Abbott House, Inc.

National Labor Relations Board - Board Decisions

Sep 18, 1984

272 N.L.R.B. 78 (N.L.R.B. 1984)

78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Abbott House, Inc. and District Council 1707, Com-
munity and Social Agency Employees Union,
AFSCME, AFL-CIO. Case 2-CA-19743
18 September 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND DENNIS
On 9 April 1984 Administrative Law Judge
Steven Davis issued the attached decision The
General Counsel filed exceptions and a supporting
brief, and the Respondent filed limited cross-excep-
tions and a supporting brief The Respondent also
filed an answering brief to the General Counsel's
exceptions
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed
1 In sec III par 2, of his decision, the judge Incorrectly found that 29
June 1983 rather than 30 June 1983 was the day preceding the first day
of the new contract term but he correctly concluded that 1 May 1983
was the last day on which notice would forestall automatic renewal of
the contract
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge Pursuant
to a charge filed on June 30, 1983, by District Council
1707, Community and Social Agency Employees Union,
AFSCME, AFL-CIO (Union), a complaint was issued
by Region 2 of the Nation Labor Relations Board on
August 31, 1983, against Abbott House, Inc (Respond-
ent) The complaint alleges that Respondent refused to
bargain with the Union regarding a renewal collective-
bargaining agreement in violation of Section 8(a)(5) and
(1) and Section 8(d) of the Act
Respondent's answer denied the material allegations of
the complaint and a hearing was held before me in New
York City on January 10 and 14, 1984
On the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by all parties, I make the following
FINDINGS OF FACT
I JURISDICTION
Respondent, a New York not-for-profit corporation,
having an office and place of business in Irvington, New
York, has been engaged as an agency providing social
services including child-care services and placement Re-
spondent annually derives gross revenues in excess of
$500,000 from its operations, and also annually purchases
and receives supplies including food, clothing, automo-
biles, and medical supplies valued in excess of $50,000 di-
rectly from suppliers located outside New York State
Respondent admits and I find that it is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act, and that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act
Ii THE ALLEGED UNFAIR LABOR PRACTICES
A The Facts
In 1971, the Union was certified as the exclusive col-
lective-bargaining representative of the Respondent's
technical employees
The parties' first collective-bargaining agreement, exe-
cuted in September 1972, ran for 2 years, from January
1, 1972, to December 31, 1973 The contract contained
the following language in article XXIV "duration of
agreement and renewal"
This Agreement shall become effective on January
1, 1972, and shall continue in effect until December
31, 1973 Thereafter, this Agreement shall be auto-
matically renewed from year to year for one (1)
year periods unless either party gives written notice
to the other party by registered mail at least sixty
(60) days prior to December 31, 1973, or any annual
renewal period thereafter, of its desire to amend or
terminate this Agreement In the event that the
notice of desire to amend is so given, the Agree-
ment shall not be terminated on the 31st day of De-
cember 1973 immediately following the giving of
such notice, but shall continue in effect until such
time as Agreement is reached between the parties as
to an amended Agreement, or either party gives
notice to the other party that it desires to terminate
this Agreement
Thereafter, the parties executed another 2-year collec-
tive-bargaining agreement in May 1974, effective from
January 1, 1974, to December 31, 1975 The "duration of
agreement and renewal" clause was identical to that con-
tained in the prior agreement except that it set forth the
new effective and termination dates
After the expiration of that agreement, the parties con-
tinued to honor its terms, with minor amendments in
1976 and 1977
In the summer of 1981, Union Representative James
Kennedy was assigned to represent the employees of the
Employer Inasmuch as there had been no written con-
tract since 1975, Kennedy examined the Union's file con-
taining various documents including letters and corre-
272 NLRB No 16
ABBOTT HOUSE, INC

79
spondence and wrote and prepared a document which
the parties agreed represented their collective-bargaining
relationship from July 1, 1978, to June 30, 1979 This
document, prepared in 1981, is a complete collective-bar-
gaining agreement It was never signed but it represents
the agreement of the parties, which terms and conditions
were maintained, notwithstanding that certain grievances
were filed
The "duration of agreement and renewal" clause—arti-
cle XXII states
This Agreement shall become effective on July 1,
1978, and shall continue in effect unti June 30, 1979
Thereafter, this Agreement shall be automatically
renewed from year to year for one (1) year periods
