Vienna Sausage Mfg. Co.Download PDFNational Labor Relations Board - Board DecisionsSep 30, 1980252 N.L.R.B. 1317 (N.L.R.B. 1980) Copy Citation 1317 VIENNA SAUSAGE MANUFACTURING CO. Vienna Sausage Manufacturing Company and Driver Sales & Warehouse Local Union No. 117, affili- ated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America. Case 19-CA-12446 September 30, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO Upon a charge filed on May 23, 1980, by Driver Sales & Warehouse Local Union No. 117, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, hereinafter called the Union, and duly served on Vienna Sausage Manufacturing Company, her- einafter called Respondent, the General Counsel of the National Labor Relations Board, by the Re- gional Director for Region 19, issued a complaint and notice of hearing on June 25, 1980, against Re- spondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge and the complaint and notice of hearing before an administrative law judge were duly served on all parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on or about February 15, 1980,' the Union notified Respondent by letter of its desire to modify the terms of their contract and on April 4, sent Respondent a list of proposed changes and a request for negotiation; that on April 17, Respondent refused to negotiate and continues to refuse to negotiate with the Union about the proposed changes. Respondent filed an answer, admitting in part, and denying in part, the allegations of the complaint. On July 11, Respondent filed a motion for trans- fer and summary judgment. On July 29, the Gener- al Counsel filed a motion to transfer case to the Board and cross-motion for summary judgment, with a supporting brief. On August 5, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the Gen- eral Counsel's or Respondent's motion should or should not be granted. On August 19 Respondent filed a brief in support of its motion for summary judgment and in opposition to the General Coun- sel's cross-motion for summary judgment. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- ' All datle are in 1980() unless oltherwise indicated tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment At all times relevant to this dispute, the Union has been the recognized exclusive collective-bar- gaining representative of Respondent's employees in the appropriate unit. 2 On November 11, 1977, the Union and Respondent signed a collective-bar- gaining agreement to be in effect from May 1, 1977, until May 1, 1980, and thereafter on a year- to-year basis by automatic renewal. Article XXXIV of the contract, titled "Duration and Re- newal Clause," provides that: . . .for the purpose of negotiating alterations in wages and other working conditions, either party may open this Agreement or any con- tract effectuated through automatic renewal by giving written "Notice of Opening" not later than sixty (60) days prior to the expiration date. "Notice of Opening" is in nowise intend- ed by the parties to effectuate termination nor shall it in anywise be construed as a termina- tion of this Agreement nor as forestalling auto- matic renewal as herein provided. The parties reserve the right to economic recourse in ne- gotiations. Termination of this Agreement or any agree- ment effectuated through automatic renewal must, to the exclusion of all other methods, be perfected by giving written "Notice of Termi- nation" not later than sixty (60) nor more than ninety (90) days prior to the expiration date, whereupon the contract shall, on its expiration date, terminate. Any "Notice of Opening" or "Notice of Ter- mination" given within sixty (60) days of any automatic renewal date shall be absolutely null and void and completely ineffective for all purposes and shall not forestall automatic re- newal nor effectuate termination. On February 15, more than 60 days before the contract expiration date, the Union notified Re- spondent by letter of its desire to amend the con- tract. The letter also informed Respondent that the Union reserved the right to strike in support of its collective-bargaining demands if agreement had not been reached by May 1, the date upon which the I he apprTprriale unit cmprises All mplyees of Respiondent emplo)ed as wholesale a.rd relall de- liver 5 drivers. drlSer-,alcsperons, and alcespersion. hut excluding ;ll oither employces. guard,. and super.liors as defined in Ih Act 252 NLRB No. 183 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contract would either expire or renew itself auto- matically. Respondent did not reply to the Union's notice. On April 14, the Union's business represen- tative sent Respondent a list of proposed changes to the labor agreement and requested negotiations as soon as possble.3 On April 17, Respondent's branch manager, Bart Masterson, informed the Union by letter that unless the Union agreed in writing to regard its February 15 notice of opening as a notice of termination of the contract, Respondent would refuse to negotiate over the proposed modifications. Respondent main- tained that the notice of opening had been ineffec- tive to forestall automatic renewal, that the con- tract was therefore in force by its terms until May 1, 1981, and that "negotiations for a contract to succeed that agreement would be premature at this time." Respondent also maintained that since the current contract was in effect until May 1, 1981, the Union's reservation of the right to strike in sup- port of its bargaining demands after May 1, 1980, was in direct contravention of Section 8(d) of the National Labor Relations Act. By letter dated May 6, the Union's lawyers again requested that Respondent negotiate with respect to changes and modifications to the current con- tract. The Union declined to treat the notice of opening sent on February 15 as a notice of termina- tion and maintained that under its interpretation of Article XXXIV of the contract, the parties were bound to negotiate modifications, "but, of course, with the understanding that the current Collective Bargaining Agreement remains in full force and effect." The Union also interpreted the contract to permit either party to take economic action after the May I expiration date if agreement had not previously been reached. On May 9, Respondent wrote the Union to inquire if the Union intended to strike. On May 13, the Union again requested im- mediate bargaining and notified Respondent that if it continued to refuse to bargain, the Union would treat the refusal as an unfair labor practice. The parties had no further communication, and, on May 23, the Union filed the unfair labor practice charges with the Board that initiated this proceed- ing. The issue presented for our determination is whether Respondent has violated and is violating Section 8(a)(5) and (1) of the Act by its continuing refusal to bargain with the Union over proposed modifications to the existing collective-bargaining ' hc changes proposed by he Uion related to union scurity to · ages, hours. arid cost--of-linilg Illcreases; to car allossancec to) aca- ions, holidays, sick lease, aid funeral leave to health and welfare, dental, vision, and drug insurance; and retirees' welfare trust: to pensions to equal employnmenlt to pa;yroll deductions; to mandatorv "sage rind price control pOs isions and to the duration and renelual clause agreement. The General Counsel argues that under Board law the Union need not give notice of con- tract termination in order to trigger Respondent's statutory obligation to bargain and that Respondent has therefore violated Section 8(a)(5) and (1) of the Act by refusing to negotiate with the Union.4 Re- spondent, on the other hand, claims that the con- tract renewed itself automatically on May I to be in effect for a -year term, that thereafter any bar- gaining over proposed changes was entirely volun- tary under the provisions of Section 8(d), and that Respondent therefore has no statutory duty to ne- gotiate with the Union. Respondent contends fur- ther that the Union has ignored the strictures of Section 8(d) by threatening to strike within 60 days of giving notice of its desire to modify the con- tract. We deal first with Respondent's assertion that the Union's reservation of the right to strike in sup- port of its economic demands after May 1 was con- trary to the provisions of Section 8(d) of the Act. Since no charges have been filed against the Union, Respondent's contention is essentially irrelevant to this proceeding. Nevertheless, because both in its brief to the Board and in its correspondence with the Union, Respondent has relied upon this inter- pretation of Section 8(d) to justify its refusal to bargain, we note in passing that Respondent's reli- ance is misplaced. Were this a case in which the Union had in fact struck in support of its bargain- ing demands within the 60-day statutory waiting period imposed by Section 8(d) upon negotiations to modify an existing contract, the Supreme Court's decision in N.L.R.B. v. Lion Oil Co.,5 and subsequent Board Decisions 6 would be applicable, and the Union would be held in violation of Sec- tion 8(b)(3) for refusing to bargain according to the statutory procedures. In the case before us, howev- er, not only did the Union refrain from an econom- 4 The General Counsel relies heavily on our decision in K.C W Furni- ture Company, Inc., 247 NLRB No. 79 (1980), as precedent in this case In our opinion, K.C. W Furniture Company has little bearing on the issue swe now confront. In that case, we held that an employer who had nego- tiated to impasse with the union under the reopener provisions of a con- tract identical in all pertinent respects to Respondent's violated Sec. 8(a)(5) when it instituted unilaterally its last contract offer, since the con- tract under which the negotiations were conducted had not been termi- nated by the parties and therefore renewed automatically when they failed to agree. K.C W Furniture Company, while certainly not incom- patible with our decision in the instant case, does not address the statu- tory obligation to bargain under such contract provisions, as the parties there had in fact willingly negotiated concerning modifications to the contract. r 352 U S. 282 (1957). i E g. United Marine Dlviion Local 333 (General Marine Transportation Corp.). 