Deluxe Metal Furniture Co.

National Labor Relations Board - Board Decisions

Sep 23, 1958

121 N.L.R.B. 995 (N.L.R.B. 1958)

DELUXE METAL FURNITURE COMPANY 995
requires the dismissal of a petition filed, as here, during the insulated
period of a contract, regardless of the conduct of the contracting
parties during this period Accordingly, we find the petition herein
to have been untimely filed and we shall therefore order its dismissal
[The Board dismissed the petition ]
Deluxe Metal Furniture Company and Sheet Metal Workers
International Association, AFL-CIO, Petitioner. Case No.
6-RC-20069 September 23, 1958
DECISION AND ORDER
Upon a petition duly filed, a hearing was held before a hearing
officer of the National Labor Relations Board The hearing officer's
rulings made at the hearing are free from prejudicial error and are
hereby affirmed
On March 28, 1958, the Board issued to the parties and to all other
interested organizations and persons a notice and invitation to submit
briefs or comment The Board stated that it was inviting an expres-
sion of views in this case and several related representation cases for
the purpose of considering possible revisions in some of its contract
bar policies
Briefs were filed by the Petitioner and the Intervenor herein
Briefs amw curiae were received from various organizations.2 Pur-
suant to requests therefor, the Board, on May 23, 1958, issued a notice
of hearing indicating its interest in hearing oral argument by parties
to the proceeding and the organizations filing briefs anucz On June
17, 1958, the Board heard oral argument
The Board has considered the entire record, the briefs of the parties,
the other briefs and statements, and the oral argument in this case
and finds
1 The Employer is engaged in commerce within the li ean,ing of
the Act
2 The labor organizations involved claim to represent certain
employees of the Employer
3 The Employer and the Intervenor have a history of collective
bargaining beginning in 1946 after a consent election Article XVI
of their most recent agreement provided
United Electrical Radio and Machine Workers of America, UE, Local 633, inter
vened on the basis of is contract interest
2 Briefs or comments were received from the Chamber of Commerce of the United
States The American Federation of Labor and Congress of Industrial Organizations, The
United Electrical Radio & Machine, Workers of America (UE) , United Steelworkers of
America, Sheet Metal Workers International Association, AFL-CIO, and International
Union of United Brewery, Flour, Soft Drink And Distillery Workers of America, AFL-CIO
121 NLRB No 135
996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This agreement shall remain in full force and effect for the period
from October 5, 1955, to January 10, 1958, and shall thereafter be
continued for one year periods unless notice of termination or
modification in writing by registered mail is given by either party
to this agreement. Upon receipt of such notice a conference shall
be arranged to be held within ten (10) days.
On November 7 ,1957, the Intervenor, apparently pursuant to article
XVI, sent to the Employer by registered mail a letter of notification
of a desire to modify the existing agreement.' The Employer
acknowledged the notice and the parties arranged a meeting date.
The Intervenor submitted 12 proposed changes, and negotiation meet-
ings were held on November 25, December 5, 19, and 27, and January
8, 17, and 20.
At the January 8 meeting, the last meeting before the contract
anniversary date, the parties found that of the 12, bargaining issues
they were in agreement on all but 2, namely the amount of the wage
increase and the duration of the contract. No further meeting date
.was set, but the Intervenor held a membership meeting at which 'it pre-
sented the Employer's last offer which was rejected. Thereupon, the
Intervenor notified the State and Federal mediation and conciliation
services.
The Employer and the Intervenor met with the mediators on
January 17, 1958, and they reached general agreement. However,
the Employer was unwilling to complete a contract unless the em-
ployees, who had ceased work on January 13 due to a strike and/or
lockout, were on the job when such an agreement was presented to
them for ratification. Accordingly, the parties set a meeting date for
Monday, the 20th, at 10 a. in. At a union meeting held Saturday, the
18th, the Intervenor arranged with the employees for their return to
work the following Monday and to meet with them that day at 4 p. in.
to report the results of the negotiations.
