The Arundel Corp.

National Labor Relations Board - Board Decisions

May 9, 1974

210 N.L.R.B. 525 (N.L.R.B. 1974)

ARUNDEL CORP. 525
The Arundel Corporation and Baltimore Automotive
Lodge No. 199, International Association of Ma-
chinists and Aerospace Workers , AFL-CIO. Case
5-CA-6207
May 9, 1974
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
the Board. Thereafter, Respondent and the General
Counsel each filed a brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the entire record in this
case , including the briefs , and makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Upon a charge filed July 17, 1973,1 by Baltimore
Automotive Lodge No. 199, International Associa-
tion of Machinists and Aerospace Wor)cers,
AFL-CIO, herein called Charging Party, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 5, issued a
complaint and notice of hearing on August 27
against The Arundel Corporation, herein called
Respondent, alleging that Respondent had engaged
in and was engaging in unfair labor practices
affecting commerce within the meaning of Section
8(a)(1) and (5) of the National Labor Relations Act,
as amended . Copies of the charge and complaint and
notice of hearing2 before an Administrative Law
Judge were duly served on the parties to this
proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that since on or about
July 23 Respondent has failed and refused to bargain
in good faith with the Charging Party. In addition,
the complaint also alleges that Respondent's alleged
unfair labor practices have prolonged a strike in
which certain of its employees have engaged.
On October 23 Respondent, the Charging Party,
and the General Counsel entered into a stipulation in
which they agreed that certain formal papers filed in
this proceeding and the stipulation, together with the
exhibits attached thereto, constitute the entire record
in this case. The parties waived a hearing before an
Administrative Law Judge, the making of findings of
facts and conclusions of law by an Administrative
Law Judge, and the issuance of an Administrative
Law Judge's Decision. They submitted this proceed-
ing directly to the Board for findings of fact,
conclusions of law, and the entry of an appropriate
order by the Board. The parties waived oral
argument in this case and requested that the Board
set November 30 for the filing of beefs.
On November 7 the Board issued its order
approving stipulation and transferring proceeding to
The Arundel Corporation, a Maryland corporation
having its principal offices in Baltimore , Maryland, is
engaged in the manufacture and sale of mixed
concrete and related products. During the 12 months
prior to the stipulation Respondent purchased and
received materials valued in excess of $50,000 from
points and places outside the State of Maryland.
We find that Respondent is, and at all times
material herein has been, an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act and that it will effectuate the purposes of
the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
The parties agree and we find that Charging Party
is, and at all times material herein has been , a labor
organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Relevant Stipulated Facts
Respondent and the Charging Party have had a
series of collective-bargaining agreements since June
1968 covering a unit consisting of all maintenance
machinists , automotive mechanics, helpers and
apprentices employed by Respondent in its Concrete
Department, Materials Division at Respondent's
fleet repair shops, or places designated as fleet repair
shops , but excluding all other employees , office
clerical employees , professional employees, guards
and supervisors as defined in the Act . Their most
recent collective contract , effective July 1, 1972,
contains a provision whereby upon request of either
party the said contract may be reopened effective
July 1, 1973, for the purpose of negotiating with
respect to changes in wage rates and the rates of
contributions to the health and welfare and pension
funds . This reopener provision further states: "If the
1 Unless otherwise noted, all dates herein refer to 1973. rescheduling the hearing . Thereafter , on October 23 the Regional Director
2 On September 1 I the Regional Director issued and duly served on the issued and duly served on the parties an order postponing the hearing
parties an order postponing the hearing indefinitely On October 15 the indefinitely.
Acting Regional Director issued and duly served on the parties an order
210 NLRB No. 93
526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
parties fail to reach agreement on this matter by
12:01 a.m. July 1, 1973, either party shall be
permitted all legal or economic recourse in support
of its demands notwithstanding any provisions in this
Agreement to the contrary." This agreement also
contains a no-strike no-lockout clause.
On or about April 26 the Charging Party gave
timely notice to Respondent pursuant to the afore-
mentioned reopener provision of their current
contract. The Charging Party also gave timely notice
to the Federal Mediation and Conciliation Service as
required by Section 8(d)(3) of the Act.
On June 27 the first bargaining session concerning
the reopener provision was held at Respondent's
office. This negotiating session concluded with an
understanding that Barre, Respondent's attorney,
would contact Lewis, the Charging Party's business
representative, the following week after the attorney
had consulted with Respondent's officials; that in the
meantime there would be no strike as of July 1; and
that when matters were finalized they would be made
retroactive to July 1.
