Digmor Equipment and Engineering Company, Inc.

National Labor Relations Board - Board Decisions

May 28, 1982

261 N.L.R.B. 1175 (N.L.R.B. 1982)

DIGMOR EQUIPMENT & ENGINEERING CO.
Digmor Equipment and Engineering Company, Inc.
and Sales Drivers and Dairy Employees Local
No. 166, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers
of America. Case 31-CA-10288
May 28, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATFR AND
MElMBERS FANNING, JINKINS, AND
ZIMM. RMNAN
On May 20, 1981, Administrative Law Judge Jay
R. Pollack issued the attached Decision in this pro-
ceeding. Thereafter, the General Counsel filed ex-
ceptions and a brief in support thereof.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only
to the extent consistent herewith.
The Administrative Law Judge found that Re-
spondent did not violate Section 8(a)(5) and (1) of
the Act when it refused to abide by the arbitration
provision of a recently expired collective-bargain-
ing agreement.' For the reasons discussed below,
we reverse this finding.
Respondent and the Union were parties to a col-
lective-bargaining agreement which remained in
effect through April 30, 1980.2 On February 8, Re-
spondent filed an RM petition. On May 2, Re-
spondent discharged unit employee Miguel Ca-
brera. On May 5, the Union filed a written griev-
ance on Cabrera's behalf. On the same day, the
union business agent met with Respondent's per-
sonnel administrator to discuss the grievance. Fol-
lowing this discussion, Respondent's personnel ad-
ministrator noted on the grievance form, under
"Disposition: Step #1," that the discharge
"stands."
On May 12, pursuant to the grievance-arbitration
provision of the expired contract,a the Union noti-
fied Respondent of its desire to arbitrate the dis-
charge and submitted a request form for an arbitra-
tion panel. On May 16, Respondent's personnel ad-
ministrator informed the Union that the request
form had been forwarded to the Company's attor-
ney, but noted that there might be a problem due
I IThe Administrative Law Judge found that a question concerning rep-
resentation existed at the time the contract expired Ite beliheed that ex
istence of a question concerning representation at the time of the Union's
request toI arbitrate served to distinguish the instant case from .4merican
Sink 7lip d Cabinet Co. Inc.. 242 NL RB 408 (1979)
2 All dates hereinafter refer to 1980, unless otherwise indicated
3 According to art XIX, either party could refer Io arhitration "any
controversy between the parties over nattlers provided for in these
Articles, or any misunilersta nding as to the true inlerpretialon (iof this
Agreement
261 NLRB No. 176
to the fact that the discharge occurred after the
contract expired. On May 28, Respondent's attor-
ney notified the Union that the discharge was not
subject to arbitration because it occurred while no
collective-bargaining agreement was in effect, and
therefore Respondent refused to sign the request
form for an arbitration panel.
Respondent's termination report states that the
company fired Cabrera because, due to a failure to
follow supervisory instructions, he improperly
drilled certain aluminum strips which had to be dis-
carded. The termination report reveals that the ac-
tions for which Cabrera was discharged oc-
curred-or, at least, began-while the collective-
bargaining agreement was still in effect. 4 The
report concludes that the alleged misconduct con-
stituted grounds for dismissal under the provision
in the collective-bargaining agreement pertaining to
discipline and discharge.5
The Board has held that, following the expira-
tion of a collective-bargaining agreement, an em-
ployer must continue to bargain with a union over
terms and conditions of employment, and must
adhere to the contractual grievance procedure.
And, in American Sink Top & Cabinet Co., Inc., 242
NLRB 408 (1979), relying on Nolde Brothers, Inc.
v. Local 358, Bakery & Confectionery Workers
Union, AFL-CIO, 430 U.S. 243 (1977), the Board
held that, where parties to a collective-bargaining
agreement have agreed to subject certain matters
to grievance and arbitration, the parties' duty to ar-
bitrate survives the termination of the contract
when the dispute is over an obligation arguably
created by the expired agreement. We find, con-
trary to the Administrative Law Judge, that this
case is controlled by American Sink.
