Century Wine & Spirits

National Labor Relations Board - Board Decisions

Aug 26, 1991

304 N.L.R.B. 338 (N.L.R.B. 1991)

338
304 NLRB No. 69
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondents have excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
2 We adopt the judge’s conclusion that the Respondents violated Sec. 8(a)(1)
of the Act by interrogating employment applicant Richard Maule concerning
his union membership. The judge concluded, based on his dismissal of the
other unfair labor practice allegations, that this interrogation was an isolated
occurrence which did not warrant a remedial order. However, in light of the
additional violations we find below, we conclude that a remedial order for the
unlawful interrogation is warranted.
We adopt the judge’s finding that Respondent Standard did not violate Sec.
8(a)(5) and (1) of the Act under the circumstances here by unilaterally reduc-
ing its workweek from 5 days to 4 days for certain Wilmington unit employ-
ees. The judge dismissed this allegation in part because of his conclusion that
the contract had terminated, and as the Acting General Counsel neither alleged
nor proved the absence of impasse, the Respondents had lawfully implemented
its final offer, which included language stating that a 5-day workweek was not
guaranteed. Because, as discussed infra, we reverse the judge’s finding that the
contract terminated and that implementation of Respondent Distributors’ final
offer was lawful, we rely only on the judge’s alternative ground for dismissing
this allegation. Specifically, we find that the parties never interpreted the con-
tract as a guarantee of a 5-day workweek. Standard’s Dover facility normally
operated on a 4-day workweek, and during slow periods at its normally 5-day
Wilmington facility Standard would sometimes notify employees not to report
to work on Mondays. The Union never objected to these practices. When the
Union learned that Standard had announced that certain Wilmington employees
would work a 4-day workweek, the Union did not request bargaining over the
matter. We agree with the judge that under these circumstances Respondent
Standard did not violate the Act by its unilateral implementation of a revised
workweek for certain Wilmington employees.
NKS Distributors, Inc., d/b/a Century Wine and
Spirits and General Teamsters Local Union No.
326, a/w International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers
of America, AFL–CIO
Delaware Beverage Co. and General Teamsters
Local Union No. 326, a/w International Broth-
erhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, AFL–CIO
Eugene M. Tigani, Steven D. Tigani, J. Paul Tigani,
J. Vincent Tigani, Jr., F. Gregory Tigani, J.
Paul Tigani (U/W of Joseph P. Tigani), and
Francis G. Tigani, a Partnership d/b/a Stand-
ard Distributing Co. and General Teamsters
Local Union No. 326, a/w International Broth-
erhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, AFL–CIO
N.K.S. Distributors, Inc. and General Teamsters
Local Union No. 326, a/w International Broth-
erhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, AFL–CIO
West Coast Industrial Relations Association, Inc.
and General Teamsters Local Union No. 326,
a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, AFL–CIO. Cases 4–CA–17616–1, 4–
CA–17616–2, 4–CA–17616–3, 4–CA–17888, 4–
CA–17616–4, 4–CA–17889, 4–CA–17616–1, 4–
CA–17616–2, 4–CA–17616–3, and 4–CA–17616–
4
August 26, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
On September 20, 1989, Administrative Law Judge
Marvin Roth issued the attached decision. The Acting
General Counsel and the Charging Party filed excep-
tions and supporting briefs. The Respondents filed an
answering brief, cross-exceptions, and a supporting
brief. The Charging Party filed an opposition to the
Respondents’ cross-exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and record in
light of the exceptions, cross-exceptions, and briefs
and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions2 only to the extent consistent
with this Decision and Order.
The judge found, inter alia, that the Respondent Dis-
tributors did not violate Section 8(a)(5) and (1) of the
Act as alleged by repudiating their collective-bargain-
ing agreements with the Union and implementing new
terms and conditions of employment for unit employ-
ees, and that Respondent NKS did not violate Section
8(a)(5) and (1) of the Act when it unilaterally insti-
tuted an employee stock purchase plan. We disagree
with the judge on both issues. As set forth in section
I below, we find that the Distributors violated Section
8(a)(5) and (1) at least insofar as they breached any
contractual provisions that were not reopened in the
negotiations for contract modifications. We further ex-
plain why a remand is necessary for resolving certain
related questions. Our grounds for reversing the
judge’s dismissal of the allegation regarding NKS’ im-
plementation of a stock purchase plan are set forth in
section II.
I. RESPONDENT DISTRIBUTORS’ REPUDIATION
OF CONTRACTS AND SUBSEQUENT
UNILATERAL CHANGES
A. Factual Findings
The Respondents Century Wine and Spirits (Cen-
tury); Delaware Beverage Co. (Delaware Beverage);
Standard Distributing Company (Standard); and N.K.S.
Distributors (NKS) (collectively the Distributors) are
engaged in the wholesale distribution of alcoholic bev-
erages and have facilities at various locations in the
State of Delaware. Respondent West Coast is a labor
relations consultant and provided services as the Dis-
tributors’ agent, within the meaning of Section 2(13)
of the Act.
339CENTURY WINE & SPIRITS
3 These individual, essentially identical 1985–1988 contracts will be referred
to collectively as the contract. 4 All dates are 1988 unless otherwise indicated.
The Union has had a bargaining relationship with
the Distributors for at least 20 years. In 1982 and
again in 1985, the Distributors negotiated individual
contracts with the Union, through coordinated bargain-
ing. The most recent agreements, for the period April
1, 1985, through March 31, 1988, are separate, self-
contained contracts with most provisions identical for
all Distributors.3 The contract contains the following
provisions with respect to duration:
ARTICLE 49
DURATION
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 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 the
date of expiration.
Section 2.
Where no such cancellation or termination 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 March 31, 1988 or March 31st of
any subsequent contract year, advising that such
party desires to revise or change terms of such
Agreement.
Section 3.
The Local Union as representative of the em-
ployees or the signator Employer shall each have
the right to unilaterally determine when to engage
in economic recourse (strike or lockout) on or
after April 1, 1988 unless agreed to the contrary.
Section 4.
Revisions agreed upon or ordered shall be ef-
fective as of April 1, 1988 or April 1st of any
subsequent contract year.
Section 5.
In the event of an inadvertent failure by either
party to give the notice set forth in Sections 1 and
2 of this Article, such party may give notice at
any time prior to the termination or automatic re-
newal date of this Agreement. If a notice is given
in accordance with the provisions of this Section,
the expiration date of this Agreement shall be the
sixty-first (61st) day following such notice.
The language of article 49 was taken from the
Teamsters’ National Master Freight Agreement which,
prior to 1982, covered the Distributors’ employees as
part of a multiemployer bargaining unit.
Negotiations for the most recent contract began
when the Union, through its National Freight Industry
Negotiating Committee, sent a letter dated October 30,
1984, to the Distributors notifying them of the Union’s
‘‘desire to revise or change the terms and conditions
of such Agreement . . . for the contract period com-
mencing April 1, 1985, as provided in [the Duration
Article], Section 2, thereof.’’ By letter dated November
28, 1984, the Distributors notified the Union to
‘‘Please consider this letter as notice of termination of
the agreement.’’ The parties then agreed to a contract
extension while negotiations continued beyond the
April 1, 1985 expiration date, and eventually agreed on
a new contract with the language of article 49 included
as shown above.
The Union initiated the most recent negotiations by
sending the Distributors letters dated January 4, 1988,4
stating the following:
Please accept this letter as notice of our intent
to change and/or modify the current labor agree-
ment which expires on 3/31/88.
This notice is being sent as provided for in the
agreement and if there are any questions, please
call this office.
The Distributors responded with letters to the Union
stating that they would be represented by Chris Thom-
as of Respondent West Coast, and inviting the Union
to contact Thomas as soon as possible in order to
avoid bargaining beyond the expiration date. Negotia-
tions commenced on March 4 with Thomas negotiating
for the Distributors and Union President Michael
Ciabottoni and Attorney Hugh Beins negotiating for
the Union.
Each side submitted initial contract proposals which
covered a wide range of matters, including wages and
fringe benefits. At the March 4 and March 8 sessions,
Thomas said that the Distributors would not agree to
an extension of the existing contract beyond the con-
tract’s expiration date. At the fifth negotiating session
on March 29, the Distributors presented a counter-
proposal, the following portion of which Thomas read
aloud: ‘‘With respect to the expiration of the contract
the employers will not agree to either an informal or
formal extension of the contract. We suggest the Union
consult with their counsel as to the legal significance
of this position’’ (emphasis in original). When asked
what this meant, Thomas stated that the union-security,
checkoff, and arbitration obligations of the contract
would die with the expiration of the contract. Beins re-
plied that Thomas was wrong, but he did not offer an
340 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Ciabattoni testified that according to his and Beins’ interpretation of the
contract, the contract would automatically renew on April 1 for an additional
year because neither party gave notice of desire ‘‘to cancel or terminate’’ the
contract pursuant to sec. 1 of the duration article, except that absent agreement
of the parties, they would by reason of sec. 3 be free to engage in a strike
or lockout on or after that date. Ciabattoni and Beins agreed not to disclose
their interpretation of the contract to anyone unless and until the Union filed
unfair labor practice charges, except that Beins would disclose it to Thomas
if Thomas asked him to.
6 Thomas took this same position with respect to the Union’s requests to
arbitrate other matters.
explanation for why Thomas was wrong, and Thomas
did not ask for an explanation.5
By letter dated April 13, Thomas informed Beins
that as of April 17, the Distributors would no longer
honor the contractual union-security and checkoff pro-
visions, but that they would continue to abide by all
other terms and conditions of ‘‘the expired contract,’’
subject to recent Board decisions regarding the scope
of an employer’s postexpiration obligation to arbitrate
grievances. The parties met again on April 19 and
Beins asserted that the Distributors’ refusal to honor
the union-security and checkoff provisions was a
breach of contract and an unfair labor practice.
The Distributors stopped checking off dues some-
time in late April. On April 28 the Union filed griev-
ances with the Distributors, alleging unilateral changes
in terms and conditions of employment, including the
failure to abide by the union-security and checkoff pro-
visions. The Distributors took the position that the con-
tract expired on April 1, the parties had not agreed to
extend the contract beyond that date, and therefore the
Distributors would refuse to arbitrate these grievances,
or any other post-April 1 grievances which did not
ripen or accrue prior to April 1.6 Beins responded in
a May 20 letter to Thomas asserting, inter alia, that the
Distributors had agreed both before and after the expi-
ration date to continue the contract in effect and that
there was no impasse. By letter dated May 26, Thomas
responded to Beins, asserting that he disagreed with
Beins’ contract extension theory and with Beins’ sug-
gestion that there was no impasse in negotiations.
Thomas asserted that an impasse had been reached.
Thereafter, the parties maintained their respective
positions and on September 19 the Distributors unilat-
erally implemented their final offer, which provided
for numerous contractual changes including reduced
wage rates, deletion of COLAs, changed health and
pension coverage, the addition of a management-rights
clause, and a progressive discipline policy. Also on
September 19 Respondent Standard unilaterally imple-
mented a retirement plan. On December 1 the Distribu-
tors unilaterally implemented health insurance plans.
On January 1, 1989, Respondent NKS unilaterally im-
plemented a profit-sharing plan.
The Union filed its initial unfair labor practice
charge in this proceeding on September 26, alleging,
inter alia, that the Distributors had repudiated the con-
tract and implemented new terms and conditions of
employment. On December 8, Thomas wrote to
Ciabattoni that the Union had apparently raised a ques-
tion with the Board about whether the Distributors had
‘‘in fact terminated or cancelled the contract as re-
quired by Article 49 of the expired agreement.’’
Thomas asserted that at the first bargaining session on
March 4, in response to a question posed by Beins, he
had stated that the Distributors would not agree to ex-
tend the contract beyond its March 31 termination, and
that this position was subsequently confirmed in writ-
ing to the Union at the March 29 negotiating session.
Thomas went on to state in this letter that ‘‘con-
sequently,’’ in accordance with article 49, section 5,
the Distributors would agree to deduct for April and
May any union dues or fees provided for in the union-
security and checkoff provisions of the contract.
Thomas wrote to Beins again on January 17, 1989.
He asserted that it was the Distributors’ position that
the contract had been terminated pursuant to the writ-
ten notice Thomas gave at the March 29 negotiating
session, and thus by operation of section 5 the contract
expired on May 28. Thomas further stated that not-
withstanding the Distributors’ belief that the contract
expired on May 28, and in order to protect the Dis-
tributors’ rights, this January 17, 1989 letter was to
serve as a formal notice, ‘‘in accordance with Article
49, Section 1 of the collective bargaining agreements,’’
of the Distributors’ intent to terminate the contract as
of April 1, 1989, ‘‘if in fact any such agreements pres-
ently exist, or are subsequently found by the Board or
the courts to exist at the present time.’’ Thomas reiter-
ated that this letter was not to be construed as an aban-
donment of the Distributors’ position that the contract
actually expired on May 28, 1988, i.e., as a result of
the Distributors’ asserted written notice under section
5, provided to the Union at the March 29 negotiating
session.
As noted above, the contract provides that a party
may give notice under section 5 in the event of an in-
advertent failure by such party to give notice under
section 1 at least 60 days prior to the date of expira-
tion. Thomas testified that in the 1988 negotiations he
had not mistakenly failed to give notice under article
49, section 1.
B. The Judge’s Conclusions
The judge found that the Distributors did not violate
the Act by failing to abide by the terms of the 1985–
1988 contract after March 31, 1988. More specifically,
the judge found that the contract terminated on April
1, and thus the Distributors were free to cease giving
effect to the union-security, checkoff, and arbitration
provisions of the contract. Further, the judge found
that, as the Acting General Counsel had not alleged
and had not proven that the parties were not at an im-
341CENTURY WINE & SPIRITS
passe in bargaining when the Distributors unilaterally
implemented their final offer in September, the Acting
General Counsel failed to prove that such unilateral
implementations were unlawful.
C. Discussion
The judge found that although no party gave written
notice of desire to cancel or terminate the contract
under article 49, section 1, this did not automatically
result in the contract’s being continued in full force
and effect past March 31. More specifically, the judge
found that the section 1 provisions were not the exclu-
sive contractual method for canceling or terminating
the contract. He found that section 2 also provided the
parties with a contractual method for canceling or ter-
minating the contract, and that the contract was in this
instance terminated pursuant to section 2.
In finding that the contract was not automatically
continued in effect under section 1 when neither party
served a section 1 notice of desire to cancel or termi-
nate the contract, the judge found that section 2 estab-
lished a precondition for continuation of the contract—
i.e., the mutual desire of both parties to continue the
contract in effect, subject to any particular changes or
revisions which the parties might negotiate. Thus, the
judge found that the parties could also effect a can-
cellation or termination of the contract under section 2
by (1) not having a mutual ‘‘desire to continue’’ the
contract, and by (2) either party’s expressing a desire
to revise or change the contract.
