South Jersey Gas Co.

National Labor Relations Board - Administrative Judge Opinions

Sep 9, 2009

04-CB-010259 (N.L.R.B. Sep. 9, 2009)

JD-43-09
Folsum, NJ
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE WORKERS
OF AMERICA, LOCAL LODGE S–76, AFL–CIO,
and Case 4–CB–10259
SOUTH JERSEY GAS COMPANY.
Margaret McGovern, Esq. (Region 4, NLRB),
of Philadelphia, Pennsylvania, for the General Counsel
Richard Poulson, Esq. (Willig, Williams and Davidson),
of Philadelphia, Pennsylvania, for the Respondent
John Hegarty, Esq. (Jasinski and Williams, PC),
of Atlantic City, New Jersey, for the Charging Party
DECISION
Introduction
DAVID I. GOLDMAN, ADMINISTRATIVE LAW JUDGE. In this case the Government
alleges that a union has unlawfully refused an employer’s demand to negotiate a
successor labor agreement to replace the parties’ last agreement. The predecessor
agreement, not atypically, was governed by a provision that required 60-days written
notice to amend or terminate to avoid renewal of the agreement for one year. The issue
in this case is whether the employer provided the union with such notice. If it did not,
then, by its terms, the agreement renewed and—pursuant to Section 8(d) of the National
Labor Relations Act (the Act)1—the union was not under a statutory duty to bargain for a
new agreement to take effect before the extended renewal date of January 14, 2010.
On the other hand, if the employer did provide sufficient notice to the union, the
agreement, by its terms, terminated January 14, 2009, and the union’s refusal to bargain
a successor collective-bargaining agreement was, and is, as alleged, a violation of the
duty to bargain, pursuant to Section 8(b)(3) of the Act.2

1Sec. 8(d) states, in relevant part, that the duty to bargain:
shall not be construed as requiring either party to discuss or agree to any
modification of the terms and conditions contained in a contract for a fixed
period, if such modification is to become effective before such terms and
conditions can be reopened under the provisions of the contract.
2Sec. 8(b)(3) of the Act states that is an unfair labor practice for a labor organization:
to refuse to bargain collectively with an employer, provided it is the
representative of his employees . . . .
JD-43-09
2
Statement of the Case
On December 19, 2008, South Jersey Gas Company (SJG or the Employer) filed
an unfair labor practice charge, docketed by Region 4 of the National Labor Relations
Board (the Board) as Case 4–CB–10259, alleging that the International Association of
Machinists and Aerospace Workers of America, Local Lodge S–76 (Local 76 or the
Union) was violating the National Labor Relations Act. On March 20, 2009, the Board’s
General Counsel issued a complaint against Local 76, alleging the Union was failing and
refusing to collectively bargain with SJG in violation of Section 8(b)(3) of the Act.
The case was tried in Philadelphia, Pennsylvania, on June 24, 2009. Counsel for
the General Counsel and the Union filed briefs in support of their positions on August 12,
2009.3 On the entire record, I make the following findings of fact, conclusions of law,
and recommendations.
JURISDICTION
The complaint alleges, the Respondent admits, and I find that the Respondent
Union is a labor organization within the meaning of Section 2(5) of the Act. The
complaint alleges, the Respondent admits, and I find, that the Charging Party SJG is a
New Jersey corporation with headquarters in Folsom, New Jersey, and that it operates
as a natural gas utility in southern New Jersey. The complaint alleges, Respondent
admits, and I find that during the past year, SJG, in conducting its business operations,
received gross revenues in excess of $250,000, and purchased and received goods
valued in excess of $50,0000 directly from points outside the State of New Jersey. The
complaint alleges, the Respondent admits, and I find, that at all material times SJG has
been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7)
of the Act. Based on the foregoing, I find that this dispute affects commerce and that the
Board has proper jurisdiction of this case, pursuant to Section 10(a) of the Act.
Findings of Fact
Background
The most recent collective-bargaining agreement between Local 76 and SJG (the
2005 Agreement) was effective January 15, 2005. The earliest termination date
provided for in the agreement was January 14, 2009. This contract governed two
separate bargaining units of SJG gas workers, gas utility workers, and construction
workers, estimated at 230 total employees.4
Local 76 also represented one—or two, the testimony is in conflict, but the
dispute is immaterial—other bargaining unit(s) of employees employed by South Jersey
Energy Services Plus (SJESP), Like SJG, SJESP was another company affiliated with