Cabrera was discharged after the contract ex-
pired for conduct that occurred at least in part
prior to the contract's expiration. The Union filed a
grievance on his behalf, which Respondent initially
4 The termination report states that routine sheets, prior to April 29.
show gooxd parts. but that "after 4-29-80 was when the instructions were
not being fillowed anrd the parts had to he scraped."
t Under art Vi of the expired contract, an employer may be terminat-
ed for just cause: hoeever. except for certain listed serious offenses such
as gross negligence, an employee ma) not be suspended or disc harged
unless he has received tvwo written warnings It is this prosision which
the termination report cites as grounds for the discharge The terminalion
report continrcs that Cabrera had received a written warning in March
regarding the wearing of safety glasses; and that he had failed to work on
a particular daL in April hut the report does not indicate that Cabrera
received a written warning on the latter occasion. Under the grievance
arbitration provisioin of the contract, an employee may not arbitrate the
issuance of a warning notice until Respondent uses it to support a suspen-
sion or discharge
The termination report also states that Respondent believed Cabrera',
alleged misconduct constituted gross negligence Although under the
contract that might warrant dispensing with the requirement of prior
written varnings before discharge. the Itnion might still grieve and arbi-
tratec the merits of slch 1 l disch arge
1175
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
processed pursuant to the contract's grievance pro-
cedure. When the Union informed Respondent of
its intention to arbitrate, Respondent refused. Our
holding in American Sink is applicable to the in-
stant situation: "The grievance's basis is 'argu-
ably'-at least-the contract, and there is no reason
to conclude that the parties had intended the arbi-
tration provisions to end with the contract's term."
242 NLRB at 408.
Moreover, even assuming arguendo the relevance
of the pendency of a valid RM petition to the ques-
tion at issue here (i.e., the obligation to arbitrate a
grievance the basis of which is arguably the ex-
pired contract), we do not agree that the circum-
stances of this case indicate that the parties did not
intend the arbitration provision to survive their
contract's expiration. The record discloses that Re-
spondent initially processed the grievance, raised
no question about the appropriateness of the griev-
ance, and cited a provision of the contract as
grounds for the discharge. Not until May 16, at the
earliest, did Respondent claim that there might be a
problem with further processing the grievance.
But, on May 14, Respondent learned that its em-
ployees continued to support the Union.7 And, by
May 28, when Respondent's attorney advised the
Union that the Company refused to arbitrate, the
Union had already been certified.
Thus, at the time Respondent asserted the expira-
tion of the contract as a basis for refusing to arbi-
trate, it already knew that the question concerning
representation had been resolved by its employees'
overwhelming reaffirmation of the Union's major-
ity status. Respondent could not contend that at
the time it refused the request to arbitrate it had a
good-faith doubt as to the Union's majority status.
We do not believe these circumstances evidence
that the parties did not intend the arbitration provi-
sion to survive the expiration of their contract. 8
Accordingly, we find that Respondent was under
a duty to adhere to the prevailing arbitration provi-
sion after the collective-bargaining agreement ex-
pired. Therefore, we find that Respondent unilater-
ally disavowed the continuing operation of that
provision by refusing the Union's request to arbi-
trate the discharge of Miguel Cabrera. We shall
order Respondent, upon request by the Union, to
6 The expired contract contained a broad arbitration provision, which
is quoted supru.
7 In the RM election, originally scheduled for March 19, and eventual-
ly conducted on May 14, employees cast 34 ballots for the Union, 7
against, and there were 3 challenged ballots. No party filed objections to
the election.
8 Even if Respondent had entertained a good-faith doubt regarding ma-
jority status at the time it refused to arbitrate, we are not convinced that
such a situation would warrant inferring that the parties did not intend
the arbitration provision over which they had bargained in 1977 to sur-
vive the expiration of their contract.
submit the discharge of Cabrera to arbitration pur-
suant to the prevailing arbitration provision.
CONCLUSIONS OF LAW
1. Digmor Equipment and Engineering Compa-
ny, Inc., is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act.
2. Sales Drivers and Dairy Employees Local No.
166, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, is a labor organization within the meaning of
Section 2(5) of the Act.
3. The following is an appropriate bargaining
unit within the meaning of Section 9(b) of the Act:
All production and maintenance employees
and plant clerical employees employed by Re-
spondent at its facility located at 1898 East
Colton Avenue, Mentone, California; exclud-
ing all office clerical employees, professional
employees, draftsmen, purchasing agents,
guards, and supervisors as defined in the Act.
4. By unilaterally disavowing the continuing op-
eration of the prevailing arbitration provision by
refusing the Union's request to arbitrate the dis-
charge of Miguel Cabrera, Respondent violated
Section 8(a)(5) and (1) of the Act.
