of collective bargaining within the meaning of Sec. 9(b) of the Act. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 Negotiation Dates, It’s time to do ASAP. So that way I don’t have to fight about the Retro Pay again.”4 In his reply on the same date, Perata promised to call May “in the week of the Sept 21st to talk about scheduling a time to meet.” On September 11, 2020, May replied, “That’s Fine, As Long as I don’t have a prob- lem getting my Retro Pay when it’s done.”  On November 20, 2020, May sent Perata an email with the subject line “Contract Negotia- tions.” May requested a call with Perata to “[t]alk about contract negotiations.” May added, “We[’]re getting behind just like the last couple of contracts, Remember Retro Pay is s[t]ill an Affect [sic], From the exasperation [sic] of the CBA. And That’s Not up for nego- tiations.”  In an email dated December 1, 2020, with the subject line “Contract Negotiations,” May asked Perata to send the negotiation dates and re-emphasized the importance of retro pay.  On January 8, 2021,5 in an email with the sub- ject line “Contract negotiations,” May asked Perata for negotiation dates so that they could “wrap this contract up.” After March 2, the deadline for written notice of termi- nation, May persisted in his attempts to schedule a meet- ing. May emailed Perata regarding dates for negotiations on March 12, April 13, April 15, and April 20.6 On April 27, Perata forwarded to May a Zoom meeting link for a bargaining session on April 28 at 10:30 a.m. Pacific Time. On April 28, the parties held their first bargaining ses- sion by Zoom. Perata and former co-owner Ronald Perata were present for the Employer, and May and Union Rep- resentative Jose Hernandez for the Union. The parties dis- cussed terms of a successor agreement, including current and future medical plans for unit employees, wage in- creases, pension levels, full-time employees, and holidays. Toward the end of the meeting, the Union emailed the Em- ployer its contract proposals, a two-page document con- taining one noneconomic proposal and economic 4 The record indicates that, during negotiations leading to the 2018 CBA, the parties ultimately agreed that the Employer would increase wages for all unit employees retroactive to January 1, 2017. See Appen- dix A (Wage Schedule) of the 2018 CBA. 5 All dates hereafter are in 2021 unless noted otherwise. 6 Around this time, May, by email, informed Perata that the Union was filing a class-action grievance on behalf of members over the Em- ployer’s failure to make monthly contributions to the Health and Welfare proposals on wages, benefits, pensions, sick leave, and re- tirement. Notably, the Union proposed a substantial wage increase each year of the contract for each classification. On May 11, Perata emailed May medical plans and a proposal in preparation for the second bargaining session, which was held by Zoom later that day. During this ses- sion, which lasted 45 minutes, the parties discussed the terms of a successor agreement, including (once again) current and future medical plans for unit employees, wage increases, pension levels, full-time employees, and holi- days. This was the parties’ last bargaining session. In late May, Union Representative Nate Zeff notified Perata that the Union had been placed in trusteeship by the International. By email dated June 1, the Employer’s counsel, Daniel Sobol, asked Union Trustee attorney Na- talia Bautista to put him in touch with Union Representa- tive/Trustee Karrie Setters to discuss collective-bargain- ing matters.7 By letter dated June 21, Sobol requested that Setters forward his letter to the Union counsel handling labor matters in order to resume bargaining for a successor agreement. In a July 8 letter to Sobol, the Union’s counsel, David Rosenfeld, claimed that the 2018 CBA was still in effect because “there was no timely opening letter sent by either party.” Rosenfeld asked Sobol to provide documentation supporting Sobol’s belief that the contract had been opened. In his same-day reply, Sobol stated that he would respond to Rosenfeld’s request when his firm’s systems came back up from a cyberattack. He also requested dates for bargaining a successor agreement. On July 14, the Employer filed an unfair labor practice charge, alleging that the Union was unlawfully failing to bargain with it over a successor agreement. In a July 30 email to Rosenfeld, Sobol apologized for his delayed re- sponse and forwarded May’s emails requesting contract negotiations and advancing the Union’s bargaining pro- posals. Sobol also asked for dates and times to commence discussion to reach a new collective-bargaining agree- ment.8 On August 5, Rosenfeld advised Sobol of the Union’s belief that the Employer’s documents did not show a timely notice to reopen the 2018 CBA. Rosenfeld stated that the initial email attached to Sobol’s letter was dated Fund. May previously had sent a substantially identical email in March 2020. 