Bridgestone/Firestone, Inc.

National Labor Relations Board - Board Decisions

May 22, 2000

331 N.L.R.B. 205 (N.L.R.B. 2000)

BRIDGESTONE/FIRESTONE, INC. 205
Bridgestone/Firestone, Inc. and Local 283, Interna-
tional Brotherhood of Teamsters, AFL–CIO.
Case 7–CA–39847
May 22, 2000
DECISION AND ORDER
BY MEMBERS FOX, HURTGEN, AND BRAME
On a charge filed May 21, 1997, by Local 283, Interna-
tional Brotherhood of Teamsters, AFL–CIO (the Union),
the General Counsel of the National Labor Relations
Board issued a complaint on July 24, 1997, against
Bridgestone/Firestone, Inc. (the Respondent), alleging that
the Respondent violated Section 8(a)(5) and (1) by refus-
ing to bargain with, and withdrawing recognition from, the
Union as the exclusive representative of a unit of its em-
ployees. The Respondent filed a timely answer to the
complaint denying the commission of any unfair labor
practices. On November 6, 1997, the Respondent, the
Union, and the General Counsel filed with the Board a
stipulation of evidence and joint motion to transfer this
proceeding to the Board. The parties agreed that the stipu-
lation, with attached exhibits, including the charge, com-
plaint, and answer, constitutes the entire record in this
case, and that no oral testimony is necessary or desired by
any of the parties. The parties further waived a hearing
before an administrative law judge, the making of findings
of fact and conclusions of law by an administrative law
judge, the issuance of an administrative law judge’s deci-
sion and recommended Order, and indicated their desire to
submit the case directly to the Board for findings of fact,
conclusions of law, and the issuance of a Decision and
Order. On January 20, 1998, the Board approved the
stipulation of evidence, granted the motion, and trans-
ferred this proceeding to the Board. The General Counsel
filed a brief, and the Respondent filed briefs in opposition
and in reply to the complaint.1
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
On the entire record and the briefs, the Board makes
the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent corporation operates stores in the De-
troit, Michigan, area from which it sells tires, automotive
supplies, and services. During the 12-month period preced-
ing the filing of the unfair labor practice charge, the Re-
spondent had gross revenues in excess of $500,000 and
purchased goods valued in excess of $50,000 from points
outside the State of Michigan for shipment directly to its
metropolitan Detroit stores. The parties stipulated and we
find that, at all material times, the Respondent has been an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act, and that the Union has
been a labor organization within the meaning of Section
2(5) of the Act.

1 The Respondent also requested oral argument. This request is de-
nied as the stipulation with exhibits and briefs adequately present the
issues and positions of the parties.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Stipulated Facts
At all relevant times, at least through June 5, 1997, the
Union has been recognized as the exclusive representa-
tive of the following unit of the Employer’s employees:
All full-time and regular part-time general service em-
ployees, maintenance bay service employees, techni-
cians (A–C and 1–5), mechanics, tire service employ-
ees and installers employed by Respondent at the fol-
lowing facilities: 11919 East Warren Avenue, Detroit,
Michigan; 1801 Michigan Avenue at 11th, Detroit,
Michigan; 14170 Greenfield Road, Detroit, Michigan;
29200 Plymouth Road, Livonia, Michigan; 32525
Gratiot Avenue, Roseville, Michigan; 29034 Van
Dyke, Warren, Michigan; 19821 Plymouth Road, De-
troit, Michigan; and 2704 Biddle, Wyandotte, Michi-
gan (herein referred to collectively as the metropolitan
Detroit stores); but excluding office clerical employees,
guards, and supervisors as defined in the Act.
This recognition has been embodied in successive collec-
tive-bargaining agreements, the most recent of which was
effective by its terms from June 6, 1994, through June 5,
1997, except as provided by the following terms of that
Agreement:
ARTICLE XXI-TERMINATION OF AGREEMENT
Section 1.
