Providence Television, Inc.

National Labor Relations Board - Board Decisions

Dec 30, 1971

194 N.L.R.B. 759 (N.L.R.B. 1971)

PROVIDENCE TELEVISION, INC.
Providence Television , Inc. and Austin R . Hodges,
Petitioner and Local Union No. 1228 , International
Brotherhood of Electrical Workers,
AFL-CIO-CLC. Case 1-RD-649
December 30, 1971
DECISION ON REVIEW AND ORDER
By CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On September 27, 1971, the Regional Director for
Region 1 issued a Decision and Direction of Election
in the above-entitled proceeding in which he found
that the existing contract between the Union and the
Employer was in effect a stopgap agreement with no
fixed term and therefore inoperative as a bar to an
immediate decertification election in the unit of
technical employees represented by the Union.
Thereafter, in accordance with Section 102.67 of the
National Labor Relations Board Rules and Regula-
tions, the Union filed a timely request for review of
the Regional Director's Decision on the grounds that
it was clearly erroneous on a substantial factual issue
and was a departure from officially reported preced-
ent. The Petitioner filed a statement in opposition
thereto.
On October 21, 1971, the National Labor Relations
Board by telegraphic order granted the request for
review and stayed the election pending decision on
review.'
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 entire record in this
case with respect to the issues under review, and
makes the following finding:
The Union, through its Providence unit, is the
successor to Local Union No. 1281, International
Brotherhood of Electrical Workers, AFL-CIO, which
was the certified representative of the employees in
the technical unit here involved. Local 1281 had a
contract covering these employees effective from July
1, 1968, to June 30, 1971, subject to automatic renewal
for 1-year periods in the absence of timely notice to
terminate. During the term of this 3-year agreement, a
labor dispute arose leading to a work stoppage
affecting employees in the technical unit as well as
other employees of the Employer in another unit
represented by Local 1281. On May 1, 1971, Local
1281 and the Employer entered into a dispute
settlement agreement providing for adjustments and
settlement of pending litigation arising from the
759
dispute. This agreement contained the following
clause:
3. e. (vi) Company and Union will not terminate
the collective bargaining agreement covering the
technical unit (which agreement would otherwise,
on appropriate notice, terminate June 30, 1971)
but will permit that agreement to automatically
renew itself for one year. Notwithstanding such
renewal, Company and Union will, within ten days
after receiving a certified mail request from the
other, commence collective bargaining for such
amendment of that agreement as either may in
such bargaining lawfully propose. Neither Compa-
ny nor Union will send the other such a request
before July 1, 1971.
If they do not reach agreement on amendment of
the renewed collective bargaining agreement
within sixty days after commencement of such
bargaining, section 1.03 of that agreement will
automatically be suspended until such time as they
reach such agreement; and while section 1.03 is
thus suspended either party may take any lawful
economic action against the other in support of its
bargaining position on amendment of that agree-
ment. However, all other provisions of the re-
newed agreement will remain effective until its
extended expiration date or such earlier date as the
parties may reach agreement on its amendment.
Section 1.03 of the contract covering the technical
unit was a no-strike, no-lockout provision. Addition-
ally, the dispute settlement agreement provided that it
would not become operative until the parties executed
a collective-bargaining agreement covering the other
unit affected by the dispute. This condition was
fulfilled on May 25, 1971.
The instant petition was filed on June 15, 1971. As
of the date of the hearing herein, no notice to reopen
the renewed contract had been given.
The Regional Director concluded that because the
existing agreement, as renewed, is subject to
"renegotiations," it does not meet the Board's criteria
of a contract for a fixed term, as set forth in Pacific
Coast Association of Pulp and Paper Manufacturers,
121 NLRB 990. The Union contends that, absent
notice to terminate, the 3-year contract between Local
1281 and the Employer automatically renewed itself
for 1 year; and that the effect of the above-quoted
provision of the dispute settlement agreement, apart
from making clear the contracting parties' intention
to allow their contract to automatically renew itself,
was to add a provision for broad reopening of the
renewed contract, upon written notice, and, if
reopened and agreement on amendment was not
reached within 60 days, for suspension of the
1 The Board found no ment in the Petitioner 's contention in its
opposition statement that the request for review was untimely filed.
194 NLRB No. 128
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contract's no-strike, no-lockout provision until agree-
ment was reached. The Union argues that under the
Board's contract-bar policy set forth in Deluxe Metal
Furniture Company, 121 NLRB 995, inclusion of such
a broad reopening clause in the renewed contract did
not remove the contract as a bar-herein. We find merit
in the Union's contentions.
The Union's existing contract may not, in our
opinion, be construed under Pacific Coast 2 as a
stopgap agreement for such an agreement is a
temporary one entered into while negotiations for a
complete and final agreement continue. Here, the
parties agreed that the contract should renew for 1
year and there have been no negotiations for a new
agreement as to the technical unit at any time since
execution of the dispute settlement agreement. Thus,
the current agreement is one for a fixed term with a
midterm modification provision.
In Deluxe Metal,3 the Board stated that "a midterm
modification provision, regardless of its scope, will
not remove a contract as a bar unless the parties
actually terminated the contract." The Board further
stated that "modification clauses containing provi-
sion for unilateral termination by notice if agreement
is not reached or permitting a strike or lockout in
support of any demand made during the modification
negotiations and the right to terminate thereafter, will
be treated in the same manner as any other request for
midterm modification and will not remove the
contract as a bar." (Citations omitted.) Under the
policy there stated, we find that the current agreement
herein, as automatically renewed for 1 year and
amended to include a broad midterm modification
provision, is a contract for a fixed term and operates
as a bar to the instant petition.
Accordingly, we find that no question affecting
commerce exists concerning the representation of
certain employees of the Employer within the mean-
ing of Section 9(c)(1) and Section 2(6) and (7) of the
Act, and we shall dismiss the petition herein.
ORDER
It is hereby ordered that the petition filed herein be,
and it hereby is, dismissed.
2 Supra at 993
3 Supra at 1003, 1004