7 Around that time, the Union filed an unfair labor practice charge in Case 31–CA–278231, alleging that the Employer had violated Sec. 8(a)(5) of the Act by unilaterally failing to make the monthly contribu- tions to the Health and Welfare Fund. 8 The Union’s brief, filed by Rosenfeld, falsely asserts that Sobol “re- plied that [the Employer] had no . . . evidence” of the 2018 CBA having been opened for negotiation. Sobol said no such thing. BAKERY, CONFECTIONERY, TOBACCO WORKERS & GRAIN MILLERS INTERNATIONAL UNION, LOCAL NO. 37 (FRISCO BAKING CO.) 3 March 12, past the deadline for opening the 2018 CBA.9 He added that the email exchanges between March 12 and May 11 did not constitute a waiver of the reopener provi- sion because the Employer showed no interest in negotia- tion.10 On November 10, the Regional Director issued the com- plaint in this case. In a letter to the Employer’s counsel dated January 14, 2022, Rosenfeld stated that “the Union hereby files a grievance over the [E]mployer’s assertion and claim that the contract was opened.” He also stated that the Union was “prepared to proceed to arbitration to resolve this issue.” B. The Parties’ Contentions The stipulated issue is “whether the Respondent refused to bargain collectively and in good faith with the Em- ployer in violation of Section 8(b)(3) of the Act, as alleged in paragraph 8 of the Complaint.” The complaint, in turn, alleges that the Union violated Section 8(b)(3) by refusing to meet and bargain with the Employer over a successor collective-bargaining agreement since about June 2021. It is undisputed that, since about June 21, the Union has denied the Employer’s repeated requests to resume bar- gaining for a successor collective-bargaining agreement. The General Counsel contends that this refusal by the Un- ion to meet and bargain for a successor agreement clearly violated Section 8(b)(3) of the Act. In defense, the Union maintains that it had no obligation to bargain over a suc- cessor agreement because the 2018 CBA had automati- cally renewed for another year (i.e., through July 1, 2022) pursuant to article XXXIII absent timely written notice by either party before March 2 to reopen the 2018 CBA. The Union further argues that the present dispute involves the interpretation of the 2018 CBA and therefore should be deferred to the parties’ grievance-arbitration procedure under the Board’s deferral policy. In reply, the General Counsel and the Employer argue that the 2018 CBA did not automatically renew on July 1, and therefore, the Union’s statutory duty to bargain over a successor collective-bargaining agreement remained in- tact. Specifically, the General Counsel contends that the Union’s conduct, including its requests for bargaining dates, exchange of contract proposals, and attendance at 9 Contrary to Rosenfeld’s assertion, Sobol’s letter, included in the stipulated record, contained copies of multiple emails sent by the Union to the Employer requesting contract negotiations prior to the March 2 deadline for written notice. 10 On September 9, the Region indicated that if the class-action griev- ances continued to be processed through the grievance-arbitration ma- chinery, it would defer processing of the Union’s charge in Case 31–CA– 278231 to arbitration under Dubo Mfg. Corp., 142 NLRB 431 (1963). Subsequently, the parties agreed to arbitrate the class-action grievances. 