This Agreement shall be in full force and effect from
June 6, 1994, to and including June 5, 1997, and shall
continue in full force and effect from year to year there-
after unless written notice of desire to cancel or
terminate the Agreement is served by either party upon
the other at least sixty (60) days prior to date of expira-
tion.
Section 2.
It is further provided that where no such cancellation or
termination notice is served and the parties desire to
continue said Agreement, but also desire to negotiate
changes or revisions in this Agreement, either party
may serve upon the other a notice, at least sixty (60)
days prior to June 5, 1997, or June 5 of any subsequent
contract year, advising that such party desires to con-
tinue this Agreement, but also desires to revise or
change terms or conditions of such Agreement. The
respective parties shall be permitted all lawful eco-
nomic recourse to support their request for revisions if
the parties fail to agree thereon.
On March 20, 1997,2 the Union wrote the Respondent,
advising it that:
2 All subsequent dates are in 1997.
331 NLRB No. 24
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 206
Local Union No. 283 . . . desires to continue its existing
Agreement, but also desires to negotiate changes or re-
visions in such Agreement and the Schedule “A” at-
tached thereto.3 The particular provisions concerning
which we desire to negotiate are “WAGE, HOURS,
WORKING CONDITIONS AND FRINGE
BENEFITS.” [Emphasis in original.]
On March 26 the Respondent acknowledged the Un-
ion’s request “to negotiate a new union contract” and
stated that its Michigan district manager had been asked
to set up an initial bargaining session.
On April 1 the Union requested information from the Re-
spondent regarding existing insurance programs. On April
7 the Respondent supplied the requested information.
Between April 19 and 29, the Respondent received peti-
tions signed by 294 of the 45 bargaining unit employees
indicating that they no longer desired union representation.5
On April 29 the Respondent wrote the Union that it had
received petitions signed by a majority of unit employees
stating that they no longer wished to be represented by the
Union. The Respondent further wrote that it would honor
the extant contract until its June 5 expiration but, based on
objective considerations showing an absence of majority
support, it was legally prohibited from negotiating a succes-
sor agreement. On April 30, the Union responded, request-
ing proof from the Respondent that a majority of employees
no longer supported it. The Union also stated that because
the Respondent had not petitioned the Board for an election
it was obligated to bargain with the Union.
On June 5 the Respondent wrote the Union stating
that, pursuant to the employee petitions and other objec-
tive considerations showing an absence of union majority
support, it was withdrawing recognition from the Union
effective June 6.
Since June 6 the Respondent has refused to recognize
and bargain with the Union as the exclusive representa-
tive of its unit employees.
B. Contentions of the Parties
The General Counsel argues that the Respondent’s refusal
to bargain and its subsequent withdrawal of recognition
violated Section 8(a)(5) and (1). The General Counsel as-
serts that the 1994–1997 Agreement clearly provides that it
will “roll over” unless a party serves timely written notice of
termination. The General Counsel contends that neither
party provided that termination notice and, conversely, that
the Union specifically advised the Respondent that it wished

3 Schedule A includes provisions covering: hours of work, overtime and
premium pay, holidays, vacations, uniforms, jury duty, funeral and sick
leave, insurance and pension benefits, classification and wage rates, and
tool insurance.
4 Although the parties stipulated that 34 of 45 unit employees signed
petitions, it appears that they inadvertently counted five signatures on
Exhs. 7(a) and (b) twice. However, the 29 employees who signed the
petitions constitute a majority of the bargaining unit employees.
5 Although the legends on the petitions varied, the parties stipulated
that the petitions indicated that “the signatory employees no longer
wanted to be represented by the . . . Union.”
to continue the Agreement, with some modifications. The
General Counsel argues that the effect of the Union’s notice
was to automatically renew the Agreement, and to prevent
the Respondent—under the contract-bar principle6—from
raising a subsequent claim of good-faith doubt. See Au-
ciello Iron Works, Inc., 317 NLRB 364, 367 (1995), enfd.
60 F.3d 25 (1st Cir. 1995), affd. 517 U.S. 781 (1996).
The Respondent argues that neither its refusal to bar-
gain nor its withdrawal of recognition violated the Act.
