Jet Line Products, Inc.

National Labor Relations Board - Board Decisions

Apr 28, 1977

229 N.L.R.B. 322 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jet Line Products, Inc. and International Brotherhood
of Electrical Workers, Local Union 379, AFL-
CIO. Case 11 -CA-6049
April 28, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
On January 27, 1976, Administrative Law Judge
Jennie M. Sarrica issued the attached Decision in
this proceeding dismissing the complaint in its
entirety. Thereafter, the General Counsel filed
exceptions and a supporting brief, and the Charging
Party Union filed exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
only to the extent consistent herewith.
Jet Line Products, Inc., hereinafter referred to as
the Respondent, is engaged in the manufacture of
electrical products. On February 1, 1973, the Re-
spondent entered into a 2-year collective-bargaining
agreement with the International Brotherhood of
Electrical Workers, Local Union 379, AFL-CIO,
hereinafter referred to as the Union. Article I, section
I, of the agreement provided that it would remain in
effect until January 31, 1975, and from year to year
thereafter, "unless notice of desire to change or
terminate is given by either party to the other at least
sixty (60) days prior to the expiration date. Such
notice shall specify the nature of the changes
proposed or the fact that a termination is proposed."
Under this provision, notice to terminate or change
the February 1, 1973, agreement was due by
December 2, 1974.
The Administrative Law Judge found that Eugene
Ruff, the Union's business manager, telephoned
Robert MacFetrich, the general manager of Respon-
dent's Matthews plant, on or about November 25,
1974, to advise him that the Union was in the process
of formulating bargaining demands and to ascertain
if late tendering of a formal list of proposed changes
would present any problems. Ruff also stated that if
he was not granted the requested grace period he
would timely deliver a list of proposed modifications
which would specify every contract section he
thought employees might want changed. The Admin-
I Mastro Plastics Corp. and French-American Reeds Mfg. Co., Inc. v.
N.L. R.B., 350 U.S. 270, 287-288 (1956).
229 NLRB No. 51
istrative Law Judge further found that MacFetrich
assured Ruff that this would not be necessary, but
did mention that the contract probably would have
to be extended by the number of days that the Union
submitted the proposal late.
The Administrative Law Judge found that the next
communication between the parties occurred around
January 10, 1975, when Ruff telephoned MacFetrich
and mentioned that he was late in forwarding the
proposals, but stated that MacFetrich would see
them shortly. MacFetrich replied, "O.K." In a letter
to MacFetrich dated January 14, 1975, Ruff request-
ed a meeting for the purpose of negotiating a
contract, and attached the proposed contract chang-
es. The parties met on February 3, 1975, at which
time the Respondent refused to bargain because it
considered the Union's proposals as untimely sub-
mitted.
On the basis of these facts, the Administrative Law
Judge concluded that automatic renewal of the
contract had not been forestalled and that therefore
the Respondent had not violated the Act by its
refusal to negotiate with the Union. Specifically, she
interpreted article I, section 1, of the agreement as
incorporating two separate requirements with simul-
taneous deadlines: (1) "notice of desire to change"
the terms of the contract must be given to the other
party, and (2) "the nature of the changes proposed"
must be specified. Although the Administrative Law
Judge found that in the November 1974 telephone
conversation the Respondent agreed to "accept the
Union's specific proposals at a date later than that
required" by the contract, she nevertheless conclud-
ed that the necessary "notice of desire to change" the
terms of the contract was not timely given. Citing the
absence of a specific "contention that oral notifica-
tion forestalling contract renewal was given and
accepted in the November conversation," the Ad-
ministrative Law Judge found that the parties had
not agreed to waive the written notice requirement of
Section 8(d)(l) for modifying or terminating a
collective-bargaining agreement. Since the Union
failed to give timely written notice of a desire to
change the contract, she found that the contract
automatically renewed itself pursuant to its terms,
and recommended dismissal of the complaint. We
disagree.
First, the Administrative Law Judge's reliance on
the requirements of Section 8(d) is misplaced.
Section 8(d) was designed to eliminate the "quickie
strike" by providing a particular 60-day period
during which unions may not strike and employers
may not lockout in support of bargaining demands.'