5. The aforesaid unfair labor practice is an unfair
labor practice affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
6. Respondent has committed no other unfair
labor practices.
THIE REMEDY
Having found that Respondent engaged in cer-
tain unfair labor practices, we shall order it to
cease and desist therefrom and take certain affirma-
tive action which we find necessary to effectuate
the policies of the Act.
Having found that Respondent's unilateral dis-
avowal of the prevailing arbitration provision by
refusing the Union's request to arbitrate the dis-
charge of Miguel Cabrera violated Section 8(a)(5)
and (1) of the Act, we shall order Respondent,
upon request by the Union, to submit the discharge
of Cabrera to arbitration pursuant to the prevailing
arbitration provision.
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,
Digmor Equipment and Engineering Company,
Inc., Mentone, California, its officers, agents, suc-
cessors, and assigns, shall:
1176
DIGMOR EQUIPMENT & ENGINEERING CO.
1. Cease and desist from:
(a) Unilaterally disavowing the continuing oper-
ation of the prevailing arbitration provision by re-
fusing the Union's request to arbitrate the dis-
charge of Miguel Cabrera pursuant to that provi-
sion.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them under Section
7 of the Act.
2. Take the following affirmative action deemed
necessary to effectuate the policies of the Act:
(a) Upon request by the Union, submit the dis-
charge of Cabrera to arbitration pursuant to the
prevailing arbitration provision.
(b) Post at its facility in Mentone, California,
copies of the attached notice marked "Appendix." 9
Copies of said notice, on forms provided by the
Regional Director for Region 31, after being duly
signed by Respondent's authorized representative,
shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by Respondent to ensure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 31,
in writing, within 20 days from the date of this
Order, what steps Respondent has taken to comply
herewith.
CHAIRMAN VAN DE WATER, concurring:
I agree with my colleagues that Respondent vio-
lated the Act by refusing to arbitrate the discharge
of Miguel Cabrera. Although the discharge of Ca-
brera occurred after the expiration of the collec-
tive-bargaining agreement, Respondent's termina-
tion report reveals that the discharge was based on
conduct that began prior to the contract expiration
and states that dismissal was warranted under the
provision of the collective-bargaining agreement
pertaining to discipline and discharge. Thus, under
the Supreme Court's decision in Nolde,'° Respond-
ent is required to arbitrate. I would not find, how-
ever, that discharges based on conduct occurring
after the expiration of a contract are arbitrable. To
the extent that American Sink,'" because of its fac-
g In the event 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"
1o Nolde Brother*, Inc. v. Local 358. Bakery & Confectionerv Workers
Union. AFL-CIO, 430 U.S 243 (1977).
" American Sink Top & Cabinet Co.. Inc., 242 NLRB 408 (1979)
tual ambiguities, t 2 is construed as reaching a con-
trary conclusion, I do not approve or accept that
decision.
12 In American Sink, supra, the discharged employee had been injured
and had not been on the active payroll for "several months" prior to his
July 24. 1978. discharge. The contract had expired May 1. 1978 Under
these circumstances, and on the basis of these limited facts, it is unclear
whether his discharge was prompted solely by conduct occurring after
the contract expired or in part to conduct while the contract was in
effect
APPENDIX
NOTICE To EMPI.OYEES
POSTEl) BY ORDER OiF THE
NATIONAl LABOR RE-LATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
We Wit . NOT unilaterally disavow the con-
tinuing operation of the prevailing arbitration
provision by refusing the Union's request to
arbitrate the discharge of Miguel Cabrera pur-
suant to that provision.
WE WIL . NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them
under Section 7 of the Act.
WE WILL., upon request by the Union,
submit the discharge of Miguel Cabrera to ar-
bitration pursuant to the prevailing arbitration
provision.
DIGMOR EQUIPMENT AND ENGINEER-
ING COMPANY, INC.
DECISION
STAT1EMENTI O0 THE CASE
JAY R. POL LACK, Administrative Law Judge: This
case was heard before me in San Bernardino, California,
on March 31, 1981. Pursuant to a charge filed against
1177
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Digmor Equipment and Engineering Company, Inc.