It contends that, under established Board law, because it
had received a petition from a majority of unit employees
asserting that they no longer desired union representa-
tion, it could lawfully discontinue negotiations for a suc-
cessor agreement and withdraw recognition on contract
expiration. See, e.g., Burger Pits, Inc., 273 NLRB 1001
(1984), enfd. sub nom. Hotel & Restaurant Employees
Local 19 v. NLRB, 785 F.2d 796 (9th Cir. 1986).
The Respondent further asserts that its refusal to bargain
and withdrawal of recognition were not unlawful under
contract-bar principles. The Respondent argues that the
Union’s March 20 “reopener” request, which broadly
sought negotiation of all mandatory subjects of bargaining,7
was tantamount to, and had the effect of, terminating that
Agreement at its expiration. The Respondent asserts that
because every provision of the 1994–1997 contract arguably
relates in some way to “wage [sic], hours, working condi-
tions and fringe benefits,” the effect of the Union’s March
20 letter was to terminate that Agreement.
In support of this argument, the Respondent relies on
South Texas Chapter, AGC, 190 NLRB 383 (1971). In
South Texas, the Board upheld a judge’s finding that a
union’s contract reopener letter seeking to negotiate “all
matters pertaining to wages, hours, and all conditions of
employment,” effectively terminated, rather than sought
to modify, the collective-bargaining agreement. In South
Texas, the judge stated that:
[A] call for negotiation on all terms is, to my mind,
more in the nature of a notice to negotiate an entire new
contract (and hence a “notice of desire to terminate”)
than it is a notice to negotiate mere “modifications” or
even “changes.” [Id. at 386.]
The Respondent contends that, here, too, the Union effec-
tively terminated the 1994–1997 contract by its expansive
bargaining request.
6 As argued by the General Counsel, where a contract is in effect,
there is an irrebuttable presumption that the union represents a majority
of unit employees. The issue of an employer’s good-faith doubt that
the union has majority status will not be considered during this period.
See, e.g., North Bros. Ford, 220 NLRB 1021, 1022 (1975).
7 The Respondent argues that because “wages, hours, and working
conditions” have become synonymous with all mandatory subjects of
bargaining, the Union was seeking to bargain over all mandatory terms.
See, generally, AT&T Corp., 325 NLRB 150 (1997).
BRIDGESTONE/FIRESTONE, INC. 207
Alternatively, the Respondent relies on Century Wine &
Spirits, 304 NLRB 338 (1991).8 In Century Wine, the Board
analyzed almost identical contract provisions, id. at 339,9 and
found that the contract did not automatically renew as to
those provisions, which were reopened for bargaining. In
Century Wine, the Board found that although the contract
renewed as to those provisions for which bargaining was not
sought, reopened provisions were subject to modification
through the normal collective-bargaining process. Applying
Century Wine the Respondent argues that even assuming that
the 1994–1997 contract renewed as to those issues for which
the Union had not sought bargaining, the agreement did not
renew as to “wage [sic], hours, or working conditions.” Fur-
ther, since the “renewed” agreement would not “contain
substantial terms and conditions of employment deemed
sufficient to stabilize the bargaining relationship,”10 the Re-
spondent argues that it would not constitute a contract bar.
Finally, the Respondent asserts that KCW Furniture
Co., 247 NLRB 541, 543 (1980), enfd. 634 F.2d 436 (9th
Cir. 1980), is inapplicable. In KCW, the Board held that
the union’s notice of intent to modify the contract did not
prevent automatic renewal of the entire contract. How-
ever, the Respondent argues, the Board’s conclusion in
KCW was based on the unique language of that agree-
ment which provided that:
“Notice of Opening” is in nowise intended by the par-
ties as a termination of nor shall it in anywise be con-
strued as a termination of this Agreement or any annual
contract effectuated through automatic renewal nor as
forestalling automatic renewal as herein provided.
The Respondent notes that the 1994–1997 agreement
contains no comparable language. In the absence of
specific language, the Respondent argues that, at most,
there is renewal of only those provisions that are not
specifically reopened.

