Chicago Health & Tennis Clubs, Inc.

140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Chicago Health and Tennis Clubs, Inc. and Crystal Grizzel, Petitioner, and Retail Clerks Union Local 1540, chartered by United Food and Com- mercial Workers International Union, AFL- CIO.' Case 13-RD-1211 August 13, 1980 RULING ON ADMINISTRATIVE APPEAL BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On March 7, 1979, the Regional Director dis- missed the instant petition on the ground that it was untimely filed. Employer and Petitioner, re- spectively, filed a request for review of such action. The National Labor Relations Board grant- ed the requests for review and thereafter the Em- ployer filed a brief and the Union filed a response. 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. On the basis of the Regional Director's investiga- tion, prior proceedings involving the Employer, and the submissions of the parties, the Board finds as follows: The Union was duly certified by the Board on April 15, 1976. In Case 13-CA-1574, reported at 226 NLRB 1202, and dated November 26, 1976, in- volving the Employer's refusal to honor the Board certification of the Union's majority status, the Board, inter alia, ordered the Employer to bargain upon request with the Union and extended the ini- tial period of certification of the Union so as to begin on the date that the Employer commenced to bargain in good faith with the Union. Oxn Janu- ary 17, 1978,2 the Board's Order was enforced by the Court of Appeals for the Seventh Circuit. Although the Employer intended to appeal the enforcement of this order to the Supreme Court of the United States, on February 9, it made an oral offer to bargain with the Union subject to its right to pursue its appeal. In a letter to the Union dated February 15, the Employer confirmed the oral offer that it was willing to begin bargaining with the Union subject to: 1. The agreement of the general counsel of the NLRB to permit the company's Petition for Certiorari to be filed and to be bound by the eventual outcome of that Petition. A copy i The name of the Union, formerly Retail Clerks Union Loca.l 154(), chartered by Retail Clerks International Association. AFL-CIO(), is amended to reflec the change resulting from the merging of Retail Clerks International Union and Amalgamated Meatcutters and Butcher Workmen of North America on June 7 179. z All dates hereafter refer to 1978, unless otherwise specified 251 NLRB No. 18 of the general counsel's letter agreeing to that condition is enclosed.3 2. The union's agreement to be bound by the decision of the Supreme Court should it be ad- verse to the union notwithstanding the compa- ny's agreement to bargain with the union or the existence of a contract should such be then completed. The Union responded that if the Employer would agree to post a notice of a union meeting on its bulletin board, the Union "will be happy to bar- gain with you on the basis which we have dis- cussed." On February 17, the Employer replied stating that, as the company bulletin board is not available for noncompany matters, it would be in- appropriate to post the union notice, but again re- newing its offer to bargain pursuant to the terms orally outlined on February 9 and set forth in the Employer's letter of February 15. There was no further communication between the parties until after the Supreme Court denied the Employer's writ of certiorari on June 19. Sev- eral days later, the Union requested the Employer commence bargaining and furnish the names and addresses of all unit employees. The Employer fur- nished the information requested and, on October 9, 1978, the Union requested the Employer to set a date for commencement of negotiations. The first bargaining session was held on Novem- ber 2 and was followed by five additional meetings, the last occurring on February 21, 1979. The instant petition, seeking to decertify the Union as the representative of the employees in the unit involved in the Board bargaining order, was filed on February 20, 1979. The Regional Director recogized, and we agree, that the pivotal issue in this case is whether the Employer made a proper offer to bargain on either February 9 or 15, so that the certification year started at one of those points. If that query is an- swered in the affirmative, the petition was timely; otherwise it was not. The Regional Director dismissed the petition as untimely and we agree with his conclusion. The Employer's offer to bargain was not only condi- tioned upon an action by the General Counsel but also required the Union to agree to be bound by a decision of the Supreme Court adverse to its claim that it was the certified representative of employees :' In a ltler dated January 24. the (eneral Counsel agreed that bar- gaininlg by the Emplo er and the Ulnioln ' ould not moot the Company's petition for certiorari andl that a agreement reached beteein the Com- pany ad the Unlitiln cOtld be made subjec to tcrmillnatilln .lould the Su- prenme C(iiriT llilmately decide that the Company vas notl obligated to bargainl ith the UiTln Cf I:tied .(lir( rua (Corportlllii i . L RI .. 434 F.2d 11948, 12()- 120)1 (CA 2. 17(0). cerl denied 41 UlS 993 " CHICAGO HEALTH AND TENNIS CLUBS 141 in the unit. The preconditions attendant to the Em- ployer's offer involved nonmandatory subjects of bargaining and the Union was free to reject them.4 Thus, the Employer's conditional offer to bar- gain and the Union's refusal did not in any way affect the Board's Order that the certification year would begin on the date the Employer commenced to bargain in good faith with the Union as "the recognized bargaining representative in the appro- priate unit";5 namely, on November 2, 1978. Ac- cordingly, the petition filed on February 20, 1979, was untimely and was properly dismissed. MEMBER JENKINS, dissenting: I disagree with my colleagues' finding that the Employer made a conditional offer to bargain in February 1978 that delayed the commencement of the certification year under the Board's Order in 226 NLRB 1202. Hence, I also disagree with their conclusion that the petition filed on February 20, 1978, was untimely and was properly dismissed. The key background facts are not in dispute. The Union was certified by the Board on April 15, 1976. Thereafter, the Board found that the Em- ployer violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the Union, and the Board, inter alia, ordered the Employer to bargain upon request with the Union and extended the ini- tial period of certification of the Union to begin the date the Employer commenced to bargain in good faith with the Union. 