11 See Dynamic Nursing Services, 369 NLRB No. 49, slip op. at 3 fn. 2 (2020) (rejecting the respondent’s contention that the complaint should two bargaining sessions either waived the 2018 CBA’s written-notice requirement or constituted sufficient notice of the Union’s intent to terminate the 2018 CBA and open bargaining for a successor agreement. The Employer con- tends that the Union’s emails requesting bargaining, sent before March 2, satisfied article XXXIII’s written-notice requirement and prevented the 2018 CBA from automati- cally renewing for another year; hence, the Union was and is statutorily obligated to bargain for a successor agree- ment. C. Discussion 1. Deferring the instant dispute to the parties’ grievance- arbitration procedure is not appropriate The Union urges the Board to defer the complaint’s al- legations, which turn in part on whether the 2018 CBA automatically renewed for another year, to the parties’ grievance-arbitration procedure. The Union asserts that it filed a grievance over this contractual dispute and that it is willing to proceed to arbitration. It notes that the Em- ployer had agreed to arbitrate other grievances concerning the Employer’s failure to make monthly contributions to the Health and Welfare Fund. The Union also argues that the Federal Arbitration Act requires arbitration. The Employer opposes the Union’s request to defer this proceeding to arbitration. The Employer contends that it cannot be compelled to arbitrate the issue of whether the 2018 CBA was reopened on the basis that it agreed to ar- bitrate grievances on other subjects. The General Counsel expresses no view on the Union’s deferral argument in her brief to the Board, but she opposed deferral in her opposi- tion to the Union’s first motion for summary judgment, citing Chemical Workers Local 6-0682 (Checker Motors Corp.), 339 NLRB 291, 291 fn. 2 (2003). Preliminarily, the issue of whether the complaint should be dismissed pursuant to the Board’s deferral policy is not a stipulated issue presently before the Board for resolu- tion.11 But even assuming, arguendo, that the question of prearbitration deferral is properly before us, we would find deferral inappropriate.12 In Collyer Insulated Wire, 192 NLRB 837, 840–841 (1971), the Board held that, in ap- propriate cases, it would defer to the arbitration process be dismissed pursuant to the Board’s postarbitral deferral standard be- cause that issue was not among the stipulated issues presented for reso- lution). 12 The Union cites no authority in support of its claim that the Federal Arbitration Act compels the Board to relinquish its jurisdiction and defer to arbitration a dispute concerning an alleged violation of the Act. The law is to the contrary. Under Sec. 10(a) of the National Labor Relations Act, the Board’s power to prevent any person from engaging in any un- fair labor practice “shall not be affected by any other means of adjust- ment or prevention that has been or may be established by agreement, law or otherwise . . . .” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 before exercising its jurisdiction to decide the merits of an unfair labor practice complaint. But “[a] precondition of Collyer deferral is that the charging party have the ability to obtain arbitral consideration of the grievance.” Postal Service, 324 NLRB 794, 794 (1997) (refusing to defer un- der Collyer charge filed by individual employee because collective-bargaining agreement did not permit employees to file grievances and union had declined to file one on her behalf). For example, in Checker Motors, the employer had no mechanism to file a grievance or move a contrac- tual dispute into arbitration, and the union initially resisted any efforts to arbitrate the issue of whether the contract expired or automatically renewed for another year. 339 NLRB at 292–295. Although the union ultimately filed a grievance and sought to proceed to arbitration, the Board declined to defer the dispute to arbitration because the charging party employer had “no ability to invoke the grievance procedure to resolve the contract dispute.” Id. at 291 fn. 2, 297–298. Similarly, the 2018 CBA does not provide the Employer (the charging party here) with access to the grievance-ar- bitration procedure to resolve the issue of whether the 2018 CBA expired or renewed. The contractual griev- ance-arbitration procedure, set forth in article XIX of the 2018 CBA, permits grievances only for “employee com- plaints of violation of this Agreement” or “Union com- plaints of violation of this Agreement.” The 2018 CBA does not permit the Employer to file a grievance or de- mand arbitration. The Union does not dispute this fact but asserts that deferral is nevertheless appropriate because it filed a grievance in January 2022—more than 6 months after it had refused to continue bargaining with the Em- ployer over a successor agreement—alleging that the 2018 13 It is not entirely clear that the Union’s attempt to invoke the griev- ance-arbitration