228 NRB 1107 (1977). Telephone Workers Union of New Jersey. .ocal 827, International Broithrhhood ofElectrcal Workers. AFL-CIO (New Jer , Bell Telephone Company 19 NLRB 726 (1971); Carpenters District Council of Denver and Vicinity. 4FL-CIO and United Brotherhood of Car. pcnirrs and Joiners of 4oluria, Local Union .No. L55. -CIO (Rxock rliunuil Presires. Inc ), 172 NLRB 793 (1968) 1318 VIENNA SAUSAGE MANUFACTURING CO. ic strike for 60 days after the February 15 notice of opening, as Section 8(d) requires, but it did not even reserve the right to strike before the contract expiration date. Under these circumstances, there- fore, in order to find Respondent's argument with- out merit, we need not, and do not, consider whether mere reservation during the statutory waiting period of the right to take economic action after the statutory period ends can ever constitute a violation of the Act. We find Respondent's primary argument equally disingenuous. In essence, Respondent contends that because the contract explicitly provides that notice of opening will not forestall automatic renewal of the terms of the contract on May 1, neither party is ever under a statutory obligation to negotiate modifications to the contract, as the contract will renew itself in perpetuity. Under Respondent's in- terpretation of the contract and of Federal law, a legal duty to bargain arises only if the parties first terminate the existing contract. In support of its ar- gument, Respondent relies on Section 8(d) of the Act, which provides that the duty to bargain col- lectively "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 ef- fective before such terms and conditions can be re- opened under the provisions of the contract." We do not believe that Section 8(d) will bear the contruction Respondent urges upon us. The provi- sion of Section 8(d) quoted above is intended to promote stability in contractual relationships and, to that end, relieves parties to an existing contract from possible disruption in their relationship at a time other than that which the contract itself pro- vides.7 The provision is consistent with the broad policy of the national labor law, which is to foster productive and peaceful industry self-regulation. Section 8(d) thus defines certain procedural aspects of the duty to bargain collectively when the parties have a preexisting contractual relationship. It does not create additional substantive rights. The contract before us contains a provision under which the Union or Respondent may at a specified time reopen negotiations in order to modify the rules by which they have agreed to op- erate the workplace. The Union has complied with the contract reopener provision and, so far as here relevant, with the notice and waiting-period re- quirements of Section 8(d). The only unusual fea- 7 Of course. if he contract does not provide fr reopenilng or if it cn - tains ntice provi imons ill connilct Aith Ihe nolice arid aiiting-perilodl r- quirements of Sec. 8(d), the statutory restricions arc considcred para- mounlt See Crpenter'r Do:rrc Ctountcil f,' D.lnr. 172 NIRB at 795 Here. the duration and renesal clau e of the clleltle-lhargaining agree- ment corrcs,xnds exactl w ith the strictures of Sec S(d) ture of this dispute is the automatic renewal clause, which provides that the contract will remain in effect on a year-to-year basis unless terminated by procedures incorporated in the contract or unless the parties agree to modifications during the period of reopening, which may continue after the auto- matic renewal date. We observe that even if the contract did not contain the provision that notice of opening would not forestall automatic renewal, under Federal law the contract would remain in effect until negotiations under the reopener clause were concluded.8 Thus the only substantive effect of the provision-and the one to which, we assume, Respondent really objects-is that if, after negotiating under the reopener clause, the parties fail to agree upon changes, the present contract will continue until it can again be reopened or ter- minated by the procedures to which these parties have previously agreed. We conclude that such a result is not contrary to the national labor policy; nor, under these circum- stances, does Section 8(d) relieve Respondent of its statutory duty to bargain with the Union, even if negotiations continue past the May I automatic re- newal date. Respondent is seeking a ruling that would in effect require an employer or a union to bargain only when it can bargain from scratch, that is, upon formal termination of the contract rather than under the reopener provision of an existing contract. Section 8(d) confers no such right on a party to a labor agreement. Had we the inclination, we do not have the authority to absolve Respon- dent of a