On January 18 at 8: 40 p. in., Petitioner dispatched a telegram to
the Employer's place of business and the same message to Mr. Gof-
berg, the vice president and general manager, at his home address,
claiming to represent a majority of the employees involved and re-
questing a conference. This message was telephoned to Mr. Gofberg
at his home January 18 at 10: 03 p. in. by the Western Union operator
who entered the notation that it was to be delivered to the Employer's
business office on Monday morning, January 20. At 9: 46 a. in. Mon-
day, the Petitioner's representative telephoned Mr. Gofberg, inquiring
with regard to receipt of the telegraphic message and reiterating its
3 The notice reads : "Under the provisions of the Taft -Hartley Act of 1947, but without
in any way conceding that the Act requires this notice , United Electrical, Radio and
Machine Workers of America ( UE), Local 633 , hereby notifies you of its desire to modify
our existing collective bargaining agreement which has the anniversary date of Janu-
ary 10 , 1958."
DELUXE METAL FURNITURE COMPANY 997
substance. He was told that another officer was in charge of such
matters and that, in any event, the Employer was then about to con-
clude negotiations. At 9: 58 a. in. Monday, the telegraphic message
was transmitted by teletype to the Employer's place of business.
The Employer and the Intervenor completed negotiations, dictated,
checked, and corrected a so-called memorandum of understanding, and
signed it shortly after noon on January 20. The employees ratified
the agreement at the 4 p. in. meeting. The petition herein was filed in
the Board's Regional Office on the following day, January 21, 1958.
The Employer takes the position, inter alia, that it had not received,
and had no knowledge of, the Petitioner's demand for recognition
until after the memorandum agreement was signed; that the memo-
randum agreement was merely a supplement or modification of the old
contract made retroactive to the termination date of that contract; and
that the old contract continued in effect.
The Intervenor takes substantially the same position as the Em-
ployer except that it contends that -the notice was merely one for
modification; that the old contract automatically renewed; and that
the memorandum agreement merely reflects the results of negotiations
for modification. -
The Petitioner claims that appropriate and timely demand was
made upon the Employer for recognition on January 18, when the
telegraph operator read the contents of its telegram to Mr. Gofberg,
or, in any event, on the morning of January 20, when its representa-
tive telephoned Gofberg prior to the consummation of the memoran-
dum agreement; that in accordance with the General Electric X-Ray
rule,4 the petition was filed within the required 10 days after the
demand thereby removing the memorandum agreement as a bar; and
that, contrary to the argument of the Intervenor, automatic renewal
of the old contract was forestalled by the Intervenor's notice and the
memorandum agreement was in fact an attempt to negotiate an
entirely new contract which failed.
As heretofore indicated, the Board has been reconsidering various
aspects of its contract bar rules with a view to simplifying and clarify-
ing their application wherever feasible in the interest of attaining
more expeditious disposition of representation cases and of achieving
a finer balance between the oftentimes conflicting policy considerations
of fostering stability in labor relations while assuring conditions con-
ducive to the exercise of free choice by employees.
In furtherance of these objectives, the Board has reexamined those-
phases of the contract bar rules which are related to the facts presented
in the instant case, more particularly, the timeliness and sufficiency of
rival claims and petitions, and the effect of the conduct of the parties
with respect to their contract.
I General Electric X-flay Corporation, 67 NLRB 997.
998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Having considered views and suggestions presented by the parties
and the organizations participating as amici curiae both in briefs and
oral argument before the Board, as well as its own experience, the
Board has decided to make the following specific revisions in the rules
applicable to this phase of its contract bar policies.
We have decided to abandon the General Electric X-Ray doctrine,
giving weight to a bare claim where a petition is filed within 10
days following the claim. This doctrine, it may be noted, was itself
a limitation on earlier practice which permitted a bare claim to defeat
a subsequent but otherwise valid contract without limitation as to time;
it was adopted by the Board because of the growing familiarity of
labor organizations with the Board's policies and practices, in order to
prevent claimants without representation strength from indefinitely
frustrating collective bargaining. More than 12 years have passed
since the X-Ray case was decided. With the passage of time, even
this limited intrusion upon collective bargaining is now unwarranted.