"As there was no strike in this case, Section 8(d) is
322
JET LINE PRODUCTS, INC.
inapplicable." United States Gypsum Company, 90
NLRB 964, 968, fn. 11 (1950).2
Second, contrary to the Administrative Law Judge,
we find that the requirement of article I, section 1, of
"notice of desire to change" the terms of the contract
can be fulfilled by either written or oral notice.
Examination of other portions of the contract reveals
that where the parties intended notification to be in
written form they explicitly so stated. In contrast, the
provision in question here refers only to "notice" and
does not specify that it be given in writing.
Accordingly, we conclude that an oral communica-
tion of an intention to modify the terms of the
contract is sufficient to satisfy the notice requirement
of article I, section 1.
Finally, we are persuaded that Respondent re-
ceived such oral notice in the November telephone
conversation with Ruff. In view of the Administra-
tive Law Judge's finding that at that time Respon-
dent agreed to "accept the Union's specific proposals
at a date later than that required" by the contract, it
must follow that that same conversation, which
occurred before the December 2 contract deadline,
constituted oral "notice of desire to change" the
terms of the contract. For, Respondent could hardly
have agreed to extend the date for submitting specific
proposals for new contractual terms without having
been given notice that the Union did, in fact, desire
to change the contract. Similarly, that Respondent,
in its conversation with Ruff, commented on the
possibility of extending the contract by the number
of days that the Union was late in submitting its
proposals clearly indicates that Respondent was
placed on notice in November of the Union's
intention to modify the agreement. Accordingly,
since the Union gave timely oral notice of a desire to
change the terms of the contract and since the
Respondent agreed to accept the Union's specific
proposals at a date later than the contract deadline,
we find that automatic renewal of the agreement was
forestalled, and Respondent's subsequent refusal to
negotiate when the Union submitted its proposed
changes was violative of Section 8(a)(5) and (1).
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in
commerce within 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.
2 United States Gypsum Company was cited with approval in Proctor &
Gamble Independent Union v. Proctor & Gamble Mfg. Company. 312 F.2d
181, 189 (C.A. 2, 1962), cert. denied 374 U.S. 830. See Anchorage Laundry &
Dr) Cleaning Association, Inc., 216 NLRB 114 (1975); General Maintenance
Service Compane, Inc.. 182 NLRB 819, 822, fn. 9 (1970), enfd. 77 LRRM
3. The Respondent violated Section 8(a)(5) and
(I) of the Act by refusing to bargain with the Union
concerning various changes to the collective-bargain-
ing agreement it had with the Union.
4. The aforesaid unfair labor practice is an unfair
labor practice affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act, we
shall order that it cease and desist therefrom, and,
upon request, bargain collectively with the Union as
the exclusive representative of all employees in the
appropriate unit concerning the Union's proposed
changes in the collective-bargaining agreement and,
if an understanding is reached, embody such under-
standing in a signed agreement.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Jet Line Products, Inc., Matthews, North Carolina,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning the
proposed changes in the collective-bargaining agree-
ment it has with International Brotherhood of
Electrical Workers, Local Union 379, AFL-CIO, as
the exclusive bargaining representative of its employ-
ees in the following appropriate unit:
All production and maintenance employees en-
gaged in the manufacturing, processing and
fabrication of the products of the Employer at its
plant at Matthews, North Carolina; excluding
foremen, model shop and general office employ-
ees, guards and watchmen, and supervisors as
defined in the Act.
(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 which
the Board finds will effectuate the policies of the Act:
(a) Upon request, bargain with the above-named
labor organization as the exclusive representative of
all employees in the aforesaid appropriate unit
concerning the Union's proposed changes in its
2607, 65 LC ¶ 11816 (C.A. 4, 1971): Chain Service Restaurant, Luncheonette
and Soda Fountain Employees. Local 11, AFL-CIO, et al., 132 NLRB 960,
973, fn. 8 (1961), enfd. in pertinent part 302 F.2d 167 (C.A. 2, 1962);
International Harvester Company, 77 NLRB 242. 243 (1948).
