Mason City Builders Supply Co.

National Labor Relations Board - Board Decisions

Sep 16, 1971

193 N.L.R.B. 177 (N.L.R.B. 1971)

MASON CITY BUILDERS SUPPLY CO. 177
Mason City Builders Supply Co. and Local Union No.
828, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of Ameri-
ca. Case 18-CA-3174
Upon consideration of the entire record and of the briefs
filed by General Counsel and by Respondent, I make the
following:
FINDINGS OF FACT
September 16, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On June 16, 1971, Trial Examiner Frederick U. Reel
issued his Decision in the above-entitled proceeding,
finding that the Respondent had not engaged in
certain unfair labor practices and recommending that
the complaint be dismissed in its entirety, as set forth
in the attached Trial Examiner's Decision. Thereafter,
the General Counsel filed exceptions to the Trial
Examiner's Decision and a supporting brief. The
Respondent filed a brief in response to General
Counsel's exception and in support of the Trial
Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
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 Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recommend-
ed Order of the Trial Examiner and hereby orders that
the complaint herein be, and it hereby is, dismissed in
its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
FREDERICK U. REEL, Trial Examiner: This proceeding,
heard at Mason City, Iowa, on May 4, 1971, pursuant to a
charge filed the preceding March 8, and a complaint issued
April 7, presents the question whether Respondent, herein
called the Company, violated Section 8(a)(5) and (1) of the
Act when it took the position that its contract with the
Charging Party, herein called the Union, had automatically
renewed and that Respondent was therefore not obligated
to bargain with the Union over a new contract.
1. THE BUSINESS OF THE COMPANY AND THE LABOR
ORGANIZATION INVOLVED
The Company, an Iowa corporation engaged at Mason
City in the wholesale distribution of building materials,
annually ships goods valued in excess of $50,000 to points
directly outside the State, and is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
In 1968 the Company and the Union entered into a 3-
year contract covering the company employees in an
appropriate unit. Article 35 of the contract provided in
part:
This Agreement shall be effective on the 12th day of
March, 1968 and remain in full force and effect until the
12th day of March 1971 and from year to year
thereafter, provided, however, that either party to this
Agreement may present to the other party, in writing, a
notification to modify or terminate this Agreement, at
least sixty (60) days before the termination date. Such
notice by either party shall include all requested
changes in the agreement, including termination thereof
if such be the desire of either party, and negotiations
thereafter shall be limited to the requested changes set
forth therein.
On December 10, 1970, the Union wrote the Company as
follows, but received no reply:
As per Article 35, of the present agreement between
Mason City Builders Supply Co. and Local Union No.
828, kindly accept this communication as official notice
of our desire to negotiate certain changes and
modifications in the present agreement.
We will contact you in the near future to arrange a
date and place for the purpose of negotiating said
changes as we desire to have the new agreement become
effective as of March 12, 1971.
On January 15, 1971, less than 60 days before March 12,
the Union sent the Company a letter enclosing the Union's
contract proposals and requesting a meeting for the
purpose of commencing contract negotiations. Again the
Company made no reply. At a meeting between company
and union representatives on February 25, 1971, the
Company took the position, to which it still adheres, that
the existing contract had automatically renewed for one
more year because the Union had not given timely notice of
its requested changes.
On January 7, 1971, the Company filed a petition with
the Regional Director seeking an election among the
employees in the unit covered by the collective-bargaining
agreement. Late in January the parties agreed to a consent
election, which was held on March 11. The Union won the
election and has been certified.
193 NLRB No. 36
178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon those facts it seems clear to me that the Company's
position is correct, and the contract automatically renewed.
The contract provided for automatic renewal unless timely
notice was given of "all requested changes," and of the two
notices in this case one did not contain the changes and the
other was untimely. The Company was under no duty to
reply to the first notice, which by its terms did not appear to
require a reply. There may have been a lack of courtesy in
ignoring the second notice. That notice, however, was
untimely, and hence imposed no legal duty on the
Company.
General Counsel suggests that the Company by filing its
petition and by going to an election was in effect conceding
that the contract was about to expire. At the time the
petition was filed, however, the Union still had time to give
proper notice of its requested changes. To be sure the
Company, after the contract had automatically renewed,
agreed to, and participated in, a consent election. This did
not absolve the Union of its earlier failure to give the proper
notice. Cf. Moore Drop Forging Co., 168 NLRB 984; Deluxe
Metal Furniture Co., 121 NLRB 995, 1000, 1002. If the
i In view of my disposition of the case , it is unnecessary to reach the
Company's contention that the Union failed to give proper notice under
Section 8(d) to the Iowa authorities . The record establishes that such notice
would have been an idle gesture as the state agency merely files the notices
it receives pursuant to that Section and takes no action on them Cf
Brotherhood of Locomotive Firemen, etc (Phelps Dodge Corp) v N L R B,
302 F.2d 198 (C.A. 9) Also, under the Board's decision in South Texas
Chapter, Associated General Contractors, 190 NLRB No 73, it makes no
practical difference whether the employer has or has not erred in taking the
position that the contract renewed , for even if he erred , his only liability
for that violation is to bargain , an obligation he cheerfully accepts 1 year
later , or long before the Board's bargaining order, if contested in court,
would be enforceable . I regard H K Porter v. N L R B, 397 U S 99, as
inapposite , for in that case the Board was instructed not to write a
substantive term into the contract Assuming, as of course I must for
Union had lost the election, a question might have arisen as
to the vitality of the automatically renewed contract, but
there is no need to grasp that nettle here. General Counsel
argues that the Certification of Representatives "should be
given its normal effect," but this means no more in the
context of this case than that the Union continues to enjoy
representative, and indeed now certified, status, which the
Company in no way disputes.'
CONCLUSIONS OF LAW
1. The contract between the Company and the Union
automatically renewed for 1 year when the Union failed to
give the detailed notice of proposed changes within 60 days
of the expiration date.
2. The Company has not committed the unfair labor
practices alleged in the complaint.
RECOMMENDED ORDER
The complaint should be, and hereby is, dismissed.
present purposes , the soundness of the Board decision in Ex-Cell-O
Corporation, 185 NLRB No 20, reversed on motion for summary judgment
76 LRRM 2753 (C A D C , 1971), I regard the problem here presented as
distinguishable, for in Ex-Cell-O the Board 's order to bargain at least has
some future significance in remedying an unfair labor practice , whereas in
the South Texas case (or in this case if a violation was committed ) the so-
called remedial order is a futility as the violation by its nature has a
termination date . Also the remedy the Board rejected in Ex-Cell-0 would
have fixed a wage retroactively , whereas that proposed in South Texas (but
rejected by the Board) would leave the past wage open to bargaining If the
Board should reverse the decision here and find a violation , it might wish
to reconsider its South Texas "remedy" in the light of the considerations
expressed in J P Stevens Co v. N L R B, 417 F 2d 533, 539, In. 10 (C.A.
5)