Citing Paterson Parchment Paper Co. v. Paper-
makers, 191 F.2d 252 (3d Cir. 1951); Oakland Press
Co., 229 NLRB 476 (1977), enfd. 735 F.2d 969 (6th
Cir. 1984); Champaign County Contractors Assn., 210
NLRB 467 (1974); New Jersey Esso Employees Assn.
(Exxon Co.), 275 NLRB 216 (1985); and South Texas
Chapter, AGC, 190 NLRB 383 (1971), the judge con-
cluded that a timely notice of a desire to negotiate
changes or revisions in the contract operates to termi-
nate the contract as of its expiration date, absent a con-
trary agreement by the parties. The judge distinguished
the principal cases relied on by the Acting General
Counsel, KCW Furniture Co., 247 NLRB 541 (1980),
enfd. 634 F.2d 436 (9th Cir. 1980); and Robert A.
Barnes, Inc., 268 NLRB 343 (1983), on the basis that
the contract clauses at issue in those cases included
language specifically providing that a ‘‘Notice of
Opening’’ could not operate to terminate the contract,
and that only a ‘‘Notice of Termination’’ or a mutual
written agreement of the parties could serve to termi-
nate the contract.
Applying his interpretation of the contract and the
above precedents to the situation at hand, the judge
found that the actions of the parties operated to termi-
nate the contract under section 2. In making this find-
ing, the judge concluded that because the Distributors
had stated from the start of negotiations that they
would not agree to any extension of the contract, the
requirement of mutual desire for continuation of the
contract, which the judge perceived was a condition
for continuing the contract under section 2, was not
met, and therefore the Union’s timely section 2 notice
of its desire to change or modify the contract actually
served to terminate the contract effective April 1. Ac-
cordingly, although the Distributors ceased giving ef-
fect to the contractual union-security and checkoff pro-
visions, refused to arbitrate grievances arising after
March 31, and implemented their final offer in Sep-
tember, the judge found that the Distributors were free
to do so in the absence of a contention or showing by
the Acting General Counsel that the parties were not
by then at impasse.
We agree with the judge that it is section 2 of article
49 that governs the question of the continuation vel
non of the contract after the March 31 expiration date.
Neither party gave a termination notice pursuant to
section 1, and, for reasons set forth below, we reject
the Distributors’ contention that on March 29 they
gave a notice under section 5 that caused the termi-
nation of the contract 60 days thereafter. We also dis-
agree with the judge’s conclusion that the Union’s Jan-
uary 4 notice to modify, pursuant to section 2, effec-
tively terminated the entire contract as of March 31.
Neither do we agree with the Union, however, that the
entire contract automatically renewed for another year
on that date. Rather, for reasons set forth below, we
construe section 2, read in the context of the entire ar-
ticle, as having the following effects on the parties’ ac-
tions: (1) the Union’s January 4 notice and subsequent
bargaining by the parties reopened the provisions spec-
ified by the parties in their proposals for modification;
(2) provisions that were not reopened for bargaining
automatically renewed for another year on March 31,
but (3) the reopened provisions did not automatically
renew but remained subject to modification through
the normal collective-bargaining process. Under this
view of article 49, as we further explain, the Respond-
ent can be found to have violated Section 8(a)(5) inso-
far as it breached any unreopened provisions between
March 31, 1988, and March 31, 1989, but it was free
to implement its own final proposals on reopened pro-
visions if the parties had previously bargained to im-
passe on those reopened items.
1. Neither party satisfied the express contractual re-
quirement for termination of the contract pursuant to
section 1 of Article 49 because neither party served the
other with a timely written notice of desire to cancel
or terminate the contract. Under section 5, however, a
party which intends to give a section 1 notice but inad-
vertently fails to do so ‘‘may give notice at any time
prior to the termination or automatic renewal date’’ of
the agreement. The agreement will then expire on the
342 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
61st day after such notice. The Distributors contend
that they gave such notice. We disagree.
First, the Distributors have failed to establish an es-
sential condition for a section 5 notice, i.e., proof that
it had intended, but inadvertently failed, to give a time-
ly section 1 notice. The Distributors put on no evi-
dence to show an attempt to serve a section 1 termi-
nation notice that went awry owing to some inattention
to the matter. Indeed, the testimony of the Distributors’
main witness on this issue is to the contrary. Thus, ne-
gotiator Thomas testified as follows: that he was re-
sponsible for serving article 49 notices on behalf of the
Distributors; that he did not give the Union any notice
under article 49, section 1; that he never advised the
Union that he had made a mistake in failing to give
appropriate written notice under article 49; and that he
did not in fact make a mistake in failing to give notice
under article 49.
Second, although the Distributors belatedly claimed
on December 8 and again on January 17, 1989, that
their March 29 counterproposal constituted a notice of
termination under section 5, it is clear from the record
that the Distributors manifested no such intent con-
cerning that counterproposal at the time they presented
it. When Thomas gave what the Respondent now
claims was a section 5 notice on March 29, he made
no reference to section 5. He simply explained that the
intended effect of such notice was that the union-secu-
rity, dues-checkoff, and arbitration obligations would
die with the expiration of the contract. More signifi-
cantly, while the express terms of section 5 state that
the effect of a section 5 notice is to extend the contract
to the 61st day following the date the section 5 notice
is given, the Distributors stopped honoring those obli-
gations in April, well in advance of the 61st day fol-
lowing the March 29 section 5 notice. It was not until
December 8, after the Union had filed its charge, that
the Distributors first claimed that the March 29 notice
was a section 5 notice of termination and that they
would accordingly honor the checkoff and arbitration
obligations retroactively for the previous April and
May. We conclude that the Distributors’ December 8
letter was an after-the-fact attempt to claim that the
March 29 counterproposal was a notice served under
section 5 of article 49. Thus, it is clear that neither the
intent nor the effect of the Distributors’ March 29 no-
tice was to terminate the contract pursuant to section
5. Because the parties did not invoke either of the pro-
visions governing contract termination, we find that the
contract did not terminate on March 31.
2. Having rejected the Distributors’ claim that they
gave a valid notice of termination under article 49, we
must next determine the effect of a notice that was in-
disputably given, i.e., the Union’s January 4 notice,
pursuant to section 2, to ‘‘change and/or modify the
current labor agreement which expires on 3/31/88.’’
We reject the Union’s contention that, because this
was the only article 49 notice given, the contract auto-
matically renewed in toto on the day after March 31.
Likewise, we reject the Distributors’ argument and the
judge’s finding that the section 2 notice resulted in the
contract’s complete termination on March 31. For the
following reasons, we construe section 2 of article 49
as a contract reopener clause under which provisions
opened up for renegotiation are effectively terminated,
but the contract renews for another year as to
unreopened provisions. In so construing the section,
we apply the principles set forth in Speedrack, Inc.,
293 NLRB 1054 (1989). Accord: Southern California
Edison Co., 295 NLRB 203 (1989), affd. sub nom.
Electrical Workers IBEW Local 47 v. NLRB, 927 F.2d
635, 644–645 (D.C. Cir. 1991).
a. In Speedrack, we held that an employer did not
violate Section 8(a)(5) and (1) of the Act when it uni-
laterally implemented its final offer on wages after in-
voking a midterm wage reopener provision of its con-
tract, fulfilling certain procedural requirements set out
in Section 8(d) of the Act, and bargaining to impasse
with the union. We found that the employer’s invoca-
tion of the wage reopener provision effected a termi-
nation of the wage provisions in the contract, thereby
entitling the employer to unilaterally implement its
final offer on wage modifications after impasse. We
predicated those holdings in Speedrack on policies un-
derlying Sections 8(a)(5) and 8(d) of the Act, which,
we concluded, warranted construing reopener provi-
sions so as to afford parties freedom of action in re-
opener negotiations and to avoid inappropriately ‘‘im-
posing conditions that would turn reopener bargaining
into little more than a charade that would barely dif-
ferentiate it from the kinds of discussion that may law-
fully occur even in the absence of a reopener.’’ Id., at
1055. This was only a principle of contract interpreta-
tion, however, and we acknowledged that parties could
preclude such a result by agreeing to clear contract
language manifesting a contrary intent. Id. at fn. 5. We
summarized the Speedrack principles as follows (id. at
1055–1056):
Thus, in cases involving terminated contract pro-
visions—whether terminated through a reopener
or terminated through the expiration of a con-
tract—we will assume, in the absence of evidence
of a contrary intent, that the parties intended to
reserve to themselves the freedom of action that
is a normal part of the collective-bargaining proc-
ess when contractual provisions governing the
matters on the bargaining table are not in effect.
This means that where the parties have not thus
constrained themselves, an employer who ob-
serves the procedural requirements of Section 8(d)
may implement a proposal on a reopened subject
after bargaining to impasse.
343CENTURY WINE & SPIRITS
7 See generally Laborers Trust Fund v. Advanced Lightweight Concrete Co.,
484 U.S. 539, 544 fn. 6 (1988), and cases there cited. Exceptions to the gen-
eral rule include union-security, dues-checkoff, and no-strike clauses, and arbi-
tration clauses for purposes other than resolving disputes arising under the ex-
pired contract. Indiana & Michigan Electric Co., 284 NLRB 53, 55, 60
(1987).
8 Because there is no evidence that the Union questioned the Distributors’
submission of its own proposals in these reopener negotiations, no issue con-
cerning the right of a party other than the one giving the section 2 notice to
submit proposals other than counterproposals is presented here.
9 Member Oviatt intimates no view on how he would decide the question
of the extent to which KCW and Robert Barnes continue to be viable after
Speedrack. Without suggesting how he would interpret contractual language
like that in KCW and Robert Barnes, Member Oviatt finds that, in any event,
the contractual language in KCW and Robert Barnes, as it related to the par-
ties’ intent with respect to termination of the contract, was plainly different
from that here.
We find that section 2 of the instant contract is a
reopener provision in that it allows the reopening of
provisions for modification through bargaining. We
further find that there is no manifestation of mutual in-
tent to place constraints on the freedoms normally en-
joyed by parties in collective bargaining. The reference
in the first sentence of section 2 to the parties’ ‘‘desire
to continue said Agreement,’’ in the absence of a ter-
mination notice, can easily be read as a desire to con-
tinue the agreement subject to ‘‘changes or revisions’’
in reopened provisions that result from the usual bar-
gaining process, i.e., changes that are either agreed on
by the parties or are implemented by a party after im-
passe. Indeed, section 3 of article 49 is consistent with
the view that the parties contemplated a process free
of constraints, because it provides that, absent an
agreement to the contrary, the Union is free to strike
and the Distributors are free to lock out after April 1.
This section obviously is intended to operate during
section 2 negotiations for modifications, since it would
be unnecessary if a section 1 contract termination no-
tice had been given. A section 1 notice would result
automatically in the lifting of the no strike/no lockout
clause after contract expiration on March 31.
We also find support for our construction in section
4 of the article. Under that provision, any agreed-upon
changes to contract terms are deemed retroactive in ef-
fect to April 1, the day after the March 31 contract ex-
piration date. This arrangement makes sense only if the
old contract did not renew for another year on the ex-
piration date as to reopened terms. Under our construc-
tion of article 49, in light of statutory principles under
section 8(a)(5) of the Act, the terms and conditions
embodied in the various reopened provisions would,
with few exceptions, continue in effect after contract
expiration until the parties reached either agreement or
impasse.7 In the absence of renewed-for-a-year con-
tract provisions, there is no inconsistency in a retro-
active alteration of the status quo pursuant to section
4.
Because we find Speedrack applicable to this case,
and because we see no language in the contract clearly
prohibiting the Distributors from implementing a final
offer after impasse is reached on reopened provisions,
we find that the Union’s invocation of section 2 re-
sulted in the termination of provisions on which the
parties proposed modifications prior to the contract ex-
piration date.8 Accordingly, we conclude, consistent
with Speedrack, that the Distributors were free to im-
plement their proposals on reopened provisions if im-
passe was reached.
b. In concluding that Speedrack is inapplicable here,
our dissenting colleague makes essentially two argu-
ments. She first contends, as do the General Counsel
and the Union, that this case is, instead, controlled by
KCW Furniture Co., 247 NLRB 541, enfd. 634 F.2d
436 (9th Cir. 1980); and Robert A. Barnes, Inc., 268
NLRB 343 (1983), cases involving identical contract
duration/renewal clauses in which the Board held that
the respondent employers acted unlawfully in imple-
menting final proposals in bargaining that followed a
notice of opening, as opposed to a notice of termi-
nation. Second, she argues that our reading of section
2 of the duration article at issue here renders section
1 of that article meaningless. We disagree with her on
both points.
In Speedrack, the Board expressly distinguished
KCW Furniture (and, by necessary implication,
Barnes) on the ground that in KCW the duration clause
expressly provided that a notice of opening could not
be construed as termination. 293 NLRB 1054 at fn. 12.
The clause stated in pertinent part: ‘‘‘Notice of Open-
ing’ is in nowise intended by the parties as a termi-
nation of nor shall it in anywise be construed as a ter-
mination of this Agreement . . . nor as forestalling
automatic renewal as herein provided.’’ 247 NLRB at
543. There is no language in article 49 or elsewhere
in the agreement at issue in the present case that re-
sembles that express limitation on a reopening notice.
Possible implications are simply not equivalent to ex-
press language.9 Our colleague’s argument that our in-
terpretation of the contract language renders section 1
meaningless is based on the assumption that we read
section 2 as contemplating the possible reopening and
alteration of every single clause in the entire agree-
ment. This would mean, she asserts, that a party could
achieve the same result with a section 2 notice that it
could obtain with a section 1 notice. Although that is
theoretically possible, it is not our view of the intent
of the parties regarding section 2. We believe they
contemplated using section 2 only when planning on
modifications (and concomitant opening) of parts of
the agreement. If a party sought total contract termi-
nation, it would obviously give a section 1 notice. This
case does not confront us with an attempt to use a sec-
tion 2 notice in the manner described by our colleague
to forestall the renewal of any contract provision what-
soever, and nothing we say here would require us to
344 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 The FMCS Form 7 is employed to satisfy requirements of Sec. 8(d) of
the Act that no party to a collective-bargaining agreement ‘‘shall terminate or
modify’’ it unless ‘‘the party desiring such termination or modification’’ has
(1) served on the other party to the contract a written notice of the proposed
termination or modification 60 days prior to the expiration date of the contract
and (2) notified the FMCS within 30 days after giving the foregoing notice
that a dispute exists, if no agreement has been reached by that time.