8 Century Wine was subsequently vacated by the Board as a result of
the parties’ settlement of relevant unfair labor practice allegations.
Century Wine & Spirits, 317 NLRB 1139 (1995).
9 The Century Wine & Spirits contract provisions specified, in rele-
vant part, that:
Section 1.
The Agreement shall be in full force and effect from April 1,
1985, to and including March 31, 1988, and shall continue from
year to year thereafter unless written notice of desire to cancel or
terminate the Agreement is served by either party upon the other
at least sixty (60) days prior to the date of expiration.
Section 2.
When no such cancellation or termination is served and the
parties desire to continue said Agreement but also desire to nego-
tiate changes or revisions in the Agreement, either party may
serve upon the other a notice at least sixty (60) days prior to
March 31, 1988 or March 31st of any subsequent contract year,
advising that such party desires to revise or change terms of such
agreement.
10 Appalachian Shale Products, 121 NLRB 1160, 1163 (1958).
C. Analysis and Conclusions
For the following reasons, we find merit in the Re-
spondent’s arguments and conclude that it did not violate
the Act.
As an initial point, we agree with the parties that had the
1994–1997 collective-bargaining agreement automatically
renewed in its entirety prior to the Respondent’s April 29
notice to the Union of its good-faith doubt of union major-
ity support, the Respondent’s claim would have been fore-
closed under the contract-bar principle for the duration of
the contract extension. See, e.g., Colson Equipment, Inc.,
257 NLRB 78 (1981), enfd. in relevant part 673 F.2d 221
(8th Cir. 1982). We therefore must determine whether that
agreement had renewed prior to the Respondents’ with-
drawal of recognition and refusal to bargain. In determin-
ing whether renewal occurred, we find relevant both the
applicable contract provisions as well as the March 1997
conduct of the parties concerning proposed changes to the
1994–1997 Agreement.
On the issue of contract language, the parties agree
that the applicable provisions are article XXI, sections 1
and 2, of the 1994–1997 agreement. As previously set
forth, section 1 specifies that the agreement will remain
in effect (i.e., “roll over”) in the absence of a timely
“written notice of desire to cancel or terminate the
Agreement.” Section 2 details the procedures to be fol-
lowed where a party does not wish to terminate the
Agreement but “desires to negotiate changes or revi-
sions.” Clearly, it was section 2 that the Union invoked
when writing the Respondent on March 20, requesting
bargaining. Contrary to the General Counsel, however,
we do not find that this language ends our inquiry.
Early Board cases held that notices to negotiate
changes to a contract, timely received by the other party
prior to the automatic renewal date of the agreement,
generally prevented that agreement’s renewal for con-
tract bar purposes. The rationale for this approach was
set forth in Deluxe Metal Furniture Co., 121 NLRB 995,
1002, 1003(1958), a representation case:
[Treating] all notices given at approximately the re-
newal period as notices to forestall automatic renewal,
unless very strict provisions are met, will practically
eliminate the very difficult area of contract bar rules
covering coterminous modification and termination
clauses and will render unnecessary evaluation of the
contract clause, the type of notice given, and the con-
duct of the parties with respect thereto, which are fre-
quently inconsistent and create difficulties in determin-
ing their effect upon contract bar. [Emphasis added.]
Thus, it was the Board’s view that, absent strict provisions,
a notice to negotiate changes to the contract was the equiva-
lent of a notice of termination for contract-bar purposes.
In the context of 8(a)(5) refusal-to-bargain cases,
which factually parallel those raising the contract-bar
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 208
issue,11 early Board cases similarly held that a party’s
request to negotiate changes to a contract prior to the
date for automatic renewal, constituted a notice of termi-
nation, at least when that was consistent with the parties’
previous bargaining. See, e.g., Oakland Press Co., 229
NLRB 476 (1977), enfd. in relevant part 606 F.2d 689
(6th Cir. 1979). Further, where the changes sought to be
negotiated were “substantial,” the Board and courts held
that this was the “equivalent to a notice to terminate” the
entire agreement. See, e.g., Lion Oil Co., 109 NLRB
680, 683 fn. 6 (1954), revd. 221 F.2d 231 (8th Cir. 1955),
revd. and remanded 352 U.S. 282 (1957), modified 245
F.2d 376 (8th Cir. 1957); and American Woolen Co., 57
NLRB 647, 649 (1944).