unless either party gives written notice to the other
party by registered mail at least sixty (60) days prior
to June 30, 1979, or any annual renewal period
thereafter, of its desire to amend or terminate this
Agreement In the event that the notice of desire to
amend is so given, the Agreement shall not be ter-
minated on the 30th day of June 1979, immediately
following the giving of such notice, but shall con-
tinue in effect until such time as agreement is
reached between the parties as to an amended
Agreement, or either party gives ten (10) days
notice to the other party that it desires to terminate
this Agreement
On October 14, 1981, Union Representative Kennedy
sent Respondent's executive director Geoffrey Weiner
proposed modifications to the agreement
At a negotiation session on January 20, 1982, agree-
ment was reached on the terms of a new contract, sub-
ject to ratification by the employees Kennedy drafted a
"Stipulaton of Settlement" and submitted it to Respond-
ent in March
On March 19 the employees rejected the proposed
agreement reached by Respondent and the Union and,
on March 30, Kennedy sent a letter to Respondent in-
forming him of the rejection The letter also stated
The membership further unanimously voted to
terminate the Collective Bargaining Agreement
Therefore, in accordance with Article XXII Du-
ration of Agreement and Renewal, we are serving
notice to Abbott House, Inc that this Union will
terminate the Collective Bargaining Agreement ten
(10) days after receipt of this notice
On April 16, Kennedy recieved a letter at Respond-
ent's premises which stated, inter aim
In view of your recent indication to us that your
Union is considering a strike in the immediate future
at the Abbott House, please be advised that under
the terms of the parties' collective bargaining agree-
ment, the required notice of your Unions' intent to
amend or terminate the Agreement was not provid-
ed to the Abbott House sixty (60) days prior to
June 30, 1981 Therefore, under the terms of the
contract, the Agreement is renewed and the no
strike obligation of the contract remains in effect
Consequently, any work stoppage instituted by your
Union would be in violation of the contracts' no
strike agreements and would be illegal 1
Thereafter, negotiations were continued which result-
ed in the execution of the stipulation of settlement on
September 29, 1982
Because this case turns upon the interpretation to be
given to the stipulation of settlement, I have set forth in
full the terms contained on the first page
Stipulation of Settlement made this 29 day of
Sept 1982, by and between ABBOTT HOUSE,
INC and DISTRICT COUNCIL 1707, AFSCME,
AFL-CIO and LOCAL 215 thereof (The Union)
subject to ratification by the bargaining unit em-
ployees and approval by the Abbott House Board
of Directors
WHEREAS, Abbott House, Inc and the Union
are parties to an existing collective bargaining
agreement, and
WHEREAS, they have engaged in good faith ne-
gotiations for a successor collective bargaining
agreement ("successor agreement"),
NOW, THEREFORE, in consideration of the
mutual promises and obligations herein contained
Abbott House, Inc and the Union hereby agree as
follows Ti-e existing collective bargaining agree-
ment shall be extended for an additional term as ex-
pressly hereinafter modified
1 The term of the successor agreement is for two
(2) years, from July 1, 1981 to June 30, 1983, with a
wage and mileage reopener on July 1, 1982
2 Abbott House, Inc shall grant a five (5%) per-
cent salary increase effective October 1, 1981 for all
bargaining unit employees, employed prior to July
1, 1981
3 Article XX Health and Welfare Benefits shall be
amended to provide that Life Insurance shall be one
(1) time the employees annual salary
4 Article X Section 3 shall be amended to provide
additional severance pay to employees employed
seven to ten (7-10) years 8 weeks salary, more than
ten (10) years 10 weeks salary
5 Article VIII Section 2 - Delete the word "inca-
pacitating"
6 Article VIII Section 4 - Employees shall accrue
on a prorata basis four (4) days with pay per fiscal
year for personal business Time required for medi-
cal and dental appointments is to be charged against
personal business days Time will not accrue
beyond four (4) days or be carried over from year
to year
7 Abbott House, Inc agrees that bargaining unit
staff will be permitted to use the "Family Room",
for relief, breaks, etc
8 Minimum wages shall be revised in accordance
with the schedule which is attached hereto as
Schedule "A" (Article VI Wages)
1 I need not resolve the dispute as to whether Kennedy told Respond
ent that 60 days notice was not required
80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
9 Prior to the opening of negotiation, Abbott
House Board of Directors voted for certain changes
in Vacation, Leaves of Absences, and Holidays These
proposals are attached hereto as "Abbott House
Proposals"
The remaining pages include provisions for a salary in-
crease effective July 1, 1982, changes in vacation, leaves
of absence and holidays, and the current salary schedules
and salary schedules effective July 1, 1981, and July 1,