procedure was effective. According to the Union, Rosenfeld’s January 14, 2022 letter “itself constituted a grievance for the [E]mployer’s failure to arbitrate” the termination of the 2018 CBA. But the parties’ stipulation merely notes that “[b]y letter dated January 14, 2022, Rosenfeld notified Employer counsel Brandon Shemtob that the Union was filing a grievance on the Employer’s assertion that the con- tract was opened.” The stipulation does not state that the letter itself constituted the Union’s grievance, and therefore the Union cannot now claim it was. See Labor Ready Southwest, Inc., 363 NLRB 1266, 1266 fn. 1 (2016) (“The Board has long held that a stipulation is conclusive on the party making it and prohibits any further dispute as to the stipulated matters.”), review granted on other grounds and remanded 2018 U.S. App. LEXIS 18464 (D.C. Cir. July 3, 2018) (per curiam). Nor does the stipulated record establish that the letter itself constituted a properly filed grievance as the Union claims. Section B, art. XIX of the 2018 CBA provides that “[a]ll Union complaints of violation of this Agreement shall first be discussed by the Business Agent with the Superintendent or plant Manager.” Certainly, the January 14, 2022 letter from Union Counsel Rosenfeld to Attorney Shemtob does not constitute discussion between “the Business Agent” and “the Superintendent or plant Manager.” CBA had automatically renewed.13 However, Board prec- edent forecloses the Union’s position. Because the Em- ployer had no ability to invoke the contractual grievance- arbitration machinery, we decline to defer. See Checker Motors, 339 NLRB at 291 fn. 2; Communications Workers (C & P Telephone), 280 NLRB 78, 78 fn. 3 (1986) (deny- ing the respondent’s motion for deferral to arbitration on the ground that the parties’ agreement “does not provide the [c]harging [p]arties with access to the grievance/arbi- tration procedure and that to allow the [r]espondent to waive this procedural defect would fundamentally alter the existing dispute resolution procedure”), enfd. mem. sub nom. NLRB v. Communications Workers of America, 818 F.2d 29 (4th Cir. 1987).14 2. The Union violated Section 8(b)(3) by cutting off ne- gotiations with the Employer over a successor agreement It is undisputed that the Union initially started bargain- ing with the Employer over a successor collective-bar- gaining agreement, but abruptly stopped those negotia- tions in about June 2021. The Union stipulates that it re- fused to continue bargaining, but defends on the ground that it had no duty to bargain for a successor agreement because the 2018 CBA had automatically renewed for an- other year (i.e., through July 1, 2022). The General Coun- sel and the Employer argue that the 2018 CBA did not re- new and that the Union was and is obligated to bargain over a successor agreement. For the two independent rea- sons discussed below, we find that the 2018 CBA did not automatically renew and that the Union violated Section 8(b)(3) by discontinuing negotiations over a successor agreement. 14 Even if deferral to arbitration were not precluded under Checker Motors and C & P Telephone, the Union, as the party seeking deferral, would fail to meet its burden of proving that deferral is appropriate under the factors set forth in Collyer and United Technologies Corp., 268 NLRB 557 (1984). See Rickel Home Centers, 262 NLRB 731, 731 (1982) (deferral is an affirmative defense as to which the burden of proof is assigned to the moving party). Deferral of an unfair labor practice charge to the parties’ grievance-arbitration procedure is appropriate when (1) the dispute arises within the confines of a long and productive collective-bargaining relationship; (2) there is no claim of animosity to the employees’ exercise of protected rights; (3) the parties’ agreement provides for arbitration of a very broad range of disputes; (4) the arbitra- tion clause clearly encompasses the dispute at issue; (5) the party seeking deferral has asserted its willingness to utilize arbitration to resolve the dispute; and (6) the dispute is eminently well suited to resolution by ar- bitration. See Faro Screen Process, Inc., 362 NLRB 718, 724 (2015); United Technologies, above at 558. Here, the Union fails to mention these factors, let alone argue that facts set forth in the stipulated record as applied to these factors would support deferral. Indeed, the Union itself appears to call into