(herein called Respondent), by Sales Drivers and Dairy
Employees Local No. 166, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America (herein called the Union), on August 1, 1980,1
the Regional Director for Region 31 of the National
Labor Relations Board issued a complaint against Re-
spondent on September 24, alleging that Respondent
committed certain violations of Section 8(a)(5) and (1) of
the National Labor Relations Act, as amended, 29 U.S.C.
§ 151, et seq.
The principal question presented for decision is wheth-
er Respondent violated Section 8(a)(5) and (1) of the Act
by refusing to abide by the arbitration provision of its re-
cently expired collective-bargaining agreement with the
Union. 2
The parties have been afforded full opportunity to
appear, to introduce evidence, to examine and cross-ex-
amine witnesses, and to file briefs. Upon the entire
record, from my observation of the demeanor of the wit-
nesses, and having considered the post-hearing briefs of
the parties, I make the following:
FINI)INGS OF FAC I AN) CONCLUSIONS
I. JURISI)IC I ION
At all times material herein, Respondent has been a
California corporation, with an office and principal place
of business in Mentone, California, where it is engaged in
the manufacture and nonretail sale of construction equip-
ment. In the course and conduct of its business oper-
ations, Respondent annually purchases and receives
goods or services valued in ecess of $50,000 directly
from suppliers located outside the State of California.
Accordingly, Respondent admits and I find that it is an
employer engaged in commerce and in a business affect-
ing commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
It. iHIF I ABOR OR(;ANIZA TION INVOI. VII)
The complaint alleges, the answer admits, and I find
that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. TIHi AI.LIlI: G UNF AIR ARBOR PRACI'I(CI
On December 8, 1976, the Union was certified as the
exclusive collective-bargaining representative of Re-
spondent's employees in an appropriate bargaining uniti.
I Ullciis .tlhecrwise stated, all dates refer to calenldar year 1981.
i The original charge alleged certain other itlatitills 1' Sec 8(a)(1I,
(3), allnd (5) of the Act which wcere disnissed hby the Regional l)irect or on
September 15
Oni September 3, the Ulliont filed a charge against Respondcnlt il Case
31 CA 10393, alleging a genceral refusal to bargain. O() October 29, the
Regional Director dinsmissed that charge. hli Unioin appealed the Re-
gional I)irector's dismissal if tile case and. 1I1 I)eelmbher 17, the (irneral
Counsel denied the appeal
:' All production and maintenance employees and plant clerical erm-
ployces employed by Respondent at its facility located at 1898 :asl
Colton Avenue. Mentone, Califirnia; excluding all office clerical employ-
ees, professional employees, draftsmen, purchasing agents, guards, and su-
pervisors as defined in the Act.
Thereafter, Respondent and the Union entered into a
collective-bargaining agreement covering Respondent's
production, maintenance, and plant clerical employees ef-
fective by its terms from May 1, 1977, until April 30,
1980. The parties each filed timely notice of intent to ter-
minate the contract. As of the date of the instant hearing,
agreement on a succeeding collective-bargaining contract
had not been reached.
On February 8, 1980, the Respondent filed a petition
in Case 31-RM-802, seeking an election among the unit
employees. Thereafter Respondent and the Union en-
tered into a Stipulation for Certification Upon Consent
Election, which provided for an election to be held on
March 19. However, on February 27, the Union filed a
blocking charge in Case 31-CA-9823 alleging that Re-
spondent had violated Section 8(a)(l) and (5) of the Act.
That charge was dismissed by the Regional Director on
April 8. After dismissal of the charge, Respondent and
the Union entered into a second Stipulation for Certifica-
tion Upon Consent Election, which provided for an elec-
tion to be held on May 14. This stipulation was approved
by the Regional Director and the election was held on
May 14. The election resulted in a majority of ballots
being cast in favor of the Union. On May 22, the Re-
gional Director certified the Union as the exclusive col-
lective-bargaining representative of the unit employees.
Negotiations regarding a succeeding contract began on
May 29 and had not concluded by the time of the instant
hearing.