1982
There was no discussion concerning an automatic re-
newal clause in the negotiations leading to the signing of
the stipulation
No formal collective-bargaining agreement was pre-
pared subsequent to the execution of the stipulation of
settlement although the parties agreed that one should be
prepared 2
On April 29, 1983, Kennedy sent a letter to Respond-
ent in which he proposed negotiations for a contact to
replace the agreement which was due to expire on June
30 The letter stated
As you know the present Collective Bargaining
Agreement between our Union and your Agency
covering your employees will expire on June 30,
1983
Effective as of such time, we propose that the
contract be modified in numerous respects, and that
a new agreement be entered into containing the
proposed modification which will follow under sep-
arate cover shortly
We offer to meet and confer with you for the
purpose of negotiating a new contract containing
such modifications We would appreciate hearing
from you as to a convenient time and place for such
a meeting
We are notifying the Federal Mediation and Con-
ciliation Services and the New York State Board of
Mediation by mailing them a copy hereof
The letter was received by Respondent on May 2
On May 26, Respondent Official Weiner sent a letter
to the Union which stated
On May 2, 1983 Abbott House received your
letter of April 29, 1983 which set forth your union's
desire to amend or terminate the existing collective
bargaining agreement between Abbott House and
your union
Please be advised that our counsel has advised us
that your April 29th letter fails to meet the requisite
sixty (60) day notice provision which is clearly
spelled out in our contract
As you know, our existing collective bargaining
contract with your union extends through and ter-
minates on June 30, 1983, unless the proper sixty
(60) day notice of intent to amend or terminate is
provided As noted, your letter of April 29th was
received by Abbott House on May 2, 1983, which is
2 There was conflicting evidence which I need not resolve, as to
whether Respondent or the Union agreed to prepare the document
fifty-nine (59) days prior to the expiration of our
collective bargaining agreement and thus does not
constitute timely notice as required by Article XXII
of our contract Consequently, because of your
union's failure to give timely notice of its desire to
amend or terminate the agreement, the contract has
automatically renewed itself for another year, until
June 30, 1984
I remain available should you wish to discuss the
subject further
Thereafter, Respondent refused to bargain with the
Union, relying on its position as set forth in its May 26
letter that the required 60 days notice was not timely
sent by the Union and therefore Respondent regarded
the contract as being automatically renewed for 1 year
Analysis and Discussion
1 Positions of the parties
The General Counsel and the Union argue that (a) the
stipulation of settlement does not contain an automatic
renewal clause, (b) the stipulation's paragraph 1 provid-
ing for a term of 2 years, with a wage and mileage re-
opener replaces the duration of agreement and renewal
provision of the prior collective-bargaining agreement,
(c) an automatic renewal clause may not be inferred
where it does not exist and where the language of the
contract is clear and unambiguous, and (d) past practice
of the parties establishes that 60 days' notice had not
been given and that Respondent, by continuing to nego-
tiate with the Union, has waived the Union's failure to
give such notice
In addition, the Union argues that the Board has no
authority to interpret collective-bargaining agreements in
a manner which would add an automatic renewal clause
to the contract Respondent's remedy, according to the
Union, should have been to grieve the Union's failure to
provide the proper 60 day notice The Union asserts that
by not timely grieving the alleged violation of the con-
tract, Respondent may not now assert it as a defense
The Union alternatively argues that if the contract re-
quired 60 days' notice, such notice was given to Re-
spondent
Respondent argues that the stipulations of settlement
incorporated the automatic renewal clause contained in
the parties' prior collective-bargaining contract, and
therefore since the agreed upon 60 days' notice was not
given pursuant to such clause, the contract was automati-
cally renewed for 1 year, and Respondent has not unlaw-
fully refused to bargain with the Union
I agree with Respondent's position
2 The inclusion of the automatic renewal clause in
the stipulation of settlement
A The collective-bargaining agreements
The evidence is clear that the automatic renewal
clause contained in the 1978-1979 agreement was incor-
porated in the stipulation of settlement The Stipulation
provides that "the existing collective bargaining agree-
ABBOTT HOUSE, INC 81
ment shall be extended for an additional term as express-
ly hereinafter modified." Moreover, Union representative
Kennedy conceded that the 1978-1979 agreement would
be continued to be honored, subject to the changes con-
tained in the stipulation.
