KCW Furniture Co.

National Labor Relations Board - Board Decisions

Jan 23, 1980

247 N.L.R.B. 541 (N.L.R.B. 1980)

KCW FURNITURE COMPANY
KCW Furniture Company, Inc. and General Team-
sters Local Union 174, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America. Case 19-CA-9990
January 23, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND TRUESDALE
On December 19, 1978, Administrative Law Judge
James T. Rasbury issued the attached Decision in this
proceeding. Thereafter, Charging Party and General
Counsel filed exceptions and supporting briefs, and
Respondent filed an answering brief.
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 and to adopt his
recommended Order, as modified herein.
We agree with the Administrative Law Judge's
finding, which was not excepted to, that Respondent
violated Section 8(a)(1) of the Act by interrogating
employees concerning their union membership and
activities. However, for the reasons set forth below, we
do not adopt his dismissal of the complaint's allega-
tion that Respondent violated Section 8(a)(5) and (1)
of the Act by unilaterally changing contractually
established wages, hours, and working conditions of
its employees during the extended term of its contract
with the Union.
Respondent and the Union entered into their last
collective-bargaining agreement on November 20,
1975. The agreement was effective from April 1, 1974,
to April 1, 1977, with year-to-year automatic renewal.
The duration and renewal clause provides for a 60-day
"Notice of Opening" for purposes of negotiating
"alterations in wages and other terms and conditions
of employment." It explicitly states that a notice of
opening cannot be construed as terminating or as
forestalling the automatic renewal of the agreement.
The clause further provides that during negotiations
pursuant to a notice of opening the parties could
engage in economic action except during the 60-day
period. Finally, the clause provides that the agreement
can be terminated either by mutual written agreement
' All dates hereafter refer to 1977.
'South Texas Chapter. Associated General Contractors, 190 NLRB 383
(1971).
247 NLRB No. 79
or by giving a notice of termination not later than 60
nor more than 90 days prior to the expiration date.
On January 12, 1977,' the Union mailed Respon-
dent a notice of opening "to negotiate changes in
wages, hours, and other terms and conditions of
employment." The April I expiration date passed
without either party giving a notice of termination. In
August, Respondent and the Union exchanged pro-
posals for completely new contracts. At a meeting
held on September 30, the parties agreed that they had
reached an "impasse." Respondent's counsel returned
to his office and sent the Union a letter stating that in
view of the impasse Respondent was implementing
immediately its last contract offer-and it did.
The Administrative Law Judge found that the
Union's notice of opening and the parties' conduct in
negotiations resulted in the termination of the con-
tract. The Administrative Law Judge stated that the
Board looks past form to substance in determining
whether a notice of termination has been given.' He
concluded that the Union's notice of opening seeking
changes in wages, hours, and other terms and condi-
tions of employment and Respondent's proposal of a
new contract constituted a request to negotiate a new
agreement, forestalling automatic renewal. According-
ly, the Administrative Law Judge found that Respon-
dent did not violate Section 8(a)(5) and (1) of the Act
by making unilateral changes after impasse had been
reached. We disagree.
The contract, by the terms of its duration and
renewal clause, automatically renewed itself on a year-
by-year basis, unless timely notice of termination was
given or the parties mutually agreed in writing to
terminate it. In the event a notice of opening is given,
however, the contract expressly provides, without
qualification, that such notice does not terminate the
contract or forestall its automatic renewal. It is
evident therefore that the parties intended by the two
notice provisions to provide for alternative methods of
pursuing negotiations toward a new contract. One of
the notices would cause the contract to be renewed,
the other would not; and it is obvious that the two
provisions were not meant to have the same impact on
the existing contract.
In the instant case, the parties failed to exercise
their option to terminate the contract and instead
chose the prescribed course intended to renew the
contract during negotiations. The Administrative Law
Judge, in finding that the contract was in fact
terminated, disregarded the unambiguous contractual
language and, in effect, rewrote the contract. We have
neither the inclination nor the authority to alter
agreements which do not violate the Act, even though
541
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the contractual provisions may confer a favored
position upon one of the parties.