Substantially more of industry is now organized and in current-day
labor relations rival unions and employees generally are even more well
informed than when the doctrine was adopted of the duration of any
existing contract and the applicable policies and practices of the
Board.
Thus, the X-Ray rule no longer serves a need for the protection
of an opportunity for free choice by the employees, but rather has
become a means of disrupting the stability of labor relations and
placing the parties who are in the process of negotiating a contract
in a state of uncertainty. Moreover, in view of the new rules set forth
hereinafter, unions and employees will now know precisely when they
may be expected to file a petition in order to obtain an election.
From an administrative point of view, giving bare claims no weight
in determining contract bar issues will have the salutary effect, of
making it unnecessary for the parties to present, and the Board to
consider, evidence bearing on such questions as whether a claim was
communicated; by whom and to whom; the authority to receive the
claim; whether the language used constituted a claim; and when it was
received in relation to the execution or renewal of the contract and the
filing of the petition, in order to determine whether the 10-day X-Ray
rule has been met.
For the foregoing reasons the Board has decided to eliminate the
X-Ray rule and to require instead the filing of a petition with the
.Board at an appropriate time.
However, this action leaves undisturbed the effect given substantial
claims, i. e., where an incumbent union continues to claim representa-
tive status, or where a nonincumbent union has refrained from filing
a petition to establish its representative status in reliance upon the
employer's conduct indicating that recognition had been granted or
DELUXE METAL FURNITURE COMPANY 999
that a contract would be obtained without an election. If, in these
circumstances, the employer nevertheless executes a contract with
another union, that contract will continue not to bar an election.5
Retention of the status given substantial claims is regarded as desirable
because such claims arise in situations indicating unsavory practices.
A second change which the Board has decided to make relates to the
effect to be given a contract which has been executed on the same
day that a petition has been filed. Such a contract will bar an election
if it is effective immediately or retroactively and the employer has not
been informed at the time of execution that a petition has been filed.
However, of course, a contract will not bar a petition filed on the day
preceding the contract's execution 8 regardless of the employer's lack
of knowledge.' In applying these rules, the cutoff time is midnight
even though a contract signed after midnight is the result of
continuous bargaining.
A third change which the Board has decided to make relates to
when a petition will be considered prematurely filed. Henceforth,
where there is a subsisting contract, a petition filed more than 150
days before the terminal date of a contract will be regarded as prema-
ture and will be dismissed unless a hearing is directed despite the
prematurity of the petition and the Board's decision issues on or after
the 90th day preceding the expiration date of the contract.8 Such a
hearing on an otherwise premature petition will be directed only if an
investigation conducted on the basis of information furnished by the
petitioner establishes reasonable grounds for believing that the exist-
ing contract is not a bar for some reason other than timeliness, such as
schism, defunctness, illegal union security, etc.°
The Board considers the establishment of a specific period for the
timely filing of a petition desirable because it will preserve as much
.time as possible during the life of a contract free from the disruption
caused by organizational activities. Also, employees and any outside
unions will be put on notice of the earliest time for the filing of a peti-
tion. This will create a guide as to the appropriate time to organize
for, and seek a change of, representatives and, since there will be little
c See Acme Brewing Company, 72 NLRB 1005; Chicago Bridge & Iron ' Company, 88
NLRB 402, and similar cases.
a The ' old rule that an initial contract or a contract executed after the expiration of a
prior contract does not bar an election if a petition is filed with the Board before (a) the
execution date of the contract where the contract is effective immediately or retroactively ;
or (b) the effective date of the contract where the contract goes into effect at some time
subsequent to execution , remains unchanged.
7 Anheuser-Busch, Inc., et al., 116 NLRB 186, is hereby overruled insofar as it is incon-
sistent herewith.