3On August 26, 2009, Counsel for the General Counsel filed a motion for leave to
file a reply brief. As discussed, infra, that motion is denied.
4The two units cover essentially the same job classifications, but one unit was
previously represented by a different IAM Local, Local Lodge S–95. During the term of
the 2005 Agreement, Local Lodge S–95 effectively ceased to exist. Thereafter, all
parties treated the 2005 Agreement as controlling for both groups of employees.
JD-43-09
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South Jersey Industries, the parent company of the group. Still another subsidiary,
South Jersey Industries Services (SJIS) performed, among other things, the labor
relations and collective bargaining negotiations for the South Jersey Industries affiliated
companies, including SJG.
Art. XIX of the 2005 Agreement is titled “Term of Agreement” and states the
following:
This agreement shall remain in force and effective from January 15
2005 through January 14, 2009, and shall be considered renewed from
term to term for the periods of one year each, provided, however, that a
written notice to amend or to terminate it may be given by either party to
the other at least sixty (60) days prior to January 14, 2009, or the
expiration of any extended term, and provided further, that changes may
be made at any time by mutual consent. [original emphasis].
Negotiations for an early agreement
During the term of the 2005 Agreement, in September 2007, the parties began
early negotiations. Initially this was an effort to settle a manning grievance headed for
arbitration. The discussions broadened into an effort to obtain an early successor
agreement to the 2005 Agreement. Over the course of the next year the parties met 20
or more times. A significant amount of information was exchanged between the parties,
and as late as November 3, 2008, the Union’s benefits counsel and an employer
representative were discussing retiree health care information.
The parties first attempted to reach a new agreement before the end of 2007.
That failed, and when Local 76 changed leadership, the parties continued their efforts in
2008. The apparent culmination of these discussions was an Employer proposal of May
20, 2008, that proposed a new agreement commencing July 15, 2008, and that reflected
the parties’ negotiations on health care, job security, job classifications, and other issues
of mutual concern. However, this proposal was not accepted.
In mid-October 2008, Sharon Pennington, the chief operating officer of SJIS, who
was SJG’s chief negotiator, told Union Chief Negotiator Dan Chmelko, in a phone call,
that “anything that they offered to the Union [in the early negotiations] was done. The
stock market has changed everything.” Pennington told Chmelko that as a result of the
economic downturn, the company’s pension plan was underfunded by as much as $5
million. Chmelko told Pennington at the time, “somebody is going to have to send a 60-
day notice.”
In an October 16, 2008 e-mail to Chmelko, Pennington told Chmelko that “market
conditions have dramatically changed the context within which we are bargaining and
the company’s position has been altered significantly.”
By letter dated, October 16, Chmelko reported to the Local 76 membership,
following up on his “detailed report” at the September membership meeting, about the
early negotiations, which he had made a point of not publicizing while they had been
ongoing. Chmelko told the membership about the talks and explained:
JD-43-09
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There were many items that were discussed by the parties in a process
that encompassed over a year of talks and nearly twenty face to face
meetings and too many phone conversations to count. Unfortunately, the
parties got bogged down on the issue of Health Care for retirees and
whether or not retire[e]s, not covered by an [early retirement program],
would have to start paying toward their Health Care premiums. . . .
We pursued many alternatives but in the end were not able to broker a
deal with the Company, in fairness, SJG did have several attractive items
on the table, that they have since communicated they cannot follow
through on because of the current economic downturn.
Although it was probably true earlier in the fall or summer, it was very much the
case that by mid-October, when Pennington announced that the SJG proposals were no
longer on the table, the effort to reach an early successor agreement had failed.
The Employer’s efforts to renew negotiations
At this point, SJS began pursuing Local 76 in an effort to set dates for
negotiations for a new collective-bargaining agreement to replace the one “soon to
expire.”
In an October 27, 2008 e-mail to Chmelko, titled “Agreement between South
Jersey Gas Co. and Local S76,” SJS Chief Negotiator Pennington wrote:
As we discussed, the company is available to meet to discuss the soon to
expire collective-bargaining agreement between it and local 76. The
company is available November 10, 12, 13, and 14th for that purpose.
Once we have dates agreed upon, we will obtain a location at which to
meet and firm up times. We look forward to hearing from you.
On November 3, Anthony Pezzulo, director of human resources for SJIS, whose
work included labor relations duties on behalf of SJG, caused his labor relations
manager, Janet Snyder, to send a notice to the Federal Mediation and Conciliation
Service (FMCS) that “written notice of proposed termination or modification of the
existing collective bargaining contract was served upon the other party to this contract
and that no agreement has been reached.” This notice listed the employer as South
Jersey Industries and the union as “IAM&AW” Local Lodge 76, and listed 287 employees
as being covered by the contract. According to Pezzulo, this notice to the FMCS was
intended to cover all of the labor agreements between South Jersey Industries-affiliated
companies, which would be the two SJG contracts with Local 76—at issue in this case—
as well as the contracts between SJESP and Local 76.
The next day Snyder sent a letter, on South Jersey Industries’ letterhead, to the
State of New Jersey Board of Mediation regarding “Expiration of Collective-Bargaining
Agreements.” The letter stated:
To Whom It May Concern:
This letter is being sent in accordance with Section 8(d)(3) of the Labor–
Management Relations Act, 1947 to provide notice that South Jersey
Industries’ five collective-bargaining agreements expire on January 14,
2009 at 11:59 p.m.
JD-43-09
5
We are currently bargaining with the IAM&AW and the IBEW, their
contact information is as follows.
IAM&AW IBEW
Local S–76 Local 1293
3697 Black Horse Pike, Unit B2 2684 Rte.9 Rear
Williamstown, NJ 08094 Oceanview, NJ 08230
877-680-3399 609-412-6725
* * * * * * * * * *
A copy of this letter was mailed to Local 76, at the above, address, which was the
address on the Local’s stationary at this time.
On November 4, a letter was faxed to Snyder from the FMCS, acknowledging
receipt of “notice that you have started or will soon begin negotiations for a new
collective-bargaining agreement” and assigning an FMCS mediator to assist in
negotiations. This letter was “cc’ed” to Local 76.
On November 5, Pennington sent another e-mail to Chmelko, this one titled
“Schedule.” The e-mail, written the morning after the United States presidential election,
stated:
Good morning! I hope that you are recovering from what is undoubtedly a
celebration of the election outcome. I wanted to be one of the first in the
cue to try and get some dates from you for continuing negotiation of the
SJG agreements and beginning to work on the Energy Service Plus
agreements. I previously sent you some dates for both. I would
appreciate your reviewing and letting me know which, if any, work for you.
Thanks.
The employer representatives received no response from the Union to these e-
mails or from the Union in response to the mediation agency notices.5
However, on November 13, Chmelko sent notices to terminate the contract(s)
covering the Local 76-represented SJEP employees. These contracts included
language similar to article XIX in the SJG–Local 76 contract, and also provided for a
January 14, 2009 expiration date upon provision of timely notice to amend or terminate.6
Chmelko did not send a notice to amend or terminate the SJG contracts at this
time. The failure was not inadvertent, but purposeful. In light of the Employer’s
statements to the Union that the declining economy had led it to take its proposals from