The General Counsel's and the Union's argument is,
however, that one of the changes effected was the re-
placement of the duration and renewal clause (art. XXII)
of the 1978-1979 contract, which contained the automat-
ic renewal clause, with paragraph 1 of the stipulation. I
cannot agree. Paragraph 1 only changed the term of the
agreement—its effective and terminaton dates. No other
change was made in article XXII of the prior contract.
In addition, it is apparent that the stipulation of settle-
ment contained specific, express modifications to certain
named articles of the prior contract. Article XXII was
not one of the listed sections which was changed. By its
terms, the Stipulation is not a complete, self-contained
document which enables the reader to discern all of its
provisions. Rather, it requires reference to another agree-
ment, the 1978-1979 contract, which is continued, sub-
ject to the modifications set forth in the Stipulation.
It is accordingly apparent, and I find, that the stipula-
tion of settlement incorporated the automatic renewal
clause provisions, with its 60-day notice requirements,
contained in article XXII of the 1978-1979 collective-
bargaining agreement.3
B. Other Evidence'
The Union asserts that consideration of parol evidence
is unwarranted inasmuch as the terms of the stipulation
of settlement are clear and unambiguous. I agree, but
find, as set forth above, that the stipulation clearly incor-
porates all of the 1978-1979 contract as modified by the
stipulation.
For the sake of completion, I will consider other evi-
dence to determine the correct interpretation to be given
to the documents. The Union claims that the interpreta-
tion of collective-bargaining agreements is the role of the
arbitrator—not the Board—and further asserts that Re-
spondent's remedy should have been the filing of a griev-
ance to protest the untimely notification I disagree with
both issues.
The Board has long held that it has "jurisdiction to in-
terpret collective-bargaining contracts where it is neces-
sary to the resolution of unfair labor practice charges
under the Act." Although evidence "outside the agree-
ment cannot be introduced to vary its terms . . evidence
may be introduced for the purpose of ascertaining the
correct interpretation of an agreement."
Thus the existence of ambiguous contractual lan-
guage warrants inquiry Into relevant bargaining his-
3 Ted Hicks & Associates, 232 NLRB 712, 714 fn 5 (1977), enfd 572
F 2d 1024 (5th Cir 1978)
4 I do not rely on Respondent witnesses' testimony of what the under-
standing of the parties was regarding the inclusion of the automatic re-
newal clause in the stipulation of settlement
a General Maintenance Service Co, 182 NLRB 819, 822 (1970), citing
NLRB v C il C Plywood Carp, 385 U S 421 (1967) and NLRB v Acme
Industrial Products Co., 385 U S 432 (1967)
8 Inter-Lakes Engineering Ca, 217 NLRB 148, 149 (1975)
tory in order to resolve latent ambiguities, and ac-
cordingly, extrinsic evidence regarding full circum-
stances of negotiations is properly considered to re-
solve ambiguity.7
In arguing that Respondent could have filed a griev-
ance as to the untimely notification, the Union overlooks
the fact that It too could have filed a grievance 8 More-
over, it was the Union which initiated this proceeding by
filing its charge.
The other evidence establishes that it was the intent of
the parties that automatic renewal clause be included in
the Stipulation of Settlement:
(a) Each of the collective-bargaining agreements con-
tained an automatic renewal clause which provided that
the contract would be renewed for one year if at least 60
days' notice was not given to amend or terminate the
agreement.
(b) On March 30, 1982, the Union relied on the dura-
tion of agreement and renewal clause of the 1978-1979
contract when it sent a letter to Respondent rejecting the
proposed contract and informing it that "in accordance
with article XXII duration of agreement and renewal,
we are serving notice . . . [to] terminate the collective
bargaining agreement ten (10) days after receipt of this
notice." Thus, the Union at least on March 30, 1982, be-
lieved that that clause was operative.
It is readily apparent that the Union intended that arti-
cle XXII of the 1978-1979 contract apply to its relations
with Respondent thereafter 9
Respondent's April 16 reply to the Union's March 30
letter informed the Union that 60 days' notice of an
intent to amend or terminate the contract was not pro-
vided and that therefore the agreement was automatical-
ly renewed. Although Kennedy testified that he told Re-
spondent Official Weiner that 60 days' notice was not re-
quired," which testimony Weiner denied," it is undis-
puted that thereafter during the negotiations which led
to the execution of the Stipulation of Settlement on Sep-
tember 29, 1982, the subject of the automatic renewal
clause was not raised or discussed at all, nor did the
Union seek its modification or elimination from article
XXII.