8 To the extent that such cases as the following are inconsistent with this rule, they
are hereby overruled : Home Curtain Corp., 111 NLRB 1253; General Motors Corporation,
Chevrolet Motor Division , 111 NLRB 1238; Lewis Engineering & Manufacturing Company,
100 NLRB 1353; Stremel Bros. Manufacturing Company, 89 NLRB 1404.
8 The 150-day period will not affect the present seasonal industry rule. See Snuth
Puerto Rico Sugar Co., d/b /a Central Guanica, 100 NLRB 1309.
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
desire to engage in organizational activities much before the time when
a petition will be accepted, it should also provide longer periods of
stability. Finally, from an administrative viewpoint, the establish-
ment of a- definite period will have the salutary effect of enabling the
Regional Offices, by obtaining a limited amount of information, to dis-
miss prematurely filed petitions, thus preventing a large percentage of
such cases from being processed until an appropriate time.
A fourth change which the Board has decided to make is the estab-
lishment of a 60-day insulated period immediately preceding and
including the expiration date of an existing contract, whether or not
it contains an automatic renewal clause and regardless of the period
provided for in such clause , during which the parties may negotiate
and execute a new or amended agreement without the intrusion of a
rival petition.1° All petitions filed more than 60 days but not over
150 days before the terminal date of any contract will be timely. A
petition filed during the 60-day insulated period will be dismissed as
untimely, regardless of any conduct of the parties during that 60-day
period. If the contract contains no automatic renewal clause or the
parties have forestalled automatic renewal and no new or amended
agreement has been executed within the 60-day period, a petition will
be timely if filed after the terminal date of the old contract and before
the execution or effective date of any new contract, whichever is later.
However, a petition filed subsequent to the 60-day insulated period,
but on or after the effective date of a contract executed within that
60-day period, will be untimely. The foregoing will apply to any
contract with a fixed term whether or not it contains an automatic
renewal clause and regardless of the period specified therein for
automatic renewal. The 60-day insulated period will not change the
automatic renewal date specified in the contract or make fixed-term-
only contracts automatically renewable. Where the contract is one of
"unreasonable duration," the insulated period will be the last 60 days
of the reasonable period. If the automatic renewal clause specifices a
period other than 60 days, the parties thereto will be bound by their
own agreement for purposes of forestalling renewal, but the timeliness
of a petition will be keyed to the 60-day period." Of course, the date
on which a petition is received by the Regional Office of the Board will
be controlling for purposes of determining its timeliness in relation to
either the 60-day insulated period, the 150-day rule for the filing of a
petition, and the execution or the effective date of a contract.12
" De Soto Creamery and Produce Company, 94 NLRB 1627 , and Robertson Brothers
Department Store, Inc, 97 NLRB 258, are hereby overruled only to the extent that they
are inconsistent herewith.
"American Factors, Ltd . ( Hc.lo Branch ), et al., 104 NLRB 199; Chapman Valve
Manufacturing Company, 40 NLRB 800 , and similar cases'are hereby overruled to the
extent that they are inconsistent with this new rule.