The Administrative Law Judge found, as noted,
that the contract was terminated by the nature of the
Union's January 12 letter and the parties' conduct
during negotiations. For the reasons already indicated
and those that follow below, we have rejected that
finding. In addition to finding, as we have, that the
Union's notice of opening did not terminate the
contract, we find that the contract imposes no
limitation or restriction on the extent or form which
negotiations may take pursuant to such a notice.
Nothing in the contract, more particularly the provi-
sions in question, precludes the parties from offering
complete contract proposals, as happened here, or
negotiating changes in all of the outstanding contract
terms; and nothing therein even implies that the
parties' negotiating conduct would constitute a meth-
od of terminating the agreement. Furthermore, there
is no contention that the terms of the contract violate
the Act, nor is there any basis for so finding. In these
circumstances, it is evident that the pendency of
negotiations at the time the agreement expired did not
prevent its automatic renewal in the absence of a
termination notice; similarly the ultimate failure of
those negotiations to culminate in a new contract had
no effect on the agreement's renewal or continued
existence.' Consequently, we perceive no reason for
affirming the Administrative Law Judge's conclusion
that the conduct of the parties during the negotiations,
together with the Union's letter giving notice of the
opening of the contract, had the effect of terminating
the agreement.
Having found that the contract automatically re-
newed itself on April 1, we find that Respondent had
no right to make unilateral changes in that contract
after "impasse" was reached in the bargaining for a
new contract. It is well established that an employer is
precluded from modifying a contract which is in
effect, without consent of the union. Although an
employer may unilaterally institute changes when an
impasse occurs during the negotiations for an initial
bargaining agreement or following the expiration date
of an expiring contract, the employer may not do so
when, as here, the contract has not terminated.
Accordingly, we find that Respondent violated Section
8(aX5) and (1) of the Act by unilaterally instituting
terms and conditions of employment inconsistent with
the existing collective-bargaining agreement.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that the Respondent, KCW
Furniture Company, Inc., Seattle, Washington, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as so
modified:
I. Insert the following as paragraph (b) and
reletter the subsequent paragraph accordingly:
"(b) Unilaterally changing the wages, hours, and
working conditions of its employees during the term of
its contract with General Teamsters Local Union 174,
affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, herein the Union."
2. Substitute the following as paragraph 2(a) and
reletter the subsequent paragraphs accordingly:
"(a) Rescind, upon the request of the Union, the
unilateral implementation of Respondent's last con-
tract offer to the Union, and reinstate the terms of the
collective-bargaining agreement which was then in
existence for so long as it remains in effect."
3. Substitute the attached notice for that of the
Administrative Law Judge.
' Of course, if the negotiations had led to an accord, the new contract would
have supplanted the renewed one at a time designated by the parties.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board gives all
employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representa-
tive of their own choosing
To act together for collective bargaining or
other aid or protection
To refrain from any and all of these things
except to the extent that membership in a
union may be required by a legal union-securi-
ty clause.
WE WILL NOT do anything that interferes with
these rights.
WE WILL NOT question or otherwise interfere
with the rights of employees to engage in union
activities or other concerted protected activities.
WE WILL NOT unilaterally change the wages,
hours, and working conditions of our employees
during the term of a contract with the General
Teamsters Local Union 174, affiliated with Inter-
national Brotherhood of Teamsters, Chauffeurs,
542
KCW FURNITURE COMPANY
Warehousemen and Helpers of America, herein
the Union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their Section 7 rights.
WE WILL, if the Union requests, rescind our
unilateral implementation of wages, hours, and
working conditions of our employees on Septem-
ber 30, 1977, and reinstate the terms of the
collective-bargaining agreement which was then
in existence for so long as it remains in effect.