On July 6, in a telephone conversation, Barre
informed Lewis that Respondent would meet the
Charging Party's full demand concerning the rate of
contribution to the health and welfare fund. Lewis
advised that he would get back to Barre later. Barre
then told Lewis that he was scheduled to leave that
day for a vacation in London, England, and would
not return until July 23, and asked Lewis what he
wanted to do about closing the matter. Lewis replied
that it could await Barre's return and that Lewis
would "keep a blanket on everything" until Barre
returned.3
On or about July 11 the Charging Party struck
Respondent.4 Since on or about July 11 the Charging
Party has requested and continues to request that
Respondent meet and/or bargain with it concerning
the matters set forth in the reopener provision of
their current collective agreement. Since the start of
the strike and thereafter, Respondent has refused to
meet and/or bargain with the Charging Party as
requested while the Charging Party and the employ-
ees continue to engage in the strike. Since July 23
and thereafter Respondent has conditioned bargain-
ing with the Charging Party upon the employees' and
Charging Party's abandoning the strike which com-
menced on July 11.
9 It appears that similar arrangements had occurred in the past. Thus,
the terms and conditions of the current contract were agreed to on June 30,
1972. However , this agreement was not reduced to writing or executed until
Lewis' return from vacation in the latter part of July 1972.
4 The current contract contains the following termination notice
provision
If either the Employer or the Union reopens this Agreement for
change or amendment as provided herein and if the Employer and the
Union do not arrive at a mutually satisfactory Agreement by the
Since July 11 the Charging Party has not made any
unconditional offer on behalf of the striking employ-
ees to abandon the strike and return to work, nor has
any striking employee individually made any uncon-
ditional offer to return to work. As of July 23, no unit
employee covered by the current collective contract
had been discharged or replaced.
B. Contentions of the Parties
General Counsel contends that the termination
notice provision refers only to the agreement's final
termination period, July 1, 1974, and is not applica-
ble to the reopener provision, and hence the
Charging Party's failure to give Respondent such
notice was not a violation of the collective contract.
However, General Counsel does concede that the
Charging Party's strike was commenced on July 11 in
violation of the agreement's no-strike provision; that
on June 27 the no-strike clause had been extended
from July 1 until the July 6 telephone conversation
between Respondent's attorney, Bane, and the
Charging Party's business representative, Lewis; and
that as a result of the telephone conversation, that
provision was further extended from July 6 to July
23, the date of Bane's return. General Counsel
contends that the no-strike extension expired on July
23 and that as of that date the Charging Party was no
longer engaged in an unprotected economic strike. It
is General Counsel's position that the expiration of
the no-strike extension was a condition precedent to
a lawful economic strike; he argues that since
nothing more than "the mere passage of time" was
involved as a condition precedent, and that time has
passed, the Charging Party was not required to
abandon the strike which started July 11 and have
the employees return to work before it could engage
in a lawful economic strike. General Counsel asserts
it would be requiring a futile act to say that the strike
had to be abandoned on or after July 23 because as
of that date a strike over the failure to reach
agreement on the reopener issues would have been,
without question, a protected economic strike.
Consequently, to require that the July 11 strike be
abandoned on or after July 23 before a protected
strike could take place, General Counsel argues,
would be requiring no more than a brief interruption
in this work stoppage.
expiration date of this Agreement , the Agreement shall continue in full
force and effect until such time as either the Employer or the Union
shall terminate this Agreement by giving the other formal written
notice of its desire and intent to terminate this Agreement five (5) work
days in advance of the actual termination date.
The parties are in disagreement as to whether or not the Charging Party was
required by the above provision to give such notice to Respondent before
commencing the strike . However , they agree that no such notice was given
by the Charging Party.
ARUNDEL CORP.
General Counsel contends that Respondent has
violated Section 8(a)(5) and (1) of the Act by its
failure and refusal to meet and/or bargain with the
Charging Party after July 23 and by its conditioning
of bargaining since July 23 upon the employees' and
the Charging Party's abandoning the strike which
commenced on July 11. General Counsel further
contends that the July 11 strike was converted from
an unprotected economic strike to an unfair labor
practice strike on or about July 23 by Respondent's
alleged unlawful refusal to bargain.