'When amendment of a petition or other circumstances bring into issue which of two
or more dates should be considered as the filing date, the rules for determining this issue
remain unchanged. Thus, the filing date of the original petition is controlling ( 1) where
DELUXE METAL FURNITURE COMPANY 1001
The Board believes the 60-day insulated period desirable for several
reasons It will give rival unions a definite time-guide as to when to
organize, and employees will know when to seek a change in repre-
sentatives if they so desire Thus, it will avoid as much disruption of
labor relations as possible during a contract term All potential peti-
tioners will be required to have their petitions on file at least 61 days
before the terminal date of the contract or run the risk that a contract
executed during the 60-day insulated period will prevent another
opportunity to file for the new contract's reasonable term It will also
prevent the threat of overhanging rivalry and uncertainty during the
bargaining period, and will eliminate the possibility for employees to
wait and see how bargaining is proceeding and use another union
as a threat to force their current representative into unreasonable
demands
Under the previous rules, if the parties did not forestall renewal of
their contract, a petitioner was obligated to take appropriate action
before the automatic renewal date But if the parties gave notice
forestalling renewal, a petitioner obtained additional time in which to
file, thus enabling it to intrude into the bargaining relationship merely
because the parties were attempting to perform their bargaining obli-
gations The Board finds no particular merit in extending a rival
union's opportunity merely because the parties are attempting to per-
form their statutory duty The question of whether or not automatic
renewal of a contract has been forestalled should be considered only
after the parties have failed to execute a new agreement d wring the
60-day insulated period Further, the creation of the 60-day insulated
period and the requirement that rival petitions be on file prior thereto
without regard to whether the parties have forestalled automatic re-
newal will eliminate in many cases the necessity of taking evidence
and weighing the actions of the parties with respect to their contract
The Board's premature-extension doctrine will be affected only to
the extent that a prematurely extended contract will not bar an elec-
tion if the petition is filed over 60 but not more than 150 days before
the terminal date of the original contract Thus, a contract will con-
tinue to be considered prematurely extended if during its term the
contracting parties execute an amendment thereto or a new contract
which contains a later terminal date than that of the existing contract,
except when executed (1) during the 60-day insulated period preced-
ing the terminal date of the old contract, 13 (2) after the terminal
it is later amended, if the employers and the operations or employees involved were
contemplated by or identified with reasonable accuracy in the original petition, or the
amendment does not substantially enlarge the character or size of the unit or the number
of employees covered, and (2) where a favorable ruling is made on a petitigner's appeal
from a Regional Director's dismissal of a petition, or a motion for reconsideration of a
Board decision
Is In this respect the rules of such cases as RepubLco Steei Corporation, 84 NLRB 483,
and De Soto Creamery, footnote 10, supra, are hereby modified
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
date of the old contract if notice by one of the parties forestalled its
automatic renewal or it contained no renewal provision; or (3) at a
time when the existing contract would not have barred an election
because of other contract-bar rules.14
Finally, the Board has decided to make several substantial revi-
sions in the area concerned with provisions for change in a contract
and the effect of the conduct of the contracting parties. Thus, an
automatically renewable contract between an incumbent union and
an employer will not bar an election based upon a petition filed after
its expiration date, but before execution of a new contract, if renewal
has been forestalled and the parties have failed to execute an agree-
ment within the 60-day insulated period.'5 Any notice of a desire to
negotiate changes in a contract received by the other party thereto
immediately preceding the automatic renewal date provided for in
the contract will prevent its renewal for contract bar purposes, despite
provision or agreement for its continuation during negotiations, and
regardless of the form of the notice.16
Further, the Board has decided to eliminate its present rule that a
party receiving a late notice under the automatic renewal clause may,
by conduct with respect thereto, waive its belatedness, thereby having
the contract treated as though timely notice had been given.14 An
untimely notice will, instead, be treated merely as a request for modi-
fication by mutual assent unless the parties thereafter clearly termi-
nate the contract. Even though the parties terminate, their contract
after a late notice, the 60-day insulated period preceding its normal
terminal date will apply.
A written agreement which reinstates the old automatically renew-
able contract will be treated as a new contract. However, if the par-
ties actually terminate the contract and fail to execute a new agree-
ment within the protected period, the contract will be treated in the
same manner as one for a fixed term only or one in which the parties
had forestalled renewal. The question of whether the parties had
actually terminated their contract after a late notice will arise only on
a petition filed after the 60-day insulated period, where the parties
have failed to execute an agreement either within that period or before
the date of filing.
14 An example of such a rule would be where a contract had been in effect for its
reasonable term. See Cushman's Sons, Inc ., 88 NLRB 121.
ss However, the rule that where the administration of a contract has, been abandoned, it
cannot automatically renew for contract bar purposes , remains intact.
11 The old rule is still applicable that the effectiveness of timely notice to forestall
automatic renewal is not changed by inaction of the parties thereafter, even though the
contract required certain action within a specified period ; rejection of the notice ; or
withdrawal of the notice.