KCW FURNITURE COMPANY, INC.
DECISION
STATEMENT OF THE CASE
JAMES T. RASBURY, Administrative Law Judge: This case
was heard by me in Seattle, Washington, on August 1, 1978.
A complaint and notice of hearing was served on KCW
Furniture Company, Inc. (herein called Respondent), on
February 8, 1978, pursuant to a charge filed on November
30, 1977, by General Teamsters Local Union 174, affiliated
with International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America (herein called
Union), alleging that Respondent violated Section 8(a)(5)
and 8(d) of the Act by unilaterally changing wages, hours,
and working conditions of its employees during the term of a
contract with the Union, and violated Section 8(a)(1) of the
Act by intimidating, coercing, threatening, and interrogating
employees in connection with their union activities during
July and October 1977. Respondent's answer filed February
27, 1978, admitted certain requisite jurisdictional data but
denied the commission of any unfair labor practices.
All parties were afforded full opportunity to appear, to
introduce relevant evidence, to examine and cross-examine
witnesses, and to file briefs. Based upon the entire record
and upon my observation of the demeanor of the witnesses, I
hereby make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent is, and at all times material herein has been, a
State of Washington corporation with offices and a place of
business located at Seattle, Washington, where it is engaged
in the retail sale of furniture and home furnishings. During
the past 12 months, which period is representative of all
times material herein, Respondent had a gross volume of
sales in excess of SS00,000. During that same time, Respon-
dent caused to be transferred and delivered to its Seattle,
Washington, store goods and materials valued in excess of
50,000, which were transported to said store directly from
States other than the State of Washington. Based upon these
admitted facts, I find Respondent to be, and at all times
material herein to have been, an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. THE LABOR ORGANIZATION
Respondent admits, and I herewith find the Union to be,
and at all times material herein to have been, a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ISSUES
1. What is the meaning of the duration and renewal
language contained in the relevant labor management
agreement between the parties? A determination of the
question posed must, to some degree, be determined by the
conduct of the parties.
2. Did Respondent violate Section 8(a)(1) of the Act by
interrogation or coercion of its employees?
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Evidence
I. Regarding the 8(aX5) allegation
The Union has represented Respondent's warehouse and
delivery employees for a number of years. The parties
entered into their last collective-bargaining agreement on
November 20, 1975 (G. C. Exh. 2). The controversial clause
in the collective-bargaining agreement reads as follows:
DURATION AND RENEWAL
THIS AGREEMENT between K C W FURNITURE, INC.,
and Local Union #174 of the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, shall be effective commencing
April 1, 1974, and shall continue in force and effect
through April 1, 1977, and also thereafter, on a year to
year basis, by automatic renewal. Provided however, for
the purpose of negotiating alterations in wages and
other terms and conditions of employment, either party
may open this Agreement or any contract effectuated
through automatic renewal by giving written "Notice of
Opening" not later than sixty (60) days prior to the
expiration date. "Notice of Opening" is in nowise
intended by the parties as a termination of nor shall it in
anywise be construed as a termination of this Agree-
ment or any annual contract effectuated through
automatic renewal nor as forestalling automatic renew-
al as herein provided. The parties reserve the right to
economic recourse in negotiations; except during the
interval between the giving of Notice of Opening and
the expiration date.
Except by mutual written agreement, termination of
this Agreement or any annual contract effectuated
through automatic renewal, must, to the exclusion of all
other methods, be perfected by giving written "Notice
of Termination" not later than sixty (60) nor more than
ninety (90) days prior to the expiration date, whereupon
the contract shall, on its expiration date, terminate.
Effective termination eliminates automatic renewal.
Any "Notice of Opening" or "Notice of Termination"
given within sixty (60) days of any expiration date shall
543
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be absolutely null and void and completely ineffective
for all purposes.