contractual obligation that does not vio- late the statute we administer. Respondent also relies on language used by the Board in certain contract-bar cases, to the effect that when an employer and an incumbent union agree to bargain after automatic renewal of an ex- isting contract, those negotiations, because volun- tary, do not reflect a disruption of the collective- bargaining relationship sufficient to permit inter- vention by a rival union. We find those cases inap- posite for two reasons. Aside from the fact that the inquiry in a contract-bar situation is not the same as that in a case concerning violation of the duty to bargain, both of the cases to which Respondent refers required interpretation of contract provisions essentially different from the one Respondent has signed. In Michigan Gear & Engineering Company,9 the contract in question expressly required the par- ties to reach agreement on modifications before the end of the agreement year in order to forestall automatic renewal of the existing contract, and in Sec. e g . VI. R B Hcnnlr Katz, c. d h/a HWllarnshurg Steel Priduct (, 36q U S 736 (9 l)2) ' 114 NI R 1 2(). 20)9 (1 55) 1319 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mallinckrodt Chemical Works,' ° the reopener pro- vision implicitly imposed the same requirement. When parties to a contract have agreed to limit the negotiation period under a contract reopener clause to a period prior to the automatic renewal date, the Board is justified in considering bargaining after the specified period to be voluntary and therefore in erecting a contract bar. To be sure, Michigan Gear and Mallinckrodt both indicated, in language perhaps mere sweeping than necessary, that the automatic renewal clause in each contract triggered the provision of Section 8(d) upon which Respon- dent now relies. The protective purpose of Section 8(d) cannot be fulfilled, however, if we apply the proviso in question literally and inflexibly to every contract that contains an automatic renewal clause, and our interpretation of Section 8(d) must, there- fore, to some extent be colored by the arrange- ments that parties to a contract have themselves made for its perpetuation. Here, the reopener clause does not require that negotiations be com- pleted before the May I automatic renewal date. We therefore decline to apply the rationale of the contract-bar cases. Moreover, in neither Mallinckrodt nor Michigan Gear were we faced with a situation in which either party to a collective-bargaining agreement had deliberately delayed negotiations until after the contract's automatic renewal date. In the contro- versy we now decide, Respondent has consistently refused to negotiate after receiving timely notice of reopening from the Union. Respondent does not deny that even under the reasoning of Mallinckrodt and Michigan Gear it had a statutory duty to bar- gain during the 60 days before the May I renewal date. Respondent contends, however, that having successfully avoided that obligation by an argu- ment we have already found specious, it cannot now be required to bargain because the contract has renewed automatically. Even if we were pre- pared to conclude that bargaining under this con- tract became voluntary after May 1, a conclusion that, as we have indicated, we do not accept, our power to remedy Respondent's refusal to fulfill its legal obligation to negotiate between February 15 and May 1 would not be circumscribed simply by the passage of time. We therefore conclude that Respondent's duty to bargain under Section 8(a)(5) of the Act arose when the Union gave timely notice of its desire to reopen the contract and that its duty to bargain is a continuing obligation not abrogated by the fact that negotiations concerning modification of the contract were not completed before the contract automatically renewed on May 1. Since we have found Respondent's arguments to be without merit, we deny its Motion for Summary Judgment and accordingly grant the General Counsel's Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is an Illinois corporation with an office and place of business in Seattle, Washington, where it is engaged in manufacturing meat prod- ucts. During the past 12 months, a representative period, Respondent, in the course and conduct of its business operations, sold and shipped goods or provided services from its facilities within the State of Washington to customers outside the State or sold and shipped goods or provided services to customers within the State who were themselves engaged in interestate commerce by other than in- direct means, such goods and services having a total value in excess of $50,000. We find, on the basis of the foregoing, that Re- spondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED We find that Driver Sales & Warehouse Local Union No. 117, affiliated with International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICE Commencing on or about April 17, 1980, and continuing at all times thereafter, Respondent has refused to bargain with the Union concerning alter- ations in the wages, hours, and other terms and conditions of employment established in the parties' current collective-bargaining agreement. Accord- ingly, we find that Respondent has, since April 17, 1980, and at all times thereafter, engaged in con- duct that constitutes an unfair labor practice within the meaning of Section 8(a)(5) and (1) and 8(d) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE The activities of Respondent described in section III, above, occurring in connection with its oper- ations described in section I, above, have a close, 1320 '° 114 NRB IR7. 