5Chmelko testified that he recalled receiving e-mail communication from Pennington
asking for dates to meet. Given this, and given the apparently authentic, and
unchallenged nature of the e-mails, I conclude that Chmelko received the e-mails from
Pennington requesting negotiating dates, for the “soon to expire collective bargaining
agreement.”
6The Union’s notices to the Employer were not offered in evidence, and there is no
description of their wording.
JD-43-09
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May off the table, the Union hoped that neither side would send appropriate notice and
the SJG contracts would renew for another year. The Union had heard reports that SJG
representatives, including Ed Graham and Pennington, had been visiting facilities and
warning that employees should not, in Chmelko’s words “expect any additives in the
agreement.” Chmelko explained that
[t]he decision was not to send [a notice to amend or terminate], based on
the communication that Graham had with the membership, that it would
be in the best interest of the membership, and that’s my responsibility, not
to send the 60 day notice, to let the contract renew under the evergreen
clause, so that we could hopefully look towards a more favorable situation
come a year from then.
On November 17, probably after Pezzulo saw the notices from the Union
regarding the Energy Plus agreements, Pezzulo caused Snyder to send a rework of the
letter previously sent, November 3, to the New Jersey Board of Mediation, directly to
Local 76 President Askins. The letter, with a “Re” line of “Expiration of Collective-
Bargaining Agreements,” stated:
To Whom It May Concern:
This letter is being sent in accordance with Section 8(d)(3) of the Labor–
Management Relations Act, 1947 to provide notice that South Jersey
Industries’ 3 collective-bargaining agreements expire on January 14,
2009 at 11:59 p.m. The contracts cover seven locations located in New
Jersey.
As you are aware, we have been negotiating for many months and plan to
continue to do so. We are currently awaiting your next available dates.7
After receiving no response from the Union to her e-mails, or to Snyder’s letter,
on December 5, 2008, Pennington wrote a letter to Chmelko. The letter stated:
Since September of 2007, the parties have met and conferred in an
attempt to negotiate new collective-bargaining agreements for employees
in each respective bargaining unit. These negotiations have been
productive in that the parties have explored and proposed changes to the
expiring collective-bargaining agreements that balance the interests of all
parties. Unfortunately, these discussions have not resulted in any
agreement for new contracts. There is a considerable amount of work
ahead of us to reach new contracts.
In that light most recently we have provided you with a series of notices
requesting dates to continue negotiations. Unfortunately for whatever
reason, you have refused to respond and not proposed dates to continue

7Pezzulo asserted at trial that the fact that the November 17 notice was too late to
give 60-days notice of contract termination proves that was not its purpose. That is not
compelling. By the same token, the fact that the Employer feared that adequate notice
to terminate the SJG contracts had not been previously provided does not show that its
prior notifications to the Union were insufficient.
JD-43-09
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negotiations in an effort to reach an amicable settlement prior to the
January 14, 2009 contract expiration. Needless to say, we are
disappointed by your silence.
One needs to look no further than recent news reports to confirm that the
economic conditions in our country have presented all of us with the
harshness of reality. Specifically, there is not doubt that the economy has
changed the landscape and forced everyone to revisit the terms and
conditions and economics in the expiring contracts. Our company must
face the fact that the current realities in our economy will require tough
decisions by all of us to reach contracts that provide flexibility and
economics that are consistent with the state of the economy that we are
all facing for the foreseeable future. There, this is yet another notice
requesting dates for us to meet and exchange contract proposal. Please
respond to us with dates.
Chmelko responded to Pennington’s correspondence by letter dated December 15,
2008. He wrote:
I am in receipt of your December 5, 2009 letter. I have also reviewed the
November 17, 2009 letter that Ms. Snyder faxed to Local Lodge S–76
President Brian Askins which was not sent to my office. Allow me to
clarify the status of the current CBA between South jersey Gas and Local
Lodge S–76.
The current CBA will not expire until January 14, 2010. The Agreement
was automatically renewed for one year in accordance with Article 19 and
Article 20 in the respective location’s Agreements because neither party
provided written notice to amend/terminate the agreement at least sixty
days prior to January 14, 2009.
Notwithstanding that fact, the parties in Local S–76 will make themselves
available to meet with the Company should you wish to discuss matters of
importance to your Company and our bargaining unit members. Please
offer suggested meeting dates, and I will communicate with you which
dates are available in my schedule. Also you may provide dates for the
South Jersey Energy Services Plus contracts where sixty day notices
were provided under that respective CBA. As you should know, I have a
very busy schedule in my capacity as Director of District 1 IAM&AW and
currently have several sets of negotiations that are ongoing with
employers in my area of responsibility. I will do my best to accommodate
your provided dates.
Analysis
The Union does not dispute that it refused to bargain for a successor agreement
to commence January 14, 2009. Its defense is that it was not required to, as the 2005
Agreement renewed due to a lack of the notification required to forestall renewal.8

8I note that the Union’s December 15 offer to “make themselves available to meet
with the Company should you wish to discuss matters of importance to your Company
JD-43-09
8
It is commonplace for labor agreements to contain a clause renewing in the
absence of timely notice to amend or terminate the agreement. With regard to the
timing of the notice to amend or terminate, the Board long ago took the position that the
time limits for renewal are to be "strictly construed," as long as the timelines are plainly
set forth in the contract.9 This “strict construction” makes sense, when the time limits are
expressly and specifically set forth in the notice provision, and this is often the case.
However, this strict construction as to time limits is not relevant with regard to the
form or content of the required notice, where, as here, the contract’s provisions do not
specify the form or content of the required notice.
Where no format or content for the notice is prescribed by the parties’
agreement, the Board accepts “reasonable” and “substantial” compliance as adequate.
All that is necessary is that one party—in writing, if the contract requires that10—convey
to the other its desire to amend or terminate the agreement. No “magic words” are
required and if the party’s notice reasonably conveys to the other party its desire to enter
into negotiations for a new collective-bargaining agreement, this is satisfactory to show a
desire to amend or terminate and thus avoid contract renewal.
Obviously, parties are free to contractually require more exacting notification
provisions. And sometimes they do. But in the face of generalized notice requirements,
the Board’s well-settled and uniform approach is to accept as adequate a range of
efforts that reasonably convey the party’s desire to amend or terminate the contract.
For instance, in Champaign County Contractors Association, 210 NLRB 467, 470
(1974), a case that is not materially distinguishable from that at hand, the union mailed
to the employer of copy of the FMCS form F–7 the union had sent to the FMCS to
comply with the notice provisions of Section 8(d) of the Act. The Board held that this
“was reasonable notice where, as here, the contract provisions governing notice of
termination are general in nature and no specific format for notice is stated.” The term-
of-agreement provision in Champaign County Contractors was very similar to the one at

and our bargaining unit members” is not an offer to engage in statutorily-required
bargaining. As confirmed by Chmelko’s testimony at the hearing, and by the entire point
of the Respondent’s position, this offer to “sit down and talk” was, in the Union’s view,
like the Union’s willingness to hear the Employer out on early negotiations in 2007, a
wholly voluntary exercise, terminable at will, in which, as set forth in Sec. 8(d) of the Act,
the Union was not required to discuss anything it did not want to, no impasse could be
reached, and no changes implemented without the consent of the Union. It is
negotiations, in the broadest sense, between an employer and a union, but it is not the
statutory duty to bargain required by the Act if the agreement was expiring January 14,
2009.
9Koenig Brothers Inc., 108 NLRB 304 (1954). It is also true that the Board will
consider and accept mitigating circumstances in determining the timeliness of a notice if
the notice is delayed by conditions beyond the control of the sender.
10If not, oral notice may be sufficient. Jet Line Products, 229 NLRB 322, 323 (1977).
In the instant case, the agreement provides for written notice. See art. XIX and more
generally, art. XVII, sec. 2 of the 2005 Agreement.
JD-43-09
9
issue here, requiring timely written notice “to amend, modify, or terminate” the
agreement in order to forestall its renewal.11
Notably, in Champaign County Contractors,
the method used by [the union] departed from past practice in that no
letter containing the substantive information of intent to terminate
accompanied the copy of form F–7, nor was the form sent by registered
or certified mail. But this past practice has not been incorporated into the
contract so as to limit the broad language of section 19 [of the parties’
contract].
In Champaign Contractors, supra, the arrival in the employer’s office of the copy
of the union’s FMCS form “did not trigger any attention on the part of Respondent
because copies of such forms have not been used in the past as notice of termination
agreements.” 210 NLRB at 468. Still, the Board, adopting the reasoning of the ALJ,
was “not prepared to find that [the union’s] effort, although not up to the standards of
past practice, was without legal effect. . . . So long as the essential message was
conveyed, it is not reasonable for Respondent to hold them to the standards of a
Philadelphia lawyer.”
The respondent in Champaign County Contractors (in that case, the employer),
argued that the “essential message”—i.e., the notice to terminate or amend required by
the contract—was not conveyed by the mailing of a copy of the FMCS form. The Board
adopted the ALJ’s rejection of this claim:
It is pointed out that the function of form F–7 is to satisfy the requirements
of Section 8(d) of the Act. I agree. But nowhere is it written that that is

