Rohm & Haas Co.

National Labor Relations Board - Board Decisions

Jun 10, 1954

108 N.L.R.B. 1285 (N.L.R.B. 1954)

ROHM & HAAS COMPANY 1285
and tend to interfere with that sober and thoughtful choice which a free election is designed to
reflect." The Board, in the same decision, refers further to the timing of the speech in rela-
tion to the election by stating, "We believe that the real vice is in the last minute character
of the speech.. ." and, ". . . the delivery of such speeches on the eve of the election tend
to destroy freedom of choice and establish an atmosphere in which a free election cannot be
held." In view of the emphasis given, it seems that the proscribed period refers only to the
24-hour period immediately preceding the election and that, if, as here, a nonworking day
falls between the speech and the scheduled election, the Employer has not experienced such
an advantage as would warrant setting aside the election.
It is, therefore, the finding of the Regional Director that the speech of October 23, 1953,
made by the Employer to two assembled groups of employees did not interfere with a free and
untrammeled expression of the employees' choice in the election of October 26, 1953:
It is recommended that the UE's objections be overruled as it is concluded that the objec-
tions raise no substantial and material issues with respect to the election and that the
Employer's request to withdraw its objections be approved.
ROHM & HAAS COMPANY and INTERNATIONAL BROTHER-
HOOD OF ELECTRICAL WORKERS, AFL, LOCAL UNION
NO. 716, Petitioner. Case No. 39-RC-661. June 10, 1954
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Clarence L.
Stephens, hearing officer. The hearing officer's rulings made
at the hearing are free from prejudicial error and are hereby
affirmed.
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the mean-
ing of the Act.
2. The labor organizations involved claim to represent
employees of the Employer.'
3. No question affecting commerce exists concerning the
representation of employees of the Employer within the mean-
ing of Section 9 (c) (1) and Section 2 (6) and (7) of the Act, for
the following reasons:
Since Board certification on January 10, 1949, the Intervenor
has continuously represented the Employer's employees in a
production and maintenance unit. On August 28, 1953, the
Petitioner filed the petition herein seeking to sever therefrom
a craft unit of electricians and their helpers. However, on
August 12, 1953, prior to the filing of the petition, the Employer
and the Intervenor executed their most recent collective-
bargaining agreement covering the production and maintenance
unit, including the electricians. Contrary to the Petitioner, the
Intervenor and the Employer contend that the contract is a bar
to this proceeding. The contract contains no specified expiration
date, rather it provides-
1011 Workers International Union. CIO, Local 367, herein called Intervenor , was permitted
to intervene at the hearing on the basis of its existing contract with the Employer.
108 NLRB No. 185.
1286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Article XXIII TERMINATION
1. This agreement , originally dated November 1, 1950
and as subsequently amended , will continue in effect until
duly terminated in accord with this section.
If either party wishes to amend the terms of this agree-
ment, it shall notify the other party in writing ninety (90)
days in advance of its desire to negotiate specified changes
in its provisions . The parties will endeavor to commence
negotiations during the ninety (90) day period. Failing
agreement at the end of thirty (30) days following com-
mencement of such negotiations , the contract will be ex-
tended by mutal consent or either party may declare the
agreement terminated.
2. Installation of changes in the provisions of this agree-
ment, or in Schedule A, or in any other part of this or other
agreements between the parties shall await approval of
any Government Agency having jurisdiction in such matters.
Disapproval of such changes in whole or in part shall not
release the parties from their other obligations under the
terms of this agreement nor constitute grounds for re-
negotiation or termination as provided in Section 1, above.
Contracts terminable by their own provisions in the manner
set out in this contract have been classified by the Board as
being terminable at will . As such , in the evolution of the Board's
contract - bar rules , they have at times been rejected as bars to
representation elections , whether considered shortly or long
after their execution .: At the same time , however , the Board
has held that contracts of "indefinite duration " stand as a bar
to a rival petition for a period of 2 years . We are not con-
vinced that there is any real basis for this distinction.