323
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
collective-bargaining agreement and, if an under-
standing is reached, embody such understanding in a
signed agreement.
(b) Post at its plant in Matthews, North Carolina,
copies of the attached notice marked "Appendix." 3
Copies of said notice, on forms provided by the
Regional Director for Region 11, after being duly
signed by Respondent's representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 11, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
3 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals. 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
concerning the proposed changes in the collec-
tive-bargaining agreement we have with Interna-
tional Brotherhood of Electrical Workers, Local
Union 379, AFL-CIO, as the exclusive represen-
tative of the employees in the bargaining unit
described below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL, upon request, bargain with the
above-named Union, as the exclusive representa-
tive of all employees in the bargaining unit
described below concerning the Union's proposed
changes in its collective-bargaining agreement
and, if an understanding is reached, embody such
understanding in a signed agreement. The bar-
gaining unit is:
All production and maintenance employees
engaged in the manufacturing, processing
and fabrication of the products of the
Employer at its plant at Matthews, North
Carolina; excluding foremen, model shop
and general office employees, guards and
watchmen, and supervisors as defined in the
Act.
JET LINE PRODUCTS,
INC.
DECISION
STATEMENT OF THE CASE
JENNIE M. SARRICA, Administrative Law Juge: This is a
proceeding under Section 10(b) of the National Labor
Relations Act, as amended (29 U.S.C. 151, et seq.),
hereinafter referred to as the Act. Based on charges filed on
March 20, 1975,1 a complaint was issued on May 21,
presenting allegations that Jet Line Products, Inc., herein-
after referred to as Respondent, committed unfair labor
practices within the meaning of Sections 8(a)(1) and (5)
and 2(6) and (7) of the Act. Respondent filed an answer
denying that it committed the violations of the Act as
alleged. Upon due notice, the case was heard before me at
Charlotte, North Carolina, on August 19. Representatives
of all parties entered appearances and had an opportunity
to participate in the proceeding.
Based on the entire record, including my observation of
the witnesses, and after due consideration of briefs and
arguments, I make the following:
FINDINGS AND CONCLUSIONS
1. JURISDICTION
Respondent, a wholly owned subsidiary of Thomas
Industries, Inc., is a North Carolina corporation with
facilities located at Matthews, North Carolina, where it is
engaged in the manufacture of electrical products. During
the year preceding issuance of the complaint, a representa-
tive period, Respondent, in the course and conduct of its
business operations, sold and distributed products valued
in excess of $50,000 which it shipped directly to points
located outside the State of North Carolina.
Respondent admits and I find that it is now, and has
been at all times material herein, an employer within the
meaning of Section 2(2) of the Act, engaged in commerce
and in operations affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION
The Charging Party, International Brotherhood of
Electrical Workers, Local Union 379, AFL-CIO, hereinaf-
ter referred to as the Union, is now and has been during all
times material herein a labor organization within the
meaning of Section 2(5) of the Act.
All dates are in 1975 unless otherwise specified.
324
JET LINE PRODUCTS, INC.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issue
Whether Respondent's refusal to negotiate a new
contract was a violation of Section 8(aX5) and (1) of the
Act: (a) whether the Union gave Respondent effective
timely notice of its desire to reopen their automatically
renewable collective-bargaining agreement for renegotia-
tion; (b) if not, whether Respondent waived any defect in
either the timeliness or the form of the reopening notice.
B. Background
There is a history of bargaining for several successive
contracts, the most recent of which was for the period from
February 1, 1973, to January 31, 1975, covering employees
in the agreed-upon unit which I find is appropriate.2
Sections of the agreement pertinent to a resolution of the
issues herein are:
Article I
Section 1.
This Agreement shall take effect February 1, 1973,
and shall remain in effect until January 31, 1975, and
shall continue in effect thereafter from year to year,
unless notice of desire to change or terminate is given
by either party to the other at least sixty (60) days prior
to the expiration date. Such notice shall specify the
nature of the changes proposed or the fact that a
termination is proposed.
Section 2.
This Agreement shall be subject to amendment at
any time by mutual consent of the parties, but any such
amendment shall be reduced to writing, shall include a
statement of its effective date, and shall be signed by
duly authorized representatives of the Company and
the Union.