6 The Board's Order was en- forced by the Court of Appeals for the Seventh Circuit on January 17, 1978. The Employer decided to appeal the enforce- ment of the Seventh Circuit's order to the Supreme Court. Nevertheless, the Employer made an oral offer on February 9, 1978, and a written offer on February 15, 1978, to bargain with the Union sub- ject to: 1. The agreement of the general counsel of the NLRB to permit the company's Petition ' Our dissenting colleague asserts that the proposal that the Union agree to be bound by a Supreme Court decision is no impediment to the commencement of bargaining, because the Union sould be hound by the Court's decision anyway However, it does not necessarily follows that. merely because the Union was asked to affirm its obligation to he hound by Supreme Court decisions, it is required to agree to the denmand as a precondition to commencement of negotiations. regardless of Whether or not the demand has anything to do with a mandatory subject of bargain- ing. Under our colleague's reasoning, the Employer could hase demand- ed that the Union agree to obey the law, bargain in good faith, or. for that matter, agree that the sky is blue and the grass green, and the Union would he obligated to agree lest it be accused of impeding negotiations We do not believe that a party may properly precondition negotiations upon the other party's agreement to such matters as are not mandator' subjects of bargaining In finding that the Union was inot obligated to accept the Employer's conditions we do not, of course, imply that the Union as not free to accept them See United Aircrft Corporoiiont v .'.L R B. iupra, f s 226 NLRB at 1204. 226 NLRB 1202 (1976). for Certiorari to be filed and to be bound by the eventual outcome of that Petition. A copy of the general counsel's letter agreeing to that condition is enclosed. 2. The union's agreement to be bound by the decision of the Supreme Court should it be ad- verse to the union notwithstanding the compa- ny's agreement to bargain with the union or the existence of a contract should such be then completed. No serious argument can be made that item I was a precondition or impediment to the com- mencement of bargaining after February 9 or Feb- ruary 15. Thus item I had already been complied with: the General Counsel had agreed to item I by letter dated January 24, 1978, and the Employer provided a copy of that letter to the Union on Feb- ruary 15. The sole issue is, therefore, whether the Employ- er's effort to have the Union agree to be bound by a decision of the Supreme Court adverse to the Union's claim that it was the certified representa- tive of the unit employees constituted an improper precondition to good-faith bargaining. I think not. A proposal that the Union agreed to be bound by a Supreme Court decision is no impediment to the commencement of good-faith bargaining. Indeed, the Union would be bound by the Supreme Court's decision on the Employer's writ of certor- ari 7 regardless of whether it agreed with the Em- ployer to be bound. It also is clear that the Em- ployer and the Union could agree to a collective- bargaining agreement containing a savings proviso that the agreement would terminate should the Su- preme Court ultimately decide that the Employer was not obligated to bargain with the Union. It follows, therefore, that a proposal to this same effect is neither evidence of bad faith nor an im- pediment to the commencement of bargaining. Although the Union may not have to agree with the Employer to be bound by the Supreme Court's decision, it cannot rely on the Employer's proposal and itself delay the commencement of bargaining. Where the Union has done so, it cannot expect that the certification year will be extended beyond the Employer's offer to bargain. But that is precisely what my colleagues allow the Union to do here. Thus, the record before us does not show that bargaining failed to begin in February 1978 because of the Employer's so-called preconditions. Instead the evidence before us A Supreme Court decision denying enforcement of the Board's Order reported at 226 NLRH 1202 would eliminate the certification as the foundation for the Employer's Ihibtgatllon to bargain with the ULnion ' Cf I nrid 4-rcraui Corporatiorn x VL RR. 434 F 2d 1 198 2d Cir 197(1), cert denied 41 S 99 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD strongly suggests that bargaining did not begin in February 1978 because the Employer refused to agree to the Union's request to post a notice of a union meeting on the Employer's bulletin board.9 This view is predicated on the Union's letter to the Employer dated February 15, 1978, which states in pertinent part: "Should you agree to the posting of 9 There is no contention before us that the Employer's rejectioll of the notice posting violated the Act the notice, we will be happy to bargain with you on the basis which we have discussed." In short, the evidence strongly suggests that the "precondi- tion" that delayed the commencement of bargain- ing in February 1978 was initiated by the Union rather than the Employer. I dissent from my colleagues' finding that the RD petition filed on February 20, 1979, was un- timely and properly dismissed.