Respondent contends that the Charging Party has
violated their collective-bargaining agreement by
striking in violation of the no-strike clause; that this
strike, which has never been terminated, did not
become either a lawful economic strike or an unfair
labor practice strike as of July 23; and that so long as
this strike continues, it is under no obligation to meet
or bargain with the Charging Party. Respondent
further contends that the Charging Party was
required to furnish it with the notice called for in
their contract's notice of termination provision.
C. Discussion and Conclusions
We agree with Respondent that the Charging
Party's strike, which commenced July 11 as an
unprotected strike in violation of the parties' no-
strike agreement, did not become either a lawful
economic strike or an unfair labor practice strike on
or after July 23 and, so long as this strike continues,
Respondent is under no obligation to meet or
bargain with the Charging Party. It is undisputed
that the Charging Party's strike started on July 11 in
violation of the July 6 agreement between Lewis and
Barre to extend the contract's no-strike provision and
defer bargaining on the reopener issues while Barre
was on vacation. This agreement clearly contemplat-
ed further discussions between Lewis and Barre
concerning Respondent's July 6 offer on the reopen-
er issues after Barre's return, which was not to occur
until July 23. Certainly this agreement contemplated
allowance of a reasonable period after July 23 and
did not mean that unless the reopener issues were
settled on July 23 upon Barre 's return from Europe
that very day the Charging Party would be free to
engage in a lawful economic strike against Respon-
dent. The exact terminal date of the no-strike
extension herein is indeterminable because the
Charging Party's unprotected strike in repudiation of
its agreement removed Respondent's obligation to
S Since it is clear that the Charging Party commenced this strike in
violation of the contractual no-strike provision and, we find , can only
correct this unprotected action, under the circumstances of this case, by
terminating this strike , we need not pass upon Respondent 's further
contention , involving a matter of contract interpretation , that the Charging
Party's strike also violated their contract because the latter failed to furnish
527
resume bargaining over the reopener issues after
Barre's return and it will have no obligation to
engage in such bargaining, under the circumstances
of the instant case where there is no evidence that the
Respondent has engaged in any unfair labor prac-
tices, until the Charging Party restores the status quo
ante by terminating its unprotected strike .5
We reject General Counsel's argument that we
would be calling for a futile act by requiring the
Charging Party to terminate the strike which com-
menced on July 11 before it could engage in a lawful
economic strike. The Charging Party's July 6
agreement with Respondent contemplated further
bargaining and it is wholly unwarranted and specula-
tive to assume that such negotiations would have
produced no settlement of the reopener issues and
that a strike by the Charging Party would have been
the inevitable result.
As a general rule of law, one party to a contract
need not perform if the other party refuses in a
material respect to do so. The same rule applies to
labor contracts.6 There can be no question, under the
circumstances of the instant case, that the Charging
Party's unprecipitated strike in violation of the no-
strike provision constituted a material refusal to
perform. Consequently, we find that Respondent was
under no obligation to meet and bargain with the
Charging Party so long as the strike which com-
menced on July 11 continued and its conditioning of
bargaining with the Charging Party on the latter's
abandonment of this strike was not unlawful.?
Accordingly, we shall dismiss the complaint in its
entirety.
CONCLUSIONS OF LAW
1. The Arundel Corporation is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act, and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. Baltimore Automotive Lodge No. 199, Interna-
tional Association of Machinists and Aerospace
Workers, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. The Respondent has not engaged in unfair
labor practices as alleged in the complaint.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Respondent with the notice called for by their agreement 's notice of
termination provision.
6 United Electrical, Radio and Machine Workers of America, Local 1113
[Marathon Electric Manufacturing Corp.], v.N LR.B 223 F.2d 338, 341
(C.A.D.C., 1955), affg. 106 NLRB 1171, cert. denied 350 U.S. 981.
7 See Marathon Electric Mfg. Corp., 106 NLRB 1171, 1180.
528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
MEMBER JENKINS , dissenting:
If one believes, as I do, that the touchstone of a
good collective-bargaining relationship is a spirit of
cooperation and mutual trust among the parties, one
cannot but be dismayed by the determination
reached herein by my colleagues. In effect, their
decision turns a voluntary and temporary commit-
ment by a party to the collective-bargaining agree-
ment into a permanent waiver of rights under that
agreement.
The facts are fully set forth in the majority opinion
and need only be summarized here. In essence, they
show that under the existing collective-bargaining
agreement provision was made for a midterm
reopener for the purpose of renegotiating wages and
certain health, welfare, and pension contributions.