11Sec. 19, the term-of-agreement provision in Champaign County Contractors, read
in full:
This Agreement shall be effective on July 24, 1971, and shall remain in
full force and effect until midnight July 23, 1973, and shall continue in
force from year to year therefore, except that by written notice given by
either party at least sixty (60) days, but not more than ninety (90) days,
prior to July 24th of any year thereafter, either party may notify the other of
its desire to amend, modify, or terminate this agreement.
For convenience of comparison, I reprint art. XIX of the 2005 Agreement here:
This agreement shall remain in force and effective from January 15 2005
through January 14, 2009, and shall be considered renewed from term to
term for the periods of one year each, provided, however, that a written
notice to amend or to terminate it may be given by either party to the
other at least sixty (60) days prior to January 14, 2009, or the expiration
of any extended term, and provided further, that changes may be made at
any time by mutual consent. [original emphasis].
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the only purpose the form may serve. Its delivery to the employer here
was an indication of the Union’s desire to negotiate a new contract.
Apparently a clerical in [the employer’s] office did not take it as such, but I
think Respondent must bear the responsibility for that misjudgment. All of
the subsequent conduct of the union . . . was consistent with the belief
that proper notice had been given. None of the evidence indicates that
Respondent was misled. In the circumstances of this particular case I
find that notice, legally adequate under section 19 of the existing
agreement, was given to Respondent on May 2.
Other Board precedent reinforces the view set forth in Champaign County
Contractors. In Oakland Press Co., 229 NLRB 476 (1977), enfd. in relevant part 606
F.2d 689 (6th Cir. 1979), the contract’s termination clause stated:
This Agreement shall be in full force and effect from June 1, 1973,
to and including May 31, 1976, and shall continue in full force and effect
from year to the year thereafter, unless written notice of desire to cancel
or to terminate the Agreement . . . served by either party upon the other at
least sixty (60) days prior to the date of expiration.
The union in Oakland Press Co. wrote to the employer, approximately on March
15, stating 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,
including those set forth in memorandum agreements and other
supplements thereto to take affect during the contract period commencing
June 1, 1976.
Local 372 offers to meet and confer with your representatives for
the purpose of negotiating said changes or revisions at a mutually
convenient date, time and place.
The changes or revisions to be negotiated will be sent to you at a
later date.
Thus, in Oakland Press, the termination clause, unlike art. XIX in our case, which
requires notice “to amend or to terminate,” required “notice of desire to cancel or to
terminate the Agreement.” In Oakland Press, the Union’s notice did not mention the
words “cancel or terminate”—indeed, it stated that the union “desires to continue its
collective-bargaining agreement with your firm,” and added only that it also wanted to
“negotiate certain changes or revisions in its provisions.” The employer in Oakland
Press took the position that the union’s notice did not satisfy the requirements of the
contractual cancellation/termination clause and therefore that the contracts at issue
renewed for a period of one year. The ALJ, in reasoning affirmed by the Board, rejected
the employer’s argument, suggesting that it had “a medieval tone”:
[The Employer contends that s]ince [the union] did not use the
appropriate magic words in the March 15 letter, it could not have
terminated the contract. This, however, does not take into consideration
the past history of bargaining between these parties or other extrinsic
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evidence which clearly slows the Union's position and which reasonably
put the Respondent on notice concerning it.
Having carefully considered [the employer counsel’s] testimony, I am
persuaded that, following receipt of the Union's March 15 letter, he
undertook to posture the Respondent in such a way that by using a
technicality, which [the employer counsel] admits, the Respondent would
not be required to bargain with the Union over the subjects covered in the
two contracts until 1977. I conclude that this was a deliberate attempt to
avoid the Respondent's obligation to bargain with the Union on the full
range of mandatory subjects. If the March 15 letter was inartfully drafted,
at best the defect was technical.
A mere technical deficiency in complying with the termination of clause of
a contract is not a sufficient reason to excuse one's obligation to bargain
in good faith. . . . .
I find that the essential message was in fact conveyed, even if not in the
precise, technical terms of the contract. It is clear from the letter that the
Union considered the contract would expire on May 31 and it wished to
negotiate changes to take effect "during the contract period commencing
June 1, 1976." A collective–bargaining agreement 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. . . .
See also, Local No. 6–0682, Paper Workers Union (Checker Motors Corp.), 339 NLRB
291, 299 (2003) (“Absolute perfection is not required to give notice to terminate an
agreement”).
Finally, of relevance is the Board’s decision in Bridgestone/Firestone, Inc., 331
NLRB 205 (2000). There, the Board found that the union’s notice was adequate to
terminate the contract, and its reasoning is instructive.
Bridgestone/Firestone involved a more elaborate term-of-agreement provision
than the one here. The term-of-agreement provision in Bridgestone/ Firestone was in
two sections. Section 1 set forth a procedure for notice of termination of the agreement,
and section 2 set forth notice for a party “desir[ing] to continue said Agreement, but also
desir[ing] to negotiate changes or revisions in th[e] Agreement.” Although the Board
agreed that “[c]learly, it was section 2 that the union invoked,” the Board still found that
the Union’s request to negotiated changes in the . . . contract had the
effect of terminating the agreement, at least as to those provision for
which bargaining was sought. Although parties may contractually
specifically provide otherwise, i.e., that the reopened contract
automatically renews, they must do so expressly” [emphasis added].
Id. at 208.
The consistent Board precedent renders the outcome in this case clear. The
term-of-agreement clause in the instant case is similar—materially identical—to the
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clause in Champaign County Contractors, supra. Unlike the clause in Bridgestone/
Firestone, the clause in the 2005 Agreement does not distinguish between the notices to
amend and notices to terminate. They are both part of the proviso—i.e., the exceptions
to the rule of automatic renewal that occurs in the absence of a notice to amend or
terminate. Under the 2005 Agreement, a timely notice to amend or notice to terminate is
equally effective to avoid renewal of the agreement.12
In this case, the Employer’s chief negotiator, Pennington, sent two e-mails to the
Union’s chief negotiator, Chmelko —one on October 27 and one November 5—
requesting meeting dates to negotiate the new contract. The first e-mail, on October 27,
explicitly offered to meet to discuss the “soon to expire collective-bargaining agreement
between [the Employer] and Local 76.” The second, on November 5, was another
attempt “to try and get some dates from you for continuing negotiation of the SJG
agreements.” In addition, on November 4, the Employer sent to the Union a copy of the
letter it sent to the New Jersey State Board of Mediation, notifying the state board, in
accordance with Section 8(d)(3) of the Act, that “South Jerseys’ five collective-bargaining
agreements expire on January 14, 2009 at 11:59 p.m.”
By the foregoing written notices, given by the Employer to the Union, in timely
fashion, the Union was notified that the Employer wanted to amend or to terminate the
2005 Agreement as of January 14, 2009. The copy of the notice to the New Jersey
State Board of Mediation written by the Employer and provided to the Union expressly
provided notice of the January 14, 2009 “expir[ation]” of the contracts between Local 76
and the South Jersey Industries affiliated companies, which indisputably includes the
SJG–Local 76 agreements.13 The e-mail notices from the Employer’s chief bargainer to
the Union’s chief bargainer clearly conveyed—and the Union cannot and does not
dispute it—that the Employer was seeking to commence collective bargaining for an
agreement to amend the “soon to expire collective-bargaining agreement between [the
Employer] and Local 76.” As the Union well understood, amending and replacing the
expiring agreement was the reason that Employer sought negotiations.
The function of a notice of termination sent to the state mediation office and
copied to the Union, like the FMCS form F–7, was, as noted in Champaign County
Contractors, “to satisfy the requirements of Section 8(d) of the Act, . . [b]ut nowhere is it
written that this is the only purpose the form may serve. Its delivery to the [union] was
an indication of the [employer’s] desire to negotiate a new contract.” These notices are