In addition to considering the contract language in-
voked, the Board, in the context of 8(a)(5) cases, has also
evaluated the substance of the proposals that the parties
sought to renegotiate. Thus, in South Texas Chapter,
AGC, supra, a refusal to bargain case, the union invoked
the “change” and “modification” provision from the con-
tract, rather than one providing for “termination.” None-
theless, the Board adopted the judge’s finding that the
contract had not automatically renewed because, by pro-
posing negotiations over “all matters pertaining to wages,
hours, and all conditions of employment,” the union ef-
fectively had sought contract termination. In reaching
this result, the judge also relied on the fact that the union
had failed to include any specific proposals in its bar-
gaining request.
In more recent 8(a)(5) cases, the Board has held, for
purposes of determining whether parties may utilize eco-
nomic weapons during reopener negotiations (e.g.,
strikes, implementation of proposals at impasse), that the
effect of reopening certain contract provisions is to ter-
minate the contract, at least as to the reopened provi-
sions. Speedrack, Inc., 293 NLRB 1054, 1055–1056
(1989); Hydrologics, Inc., 293 NLRB 1060, 1062 (1989);
and Teamsters Local 507 (Klein News), 306 NLRB 118,
135–136 (1992). As explained in Hydrologics:
[W]e believe that underlying the Court’s reasoning in
Lion Oil [352 U.S. at 290] is, necessarily, a conclusion
by the Court that the Act and its legislative history may
be read as placing reopener bargaining and bargaining
when no contract is in effect on equal footing with re-
spect to the availability of economic weapons.
293 NLRB at 1061. Accord: Electrical Workers IBEW
Local 47 v. NLRB, 927 F.2d 635, 643–44 (D.C. Cir. 1991).
The Board has recognized one narrow exception to the
principle that contracts do not automatically renew, at
least as to provisions over which bargaining has been
sought. In KCW Furniture Co., supra, the Board held
that where there is express contract language providing

11 In the 8(a)(5) context, the legal issue is whether the contract has
renewed so that additional bargaining is not required. In the representa-
tion context, the legal inquiry is whether the contract has automatically
renewed so that a question concerning representation cannot be raised.
that a “[n]otice of reopening’ [was] nowise intended by
the parties as a termination of nor shall it be anywise
construed as a termination of this Agreement,” this spe-
cific contract language prevailed and the entire contract
automatically renewed, regardless of the breadth of the
issues sought to be negotiated. See also Robert A. Bar-
nes, Inc., 268 NLRB 343 (1983). However, the holdings
in KCW and Robert Barnes have not been extended be-
yond their reopener language. See, e.g., Hydrologics,
Inc.; supra; Speedrack, supra, 293 NLRB at 1057 fn. 12.
Indeed, as stated in Teamsters Local 507 (Klein News),
supra, 306 NLRB at 136:
In KCW Furniture, supra, e.g., the parties explicitly
agreed that the reopener provided there could not be
construed as a termination, or as forestalling an auto-
matic renewal of the agreement. In contrast, here there
is no such explicit declaration. [Emphasis in original.]
Applying the foregoing precedent to the instant case,
we find that the entire 1994–1997 contract did not auto-
matically renew as a result of the Union’s March 20 no-
tice to the Respondent. Thus, applying the foregoing
contract-bar and 8(a)(5) precedent to the facts of this
case, we find that the Union’s request to negotiate
changes in the 1994–1997 contract had the effect of ter-
minating the agreement, at least as to those provisions for
which bargaining was sought. Although parties may
contractually specifically provide otherwise, i.e., that the
reopened contract automatically renews, they must do so
expressly. Here, unlike the explicit provisions in KCW
and Robert Barnes, article XXI does not expressly pro-
vide that the contract [or portions thereof] will not termi-
nate if reopened. In the absence of such an express con-
tractual provision, we find that the effect of the Union’s
invocation of the contractual “changes or revisions” pro-
cedure in article XXI was to forestall automatic renewal
of those contract provisions for which bargaining was
sought. And, because the issues on which the Union
sought bargaining (“wage [sic], hours, and conditions”)
were tantamount to all mandatory subjects of bargaining,
we find that, even assuming that the 1994–1997 agree-
ment renewed as to its unopened contract provisions, the
residual agreement would have been insufficient under
Appalachian Shale principles to constitute a contract bar.
We note that this result is consistent with South Texas
Chapter, AGC, supra, on the basis that the breadth of the
Union’s bargaining request was tantamount to a notice of
termination. And, although Century Wine & Spirits was
vacated, and thus lacks precedential value, we find that
our decision comports with the reasoning in that case that
the effect of invoking virtually identical “changes or re-
visions” [versus “termination” provisions] was to termi-
nate those provisions on which the Union sought bar-
gaining prior to the contract’s expiration.12
12 We do not find our dissenting colleague’s contrary arguments per-
suasive. Her position is based on a dissenting opinion that has never been
adopted by the Board, and relies on cases (KGW and Robert Barnes),
BRIDGESTONE/FIRESTONE, INC. 209
We agree with our dissenting colleague that, under the
1994 contract, a party could seek to terminate all or part
of a contract. In the instant case, assuming arguendo that
the Union sought to terminate only part of the contract,
that part was a broad and substantial one. It covered
“wage(s), hours, working conditions and fringe benefits.”
Indeed, it is difficult to say what, if anything, was not
open for negotiation. As discussed above, contract-bar
principles teach that where, as here, substantial terms and
conditions of employment are open for negotiation, a
contract bar does not exist. Thus, it is clear that a con-
tract bar does not exist here.
We do not agree with our colleague’s somewhat in-
temperate statement that our analysis has “nonsensical”
consequences. We believe that the Union reopened the
1994 contract in a substantial way, and that, under con-
tract bar principles, the contract was therefore no longer
a bar. The “consequence” of this is that the employees
are free to exercise their Section 7 right to reject the Un-
ion as representative. Whatever the reasonable differ-
ences that exist between ourselves and our dissenting
colleague, it surely cannot be said that this consequence
is “non-sensical.”
Having determined that the 1994–1997 contract did
not automatically renew on March 20, we further find
that the Respondent thereafter lawfully refused to bargain
for a successor contract and withdrew recognition from
the Union at the contract’s expiration. The parties stipu-
lated that, by April 29 the Respondent had received peti-
tions from a majority of unit employees indicating that
they no longer wanted to be represented by the Union.
There is neither evidence nor claim that the petitions
were invalid or tainted by Respondent’s conduct. Ac-
cordingly, we find that the petitions created a well-
supported good-faith doubt—which the Respondent
promptly raised to the Union—that the Union retained
majority support.13
Based on its good-faith doubt, we find, as in Burger
Pits, Inc., supra, that the Respondent was privileged to
inform the Union on April 29 that it would not bargain
for a successor agreement. As the Board stated in Bur-
ger Pits, id. at 1001:
It is also established that within a reasonable time prior
to the expiration date of a collective-bargaining agree-
ment, an employer who establishes a good-faith doubt
of a union’s majority status may announce that it does
not intend to negotiate a new agreement.

which the Board subsequently limited to their precise facts. See, e.g.,
Century Wine & Spirits, supra; Teamsters Local 507 (Klein News), supra
13 As stated in Auciello Iron Works, 317 NLRB 364, 368 (1995),
“the existence of a good-faith doubt is a question of fact. The employer
has the burden of proving that it had a reasonable, good-faith belief that
the union no longer represented a majority of the bargaining unit em-
ployees.” Further, that good-faith doubt must be based on objective
considerations. Laidlaw Waste Systems, 307 NLRB 1211 (1992). We
find that the Respondent has met this burden, and no party contends
otherwise.
See also Auciello Iron Works, supra, 317 NLRB at 368.
We similarly conclude that, based on this good-faith
doubt, the Respondent was privileged to withdraw recog-
nition from the Union after the contract expired. Thus,
after contract expiration, there is a rebuttable presumption
that an incumbent union represents a majority of unit em-
ployees. See, e.g., Master Slack Corp., 271 NLRB 78, 84
(1984). That presumption can be rebutted, where, as here,
an employer raises a good-faith doubt of the union’s con-
tinued majority support. Burger Pits, Inc., supra.
Accordingly, we shall dismiss the complaint in its
entirety.
CONCLUSIONS OF LAW
1. The Respondent, Bridgestone/Firestone, Inc., is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. Local 283, International Brotherhood of Teamsters,
AFL–CIO is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent has not violated the Act as alleged
in the complaint.
ORDER
The complaint is dismissed.

MEMBER FOX, dissenting.
Contrary to the majority, I would find that the Respon-
dent’s refusal to bargain with the Union for a successor
to the 1994–1997 collective-bargaining agreement and its
subsequent withdrawal of recognition from the Union at
that agreement’s expiration violated Section 8(a)(5) and
(1) of the Act. Unlike my colleagues, I would find that
the entire 1994–1997 collective-bargaining agreement
automatically renewed on the agreement’s expiration
because neither party sent a notice of termination pursu-
ant to section 1 of article XXI of the agreement. As ex-
plained below, I do not regard the Union’s notice of a
desire to negotiate changes or revisions, sent pursuant to
section 2 of article XXI, as the equivalent of a termina-
tion notice. Rather, by the express terms of section 2, the
Union’s notice permitted the parties to resort to all lawful
economic recourse during negotiations, but also indi-
cated the Union’s intent to continue the agreement in
effect unless and until modifications were agreed on. In
the absence of either agreement by the parties on modifi-
cations or the sending of a section 1 termination notice
on or before April 6, 1997, the agreement was in effect
before the contract expiration date by virtue of the terms
of section 2, and in effect after that date by virtue of the
automatic renewal provision of section 1. Accordingly,
under the contract bar doctrine, the Union enjoyed an
irrebuttable presumption of majority status on April 29,
when the Respondent advised the Union of its good-faith
doubt of the Union’s majority support, and on June 6,
when it actually withdrew recognition. See Auciello Iron
Works, Inc., 317 NLRB 364, 367 (1995), enfd. 60 F.3d
25 (1st Cir. 1995), affd. 517 U.S. 781(1996).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 210
The basic principles underlying my analysis of this
case are set forth in the line of decisions, discussed at
some length by the majority, in which the Board has con-
sidered the effect of a notice of intent to negotiate modi-
fications to an agreement on termination or renewal of
the agreement’s terms. As the majority states, these
cases can be read together to hold that, in the absence of
evidence of a contrary intent by the parties, a timely re-
quest to negotiate changes to a contract, received by the
other party prior to the automatic renewal date of the
agreement, will be found to have prevented the contract
from automatically renewing, at least as to provisions
which the party is seeking to change. See South Texas
Chapter, AGC, 190 NLRB 383 (1971); Speedrack, Inc.,
293 NLRB 1054, 1054–1056 (1989); Hydrologics, Inc.,
293 NLRB 1060, 1062 (1989); and Teamsters Local 507
(Klein News), 306 NLRB 118, 135–136 (1992). It is
important to note, however, as the Board has acknowl-
edged, that this is “only a principle of contract interpreta-
tion” and that the parties can preclude such a result by
agreeing to “clear contract language manifesting a con-
trary intent.” Century Wine & Spirits, 304 NLRB 338,
342 (1991), vacated on other grounds 317 NLRB 1139
(1995). Accord: Electrical Workers IBEW Local 47 v.
