Sanson Hosiery Mills, Inc.

National Labor Relations Board - Board Decisions

Dec 29, 1950

92 N.L.R.B. 1102 (N.L.R.B. 1950)

In the Matter of SANSON HOSIERY MILLS , INC. and UNITED TEx'm
WoRKE$s of AMERICA, AFL
Case No. 15-CA-201.-Decided December 29, 1950
DECISION AND ORDER
On May 8, 1950 , Trial Examiner Martin S. Bennett issued his
Intermediate Report in the above -entitled proceeding finding that
the Respondent had not engaged in certain unfair labor practices, and
recommending that the complaint be dismissed, as set forth in the copy
of the Intermediate Report attached hereto. Thereafter the Gen-
eral Counsel filed exceptions to the Intermediate Report and a
supporting brief.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
Board has considered the Intermediate Report, the exceptions, and the
entire record in the case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner to the limited extent
consistent with the findings, conclusions, and order hereinafter
provided.
1. The Board certified the Union on May 2, 1947, as the exclusive
representative of the employees in the following unit, which we find
to constitute a unit appropriate for the purposes of collective bargain-
ing within the meaning of Section 9 (b) of the Act: All production
and maintenance employees of the Sanson Hosiery Mills, Inc.,
Meridian, Mississippi, including watchmen, but excluding office and
clerical employees, full-fashioned fixers, and supervisors as defined
in the Act.
2. We find that on May 2, 1947, and all times thereafter the Union
was the duly designated bargaining representative of the employees
in the aforesaid appropriate unit and that, pursuant to Section 9
(a) of the Act, the Union on May 2, 1947, and all times thereafter
has been and now is the exclusive representative of all employees
in the aforesaid unit for the purposes of collective bargaining with
respect to rates of pay, wages, hours of employment, and other
conditions of employment.
02 NLRB No. 174.
1102
SANSON HOSIERY. MILLS, INC. 1103
3. The Trial Examiner found that the Respondent did not violate
Section 8 (a) (5) of the Act and has recommended that the complaint
in this case be dismissed. His recommendation is based upon his
conclusion that the bargaining contract between the Union and the
Respondent was terminated by the Respondent on November 19, 1948,
and that thereafter the Respondent was under no obligation to
recognize or bargain with the Union.
With this conclusion we do not agree. On June 28, 1949, the Board
dismissed a petition for the decertification of the Union on the ground
.that the contract, being one of indefinite duration, served as a bar to a
petition for a period of 2 years.' For the reasons set forth in our
opinion in the decertification proceeding we hereby affirm. that de-
:cision.z It follows, therefore, that for the period during which the
contract was a bar and no question concerning representation might
validly be raised, the Respondent was under an obligation to recog-
nize and bargain with the Union.'
Accordingly, we find that the Respondent on July 13, 1949, when it
.refused to confer with the Union until the Board and courts had estab-
lished the Union's bargaining status, violated Section 8 (a) (1) and
8 (a) (5) of the Act. Moreover, on November 29, 1948, the Re-
spondent. had- informed the Union that it would not reply to the
TJnion.'s request to bargain until the Board had decided the pending
decertification petition. Under Section 10 (b) of the Act the Board
may not find the Respondent's conduct on this date violative of the
Act as it took place more than 6 months before the filing of the charge
on July 28, 1949. However, from the record as a whole, including the
particular nature of the refusal to bargain on November' 29, 1948, and
the fact that the Respondent again specifically refused to bargain on
.July 13, 1949, it is clear that the Respondent's refusal to bargain of
November 29, 1948, continued to manifest itself beyond January 29,
1949, the beginning of the 6-month period. We are satisfied that on
and after January 29, 1949, the Union's request for bargaining and
the Respondent's refusal to bargain continued, and that by such con-
duct, which falls within the period of 6 months preceding the filing
1 84 NLRB 654.
' we are not persuaded by our dissenting colleague , Chairman Herzog , that the contract
was mutually terminated. In our opinion the Union's letter of November 27, 1948, did
not constitute an assent to the Respondent 's attempted termination of the contract, but
constituted , at most, an acknowledgement of the Respondent's desire to terminate the con-
tract , coupled with a vigorous assertion of bargaining rights and an offer to negotiate a
,new contract to replace the existing one. To construe such a letter, as the Chairman does,
as an approval of the Respondent's attempted termination of the .contract is strained,
indeed.
' In view of this finding, we find it unnecessary to pass upon the General Counsel's
exception to the Trial Examiner 's exclusion of certain testimony offered regarding alleged
surveillance by the Respondent ' s supervisors and its effect upon the Union ' s majority status.
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the charge, the Respondent violated Section 8 (a) (1) and 8 (a) (5)
of the Act.
4. We find that the activities of the Respondent set forth in this
Decision and the attached Intermediate Report, occurring in connec-
tion with the operations of the Respondent described in the Intermedi-
ate Report, have a close, intimate, and substantial relation to trade,
traffic, and commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and the free flow
of commerce.
5. As it has been found that the Respondent has engaged in unfair
labor practices, we shall order the Respondent to cease and desist there-
from and take certain affirmative action designed to effectuate the poli-
cies of the Act. It having been found that the Respondent has re-
fused to bargain collectively with the Union as the exclusive repre-
sentative of its employees in an appropriate unit, we shall order the
Respondent upon request to bargain collectively with the Union.
6. Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following conclusions of law :
(a) United Textile Workers of America, AFL, is a labor organiza-
tion within the meaning of Section 2 (5) of the Act ;
(b) All production and maintenance employees of the Respondent
at its Meridian, Mississippi, plant, including watchmen, but excluding
office and clerical employees, full-fashioned fixers, and supervisors
have constituted and now constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of Section 9 (b)
of the Act;
(c) On or about May 2, 1947, and all times thereafter United
Textile Workers of America, AFL, has been the exclusive representa-
tive of all employees in the above unit for the purposes of collective
bargaining within the meaning of Section 9 (a) of the Act;
(d) By refusing on January 29, 1949, and at all times thereafter,
and on July 13, 1949, and at all times thereafter, to bargain collec-
tively with United Textile Workers of America, AFL, as the exclusive
representative of all its employees in the aforesaid appropriate unit,
the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (5) of the Act;
(e) By said acts, the Respondent has interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act, and has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (1) of the Act;
(f) The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7)
of the Act.
SANSON HOSIERY MILLS, INC.
ORDER
1105
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Sanson Hosiery Mills, Inc.,
Meridian, Mississippi, and its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with United Textile Workers
of America, AFL, as the exclusive representative of all its employees
in the appropriate unit with respect to rates of pay, wages, hours of
work, and other conditions of employment;
(b) In any other manner interfering with the efforts of United
Textile Workers of America, AFL, to negotiate for or represent
the employees in the aforesaid unit as exclusive bargaining agent.
2. Take the following affirmative action, which it is found will
effectuate the policies of the Act :
(a) Upon request bargain collectively with United Textile Workers
of America, AFL, as the exclusive representative of the employees
in the unit contained in the Board's certification of May 2, 1947;
(b) Post in conspicuous places at its plant in Meridian, Mississippi,
in all places where notices to employees are customarily posted, copies
of the notice attached hereto marked Appendix.4 Copies of said
notice, to be furnished by the Regional Director for the Fifteenth
Region (New Orleans, Louisiana ), shall, after being duly signed by'
the Respondent's representative , be posted by the Respondent im-
mediately upon receipt thereof and maintained by it for sixty (60)
consecutive days thereafter. Reasonable steps shall be taken by the
Respondent to insure that said notice shall not be altered , defaced, or
covered by any other material;
(c) Notify the said Regional Director in writing within ten (10)
days from the date of this Order, what steps the Respondent has taken
to comply herewith.
CHAIRDIAN HERZoo, dissenting :
I cannot concur in my colleagues' finding that the Respondent in
this case violated Section 8 (a) (5), because I disagree with the Board's
decision in the earlier decertification case .-' Granting that the con-
tract was one of indefinite duration as that term has long been defined
4 In the event that this Order is enforced by decree of a United -States Court of Appeals,
there shall be inserted before the words : "A Decision and Order" the words : "A Decree of
the United States Court of Appeals Enforcing."
6 Sanson Hosiery Mills, Inc ., 84 NLRB 654 . ( A panel decision , in which I did not
participate.)
1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the Board, the Respondent proposed to terminate it by its letter of
November 17, 1948, to the Union. The Union's reply, although re-
vealing deep dissatisfaction with the Respondent's treatment of the
issue, nevertheless constitutes a clear acceptance of the fact that the
contract had been terminated by the Respondent. That acceptance is
emphasized by the Union's proposal to negotiate a "new contract"
and its request for a meeting for that purpose. As the parties them-
selves terminated the contract, I think that contract should not have
been held to bar the decertification proceeding. It follows that no
finding of a violation of Section 8 (a) (5) should now be made. I
would dismiss the complaint in this case.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL BARGAIN collectively upon request with UNITED TEX-
TILE WORKERS OF AMERICA, AFL, as the exclusive representative of
all employees in the following bargaining unit with respect to
rates of pay, hours of employment, or other conditions of em-
ployment, and if an understanding is reached, embody such under-
standing in a signed agreement :
All production and maintenance employees of the Sanson
Hosiery Mills, Inc., including watchmen, but excluding of-
fice and clerical employees, full-fashioned fixers, and super-
visors as defined in the National Labor Relations Act.
SANSON HOSIERY MILLS, INC.,
Employer.
Dated--------------------- By --------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
Mr. Andrew P. Carter, for the General Counsel of the Board.
Messrs. Joseph Jacobs and W. R. Herrod, of Atlanta, Ga., for the Union.
Messrs. Geoffrey J. Cunniff and George Ethridge, of Philadelphia, Pa., and
Meridian, Miss., respectively, for Respondent.
STATEMENT OF THE CASE
Upon a charge filed on July 28, 1949, by United Textile Workers of Ameriea,
AFL, herein called the Union, the General Counsel of the National Labor Rela-
SANSON HOSIERY MILLS, INC. 1107
tions Board, by the Regional Director for the Fifteenth Region (New Orleans,
Louisiana), issued a complaint dated March 13, 1950, against Sanson Hosiery
Mills, Inc., herein called Respondent, alleging that Respondent had engaged in
and was engaging in unfair labor practices affecting commerce within the mean-
ing of Section 8 (a) (1) and (5) and Section 2 (6) and (7) of the National Labor
Relations Act, as amended 61 Stat. 136, herein called the Act. Copies of the
charge, complaint, and notice of hearing thereon were duly served upon Respond-
ent and the Union.
With respect to unfair labor practices, the complaint alleged that: (1) As
the result of a Board-directed election held on February 7, 1947, the Union was
selected as the collective bargaining representative of a majority of the em-
ployees of Respondent; (2) the Union was duly certified by the Board on or
about May 2, 1947; (3) the Union was duly recognized by Respondent until No-
vember 17, 1948, on which date and at all times thereafter Respondent has
refused to bargain collectively with the Union; and (4) by the foregoing conduct
Respondent has engaged in unfair labor practices within the meaning of Section
8 (a) (1) and (5) of the Act. Respondent duly filed an answer wherein it
admitted (1) the allegations of the complaint with respect to the nature and
extent of its business operations, (2) that the Union had been duly certified by
the Board, (3) that it had recognized the Union up to and including November
17, 1948, and (4) that after November 17, 1948, Respondent had refused to bar-
gain collectively with the Union. The answer alleged affirmatively that the
Union was not the representative of the employees of Respondent after Novem-
ber 17, 1948, that Respondent was within its rights in refusing to bargain, and
that its conduct was not violative of the Act.
Pursuant to notice, a hearing was held on March 27, 1950, at Meridian, Mis-
sissippi, before the undersigned Trial Examiner, Martin S. Bennett, duly desig-
hated by the Chief Trial Examiner. All parties were represented by counsel
who were afforded full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues ; the exclusion by the
undersigned of certain testimony proffered by the General. Counsel is discussed
below. At the outset of the hearing, the undersigned denied a motion to inter-
vene by various employees of Respondent who had been the petitioning parties
in a decertification proceeding involving this Respondent and previously dis-
missed by the Board. Sanson Hosiery Mills, Inc., 84 NLRB 654, 24 LRRM
1314. The parties argued orally before the undersigned at the conclusion of
the hearing and were given leave to file briefs and/or proposed findings and
conclusions. A brief has been received from Respondent.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Sanson Hosiery Mills, Inc., is a Delaware corporation which maintains an
office and factory at Meridian, Mississippi, where it is engaged in the manufac-
ture of women's full-fashioned hosiery. During the year ending December 1,
1949, which is a representative period, Respondent purchased raw materials,
consisting principally of rayon, valued in excess of $100,000, of which approxi-
mately 90 percent was purchased and shipped to Respondent's factory from
points outside the State of Mississippi. During the same period Respondent
manufactured and sold finished products valued in excess of $200,000, of which
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
approximately 90 percent was sold and shipped to points outside the State of
Mississippi.
Respondent admits, the Board has previously found, and the undersigned
now finds that Respondent is engaged in commerce within the meaning of the
Act.
II. THE ORGANIZATION INVOLVED
United Textile Workers of America, AFL, is a labor organization admitting to
membership employees of Respondent.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction and history
1. The issue
The sole issue herein is whether or not Respondent refused to bargain col-
lectively with the Union by terminating its contract on November 19, 1948, and
by withdrawing recognition on that date of the Union as the representative of
its employees. Respondent admits that it recognized the Union from the date of
its victory in an election conducted by the Board on February 7, 1947, and that
it refused to bargain with the Union on November 19, 1948, and thereafter. It
contends, however, that its withdrawal of recognition and admitted refusal to
bargain were not violative of the Act.
2. The representation proceeding ; signing of the contract
As the result of a petition for certification of representatives filed by the Union
in Case No. 15-R-1885, the Board on January 9, 1947, directed that an election
be held among the employees of Respondent in a unit consisting of its production,
and maintenance employees with certain inclusions and exclusions not material
herein.'
The election was held on or about February 7, 1947, and was won by the
Union which was certified by the Board on or about May 2, 1947. Respondent
granted recognition to the Union on and after its victory at the polls on Febru-
ary 7. The parties thereafter met and negotiated a collective bargaining agree-
ment which was signed on or about November 19, 1947. This agreement
contained the basic provisions usually found in a collective bargaining agreement,
but was silent on two basic aspects of the customary contract in that it made
no provision for duration or termination. As it made no provision for a definite
or definable term, it is clear, and the undersigned finds, that it was a contract
for an indefinite term.
3. The decertification petition; relations are broken off
On November 17, 1948, approximately 1 year after the contract was signed,
Respondent was in receipt of advice that a decertification petition was in the
process of being filed with the Regional Office of the Board by a group of its
employees, and it appears that a decertification petition actually was filed on or
about that date in Case No. 15-RD-14. Respondent forthwith wrote to the
Union on that date, stated that it had been advised of the impending filing of
' 71 NLRB 1474. Respondent was then known as Artcraft Hosiery Company, Meridian
Division. The name was subsequently changed to its present form and Respondent con-
cedes that this is the same enterprise.
SANSON HOSIERY MILLS, INC . 1109
the decertification petition, and announced that "In view of the pendency of the
decertification proceedings, the company regards its present collective bargain-
ing agreement dated November 19, 1947 with the United Textile Workers of
America, AFL, and Local Union #171 as terminated as of November 19, 1948."
This act was protested by the Union whose representative on November 27, 1948,
wrote that he understood the contract to be one of 2 years duration? The
Union further stated that it represented a majority of the employees, requested
that Respondent recognize it as bargaining agent, and announced its ". . . desire
to negotiate a new agreement .. ." Respondent replied on November 29, denied
any understanding that the contract was for a two-year period, and concluded
that "With respect to your request for a collective bargaining meeting, . . . at
such time as we are advised by the Natioal Labor Relations Board of the
disposition of the pending petition, a suitable reply will be furnished you."
On June 28, 1949, the Board issued its decsion dismissing the decertificationi
petition. Sanson Hosiery Mills, Inc., supra. The Board found that the con-
tract, inasmuch as it contained no provision for duration or termination was
one of indefinite duration, but that it nevertheless would bar an investigation
of representatives for the first 2 years of its existence. Finding that the de-
certification petition had been filed before the expiration of the protected 2-year
period, the Board held that the decertification petition was "barred by the
contract between the Employer and the Union" and stated that no reason was
found to depart from the customary 2-year contract bar rule.
. .. even though the Employer has unilaterally attempted to terminate the
agreement. Furthermore, we find it immaterial to the disposition of the
issues in this case, that the Employer's action herein may have created some
uncertainty as to the legal effect of the contract at the present time and pos-
sibly unsettled industrial relationships in this plant 5
See for example, . . Marvel Schebler Division Borg-Warner Corporation, 56
NLRB 105: Robert Gair Company, Inc., 64 NLRB 1. . . .
-The Board further noted in that decision that the contracting union, which is
the charging party herein, had moved for additional time to adduce testimony as
to the intent of the contracting parties to make a contract of 2 years' duration,
but denied the motion in view of its decision dismissing the decertification
petition.
After this decision, the Union sought on July 2, 1949, to resume collective bar-
gaining. negotiations with Respondent. On July 13, 1949, Respondent refused to
confer with the Union, expressed its doubt that the Union then represented a
majority of its employees, and refused to meet and negotiate with the Union
until the bargaining status of the Union had been established by the Board and
the courts. Thereafter the Union on July 28, 1949, filed the charge upon which
this proceeding is bottomed' It also appears that Respondent on or about
August 9, 1949, in Case No. 15-RM-12 petitioned for an election to resolve the
alleged representation question among its employees. This was dismissed by the
Regional Director on or about August 30, 1949. The group originally petitioning
for decertification of the Union submitted a later petition in Case No. 15-RD-25
which was dismissed by the Regional Director on March 15, 1950, on the ground
that a complaint had issued in the instant proceeding.
2 It also appears that previously , on March 24 , 1948, the Union wrote to Respondent
and requested that a clause to this effect : be inserted in the agreement ; Respondent prom-
ised to investigate the matter but never replied to the request.
8 An earlier charge filed by the Union was withdrawn.
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Contentions of the General Counsel and conclusions
(1) The basic position of the General Counsel is predicated upon the decision
in the decertification ease on June 28, 1949, wherein the Board held that the con-
tract of November 19, 1947, between the Union and Respondent would bar an in-
vestigation of representatives during the initial 2 years of its existence. It is
then argued that inasmuch as this 2-year period did not expire until November
19, 1949, the withdrawal of recognition and termination of relations on Novem-
ber 19, 1948, and thereafter, was ipso facto a refusal to bargain.
Initially it must be noted that in order to prevail herein, the General Counr.n l
must establish as an unfair labor practice conduct occurring not earlier than
January 28, 1949, a time 6 months prior to the filing of the charge on July 28,
1949. Cathey Lumber Company, 86 NLRB 157, 24 LRRM 1608. Consequently,
it is assumed that the General Counsel is placing reliance upon the fact that the
withdrawal of recognition by Respondent continued into the period beyond Jan-
uary 28, 1949, and that in any event, when Respondent overtly challenged the
union majority on July 13, 1949, it again refused to bargain.
Respondent contends that the contract, as was the fact, contained no provision
setting forth its duration and that it was, therefore, a contract at will which
could be terminated by either of the parties after it had been in operation for a
reasonable time. Significantly, the Board, in its decision in Case No. 15-RD-14,
although finding the contract to be one of indefinite duration, expressly refrained
from passing upon "the legal effect of the contract at the present time" and noted
that Respondent had "unilaterally attempted to terminate the agreement."
Furthermore, although the issue before the undersigned is not one of contract
bar, it may be noted that in the Robert Gair Company decision, supra, cited in
the decertification decision, a contract which as a matter of substantive contract
law had automatically renewed itself for a definite term was found to be a bar
to a petition for certification of representatives, where breach had been attempted
by the contracting labor organization but had been resisted by the Employer
who contended that a contract was in effect. And in Marvel Schebler Division,
Borg-Warner Corporation, supra, also cited in the decertification decision, an
analogous situation existed in terms of substantive contract law. In the present
case, however, the situation is different in that the Employer, as a matter of
substantive contract law and as he contends, has terminated the contract. It
may well follow that, under the special circumstances found here, a contract can
constitute a bar only if the Employer had attempted to breach a contract for a
term definite. -
It may also be noted that the other cases cited in the decertification are not
In point as to the present problem because they deal only with contracts of
definite or definable duration and in none of them did the employer terminate
or attempt to terminate an indefinite contract. Cf. Continental Southern Corp.,
'83 NLRB 100, 24 LRRM 1127 where the employer and the union entered into a
contract for a term of 1 year but continued it in effect after the expiration of the
year on December 1, 1948. On February 15, 1949, the employer rejected the
union's request of February 8, 1949, to modify the contract, refused to bargain
with the union, and challenged its majority. It was held that notwithstanding
previous recognition of the union, a question concerning representation had
been raised by the union's claim for recognition which had been placed in issue
when the employer refused to recognize that claim. In essence then, the
employer was permitted to raise a question concerning representation approxi-
SANSON HOSIERY MILLS, INC. 1111
mately 21/> months after the expiration of the contract . See also Strong Company,
86 NLRB 687 , 24 LRRM• 1678, and Kendall Mills , 77 NLRB 385 . The latter
decision was the common instance of a notice to terminate serving to prevent
automatic renewal of a contract and it would seem that inasmuch as a timely
notice to terminate prevents the renewal of an automatically renewable contract,
a, fortiori , a nonrenewable contract , as is present in the instant case, is also
terminated by a notice to terminate.
Cf. Federal Shipbuilding and Dry- Dock Company, 76 NLRB 413, where a
decertification petition was not barred after more than 1 year had elapsed since
certification of the labor organization and no contract had been executed. See
also Westinghouse Electric Corp., 80 NLRB 121. And, in Weber Showcase and
Fixture Co., 85 NLRB 1202, dismissed on other grounds , the Board held that a
decertification petition filed 14 months after certification and 1 month prior to
expiration of a contract signed during the certification year was not premature.
But, as stated above, the issue before the undersigned is not one of contract bar.
The courts have frequently adopted the position urged by Respondent that an
indefinite agreement will be interpreted as intending performance with a reason-
able time . Metal Associates , Inc. v. East Side Metal Spinning and Stamping
Corporation, 165 F. 2d 163 (C. A. 2), Molt v. St. Louis Union Tr. Co., 52 F. 2d
1068 (C. A. 4), and Crossland v. Kentucky Blue Grass Seed Growers ' Co-op Asso.,
1.03 F. 2d 565 ( C. A. 6). It has further been held that a hiring indefinite as to
time is terminable at the will of either party and therefore creates no executory
obligation after such termination . Littell v . Evening Star Newspaper Co., 120
F. 2d 36 (App. D. C.). And it has been held that where no time limitations on
performance are inserted in a contract , the contract is terminable by either party
upon reasonable notice and no cause need be assigned . Westbrook v. McCarty,
160 Miss . 455, 134 So. 193. Williston on Contracts , Sec. 38.
The undersigned is of the belief , in view of the above , that Respondent as a
matter of substantive contract law validly terminated the contract on November
19, 1948, 1 year after it was signed. As it had been in effect for 1 year , it cannot
be gainsaid that the Union had been afforded a reasonable term to enjoy the
fruits of the bargaining relationship. The undersigned is aware of no restric-
tions that may be placed upon the method of termination used by the Respondent,
other than those provided by Section 8 (d) of the Act which, although not argued
herein , are discussed below. Consequently, as the contract was validly and
legally terminated as a matter of substantive contract law after being in existence
for a reasonable period , the undersigned is constrained to reject this contention
of the General Counsel . It follows , and the undersigned so finds, that there was
no duty to bargain under this contract after its termination by Respondent'
(2)' Further to be considered, although the point was not expressly argued,
is the question whether the Board's certification of the Union on or about May 2,
1947, required Respondent to continue recognition of the Union , despite termina-
tion of the contract on 'November 19, 1948, when the certification was in excess
of 18 months of age.
Normally, a majority status may not be challenged during the certification
year and is presumed to continue thereafter until shown to have ceased , or until
such time as circumstances arise which indicate that the presumption no longer
holds true . In the instant case, however , at a time when the certification was in
It is noteworthy that on November 27, 1948, the Union, despite its claim of a 2-year
duration for the agreement , offered to negotiate a new agreement, thus, in effect, accepting
Respondent's termination of the contract.