The Union notified Respondent Employer by certified
mail dated January 12, 1977, as follows:
Gentlemen:
This is 174's notice of opening of the labor agreement,
to negotiate changes in wages, hours and other terms
and conditions of employment.
Very truly yours,
/s/ Robert L. Cooper
General Teamsters Local 174
Nothing directly related to bargaining for a new contract,
either actual negotiating sessions or exchange of letters
and/or telephone calls requesting dates for negotiating
sessions, occurred for several months, although counsel for
the Union, in a letter dated March 4, 1977, reminded
Respondent that the "collective-bargaining agreement with
your company which by its terms remains in force and effect
through April 1, 1977."' Respondent's counsel's letter of
July 21 to the Union appears to finalize the differences
between the parties as expressed in the Union's March 4
letter and for the first time suggests that a representative of
the Union contact the Employer's counsel for a possible
bargaining date (see Resp. Exh. 4).
On August 12, Robert L. Cooper, secretary/treasurer of
the Union, advised Respondent's counsel that he would like
to schedule a meeting "to commence negotiations with
KCW Furniture Company, Inc. at 3 p.m., Thursday, August
25." (See Resp. Exh. 5.)
On August 17, R. Michael Smith, an attorney with the
same law firm that had been handling Respondent's labor
matters, advised Cooper that he had been "designated as the
negotiator for KCW Furniture Company, Inc." The letter
enclosed "a proposal for a collective-bargaining agreement
to succeed the one which expired April 1, 1977." The letter
went on to explain some of the major changes and the
reasons therefore and suggested several earlier alternative
meeting dates or an agreement to meet with the Union on
August 25.2
The parties met on August 22 at the Union's offices in
Seattle. Smith was Respondent's representative and, al-
though Smith had expected Cooper to be in attendance, the
Union was represented by Rod Schmidt and Gino Pinto.
According to Smith's testimony, the Union was only
interested in discussing its proposal. (See Resp. Exh. 8.) It
should be noted that this proposal is a complete contract and
indicates that it shall be effective commencing April 1, 1976,
a full year prior to the "expiration" and/or "termination"
date of the most recent contract between the parties, and
contained the identical Duration and Renewal language with
which we are here concerned.) According to Smith, this
negotiating session lasted approximately I hour, during
which time the "Union indicated that although the Team-
sters had their own plans, both health and welfare and
See Reap. Exh. 3 for a copy of the letter. The letter deals with a matter
which was settled informally between the parties, but to some degree, because
of the overlapping time span, it became interwoven in the evidence presented
during this hearing; it was totally irrelevant to the issues raised by the
complaint. Dates hereinafter shall refer to the year 1977 unless otherwise
indicated.
pension, that there was some possibility of flexibility on
those points and that those issues could be dealt with at
subsequent negotiating sessions." Smith suggested that "it
would be in the interest of both parties to spend some time
looking at each others contract proposals prior to the next
meeting, so we could get down to a point to point discussion
of the details of the items covered by the agreement."
During this session, the Union insisted that whatever
agreement was signed by the parties would have to be
retroactive to April 1.
By letter dated August 31 to the Union, Smith discussed
in some detail the specific proposals incorporated in a
document given to Respondent by the Union (Resp. Exh. 8).
That letter suggested that Respondent would be in touch
with the Union within the next few days to arrange for
another meeting. Another meeting was held on September
30 at the Union's Seattle office which was attended by Tony
Brown, Rod Schmidt, Cooper representing the Union, and
Smith representing Respondent, KCW Furniture. Accord-
ing to Smith, whose testimony was undisputed and unde-
nied, Cooper first inquired if he [Smith] had authority to
speak for KCW in all matters that pertained to the
negotiation of the new collective-bargaining agreement.
After Smith assured Cooper that he did, Cooper took a few
minutes to review Smith's letters of August 17 and 31 (Resp.
Exhs. 6 and 9). After reviewing the two documents, Cooper
inquired of Smith as to whether the contract proposals
presented represented a sincere position and offer of KCW.