1 8 (1955) VIENNA SAUSAGE MANUI:ACTlJRING CO. intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of com- merce. V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (I) of the Act, we shall order that it cease and desist therefrom, and to take certain affirmative action designed to effec- tuate the policies of the Act. The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Vienna Sausage Manufacturing Company is an employer engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. 2. Driver Sales & Warehouse Local Union No. 117, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All employees of Vienna Sausage Manufactur- ing Company at its Seattle, Washington, facility employed as wholesale and retail delivery drivers, driver-salespersons, and salespersons, but excluding all other employees, guards, and supervisors as de- fined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times material herein the above-named labor organization has been the exclusive represen- tative of all the employees in the aforesaid appro- priate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about April 17, 1980, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employees of Respondent in the appropriate unit, concerning al- terations in the wages, hours, and other terms and conditions of employment established in the parties' current collective-bargaining agreement, Respon- dent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, Respon- dent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Vienna Sausage Manufacturing Company, Seattle, Washington, its officers, agents, successors, and as- signs, shall: i. Cease and desist from: (a) Refusing to bargain collectively concerning alterations in the rates of pay, wages, hours, and other terms and conditions of employment estab- lished in the current collective-bargaining agree- ment with Driver Sales & Warehouse Local Union. 117, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining representa- tive of its employees in the following appropriate unit: All employees of Respondent at its Seattle, Washington, facility employed as wholesale and retail delivery drivers, driver-salespersons, and salespersons, but excluding all other em- ployees, guards, and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which the Board designed to effectuate the policies of the Act: (a) Upon request, bargain collectively with Driver Sales & Warehouse Local Union 117, affili- ated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, concerning alterations in the wages, hours, and other terms and conditions of employment estab- lished in the parties' current collective-bargaining agreement, and, if an understanding is reached, to embody such understanding is a signed agreement. (b) Post at its Seattle, Washington, facility copies of the attached notice marked "Appendix."" Copies of said notice, on forms provided by the Regional Director for Region 19, after being duly signed by the Employer's representative, shall be posted by Respondent immediately upon receipt I In the eent that 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 Pursu- ant To a Judgment of The United States Court of appeals Enforcing an Order of The National Labor Relations Board" 1 321 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, de- faced, or covered by any other material. (c) Notify the Regional Director for Region 19, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively concerning alterations in the wages, hours, and other terms and conditions of employment es- tablished in our current collective-bargaining agreement with Driver Sales & Warehouse Local Union No. 117, affiliated with Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, upon request, bargain with the above-named Union, as the exclusive represen- tative of all employees in the bargaining unit described below, concerning alterations in the wages, hours, and other terms and conditions of employment established in our current col- lective-bargaining agreement, and, if an under- standing is reached, embody such understand- ing in a signed agreement. The bargaining unit s15: All employees of the Employer at its Seat- tle, Washington, facility, employed as wholesale and retail delivery drivers, driver- salesperson, and salepersons, but excluding all other employees, guards, and supervisors as defined in the Act. VIENNA SAUSAGE MANUFACTURING COMPANY 1322 Copy with citationCopy as parenthetical citation