1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
excess of 11/ years of age, a decertification petition was filed attacking the union
majority and the General Counsel concedes that it was supported by a majority of
the employees in the unit. Under these circumstances, the undersigned is im-
pelled to find that the presumption of a continued majority status by the Union
was rebutted, that Respondent was entitled to raise the question of a majority,
and that Respondent was not obligated to continue recognition of the Union.
1. Spiewak, 71 NLRB 770 and Wooster Brass Co., 80 NLRB 1633.°
(3) Although not argued herein by the General Counsel, it is apparent that
Respondent, in terminating its contract on November 19, 1948, did not comply
with the requisites of Section 8 (d) of the Act,' inasmuch as a written 60-day
notice was not served upon the Union 60 days prior to the time Respondent pro-
posed to terminate the contract. On the other hand, as the charge on which
this proceeding is bottomed was not filed until July 28, 1949, it follows that the
General Counsel is precluded by the 6 months Statute of Limitations of Section
10 (b) from issuing a complaint predicated upon said violation of the Act.
Conceivably, it might be argued that failure to give the 60-day notice of termi-
nation required by Section 8 (d) rendered Respondent's termination of the con-
tract ineffective as a matter of law, and that the contract continued in effect
for at least 2 years until November 19, 1949. However, Section 8 (d) of the
Act sets forth only the standards and tests by which the Board must determine
whether employers and labor organizations have satisfied the obligation to bar-
gain collectively within the meaning of Section 8 (a) (5) and 8 (b) (3) of the
Act, Wilson & Co., Inc., 89 NLRB 310. For example, failure to fulfill this obliga-
tion will not result in automatic renewal of an existing contract which permitted
a shorter notice to prevent automatic renewal. Magnolia Petroleum, Co., 79 NLRB
1027, and Continental Southern Corp., 83 NLRB 910. Section 8 (d) does not
deal with questions of substantive contract law and it would follow that failure
to comply with its provisions, although an unfair labor practice, would have no
bearing on whether as a matter of substantive law, a contract has been termi-
nated. In any event, this question has neither been raised nor litigated before
the undersigned.
In view of the foregoing findings, and under the special circumstances of this
case, the undersigned finds that Respondent has not refused to bargain collec-
tively with the Union. It will accordingly be recommended that the'complaint
be dismissed.
5 The General Counsel sought to adduce testimony to the effect that between May and
July of 1948 , Respondent 's supervisors watched union dues collectors when the latter col-
lected dues in the plant , and argued that this conduct resulted in the loss of the union
majority . However, the General Counsel does not allege this to be an unfair labor prac-
tice , nor could he, in view of the 6 months Statute of Limitations , inasmuch as the charge
was not filed until July 28, 1949. Further , the General Counsel expressly waives the
contention that Respondent is to be held responsible for the filing of the decertification
petition , claiming only that Respondent 's conduct brought about support of the decertifica-
tion petition . In view thereof , and as the General Counsel 's basic position is a flat legal
one, namely , that since the contract was held to constitute a 2-year bar there was a duty
to bargain during that period , this line of testimony was excluded.
Section 8 (d) provides , inter alia, that where there Is in effect a collective bargaining
contract , no party to such contract shall terminate it unless he serves a written notice
upon the other party to the contract of the proposed termination 60 days prior to the
expiration date thereof, or , in the event it contains no expiration date , 60 days prior to
the time it is proposed to make such termination.
SANSON HOSIERY MILLS, INC . 1113
CONOLIISIONS OF LAW
1. Sanson Hosiery Mills, Inc., Meridian , Mississippi , is, and at all times
material herein was , engaged in commerce within the meaning of Section 2 (6)
and (7 ) of the Act.
2. United Textile Workers of America, AFL, is a labor organization within
the meaning of Section 2 (5) of the Act.
3. Respondent has not engaged in unfair labor practices within the meaning
of Section 8 (a) (1) and ( 5) of the Act.
[Recommended Order omitted from publication in this volume.]
929979-51-vol. 92-72