Shen-Valley Meat Packers, Inc.

National Labor Relations Board - Board Decisions

May 14, 1982

261 N.L.R.B. 958 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shen-Valley Meat Packers, Inc. and Teamsters
Local Union No. 29, Petitioner. Case 5-RC-
11731
May 14, 1982
DECISION ON REVIEW AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On March 2, 1982, the Acting Regional Director
for Region 5 issued a Decision and Direction of
Election in the above-entitled proceeding in which
he directed an election in the Petitioner's requested
unit of production and maintenance employees at
the Employer's Timberville, Virginia, location,
finding that the existing contract between the Em-
ployer and Employee Committee, Independent,
herein called the Intervenor, was one of unreason-
able duration inoperative as a bar as the petition
was filed after the third anniversary date. Thereaf-
ter, in accordance with the National Labor Rela-
tions Board Rules and Regulations, Series 8, as
amended, the Employer filed a timely request for
review of the Regional Director's decision on the
grounds that he departed from precedent. The Peti-
tioner filed a timely opposition to the Employer's
request.
By telegraphic order dated March 30, 1982, the
National Labor Relations Board granted the re-
quest for review and stayed the election pending
decision on review. Thereafter, the Employer filed
a brief on review.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the entire record in
this case with respect to the issues under review,
including the Employer's brief on review, and
makes the following findings:
The instant petition was filed January 28, 1982.
The Employer and the Intervenor asserted their
collective-bargaining agreement as a bar to the pe-
tition. The Employer and the Intervenor executed
an agreement on January 5, 1979, effective from
December 31, 1978, through December 31, 1983.
The contract also provided that "at the expiration
of two (2) years (January 3, 1981), the wage rate
and other conditions of this agreement may be re-
opened for negotiations"; it also provided for limit-
ed wage reopeners at 6-month intervals: July 1,
1979, December 30, 1979, and June 29, 1980.
Several supplemental agreements were executed
by the parties: the first is undated, but was appar-
ently executed on or about July 1, 1979; the second
is dated December 21, 1979, and the third is dated
261 NLRB No. 144
August 1, 1980. Each of these provided for wage
increases, some of which were in exchange for de-
letion of a rest period, all as expressly contemplat-
ed by the agreement. Also appended to the agree-
ment is a document dated December 28, 1979, and
signed only by a representative of the Employer,
providing for an additional wage increase.
On February 13, 1981, the parties executed a
"Fifth Amendment to Agreement dated January 5,
1979, between Shen-Valley Meat Packers, Incorpo-
rated, and the Employee's [sic] Committee." This
amendment contains various provisions organized
according to sections of the 1979 agreement includ-
ing recognition, working hours and conditions,
holidays, disability pay, supervisory employees, and
vacations. It provides that, "This amendment be-
comes effective January 4, 1981, and is in effect
through the remainder of the agreement .
except that it permitted renegotiation of hourly
wage rates only, after June 27, 1981. On July 2,
1981, the parties executed a sixth amendment pro-
viding for a wage increase and pledging the parties
to "strive to increase production" by certain
amounts in each department. This amendment pro-
vided that it would be effective June 28, 1981, and
would "remain in effect through January 2, 1982,
at which time it can be reopened for wages only."
In January 1982, the parties met to renegotiate
wages but did not agree and the contract was not
amended at that time, and it has not been since.
The Regional Director found that the petition
filed January 28, 1982, was timely and not barred
by the collective-bargaining agreement then in
force. Under General Cable Corporation, 139 NLRB
1123, 1125 (1962), an agreement of more than 3
years' duration is treated for contract-bar purposes
as expiring on its third anniversary date; here the
agreement was for 5 years, and the petition was
filed after the third anniversary date. Thus, the pe-
tition would have been timely in the absence of a
new agreement between the Intervenor and the
Employer, executed prior to the filing of the peti-
tion, reaffirming or extending the term of their
original agreement. Contrary to the Regional Di-
rector, we find that the parties by their February
1981 amendment (the fifth amendment) reaffirmed
their original agreement, with modifications, for
the remainder of its term, and that that amendment
bars the instant petition.'
I The Employer also argues. in the alternative. that the original con-
tract actually expired on January 3, 1981, and that the February 1981
agreement was a new contract Such a reading is, however. precluded by
the plain language of the original contract, which contains an expiration
date of December 31. 1983 Any evidence of the parties' "understanding"
of the original contract's expiration date, which the Employer would
have us consider, is irrelevant to the determination of the contract's dura-
Continued
958
SHEN-VALLEY MEAT PACKERS, INC.
In Southwestern Portland Cement Company, 126
NLRB 931, 933 (1960), the Board held that parties
to a long-term collective-bargaining agreement
could reactivate the contract bar after the initial
term of "reasonable duration" had passed, by ex-
ecuting a new contract, or "a written amendment
which expressly reaffirms the long-term agreement
and indicates a clear intent on the part of the con-
tracting parties to be bound for a specific period,"
and that in such a case, the "amendment shall be
effective as a contract bar for as much of its term
as does not exceed 2 years."2 The Board further
noted that "[a]ny . . . amendment executed prior
to the 60-day [insulated] period at the end of the
first 2 years of a long-term contract, however, is
subject to the premature extension doctrine." Id.3
Here, the Regional Director concluded that the
February 1981 amendment was not a bar under
Southwestern Portland Cement because it was ex-
ecuted before the third anniversary date but was
not a premature extension, as it did not alter the
contract expiration date. However, the term "pre-
mature extension" was used in Southwestern Port-
land Cement to mean any agreement executed
during the period of reasonable duration (then 2
years) extending the contract beyond that period. 4
Therefore we would find the February 1981
amendment to be, in effect, a premature extension
of the 1979 agreement and, in the circumstances, to