When the response was affirmative Cooper then declared, "I
see nothing further to talk about." Smith then asked, "May I
assume that we have reached impasse?", to which Cooper
replied, "Yes, you may assume that we are at impasse."
Smith then departed.
Upon returning to his office, Mr. Smith dictated a short
letter to Cooper advising him that "in view of the impasse
reached at the conclusion of today's negotiating session, we
shall implement the terms of our last contract offer immedi-
ately." (See G.C. Exh. 5.)
Thereafter, so far as the evidence reveals, the Respondent
conducted its employee-relations affairs in accordance with
the terms of their last offer to the Union. It refused to meet
with the Union pursuant to the terms of the April 1, 1974-
77, labor agreement, with particular reference to the settle-
ment of disputes, section 25, concerning a board of adjust-
ment hearing, although Respondent did advise that it would
be willing to meet with the Union on an ad hoc basis, to
explain why Respondent's insurance carrier had been forced
to cancel the insurance on two employees resulting in their
suspension (see G.C. Exhs. 6 and 7).1
2. The 8(a)(1) allegations
Michael Johnson, who was employed by Respondent from
December 1975 until he was suspended on October 17 (see
Resp. Exh. 2), testified that on several occasions between
April and August, Kaseguma, the store manager, questioned
2 See Reap. Exh. 6 for a copy of the letter from Smith to Cooper and G.C
Eaxh. 4 for a copy of Respondent Company's proposal to the Union.
'The suspension of employees Jeffrey Mensing and Michael Johnson is not
an issue in the matter heard by me, but became enmeshed in the hearing as
part of the General Counsel's proof of Respondent's refusal to adhere to the
terms of what is alleged to be an effective contract.
544
KCW FURNITURE COMPANY
him as to whether or not the Union had ever contacted him.
Johnson stated that on one occasion in August, Kaseguma
told him that he "could join the Union if we wanted to, but
they're not going to do anything for you, they'll just rip you
off...."
Jeffrey Mensing testified that he first began working for
Respondent on December 10, 1976, and remained as an
employee until he was suspended on October 17, 1977 (see
Resp. Exh. 1). Mensing testified that, in a conversation in
late February or early March, Kaseguma inquired if the
Union had talked with him yet and then stated, "Well, you
can go ahead and listen to what they have to say, but just tell
them you don't want to join." Mensing related that
Kaseguma asked him again in April if he had been contacted
by the Union; again in August there was a telephone
conversation between him and Kaseguma in which he
related to Kaseguma that he was in the Union and
Kaseguma replied, "That's not my problem, it's yours."
George C. Scott testified that he was first employed by
Respondent in April 1976 as a warehouseman and after I
week he was then put on a truck. Scott testified that in early
October, Kamihachi, president of Respondent Employer,
told him, "If I'd keep my mouth shut, I'd come out of this
thing the best. And then she said, you know, 'you'll have to
resign from the Union,' and then she said, 'I told you too
much already,' and walked away." When asked by the
General Counsel if he knew what she meant by, "You'll
come out best in this deal," Scott replied, "No, I didn't."
B. Analysis and Conclusions
1. The 8 (aXl) allegations
While the testimony of Johnson, Mensing, and Scott left
much to be desired in that it can hardly be characterized as
precise, clear-cut, or articulate, nevertheless it comes
through loud and clear from the testimony of Johnson and
Mensing that Kaseguma inquired of them on several
occasions during 1977 whether the Union had contacted
them. Their testimony stands in the record undenied and
there is absolutely no basis upon which I might conclude
that their testimony was in any regard fabricated. The
Board, with court approval, has from the earliest days of the
Act held that, "Interrogation of employees concerning union
activities constituting an implied threat that the employees
economic powers may be used to disadvantage of individual
employees active in the Union" is a violation of the Act.'
Interrogations about union activities has been found viola-
tive of the Act despite the absence of employer hostility to
the Union.' I find and conclude that the questioning of
Johnson and Mensing violated the Act, but will recommend
dismissal of the allegations regarding the comments of
Kamihachi as being too vague and lacking in meaning such
as is required to constitute interference, coercion, or re-
straint of employees in the exercise of their rights as
guaranteed in Section 7 of the Act.
'· Rockford Mitten Hosiery Company, 16 NLRB 501 (1939).
' Engineered Steel Prducts, Inc., 188 NLRB 298 (1971).
2. The 8(aXS5) allegations
There is no dispute regarding the salient facts concerning
the Section 8(aX5) aspect of this case. A determination of
this issue turns on the meaning of the language contained in
the Duration and Renewal clause and the conduct of the
parties pursuant thereto. If the contract automatically
renewed on April I because of the failure of either party to
give appropriate "termination" notice, then Respondent's
conduct in its admitted adherence to a different set of rules
after September 30 would amount to a violation of Section
8(aXS) of the Act. On the other hand, if the interpretation of
the language in the Duration and Renewal clause and the
parties' conduct pursuant thereto, was such as to have
caused the contract to "terminate," then the Respondent
Employer was free to institute changes consistent with its
final offer to the Union following the acknowledged impasse
that occurred between the parties on September 30.
The questionable language is a model of confusion and
obfuscation to say the least. It is reminiscent of that old
phrase concerning the small child who wanted to have his
cake and at the same time eat it. Counsel for the Charging
Party argues that there is a distinction between "expiration
date" and "termination date." However, definitions of the
two terms as set forth in current dictionaries regard the
terms as synonymous.'
The Board and the U.S. Supreme Court shed some light
on this issue in N.L.R.B. v. Lion Oil Company. 109 NLRB
680 (1954), reversed 221 F.2d 231 (8th Cir. 1955),
reversed 352 U.S. 282 (1957). In that case there was a
provision for reopening a contract for modifications; after
the union had given the required 60-days' notice and lengthy
negotiations followed without concluding a contract, the
union struck. During the period of the strike the Board
found the company guilty of unfair labor practices in
violation of Section 8(a)(1), (3), and (5) of the Act. The
company defended on the ground that the strike, because it
occurred while the contract was in effect. was in violation of
Section 8(d)(4)-failure of the union to give appropriate
"termination" notice before striking. The Board rejected the
Company's defense, saying, "The term 'expiration date' as
used in Section 8(d)(4) . . . has a twofold meaning: it
connotes not only the terminal date of a bargaining contract
but also an agreed date in the course of its existence when
the parties can effect changes in its provisions."
The Supreme Court in discussing the Lion Oil case stated,
"The use of the three works 'termination,' 'modification' and
'expiration' is significant. We conceive that a notice of
desired modification would typically be served in advance of
the date when the contract by its own terms was subject to
modification. Notice of desired termination would ordinarily
precede the date when the contract would come to an end by
its terms or would be automatically renewed in the absence
of notice to terminate. Therefore we conclude that Congress
meant by 'expiration date' in Section 8(dX)() to encompass
both situations, and the same phrase in Section 8(dX4) must
carry the same meaning." While the Lion Oil case is not
dispositive of the issue before us, it does seem to indicate that
' See the "American College Dictionary" published by Random House,
1970, or "Webster's New World Dictionary, College Edition," 1966.
545
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Supreme Court treated the words "expiration" date and
"termination" date as synonymous.
In an A.G.C. case' decided May 18, 1971, the Board
considered contract language and the exchange of corre-
spondence between the principals to determine whether or
not the union had given "termination notice" or merely
notice of modifications to the contract which, in the absence
of timely notice to "terminate," would automatically renew
for an additional year.