11 It is also noteworthy that under the duration clause in Champaign, notices
to modify and notices to terminate were given equal status as exceptions to
the provision calling for year-to-year renewals of the contract after the original
expiration date, and thus it could reasonably be read as providing that either
type of notice would forestall renewal. In pertinent part the clause provided
that the agreement would ‘‘continue in force from year to year’’ after the
original expiration date ‘‘except that by written notice given by either party
hold in any future case that article 49 or comparable
contract clauses must be read as permitting such a re-
sult.
c. Our reading of section 2 as forestalling the auto-
matic renewal of some (but less than all) of the con-
tract provisions also, as noted above, puts us in dis-
agreement with the judge’s finding that section 2 pro-
vides the parties with an alternative method to section
1 for terminating the entire agreement. Section 2
comes into effect only when neither party has served
a section 1 termination notice and therefore the parties
do not desire automatic termination of the contract on
the expiration date, but they do wish to reopen and re-
negotiate particular provisions. Section 2 does not ad-
dress termination of the entire contract. The exclusive
contractual provisions governing cancellation or termi-
nation of the contract (as opposed to cancellation or
termination of certain contractual terms) can be found
in section 1 (or section 5 when there has been an inad-
vertent failure to give a section 1 notice).
The judge interpreted the phrase ‘‘and the parties
desire to continue said Agreement’’ in section 2 as es-
tablishing a condition or requirement that both parties
must actually desire continuation of the contract in
order that a section 2 notice of desire to revise or
change the contract not have the effect of canceling or
terminating it in toto. A reading of the full phrase in-
troducing section 2, ‘‘Where no such [i.e., section 1]
cancellation or termination is served and the parties de-
sire to continue said Agreement but also desire to ne-
gotiate changes or revisions in this Agreement’’ makes
it clear to us that the narrower particular phrase in
question does not establish a condition or requirement
of mutual desire for continuation of the contract, but
rather describes the reasonably inferred circumstance
resulting from an absence of an expressed desire under
section 1 by either party to cancel the contract. Thus,
we find that the section 2 phrase in question is most
reasonably interpreted as conveying the sense that
where no section 1 notice of cancellation or termi-
nation is served and the parties therefore desire that
the contract continue in effect, they may nevertheless
reopen particular provisions of the contract and nego-
tiate changes or revisions to those contractual provi-
sions.
We therefore find that a mutual desire of the parties
to continue the contract was not a prerequisite to an
effective section 2 notice by the Union of its desire to
revise or change the terms of the contract, and that the
Union’s January 4 notice of its intent to change or
modify the contract did not operate to terminate or
cancel the entire contract, but rather operated only to
terminate certain provisions of the contract.
The five cases relied on by the judge in support of
his interpretation of the contract are distinguishable. In
two of them, Paterson v. Papermakers, supra, and
Oakland Press, supra, the contract duration clauses
provided either for a notice to ‘‘terminate’’ (Paterson,
191 F.2d at 253) or a notice to ‘‘cancel or terminate’’
(Oakland Press, 229 NLRB at 478); they contained no
references to notices to amend or modify the contracts.
The issue was simply whether letters from the unions
to the employers that referred to a desire to make
changes in the contract could reasonably be construed
as termination notices. Because notices to terminate
were the only notices contemplated by the agreements,
and because in Oakland Press a similar letter had been
treated by the parties in the past as the equivalent of
a termination notice, the holding in each case was that
the contracts did not automatically renew on their expi-
ration dates.
In New Jersey Esso Employees Assn., supra, Cham-
paign County Contractors Assn., supra, and South
Texas Chapter, AGC, supra, the duration clauses in-
cluded references to notices to modify as well as to
notices to terminate, although the references were not
placed in separate numbered sections as is the case
here. An issue in each case was whether the commu-
nications sent by the unions constituted termination no-
tices. The decisions in Champaign County and South
Texas Chapter were later aptly described by the Board
in Oakland Press as cases in which ‘‘the Board looked
through form to substance and found sufficient compli-
ance with the termination clause to foreclose renewal.’’
229 NLRB at 480. The holding in New Jersey Esso
could be similarly characterized. There the Board held
that a letter stating that ‘‘the agreement expires on [the
specified date]’’ and that the Union desired to meet
‘‘in order to negotiate a new contract’’ constituted no-
tice ‘‘in the most clear and precise terms imaginable’’
that the Union intended to terminate the contract in
order to negotiate a new one, notwithstanding its fail-
ure to use the word ‘‘terminate.’’ 275 NLRB at 218.
In Champaign County, in finding that the union’s
transmission of a copy of the Federal Mediation and
Conciliation Service (FMCS) Form 7 sufficed as a no-
tice of termination,10 the Board relied on (1) past prac-
tice in which such a form was invariably sent when
termination was intended and (2) the failure of the
contract to specify any particular format for the notice.
210 NLRB at 470.11 In South Texas Chapter, the
345CENTURY WINE & SPIRITS
at least sixty (60) days, but not more than ninety (90) days, prior to July 24th
of any year [after the 1973 original expiration date], either party may notify
the other of its desire to amend, modify, or terminate this agreement.’’ 210
NLRB at 468 (emphasis added).
12 We reject the Distributors’ argument in their cross-exceptions that, on the
basis of past practice, the Union’s transmission of a sec. 2 notice and a notice
to the FMCS could reasonably be construed as a notice to terminate. In the
first place, the past practice is equivocal and cuts both ways. Thus, while the
Union’s action in securing a 4-day contract extension in 1982 might suggest
that the Union understood its sec. 2 notice to have terminated the contract
upon its specified expiration date, a subsequent dispute over the viability of
a postexpiration grievance for which no resolution is shown in this record
somewhat obscures the significance of that action. As for the 1985 negotia-
tions, if a sec. 2 notice, together with an FMCS notice was tantamount to a
notice to terminate the entire agreement upon contract expiration, it is difficult
to understand why the Distributors found it necessary to send a sec. 1 notice
after the Union had sent a sec. 2 notice. These circumstances are clearly dis-
tinguishable from those in Champaign County Contractors, supra, in which the
past practice relied on was unequivocal and was a practice of 10 years stand-
ing.
13 Citing Oakland Press Co., 266 NLRB 107 (1983), the Distributors note
that the elements of equitable estoppel are (1) lack of knowledge and the
means to obtain knowledge of the true facts; (2) good faith reliance on the
misleading conduct of the party to be estopped; and (3) detriment or prejudice
from such reliance.
Board found that a union letter constituted a notice to
terminate because it referred to a desire to ‘‘negotiate
for all matters pertaining to wages, hours, and all con-
ditions of employment’’; it was deemed a notice to ter-
minate because it was ‘‘a call for negotiation on all
terms’’ 190 NLRB at 386 (emphasis added).
In contrast to all those cases, the judge did not find
here that the Union’s January 4 letter announcing a de-
sire to ‘‘change and/or modify the current labor agree-
ment,’’ was a notice given in an effort to invoke the
contract’s termination provision. As noted above, he
found (with good reason) that the Union’s letter con-
stituted a notice under section 2 (notice of desire ‘‘to
revise or change terms’’), as opposed to a section 1
notice (‘‘notice of desire to cancel or terminate’’); and
his conclusion that the contract terminated in toto on
the expiration date rests entirely on his construction of
section 2.12 Because none of the cases he relied on ad-
dresses the question of what effect should be given a
notice to modify, as opposed to a notice to terminate,
none of them can reasonably be invoked to support his
resolution of the issue concerning the meaning of sec-
tion 2.
3. The Distributors alternatively argue that the com-
plaint should be dismissed because of the defenses of
acceptance, estoppel and laches. We do not find merit
to any of these alternative arguments.
In asserting their acceptance argument, the Distribu-
tors argue that the Union, by its conduct, accepted the
Distributors’ various notices, during bargaining, stating
that they would not agree to an extension of the con-
tract, as effectively discharging the Distributors from
any remaining notification requirements under section
1. More specifically, the Distributors contend that the
Union acknowledged that the contract expired on
March 31 and that by doing so the Union expressed
its acceptance that the Distributors’ bargaining notices
were sufficient to terminate the contract. Further, the
Distributors contend that by engaging in negotiations
over their proposals, the Union expressed a belief or
intention that the contracts were to be terminated rather
than amended.
We do not find that either the Union’s acknowledge-
ment of the expiration date or its negotiating over the
Distributors’ contract proposals indicates an acceptance
that the contract terminated on March 31. Acknowl-
edgement by the Union that the contract’s expiration
date was March 31 is not inconsistent with either the
Union’s theory that the entire contract renewed on
April 1, or with our finding that the contract renewed
except for the reopened provisions which the parties
introduced into negotiations pursuant to section 2 bar-
gaining. Under either theory, the Distributors’ refusal
to adhere to the union-security, checkoff, and arbitra-
tion obligations and their other unilateral changes may
have constituted a breach of contract and an unfair
labor practice.
Additionally, the fact that the Distributors submitted
proposals at the commencement of negotiations is not
an indication that the Union accepted the idea that the
contracts terminated on March 31. The Union ex-
pressed a desire to negotiate changes or revisions. As
negotiations involve two sides with opposing interests,
it is neither unusual nor significant that both sides
would come to the negotiating table with their own
proposals. This could occur in the event the parties
were negotiating on reopened subjects or in the event
the parties were negotiating an entire new contract to
replace a previously terminated contract.
The Distributors also alternatively argue that the al-
legation should be dismissed on the ground of equi-
table estoppel.13 In support of this theory, the Distribu-
tors contend that they had no way of knowing the
Union’s position regarding contract termination be-
cause Beins and Ciabattoni had a secret agreement to
withhold the information; that the Distributors relied in
good faith on the Union’s conduct consistent with their
view that the contract expired on March 31; and that
the Distributors took action to their detriment in reli-
ance on the Union’s conduct by implementing their
final offer, resulting in the instant proceeding.
We are not persuaded by the Distributors’ equitable
estoppel argument. The Union’s references to the con-
tract’s expiration date do not manifest a position by the
Union that the contract itself terminated on that date.
To the contrary, the Union consistently took the posi-
tion that any unilateral changes would be a breach of
contract and an unfair labor practice. The Union en-
gaged in no conduct inconsistent with this position and
the Distributors did not ask the Union for an expla-
nation of why it contended that such conduct con-
stituted an unfair labor practice. The Union had no
346 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 The Distributors appear implicitly to argue that the Union waived its right
to object to any failure by the Distributors to give effective notice of termi-
nation because the Union did not raise this claim until after negotiations had
commenced. We find this argument to be without merit.
15 Citing Truck & Dock Services, 272 NLRB 592, 596 (1984), the Distribu-
tors note that the doctrine of laches is recognized when there is unreasonable
delay in asserting a right under circumstances prejudicial to the adverse party
or where recovery would be prejudicial because of the time delay.
16 For example, if it is found that the Distributors’ refusal to arbitrate griev-
ances, to check off dues, and to honor the union-security provisions of the
contract constitute violations of Sec. 8(a)(5) and (1) of the Act, it must be de-
termined whether these violations tainted bargaining so as to preclude impasse.
Additionally, if it is found that the Distributors engaged in bad-faith conduct
during the negotiations, it must be determined whether such conduct precludes
a finding that the parties reached impasse.
17 The dates in this section of the decision are 1989, unless otherwise indi-
cated.
duty either to volunteer their legal theories or to re-
mind the Distributors that in order to terminate the
contract they must give proper notice of termination.
The Distributors did not lack the means to ascertain
that they had failed to give effective notice of desire
to cancel or terminate the contract. In addition to ask-
ing the Union for its explanation of its position, the
Distributors reasonably could have ascertained this in-
formation from the language of the contract itself.
Therefore, we find that because there was no inconsist-
ent or misleading conduct by the Union, and because
the Distributors did not lack the means to realize they
had not given effective notice of termination, a finding
of equitable estoppel is not warranted.14
Finally, the Distributors raise an alternative argu-
ment that the Union should be barred by the doctrine
of laches from asserting that the contract was automati-
cally continued.15 More specifically, the Distributors
argue that Ciabattoni and Beins secretly withheld their
belief that the agreements had not been properly termi-
nated. This argument, however, ignores the fact that
Union promptly put the Distributors on notice that they
considered the unilateral changes to be a breach of
contract and an unfair labor practice. The Distributors
never asked the Union why they considered the
changes to be unlawful, and there is no evidence that
the Union planned to withhold such information if the
Distributors had asked for it. We therefore do not find
that the Union’s assertions are barred by the doctrine
of laches.
4. In sum, the Distributors never gave proper notice
under section 1 or section 5 of a desire to cancel or
terminate the contract. The defenses of acceptance, es-
toppel and laches are not applicable. The Union’s no-
tice under section 2 of its desire to change or modify
the contract did not operate to cancel or terminate the
entire contract, but rather operated to reopen and effec-
tively terminate certain provisions of the contract. We
find, therefore, that the contract continued in effect be-
yond the March 31 expiration date, but under the prin-
ciples of Speedrack, Inc., supra, the Union’s section 2
notice of desire to negotiate changes or revisions in the
contract effected a termination of the contractual provi-
sions regulating the subjects that the parties introduced
into negotiations. Thus, if bargaining over reopened
subjects proceeded to impasse, the Distributors were
then permitted to implement their final offer regarding
those subjects.
Our decision in Speedrack did not issue until after
the instant hearing had closed. Further, the complaint
alleges that the Distributors repudiated the contract and
implemented new terms and conditions of employment,
not that the contract terminated and the new terms and
conditions were implemented prior to impasse. Con-
sequently, the impasse issue was not litigated. As the
impasse issue is a critical element of a Speedrack anal-
ysis, and as the parties did not focus on the existence
of impasse and the judge did not make a finding as to
whether the parties reached impasse, we find it nec-
essary to remand the case to the judge, with instruc-
tions to reopen the record, for the purpose of determin-
ing whether, under the contract as we have interpreted
it pursuant to contract construction principles set out in
Speedrack, the Distributors’ unilateral implementation
of new terms and conditions of employment after the
March 31 expiration date of the contract violated Sec-
tion 8(a)(5) and (1). Specifically, it must be determined
(1) what subjects were introduced into negotiations,
thereby effecting a termination of contract provisions
covering those reopened subjects; (2) whether the Dis-
tributors implemented any new terms or failed to honor
any continuing contractual provisions that were not re-
lated to the subjects opened up for bargaining; (3)
whether the parties had reached impasse in their nego-
tiations; and (4) if it is found that the Distributors un-
lawfully failed to continue to comply with unreopened
contractual provisions, whether this or any other con-
duct tainted the course of bargaining so as to preclude
impasse on the subjects that were reopened for bar-
gaining.16
Unilateral Institution of a Stock Purchase
Plan by NKS
In December 1988, the Anheuser-Busch Company
invited Respondent Distributor NKS to participate in a
stock purchase plan whereby NKS employees could
purchase Anheuser-Busch common stock through the
employee payroll deductions, with all brokerage and
administrative costs paid by Anheuser-Busch. NKS
agreed to enter the program.