On May 2, Respondent discharged Miguel Cabrera, a
unit employee. Respondent's termination report for Ca-
brera indicated that it discharged the employee for gross
negligence and for failing to follow instructions from his
supervisor. The termination report contains, inter alia,
the following sentence pertinent to the issues herein:
"This is sufficient grounds for dismissal as agreed upon
by the company and the union." (See art. VI, sec. 1.) 4
On May 5 the Union presented a grievance to Respond-
ent concerning the discharge of Cabrera. ' Respondent's
personnel director informed the Union that "the termina-
tion stands." By letter dated May 12, the Union notified
Respondent that it was advancing the Cabrera discharge
dispute to arbitration. By letter dated May 16, Respond-
ent informed the Union that it had forwarded the
Union's request for arbitration to its attorney. On May
28, Respondent's attorney refused to arbitrate the griev-
ance concerning Cabrera's discharge, stating that "the
4 Art. VI. sec ., of the recently expired contract provided
AR 'IICI.E VI I)lSCIP INE AND I)ISCIIARG( E
Sectlion i. I mrployees may be disciplined and terminated fiur Just
cause Except fitr serious offenses such as theft. gross negligence; se-
rious insubordinalion; use, ptossession or being under the influence of
unlprescribed drugs, or alctohol during wotrking hours; deliberate fal-
sification t(f records; provoking a fight ton Company property; delib-
crate destruction or damage of Company property or the property of
another employee; and possessing firearms or dangerous weapons on
Company property, an emplyece shall not be suspended or dis-
charged unless he has first received t,'o (2) written warning notices.
'I'he charge initially alleged that Cabrera's discharge sviolated Sec.
8(a)(3) and (I) if the Act As rilted abosve, the allegation of the charge
wsas dismissed prior to) the instant hearing.
1178
DIGMOR EQUIPMENT & ENGINEERING CO.
discharge occurred while no collective bargaining agree-
ment was in effect, and, accordingly, this discharge was
not subject to arbitration." That refusal to proceed to ar-
bitration led to the filing of the instant charge.
The grievance arbitration provision of the recently ex-
pired collective-bargaining agreement provided as fol-
lows:
ARTICLE XIX - GRIEVANCE ARBITRATION
Section 1. All grievances and disputes will be re-
solved amicably between the parties hereto if possi-
ble. If not so resolved, either party, after giving ten
(10) days written notice to the other party, may, in
any controversy between the parties hereto over
matters provided for in these Articles, or any mis-
understanding as to the true interpretation of this
Agreement, refer the point or points in question to a
committee of three (3) for arbitration; one (1) to be
selected by the Employer, one (1) to be selected by
the Union and the third disinterested party to be se-
lected by the first two (2).
Section 2. In the event the parties are unable to
agree on the third party, under the provisions of
Section 1., above. an arbitrator shall be selected
from a panel of seven (7) names submitted by the
Federal Mediation and Conciliation Service by al-
ternate striking of names until one remains. The
cost of the arbitrator shall be divided equally by the
parties hereto except that each party shall bear the
expense of the arbitrator appointed by him.
Section 3. During such time as the matter is pending
before the Arbitration Board: there shall be no lock-
out, strike, boycott or stoppage of work. The deci-
sion of the Arbitration Board shall be final and
binding upon both parties hereto, and in no case
shall the period of arbitration exceed fifteen (15)
days from date of submission to arbitration. Any
warning notice issued under the provisions of this
labor Agreement shall not be subject to arbitration
until such time as it is used to support a suspension
or discharge.
Analysis
Section 8(a)(5) of the Act imposes an affirmative duty
on an employer to bargain with the exclusive bargaining
representative of its employees over "wages, hours and
other terms and conditions of employment." The em-
ployer's duty is breached when, absent bargaining to im-
passe or union waiver, an employer alters existing job
terms without notifying and bargaining with the Union
concerning the change. N.L.R.B. v. Benne Katz, d/b/a
Williamsburg Steel Product.s Co., 369 U.S. 736, 743-748
(1962). Further, the employer's duty to bargain over
changes in job terms is not relieved by the expiration of
a contract. N.L.R.B. v. Sky Wolf Sales. 470 F.2d 827, 830
(9th Cir. 1972). Prior to 1979, the Board rejected the
notion that arbitration is a term or condition of employ-
ment that by operation of statue continues even after the
contract embodying it has terminated. Thus, in Hilton-
Davis Chemical Co., 185 NLRB 241, 242 (1970) the
Board stated that "arbitration is, at bottom, a consensual
surrender of the economic power which the parties are
otherwise free to utilize." The Board held that inasmuch
as an agreement to arbitrate is a matter of mutual con-
sent, the lapse of that agreement due to contract expira-
tion is a bar to the agreement's enforcement.