12I think this point follows from the plain language of art. XIX. But I also note that it is
conceded by the Union, which acknowledges (R. Br. at 6) that “Articles 17 and 19 of the
CBA require a party seeking to avoid automatic renewal to mail written notice to the
other party of their intention to terminate or amend the agreement at least 60 days
before the last day of the agreement.” (Emphasis added).
13It is clear from the record, and I find, that the Union consistently dealt with SJIS
and South Jersey Industries officials, who acted on behalf of SJG throughout the
negotiating process. Notice from SJIS or South Jersey Industries was notice from SJG
when the notice clearly concerned the SJG contracts. Indeed, when the Union informed
the Employer of its refusal to bargain, and its position that the SJG–Local 76 contract
had renewed, it wrote to Pennington at SJIS. The Union does not maintain that it did not
know to which agreements between it and South Jersey Industries affiliated companies
that the state mediation notice was referring.
JD-43-09
13
enough, because Board precedent is clear that [s]o long as the essential message was
conveyed, it is not reasonable for Respondent to hold them to the standards of a
Philadelphia lawyer.” I agree that here, as in Oakland Press, supra, “the essential
message was in fact conveyed, even if not in the precise technical terms of the contract.
It is clear from the letter that the [employer] considered the contract would expire on
[January 14, 2009] and it wished to negotiate changes.” Oakland Press, supra.
Notably, in the 2005 Agreement, as in Champaign County Contractors
Association, “the contract provisions governing notice of termination are general in
nature and no specific format for notice is stated.” The record reveals no evidence of
past practice that would render the notification provided by the Employer ineffective.14
Indeed, under the general language provided for in the 2005 Agreement, even
notification that the Employer wants to make changes to the contract, i.e., “amend” the
contract, is sufficient to avoid automatic renewal. As the Board explained in
Bridgestone/Firestone, where the union’s notice expressly eschewed notice to terminate
but “clearly” sought only to amend or reopen the contract: “Although parties may
contractually specifically provide otherwise, i.e., that the reopened contract automatically
renews, they must do so expressly.” 331 NLRB at 208. In this case, the 2005
Agreement does not expressly provide that, notwithstanding a notice to reopen or
amend, the contract automatically renews. The notice to amend, like the notice to
terminate, is a constituent part of the provision—i.e., an exception—to the automatic
renewal language in art, XIX. Under art. XIX, a notice to amend is as effective as a
notice to terminate to forestall renewal.
It is for this reason that the Union’s reliance on KCW Furniture, 247 NLRB 541,
enfd. 634 F.2d 436 (9th Cir. 1980), is entirely misplaced. In that case, the Board found
an automatic renewal of a contract notwithstanding a union’s provision of notice to
reopen the contract, which led to extensive (but unsuccessful) bargaining between the
parties to amend the agreement. The Board in KCW Furniture found that because there
had been only a notice to reopen, and not a notice to terminate, the agreement renewed.
However, the very point of the Board’s decision in KCW Furniture Co., was that, unlike
most contracts and unlike the contract at issue between SJG and Local 76, the contract
in KCW Furniture “expressly provides, without qualification, that such notice [to reopen]
does not terminate the contract or forestall its automatic renewal.” 247 NLRB at 541.
The contract “explicitly states that a notice of opening cannot be construed as
terminating or as forestalling the automatic renewal of the agreement.” Id. Thus, KCW
represents the case, described by the Board in Bridgestone/Firestone, where the parties
expressly provide that, notwithstanding the reopening and bargaining for amendments to
a contract, the contract automatically renews. That is not the case here.15

14The record evidence suggests that in the past the Union provided the notices, but
surely, and the Union does not argue this, this does not mean that the Employer is
precluded from providing notice. There is no evidence regarding the form of the notice
provided by the Union, although even if there were a pattern in that regard, it would not
establish that the Employer was required to provide notice in the same manner.
15The Union’s bald assertion that the clause in KCW Furniture and the one in the
2005 Agreement are “nearly identical” (R. Br. at 9) is not true.
JD-43-09
14
In staking out its position, the Union does not contend that it did not know that the
Employer sought to amend or terminate the 2005 Agreement. That would not be a
credible position for it to take. Rather, the Union contends that the Employer failed to
use the appropriate words or method to convey its desire, and that without those words
or methods the messages from the Employer failed to achieve the goal of forestalling
renewal of the 2005 Agreement. This self–styled “tactical” approach to the issue, was
consistent with the Union’s interests in this set of negotiations. But as discussed, it is at
odds with Board precedent. And it is at odds with Board precedent, in the first place,
because it finds no support in the language of Article XIX. There are no “magic words”
required. There is no format or particular wording prescribed by the parties’ contract or
to which the Employer is bound by past practice. There is no doubt that the parties
could have negotiated a termination clause that required certain “magic words” or a
certain specified format, but they did not. Article XIX requires that the notice be in
writing. It requires that one party provide it to the other. The Employer’s efforts
achieved this, and leave no doubt that its actions were successful in avoiding renewal.16
Although the Board precedent renders the outcome clear, I believe, and this,
perhaps, encouraged the Union’s argument, that the Board decisions have lacked a
clear policy and analytical explanation for the outcome. They read, instead, as simply an
unwillingness to entertain technical arguments of contract interpretation. But contract
interpretation often is a technical undertaking, and parties have been held to harsh
results on the strength of technical arguments. However, the Board’s precedents have
more to recommend to them than just unwillingness to entertain circumscribed
interpretation.
The Board’s precedents might profitably be recast as involving an issue of the
waiver of a party’s statutory right to collectively bargain. Indeed, to assert as a defense
to a failure to bargain allegation that the contract automatically renewed through
insufficient notification asserts, in essence, that through inaction a party has waived its
right to bargain for a new agreement. It is fitting that such bargaining is not easily,
lightly, or inadvertently waived. It would make sense that for policies that go to the Act’s
core—that is, the duty to collectively bargain a successor collective-bargaining
agreement—the Board would be unwilling to see that duty suspended longer than the
initial term of the contract absent an absolutely clear manifestation of waiver.
This concept, of course, is well-established in Board precedent. As a general
matter, the waiver of statutory rights requires evidence of a “clear and unmistakable”
waiver. Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708 (1983). "To meet the
'clear and unmistakable' standard, the contract language must be specific, or it must be
shown that the matter claimed to have been waived was fully discussed by the parties
and that the party alleged to have waived its rights consciously yielded its interest in the
matter." Allison Corp., 330 NLRB 1363, 1365 (2000). "[T]he Board looks to the precise