NKS posted a notice to its employees dated January
6, 1989,17 announcing that NKS employees could at
their option participate in this stock purchase plan. The
notice stated that NKS would purchase the first share
of stock for each employee who enrolled in the plan.
The notice further stated that interested employees
were to complete and return their enrollment cards by
347CENTURY WINE & SPIRITS
January 20. NKS never gave notice of the plan to the
Union.
Union Business Agent Ciabattoni first became aware
of the plan on January 19, when a steward turned in
a copy of the notice and an enrollment card to the
Union’s office. Prior to January 19 at least nine em-
ployees signed enrollment cards, and several more em-
ployees did so on January 19. The initial enrollment
included 24 unit employees. NKS sent in its stock pur-
chase check on January 24, and employee payroll de-
ductions commenced on February 2. The Union never
communicated with NKS about this matter, and it took
no action concerning it other than to file the instant
unfair labor practice charge on February 9.
The judge found that the stock purchase plan con-
stituted a benefit and term and condition of employ-
ment that is a mandatory subject of bargaining, and
that NKS had a legal obligation to notify the Union of
its desire to institute the plan. The judge also found,
however, that NKS did not violate Section 8(a)(5) and
(1) of the Act because the Union ‘‘slumbered on it
rights’’ and did not request bargaining over the matter.
The judge stated that the Union, by not requesting bar-
gaining over the matter before NKS sent in the check
on January 24 or before the payroll deductions began
on February 2, had waived its right to bargain.
We agree with the judge that NKS was obligated to
notify the Union and provide it with an opportunity to
bargain about the stock purchase plan. We do not,
however, agree with the judge that the Union waived
its right to bargain over the matter. Rather, we find
that by the time the Union found out about the stock
purchase plan, it was a fait accompli.
It is incumbent on an employer who is going to im-
plement a term of employment, such as the instant em-
ployee stock purchase plan, to give timely notice to the
employees’ representative. To be timely, the notice
must be given sufficiently in advance of the implemen-
tation to allow the representative a reasonable oppor-
tunity to bargain. If the notice is provided too short a
time before implementation, then it amounts to nothing
more than a notice to the union of a fait accompli. If,
however, a union has sufficient notice of a con-
templated implementation and does not request bar-
gaining, it waives the right to bargain and no 8(a)(5)
violation flows from the employer’s unilateral imple-
mentation. What constitutes sufficient notice and what
constitutes a sufficient request to bargain depends on
all the circumstances of a case. Emhart Industries, 297
NLRB 215 and cases cited therein (1989).
Applying these principles to the situation at hand,
we note that the Union first learned of the employee
stock purchase plan almost two weeks after NKS had
notified the employees of the plan and had extended
them an invitation to participate in it. By the time the
Union found out about the plan, at least nine employ-
ees had already signed up, and on the day the Union
found out, several more did so as well. More signifi-
cantly, however, we find that NKS actually unilaterally
implemented this benefit plan not on January 24, when
NKS ultimately sent in its stock purchase check, but
much earlier, on January 6, when NKS first announced
this benefit plan to the employees and expressly gave
them the immediate opportunity to enroll in it—almost
2 weeks before the Union itself got word of it. Under
these circumstances, the absence of a Union request to
bargain is excused on the grounds that by the time the
Union found out about the plan, it was, vis-a-vis the
employees, a fait accompli. Migali Industries, 285
NLRB 820–821 (1987).
Accordingly, we find that Respondent NKS’ unilat-
eral implementation of the employee stock purchase
plan violated Section 8(a)(5) and (1) of the Act as al-
leged.
CONCLUSIONS OF LAW
1. By interrogating employment applicant Richard
Maule concerning his union membership, the Respond-
ents Distributors and West Coast violated Section
8(a)(1) of the Act.
2. By unilaterally implementing an employee stock
purchase plan without providing the Union with notice
and reasonable opportunity to bargain about it, the Re-
spondent Distributor NKS violated Section 8(a)(5) and
(1) of the Act.
REMEDY
Having found that the Respondents have engaged in
certain unfair labor practices, we shall order them to
cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act. Re-
spondent NKS shall be required, upon request, to bar-
gain in good faith with the Union concerning the im-
plementation of the employee stock purchase plan, and
if so requested by the Union, to rescind its unilateral
implementation of the plan. Our order should not be
construed as requiring Respondent NKS to rescind any
such benefits without a request from the Union. See
Vibra-Screw, Inc., 301 NLRB 371 fn. 2 (1991). The
Respondents shall be required to post the notices at-
tached hereto in the Appendix.
ORDER
The National Labor Relations Board orders that
A. The Respondent, N.K.S Distributors, Inc., d/b/a
Century Wine and Spirits, New Castle, Delaware, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating applicants for employment concern-
ing their union membership.
348 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
18 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations
Board.’’
19 See fn. 18, supra.
20 See fn. 18, supra.
21 See fn. 18, supra.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its New Castle, Delaware, facility copies
of the attached notice marked ‘‘Appendix A.’’18 Cop-
ies of the notice, on forms provided by the Regional
Director for Region 4, after being signed by the Re-
spondent’s authorized representative, shall be posted
by the Respondent immediately on receipt and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(b) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
B. The Respondent, Delaware Beverage Co., New
Castle Delaware, its officers, agents, successors, and
assigns, shall
1. Cease and Desist from
(a) Interrogating any applicants for employment con-
cerning their union membership.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its New Castle, Delaware facility copies
of the attached notice marked ‘‘Appendix B.’’19 Cop-
ies of the notice, on forms provided by the Regional
Director for Region 4, after being signed by the Re-
spondent’s authorized representative, shall be posted
by the Respondent immediately on receipt and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(b) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
C. The Respondent, Standard Distributing Co., Wil-
mington and Dover, Delaware, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Interrogating any applicants for employment con-
cerning their union membership.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its Wilmington and Dover facilities cop-
ies of the attached notice marked ‘‘Appendix C.’’20
Copies of the notice, on forms provided by the Re-
gional Director for Region 4, after being signed by the
Respondent’s authorized representative, shall be posted
by the Respondent immediately on receipt and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(b) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
D. The Respondent, N.K.S. Distributors, Inc., New
Castle and Milford, Delaware, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Interrogating applicants for employment concern-
ing their union membership.
(b) Implementing a stock purchase plan for employ-
ees without bargaining with the Union about the plan.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union concerning
the institution of a stock purchase plan for employees,
and if so requested by the Union, rescind its unilateral
implementation of the plan.
(b) Post at New Castle and Milford, Delaware facili-
ties copies of the attached notice marked ‘‘Appendix
D.’’21 Copies of the notice, on forms provided by the
Regional Director for Region 4, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent immediately on receipt and
maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
E. The Respondent, West Coast Industrial Relations
Association, Inc., Los Gatos, California, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
349CENTURY WINE & SPIRITS
22 See fn. 18, supra.
1 I agree with my colleagues that the judge incorrectly found that because
the parties did not mutually desire to continue the contract in effect, the
Union’s sec. 2 notice operated to terminate the contract. I also agree with my
colleagues that the March 29, 1988 communication stating that the Distributors
‘‘will not agree to a formal or informal extension of the contract’’ did not con-
stitute a notice of termination pursuant to sec. 5 of the contract.
2 In both cases, the relevant contractual language stated that the contract
shall:
continue in full force and effect through April 1, 1977 [1982 in Barnes],
and also thereafter, on a year to year basis, by automatic renewal. Pro-
vided however, for the purpose of negotiating alterations in wages and
other terms and conditions of employment, either party may open this
Agreement or any contract effectuated through automatic renewal by giv-
ing written ‘‘Notice of Opening’’ not later than sixty (60) days prior to
the expiration date. ‘‘Notice of Opening’’ is in nowise intended by the
parties as a termination of nor shall it in anywise be construed as a termi-
nation of this Agreement or any annual contract effectuated through auto-
Continued
(a) Interrogating applicants for employment concern-
ing their union membership.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at the Respondent Distributors’ Delaware
facilities copies of the attached notice marked ‘‘Appen-
dix E.’’22 Copies of the notice, on forms provided by
the Regional Director for Region 4, after being signed
by the Respondent’s authorized representative, shall be
posted by the Respondent immediately on receipt and
maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(b) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the issues raised in this
proceeding by the unfair labor practice allegations set
forth in paragraphs 15 through 17 (inclusive) and para-
graph 21 of the March 28, 1989 consolidated com-
plaint, to the extent amended by the April 4, 1989
amendments to the consolidated complaint, regarding
the Respondents’ alleged unlawful repudiation of cer-
tain provisions of the parties’ April 1, 1985–March 31,
1988 collective-bargaining agreement and unilateral
implementation of new terms and conditions of em-
ployment shall be remanded to Administrative Law
Judge Marvin Roth for the purpose of applying the
principles of Speedrack, Inc., supra, to these issues,
and to reopen the record to take evidence as to
(a) what subjects were introduced by the parties into
negotiations during the period January 4 through
March 31, 1988 (the contract expiration date), and
which contractual provisions covering those subjects
were therefore reopened and effectively terminated;
(b) whether the Distributors implemented any new
terms or failed to honor any continuing contractual
provisions that were not related to subjects that were
introduced into the negotiations;
(c) whether the parties had reached impasse in their
negotiations prior to the Distributors’ implementation
of their final offer;
(d) whether the course of bargaining was tainted by
the Distributors conduct so as to preclude impasse by
a finding, for example, that the Respondent Distribu-
tors failed to comply with contractual provisions that
were not reopened.
IT IS FURTHER ORDERED that the judge shall prepare
and serve on the parties a supplemental decision con-
taining findings of fact and conclusions of law in light
of the Board’s remand. Following service of the sup-
plemental decision on the parties, the provisions of
Section 102.46 of the Board’s Rules and Regulations
shall be applicable.
MEMBER CRACRAFT, concurring in part and dissenting
in part.
I agree with my colleagues that the Respondents
violated Section 8(a)(1) of the Act by interrogating an
employment applicant concerning his union member-
ship, that Respondent Standard did not violate Section
8(a)(5) and (1) of the Act by unilaterally reducing its
workweek from 5 days to 4 days for certain Wilming-
ton unit employees, and that Respondent NKS violated
Section 8(a)(5) and (1) of the Act by unilaterally im-
plementing a stock purchase plan for employees.
Contrary to my colleagues, however, I find that the
Respondent Distributors also violated Sections 8(a)(5)
and (1) and 8(d) of the Act by abrogating their con-
tract with the Union and implementing new terms and
conditions of employment. I disagree with my col-
leagues’ finding that the instant case is controlled by
Speedrack, Inc., 293 NLRB 1054 (1989). Rather, I find
the circumstances of the instant case similar to the cir-
cumstances in KCW Furniture Co., 247 NLRB 541
(1980), enfd. 634 F.2d 436 (9th Cir. 1980); and Robert
A. Barnes, Inc., 268 NLRB 343 (1984). Specifically, I
find that the entire contract, with the exception of the
no strike/no lockout clause, automatically continued
beyond the expiration date because the parties had not
sent a notice of termination pursuant to section 1 or
section 5 of the duration clause. Consequently, the
Union’s section 2 notice of desire to negotiate changes
or revisions created a negotiating situation whereby the
parties could resort to a strike or lockout, but absent
an agreement on any changes or modifications the con-
tract remained in effect and thus the Distributors were
not free to unilaterally implement new terms and con-
ditions of employment.1
Both KCW and Robert A. Barnes involved facts
similar to the facts in the instant case and contractual
provisions similar to the contractual provisions at issue
in the instant case.2 In each of those cases, the Board
350 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
matic renewal nor as forestalling automatic renewal as herein provided.
The parties reserve the right to economic recourse in negotiations; except
during the interval between the giving of Notice of Opening and the expi-
ration date.
Except by mutual written agreement, termination of this Agreement or
any annual contract effectuated through automatic renewal, must, to the
exclusion of all other methods, be perfected by giving written ‘‘Notice
of Termination’’ not later than sixty continued continued (60) nor more
than ninety (90) days prior to the expiration date, whereon the contract
shall, on its expiration date, terminate. Effective termination eliminates
automatic renewal.
found that because neither party had sent a ‘‘Notice of
Termination’’ (the equivalent of a section 1 notice in
the instant contract), the contract remained in effect
past the expiration date and the respondent employer
had no right to make unilateral changes while negotiat-
ing pursuant to a ‘‘Notice of Opening’’ (the equivalent
of a section 2 notice in the instant contract) sent by
the union.
My colleagues, in agreement with the judge, find the
instant case distinguishable from KCW and Robert A.
Barnes because the contracts in those cases stated that
a ‘‘‘Notice of Opening’ is in nowise intended by the
parties . . . as a termination of this Agreement,’’ and
that ‘‘termination of the Agreement . . . must, to the
exclusion of all other methods, be perfected by giving
written ‘Notice of Termination’ . . .’’ whereas the in-
stant contract contains no express limitation resembling
the wording in KCW and Barnes.
I find, contrary to the judge and my colleagues, that
the instant contract does contain express language that
serves the same contractual purpose as that found in
KCW and Barnes. Section 1 clearly instructs the par-
ties as to the exclusive method for how the contract is
terminated. Conversely, the contractual language in
section 2 neither states nor reasonably implies that a
notice of desire to negotiate changes or revisions could
operate to forestall automatic continuation of the con-
tract, or any of its provisions, past the expiration date.
Rather, the specific language in section 2 referring to
the parties’ ‘‘desire to continue said Agreement’’ in
the absence of a notice of termination, means, by its
own terms, that the contract, not just a fraction of it,
continues in effect, thus precluding unilateral changes,
even after impasse. Thus, I find that despite the ab-
sence of the same specific language found in KCW and
Robert A. Barnes—that a ‘‘Notice of Opening’’ (the
equivalent of a section 2 notice in the instant case)
does not effect a termination of the agreement—the ex-
press language of sections 1 and 2 in the instant case,
when read together, leads inescapably to the conclu-
sion that only a section 1 notice can effect a termi-
nation of the contract, and that therefore a section 2
notice cannot.
The continued validity of KCW was affirmed by the
Board in Speedrack itself, when the Board stated that
the holding of KCW is ‘‘not inconsistent’’ with
Speedrack because in KCW (as well as in the other
cases cited) ‘‘the legality of the employer’s unilateral
action has depended on the specific language of the
clause regarding the continuing status of the contract
terms.’’ Speedrack, supra at fn. 12. As stated above,
I find the instant case directly on point with KCW. As
in the KCW contract, the instant contract contains
clear, express terms regarding termination and renewal
of the contract. Also like the KCW contract, the instant
contract expressly states that when the contract is con-
tinued (because neither party has given a section 1 no-
tice) the parties may negotiate changes or revisions to
the contract and, during the course of such negotia-
tions, may engage in a strike or lockout. Further, the
express terms of the duration clause make it clear that
the contract can be terminated only when there has
been proper notice of termination pursuant to section
1 or section 5, except that the no-strike/no-lockout
clause terminates on the expiration date when a section
2 notice is given. Thus, the contractual language spe-
cifically instructs the parties as to how to terminate the
contract, and as to what actions they may take when
negotiating changes to the contract pursuant to a sec-
tion 2 notice. With the presence of such express lan-
guage in the duration clause, there is no basis on
which to read into the contract an implicit intent, con-
trary to the clear terms of section 1, providing for ter-
mination of any or all contractual provisions when a
section 2 notice is given.
If section 2 was intended to be the kind of termi-
nation clause my colleagues have interpreted it to be,
it would render the effect of section 1 meaningless.
Under the express terms of section 1, a party effec-
tively communicates its desire to continue the contract
in effect by not serving a section 1 notice of desire to
cancel or terminate it. But under both the judge’s and
my colleagues’ interpretations of the contract, the com-
municative effect of section 1 is lost because a party
would not be able to rely solely on the absence of a
section 1 notice from the other party as the showing
of the other party’s desire to continue the contract in
effect. More specifically, under my colleagues’ inter-
pretation of the contract, a party can simultaneously (a)
communicate a desire to continue the contract in effect
by simply not sending a section 1 notice, but (b) em-
bark on a course of conduct culminating in the termi-
nation of every substantive provision in the contract,
by giving a section 2 notice. My colleagues’ interpreta-
tion has stripped the automatic continuation provisions
of the contract of their intended effect, because their
reading of the contract has allowed the Distributors to
unilaterally implement changes to practically every
term and condition of employment, even though nei-
ther party has satisfied the express requirement for ter-
minating the contract. Under these circumstances, I do
not think it is reasonable to construe the contract such
that despite the clear, express language of section 1,
351CENTURY WINE & SPIRITS
3 My colleagues agree that under their reading of sec. 2, it is theoretically
possible for a party to achieve the same result with a sec. 2 notice that it could
achieve with a sec. 1 notice—total contract termination. But they dismiss the
implications of this possibility because, they conclude, if a party sought such
a result, it would obviously give a sec. 1 notice. In 1982, however, the parties
negotiated a new contract in which the only notice given to open these nego-
tiations was the Union’s sec. 2 notice. The only possible reason for sending
a sec. 2 notice rather than a sec. 1 notice in such a situation would be to en-
sure that if no agreement was reached, the old contract would automatically
continue in effect. Thus, it is evident that although a party may seek to nego-
tiate an entirely new contract, it may also desire to have the old contract re-
main in effect until agreement is reached on a new contract, or in case no
such agreement is ever reached.
4 The clause also allowed the parties to negotiate over ‘‘foremen working.’’
5 In applying the Speedrack principle to the instant case, my colleagues con-
tend that the instant contract does not contain language of limitation resem-
bling that found in the contracts in KCW and Barnes. The language in those
contracts, however, is no more specific in addressing the issue involved in
Speedrack than is the language in the instant contract. Specifically, the critical
language in KCW and Barnes provided that a notice of opening could not
cause a termination of the agreement. It did not expressly state that in the ab-
sence of a notice of termination, the contract continues and a party may not
unilaterally implement its final offer on reopened subjects after impasse. Nev-
ertheless, the Board found that the respondents in those cases were not entitled
to implement their final offers after impasse was reached in those negotiations.
Thus, it is inconsistent for my colleagues to apply Speedrack rather than KCW
and Barnes to the instant contract on the basis of any arguable differences in
the clarity of the express language precluding contract termination in KCW and
Barnes and in the instant case.
6 Thus, even in a situation in which the contract remains in effect but the
parties are negotiating pursuant to a sec. 2 notice, the parties may still agree
to a temporary extension of the contract in order to keep the no strike/no lock-
out provisions of the contract in effect beyond the expiration date, while nego-
tiations continue. This is, in fact, what happened during the 1982 negotiations.
the following section of the contract allows the parties
to act contrary to the express terms of section 1.3
I find that Speedrack is not applicable to the instant
case. Speedrack involved negotiations pursuant to a
contractual wage reopener provision which is signifi-
cantly different from the language or purpose of sec-
tion 2. That wage provision provided that, during the
term of the contract, the parties could negotiate a new
wage provision to take effect for the remainder of the
term of the contract.4 Thus, absent evidence of any in-
dication otherwise, it was reasonable to treat the invo-
cation of the specific reopener as effectively terminat-
ing the wage provision of the contract prior to the con-
tract’s expiration date.
The instant contract contains no similar provision.
Rather, the duration clause provides that, on expiration
of the contract, the parties may either continue the
contract in effect without change by doing nothing, or
they may engage in one of two types of negotiations.
If negotiations are desired, the parties may terminate
the existing contract and negotiate a new contract, or
the parties may negotiate on the basis that the existing
contract remains in effect absent an agreement to mod-
ify or change the contractual terms, except that if the
parties do not reach agreement by the expiration date,
the parties may resort to a strike or a lockout.5
The existence of section 3 in the duration clause is
indicative of the parties’ intent to provide for the con-
tractual terms remaining in effect during the period the
parties engage in section 2 bargaining. While section
2 is premised on the fact that the contract continues in
effect for another year because neither party has given
a section 1 notice, section 3 expressly qualifies section
2 to provide for termination of the no-strike/no-lockout
clause when the parties negotiate pursuant to section 2.
Thus, it is evident that the contract expressly instructs
the parties as to how to treat the existing contract
when negotiating pursuant to section 2. By its own
terms, the contract provides that where the only notice
given is a section 2 notice, the contract remains in ef-
fect except that section 3 terminates the no strike/no
lockout provision of the contract on the expiration
date. Consequently, if the parties do not reach agree-
ment in their negotiations by the expiration date, the
parties may resort to a strike or lockout even though
the contract remains in effect.6 Under my colleagues’
interpretation of the contract, however, section 3 is a
useless provision because the parties can, through sec-
tion 2, terminate the no strike/no lockout provision at
the bargaining table by ‘‘introducing’’ that subject into
negotiations.
My colleagues argue that section 3 is consistent with
the view that the parties contemplated that negotiations
pursuant to section 2 would be free of constraints.
Thus, under their view, it must follow that section 2
negotiations are actually no different than section 1 ne-
gotiations, because under section 2 the parties can ne-
gotiate changes to practically the entire contract, as
they did here, and the Distributors are free to unilater-
ally implement changes after impasse. Contrary to my
colleagues, however, I do not believe that the parties
would have included the language of section 2 in the
contract if its intended effect was simply to enable the
parties to negotiate practically an entire new set of
terms and conditions of employment on the exact same
basis that the parties would be able to do if a section
1 notice had been given.
My colleagues also argue that section 4 supports
their reading of section 2. Under section 4, the agreed
on contractual changes are effective, retroactively, on
April 1, the day after the contract’s expiration date.
My colleagues believe that section 4 makes sense only
if the contract does not continue as to terms negotiated
pursuant to section 2. I believe, however, that section
4 is equally applicable if the entire contract (with the
exception of the no strike/no lockout clause) continues
during section 2 negotiations. Under this construction,
the contract remains in effect while the parties nego-
tiate their changes or revisions, and any agreed on
changes are deemed effective as of April 1.
The actions taken by the parties pursuant to the con-
tractual provision at issue also make the instant case
factually distinguishable from Speedrack. Specifically,
neither the Union nor the Distributors ever treated sec-
tion 2 as a provision similar to a Speedrack reopener,
which serves to reopen only specific provisions of the
352 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 In Hydrologics, the Board held, inter alia, that bargaining pursuant to a
contractual wage reopener contemplated the potential use of economic weap-
ons, and thus when a wage reopener provision was invoked, the employees
were entitled to engage in a strike despite the existence of a no strike/no lock-
out clause in the contract.
8 Of course, under my colleagues’ interpretation, a party for all practical
purposes terminates the contract under sec. 2 where, as here, a party introduces
almost every substantive subject into negotiations.
9 The judge reached his interpretation of sec. 2 sua sponte. The Respondents,
however, have subsequently subscribed to it.
10 Indeed, when in the previous negotiations the Union gave a sec. 2 notice,
the Distributors responded by sending a timely sec. 1 notice of termination.
11 In Speedrack, we agreed with the employer’s position that invocation of
the wage reopener provision entitled the employer to unilaterally implement
its final offer on wages once the parties reached impasse.
contract. The Union’s section 2 notices did not indicate
the specific provisions it desired to change or revise.
Indeed, in these negotiations, and in all of the previous
negotiations which were held pursuant to a section 2
notice, the parties sought wholesale revisions to prac-
tically every substantive provision in the contract. Fur-
ther, the end result of the previous negotiations was al-
ways a new, complete agreement covering terms and
conditions of employment. Except for one difference,
the negotiations were conducted as if the parties had
terminated the contract and were negotiating a new
one. The only aspect of section 2 negotiations which
makes such negotiations different from section 1 nego-
tiations is that, in section 2 negotiations, the contract
remains in effect unless and until the parties agree on
new terms. This is supported by the fact that section
2 makes no mention of any specific provisions which
are to be ‘‘reopened,’’ the fact that none of the section
2 notices ever made reference to any particular sub-
jects which were to be negotiated, and the fact that in
the negotiations, both parties had initial proposals
seeking to change or revise practically the entire con-
tract.
Conversely, in Speedrack the contractual provision
specifically defined the subjects which could be re-
opened (wages and foremen working), and the notice
given pursuant to that contractual provision specifically
stated the subject (wages) that the employer desired to
negotiate. Further, the reopener provision in Speedrack
provided the parties with the opportunity to engage in
midterm bargaining to modify the wages provision for
the remainder of the contract’s term. The Speedrack
provision was not, as in the instant case, tied to a re-
newal of the contract such that any agreed on changes
were to take place during the new term of the contract.
Thus, I find that Speedrack involved a completely dif-
ferent situation than the one that occurred in the instant
case, and consequently the Speedrack principle does
not apply. The contractual language involved here, as
well as the actions of the parties, indicates that it was
not the parties’ intent to allow the contract, or any pro-
visions other than the no strike/no lockout restriction,
to be terminated by sending a section 2 notice. In
Speedrack and its companion case Hydrologics, 293
NLRB 1060 (1989),7 we noted that when engaged in
reopener bargaining, the parties could contractually
agree to constrain themselves from the use of the eco-
nomic weapons of a strike, a lockout, and an imple-
mentation of a final offer after impasse. In the instant
case, the express terms of the contract have carefully
instructed the parties as to the exclusive weapons they
may resort to in section 2 bargaining—a strike or lock-
out after the expiration date of the contract. Thus, the
parties have contractually agreed that while both par-
ties are free to give a section 1 notice of termination,
if neither party gives a section 1 notice, they will be
constrained from unilaterally abrogating the terms of
the contract, even after impasse.
Although my colleagues find (and I agree) that the
judge’s interpretation of the contract is incorrect, their
interpretation of the contract is in effect very similar to
the judge’s. Under either interpretation, the contract
can be effectively terminated by sending a section 2
notice. Under the judge’s interpretation, a section 2 no-
tice operates to terminate the contract when one of the
parties does not desire to continue the contract past the
expiration date. Similarly, under my colleagues’ inter-
pretation of the contract, a section 2 notice can effec-
tively terminate the entire contract if one of the parties
does not desire to continue the contract and con-
sequently ‘‘reopens’’ every subject during the negotia-
tions.8 As stated above, such an interpretation directly
conflicts with the express language of section 1.
Further, as with the judge’s interpretation, my col-
leagues’ interpretation of the contract is one which nei-
ther of the parties argued to be correct.9 Prior to the
judge’s decision, both parties argued that the only con-
tractual provisions governing termination of any type
were section 1 and section 5.10 In Speedrack, as well
as in most other cases involving contract interpretation,
the principal issue involves deciding which party’s in-
terpretation of the contract is the correct one.11 In ap-
plying Speedrack to the instant case, however, my col-
leagues have, like the judge, arrived at an interpreta-
tion of the contract that is contrary to the assertions of
both the Distributors and the Union.
Finally, we need not be concerned about whether the
contractual provision at issue confers a favored posi-
tion on either of the parties. As noted above, the par-
ties are free to contractually agree to engage in nego-
tiations whereby the contractual terms remain in effect
absent agreement otherwise. Further, the contract pro-
vides that if either party does not desire to negotiate
in this fashion, it can simply give a section 1 notice
and the contract will terminate on March 31. In fact,
the Distributors were well aware of how to escape the
constraints of section 2, as shown by the fact that in
the previous negotiations the Distributors responded to
the Union’s section 2 notice by sending the Union a
timely section 1 notice of termination. Had they simply
353CENTURY WINE & SPIRITS
done the same in these negotiations, they would have
been free to implement their final offer at impasse.
As neither party gave a notice of termination pursu-
ant to section 1 or section 5, and as the Union’s sec-
tion 2 notice did not operate to terminate the contract
or any provision of the contract, I would find the con-
tract remained in effect, and consequently the Re-
spondent Distributors violated Sections 8(a)(5) and (1)
and 8(d) of the Act by repudiating the union-security,
dues-checkoff, and grievance-arbitration provisions of
their respective contracts with the Union, by subse-
quently repudiating those contracts in their entirety,
and by unilaterally changing terms and conditions of
employment.
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT interrogate applicants for employment
concerning their union membership.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
N.K.S. DISTRIBUTORS, INC. D/B/A CEN-
TURY WINE AND SPIRITS
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT interrogate applicants for employment
concerning their union membership.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
DELAWARE BEVERAGE CO.
APPENDIX C
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT interrogate applicants for employment
concerning their union membership.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
STANDARD DISTRIBUTING CO.
APPENDIX D
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
354 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The second sentence in fn. 4 of Union’s brief is stricken as irrelevant and
involving matters outside the record or any reported Board or court decision.
2 Errors in the transcript have been noted and corrected.
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WILL NOT interrogate applicants for employment
concerning their union membership.
WE WILL NOT implement a stock purchase plan for
employees without bargaining with the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union con-
cerning the institution of a stock purchase plan for em-
ployees, and if so requested by the Union, rescind our
unilateral implementation of the plan.