Respondent may have waived its right to assert article
XXII by continuing to bargain with the Union after re-
ciept of the untimely March 30, 1982 letter. However,
Respondent did not thereafter waive its right to insist
upon timely 60-day notice. Thus, as discussed infra, Re-
spondent properly did not bargain with the Union after
receipt of the untimely notice received on May 2, 1983.
7 Timberland Packing Corp, 261 NLRB 174, 176 (1982)
8 Dixie Sand ii Gravel Co, 231 NLRB 6, 7 (1977)
9 I cannot believe Kennedy's testimony that the 10 day notice was In-
cluded in the March 30 letter of some statutory notice requirement or be-
cause of some general concern for the welfare of Respondent's clients
The clear purpose of providing 10 days' notice as expressly stated in the
letter was to conform with the requirements of art XXII of the parties'
contract
1 ° Kennedy's testimony was corroborated by Union chairperson
Robert Felton.
1 ' I need not resolve that dispute
82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The Union's failure to provide 60 days' notice
The plain language of article XXII of the 1978-1979
agreement provides that "this agreement shall continue
in effect until June 30, 1979. Thereafter, this agreement
shall be automatically renewed from year to year for one
(1) year periods unless either party gives written notice
to the other party . . at least sixty (60) days prior to
June 30, 1979, or any annual renewal period . . . of its
desire to amend or terminate this Agreement."
The parties' Stipulation of Settlement was therefore ef-
fective until June 30, 1983. Following the analysis in
Koenig Bros.,' 2 in which the contract's language was vir-
tually identical to this case, the termination date—the
day preceding the first day of the new contract term,
was June 29, 1983. Including that day on which the auto-
matic renewal clause became operative was May 1, 1983.
The last day on which notice to forestall automatic re-
newal could be effective was May 1, 1983." As notice
was not recieved on or before May 1, 1983, the contract
was automatically renewed.
I reject the Union's reliance on Ohio Oil Co.," that
notice received on the 60th day is sufficient, and that a
given day should be included rather than excluded in the
computation of the time period. That case involved the
interpretation of Section 8(d) of the Act and not the pro-
visions of an automatic renewal clause. Moreover, the in-
clusion by the parties here of a requirement that at least
60 days' notice must be given, according to the analysis
followed in Koenig Bros., and most recently in Taft
Broadcasting Co.," the full 60-day notice is necessary in
order to forestall the operation of the contract's automat-
ic renewal clause
I find no mitigating circumstances which would war-
rant disregarding the untimely notice. Thus, there was
no evidence of delay in postal delivery time or other fac-
tors which were outisde the control fo the Union, caus-
ing late delivery of the notice.
12 108 NLRB 304 (1954)
13 The date of receipt of the notice and not the date of mailing con-
trols the determination of whether the notice was timely Koenig Bros.,
supra
14 91 NLRB 759 (1950)
11 264 NLRB 185, 198 (1982)
Accordingly, inasmuch as the Board has strictly con-
strued provisions which forestall automatic renewal
clauses," I find and conclude that the Union has failed
to provide Respondent with the required 60 days' notice,
and that therefore the parties' collective-bargaining
agreement, specifically the 1978-1979 agreement as
modified by the stipulation of settlement was automati-
cally renewed for 1 year.
I therefore conclude that Respondent has not unlaw-
fully refused to bargain with the Union.
CONCLUSIONS OF LAW
1. Abbott House, Inc. is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2 District Council 1707, Community and Social
Agency Emloyees Union, AFSCME, AFL-CIO is a
labor organization within the meaning of Section 2(5) of
the Act.
3. The collective-bargaining agreement between Re-
spondent and the Union executed on September 29, 1982,
automatically renewed itself on June 30, 1983, the Union
having failed to give timely 60-day notice of its desire to
amend or terminate as required by the contract.
4. Respondent has not engaged in an unfair labor prac-
tice by its refusal to meet and bargain with the Union
concerning the terms of a new collective bargaining
agreement.
5. Respondent has not engaged in the violations of the
Act as alleged in the complaint.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed17
ORDER
The complaint herein is dismissed in its entirety.
16 Sawyer Stores, 190 NLRB 651, 652 (1971)
" If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses