Super Operating Corp., et al.

National Labor Relations Board - Board Decisions

Sep 21, 1961

133 N.L.R.B. 240 (N.L.R.B. 1961)

240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
premature extension which cannot be a bar, if that prior contract
would not have barred an election because of other contract-bar rules.'
Here the May 5, 1961, agreement, which contains a union-security
clause which is clearly valid on its face, was executed during the term
of a prior contract which the unions agree would not be a bar. Accord-
ingly, the May 5,1961, contract was not a premature extension and is a
bar to any petition untimely filed during its term. As the May 5, 1961,
agreement was executed prior to the filing of the petition, it is a bar
and the petition must be dismissed.
Moreover, even if there were no contract bar here because, as alleged
by the Petitioner, only the 1959 contract should be considered, this
petition was untimely. As the Board held in Centr-O-Cast cC Engi-
neering Company,6 absent unusual circumstances, we do not consider a
petition timely where it is filed during a certification year. We find
no unusual circumstances in this case. In The Great Atlantic and
Pacific Tea Company case,' we held that a preelection agreement to
continue an existing contract in effect after certification does not
amount to a negotiation of postcertification contract within the mean-
ing of the Ludlow rule.8 Accordingly, the Ludlow case is inapplicable
because it involved a situation where an agreement was entered into
within the certification year and not prior thereto, as was the 1959
agreement in this case.9
Accordingly, we shall dismiss the petition.
[The Board dismissed the petition.]
Deluxe Metal Furniture Company, 121 NLRB 995 , 1001-1002
9 100 NLRB 1507
7123 NLRB 1005
8 Ludlow Typo graph Company, 108 NLRB 1463, where the Board held that where an
employer and a certified union execute one contract within the certification year, the
certification year merges with that contract , after which there is no need to protect the
certification further , and the contract becomes controlling with respect to the timeliness
of the filing of a rival petition.
9 Westinghouse Electric Corporation ( Sunnyvale Plant ), 114 NLRB 1515; The Great
Atlantsc and Pacafic Tea Company, supra.
Super Operating Corporation, et al.1 and International Brother-
hood of Teamsters , Chauffeurs, Warehousemen and Helpers,
Taxi Drivers and Terminal Employees , Local Union 826. Cases
Nos. 2-CA-7559 (Complaint No. 1), and 2-RC-9988. Septem-
ber 21, 1961
DECISION AND ORDER
On June 2, 1961, Trial Examiner Arnold Ordman issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
I
1 At the hearing herein the Instant case was severed from Case No 2-CA-7559 (Com-
plaint No . 2) involving Dee Bee Garage Corporation as Respondent.
133 NLRB No. 35.
SUPER OPERATING CORPORATION, ET AL. 241
spondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. The Trial Examiner further found that the objec-
tions to the Board-directed elections in Case No. 2-RC-9988 should
be dismissed. Thereafter, the Charging Party (and Petitioner) and
Respondent filed exceptions to the Intermediate Report and support-
ing briefs.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Leedom, Fanning, and Brown].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
this proceeding, and hereby adopts the findings,' conclusions,' and
recommendations 4 of the Trial Examiner.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Super Operating
Corporation, New York, New York, its officers, agents, successors,
and assigns, shall :
1. Cease sand desist from :
(a) Interrogating its employees concerning their union activities
in a manner constituting interference, restraint, or coercion under
Section 8 (a) (1) of the Act.
(b) Coercing its employees not to act as union observers in a Board
election.
(c) In any like or related manner, interfering with, restraining,
or coercing its employees in the exercise of their right to self-
organization, to form, join, or assist a labor organization, including
2In agreement with the Trial Examiner we find that the General Counsel failed to
establish that Zanga was either a supervisor within the meaning of Section 2(11) of the
Act or an agent of the Respondent.
9 We agree with the Trial Examiner 's finding that the interrogation of De Pasquale by
Scull, treasurer of the Respondent, violated Section 8( a)(1). The interrogation herein
was neither for a legitimate purpose nor was it accompanied by assurances against re-
prisal , factors which we found neutralized the coercive effects of interrogation in Blue
Flash Express, Inc., 109 NLRB 691. We do not agree with the contention of Respondent
that interrogation, occurring as found herein, must occur in a context of other unlawful
conduct to constitute a violation of the Act. Petroleum Carrier Corporation of Tampa,
Inc., 126 NLRB 1031.
4 We find, like the Trial Examiner , that since the unfair labor practices found herein
were not cited as grounds for the objection to election to treat them as such would circum-
vent our rule against acceptance of untimely objections . In so finding we do not find it
necessary to adopt the Trial Examiner 's, statement that the unfair labor practices could
not have had sufficient impact to warrant setting the election aside.
624067-62-vol. 133-17
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers, Taxi Drivers and Terminal Employees, Local
Union 826, to bargain collectively through representatives of their
own choosing, to engage in concerted activities for the purpose of
collective bargaining, or other mutual aid or protection, or to refrain
from any or gall such activities, except to the extent that such rights
may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized by Section
8 (a) (3) of the Act, as modified by the Labor-Management Reporting
and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at its garage in New York City, copies of the notice at-
tached to the Intermediate Report marked "Appendix." I Copies of
such notice, to be furnished by the Regional Director for the Second
Region, shall, after being duly signed by an authorized representative
of the Respondent, be posted immediately upon receipt thereof, and
be maintained by it for a period of 60 consecutive days thereafter, in
conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the Re-
spondent to insure that said notices are not altered, defaced, or
covered by any other material.
(b) Notify the Regional Director for the Second Region, in writing,
within 10 days from the date of the receipt of this Order, what steps
the Respondent has taken to comply herewith.
IT IS HEREBY YURTHER ORDERED that the objections to the election held
on September 14, 1960, in Case No. 2-RC-9988 be and the same hereby
are dismissed.
IT IS HEREBY CERTIFIED that the majority of the valid ballots has not
been cast for the International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers, Taxi Drivers and Terminal Employees,
Local Union 826, and that said labor organization is not the exclusive
representative of the Employer in the appropriate unit, within the
meaning of Section 9 (a) of the National Labor Relations Act as
amended.
"This notice shall be amended by substituting for the words "The Recommendations of
a Trial Examiner" the words "A Decision and Order ." In the event that this Order is
enforced by a decree of a United States Court of Appeals, there shall be substituted for
the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the
United States Court of Appeals , Enforcing an Order."
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding, with all parties represented by counsel , was heard before the
duly designated Trial Examiner in New York City on February 20, 1961.1 The
' This proceeding was opened on January 3, 1961 , by a different Trial Examiner, but
was adjourned to February 20, without taking any testimony.
SUPER OPERATING CORPORATION, ET AL. 243
issues litigated were whether Super Operating Corporation,2 hereinafter called
Respondent, had violated Section 8 (a) (1) of the Act by the conduct described below,
and whether such conduct constituted interference with employee freedom of choice
in the election held on September 14, 1960, among Respondent's employees.
Upon the basis of the entire record, and from my observation of the witnesses, I
make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
Respondent is a corporation organized under the laws of New York State, with a
principal place of business in New York City, where it engages in the business of
operating taxicabs. Respondent's gross annual revenue exceeds $500,000, and it
annually purchases goods worth more than $50,000 from suppliers in New York
State, who obtain such goods from out-of-State sources.
I find, accordingly, that Respondent is engaged in operations affecting commerce
within the meaning of the Act and that it will effectuate the policies of the Act to
assert jurisdiction herein .3
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers,
Taxi Drivers and Terminal Employees, Local Union 826, hereinafter called the Union,
is a labor organization within the meaning of Section 2(5) of the Act.
III. THE SUBSTANTIVE ISSUES
As already stated, on September 14,4 an election was held, pursuant to a decision
of the Board,5 among Respondent's employees, upon the petition of the Union.
The tally of ballots showed that, of approximately 394 eligible voters, 197 had voted
against, and 85 for, the Union, and that 18 ballots were challenged. The number
of challenged ballots was not sufficient to affect the outcome of the election. The
Union thereafter filed timely objections to the conduct affecting the results of the
election. The Regional Director duly investigated these objections and issued a report
in which he recommended, inter alia, that in view of the pendency of the instant
unfair labor practice case, which, he stated, involved the same issues as were raised
by the foregoing objections, the objections be consolidated with the unfair labor
practice case for purposes of hearing. The Union filed exceptions to the Regional
Director's report. As already related,6 the foregoing recommendations of the
Regional Director were approved by the Board and the unfair labor practice and
objections matters were consolidated for hearing.
The objections, which were litigated herein, alleged that Respondent interfered
with the election of September 14 by threatening employees with discharge if they
voted for the Union or influenced others to vote for the Union or acted as election
2 The instant case was originally joined with Case No. 2-CA-7559 (Complaint No 2)
involving Dee Bee Garage Corporation, as respondent, and the same Charging Party.
Both cases arose out of the same charge, separate complaints being issued on October 31,
1960 In the meantime, in September 1960, an election was held among the employees of
Dee Bee in Case No. 2-RC-9954, and among the employees of Super Operating in Case
No 2-RC-9988. (These representation cases had been consolidated with a number of
other representation cases, arising at the same time in the same area and industry, sub
nomine "Jat Transportation Corp., et al.," Case No. 2-RC-9948, etc.) On December 15,
1960 , the Board issued an order directing a bearing before a Trial Examiner on the
issues raised by certain objections to the elections among the employees of Dee Bee and
Super Operating . In the same order the Board authorized such hearing to be consolidated
with the impending hearing in the instant case and in Case No. 2-CA-7559 ( Complaint
No. 2). Pursuant to the foregoing order , the Regional Director for the Second Region on
December 16, 1960, ordered the aforesaid two representation cases and the complaint cases
consolidated for hearing . Such hearing was opened on December 22. At the hearing the
Trial Examiner granted a motion to sever , and after the close of the hearing issued a
clarifying "Order Severing Cases." The net effect of these rulings was that the instant
case, as consolidated with Case No. 2-RC-9988, was severed for purposes of hearing and
decision from Case No. 2-CA-7559 (Complaint No. 2), as consolidated with Case No.
2-RC-9954.
8 See Jat Transportation Corp ., et al ., 128 NLRB 780.
A Unless otherwise stated, all dates relate to 1960.
5 Jat Transportation Corp , et ai., supra.
6 See footnote 2, supra.
244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
observers for the Union, and by threatening to blacklist employees who voted for the
Union.
The instant complaint parallels such objections insofar as it alleges that Zanga, a
supervisor of Respondent, threatened De Pasquale, an employee of Respondent, with
discharge (and other reprisals) if he acted as an election observer for the Union.
However, the remaining allegations of the complaint relate to matters not covered
by the objections-namely, the interrogation of De Pasquale by Scull, an officer of
Respondent, concerning his union activities and Scull's admonition of De Pasquale
not to act as a union election observer.
In view of the absence of complete identity of the issues raised by the foregoing
objections and the complaint, such issues will be separately considered.
A. The objections to the election
De Pasquale's wife, who was an exceedingly reluctant witness for the General
Counsel,7 testified that on September 13, the eve of the scheduled election among
Respondent's employees, she was visited at her home by Zanga, a dispatcher for
Respondent and the brother-in-law of De Pasquale; that he asked her to tell her
husband not to act as election observer for the Union the following day, and to do
her best to keep him home during the election; and that in response to her comment
that her husband had been deprived of work or "blackballed" once before (pre-
sumably for union activities), and that she did not want to see it happen again,
Zanga retorted that "it could happen again." Mrs. De Pasquale testified further
that when her husband came home later that evening she told him of Zanga's visit
and of his request that she keep her husband home "at all costs" the day of the
election, and of Zanga's threat that her husband "might not work again."
Zanga admitted his visit to Mrs. De Pasquale but denied that he had uttered the
warning or threats attributed to him by her. However, Zanga was unable to offer
any plausible explanation of the reason for his visit to Mrs. De Pasquale. He stated
that he resented his brother-in-law's union activity because Zanga had induced
Respondent to hire De Pasquale, and that the other employees were embarrassing
Zanga by comments on De Pasquale's union activity and on the fact that De Pasquale
was to act as a union observer. However, Zanga claimed that he did not go to
De Pasquale's home on September 13 to urge him to refrain from acting as an
election observer for the Union but only to find out what De Pasquale's "position"
was. The witness did not explain what he means by "position" in this context.
Mrs. De Pasquale, though a reluctant witness, impressed me as being truthful.
Her testimony was consistent and persuasive. Zanga's testimony, on the other hand,
had shortcomings and lacked plausibility. To the extent that the testimony of these
two individuals differ, I credit the testimony of Mrs. De Pasquale. I find that Zanga
asked Mrs. De Pasquale to keep her husband from serving as an election observer
for the Union and to keep him home during the election, and that Zanga further
intimated that otherwise her husband might suffer loss of employment. I find further
that Mrs. De Pasquale relayed these remarks to her husband .8
Respondent contends, however, that any statements by Zanga to Mrs De Pasquale
should not be imputed to Respondent as he was not a supervisor. There was con-
flicting testimony as to Zanga's supervisory status. It was undisputed that Zanga
acted as dispatcher for Respondent, assigning drivers to cabs. However, it appears
that such assignments were initiated by Scull, Respondent's secretary-treasurer,
rather than by Zanga, and that to the extent Zanga himself made such assignments,
this involved no exercise of independent judgment on Zanga's part. In any event, the
burden of proof to establish the contrary by a preponderance of the evidence was
upon the General Counsel, and General Counsel has not met that burden. General
Counsel sought to show, also, that Zanga had the power effectively to recommend the
hiring and discharge of drivers. Here also it appears that while Zanga does make
recommendations in that regard to Scull and while Scull frequently takes action con-
sonant with these recommendations, such action is always based on Scull's inde-
pendent investigation of the particular situation and individual involved. Scull testi-
fied to this effect-I credit his testimony in this regard-and Zanga's testimony was
corroborative on that point. Under all the circumstances I find that the relevant
evidence does not preponderate in favor of a finding that Zanga has the power effec-
7 She failed on two occasions to honor a subpena , and attended the hearing on Febru-
ary 20, only after the General Counsel had obtained a court order enforcing the subpena.
e I find also, on the basis of Mrs. De Pasquale's testimony, that Zanga expressed to her
the fear that he himself might lose his job if De Pasquale acted as 'union observer at the
election.
SUPER OPERATING CORPORATION, ET AL. 245
tively to recommend hiring or discharge. I conclude, therefore, that the record does
not warrant a finding that Zanga had supervisory status.
This does not preclude, however, the possibility that even absent supervisory
status, Zanga, in his effort to deter De Pasquale from acting as a union observer at
the election, acted as an agent for Respondent and hence rendered Respondent
answerable for his conduct. In this respect, Scull denied that he authorized Zanga
to take the action or make the remarks here in question. Scull's denial is uncon-
tradicted. There is no other probative evidence that Respondent authorized or
directed Zanga in this regard.
In view of the foregoing, therefore, no basis appears in the record for charging
Respondent with responsibility for Zanga's conduct vis-a-vis De Pasquale. I con-
clude, therefore, that Respondent did not thereby interfere with the freedom of
choice of its employees in the September 14 election. The record likewise contains
insufficient evidence to warrant a finding that Respondent threatened to discharge
or blacklist employees who voted for the Union in the election. Zanga's warnings
to Mrs. De Pasquale were in the context of his plea to keep De Pasquale from acting
as a union election observer rather than to any concern on his part as to how
De Pasquale would vote in the election. Moreover, for reasons already stated,
Zanga's actions may not be imputed to Respondent.
Finally, the record affords insufficient basis to sustain allegations that Respondent
threatened reprisals for influencing employees to vote for the Union.9 I conclude,
therefore, that there is no merit to any of the objections to the election urged herein.
B. The unfair labor practices
The complaint alleges that Zanga threatened reprisals against De Pasquale if he
acted as a union observer. This duplicates the contention in the objections which
has already been discussed and rejected. For reasons already stated, Respondent
is not answerable for Zanga's conduct in that regard.
The complaint also alleges unlawful interrogation of De Pasquale by Scull.
De Pasquale testified that about a week before the election of September 14 Scull
asked him if he was "going to be active in the Union" and if he was going "to try
to convert members in the garage." Scull admitted, in effect, that during the week
preceding the election he asked De Pasquale whether he was going to solicit for the
Union in the Respondent's garage. I find that by such interrogation, considered in
the context of the other unfair labor practice found below, Respondent violated
Section 8 (a)( I) of the Act.
The complaint further alleges that on or about September 14 Scull warned
De Pasquale to refrain from acting as a union election observer. De Pasquale
testified that on the morning of September 14, while he was in Scull's office, Scull
told him that Scull "had my brother-in-law [i.e., Zanga] to thank for me being"
a union election observer 19 and that Zanga "wasn't going to be working there
any more." 11
It is clear that, if De Pasquale be credited, Scull made a statement that was reason-
ably calculated to deter De Pasquale from acting as a union observer. Not only
was Zanga De Pasquale's brother-in-law, but he owed his job to Zanga. Considera-
tions of kinship and gratitude could reasonably be expected to influence De Pasquale
to refrain from acting as union observer in the hope of inducing Scull to spare Zanga.
Scull, in effect, denied that he had made any of the statements attributed to him
by De Pasquale relating to reprisals against Zanga. Scull's testimony on the matter
impressed me as lacking in conviction. On the other hand, De Pasquale, like his
wife, was obviously a reluctant witness for the General Counsel. He testified under
9 De Pasquale credibly testified that shortly before the election Scull Instructed him not
to solicit for the Union In the Respondent's garage There is no suggestion that this in-
struction was accompanied by any threat of reprisal The record is likewise devoid of
evidence as to whether this instruction was In conformity with a proper no-solicitation
rule or the contrary. In view of the lack of an adequate evidentiary showing, and, more
particularly, since the instruction In Issue here was not in itself alleged to constitute
Interference with the election or a violation of Section 8(a) (1) of the Act, I conclude that
a finding of Interference or of an unfair labor practice would not be warranted
10 Zanga had recommended to Scull the hiring of De Pasquale
n De Pasquale professed uncertainty whether Scull on the same occasion also made the
statement attributed to him by De Pasquale In a pretrial affidavit that if De Pasquale
acted as union observer on September 14, Zanga would be discharged the next day I
ruled at the hearing that the pretrial affidavit was not competent evidence for this pur-
pose, and as It was not adopted by De Pasquale, in this respect at the hearing. I do not
rely thereon
246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
subpena and while still in Respondent's employ. In view of these circumstances, and
upon consideration of the demeanor of De Pasquale and Scull, I credit De Pasquale
and find that Respondent on September 14 sought to deter De Pasquale from acting
as a union election observer by announcing reprisals against Zanga because of
De Pasquale's role as such observer, and that by such conduct Respondent coerced
De Pasquale in the exercise of his right to engage in concerted activities, thereby
violating Section 8 (a) (1) of the Act.
THE REMEDY
It having been found that the Respondent engaged in unfair labor practices in
violation of Section 8 (a) (1) of the Act, it will be recommended that the Respondent
cease and desist therefrom and take certain affirmative action designed to effectuate
the policies of the Act.
However, as such unfair labor practices were not cited in the objections to the
election,12 and could not in any event have had sufficient impact on the election to
warrant setting the election aside,I3 I will not recommend that the Board invalidate
the election on account of such unfair labor practices.
As heretofore found also, the objections to the election, as such, are lacking in
merit sand I recommend that they be dismissed.
- Upon the basis of the foregoing findings of fact and upon the entire record in
the case, I adopt the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7)
of the Act.
2. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers, Taxi Drivers and Terminal Employees, Local Union 826, is a labor
organization within the meaning of the Act.
3. By interrogating De Pasquale concerning his union activities, and coercing him
not to act as a union election observer, the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a)( I) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
5. The record herein does not establish that Respondent interfered with the
freedom of choice of its employees in the election of September 14, 1960.
[Recommendations omitted from publication.]
12 To treat the unfair labor practices found herein as a basis for setting aside the elec-
tion would permit circumvention of the Board's rule against the filing of untimely
objections.
"It bears note that out of some 300 ballots cast at the election, the Union lost the
election by approximately 100 votes.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor Re-
lations Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT interrogate our employees concerning their union activities, in
a manner constituting interference, restraint, or coercion under Section 8(a)(1)
of the Act.
WE WILL NOT coerce our employees not to act as union observers in Board
elections.
WE WILL NOT in any like or related manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organization, to form
a labor organization, to join International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers, Taxi Drivers and Terminal Employees,
Local Union 826, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual aid or pro-
tection, or to refrain from any and all such activities, except to the extent that
CARTER MACHINE AND TOOL CO . 247
such rights may be limited by the proviso in Section 8(a)(3) of the Act, as
modified by the Labor Management Reporting and Disclosure Act of 1959.
SUPER OPERATING CORPORATION,
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.
Carter Machine and Tool Co. and UAW, AFL-CIO and its Local
622. Case No. 13-CA-3729. September 01, 1961
DECISION AND ORDER
On January 30, 1961, Trial Examiner Max M. Goldman issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the Intermediate
Report attached hereto. Thereafter, the Respondent filed exceptions
to the Intermediate Report together with a supporting brief.'
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its power in connection with
this case to a three-member panel [Members Leedom, Fanning, and
Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in
the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, except as hereinafter set forth.
1. We find, in agreement with the Trial Examiner, that Respondent
violated Section 8(a) (5) by refusing to recognize and bargain with
the Union after the contract between the parties, which ran initially
from May 1, 1959, until May 1, 1960, had been automatically renewed
for an additional year. The record fully supports the Trial Exam-
iner's finding that Respondent failed to give the requisite 60-day no-
tice required by the terms of the contract to forestall its automatic
renewal 2
i Respondent has notified the Board of its intention to comply with the recommendations
of the Trial Examiner as to the 8 ( a) (3) findings and remedy . It excepts , however, to the
Trial Examiner 's findings of the 8 ( a) (5) violations.
2 In accordance with customary legal construction , the Board has held that a contract
running "until" a certain date means "exclusive of" the day named . See Hemisphere
Steel Products, Inc., 131 NLRB 56; Williams Laundry Company, 97 NLRB 995. Thus
the present contract , which came into effect on May 1, 1959 , and was to run Initially
"until" May 1, 1960, expired at midnight of April 30 . Even were we to apply the rules
of construction of the Illinois statutes ( Illinois Revised Statutes , 1959, chapter 131, par.
133 NLRB No. 38.