No reference need be made to its legislative history to
establish that Congress sought to achieve stability in labor
relations affecting interstate commerce through the means of
collective bargaining . The end objective of this basic policy
necessarily is the collective -bargaining agreement which re-
sults from negotiations between employer and bargaining agent.
We believe, therefore, that a contract-bar rule which, absent
other compelling considerations , negates an agreement reached
pursuant to good - faith collective bargaining is not consonant
with the purposes of the Act.
We believe that the Board's duty, like that of the courts
generally , in dealing with contracts is to sustain their validity
and effectiveness except when the contract itself or its neces-
sary effect contravenes either the express language or the
clear proscriptions of the Act . ' Here , as in all cases involving
contract bar, we must balance the right of employees to select
2 The Beach Company, 72 NLRB 510,511; Greenbrier Dairy Products Company, 100 NLRB
432, 433.
sSee: N. L. R. B. v. Rockaway News Supply Company, Inc., 345 U S. 71.
ROHM & HAAS COMPANY 1287
a bargaining agent against the concomitant statutory objective
of maintaining established , stable labor relations . In all such
cases , ' the interests and desires of the employer and the
contracting union are pertinent considerations . Indeed, it is
their ability and willingness to live amicably under the es-
tablished contractual relationship that is the very goal of
collective bargaining . Agreements terminable at will are
presented for Board consideration only when the parties to
the contracts wish to preserve and continue their bargaining
relationship . If the parties were not satisfied , one or the
other would exercise its privilege under the contract to termi-
nate the agreement , and that would dispose of the problem.
Thus in application , Board practice of disregarding contracts
terminable at will for purposes of representation elections
would necessarily have the undesirable effect of disrupting
peaceful and settled relations between employers and labor
organizations and bringing disagreement and conflict where
peace had formerly obtained.
That the former rule governing contracts terminable at will
would have the effect of disturbing industrial peace is empha-
sized by this very case. The record shows that the Employer
and the Intervenor have enjoyed harmonious industrial relations
since the Intervenor was certified as the representative of the
Employer ' s employees more than 5 years ago. In its brief,
the Employer describes this 5 - year period in this n3anner:
Within this framework , 4 stability of employee - employer
relationships has been maintained , industrial peace
achieved , production has continued uninterrupted , the public
and the armed services have been assured of a continued
flow of the Company's products , and the employees, in-
cluding those covered by the petition , have made steady
advances in improving their working conditions.
It is natural, therefore , that both the Employer and the Inter-
venor vigorously assert that their contract should be a bar to
an election here.
In the light of the above , we believe that the purposes of the
Act will best be effectuated by changing the contract -bar rules
so that terminable - at-will contracts will stand as bars to
representation elections for a reasonable time. Withrespectto
contracts of indefinite duration , the Board has long recognized
them as bars to election proceedings for a reasonable time,
and has defined such period as 2 years .5 We see no persuasive
reason for distinguishing between the two types of agreements.
Indeed , we are not convinced that any valid distinction actually
exists . Accordingly , for contract - bar purposes , we shall apply
the same standard to contracts terminable at will as has been
4The unit of employees represented by the Intervenor.
5 Filtrol Corporation , 74 NLRB 1307. 1309.
1288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
applied to contracts of "indefinite duration ." Such contracts
will stand as bars to representation elections for a period of
2 years.6
We shall, therefore , dismiss the petition filed in this case.
[The Board dismissed the petition.]
Member Rodgers , dissenting:
I agree with my colleagues that in cases involving contract
bar, the Board must balance the right of employees to select a
bargaining representative against the desirability of maintain-
ing stability in labor relations . Both are statutory objectives
which the Board must effectuate. But, I do not believe that
Congress either contemplated or intended the subordination of
one of these objectives to the other . For that reason I cannot
join in the result reached here.
