Hill & Sanders-Wheaton, Inc.

National Labor Relations Board - Board Decisions

Mar 31, 1972

195 N.L.R.B. 1137 (N.L.R.B. 1972)

HILL & SANDERS-WHEATON, INC. 1137
Hill & Sanders-Wheaton , Inc. and Raymond C. Wol-
ford, Petitioner . Case 5-RD-397
March 31, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING,
JENKINS, AND KENNEDY
Upon a decertification petition duly filed under Sec-
tion 9(c) of the National Labor Relations Act, as
amended, a hearing was held before Hearing Officer
William I. Shooer at Washington, D.C. Following the
hearing and pursuant to Section 102.67 of the Board's
Rules and Regulations and Statements of Procedure,
Series 8, as amended, the Regional Director for Region
5 transferred this case to the Board for decision. None
of the parties filed a brief.
The Board has reviewed the Hearing Officer's rulings
made at the hearing and finds that they are free from
prejudicial error. They are hereby affirmed.
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the
meaning of the Act and it will effectuate the purposes
of the Act to assert jurisdiction herein.
2. The Petitioner asserts that the Intervenor,' which
is the currently recognized bargaining representative of
the employees involved herein, is no longer the repre-
sentative as defined in Section 9(a) of the Act.
3. No question affecting commerce exists concerning
the representation of certain employees of the Em-
ployer within the meaning of Section 9(c)(1) and Sec-
tion 2(6) and (7) of the Act.
The Intervenor was certified as the collective-bar-
gaining representative of the employees herein on Au-
gust 22, 1969.2 As a result of negotiations, a contract
was signed by the Employer and the Intervenor on
September 2, 1969, which was retroactive to August 13,
1969. This contract had an expiration date of August
11, 1971.
Pursuant to the provisions of the contract, the Inter-
venor sent a timely notice to terminate this contract
prior to the 60th day before the contract was to expire,
and thereafter negotiations were carried on by the par-
ties between the time the notice was sent and the con-
tract's expiration date. As a result of the parties' inabil-
ity to reach a new contract agreement, the Intervenor
went on strike on August 12, 1971, the day after the
contract expired.
Subsequently, on August 15, 1971, as authorized by
Congress' and implemented by Executive Order No.
Automotive Lodge 1486 District Lodge No. 67, International Associa-
tion of Machinists and Aerospace Workers, AFL-CIO.
Case 5-RC-6800, not published in Board volumes.
Economic Stabilization Act of 1970 (P.L. 91-379, 84 Stat . 799), as
amended.
11615, President Nixon announced that wages and
prices were to be frozen for a 90-day period commenc-
ing on that date. As a result of this announcement, the
Federal mediator who had entered the contract
negotiations on August 11 contacted the Intervenor's
agent and asked about the employees returning to
work. The mediator then arranged a meeting attended
by the parties and himself. As a result of this meeting,
held on August 16, 1971, the parties and the mediator
signed an agreement, on that date, which reinstated all
the terms and conditions of the old contract. This
agreement was to remain in effect "until November 27
or such further time as the President's `Wage-Price
freeze' declared August 15, 1971 is rescinded."4 There-
after, on August 17, 1971, the strike ended and the
employees returned to work. There is no indication in
the record whether the parties tried to negotiate during
the freeze but no new agreement had been reached
when the instant petition was filed on September 30,
1971.5
The Intervenor contended at the hearing that the
extension agreement signed August 16, 1971, acted as
a bar to the decertification petition since the petition
was not filed at least 60 days prior to the expiration of
the agreement, which it stated was November 27, 1971.
It thus entered a motion to dismiss this petition. The
Petitioner and the Employer argued that an agreement
such as the August 16 agreement is an interim agree-
ment and not a bar and since the petition was filed after
the expiration date of the original agreement, it is
timely.
By the rules of contract bar which have evolved over
the years, the Board has tried to harmonize two some-
times conflicting concepts-that of industrial stability
as represented by the existing contract and that of the
employees' right to select or change their bargaining
representative. One of the paramount rules the Board
has set out is that a petition which is filed during the
last 60 days of a valid contract will be considered un-
timely and will be dismissed.6 Thus during this 60-day
"insulated" period, the parties to the existing contract
are free to execute a new or amended agreement with-
out the intrusion of a rival petition, but if no agreement
is reached or if the agreement which is reached does not
constitute a bar, itself, then a petition filed after the
expiration of the old, valid contract will be timely and
entertained.
The Intervenor's agent said he felt that as a result of the President's
announcement the Intervenor could not secure any wage gains for the
employees and hence it signed the agreement.
A few days after the President's announcement , the Office of Emer-
gency Preparedness , which was to monitor wages and prices during the
freeze, issued a series of questions and answers concerning the effects of the
freeze. According to the OEP, parties were free to bargain during the freeze
and to sign contracts but the implementation of any wage increases these
contracts might bring had to await the lifting of the freeze.
Deluxe Metal Furniture Company, 121 NLRB 995.
195 NLRB No. 204
1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Under such rules, we would ordinarily find that the
August 16, 1971, agreement entered into by the Em-
ployer and the Intervenor herein was not a bar since it
was a contract, of indefinite duration and we would
entertain the petition.7 But the announcement of the
wage-price freeze had such an extraordinary impact
upon the normal course of collective bargaining, be-