In that case the General Counsel took the position that
the union's language requesting negotiations "for all matters
pertaining to wages, hours, and all conditions of employ-
ment" constituted a notice of termination even though the
word terminate was not used in the union's letter to the
respondent. The respondent took the position that the union
had merely requested modification or changes in the terms
of the contract and had not specifically terminated the
contract and therefore the contract had automatically
renewed for an additional year. The respondent refused to
bargain over any modifications or changes to the then
"existing" contract and thereafter was served with a Section
8(a)(5) refusal to bargain complaint by the General Counsel.
The Board adopted the Administrative Law Judge's decision
as its own wherein it was said:
The letter of March 26 notified the AGC of the Union's
"desire to reopen the contract for negotiations." This
phrase, if it stood alone, would appear to look toward
"modification or changes," not "termination." But the
letter goes on to state the Union's "desire to negotiate
for all matters pertaining to wages, hours and all
conditions of employment."
In finding that the respondent had committed a refusal-to-
bargain violation of the Act, the decision stated:
The Union's letter calls for negotiation of "all matters
pertaining to wages, hours and all conditions of
employment." This, to my mind, calls for "termina-
tion," i.e., negotiation of an entire new contract, rather
than mere modifications or changes. To be sure, some
elements are almost sure to be unchanged, such as the
recognition clause and other noncontroversial items.
But a call for negotiation on all terms is, to my mind,
more in the nature of a notice to negotiate an entire new
contract (and hence "notice of desire to terminate")
than it is notice to negotiate mere "modifications" or
even "changes."
In the instant dispute, the Union's letter to Respondent
Employer clearly stated that its notice of opening the labor
agreement was "to negotiate changes in wages, hours and
other terms and conditions of employment." Moreover, in
the negotiating sessions that occurred, each party presented
the other with a completely new contract and all matters of
the contract were discussed.
In a more recent case,' the Board approved an administra-
tive law judge's decision wherein a similar question was
raised as to whether or not the union's notification letter had
actually "terminated" or merely sought to modify the parties
'South Texas Chapter. Assocated General Contract 190 NLRB 383
(1971).
' The Oakland Pms Ca. a Subjidiary of Capital Cities Communication
Inc., 229 NLRB 476 (1977).
then-existing agreement. The union had sent a timely notice
which stated in material part:
You are hereby notified that [the union] desires to
continue its current collective-bargaining agreement with
your firm, but also to negotiate certain changes or
revisions in its provisions ...
Local 372 offers to meet and confer with your represen-
tatives ....
The changes or revisions to be negotiated will be sent to
you at a later date. [Emphasis supplied.]
The respondent, on advice of its labor counsel, took the
position that the above-quoted language did not "terminate"
the contract and therefore in the absence of appropriate
notice the contract had automatically renewed for an
additional year in accordance with its terms. In finding that
the union's language had resulted in a termination of the
contract and the respondent guilty of a refusal to bargain, the
decision stated, "So long as the essential message was
conveyed, it is not reasonable for Respondent to hold them
[the union] to the standards of a Philadelphia lawyer."' The
Board went on to say that "A collective-bargaining agree-
ment is a total document. Changes in one or more of its
terms necessarily implies termination of the agreement and
emergence of a new one. The Union's March 15 letter
necessarily implied termination." This conclusion was
reached in spite of the very specific language in the notice
letter indicating a "desire to continue the current" agree-
ment.
In addition to the above cases which clearly indicate that
the Board will look through form to substance and find
terminal language when either party seeks to negotiate on
"wages, hours and other conditions of employment," there is
another reason for determining that the Union gave ade-
quate notice causing the contract to terminate April 1, 1977.
The disputed contract language was drafted by the Union. It
was not Respondent's language. An instrument uncertain as
to its terms is to be most strongly construed against the
party thereto who caused such uncertainty to exist, especial-
ly if he is the party who drew the contract or selected its
language.