17 Carter's Ink Company, 109 NLRB 1042 ; Superior Sleeprite Corporation, 106 NLRB
228; Wisconsin Telephone Company, 65 NLRB 368, and similar cases, are reversed in
this respect.
DELUXE METAL FURNITURE COMPANY 1003
Elimination of the waiver aspect of the present rule on untimely
notice is regarded as desirable because the 60-day insulated period
procedure alone eliminates a substantial portion of the situations
where the issue would arise and its remaining value is questionable
when weighed against the amount of evidence required in presenta-
tion and evaluation to establish the existence of a waiver.
Notice to modify or actual modification of substantive provisions
of a contract by the parties during its term, whether or not the con-
tract contains a modification clause and regardless of the scope of any
such clause, will not remove the contract as a bar to an election based
upon an otherwise prematurely filed petition."'
When a contract contains separate modification and automatic
renewal clauses each of which provides for notification at approxi-
mately the automatic renewal date, or the modification clause provides
for notification at any time and notice is given shortly before the
automatic renewal date of the contract, the notice will be treated as
one to forestall automatic renewal.19 The only exception will be
where the contract specifically provides that if notice pursuant to the
modification provision is given the contract will nevertheless renew,
and the notice is specifically made pursuant to such a modification
,clause.20
The treatment of all notices given at approximately the renewal
period as notices to forestall automatic renewal, unless very strict
provisos are met, will practically eliminate the very difficult area of
contract bar rules covering coterminus modification and termination
clauses and will render unnecessary evaluation of the contract clause,
the type of notice given, and the conduct of the parties with respect
thereto, which are frequently inconsistent and create difficulties in
determining their effect upon contract bar.21
A midterm modification provision, regardless of its scope, will not
remove a contract as a bar unless the parties actually terminate the
contract. The Board believes it best to permit the parties to modify
or amend any of the substantive provisions of their contract, in ac-
cordance with any modification clause-whether broad or narrow in
scope-or by mutual assent at any time during its term. Thus, no
midterm modification clause, nor any action pursuant thereto short
of actual termination, will remove a contract as a bar, except where a
notice is given immediately prior to the automatic renewal date of
is See Western Electric Company, Incorporated, 94 NLRB 54.
18 To the extent that such cases as the following are inconsistent with this rule, they
are hereby overruled : Helmco, Inc , 114 NLRB 1585; Griffith Rubber Mills, 114 NLRB 712;
Eagle Signal Corporation, 111 NLRB 1006.
21 Mallinckrodt Chemical Works, 114 NLRB 187 ; Michigan Gear & Engineering Company,
114 NLRB 208.
21 See, for example , anion Bag & Paper Corporation, 110 NLRB 1631. Also, see cases
cited in footnote 19, supra.
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such a contract. Modification clauses containing provision for uni-
lateral termination by notice if agreement is not reach or permitting
a strike or lockout in support of any demand made during the modi-
fication negotiations and the right to terminate thereafter, will be
treated in the same manner as any other request for midterm modifi-
cation and will not remove the contract as a bar.22
By treating midterm modification of an agreement in this manner
the Board anticipates the elimination of the practice of scrutinizing
and classifying the scope of a modification clause, the breadth of any
notice given, and the actions of the parties in order to evaluate the
intended effect of a notice or clause and then basing a contract-bar
determination upon the resulting evaluation.23 All the parties will
need to prove and the Board will need to determine is whether the
contract has in fact been terminated. When parties include in their
fixed-term contract a clause requiring certain steps such as negotia-
tions, deadlock, and/or strike or lockout as conditions precedent to
termination, the contract will continue to be a bar regardless of which
of its conditions short of termination has been met. It is believed
that to hold this type of contract not a bar is to disregard the sig-
nificance of these intermediate steps. For, by including a clause con-
taining such conditions precedent to termination, it is clear that the
parties intend and expect that their bargaining relationship will con-
tinue for the full specified period, and that the termination part of
the clause is one to be exercised, if at all, as a last resort. It should
not be assumed that because one or more of the conditions precedent
have been met the parties will exercise their right to terminate the
contracts. On the contrary, having engaged in bargaining sessions
which are frequently long and arduous, and having finally arrived at
an agreement, the parties in all probability would be unwilling, dur-
ing midterm modification negotiations, to abandon their contract
thereby sacrificing the mutual benefits achieved. Such a contract is
as effective in stabilizing labor relations, until the parties actually
elect to terminate, as any other contract. For, even without such a
provision, a contract may be terminated by mutual assent of the
parties.