In American Sink Top & Cabinet Co., Inc., 242 NLRB
408 (1979), the Board, relying on the Supreme Court
case of Nolde Brothers, Inc. v. Local No. 358, Bakery &
Confectionery Workers Union, AFL-CIO, 430 U.S. 243
(1977), overruled its Hilton-Davis decision. In American
Sink Top, the Board ordered arbitration of a grievance
concerning the discharge of an employee who had been
discharged after the expiration of the contract. The
Board held that the basis of the grievance was "'argu-
ably'-at least-the contract, and there [was] no reason
to conclude that the parties intended the arbitration pro-
visions to end with the contract's term."
Respondent argues that at the time of Cabrera's dis-
charge it had a good-faith doubt of the Union's majority
status and therefore could not have been guilty of a re-
fusal to bargain in good faith at the time of Cabrera's dis-
charge. As shown above, at the time of Cabrera's dis-
charge, there was pending a representation petition in
Case 31 RM-802, which ultimately resulted in an elec-
tion held on May 14. To support such a petition the Re-
spondent must have demonstrated by objective consider-
ations that is had some reasonable basis for believing that
the Union had lost its majority status. See, e.g., United
States Gypsum Company, 157 NLRB 652 (1966). Based
on a good-faith doubt of the Union's majority status, sup-
ported by such objective considerations. Respondent
could have defended any refusal-to-bargain charges. See,
e.g., Terrell Machine Company, 173 NLRB 1480, 1480-81
(1969), enfd. 427 F.2d 1088 (4th Cir. 1970). Accordingly,
from February 8, the date the petition was filed, until
May 14, the date of the election, a real question concern-
ing reprsentation had been raised and Respondent was
not obligated to bargain with the Union until the ques-
tion concerning representation had been resolved by the
Board.6 However, until the contract expired the Union
could still administer its contract and process grievances.
Cf. C & S Industries, Inc., 148 NLRB 454 (1966), and
Telautograph Corporation, 199 NLRB 892 (1972). Upon
expiration of the contract, Respondent had no obligation
to bargain with the Union until the question concerning
representation was resolved on May 14. Thus the instant
case raises a novel issue of whether the principles em-
bodied in American Sink Top apply during the pendency
of a question concerning representation.
I find that the American Sink Top decision presupposes
the presumption of continuing majority status of the in-
cumbent union. Here the presumption of majority status
had been rebutted by Respondent's objective consider-
ations in support of the representation petition. Thus, due
to the question concerning representation, when the con-
' Ihis finding should not bhe miconstrued as holding Ihalt Respondent's
filing of he represcntailion petition would excuse a refusal to bargain See
\I..1R B lop I.anufaciuring Co., 594 tF 2d 223, 225 ()th Cir 1979).
Rather, I find that the objective considerations sufficient to suppo)rt a
salid RM petition are sufficien Ito defend a refusal-to hargain cae. See
United Stuale Gvpsum. wupra
1179
DECISIONS OF NATIONAL L.ABOR RELATIONS BOARD
tract expired, Respondent, unlike the employer in Ameri-
can Sink Top, was not under a duty to adhere to prevail-
ing terms and conditions of employment after the expira-
tion of the contract. Until the question concerning repre-
sentation was resolved by the election, Respondent was
not obligated to bargain with the Union. A fortiori Re-
spondent was not required to abide by the terms of the
recently expired contract. Under these circumstances, I
find that it would be inappropriate to presume that the
parties intended the arbitration provision to survive the
expiration of the contract. See Cardinal Operating Com-
pany, 246 NLRB 279 (1979).
For the foregoing reasons I find that Respondent did
not violate Section 8(a)(l) and (5) of the Act as alleged,
when it refused to abide by the arbitration provision of
its recently expired collective-bargaining agreement with
the Union.
Upon the foregoing findings of fact, and upon the
entire record in this proceeding, I make the following:
CONCLUSIONS OF LAW
I. Respondent is an employer engaged in commerce
and in a business affecting commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The following is an appropriate bargaining unit
within the meaning of Section 9(b) of the Act:
All production and maintenance employees and
plant clerical employees employed by Respondent
at its facility located at 1898 East Colton Avenue,
Mentone, California; excluding all office clerical
employees, professional employees, draftsmen, pur-
chasing agents, guards, and supervisors as defined in
the Act.
4. Respondent did not violate Section 8(a)(5) and (1)
of the Act as alleged in the complaint.
[Recommended Order for dismissal omitted from pub-
lication.]
1180