The Charging Party's counsel argues in his brief that there
is nothing illegal or improper when the Duration and
Renewal clause permits an extension of a contract by giving
a notice of opening, citing Deluxe Metal Furniture Company,
121 NLRB 995, 1003 (1958). While this may be true with
carefully drafted, unambiguous language, nevertheless, I am
of the opinion that counsel has misconstrued the Deluxe
Metal case, which dealt primarily with the establishment of
new contract bar rules, because there the Board stated:
The treatment of all notices given at approximately
the renewal period as notices to forestall automatic
renewal, unless very strict provisions are met, will
practically eliminate the very difficult area of contract
bar rules covering coterminous modification and termi-
nation clauses and will render unnecessary evaluation of
the contract clause, the type of notice given, and the
, The quoted language taken from an earlier case, Champaign County
Contractors Association, 210 NLRB 467, 470 (1974).
"' Couture v. Ocean Park Bank. 270 P. 943 (1928); and Handley v. Mutual
Life Insurance Co. of New York, 147 P. 2d 319 (1944).
546
KCW FURNITURE COMPANY
conduct of the parties with respect thereto, which are
frequently inconsistent and create difficulties in deter-
mining their effect upon contract bar. [Emphasis sup-
plied.]
Having found that the Union's notice to the Respondent
Employer as contained in its letter of January 12, 1977 (G.C.
Exh. No. 3), and the subsequent conduct of the parties in
negotiations, resulted in a clear-cut termination of the
contract as of April 1, 1977, it follows that, when the
principals arrived at an undisputed impasse in their efforts to
reach a new collective-bargaining agreement, the Respon-
dent Employer was free to offer to its employees those terms
and conditions of employment which had been last offered to
the union negotiators. I shall recommend dismissal of the
8(aX5) allegations in the complaint.
CONCLUSIONS OF LAW
1. The Respondent, KCW Furniture Company, Inc., is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. General Teamsters Local Union 174, affiliated with
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, is a labor organization
within the meaning of Section 2(5) of the Act.
3. The following employees of Respondent, KCW Furni-
ture Company, Inc., constitute an appropriate unit for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act:
All truckdrivers, helpers, bulldrivers, dispatchers,
working foremen, and all employees engaged in the
loading and unloading of trucks or any similar devices.
4. Respondent, by its interrogation of employees Johnson
and Mensing regarding their union activity and/or member-
ship, has violated Section 8(a) I) of the Act.
5. The notice given by the Union to Respondent, KCW
Furniture Company, Inc., dated January 12, 1977, and the
subsequent conduct of the Union's and Respondent's repre-
sentatives, terminated the existing contract as of April 1,
1977.
6. All other allegations contained in the complaint relative
to additional Section 8(aX )() violations and/or Section
An NLRB-conducted election was never held among Respondent's
employees. The description of the appropriate bargaining unit has been taken
from the classification language contained in secs. 20.01, 20.02, 20.03, 20.04,
and 20.05 of the 1974-77 labor agreement (O.C. Exh. 2).
" In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
8(a)(5) violations are found to be without merit and shall be
dismissed.
THE REMEDY
Having found Respondent Company to have violated the
Act in certain particulars, I shall recommend that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the purposes of the Act.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record and pursuant to Section
10(c) of the Act, I hereby issue the following recommended:
ORDER"
The Respondent, KCW Furniture Company, Inc., Seattle,
Washington, its officers, agents, succesors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating or in any similar manner interfering with
the rights of employees to engage in union activity or other
protected concerted activities.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of the
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which I find will
effectuate the policies of the Act:
(a) Post at its principal place of business in Seattle,
Washington, copies of the attached notice marked "Appen-
dix.""' Copies of said notice, on forms provided by the
Regional Director for Region 19, 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 custom-
arily posted. Reasonable steps shall be taken by Respondent
to insure that said notices are not altered, defaced, or
covered by any other material.
(b) Notify the Regional Director for Region 19, in writing,
within 20 days of the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that any and all allegations of
the complaint not specifically found herein to be violative of
the Act shall be dismissed.
finding, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
"' 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."
547