N.K.S. DISTRIBUTORS, INC.
APPENDIX E
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT interrogate applicants for employment
concerning their union membership.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WEST COAST INDUSTRIAL RELATIONS
ASSOCIATION, INC.
Dennis P. Walsh, Esq. and Barbara C. Joseph, Esq., for the
General Counsel.
Robert F. Stewart, Jr., Esq. and David M. Spitko, Esq., of
Philadelphia, Pennsylvania, for the Respondent.
Hugh J. Beins, Esq., of Washington, D.C., and Michael
Ciabattoni, of Wilmington, Delaware, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
MARVIN ROTH, Administrative Law Judge. These consoli-
dated cases were heard at Wilmington, Delaware, on April
12 and 13, 1989. The charges and amended charges in Cases
4–CA–17616–1, 2, 3, and 4 were filed respectively on Sep-
tember 26, 1988, and January 10, 1989, and the charges in
Cases 4–CA–17888 and 17889 were filed on February 9,
1989, all by General Teamsters Local Union No. 325, a/w
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, AFL–CIO (the Union).
The consolidated complaint, which issued on March 28,
1989, and was amended on April 4, 1989, alleges that N.K.S.
Distributors, Inc. d/b/a Century Wine and Spirits, Delaware
Beverage Co., Eugene M. Tigani, Steven D. Tigani, J. Paul
Tigani, J. Vincent Tigani, Jr., F. Gregory Tigani, J. Paul
Tigani (U/W of Joseph P. Tigani), and Francis G. Tigani, a
Partnership d/b/a Standard Distributing Co., and N.K.S. Dis-
tributors, Inc. (respectively, Century, Delaware Beverage,
Standard and N.K.S., and collectively Distributors), and West
Coast Industrial Relations Association, Inc. (West Coast, and
collectively, with the Distributors, the Respondents), violated
Section 8(a)(1) and (5) of the National Labor Relations Act,
as amended. The gravamen of the complaint is that Respond-
ents interrogated an applicant for employment concerning his
union affiliation or membership, that Distributors repudiated
their respective collective-bargaining contracts with the
Union and provisions thereof, and implemented new terms
and conditions of employment for unit employees, that
Standard unilaterally reduced the workweek for certain of its
unit employees, and that N.K.S. unilaterally instituted a stock
purchase plan, all allegedly in violation of the Act. Respond-
ents’ answer denies the commission of the alleged unfair
labor practices.
All parties were afforded full opportunity to participate, to
present relevant evidence, to argue orally and to file briefs.
General Counsel, the Union and Respondents each submitted
a brief.1 On the entire record in this case2 and from my ob-
servation of the demeanor of the witnesses, and having con-
sidered the arguments of counsel and the briefs of the par-
ties, I make the following
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENTS
Century, an unincorporated division of N.K.S., is engaged
in the wholesale distribution of beer, wine, and spirits from
a facility located in New Castle, Delaware. Delaware Bev-
erage is a Delaware Corporation, also engaged in the whole-
sale distribution of beer, wine and spirits from a facility lo-
cated in New Castle. Standard, a partnership, is engaged in
the wholesale distribution of alcoholic beverages within the
State of Delaware, from facilities located in Wilmington and
Dover, Delaware. N.K.S., a Delaware Corporation, is en-
gaged in the wholesale distribution of beer, wine and spirits
from facilities located in New Castle and Milford, Delaware.
In the operation of their respective businesses, the Distribu-
355CENTURY WINE & SPIRITS
tors each annually purchase goods and materials valued in
excess of $50,000 directly from points outside of Delaware.
West Coast, a California Corporation with its principal place
of business in Los Gatos, California, is engaged in the labor
relations consulting business, representing employers in col-
lective-bargaining and other labor relations matters. In the
operation of its business, West Coast annually receives in ex-
cess of $50,000 for performing services outside of California.
At all times material, Distributors engaged West Coast as a
labor relations consultant, and West Coast provided such
services as their agent within the meaning of Section 2(13)
of the Act. I find, as Respondents admit, that each of them
is an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION AND THE BARGAINING
UNIT INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act. At all times material, the Union has
been and is, the recognized and exclusive collective-bargain-
ing representative of each of the Distributors’ employees in
an appropriate unit as defined in the most recent collective-
bargaining contract between the Union and the Distributor
(art. 3, sec. 1(a) and art. 2, sec. 2 of each contract). Each
unit substantially consisted of warehouse and delivery em-
ployees.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background: Negotiations prior to 1988, and the
Duration of the Contracts
The Union has had a bargaining relationship with Standard
for about 20 years, and for more than 30 years with the other
Distributors. Until 1982 the Distributors were part of a multi-
employer bargaining unit, and the employees were covered
by the Teamsters’ National Master Freight Agreement (here-
in sometimes NMFA) and the Philadelphia, Pennsylvania and
Vicinity Local Cartage Supplemental Agreement. In 1982 the
Distributors withdrew from the multiemployer unit. There-
after, in 1982 and again in 1985, they negotiated individual
contracts through coordinated bargaining. The Distributors
bargained through one principal negotiator in their contract
negotiations. The results were reduced to one document con-
taining in essence a contract for each Distributor. In 1982 the
parties incorporated the NMFA and area supplement by ref-
erence, as modified in their negotiations. However in 1985
the parties dispensed with this arrangement, and negotiated
self-contained contracts. Most provisions were identical for
all Distributors. Insofar as the provisions differed, the docu-
ment indicated the Distributor or Distributors to which the
particular provision was applicable. The most recent (1985)
contract contained the following provisions with respect to
duration:
ARTICLE 49
DURATION
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 writ-
ten notice of desire to cancel or terminate the Agree-
ment is served by either party on the other at least sixty
(60) days prior to the date of expiration.
Section 2.
Where no such cancellation or termination 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 on 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 or con-
ditions of such Agreement.
Section 3.
The Local Union as representative of the employees
or the signator Employer shall each have the right to
unilaterally determine when to engage in economic re-
course (strike or lockout) on or after April 1, 1988, un-
less agreed to the contrary.
Section 4.
Revisions agreed on or ordered shall be effective as
of April 1, 1988, or April 1st of any subsequent con-
tract year.
Section 5.
In the event of an inadvertent failure by either party
to give the notice set forth in Sections 1 and 2 of this
Article, such party may give notice at any time prior
to the termination or automatic renewal date of this
Agreement. If a notice is given in accordance with the
provisions of this Section, the expiration date of this
Agreement shall be the sixty-first (61st) day following
such notice.
The language of article 49, with dates updated, was taken
from the National Master Freight Agreement, and was incor-
porated by reference in the 1982 contracts between the Dis-
tributors and the Union.
In the 1982 and 1985 negotiations the Distributors were
represented by the law firm of Morgan, Lewis, and Bockius.
By letter dated September 21, 1981, the Union opened the
1982 negotiations by notifying the Distributors of its ‘‘desire
to revise or change terms or conditions of ‘‘the 1979–1982
contract (NMFA and area supplemental agreement). No other
notices were sent by either side. By March 31, 1982, the ex-
piration date of the contract, the parties had not reached
agreement. The parties agreed to extend the contract until
April 4, 1982, and thereafter from day to day, with advance
notice of intention to engage in a strike or lockout. Union
president and business representative Michael Ciabattoni tes-
tified in sum that the contract was automatically renewed,
but that the parties agreed on an extension in order to waive
their respective rights to a strike or lockout during the period
of their agreed-on extension. The distributors did engage in
a lockout, and in late May, 1982, the parties reached agree-
ment on new, individual contracts. (Respondents offered to
prove, and I accept the offer as true, that the parties nego-
tiated both Union and employer proposals and agreed on
356 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 All dates in sec. III, B, and C of this Decision are for 1988 unless other-
wise indicated.
some employer proposals). In the meantime, a dispute arose
between the parties over processing of certain grievances
which the Union had submitted for binding arbitration. The
Distributors, through their chief negotiator (Attorney
O’Reilly of the Morgan firm) argued that the grievances
were not subject to arbitration because there was no contract
in effect. The Union, by Ciabattoni, asserted that the contract
remained in effect because there was no termination under
article 39, section 1 of the NMFA (counterpart to art. 49,
sec. 1 of the 1985 contract), but only a reopener pursuant to
section 2. The positions of the parties were set forth in cor-
respondence to Transport Employers Association, the agency
for hearing arbitration matters. The present record does not
indicate what disposition was made of the grievances. In
1984, both sides sent notices. By letter dated October 30,
1984, Teamsters National associations covered by [NMFA]
or by approved separate freight agreements’’ that all Team-
ster Union signatories to such agreements desired to revise
or change the terms and conditions of such agreements for
the contract period commencing April 1, 1985, as provided
in section 2 of the Duration article. By letter dated Novem-
ber 28, 1984, to the Union, Attorney Reagan of the Morgan
firm, the Distributors’ chief negotiator, notified the Union to:
‘‘Please consider this letter as notice of termination of the
agreement and thereafter the companies will not be bound by
any agreement negotiated by any employer association.’’
Ciabattoni testified that during the 1985 negotiations he told
Attorney Reagan, in the presence of Distributor officials, that
‘‘the only way there could be unilateral implementation was
if in fact the termination notice was served,’’ although the
employers could lock out and the Union could strike without
such notice. There was no strike or lockout. The parties con-
tinued to negotiate beyond April 1, 1985, under an extension
agreement, and eventually agreed on a new contract. The
contract provided among other things, for union security,
checkoff of dues and initiation fees, and binding arbitration
of grievances.
B. The Current Negotiations, Alleged Repudiation of
the Contracts, and Pertinent Unilateral Changes
1. The facts
By letters dated January 4, 19883 the Union stated as fol-
lows:
Please accept this letter as notice of our intent to
change and/or modify the current labor agreement
which expires on ‘‘3/31/88.’’
This notice is being sent as provided for in the
agreement and if there are any questions, please call
this office.
The Distributors responded that they would be represented
in the negotiations by chief operating officer Chris Thomas
of West Coast. Thomas is a labor relations consultant, but
not an attorney. By letters dated January 11 and 21 the Dis-
tributors requested in sum that negotiations commence as
soon as possible: ‘‘In an effort to reach an early agreement
and avoid bargaining beyond the expiration date.’’ However
negotiations did not commence until March 4. There were 19
bargaining sessions (March 4, 8, 22, 23, 29, 30, April 6, 19,
20, 27, 28, May 4, 17, 18, 26, 27, June 22, July 13, and Au-
gust 24). Thomas was the Distributors’ chief negotiator, and
Attorney Hugh Beins was the Union’s chief negotiator.
Union President Ciabattoni also participated extensively in
the negotiations. Ciabattoni and Thomas were the only wit-
nesses who testified concerning the negotiations. The Union
and the Distributors each submitted their initial contract pro-
posals, covering a wide range of matters, both economic and
noneconomic. The Union indicated that it would propose
wage increases and improved fringe benefits. The Distribu-
tors proposed major revisions in the existing contract, cover-
ing the whole spectrum of contract matters, including sub-
stantial reductions in wages and fringe benefits. At the first
session on March 4 Thomas said that the Distributors would
not agree to an extension beyond expiration of the contract.
At the second session on March 8, Beins proposed to extend
the contract beyond the expiration date. Thomas rejected the
proposal. Beins asked whether the Distributors had a lockout
agreement. Thomas answered that they did not, that they
were engaged in individual bargaining, and that he consid-
ered a lockout to be an ineffective weapon. At the fifth ses-
sion on March 29, the Distributors presented a counter-
proposal, including a preface which Thomas read aloud to
the Union. Thomas stated in part that he had repeatedly said
that the Distributors wanted a contract which provided them
with flexibility and reflected settlement trends in the bev-
erage industry, and that he was unaware of any other group
of employers in the industry who were required to operate
under such a ‘‘cumbersome contract’’ as the existing con-
tract, which was a ‘‘variation on the Master Freight Agree-
ment.’’ Thomas said he was concerned because this was the
last opportunity to discuss the contract before the expiration
date. (The parties planned to devote the March 30 session to
presentations on the Distributors’ insurance proposals). By
this time the parties had discussed all the Distributors’ pro-
posals. Thomas also read aloud the following portion of the
Distributors’ counterproposal: ‘‘With respect to the expira-
tion of the contract the employers will not agree to either an
informal or formal extension of the contract. We suggest the
Union consult with their counsel as to the legal significance
of this position.’’ (Emphasis in original.) Attorney Beins
asked what this meant. Thomas answered that the union-se-
curity, checkoff, and arbitration obligations would die with
expiration of the contract. Beins replied that Thomas was
wrong. Beins did not explain his reply, and Thomas did not
ask for an explanation. Ciabattoni testified in sum that he
and Beins understood, and it was their interpretation of the
contract that because neither party gave notice of desire to
‘‘cancel or terminate’’ the contract, i.e., a section 1 notice,
the contract would automatically renew on April 1 for an ad-
ditional year, except that absent agreement of the parties,
they would, by reason of section 3, be free to engage in a
strike or lockout on or after that date. Beins and Ciabattoni
agreed to refrain from disclosing their interpretation of the
contract to anyone (including the Union’s negotiating com-
mittee) unless and until the Union filed unfair labor practice
charges. Ciabattoni testified that Beins said he would tell
Thomas if he asked.
By letter dated April 13, Thomas informed Attorney Beins
that as of April 17, ‘‘in accordance with’’ Bethlehem Steel
Co., 136 NLRB 1500 (1962), the Distributors would no
357CENTURY WINE & SPIRITS
longer honor the union-security and checkoff provisions.
Thomas added that the Distributors would ‘‘continue to abide
by all other terms and conditions of the expired contract,’’
subject to the Board’s decisions’’ in Indiana & Michigan
Electric Co., 284 NLRB 53 (1987), and Columbus & South-
ern Ohio Electric Co., 287 NLRB 144 (1987). By letter
dated April 15, Beins responded to Thomas’ letter. Beins as-
serted that the Company’s alleged shifting positions on union
security and checkoff were unfair labor practices and ‘‘indic-
ative of the fact that you are engaged in surface bargaining.’’
Beins specifically alleged that Thomas: (1) Initially and re-
peatedly stated unequivocally that the Distributors were can-
celing the union-security and checkoff provisions of the con-
tract as of April 1; (2) in response to Beins’ statement that
cancellation was ‘‘unilateral and an unfair labor practice,’’
switched positions and said that the Distributors would con-
tinue to provide union security and checkoff; (3) subse-
quently failed to checkoff dues, but advised the Union and
the employees that this was inadvertent and would be cor-
rected in the next paycheck; and (4) now ‘‘flip flop again
without any negotiations or discussion.’’ The parties next
met in negotiations on April 19, at which time Beins and
Thomas discussed the matter of union security and checkoff.