C. The Facts Surrounding the Alleged Violations
Under their contract the last day on which receipt of a
notice of termination would be timely was December 2,
1974. Union Business Manager Eugene Ruff testified that
during Thanksgiving week, on November 25, 26, or 27,
1974, he telephoned Robert MacFetrich, general manager
of Respondent's Matthews plant, about the contract. He
advised MacFetrich that the Union had not been able to
draft a set of proposed changes for the contract. Ruff asked
2 The complaint alleges and Respondent admits that the following unit,
which is substantially identical to the contract unit, is appropriate for
purposes of collective bargaining within the meaning of Sec. 9(b) of the Act:
All production and maintenance employees, engaged in the manufac-
turing, processing, and fabrication of the products of the employer at its
plant at Matthews, North Carolina, excluding foremen, model shop
and general office employees, guards and watchmen, and supervisors as
defined in the Act.
3 Ruff testified that he asserted he had an oral extension from
MacFetrich, and Grady insisted that MacFetrich had no authority to give
MacFetrich if the Company would accept the Union's
proposed contract changes if they were submitted later.
MacFetrich replied "I don't guess I have any choice .... "
Ruff responded, "But you do have a choice .... If there
is going to be any problem over this, I can just sit down
and draw up a set of proposed changes that would in effect
open every area of the agreement that I feel like the
employees might wish to have changes in, and I can hand-
deliver them to you and have them there [some 20 miles
distant] on time." MacFetrich assured Ruff this would not
be necessary; he added, however, that probably the
contract would have to be extended "by those number of
days that [the] proposal were submitted late." Ruff
thanked MacFetrich and ended the conversation.
MacFetrich denied he had any conversation with Ruff
during Thanksgiving week, or indeed at any time during
the period October through December 2, 1974. According
to MacFetrich he received a telephone call from Ruff
"after the first of the year," but probably 3 or 4 days before
he received the letter dated January 14, 1975, and that in
this call Ruff mentioned he was late in forwarding his
proposed contract changes. He could not recall that Ruff
had requested an extension of time but merely stated that
MacFetrich would see the proposed changes shortly and he
replied "O.K." Ruff could not recall this alleged conversa-
tion which has been generally referred to as the January 10
conversation.
By the letter to MacFetrich, dated January 14, Ruff
requested a meeting at the earliest possible date for the
purpose of negotiating a contract, and attached the
proposed contract changes. By letter dated January 16,
MacFetrich acknowledged Ruff's letter and indicated that
he would contact Ruff in the near future concerning a
meeting date "for the purpose of negotiating the contract."
On January 21, the Union sent the Form F-7 notice to the
Federal Mediation and Conciliation Service. Thereafter, in
late January, MacFetrich called Ruff and a meeting date
was set for February 3. According to Ruff, he inquired
whether he should bring the entire employee negotiating
committee and MacFetrich replied that this meeting would
be "just to more or less lay the ground-work," and would
include only Ruff, MacFetrich, and Gilbert Grady,
director of employee relations for Thomas Industries.
According to MacFetrich, he stated the Company had a
proposed plan it would like to outline for Ruff. At the
February 3 meeting Grady informed Ruff that the
Company regarded the Union's proposed changes as
untimely submitted, and that the Company was not
required to negotiate.3 The parties did not thereafter recede
from their respective positions.4
such an extension. Grady testified that Ruff asserted he had called
MacFetrich before he submitted the proposals and told MacFetrich he was
late and MacFetrich had said he would accept them. Grady told Ruff that
MacFetrich had no authority to accept late notification. According to
Grady, reference was to a telephone call by Ruff to MacFetrich 3 or 4 days
before January 14, rather than any alleged pre-Thanksgiving conversation.