Stability of labor relations is furthered when the parties
arrive at a valid collective - bargaining agreement which
recognizes the employees ' representative as exclusive bar-
gaining agent and embraces substantive terms and conditions
of employment for all employees in an appropriate unit for a
definite and reasonable period.' By the same token, when that
agreement leaves the terms and conditions of employment in
doubt or subject to speculation , or where that agreement by its
own terms is susceptible to the unilateral termination by either
party at its pleasure , such a contract cannot be said to have
achieved that stabilizing effect on labor relations contemplated
by the statute.
Indeed , the Board has in the past characterized a clause
which operates to terminate a contract at will as one that
creates uncertainty rather than stability . In Container Corpora-
tion of America, 87 NLRB 1345 , the Board considered a pro-
vision which permitted the union to open the contract for the
purpose of discussing changes in the wage schedule by serving
60 days' notice on the company ; if no agreement was reached at
the end of 60 days , the union was privileged to cancel the con-
tract in its entirety by the giving of 72 hours ' notice. The union
had not availed itself of the reopening clause and both parties
considered the contract as continuing in effect . The Board
held:
However, by requesting changes to which it knows the Em-
ployer will not agree , the Intervenor may upon appropriate
notice unilaterally cause the termination of the agreement
at any time. Therefore , the agreement is tantamount to a
contract terminable at will , and as such it does not pre-
clude a present determination of representatives.
6 To the extent that prior Board decisions are inconsistent with this conclusion, they are
hereby overruled.
7 See Sixteenth Annual Report, page 64.
ROHM & HAAS COMPANY 1289
The clause in the present case renders the duration of the
contract equally uncertain . " Failing agreement ," the clause
reads, "at the end of thirty ( 30) days following commencement
of such negotiations , the contract will be extended by mutual
consent or either party may declare the agreement terminated."
(Emphasis supplied .) It seems futile for the majorityto point to
the absence of friction between the parties in this particular
factual context , as proof that contracts terminable at will make
for stability. Administrative policy must be based on objective
standards formulated as a result of broad administrative ex-
perience and completely consonant with the will of Congress.
That the parties in this case fortuitously did not fall out during
the course of their bargaining is hardly evidence , in my opinion,
that would warrant a change in Board policy, or that would in
any way impinge on the rationale that contracts that can be
terminated at will do not lend them selves to industrial stability.
It seems to me that it would be immeasurably simpler for the
parties who desire to assert their contracts as a bar to omit
such clauses --as indeed almost all agreements that come to the
Board's attention do--than for the Board to change its contract-
bar rule to accommodate the parties to this contract, and thereby
deny a free election to the employees here concerned.
Furthermore , I am not impressed by the majority's gratuitous
assumption that no valid distinction exists between contracts
of indefinite duration and those terminable at will , and that
because of such assumption contracts terminable at will should
hereafter " stand as bars for a period of 2 years." If , indeed,
the majority wishes to encourage the negotiation of collective-
bargaining agreements which will in fact stabilize labor rela-
tions, it would in my opinion be well advised to reexamine, and
perhaps abandon , its present rule with respect to contracts of
indefinite duration rather than summarily change the rule with
respect to contracts terminable at will.
Since I am satisfied that Congress regarded as one of the
most significant and important basic policies of the Act--the
right of employees freely to select a bargaining representative
of their choice-- I must dissent from the majority' s finding
here . Accordingly, I would hold that a contract which is termin-
able at will cannot serve as a bar 8 to an election , and I would
entertain the petition on the merits.
8Contamer Corporation of America , supr; Mid- Continent Coal Corporation , 82 NLRB 261;
The Broderick Company ( Header-Press Division), 85 NLRB 708; Lloyd Corporation, Ltd.,
87 NLRB 631; Texas Telephone Company, 93 NLRB 741; National Clay Products Company,
et al., 98 NLRB 137.