Ciabattoni testified in sum that Beins reiterated the assertions
in his April 15 letter, and asserted that the Distributors’ uni-
lateral refusal to honor union security and checkoff was ‘‘a
breach of the contract and unfair labor practice.’’ Ciabattoni
testified that he did not recall any reference to ‘‘impasse,’’
although someone may have used that term. Thomas testified
in sum as follows: Beins said that the cases cited by Thomas
in his April 13 letter were incorrect, because they did not
apply to the situation. Thomas asked what was Beins’ theory,
whereon Beins replied that there was no impasse, and in the
absence of impasse the Distributors could not make unilateral
changes. I credit Ciabattoni. First, Thomas’ version of the
April 19 discussion was inconsistent with other testimony by
him. Thomas testified that he raised the question of impasse
in a letter dated May 26, based on the Distributors’ ‘‘final
proposal’’ presented on May 18. Subsequently, on redirect
examination, in response to leading questions from company
counsel, Thomas testified that Beins first raised the issue of
impasse. Second, as will be further discussed, Thomas’ ver-
sion of the April 19 session was inconsistent with his May
26 letter, in which he made clear that he understood that
Beins was asserting that the contract was extended. Third,
Beins is an experienced and knowledgeable labor relations
attorney. It is incredible that he would assert, or that Thomas
would believe that he was serious in asserting, that with no
contract in effect, an employer could not lawfully refuse to
give effect to the union-security and checkoff provisions of
an expired contract unless and until there was an impasse in
bargaining.
The Distributors stopped checking off union dues in late
April. On April 28 the Union filed grievances with the Dis-
tributors, alleging ‘‘unilateral changes in wages, hours and
working conditions, including but not limited to the elimi-
nation of Union Security and Checkoff provisions on or
about 4/17/88,’’ which were ‘‘blatant breaches of the con-
tract.’’ On May 5 Beins requested that American Arbitration
Association (AAA) docket the grievances for arbitration. By
letters dated May 13 and 16 to AAA and Beins, respectively,
Thomas restated the Distributors’ position. Thomas asserted
in sum that the contract expired on April 1, the parties did
not agree to extend the contract, and therefore the Company
was refusing to arbitrate these grievances, or any post April
1 grievances which did not ripen or accrue prior to that date.
Thomas took the same position with respect to requests for
arbitration concerning other matters, and continued to main-
tain this position until December 8. By letter dated May 20,
Beins responded to Thomas’ May 16 letter. Beins asserted
that the Distributors’ refusal to submit to arbitration was
‘‘further evidence of your unfair labor practices,’’ and that
the cases cited by Thomas ‘‘are distinguishable because be-
fore and after the contract expiration date you agreed to con-
tinue the contract in effect.’’ Beins again argued that the Dis-
tributors flip-flopped on union security and checkoff, adding
that ‘‘there was no impasse or bargaining on those issues.’’
Beins further stated ‘‘that it has been our consistent position
that you are committing unfair labor practices and breaching
the contract.’’ By letter dated May 26, Thomas replied that
‘‘your theory regarding a contract extension is absolutely ‘off
the wall.’’’ Thomas pointed out that on March 30 he said
that the Distributors would not agree to either a formal or
informal extension of contract at its expiration. In light of
these statements, it is evident that Thomas understood that
Beins was asserting that the contract was still in effect.
Thomas added that he did not agree with Beins’ ‘‘sugges-
tion’’ that there was no impasse in negotiations. Thomas stat-
ed that ‘‘in fact an impasse has been reached.’’ In his inves-
tigatory affidavit to the Board, Ciabattoni stated that Thomas
originally agreed that the contract would remain in effect
after April 1. Ciabattoni testified that he based this statement
on his impression of the April 19 discussion concerning the
Distributors’ alleged inconsistent actions with respect to dues
checkoff. Ciabattoni further testified that in the Union’s view
there was passive agreement, in that the Distributors never
served termination notices. Ciabattoni further testified that
various statements made or issued by the Union to the effect
that the contract expired on March 31, were technically cor-
rect, because he referred to the initial term of the contract,
and the contract renewed itself when neither party served no-
tice to terminate the contract.
The parties continued to maintain their respective positions
throughout the negotiations, with the Union continuing to as-
sert that the Distributors were engaging in unfair labor prac-
tices and breaching the contract. On September 19 the Dis-
tributors unilaterally implemented their ‘‘final offer.’’ This
offer encompassed numerous changes from the contractual
terms and conditions of employment, including reduced wage
rates, deletion of COLA, changed health and pension cov-
erage, addition of a management rights clause, and uniform
rules and regulations which contained a progressive dis-
cipline policy. Standard unilaterally implemented a retirement
plan on September 19, the four Distributors unilaterally im-
plemented health insurance plans on December 1, and N.K.S.
unilaterally implemented a profit sharing plan on January 1,
1989. General Counsel’s position that these changes were un-
lawful, is based on its contention that there was a contract
in effect. General Counsel does not contend that absent a
contract, there would be a lack of impasse which would pre-
clude those changes.
As indicated, the Union filed its initial unfair labor prac-
tices charges on September 26. The charges did not indicate
the Union’s theory. By two letters dated December 8 to
358 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Union President Ciabattoni, Chief Operating Officer Thomas
stated that he understood that the Union raised a question
with the Board ‘‘if in fact my clients terminated or cancelled
the contract as required by article 49 of the expired agree-
ment.’’ Thomas stated that at the first bargaining session on
March 4, he said that the Distributors would not agree to ex-
tend the contract beyond its termination date of March 31,
and that ‘‘this fact was subsequently confirmed in writing’’
at the March 29 session. Thomas stated that ‘‘consequently,
in accordance with Article 49, Section 5,’’ the Distributors
would deduct dues and fees not otherwise paid directly to the
Union, pursuant to the checkoff provisions of the ‘‘expired
contract,’’ for the months of April and May. Thomas added
that the Distributors would also agree to submit to arbitration
under the contract provisions, unresolved grievances filed
during April and May, except for the grievances on union se-
curity and checkoff. Thomas asserted that the Distributors
had remedied these latter grievances up to June 1, and be-
yond this point, the matter should be resolved in the Board
proceeding. By letter dated January 17, 1989, Thomas told
Beins that it was the Distributors’ ‘‘position that the collec-
tive-bargaining agreements in question were terminated pur-
suant to written notice given to you on March 29, 1988.’’
Thomas asserted that: ‘‘Thus, by the operation of Article 49,
Section 5, the agreements expired on May 28, 1988.’’ Thom-
as further stated in sum that in order to protect the rights of
the Distributors, and without abandoning their position, ‘‘this
letter is to serve as a formal notice of our intent to terminate
the collective-bargaining agreements,’’ if in fact or law they
exist, pursuant to article 49, section 1 of the contracts.
Thomas testified in sum that until December, 1988, it was
the Distributors’ position that the contracts expired on April
1. Thomas testified that in October he learned of the Union’s
position from Respondents’ counsel in this proceeding, and
on learning that a complaint would probably issue, he
switched positions to admit a 61-day extension of the con-
tract on a ‘‘worse case basis.’’ Thomas admitted in his testi-
mony that he did not mistakenly fail to give notice under
section 1 of article 49, that his December 8 letters were his
first reference to section 5, and that he never identified any-
thing other than the Distributors’ March 29 proposal as a no-
tice under article 49.
2. Analysis and concluding findings
I find that General Counsel failed to prove that Distribu-
tors violated Section 8(a)(1) and (5) as alleged in the com-
plaint. First, the Union’s interpretation of article 49 of the
contracts is incorrect. Article 49 delineates two types of no-
tices which may be served by either party in anticipation of
the expiration date of the contract, at least 60 days prior to
that expiration date. Under section 1, either party may serve
‘‘written notice of desire to cancel or terminate the Agree-
ment.’’ Under section 2, either party may serve notice of its
desire ‘‘to revise or change terms or conditions of such
Agreement.’’ Unlike section 1, section 2 does not require
written notice. Section 2 notices are subject to two express
conditions. A section 2 notice is appropriate where: (1) no
section 1 notice has been served; and (2) ‘‘the parties desire
to continue said Agreement but also desire to negotiate
changes or revisions in this Agreement.’’ Thus, section 2
does not speak only in terms of the desire of the party serv-
ing the notice. Rather, section 2 is premised on the mutual
desire of the parties to continue the contract in effect, subject
to any changes or revisions which they may negotiate. Sec-
tion 2 is silent as to the effect of the notice where one of
the parties does not wish to continue the contract. The re-
maining sections of article 49 do not give a different mean-
ing to section 2. Section 3, by its language, unequivocally
purports to give both parties the right to engage in economic
recourse (strike or lockout) on or after April 1, 1988, unless
agreed to the contrary. Section 3 does not purport to depend
on the giving of any notice. However the drafters of article
49 were undoubtedly aware that no party to a collective-bar-
gaining agreement may resort to an economic strike or lock-
out without complying with the requirements of Section 8(d)
of the Act. In effect, Section 8(d) is by operation of law
written into every collective-bargaining contract. See NLRB
v. Lion Oil Co., 352 U.S. 282, 292–293 (1957). The lan-
guage of section 3, and specifically its failure to refer to any
form of notice, indicates that absent a section 1 notice or an
agreement by the parties to continue the contract, termination
of the contract would be governed by Section 8(d) of the Act
and the law developed under that section. Section 4 of article
49 also tends to support this interpretation. Section 4 pro-
vides that revisions agreed on or ordered shall be effective
as of April 1, 1988, or April 1 of any subsequent contract
year. This provision would make no sense if a section 2 no-
tice operated to continue the contract in effect without regard
to the intent of the parties. Indeed it would run contrary to
such an interpretation. Section 5 provides an alternative form
of notice where either party failed to give a section 1 or sec-
tion 2 notice. Section 5 is also silent as to whether a section
2 notice operates to terminate the contract. Section 5 simply
provides that when a section 5 notice is given prior to April
1, the notice operates to move the expiration date forward for
a period of 60 days from the notice. As Respondents cor-
rectly point out (Br. 26) section 5 does not require service
of a written notice. However Section 8(d) of the Act requires
written notice of ‘‘the proposed termination or modifica-
tion,’’ 60 days prior to the expiration date. Therefore it is
evident that section 5 was designed to give the parties an op-
portunity to perfect and give appropriate notices under Sec-
tion 8(d) of the Act by extending the contract term to allow
the required 60-day period.
Under the law developed with respect to Section 8(d), a
timely notice of proposed termination or modification, in-
cluding notice of a desire to negotiate changes or revisions
in the contract, operates to terminate the contract as of its ex-
piration date, absent a contrary agreement by the parties.
Paterson Parchment Paper Co. v. Papermakers, 191 F.2d
252 (3d Cir. 1951); Oakland Press Co., 229 NLRB 476
(1977), remanded on other grounds 606 F.2d 689 (6th Cir.
1979), on remand 249 NLRB 1081 (1980), remanded on
other grounds 682 F.2d 116 (6th Cir. 1981), on remand 266
NLRB 107 (1983), enfd. 735 F.2d 969 (6th Cir. 1984);
Champaign County Contractors Assn., 210 NLRB 467
(1974); New Jersey Esso Employees Assn. (Exxon Co.), 275
NLRB 216 (1985); and South Texas Chapter, AGC, 190
NLRB 383 (1971). The contractual provisions at issue in
Paterson Parchment Paper and Oakland Press Co., both
contained clauses which were substantially identical to article
49, section 1 of the present contracts. The cases principally
relied on by General Counsel (KCW Furniture Co., 247
NLRB 541 (1980), enfd. 634 F.2d 436 (9th Cir. 1980); and
359CENTURY WINE & SPIRITS
4 I adhere to my rejection of the Union’s offer of proof, in the form of prof-
fered testimony by Teamsters Attorney David Previant, to the effect that in
his opinion the Union’s interpretation of art. 49 was correct. Attorney Previant
did not purport to base his opinion on any reported Board or court decision
interpreting art. 49, or agreement between the parties, or any admissions by
the Distributors or any negotiator speaking or acting on their behalf. Rather
his testimony simply reflected his own opinion. Such expressions of opinion
carry no evidentiary weight, regardless of the learning or experience of the
witness.
Robert A. Barnes, Inc., 268 NLRB 343 (1983)), are not in
point. The contract clauses at issue in those cases specifically
provided that a ‘‘Notice of Opening’’ could not operate to
terminate the contract, and that the contract could be termi-
nated only by a ‘‘Notice of Termination’’ or by mutual writ-
ten agreement of the parties. No comparable provisions are
involved in the present case. The history of negotiations be-
tween the present parties does not warrant a different result.
In 1982 the parties disagreed as to the effect of a section 2
notice, and the question was not resolved. In 1985 the Dis-
tributors served a section 1 notice. However their counsel
may have done so out of an abundance of caution to forestall
possible litigation, or because the Distributors wished to spe-
cifically invoke section 1. Their action did not indicate that
the Distributors agreed with the Union’s interpretation of ar-
ticle 49.4
In the present case, the Distributors repeatedly made clear
from the outset of negotiations that they would not agree to
any for continuing the contract pursuant to section 2 of arti-
cle 49 were not met, and the contract terminated on April
1 by reason of the Union’s timely notice of intent to change
or modify the contract. As the contract terminated on April
1, the Distributors were free to, as they did, cease giving ef-
fect to the union-security and checkoff provisions of the ex-
pired contract, and refuse to arbitrate grievances arising after
April 1. As General Counsel does not contend and has not
proven that in the absence of a contract, there was lack of
impasse as of September 19, it follows that General Counsel
failed to prove that Distributors acted unlawfully by imple-
menting their final offer on and after that date. Therefore I
am recommending that the pertinent allegations of the com-
plaint be dismissed. Therefore also it is also unnecessary for
me to consider the Distributors’ alternative arguments that
they gave notices which operated to terminate the contract,
or that by reason of the Union’s conduct, waiver, estoppel
or laches, the Union is precluded from asserting that the con-
tracts renewed on April 1.
C. Alleged Interrogation
The complaint alleges that on or about March 29, Re-
spondents acting through their agent Garnie Hylton, interro-
gated an applicant for employment concerning the applicant’s
union affiliation or membership, and thereby violated Section
8(a)(1) of the Act. Respondents by their answer deny the al-
legations, except to admit that Hylton was and is at all times
material a labor relations consultant of Pacific Northwest
Employee Relations Association, a wholly owned subsidiary
of West Coast, and an agent of Respondents within the
meaning of Section 2(13) of the Act; and that on or about
March 29, Respondents acting through Hylton interviewed an
applicant for employment. The applicant in question was
Richard Maule, who was the only witness to testify concern-
ing the alleged interrogation. Maule did not know the name
of the person who interviewed him. However, during inves-
tigation of the present charges, Chief Operating Officer
Thomas presented the Board with a written statement of
Hylton, in which he declared that he interviewed Maule. In
light of this admission, I find that Hylton interviewed Maule
as the agent of Respondents. In light of the circumstances of
the interview, which will be discussed, I find that in any
event the person who interviewed Maule acted as an agent
of Respondents.