16The Union also appears to contend that the 2005 Agreement required that notices
be mailed to each other, presumably excluding the provision of notice by e-mail or fax.
However, the 2005 Agreement nowhere states that, and there is no evidence of a
binding practice requiring that. In support of the contention, the Union cites to art. 17,
Sec. 2. However, that provision only requires that notice be in writing. It also states that
“[t]he parties shall advise each other of the names and mailing addresses for such
notices.” That is not a requirement, much less a requirement to the exclusion of all other
means of delivery that notices be “mailed.”
JD-43-09
15
wording of the relevant contract provisions in determining whether there has been a
clear and unmistakable waiver." Id. Under the “clear and unmistakable” waiver rule, a
plausible or arguable contractual right in favor of the employer is inadequate to establish
a waiver of bargaining by the Union. Thus, the Board protects statutory rights from
inadvertent or disputed claims of contractual waiver.
The same rule, for the same reasons, would be appropriate here. It is inimical to
the purpose of the Act to permit a labor agreement to automatically renew, with its
attendant waiver of collective bargaining, due to a failure to follow form when the
contractual language specifies no form. In this case, in order to avoid an automatic
renewal and the waiver of bargaining for another year, the contract clearly and
unmistakably requires that one party notify the other, in writing, of its desire to terminate
or amend. It clearly and unmistakably requires that the notice be given at least 60 days
in advance. Nothing else is clearly and unmistakably required. And there is no evidence
that anything further was discussed or “consciously yielded” by the parties In this case.
The waiver of bargaining for a new agreement should only occur when it has
clearly and unmistakably occurred. In the case of broad “written notice to amend or
terminate” language, waiver will be found when there is not conveyance to the other
party, in writing, and in a timely fashion, that the moving party seeks negotiations for a
new agreement to replace the current one. Alternatively, the parties could broaden the
waiver by negotiating for explicit contractual language (or by relying on other
unequivocal evidence) that clearly and unmistakably demonstrated the parties intent to
automatically renew the agreement and waive bargaining in the absence of specified
forms and terms of notification. See, e.g., KCW Furniture, supra (contract “explicitly
states that a notice of opening cannot be construed as terminating or as forestalling the
automatic renewal of the agreement”). But in the absence of such clarity, current Board
precedent, whether or not recast as an example of the Board’s clear and unmistakable
waiver doctrine, dictates that broad contractual notice requirements to forestall automatic
renewal are satisfied when the “essential message” of an intent to amend or terminate
has been conveyed.
That is what happened here. The Employer conveyed, and the Union knew,
based on written notification received more than 60 days prior to January 14, 2009, that
the Employer intended to amend and terminate the collective-bargaining agreement.
The 2005 Agreement expired at the conclusion of January 14, 2009. The
Union’s refusal, at all times as of and after October 27, 2008, to bargain for a successor
agreement violated the Act as alleged.17

17Although I have suggested the appropriateness of utilizing the Board’s clear and
unmistakable waiver standard in cases like these, I note that it is not necessary to do so
in order to find for the General Counsel. Whether or not analyzed as a case of waiver,
under existing Board precedents the language in the 2005 Agreement supports the
Employer’s claim that it gave timely written notice to the Union of intent to amend or
terminate the agreement.
JD-43-09
16
The Union’s Posthearing Request for Deferral to Arbitration
In its brief, the Union argues that this dispute “must be deferred to arbitration.”
(R. Br. at 9). It contends (R. Br. at 7) that “[i]n mid-December 2010 [sic] the Company
filed a grievance against the Union for refusing to bargain a successor agreement,
related to the dispute over the sufficiency of the art. 19 notice. That grievance is still
active; it has not been withdrawn by the Company.” The Union contends (R. Br. at 8)
that in response to the Employer’s filing of an unfair labor practice charge in this matter,
“[t]he Union argued that the charge should be deferred to arbitration.”
This is all news to me. Deferral is an affirmative defense. This affirmative
defense was not raised in the Union’s answer. No motion to defer was ever made. The
issue was not litigated at trial. There is no record support for the Union’s claim, on brief,
that the Employer had filed a grievance over this matter—it may be true, but it was not
touched on at trial, and is absent from the record. There is no record evidence about the
parties’ willingness to arbitrate. There is no evidence—and it is far from plain from the
text of the parties’ grievance procedure in the 2005 Agreement—that the Employer had
the ability to invoke the grievance procedure to resolve this or other contractual disputes.
Indeed, the incidental record evidence on the subject suggests that the Union’s position
has been that the Employer may not file grievances under the 2005 Agreement. See,
GCX 14 (Chmelko writing to Pennington on December 29, 2008, and stating, in part:
“since there is no provision in the CBA for the Company to file a grievance, we will not
be meeting to discuss such”).
The General Counsel’s brief does not mention deferral. Presumably, he was
unaware that it was going to be an issue. Under these circumstances, the Union has
failed to put the parties on timely notice that it intended to raise this affirmative defense,
and it is waived. See Master Mechanical Insulation, 320 NLRB 1134 (1996); MacDonald
Engineering, 202 NLRB 748 (1973). Moreover, the necessary elements for a successful
deferral defense have not been proven.18
On August 26, 2009, after the submission of the parties’ posthearing briefs, the
General Counsel filed a motion for leave to file a reply brief. The motion sought leave to
file a brief opposing the deferral defense raised by the Respondent in its posthearing
brief. I deny the General Counsel’s motion. A reply brief from the General Counsel is
unnecessary to my resolution of the issue.

