West India Manufacturing & Service Co., Inc.

National Labor Relations Board - Board Decisions

Mar 31, 1972

195 N.L.R.B. 1135 (N.L.R.B. 1972)

WEST INDIA MFG. & SERVICE CO.
West India Manufacturing & Service Co ., Inc. and
Union Nacional de Trabajadores de Construccion,
Produccion, Servicio y Ventas , Petitioner. Case 24-
RC-4496
March 31, 1972
DECISION AND ORDER
CHAIRMAN MILLER AND MEMBERS FANNING,
JENKINS, AND KENNEDY
Upon a petition duly filed on November 1, 1971, a
hearing was held before Hearing Officer Luis A. St.
Bernard on December 9, 1971. Following the hearing
and pursuant to Section 102.67 of the National Labor
Relations Board Rules and Regulations and Statements
of Procedure, Series 8, as amended, this case was trans-
ferred by the Regional -Director for Region 24 to the
Board for decision . Thereafter, briefs were duly filed by
the Employer and the Intervenor.'
The Board has reviewed the Hearing Officer' s rulings
made at the hearing and finds that they are free from
prejudicial error. They are hereby affirmed.
Upon the entire record in this case, including the
Employer's and Intervenor's briefs, the Board finds:
1. The Employer is engaged in commerce within the
meaning of the Act, and it will effectuate the purposes
of the Act to assert jurisdiction herein.
2. The Petitioner and the Intervenor are labor organ-
izations claiming to represent certain employees of the
Employer.
3. No question affecting commerce exists concerning
the representation of certain employees of the Em-
ployer within the meaning of Section 9(c)(1) and Sec-
tion 2(6) and (7) of the Act.
The Intervenor and the Employer have had a bar-
gaining history which dates from 1944. Their most
recent collective-bargaining contract was to expire on
October 31, 1971. Prior to that contract's expiration,
the parties began negotiating for a new contract at a
time not specified in the record. On August 15, 1971,
President Nixon announced that for a 90-day period
commencing the following day and ending on Novem-
ber 13, 1971, all wages and prices were to be frozen.
Although the parties bargained during that time prior
to their contract's expiration, both the Employer and
the Intervenor contend that no new agreement was
reached: (1) because of the general uncertainties the
freeze period created regarding economic matters and
(2) because of the particular uncertainties whether the
guidelines that were to follow would, in fact, apply to
' At the hearing, Union de Empleados de Muelles de Puerto Rico (Local
1901-ILA-AFL-CIO) was permitted to intervene on the basis of its collec-
tive-bargaining agreement with the Employer covering the employees in-
volved herein.
1135
the Commonwealth of Puerto Rico.' Because of these
alleged uncertainties, the Employer and Intervenor, on
October 29, 1971, executed an extension agreement
extending their original contract until December 1,
1971. Thereafter, on November 1, 1971, the day after
the original contract expired, the Petitioner filed its
petition. On November 29, 1971, the Employer and the
Intervenor again extended their contract until January
15, 1972.
The Employer and the Intervenor both contend that
but for the freeze which was announced on August 15,
1971, the parties would have reached agreement on a
new contract and thus continued a contractual history
which dates from 1944. In effect, they argue that they
did not have the benefits of the 60-day insulated period
the Board affords parties to a contract since the 60 days
prior to their contract's expiration were within the
freeze period. At the hearing, the Petitioner contended:
(1) that the freeze period did not prohibit negotiations
for a new contract and (2) that the Intervenor's consti-
tution precluded the Intervenor from entering into the
extension agreements of October 29 and November 29
since these agreements had not been ratified by its
members.
For the reasons that follow, we dismiss the petition
herein. We also give to the Employer and the Inter-
venor 60 days in which to bargain, free from the filing
of any petitions, and we extend this time from the date
our decision herein issues.
By the rules of contract bar which have evolved over
the years, the Board has tried to harmonize two some-
times conflicting concepts-that of industrial stability
as represented by the existing contract and that of the
employees' right to select or change their bargaining
representative. One of the paramount rules the Board
has set out is that a petition which is filed during the
last 60 days of a valid contract will be considered un-
timely and will be dismissed.' Thus, during this 60-day
"insulated" period, the parties to the existing contract