question whether deferral is appropriate by pointing to its disputes over the Em- ployer’s failure to comply with the 2018 CBA. BAKERY, CONFECTIONERY, TOBACCO WORKERS & GRAIN MILLERS INTERNATIONAL UNION, LOCAL NO. 37 (FRISCO BAKING CO.) 5 a. Timely written notice of amendment or modification was furnished Article XXXIII of the 2018 CBA provides that the 2018 CBA would remain in effect “year to year . . . unless, upon sixty (60) days written notice by either party, prior to May 1, 2020, [or] any subsequent yearly period, this Agree- ment shall be reopened for amendment or modification of its provisions.” The stipulated record contains multiple emails sent by Union President May to the Employer re- questing contract negotiations prior to the March 2 dead- line for written notice. The issue is whether these emails, although timely, constituted adequate notice under article XXXIII. In determining the adequacy of a written notice, the Board only requires that the notice convey the essen- tial message that a party intends to modify or terminate a contract. See Champaign County Contractors Assn., 210 NLRB 467, 470 (1974). In Champaign County Contrac- tors, the union sent the multiemployer association a copy of a form used to notify the Federal Mediation and Con- ciliation Service that the parties’ agreement was about to expire. Id. at 468. Although that form did not expressly state that the union wished to amend, modify, or terminate the agreement, the Board held that the form nevertheless was “sufficient notice of the [u]nion’s intent to end the ex- isting agreement.” Id. at 470.15 Consistent with this prec- edent, we find that Union President May’s emails suffi- ciently conveyed the Union’s intent to negotiate a new agreement, thereby forestalling the automatic renewal of the 2018 CBA. The stipulated record shows that May asked Perata to provide dates for “contract negotiations” on at least five occasions prior to March 2. At least two of those emails effectively conveyed the message that the Union sought to reopen the 2018 CBA for the purpose of negotiating a suc- cessor agreement. May’s September 10, 2020 email titled “Re: CBA, Negotiations” expressed his desire to negotiate “ASAP” in order to avoid another fight over a retroactive pay increase. And May’s September 11, 2020 email stated that a delay in negotiations would be acceptable as long as the employees get “Retro Pay when it’s done.” These emails clearly revealed the Union’s desire to negotiate a successor agreement to secure a wage increase, including a retroactive one if necessary. While the emails did not specifically state that the Union sought to reopen the 2018 CBA, no such specificity was required. Champaign County Contractors Assn., 210 NLRB at 470 (“So long as 15 The relevant contract provision in Champaign County Contractors Association is not materially different from Art. XXXIII: This Agreement shall be effective on July 24, 1971, and shall remain in full force and effect until midnight July 23, 1973, and shall continue in force from year to year therefore [sic], except that by written notice given by either party at least sixty (60) days, but not more than ninety the essential message was conveyed, it is not reasonable for [the employer] to hold [union officials] to the standards of a Philadelphia lawyer.”). The parties’ subsequent conduct further supports the finding that May’s emails constituted notice of intent to negotiate a successor agreement. See id. (relying in part on the parties’ subsequent conduct to find that proper no- tice had been given). During the first bargaining session, the parties discussed terms of a successor agreement, in- cluding current and future medical plans for unit employ- ees, wage increases, pension levels, full-time employees, and holidays. The parties also exchanged proposals for a successor agreement. The Union emailed the Employer a document called “proposals for the 2021 contract negoti- ations,” which included a wage proposal demanding a “substantial wage increase each year of the contract for each classification.” The Employer submitted a medical plan proposal. At the second bargaining session, the par- ties continued to discuss terms of a successor agreement. Thus, it is clear that the parties understood May’s requests for negotiation dates as a notice to reopen the 2018 CBA and bargain for a successor agreement, and they bargained accordingly. For these reasons, we conclude that the Union gave