4 The Company offered a 2-year contract with a wage-bonus plan on a
take-it-or-leave-it basis as a so-called face-saving device for Ruff for having
failed to give timely notice of termination, which Ruff rejected, and the
Company refused to meet for contract discussions on any other basis. After
the charge was filed the Company offered to negotiate on its proposals only
(Continued)
325
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. Analysis
The credibility issue here with respect to the asserted late
November 1974 telephone conversation between Ruff and
MacFetrich is a difficult one, for my observation of the two
men in this respect, while on the witness stand as well as in
the hearing room and during the testimony of the other,
would not alone break the balance of their diametrically
opposite testimony on specific details. Both impressed me
as men of integrity. They had dealt with each other
amicably for over 5 years. The evidence reveals they had
established between them a spirit of cooperation and
mutual respect. Each revealed an immediate grasp of the
impact of crucial questions. Nor are they men of insensitiv-
ity for such points of conflict in testimony the demeanor
displayed respectively was an emotional reaction apparent
in countenance and mannerism suggestive of embarrass-
ment. Yet neither gave any indication which would lead
this observer to conclude that he was not being truthful to
the best of his recollection of events. The resolution of the
issue of fact presented by their testimony is, therefore,
based primarily on the following considerations.
I am convinced that the pre-Thanksgiving 1974 conver-
sation between Ruff and MacFetrich did take place and
that Ruff has carefully and accurately presented the
content of that conversation. I am impressed by the fact
that Ruff, although clearly sophisticated in matters involv-
ing labor relations, made no attempt to interpolate what
was stated or to put in MacFetrich's mouth clear and
specific statements that would benefit his own case. Also, it
is noted that MacFetrich stated on the witness stand that
his uncertainty in various respects stemmed from the fact
that at the time, and at least through the date of his
January 16 letter, he did not have a clear comprehension of
the situation, meaning, as I take it, the impact on their
respective legal rights and obligations.
The fact that Ruff could not recall the asserted
conversation with MacFetrich around January 10, and
MacFetrich did, is not regarded as detracting from the
conclusion that the November 1974 conversation did take
place. All Ruff did in that conversation, in effect, was to
tell MacFetrich he was late and that MacFetrich would see
the Union's proposals in a few days. And, indeed, he was
late, in the sense that the situation would appear to have
warranted more diligence in presenting the belated propos-
als. These two men had many conversations on matters not
related to bargaining, including a then current effort by
Ruff to make available, for the benefit of Respondent's
business, prospective customers with whom Ruff had
contacts by reason of his position in the Union. The
if the Union would withdraw the charges herein. Ruff took the position he
would rather live with the renewed contract for a year than accept
Respondent's conditions for bargaining on its proposals.
5 I do not view the conversation related by them, between MacFetrich
and Grady during December 1974, and their exchange of speculation as to
why they had not yet received a communication from the Union, as in any
way negating the occurrence of the pre-Thanksgiving telephone conversa-
tion between Ruff and MacFetnch. Indeed, it is as logical to view it as
confirmation of such a telephone conversation. Thus, Ruff having indicated
that the reason his written contract proposals were not then available was
because he had not been able to have a sufficient number of employees of
Respondent at a union meeting to ascertain their desires and formulate
these into demands, and with the weeks passing without a followthrough by
Ruff with such written demands, it would seem unusual if such circumstanc-
evidence establishes that minor messages involving their
own labor relations were, on this and at least one other
occasion, insinuated into conversations on such other
matters. In these circumstances, Ruffs comments on
January 10 would appear to be more in the nature of a
reminder to MacFetrich of their conversation with respect
to presenting anticipated union proposals later and of his
imminent followthrough on it. This being something for
which no notice was required, Ruff might well place so
little significance on his comment that he would retain no
recall of it. Of course, by this time, MacFetrich had had
several conversations with Grady 5 and was beginning to
attain some "grasp" of the situation, thus becoming more
likely to remember Ruffs comment. In my view the
January 10 conversation is further confirmation that the
pre-Thanksgiving conversation did take place. I also view
the mailing by Ruff of the required notice to Federal
mediation on January 21 as consistent with MacFetrich's
statement that the contract would probably have to be
extended for as many days as the proposals were late.