Finally, a contract which has been terminated at a time other
than during the 60-day insulated period will not bar a petition. A
contract will be deemed terminated if it is terminated by mutual
assent or pursuant to its terms, or if a notice of termination or cancella-
tion is given because of breach of a basic contract provision such as
a no-strike clause.
sa Such cases as Ketchtikan Pulp Company, 115 NLRB 279 , and General Electric Com-
pany, 108 NLRB 1290, are hereby overruled.
23 See, for example, Anaconda Copper Mining Company, 112 NLRB 1347; Dick Brothers,
Inc, 107 NLRB 1054.
DELUXE METAL FURNITURE COMPANY 1005
We turn now to the arguments and evidence presented in the instant
proceeding. As noted above, the Intervenor alleges that its notice of
November 7, 1957, was one merely requesting modification and did not
forestall the automatic renewal of the existing contract.
In support of its position the Intervenor points to the contractual
provision permitting modification or termination contained in the
duration and renewal clause. It claims that this clause permits the
election of modification or termination and that by giving a modifi-
cation notice it elected not to forestall renewal of the contract. While
it is true that the notice given was couched in terms of a request for
modification, the duration clause in the contract made renewal con-
tingent upon an absence of notice either to modify or terminate.
Thus, by its specific language a modification notice under this pro-
vision forestalled renewal as effectively as a termination notice. In
these circumstances, even under the old rules, because of the wording
of the contract clause, the notice could not be treated as merely one for
modification. And, under the new rules, as the notice was given
near the renewal date of the contract, the notice must be treated as
having forestalled automatic renewal. For the modification clause in
the contract does not specifically provide that if notice pursuant
thereto is given the contract will nevertheless renew.
As indicated above, the notice here was given more than 60 days
before the contract's stated termination date. However, the contract
itself did not specify a Mill B date for such notice. Thus, under the
new rules the parties would have been bound by the terms of their
contract for notice purposes and could have served notice at any
time up to the termination date of their contract. Since no petition
was on file before the 60th day preceding the contract termination
date they would have been protected for the entire insulated period
during which they could have signed a contract. The question of
whether they had in fact forestalled renewal of their contract arises
only because they failed to reach an agreement and'execute a contract
before the expiration of the insulated period and because a petition
was filed thereafter. Had they failed to give notice before the
renewal date of the contract but given notice and engaged in negotia-
tions thereafter, such late notice would have been treated under the
revised policy in the same manner as a midterm modification notice.
Thus, were the notice herein to qualify as a midterm modification
notice, neither the ensuing work stoppage, the breadth of the notice,
the notice clause, nor the negotiations of the parties would have had
any effect upon the issue of contract bar, unless there was actual
termination of the contract.
We have concluded that the notice by the Intervenor forestalled
renewal of the contract. Since under our new rules the X-Ray doc-
trine has been eliminated, the question of whether the petition is
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
timely depends upon whether the memorandum agreement signed
before the filing of the petition would qualify as a bar. Obviously
resolution of this issue requires an examination of the memorandum
agreement. For if we were to find that the document was an inade-
quate or incomplete contract, it would not bar this petition. On the
other hand, were we to find that the memorandum agreement in itself
was a complete contract or constituted an amendment and reinstate-
ment of the old contract, the petition would have to be dismissed.
After carefully reading the entire memorandum agreement, we are
satisfied-particularly in light of its references to the old contract
and the changes of specific provisions in that contract effected by the
memorandum agreement-that the memorandum agreement was an
amendment of the old contract.