timely written notice forestalling the automatic renewal of the 2018 CBA. See Crowley’s Milk Co., 79 NLRB 602, 602–603 (1948) (finding the union’s letter stating that it was “ready to negotiate for our 1948 contract” and its sub- sequent negotiations sufficient to forestall the automatic renewal of the contract). b. Even assuming that no timely written notice was fur- nished, the parties waived the timely written-notice re- quirement by bargaining over a successor CBA The Board has long recognized that “even when timely notice is not given, a party, ‘by its action, could have waived the notice requirement and agreed to bargain.’” Industrial Workers AIW Local 770 (Hutco Equipment), 285 NLRB 651, 654 (1987) (quoting Anchorage Laundry & Dry Cleaning, 216 NLRB 114 (1975)).16 In Hutco Equipment, similar to here, the parties’ collective-bargain- ing agreement, which was due to expire on July 26, 1986, provided that it “shall automatically renew itself for suc- cessive twelve (12) month periods thereafter, unless either party gives written notice to the other of not less than sixty (60) days or more than ninety (90) days prior to the termi- nation date.” Id. at 652. On May 27 or 28, 1986, the (90) days, prior to July 24th of any year thereafter, either party may no- tify the other of its desire to amend, modify, or terminate this agreement. Id. at 468. 16 This sentence in Hutco Equipment was misquoted in Checker Mo- tors Corp., 339 NLRB at 299, where the Board inadvertently omitted the word “timely.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 employer furnished the union with a written notice of its intent to negotiate a new agreement. Initially, the union did not dispute the timeliness of the notice.17 Rather, the union requested and obtained certain information for the purpose of bargaining. On July 15, 1986, the union and the employer held a bargaining session. During that ses- sion, the parties agreed on procedural matters such as meeting dates and “ground rules,” the employer presented its initial contract proposal, and the union replied that it would study that proposal and respond at the next session. Subsequently, however, the union refused to bargain fur- ther, taking the position that the employer’s written notice had been untimely and that the extant agreement had au- tomatically renewed. Id. On these facts, the Board held that the union had waived any objections to the employer’s late notice to reopen the agreement for negotiations and could not justify its refusal to bargain for a new agreement based on untimely notice. Id. at 651 fn. 2, 654.18 Similarly here, even assuming arguendo that Union President May’s emails sent to the Employer prior to the March 2 deadline did not serve as notice of the Union’s intent to terminate the 2018 CBA, we conclude that the parties waived the timely-written-notice requirement by entering into negotiations over a successor agreement. The Union submitted written contract proposals on April 28. The Union called the document “proposals for the 2021 contract negotiations” and proposed a “substantial wage increase each year of the contract for each classifi- cation,” as well as new terms on benefits, pensions, sick leave, and retirement. Clearly, the Union was seeking to bargain a new agreement and prevent the 2018 CBA from renewing for another year. See S. Tex. Chapter, Associ- ated Gen. Contractors, 190 NLRB 383, 386 (1971) 17 In Hutco Equipment, the Board did not resolve whether the notice was given timely on May 27 or untimely on May 28. See Hutco Equip- ment, 285 NLRB at 651 fn. 2 (finding unnecessary to pass on whether the union received timely notice). 18 Cf. Moving Picture Machine Operators, Local 224, 238 NLRB 507, 511 (1978) (rejecting the General Counsel’s waiver theory and finding that after the parties’ agreement automatically extended, the union’s mere agreement to meet with the company to discuss the company’s fi- nancial problems did not signal an agreement to reopen the contract). 