Finally, if there had been no pre-Thanksgiving 1974
conversation, and if Grady had no knowledge thereof, it
would seem that,. with his labor relations sophistication,
Grady would have immediately taken the clearcut stand on
December 2, 1974, and thereafter, that the contract had
renewed under its terms. Instead, he engaged in various
inquiries of MacFetrich concerning the situation during
December 1974, then waited until an evaluation of the
Union's proposals could be made before taking the
position that the Union had failed to take timely action
under the contract, admittedly basing this decision on an
evaluation of the cost of the Union's proposals. Thus, in all
the circumstances, I conclude that Ruffs recall of the pre-
Thanksgiving conversation is accurate.
It is Respondent's position that there was no appropriate
notice given to forestall automatic renewal of their
collective-bargaining agreement and that the 8(d) limita-
tions 6 on the duty to bargain during the contract's renewed
term were applicable, so that Respondent was not required
to bargain with the Union on its untimely contract
proposals. In support of this position, Respondent asserts
that although the contract does not specify that notice be
given in writing, such formality is imposed by the statute,
in the language of Section 8(d); in particular the proviso
thereto and subsection (I) which states in pertinent part:
(d) . . . Provided, That where there is in effect a
collective-bargaining contract covering employees ...
the duty to bargain collectively shall also mean that no
party to such contract shall terminate or modify such
es did not give nse to some wonderment and speculative discussion on the
part of Respondent's officials. On the other hand, without the context of his
comment by Ruffin a conversation predating the alleged automatic renewal
of their contract on December 2, there would appear to be no occasion for
MacFetrich and Grady, as they have testified, to engage in their speculation
as to whether the employees might be dissatisfied with their representative
or to relate this to the lack of a communication from the Union during the
month of December.
6 Sec. 8(d) of the Act provides that the duty to bargain "so imposed shall
not be construed as requiring either party to discuss or agree to any
modification of the terms and conditions contained in a contract for a fixed
period, if such modification is to become effective before such terms and
conditions can be reopened under the provisions of the contract."
326
JET LINE PRODUCTS, INC.
contract, unless the party desiring such termination or
modification -
(I) serves a written notice upon the other party to the
contract of the proposed termination or modification
sixty days prior to the expiration date thereof ....
Respondent contends that there has been no clear and
unequivocal waiver of its statutory right to a timely written
notice, and that any departure from contract provisions by
mutual consent was required by the contract to be reduced
to writing and executed.
The General Counsel has taken the position that Section
8(d)(1) of the Act and article i, section 2, of the contract
are not relevant here, the former because the Union did not
fail to file the appropriate notices comporting with their
agreed-upon extension, and the latter on the ground that
the contract section referred to applied only to contract
amendments rather than contract termination or extension.
It is well established that when a collective-bargaining
agreement has been renewed by operation of its automatic
renewal provision, the 8(d) limitations on the duty to
bargain during a contract term are applicable.7 Negotia-
tions for changes in existing contract provisions after a
contract has renewed its term are deemed purely volun-
tary.8 Thus, in the Mason Builders case 9 relied on by
Respondent, the company's own petition for a Board
election did not excuse the union's failure to give the
proper notice under their contract renewal provision or
create a duty, under the union's resulting certified status, to
bargain for a new contract to replace their automatically
renewed agreement.
Clearly Section 8(d) contemplates a written notification
for contract termination or modification. However, the
Board has stated: 10
Section 8(d) exists for the benefit of the contracting
parties; there is nothing to prevent them from mutually
agreeing to reopen the contract in whole or in part to
permit the start of negotiations for a new contract prior
to permissible contract date. If they do agree to an early
reopening, they are subject to the same standards of
good-faith bargaining as if the contract expressly
provided for such opening.... Having voluntarily
agreed to early modification of the contract for these
purposes, Respondent was obligated to conform with
the good-faith bargaining requirements of Section 8(d).
It would seem that if the parties may agree to depart from
the time factor of Section 8(d) they may also agree to a
change in the method of giving notice and if they may
I See, e.g., C & S Industries, Inc., 158 N LRB 454 ( 1966); PPG Industries,
Inc., 172 NLRB 450(1968).
s See, e.g.. Mallinckrodt Chemical Works, 114 NLRB 187 (1955);
Michigan Gear & Engineering Company, 114 NLRB 208 (1955).