tween these parties that we are, in this case, persuaded
that the ordinary rules of contract bar are inapplicable
and hence we dismiss the petition.
The petition was filed during a time when the Inter-
venor was voluntarily complying with the announced
Federal policy of the time-i.e., refraining from strik-
ing.' The Board in an analogous situation, in Aerojet-
General Corporation, 9 refused to entertain an otherwise
timely petition, filed at a time when the union there was
voluntarily refraining from striking at the behest of
Federal officials while continuing to bargain, and we
find the rationale of that case persuasive here.
In relevant part, the facts in Aerojet reveal that the
parties began negotiations before their existing contract
expired and continued bargaining thereafter. On the
day the contract was to expire, the parties entered into
an agreement continuing that old contract on a day-to-
day basis subject to 24-hour notice of termination.
Since the negotiations involved an employer who was
doing work in the space and missile field, the President
of the United States intervened in the negotiations to
request, the union not to strike and the union agreed to
hold off striking for a period of 60 days. At the end of
this period, when no agreement had been settled upon,
the union struck. But the ,Secretary of Labor asked the
union to call off its strike. The union did so and negotia-
tions continued. While negotiations were then in
progress, a petition was filed by another union seeking
an election among a group of employees represented by
the bargaining union. Shortly thereafter, the bargaining
union and the employer signed an agreement.
In such, a situation, the Board dismissed the petition,
despite that fact that there no written contract had been
finally agreed upon at the time the petition was filed. In
doing so, the Board stated that it did not regard its
contract-bar rules as so inflexible as to exclude devia-
tions in situations where unusual circumstances com-
pelled a different result. Commenting further, the
Board noted that though the administration of the Na-
tional Labor Relations Act is an important element of
the country's national labor policy it is not the only
instrument of this policy, and, therefore, in appropriate
Cf. Frye & Smith, Ltd, 151 NLRB 49, 50.
° On August 17, 1971, the Federal Mediation and Conciliation Service
director requested voluntary compliance in ending all labor disputes includ-
ing strikes - and lockouts, during the freeze period. The director commented
that strikes at this time would be unstabilizing and expressed the opinion
that they might possibly be illegal under the Economic Stabilization Act.
' 144 NLRB 368 (1963).
situations, the Board had taken into account, and
sought to accommodate its proceedings to, other in-
struments of the national labor policy." Deciding that
the situation in Aerojet was just such a situation, the
Board refused to entertain the petition since, the Board
felt, to hold an election would be to act at cross-pur-
poses with the Government-sponsored procedures
which were set up to and did maintain industrial peace
in the defense industry involved. Further, to hold an
election would penalize the union for cooperating with
the requests of the President and Secretary of Labor to
surrender its rights to strike and might discourage
unions from acceding to future Presidential requests to
forego strike action. The Board noted that if the union
had not agreed not to strike it could have been in a
position to bring full economic pressure to bear on the
employer in support of its bargaining demands and this
quite possibly could have hastened a favorable settle-
ment before the petition was filed. The Board then
significantly stated that "it may also well be, for all we
know, that the union might thereby have left itself less
vulnerable to those employee dissatisfactions which led
to defections to the rival union and the filing of the
petition.""
In the present case, the Intervenor was on strike and
at the request of the Federal mediator and in conform-
ity with the Federal policy during the freeze returned
from strike status and continued to refrain from strik-
ing during the course of the freeze. As in Aerojet, the
Intervenor acceded to the governmental policies, fore-
bore to strike and thereby forfeited such chance as it
had to negotiate and sign a contract before the instant
petition was filed.12
We have decided further that we will allow the Em-
ployer and the Intervenor another 60-day period in
which to bargain free from the possibility of any rival
petitions. Since the parties could not bargain even when
the freeze ended because of the instant petition13 we
shall give the parties that 60-day period from the date
of our decision herein dismissing the petition issues.
10 See 144 NLRB 368 at 371, fn. 6, for cases cited therein.
" 144 NLRB 368 at 372.
We find no significance in the fact that, as opposed to the union's
forebearance from striking in Aerojet which was done under no threat of
illegality if it did strike, in the instant case striking might have been consid-
ered illegal. The statement with regard to illegality was only an opinion
expressed by one public official which in fact did not become the Federal
policy. The key is that in both cases there was voluntary compliance with
Federal policy by the unions in both cases and urgings of Federal officials
to do so in both cases. We also attach no importance to the fact that
negotiations continued in Aerojet while herein, although the record is not
clear, it appears that no negotiations took place during the freeze. While the
negotiations could have continued during the freeze period, it is clear that
the parties were uncertain as to what limitations and/or restrictions, if any,
on wage and fringe benefits would finally be specified at the freeze's end.
11 Shea Chemical Corporation, 121 NLRB 1027.
HILL & SANDERS -WHEATON, INC. 1139
ORDER
It is hereby ordered that the petition filed herein be,
and it is hereby, dismissed.
fi U. : GOVERNMENT PRINTING OFFICE • 1973 0 - 469-950