Beginning on January 17, the Distributors collectively
placed advertisements in various newspapers for employees
who in the event of a strike, would be hired as permanent
strike replacements. (The Union never struck, and there was
no lockout.) Maule had worked for Standard on a temporary
basis for 2 days in early February, having been referred
through the Union’s hiring hall. In late March Maule re-
sponded to one of the ads, and applied to Standard for per-
manent employment. Maule filled out application and medi-
cal history forms, and was given a math test. He was set up
for an interview. Maule was shown a written notice to the
effect that the Distributors would be hiring permanent strike
replacements in the event of a strike, but was not permitted
to take the notice with him. On March 29 Hylton interviewed
Maule. Hylton asked Maule whether he had ever worked for
any of the Distributors, and how he worked for Standard.
Maule answered that he worked through the union hall to
temporarily replace an employee who was sick. At this point
Hylton asked Maule if he was a union member. Maule an-
swered that he was a member of 326. Hylton asked if Maule
was willing to work for $9 or $10 per hour (reflecting the
Company’s economic offer, which was below the contract
rates). Maule said that he was. Maule asked if he would have
to cross a picket line if there were a strike. Hylton answered
that he would. Maule responded that he had to work, and
would work where he chose. Hylton said that the Distributors
would be hiring immediately if there were a strike. A few
days later Maule was notified that Standard hired a more
qualified person. The complaint does not allege that Standard
discriminatorily refused to hire Maule.
In questioning Maule, counsel for General Counsel identi-
fied areas of subject matter, but did not ask leading ques-
tions. I credit the uncontroverted testimony of Maule, and I
find that Respondents violated Section 8(a)(1) by asking
Maule if he was a union member. ‘‘The Board has long rec-
ognized that questions involving union membership and
union sympathies in the context of a job interview are inher-
ently coercive and thus interfere with Section 7 rights.’’
Service Master, 267 NLRB 875 (1983), and cases cited
therein. It did not follow, from Maule’s answer that he was
referred through the union hall, that Maule was a union
member or even a union supporter. Hylton, not Maule, in-
jected the matter of union membership into the interview. He
had no legitimate reason for asking Maule whether he was
a union member. The questioning was coercive and unlawful.
With reference to the liability of West Coast for the unfair
labor practice. See Blankenship & Associates, Inc., 290
NLRB 557 (1988), and cases cited therein.
360 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 All dates in sec. III, D, and E, of this Decision are for 1989 unless other-
wise indicated.
D. Alleged Unilateral Reduction of Workweek
by Standard
The complaint alleges that on or about January 9, 1989,5
Standard repudiated the 5-day workweek provisions (art. 43,
sec. 1(a)) of its contract, or in the alternative, reduced the
workweek from 5 days to 4 days for certain unit employees,
without prior notice to the Union and without affording the
Union an opportunity to bargain concerning such action. The
complaint alleges that Standard thereby violated Section
8(a)(5) and (1) of the Act. As there was no contract in effect,
General Counsel’s case necessarily rests on the alternative al-
legation. The contract is relevant insofar as it may reflect ex-
isting terms and conditions of employment.
Article 43, section 1(a) of the expired contract provided
that: ‘‘The regular workweek in local area operations shall
consist of five (5) days of eight (8) hours each, exclusive of
the meal period, Monday through Friday.’’ Article 34, sec-
tion 3(b) of the contract provided in part that: ‘‘All starting
times and classifications for employees shall be posted for
bids and qualified employees, in seniority order, shall bid on
such starting times and classifications.’’ However the com-
plaint is not based on an alleged unilateral charge from the
procedure under article 34. Rather the complaint is based on
an alleged unlawful unilateral reduction of the workweek. In
practice, the parties have never interpreted article 43 as a
guarantee of a 5-day workweek. As indicated, Standard has
facilities in Wilmington and Dover. The Dover facility, since
commencing operations in the late 1970s has operated on a
normal 4-day workweek (Tuesday through Friday) without
an objection from the Union. During busy periods (May to
Labor Day and the holiday period in December) employees
would be notified on a Sunday whether they would be need-
ed to work the following day. At Wilmington Standard nor-
mally operated on a 5-day workweek. During the slow peri-
ods (January to May and September to December) employees
would sometimes be notified not to report on Monday. Usu-
ally such notice was given for a particular day. However the
Company introduced in evidence a notice posted on Decem-
ber 19, 1986, informing the employees that the Wilmington
facility would be closed for deliveries on three Mondays in
the following month. These notices might be given orally, or
would be posted on the employees’ time sheet or time cards.
The Union was not given copies of these notices, and never
grieved or otherwise objected to the procedure.
On January 9, Standard posted a notice to all warehouse
personnel at Wilmington, informing them that beginning the
week of January 15, 10 named employees plus all probation-
ary employees would be scheduled to work a 4-day work-
week (Tuesday through Friday). Fourteen other named em-
ployees were directed to continue working on Mondays, be-
ginning at staggered times ranging from 7:30 a.m. to 10 a.m.
Standard stated that the schedule would remain in effect until
further notice. The Union was not given notice of this sched-
ule. General warehouse manager Michael Fusca testified that
the schedule was not permanent, but would continue until the
facility got busy, and that in the meantime, employees would
be notified if they were needed on a Monday. Fusca testified
that the Company followed seniority in preparing the sched-
ule, i.e., the least senior warehouse employees were told not
to report on Mondays. Paul Houck, who is union secretary-
treasurer and business agent assigned to Standard, saw the
posted notice on January 10 when he came to the facility to
discuss a grievance with Fusca. Houck told Fusca that he did
not think Fusca ‘‘had a right just to post the starting times
for the individuals, but if he was changing any starting times,
or positions that it would have to bid as it should be as the
contract called for, and it also called for a 4-day work
week.’’ Fusca answered that business was slow and they
were doing what they had to do. Houck asked for a copy of
the notice, and Fusca sent him one. The Union did not file
a grievance or request bargaining over the matter. On Feb-
ruary 9 the Union filed an unfair labor practice charge (Case
4–CA–17888) alleging among other things that Standard ille-
gally changed the workweek and workday for employees
without any notice to or negotiations with the Union, and did
so without regard to seniority.
I find that Standard did not violate the Act as alleged in
the complaint, because the January 9 notice and its imple-
mentation did not constitute a unilateral change in terms and
conditions of employment. As indicated, on September 19,
1988, Distributors implemented their ‘‘final offer.’’ Under
that offer, Distributors proposed to delete the provisions of
article 34, section 3 pertaining to bidding for starting times,
and to amend article 43, section 1(a) to provide that: ‘‘The
specification of the work week shall not constitute a guaran-
tee of same.’’ As there were no contracts in effect on and
after April 1, 1988, and General Counsel does not allege and
failed to prove an absence of impasse, Distributors were free
to unilaterally implement those proposals. Moreover, as indi-
cated, the complaint is not based on any alleged failure to
honor the provisions of article 34, and the parties never inter-
preted article 43 as a guarantee of a five day work week.
The January 9 notice involved no substantive change in
terms and conditions of employment. In essence Standard
was simply conforming its procedure at Wilmington to that
followed in Dover. Instead of informing its warehouse em-
ployees on a weekly basis whether they were needed on a
particular Monday during the slow season, Standard reversed
the procedure by informing some of them that until further
notice, they were not expected to report to work on Mondays
unless told otherwise. In substance, this was no different
from past routine announcements, to which the Union never
objected, informing employees not to report to work on cer-
tain Mondays. This does not mean that Standard had no obli-
gation to meet with the Union on request, if the Union
wished to discuss or negotiate concerning the notice. How-
ever the Union did not do so, but chose to rest on its conten-
tion that Standard unlawfully changed terms and conditions
of employment. As no such change was involved, I am rec-
ommending that the pertinent allegations of the complaint be
dismissed.
E. Alleged Unilateral Institution of Stock Purchase
Plan by N.K.S.
The complaint alleges that on or about January 6, N.K.S.
violated Section 8(a)(5) and (1) by unilaterally instituting a
stock purchase plan. N.K.S. is a distributor for Anheuser-
Busch, Inc. In December 1988, Anheuser-Busch invited
N.K.S. to participate in its stock purchase plan. Under this
plan, employees of the distributor may purchase Anheuser-
Busch common stock through payroll deductions (minimum
361CENTURY WINE & SPIRITS
6 In Clarkwood, the union involved protested the employer’s contemplated
actions. In the present case the Union did not even bother to do this much.
I do not agree with General Counsel’s argument (Br. 29–30) that Talbert and
Medicenter are distinguishable because in the present case the Union did not
have enough time to request bargaining. In Talbert, the union learned of an-
nounced reductions in the workweek as little as two days before some were
to take effect. Nevertheless the Board found that the Union waived its right
to bargain by failing to seek negotiations over the matter. I also do not agree
with General Counsel’s reliance on Ciba-Geigy Pharmaceuticals Division, 264
NLRB 1013, 1017–1018 (1982), enfd. 722 F.2d 1120 (3d Cir. 1983). In Ciba-
Geigy, the union involved informed the employer that it needed time to review
an absentee program which the employer had announced it intended to imple-
ment. The union also protested certain aspects of the program. Nevertheless
the employer proceeded to implement the program. The Board found that the
Union did not have an adequate opportunity to bargain over the matter. In the
present case the union did not even bother to communicate with N.K.S.
of $25 per month). Anhauser-Busch pays all brokerage fees
and administrative costs, although there is a $50 fee for the
Distributor to enter the program. N.K.S. comptroller Leo
Renzette decided that N.K.S. should enter the program be-
cause it was a nice opportunity for the employees. By memo
dated January 6 which was posted on bulletin boards,
Renzette invited all employees (including nonunit) to partici-
pate in the plan on a voluntary basis. He indicated that en-
rollment cards must be completed and returned by January
20. No notice was sent to the Union. Renzette decided that
N.K.S. would purchase the first share of stock for each em-
ployee who enrolled. The then cost of one share was $32.50.
Renzette testified that he did so in order to facilitate entry
into the plan, because the Securities and Exchange Commis-
sion required purchase of one share for each employee before
the plan could commence, and it was easier to commence the
plan with one check rather than collect checks from each em-
ployee. N.K.S. sent in its check on January 24. Sixty em-
ployees, including 24 unit employees, initially participated in
the plan. Deductions commenced on February 2. Employees
were free to withdraw at any time. Renzette testified that he
did not notify the Union because he did not consider the plan
as an employee benefit, and that it was ‘‘de minimus.’’ Nei-
ther the expired contract nor the Distributors’ final offer cov-
ered such plans. N.K.S. has no history of giving gifts to its
employees. There are union stewards and assistant stewards
in the N.K.S. and Century (N.K.S. owned) units. Union
President Ciabattoni testified that on January 19 a steward
turned in a copy of the memo and an enrollment card to the
union office, and that this was the first notice he had of the
plan. Ciabattoni, as the business agent assigned to N.K.S., is
the union official designated to receive notices from N.K.S.
and Century. The Union never communicated with N.K.S. or
Century about the matter, and took no action other than to
file an unfair labor practice charge on February 9 (Case 4–
CA–17889), alleging that N.K.S. unlawfully unilaterally in-
stituted the plan.
I find that N.K.S. did not violate the Act as alleged in the
complaint. I agree with General Counsel that a stock pur-
chase plan is a benefit and term and condition of employ-
ment which is a mandatory subject of bargaining. Foodway,
234 NLRB 72, 76 (1978). I also agree that N.K.S. had a
legal obligation to notify the Union of its intention or desire
to institute the Anhauser-Busch stock purchase plan. How-
ever there was no violation because the Union slumbered on
its rights. The Union learned of the plan on January 19. Al-
though N.K.S. announced the plan on January 6 and solicited
enrollment cards preliminary to entry into the plan, N.K.S.
did not send in its own check until January 24, and no
money was deducted from employees’ paychecks until Feb-
ruary 2. Nevertheless the Union did not even make a token
protest against the N.K.S.’ action. The Union did not, until
it filed an unfair labor practice charge on February 9, give
N.K.S. any reason to believe that it had any objection to the
plan. Indeed the Union has never indicated what if any ob-
jection it has to the plan, other than the fact that it was uni-
laterally instituted. This is not the stuff of which unfair labor
practices are made. A union, when it learns either directly
from the employer or from unit employees, of an apparent
unilateral change in terms and conditions of employment,
must preserve its bargaining position by taking appropriate
action, e.g., by asking to meet and discuss the matter, re-
questing further information, filing a grievance, or giving a
satisfactory explanation for its failure to do so. The Union
does not meet this obligation by simply making a token pro-
test or filing an unfair labor practice charge. By failing to
take appropriate action, the Union waives its right to bargain
over the matter, and consequently to assert that the employer
violated its bargaining obligation. Clarkwood Corp., 233
NLRB 1172 (1977); Talbert Mfg., Inc., 264 NLRB 1051,
1054 (1982); Medicenter, Mid-South Hospital, 221 NLRB
670, 678–679 (1975).6 Therefore I am recommending that
the pertinent allegations of the complaint be dismissed.
IV. THE REMEDY
As indicated, the only violation which I have found con-
sists of Hylton’s question about Maule’s union membership.
There is no allegation that Respondents took any action
against Maule based on his answer. I find that this single iso-
lated occurrence does not warrant a remedial order. There-
fore I am recommending that the complaint be dismissed.
NLRB v. Pilot Freight Carriers, 558 F.2d 205, 214 (4th Cir.
1977), cert. denied 434 U.S. 1011 (1978); Thermalloy Corp.,
213 NLRB 129, 133 (1974).
CONCLUSIONS OF LAW
1. Respondents are employers engaged in commerce with-
in the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. At all times material, the Union has been and is, the
recognized and exclusive collective-bargaining representative
of each of the Distributors’ employees in an appropriate unit
as defined in the most recent collective-bargaining contract
between the Union and the Distributors (art. 3, sec. 1(a) and
art. 2, sec. 2 of each contract).
4. Respondents have not engaged in the unfair labor prac-
tices alleged in the complaint, except for one isolated in-
stance of interrogation which does not warrant the issuance
of a remedial order.
[Recommended Order for dismissal omitted from publica-
tion.]