9 Mason City Builders Supply Co., 193 NLRB 177 (1971).
1' General Electric Company, 173 NLRB 253, 256-257 (1968) modified in
this respect by General Electric Company v. N.LR.B., 412 F.2d 512 (C.A. 2,
1969), to the extent that conditions may lawfully be imposed on bargaining
outside the 8(d) period. See Ship Shape Maintenance Co., Inc., 187 NLRB
289, 291 (1970), where commencement of negotiations 75 days before the
expiration date was found to be a waiver for the contractual requirement for
a 60-day written notice. Also see the following language in B. C. Studios,
Inc., 217 NLRB 307. 312 (1975).
agree to an early contract opening they may also agree to a
late opening.
While the contract herein fails to specify that notice,
whether for changes or termination, be given to the other
party in writing it does require that the notice also "specify
the nature of the changes proposed or the fact that
termination is proposed." This could be interpreted as
indicating that a written document was contemplated.
Such an interpretation would comport with the past
practice of the parties and with the late November
conversation between Ruff and MacFetrich. Moreover,
there is really no contention here that an oral notice which
effectively forestalled renewal was given under the con-
tract. I conclude therefrom that the contract notice
requirement was not inconsistent with the written notifica-
tion for modification or termination contemplated by
Section 8(d), and was not an agreement to depart from the
statutory requirement.
Because the parties may, as indicated in the foregoing
opinions," depart from both the statutory and contract
requirements and thereby subject themselves to the same
bargaining obligations as would obtain had they followed
those procedures, the precise nature of whatever under-
standing was reached by Ruff and MacFetrich in the pre-
Thanksgiving conversation becomes crucial to an evalu-
ation of their respective rights and duties in the bargaining
arena. 1
2
There is no contention that oral notification forestalling
contract renewal was given and accepted in the November
conversation. Two possible conclusions as to the nature of
that understanding are suggested. One is that Respondent
agreed in advance to accept a late contract modification
notice. The other is that there was an agreement to extend
the contract for a period of 60 days beyond an indefinite
date in the future on which the Union would have
presented its specific contract modification proposals. I
find neither to be the case.
Accepting Ruff's version, and looking to precisely what
was said, it becomes clear that Ruff asked MacFetrich
whether the Company would accept the Union's proposed
contract changes if they were submitted later. It is also
clear that he was referring to the contract requirement that
the nature of the contract changes desired be specified, for
he made his request in the context of detailing the reasons
why he had not yet been able to and could not immediately
draw up the Union's demands. Since he was asking for a
departure from a specific contract provision, the under-
standing reached must be evaluated in terms of the
requirements of that provision.
Settled law establishes that whatever the termination date of a new
agreement or whatever the notice requirements, parties may mutually
agree at any time to reopen a contract permit the start of negotiations
for a new agreement. And once such action is taken, the parties "are
subject to the same standards of good faith bargaining as if the contract
expressly provided for such opening." General Electric Company, 173
NLRB 253, 256 (1968), affd. with modification 412 F.2d 512 (C.A. 2,
1969).
" See fn. 10, supra.
12 "Termination" and "modification" are words with somewhat different
meanings in a bargaining context from that which they hold in other
commercial contexts. South Texas Chapter, Associated General Contractors,
190 NLRB 383, 385 (1971). Accordingly, many of the other cases cited in
Respondent's brief are not necessarily dispositive of the issues herein.
327
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Although the same contract section covered the require-
ments for both "notice of a desire to change or terminate"
and specification of "the nature of the changes proposed,"
with simultaneous deadlines, I view these as clearly
separable actions. It is significant that no reference was
made by Ruff to an extension of time in which to give
notice of the Union's desire to change their contract and
MacFetrich's reply must be viewed as responding only to
the request advanced. In that conversation, Ruff gave no
indication that he would not be giving the timely notice
under the contract to forestall its automatic renewal. Nor
did he give a reason which might prevent his doing so.