The amendment, which modified the existing contract and placed
certain provisions thereof into effect immediately and other provisions
retroactively, was signed and ratified by the union membership on
January 20, 1958. The petition, although mailed on the 20th, was not
received in the Board's Regional Office until January 21, 1958. Thus,
there is no question but that the contract as amended effectively rein-
stated the old contract as of the date the amendment was finalized,
i.e., executed and ratified, since ratification was required. It there-
fore, under the revised policy, bars this proceeding.
The Petitioner, in oral argument before the Board, favored simpli-
fied and more specific rules for the application of the contract bar
policy. However, it recognized that application of any changes to
the instant case might impair its position. The Petitioner therefore
requested the Board to apply such changes in futuro.
We recognize and appreciate the sincerity and objectivity of Peti-
tioner in giving its evaluation of possible revisions in the application
of the contract bar policy. It is particularly apparent that Peti-
tioner's contribution in this respect was made without regard to the
narrow confines of self-interest dictated by the circumstances of this
particular case. However, in establishing revisions of precedent there
is always the likelihood that such revisions will bring about a different
result in some pending proceeding than would have obtained under
a prior policy or procedure. This is true not only of the case in which
such revisions are first announced and applied, but also with respect
to any other case which has not yet been decided, because it has not
reached the Board's level or is at one of the other stages of the adminis-
trative process such as the hearing. Thus, to adopt these revisions
of contract-bar policy and then allow the instant proceeding as an
exception without permitting a similar exception to all pending cases
would be inequitable. To establish an in futuro rule for all pending
cases would create an administrative monstrosity. The judicial prac-
tice of applying each pronouncement of a rule of law to the case in
CUSTOM MOLDERS OF P. R. 1007
which the issue arises and to all pending cases in whatever stage is
traditional and, we believe, the wiser course to follow. Accordingly,
we deny the Petitioner's request that any' revised policy not be applied
to the instant case.
In view of the foregoing, and particularly our finding that the peti-
tion was filed after the contract was amended, we find that the con-
tract for the period January 10, 1958, to March 31, 1959, constitutes_a
bar to this proceeding. Therefore, we find that no question affecting
commerce exists concerning the representation of employees of the
Employer within the meaning of Section 9 (c) (1) and Section 2 (6)
and (7) of the Act. Accordingly, we shall dismiss the petition filed
herein.
[The Board dismissed the petition.]
Custom Molders of P. R . and Shaw-Harrison Corporation, Peti-
tioner and United Rubber, Cork, Linoleum and Plastic Workers
of America, AFL-CIO. Case No. 24-ISM-50. September 23,1958
DECISION AND DIRECTION OF SECOND ELECTION
Pursuant to a stipulation for certification upon consent election
entered into by the parties on March 20, 1958, an election by secret
ballot was conducted on April 3, 1958, under the direction and super-
vision of the Regional Director for the Twenty-fourth Region, among
employees in the appropriate unit as set forth in said stipulation.
Upon the conclusion of the election, each of the parties was served
with a tally of ballots which showed that of approximately 322 eligible
voters, 291 cast ballots, of which 42 were for and 227 were against the
Union. Nineteen ballots were challenged, a number insufficient to
affect the results of the election. Three void ballots were cast.
On April 10, 1958, the Union filed timely objections to the conduct
of the election. On July 2, 1958, the Regional Director, after investi-
gation, issued his report and recommendations on objections to elec-
tion, recommending that the objections be overruled, but that the
election be set aside because of the Employer's violation of the Board's
Allied Electric Products rule.' On July 21, 1958, the Employer filed
timely exceptions to the Regional Director's report.
The Board has considered the objections of the Union, the Regional
Director's report,2 the Employer's exceptions, and the entire record
in the case, and finds :
1 Allied Electric Products, Inc, 109 NLRB 1270
2 As no exceptions have been taken to the Regional Director's recommendations over-
ruling the Union's objections to the conduct of the election , those recommendations are
hereby adopted.
121 NLRB No. 130.