19 We likewise reject the other meritless arguments raised by the Un- ion. To begin, there is no merit in the Union’s frivolous argument that the complaint should be dismissed under the “contract coverage” stand- ard set forth in MV Transportation, Inc., 368 NLRB No. 66 (2019). The “contract coverage” standard applies in certain circumstances to deter- mine whether an employer has violated Sec. 8(a)(5) by making unilateral changes. Id., slip op. at 11 (“We solely address those cases in which an employer defends against an 8(a)(5) unilateral-change allegation by as- serting that contractual language privileged it to make the disputed change without further bargaining. In such cases, we shall evaluate the merits of the allegation by applying contract coverage.”). The instant case does not present that issue. Thus, the “contract coverage” test is inapplicable here. (finding that the contract was not automatically renewed because the union effectively had sought termination of the existing contract by proposing negotiations over “all matters pertaining to wages, hours, and all conditions of employment”). Indeed, without raising any objection to the timeliness or adequacy of the Union’s notice, the Em- ployer engaged in bargaining for a successor agreement. The Employer exchanged contract proposals with the Un- ion and engaged in two bargaining sessions during which the parties discussed a wide array of mandatory subjects for a successor agreement. In other words, both parties acted as though the Union’s request to negotiate a succes- sor agreement was effective and the contract would not renew. Even assuming the Union did not furnish timely written notice, we find that in these circumstances, as in Hutco Equipment, the parties waived the timely written- notice requirement. In sum, we reject the Union’s argu- ment that it had no duty to bargain for a successor agree- ment in June 2021 because the 2018 CBA had, by then, automatically renewed.19 Accordingly, we find that by cutting off negotiations with the Employer over a successor agreement in about June 2021, the Union failed and refused to bargain in good faith in violation of Section 8(b)(3). CONCLUSIONS OF LAW 1. The Employer has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Respondent, Bakery, Confectionery, Tobacco Workers & Grain Millers International Union, Local No. 37, has been a labor organization within the meaning of Section 2(5) of the Act. We also reject the Union’s argument that it was privileged to refuse to bargain with the Employer over a successor contract because neither party ever filed a notice with the Federal Mediation and Conciliation Ser- vice or the State Mediation and Conciliation Service. Sec. 8(d)(3) of the Act merely defines one aspect of the obligation to bargain collectively, and the parties’ failure to fulfill that obligation does not result in an au- tomatic renewal of an existing contract. See Crowley’s Milk Co., 79 NLRB at 603; see also Jet Line Products, Inc., 229 NLRB 322, 322–323 (1977) (rejecting judge’s reliance on Sec. 8(d) to find that contract auto- matically renewed, reasoning that Sec. 8(d) “was designed to eliminate the ‘quickie strike,’” and because there was no strike, Sec. 8(d) did not apply). We further reject the Union’s terse contention that “[b]ecause the em- ployer had repudiated its obligation to maintain the status quo [as to health and welfare benefits], it has also waived its right to insist that the contract be terminated.” The Employer’s alleged unilateral change re- garding health and welfare benefits was the subject of a separate com- plaint in Case 31–CA–278231, which was deferred to the parties’ griev- ance-arbitration procedure. We find no basis in the stipulated record or our precedent to conclude that the Employer’s alleged conduct would have privileged the Union’s refusal to bargain over a successor agree- ment. BAKERY, CONFECTIONERY, TOBACCO WORKERS & GRAIN MILLERS INTERNATIONAL UNION, LOCAL NO. 37 (FRISCO BAKING CO.) 7 3. The Respondent has been refusing to meet and bar- gain with the Employer for a successor collective-bargain- ing agreement in violation of Section 8(b)(3) of the Act. REMEDY Having found that the Respondent has engaged in an unfair labor practice in violation of Section 8(b)(3) of the Act, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act.20 ORDER The National Labor Relations Board orders that the Re- spondent, Bakery, Confectionery, Tobacco Workers & Grain Millers International Union, Local No. 37, Los An- geles, California, its officers, agents, and representatives, shall 1. Cease and desist from refusing to meet and bargain with Frisco Baking Company (the Employer) over a suc- cessor agreement to the collective-bargaining agreement between the parties effective July 1, 2018, to July 1, 2021. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, bargain in good faith with the Employer over terms and conditions of employment of employees in the following appropriate bargaining unit and, if an under- standing is reached, embody the understanding in a signed agreement: Every employee working in the following classifica- tions: Foreman, Mixer, Oven Man, Journeyman Baker, Checker, Apprentice Rate #3, Apprentice Rate #2, Ap- prentice Rate #1, Mechanics, Cleaner/Packer, and Entry Level. (b) Post at its Los Angeles, California union office cop- ies of the attached notice marked “Appendix.”21 Copies of the notice, on forms provided by the Regional Director for Region 31, after being signed by the Respondent’s au- thorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees 20 The order reflects the notice language adopted in Paragon Systems, Inc., 371 NLRB No. 104 (2022), to address the COVID-19 pandemic. Members Kaplan and Ring acknowledge and apply Paragon Systems, Inc. as Board precedent, although they expressed disagreement there with the Board’s approach and would have adhered to the position the Board adopted in Danbury Ambulance Service, Inc., 369 NLRB No. 68 (2020). 21 If the Respondent’s office is open and accessible by a substantial complement of employees and members, the notices must be posted within 14 days after service by the Region. If the Respondent’s office is closed or not accessible by a substantial complement of employees and members due to the Coronavirus Disease 2019 (COVID-19) pandemic, the notices must be posted within 14 days after the office reopens and is accessible by a substantial complement of employees and members. If, and members are customarily posted. In addition to phys- ical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Re- spondent customarily communicates with its members by such means. Reasonable steps shall be taken by the Re- spondent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Within 14 days after service by the Region, deliver to the Regional Director for Region 31 signed copies of the notice to employees and members in sufficient number for posting by the Employer at its Los Angeles, California facility, if it wishes, in all places where notices to employ- ees are customarily posted. (d) Within 21 days after service by the Region, file with the Regional Director for Region 31 a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to com- ply. Dated, Washington, D.C. December 6, 2022 Lauren McFerran, Chairman Marvin E. Kaplan, Member John F. Ring, Member (SEAL) NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD while closed or not accessible by a substantial complement of employees and members due to the pandemic, the Respondent is communicating with employees and members by electronic means, the notices must also be posted by such electronic means within 14 days after service by the Region. If the notices to be physically posted were posted electronically more than 60 days before physical posting of the notices, each notice shall state at the bottom that “This notice is the same notice previously [sent or posted] electronically on [date].” If this Order is enforced by a judgment of a United States court of appeals, the words in each notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Ap- peals Enforcing an Order of the National Labor Relations Board.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8 An Agency of the United States Government The National Labor Relations Board has found that we vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain on your behalf with your employer Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected ac- tivities. WE WILL NOT refuse to meet and bargain with Frisco Baking Company (the Employer) over a successor agree- ment to the collective-bargaining agreement between the parties effective July 1, 2018, to July 1, 2021. WE WILL, on request, bargain in good faith with the Em- ployer over the terms and conditions of employment of employees in the following appropriate bargaining unit and, if an understanding is reached, embody the under- standing in a signed agreement: Every employee working in the following classifica- tions: Foreman, Mixer, Oven Man, Journeyman Baker, Checker, Apprentice Rate #3, Apprentice Rate #2, Ap- prentice Rate #1, Mechanics, Cleaner/Packer, and Entry Level. BAKERY,CONFECTIONERY,TOBACCO WORKERS & GRAIN MILLERS INTERNATIONAL UNION, LOCAL NO. 37 The Board’s decision can be found at https://www.nlrb.gov/case/31-CB-279889 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.