Indeed, there was still time left for him to dispatch such a
notice. Instead, he reported only his difficulty in obtaining
employee sentiment in order to draw up the specific
contract demands, which were also required at that time by
the contract, and emphasized that absent MacFetrich's
granting of the requested period of grace he could comply
with this requirement by specifying that changes were
desired in every contract section he thought employees
might want changed. I conclude that MacFetrich agreed
only that the Company would accept the Union's specific
proposals at a date later than that required, rather than
have to unnecessarily review many other contract provi-
sions either before or when they reached the bargaining
table; but did not thereby agree that the Company would
accept a late notice of a desire for contract modification as
forestalling renewal of their contract in accordance with its
terms.
Nor can I view MacFetrich's comment that the current
contract would probably have to be extended for a period
of 60 days beyond the date on which the specific proposed
changes were received as an agreement to extend the
contract term and notice period to an indefinite date. His
was merely an observation of the possible effect of
receiving late contract proposals upon the ability of the
parties to complete their negotiations in the normal 60-day
timespan at the end of the contract term. Any other
interpretation would be in the nature of an amendment to
the contract duration clause which, under article I, section
2, of the contract, could be accomplished only if such
amendment were duly written and executed by the parties.
Further, I do not find in Respondent's letter of
acknowledgement, the telephone exchanges, the explorato-
ry meetings, or Respondent's contract proposals, all
subsequent to receipt of the Union's written proposals, l3
any indication that Respondent, by such exchanges,
waived its legal position that the contract had renewed for
lack of a timely notice. 4 Clearly, by mutual agreement, the
parties may at any time amend their collective-bargaining
contract without regard to specific times identified for such
13 Because those communications are regarded as exploratory in nature,
the record evidence relating thereto is not set forth in detail herein.
14 See Champaign County Contractors Association, 210 NLRB 467, 470
(1974). There it was held that where the contract itself required written
notice, such notice to preclude automatic renewal of the contract was not
waived by talks which were clearly preliminary in nature.
action by their agreement. If this bargaining freedom is to
have meaning the parties must be privileged to explore
such a possibility without sacrificing their respective legal
rights under the Act.
Nor do I find merit in the General Counsel's contention
that by MacFetrich's representations on which the Union
relied, Respondent misled the Union into believing that a
late notice would be or had been accepted and that
Respondent is therefore equitably estopped from raising
the untimeliness of the notice as a defense to to the refusal-
to-bargain charge.'5 The pre-Thanksgiving conversation,
relating as it did to specific contract requirements, must be
evaluated strictly on the basis of wherein there was a
meeting of the minds constituting an agreement to depart
from those requirements rather than what may have been
in the mind of one participant but not specifically
conveyed to or negated by the other.
On the facts I have found that no agreement to extend
the notice period was reached or even discussed; it could
be implied only by the fortuitous circumstances that the
notice requirement was established by the same contract
provision that prescribed submission of specific contract
proposals. Since the detailed proposals were singled out as
the subject of discussion, there is no warrant for concluding
that the parties were discussing any other specific require-
ment of that section of the contract. Further, what Ruff
may have been led to believe during the postrenewal period
is irrelevant to his previous failure to give notice before the
renewal date of the contract. In failing to so act he could
not have relied on such later conduct to his detriment. At
most, such postrenewal actions of Respondent may be
considered to the extent that they might shed light on the
meaning of any ambiguous statements made by MacFet-
rich to Ruff in the pre-Thanksgiving conversation. I have
not found it necessary to so consider them.
As I have found, in agreement with Respondent, that the
Union failed to give a timely notice and that the contract
automatically renewed pursuant to its terms for a succeed-
ing I-year period, I shall recommend that the charge herein
be dismissed in its entirety.
CONCLUSIONS OF LAW
I. The contract between the Company and the Union
automatically renewed for I year when the Union failed to
give a timely notice for modification.
2. The Company has not committed the unfair labor
practices alleged in the complaint.
[Recommended Order for dismissal omitted from publi-
cation.]
15 Morrison Railway Supply Corporation, 191 NLRB 487, 490 (1971), is
distinguishable on its facts from the situation herein. There the employer led
employees to believe that their concerted demand for the day off was
granted, then discharged them for leaving, asserting that their departure did
not qualify as concerted activity because they did not consciously go on
strike.
328