govern the timeliness of the petition,5 if it "express-
ly reaffirms the long-term agreement and indicates
a clear intent on the part of the contracting parties
to be bound for a specific period .... " Southwest-
ern Portland Cement Company, 126 NLRB at 933.
As indicated, the amendment is for a fixed term,
effective January 4, 1981, "through the remainder
of the agreement," that is, until December 31, 1983.
tion for contract-bar purposes Indeed, if such evidence were necessary
to determine the expiration date, the contract would be ineffective as a
bar See Pacific Coast As.sociation of Paper and Pulp Manufacturers, 121
NLRB 990, 994 (1958)
2 At the time Southwestern Portland Cement was decided the period of
reasonable duration of contracts for bar purposes was held by the Board
to be 2 years; this period was changed to 3 years in General Cable Corp.,
supra
3 That doctrine holds that where parties renew their contract before
the 60-day insulated period, a petition will still be timely if filed in the
"open" period relative to the original expiration date. Deluxe Metal Fur-
niture, 121 NLRB 995, 1001 (1958).
4 While the Board defined a "premature extension" in Deluxe Metal
Furniture, 121 NL.RB at 1001, as a new contract or amendment executed
during the term of an existing contract "which contains a later terminal
date than that of the existing contract," that definition did not refer spe-
cifically to long-term contracts. Indeed, where contracting parties assert
as a bar an amendment to their long-term contract executed during the
period of reasonable duration, it would serve no useful purpose to distin-
guish between amendments that altered the expiration date of the original
contract and those that did not.
' The premature extension doctrine does not operate to remove the
February 1981 agreement as a bar here, as the petition was not filed in
the open period relative to the third anniversary date of the long-term
contract.
We also find, contrary to the Regional Director,
that the agreement "expressly reaffirms" the long-
term agreement.6 The parties' intent, in the Febru-
ary 1981 amendment, to reaffirm their original
agreement is clear. Their intent is evidenced, first,
by their reference to that agreement in the Febru-
ary 13 amendment. The title of the amendment
refers to the original agreement, the content is
phrased in terms of amendments to the various sec-
tions of the original agreement, and the duration
clause provides that the amendment is to be effec-
tive "through the remainder of the agreement."
Furthermore, the amendment is made effective ret-
roactively to January 4, thus acknowledging the
provision in the original agreement for general re-
opening on January 3, 1981.
Most importantly, the parties' intent to reaffirm
their agreement in the February 1981 amendment
can be inferred from the general scope of the Janu-
ary 3, 1981, reopening provided for in the original
agreement, which allowed the parties to renegoti-
ate "the wage rate and other conditions of this
agreement." Indeed the parties did so; the Febru-
ary amendment covers a broad range of significant
terms and conditions of employment. The other
amendments, in contrast, were narrowly limited in
scope by the terms of the original contract; they
were essentially wage reopeners. 7
Our interpretation comports with the dual pur-
pose of the 3-year reasonable duration rule: to pro-
mote stable collective-bargaining relationships
while preserving the right of employees to change
their bargaining representative. See Pacific Coast,
supra at 994. The Board's rule achieves a balance
between these competing policies in two ways.
First, the "open period" for filing petitions, 60 to
90 days before the third anniversary date of long-
term contract, ensures to employees the opportuni-
ty to change representatives regardless of the ac-
tions of the contracting parties.8 Second, the em-
6 See The Santa Fe Trail Transportation Company, 139 NLRB 1513,
1514 (1962); Union Carbide Corporation, 190 NLRB 191, 192 (1971).
' This was the sort of amendment found not to alter the duration of
the long-term agreement in Penn-Keystone Realty Corporation, 191 NLRB
800 (1971), relied on by the Regional Director; there, the petition was
timely filed within the open period before the third anniversary date of
the long-term agreement.
The Regional Director and the Petitioner cite language in Deluxe
Metal Furniture, 121 NLRB at 1003, indicating that a midterm modifica-
tion, regardless of its scope, will not remove a contract as a bar That
principle is inapplicable here While midterm modification will not
remove a bar where the contract would otherwise be a bar, modification
midterm of a long-term contract may, if it meets the requirements set
forth in Southwestern Portland Cement, as here, extend the operation of
the contract as a bar beyond the third anniversary date. In determining
whether or not a midterm modification reaffirms a long-term contract for
bar purposes, the scope of the modification clause in the long-term con-
tract is a relevant consideration.
8 The petition herein, filed January 28, 1982, was beyond the "open
period" of the initial 3-year period
959
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees have a further opportunity to exercise their
choice after the 3-year period has passed, if the
contracting parties do not renew their agreement.
Thus the statutory policy favoring stability in col-
lective bargaining is stronger, relative to the com-
peting policy of employee free choice, where the
bargaining relationship is active and the collective-
bargaining agreement more nearly reflects contem-
poraneous conditions as the contracting parties per-
ceive them-that is, when the bargaining relation-
ship is furthering the Section 7 rights of the repre-
sented employees to effective collective bargaining
with respect to the terms and conditions of their
employment. Here then, where the contracting par-
ties provided in their long-term agreement an op-
portunity to change any term of that agreement,
and then availed themselves of the occasion to re-
negotiate, the resulting amendment reaffirms their
long-term agreement to the extent that it does not
change it, and properly serves as a bar to rival peti-
tions.
As the February 1981 amendment reaffirmed the
parties' 1979 long-term agreement, we find that it
bars any petition filed after the third anniversary of
the 1979 agreement until December 31, 1983-sub-
ject to the open period from 60 to 90 days prior to
its expiration. The petition herein is therefore
barred by the contract amendment, and, according-
ly, we shall dismiss it.
ORDER
It is hereby ordered that the petition herein be,
and it hereby is, dismissed.
960