NLRB, 927 F.2d 635, 643–644 (D.C. Cir. 1991), affg.
Speedrack, supra. Thus, the question before us is simply
whether the parties’ contract, and their conduct pursuant
to the contract, manifest such a contrary intent. It seems
plain to me that they do.
The provisions relating to termination of the agreement
are set forth in article XXI. Section 1 of the article states
that the agreement shall be in effect from June 6, 1994, to
and including June 5, 1997, “and shall continue in full
force and effect from year to year thereafter unless written
notice of desire to cancel or terminate the Agreement is
served by either party upon the other at least sixty (60) days
prior to date of expiration.” Section 2 of the article states:
Where no such cancellation or termination notice is
served and the parties desire to continue said Agree-
ment, but also desire to negotiate changes or revisions
in this Agreement, either party may serve upon the
other a notice, at least sixty (60) days prior to June 5,
1997, or June 5 of any subsequent contract year, advis-
ing that such party desires to continue this Agreement,
but also desires to revise or change terms of conditions
of such Agreement. The respective parties shall be
permitted all lawful economic recourse to support their
request for revisions if the parties fail to agree thereon.
[Emphasis added.]
It is undisputed that no notice of desire to cancel or ter-
minate the agreement was provided by either party pursu-
ant to section 1, and that the only notice provided by either
party was provided by the Union, pursuant to section 2. It
is also undisputed that in its section 2 notice, provided by
letter dated March 20, 1997, not only did the Union not
state that it desired to cancel or terminate the agreement, it
in fact stated precisely the opposite, i.e., that it desired to
continue the agreement. By nevertheless interpreting the
section 2 notice as the equivalent of a section 1 notice of
termination, my colleagues not only ignore the Union’s
clear intent as expressed in the May 20, 1977, but also
refuse to give effect to procedures that were freely negoti-
ated by the parties and incorporated in their agreement in
clear, express terms.
Contrary to the majority, I find that the contractual
language at issue in this case serves the same contractual
purpose as the language in KCW Furniture Co., 247
NLRB 541 (1980), enfd. 634 F.2 436 (9th Cir. 1980);
and Robert A. Barnes, Inc., 268 NLRB 343 (1984). And
for the reasons stated by Member Cracraft in her well-
reasoned dissent in Century Wine & Spirits, supra, I re-
ject the majority’s efforts to distinguish those cases be-
cause of the nonsensical consequences of their analysis.
Section 1 of the instant agreement clearly prescribes the
exclusive method for terminating the agreement; and the
language in section 2 does not state, or for that matter rea-
sonably imply, that a notice of desire to negotiate changes or
modifications would operate to forestall automatic renewal
of the agreement, or any of its provisions, past the agree-
ment’s expiration date. Thus, while the instant agreement
lacks language exactly matching that found in KCW—that a
“Notice of Opening” (comparable to sec. 2 in the instant
case) is not intended by the parties as a termination of the
agreement—the unmistakable import of sections 1 and 2,
when read together, is that only a section 1 notice can ter-
minate the agreement and that a section 2 notice cannot.
Nothing in the language or history of the two provisions
indicates that a section 2 notice of intent to “continue” the
agreement is to be treated as the equivalent of a section 1
notice of intent to terminate.
As Member Cracraft pointed out with respect to simi-
lar language at issue in Century Wines, the majority’s
interpretation of section 2 would make the inclusion of
section 1 pointless. Under normal principles of contract
law, where an agreement contains a provision requiring
notice by a certain date of a party’s desire to terminate
the agreement, failure to give such notice will cause the
agreement to be automatically renewed. Yet under my
colleagues’ interpretation a party would no longer be
able to rely on the absence of a section 1 notice from the
other party as meaning that the agreement had renewed.
As neither party gave notice to terminate the agreement
under section 1, and as the Union’s section 2 notice did not
terminate the agreement, or any provision of the agreement,
I would find that the agreement remained in effect, and as a
result the Respondent violated Section 8(a)(5) and (1) of the
Act by refusing to bargain with the Union and unlawfully
withdrawing recognition.