18The Union’s attorney made a passing reference—really, an aside—to deferral in
his opening statement. (Tr. 11). The fleeting reference seemed to suggest that the
Union once took the position that the dispute should be deferred to arbitration, but
ultimately decided to have the Board decide the issue. The issue of deferral was never
mentioned again. Counsel’s comment was obscure, but clearly indicates that the failure
to squarely raise a deferral defense was not an oversight.
JD-43-09
17
Conclusions of Law
1. The Charging Party South Jersey Gas Company is an employer engaged
2. The Respondent International Association of Machinists and Aerospace
Workers of America, Local Lodge S–76, AFL–CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. Since at least January 15, 2005, based on Section 9(a) of the Act, the
Respondent has been the exclusive representative for purposes of collective bargaining
of the following unit of employees employed by South Jersey Gas: Employees of the
Glassboro (including the Waterford satellite officer) and Cumberland Divisions,
Operating, Meter Reading and Collections Departments; Gas Control; Pipeline
Department; Facilities Management, Messengers, Data Processing, Construction,
Customer Care Center and Materials Management departments in the General Office of
South Jersey Gas Company, more specifically described in the salary schedules
attached as exhibits to the collective-bargaining agreement.
4. At all times material herein, beginning sometime after January 15, 2005,
the Respondent has been the exclusive representative for purposes of collective
bargaining for a unit of employees employed by South Jersey Gas, formerly represented
by Local Lodge S–95 of the IAM, employed in essentially the same job classifications as
those represented by the Respondent and referred to in the preceding paragraph.
5. Since October 27, 2008, the Respondent, in violation of Section 8(b)(3) of
the Act, has refused to meet and bargain in good faith with South Jersey Gas Company
with regard to a collective-bargaining agreement covering the employees in the above-
described bargaining units, to succeed the agreement that expired January 14, 2009.
6. The above-described unfair labor practice is an unfair labor practice
affecting commerce within the meaning of Section 2(6) and (7) of the Act.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I
find that it must be ordered to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.
The Respondent shall upon request, meet and bargain with South Jersey Gas
Company, with respect to wages, hours, and other terms and conditions of employment,
for the bargaining units described above, and, if an understanding is reached, embody
the understanding in a signed agreement.
The Respondent shall post an appropriate informational notice, as described in
the Appendix, attached. This notice shall be posted in the Respondent’s offices or
wherever the notices to members are regularly posted for 60 days without anything
covering it up or defacing its contents. When the notice is issued to the Respondent, it
shall sign it or otherwise notify Region 4 of the Board what action it will take with respect
to this decision.
JD-43-09
18
On these findings of fact and conclusions of law and on the entire record, I issue
the following recommended19
ORDER
The Respondent, International Association of Machinists and Aerospace Workers
of America, Local Lodge S–76, AFL–CIO, Williamstown, New Jersey, its officers,
agents, and representatives, shall
1. Cease and desist from
(a) Refusing to meet and bargain with South Jersey Gas Company, as the
exclusive bargaining representative of the employees in the following appropriate
units,20 as described in the parties most recent collective-bargaining agreement,
which expired January 14, 2009:
Employees of the Glassboro (including the Waterford satellite officer) and
Cumberland Divisions, Operating, Meter Reading and Collections
Departments; Gas Control; Pipeline Department; Facilities Management,
Messengers, Data Processing, Construction, Customer Care Center and
Materials Management departments in the General Office of South Jersey
Gas Company, more specifically described in the Salary Schedules
attached as exhibits to the collective-bargaining agreement.
(b) In any like or related manner restraining or coercing employees in the
exercise of the rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the
policies of the Act.
(a) On request, meet and bargain with South Jersey Gas Company with
respect to wages, hours, and other terms and conditions of employment
and, if an understanding is reached, embody the understanding in a
signed agreement.
(b) Within 14 days after service by the Region, post at its union hall in
Williamsport, New Jersey, copies of the attached notice marked

19If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in
Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be
deemed waived for all purposes.
20This order, and the bargaining units to which it apply, shall include, in addition to
the unit described in the order, the second bargaining unit described in the stipulation
offered by the parties in the hearing, consisting of employees of South Jersey Gas
previously represented by Local Lodge 95, currently represented by the Respondent,
and covering essentially the same job classifications as those addressed in the unit
described above, who were treated by the parties as covered by the most recent
collective-bargaining agreement between the Respondent and South Jersey Gas.
JD-43-09
19
"Appendix."21 Copies of the notice, on forms provided by the Regional
Director for Region 4, after being signed by the Respondent's authorized
representative, shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places including all places where
notices to members are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(c) Sign and return to the Regional Director sufficient copies of the notice
for posting by South Jersey Gas Company, if willing, at all places where
notices to employees are customarily posted.
(d) Within 21 days after service by the Region, file with the Regional
Director a sworn certification of a responsible agent or representative on
a form provided by the Region attesting to the steps that the Respondent
has taken to comply.
Dated, Washington, D.C. September 9, 2009.
____________________
David I. Goldman
U.S. Administrative Law Judge

21If 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."
JD-43-09
20
APPENDIX
NOTICE TO MEMBERS AND EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and
has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union.
Choose representatives to bargain on your behalf with your employer.
Act together with other employees for your benefit and protection.
Choose not to engage in any of these protected activities.
WE WILL NOT refuse to meet and collectively bargain with your employer South Jersey
Gas Company, with regard to a collective-bargaining agreement to replace the one that
expired January 14, 2009.
WE WILL NOT in any like or related manner restrain or coerce employees in the
exercise of rights guaranteed them by Section 7 of the Act.
WE WILL, upon request, meet and bargain with South Jersey Gas Company with
respect to wages, hours, and other terms and conditions of employment and, if an
understanding is reached, embody the understanding in a signed agreement.
International Association of Machinists and
Aerospace Workers of America, Local Lodge S–76,
AFL–CIO
(Labor Organization)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935
to enforce the National Labor Relations Act. It conducts secret–ballot elections to
determine whether employees want union representation and it investigates and
remedies unfair labor practices by employers and unions. To find out more about your
rights under the Act and how to file a charge or election petition, you may speak
confidentially to any agent with the Board’s Regional Office set forth below. You may
also obtain information from the Board’s website: www.nlrb.gov.
615 Chestnut Street, One Independence Mall, 7th Floor
Philadelphia, Pennsylvania 19106–4404
Hours: 8:30 a.m. to 5 p.m.
JD-43-09
21
215–597–7601.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL. ANY QUESTIONS CONCERNING THISNOTICE OR COMPLIANCE WITH ITS
PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE
OFFICER, 215–597–7643.