are to be free to execute a new or amended agreement
without the intrusion of a rival petition, but if no agree-
ment is reached or if the agreement which is reached
does not constitute a bar, itself, then a petition filed
after the expiration of the old, valid contract will be
timely and will be entertained.
Under such rules, we would ordinarily find that the
extension agreement of the Employer and the Inter-
venor signed on October 29, 1971, was not a bar and
we would entertain the petition. But the circumstances
which precipitated that agreement persuade us that the
ordinary rules of contract bar are not here applicable
since we are convinced that the parties were not
' We note that on the day following the hearing in this matter, the Cost
of Living Council excluded Puerto Rico from these Phase II guidelines.
' Deluxe Metal Furniture Company, 121 NLRB 995.
195 NLRB No. 203
1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
afforded an actual 60-day insulated period in which
they were free to bargain before their contract expired
on October 31, 1971.
The insulated period with regard to their contract
ran from September 2 to October 31, 1971. However,
prior to that time on August 15, 1971, as implemented
by Executive Order No. 11615, President Nixon an-
nounced that wages and prices were to be frozen for a
90-day period, commencing on that date and ending
November 13, 1971. The Executive Order was issued
before the insulated period of the contract involved
here began and, though that order did not preclude
collective bargaining as such, it did create serious im-
pediments to the resolution of differences especially
insofar as increased economic benefits were to be
sought by the Intervenor. It is clear that during the
freeze period there was much uncertainty among em-
ployers, unions, and Government officials as to what
limitations and/or restrictions, if any, on wages would
finally be specified at the end of the freeze. What was
certain was that whatever wage increases the parties
might agree to in the freeze period, such were to be
subject to the then unknown guidelines which were to
follow the freeze's end.4 In such a situation, the practi-
cal result was that the parties were unable to bargain
intelligently during all of their insulated period and
hence were effectively deprived of this period. It is for
this reason that we dismiss the petition herein.
As we have noted , under our ordinary rules of con-
tract bar, the petition filed herein would be considered
timely . However , our rules are not so inflexible as to
exclude deviation in situations where unusual circum-
stances compel a different result .' Were we to process
a petition such as the one herein , we would , in effect,
be carrying out our function of administering the Act
in myopic disregard of the situation as it really existed
for parties attempting to negotiate new contracts dur-
ing the freeze . This we will not do . Rather, our decision
herein reflects our longstanding policy of taking into
account other instruments of national labor policy in
suitable situations and this we deem such a situation.'
Since the parties did not have an effective 60-day
period in which to bargain prior to the expiration of the
contract , we will give them a full 60 days from the date
of our decision herein to bargain , free from the filing of
any petitions , and we will extend that time from the
date our decision herein issues.'
ORDER
It is hereby ordered that the petition filed herein be,
and it hereby is, dismissed.
' We note that during the freeze, on September 14, 1971, Secretary of
Labor Hodgson , who was also a member of the Cost of Living Council,
stated that the parties could bargain during the freeze but that if they did
so "they should be advised that subsequent revisions of these terms may be
needed depending on what policies will prevail following the 90-day freeze.
The policies have not been determined at this time ." U.S. Dept. of Labor
News Release-U.S. DL-71497. The initial guidelines did not follow until
shortly before the freeze was lifted.
' See, e.g., Allis-Chalmers Manufacturing Company, 50 NLRB 306
(1943); Aerojet-General Corporation, 144 NLRB 368 (1963).
See Aerojet-General Corporation , supra at 371 , In. 6, for illustrations.
Once the petition was filed , the parties herein could continue bargaining
only at the risk of a possible unfair labor practice charge being filed. Shea
Chemical Corporation, 121 NLRB 1027. In light of our approach to this
case, we find it of no significance that the extension agreements of October
29 and November 29, 1971 , were not ratified by the Intervenor's members.