The reopener clause specified that if the parties failed
to reach agreement on these matters by July 1, 1973,
"either party was permitted all legal or economic
recourse in support of its demands notwithstanding
any provisions in the agreement to the contrary."
Acting pursuant to this clause, the Union gave timely
notification of its desire to reopen and, on June 27,
the parties met, but were unable to resolve all the
issues . At this meeting, the Union agreed that the no-
strike clause in the collective-bargaining agreement
would be in effect until their next meeting and the
Respondent in turn agreed to make any settlement
reached retroactive to July 1. The parties next met on
July 6 and, although some progress was made, the
parties were unable to reach a final settlement on all
the issues . At this juncture, Respondent's attorney
advised the Union that he was leaving that day on
vacation and would not return until July 23. The
Respondent's attorney then asked the union repre-
sentative what he wanted to do about closing the
matter and the union representative replied that it
could await the attorney's return and that he (the
union representative) would "keep a blanket on
everything" until the attorney returned. On July 11,
the Union struck the Employer and this strike is
apparently still in progress. Also since July 11, the
Union has requested and continues to request
bargaining, but the Respondent has refused to meet
until such time as the Union chooses to abandon its
strike. The complaint alleges that the Respondent
has violated Section 8(a)(5) of the Act by its refusal
to bargain with the Union on July 23 and thereafter
and that this unlawful conduct has prolonged the
8
Although my colleagues find it unnecessary to reach the issue, I would
find no merit in the Respondent's argument that the notice requirements in
the termination clause of the agreement were applicable to any stake action
taken pursuant to the reopener clause . The very language of the reopener
strike, thereby converting it into an unfair labor
practice strike.
There appears to be little controversy over the
interpretation to be placed on events prior to the July
6 meeting. It is admitted that the Union's request to
reopen is both timely and a lawful exercise of its
rights under the collective-bargaining agreement. It
also seems clear, at least to me, that under the
reopener clause the Union was permitted to strike in
support of its demands if no agreement was reached
by July 23 and that such action would be in no way
limited by any other provisions in the collective-
bargaining agreement , including the no-strike
clauses Thus, it cannot be by virtue of the agreement
itself that the Union is prohibited from striking and
any such limitation must of necessity result from the
separate and voluntary agreement of the parties. In
this latter respect, the General Counsel concedes,
and I agree , that the Union voluntarily obligated
itself to be bound by the no-strike clause in the
collective-bargaining agreement first until the meet-
ing of July 6 and later until July 23, the date on
which the Respondent's attorney was due to return
from vacation. As a consequence, the General
Counsel admits, and I again agree, that when the
Union commenced its strike on July 11, it was acting
in violation of the no-strike clause in the collective-
bargaining agreement and thereby was engaging in
an unprotected activity.
The question to be answered though is not whether
the strike was at one point an unprotected activity,
but rather whether it is to remain so indefinitely and
the answer to that question hinges upon the interpre-
tation one places on the so-called understanding
reached by the parties at the July 6 meeting.
According to the view of my colleagues, the Union's
July 6 commitment to "keep a blanket on every-
thing" until the Respondent's attorney returned was
in fact a concession that the no-strike clause
limitations would remain in effect until such time as
the parties had another opportunity to meet and
discuss the issue, irrespective of any time limitations.
As a consequence, they conclude that the exact
terminal date of the no-strike extension is indeter-
minable in these circumstances, but they also make it
quite clear that they consider the no-strike clause
coverage to remain in effect until such time as the
Union elects to abandon its strike.9
I find myself somewhat aghast at the inference that
any union would voluntarily agree to an unlimited
extension of the coverage of a no-strike clause.
Certainly, it must be considered as rather uncommon
clause seems to establish precisely the opposite conclusion.
9 Presumably this situation could continue even after the normal
termination date of the collective-bargaining agreement.
ARUNDEL CORP. 529
for any party to accept a blanket restriction on a
fundamental right while issues still remain to be
resolved among the parties. The Union here certainly
did not state on July 6 that the no-strike limitation
would be effective until the parties again had the
opportunity to meet and I do not believe we should
draw such an inference especially when it seems to
fly in the face of reality. Furthermore, under my
colleagues' approach to this question their precondi-
tion for eliminating the no-strike limitation would
seemingly be satisfied by a temporary cessation of
the strike coupled with a request for bargaining. Thus
by this simple expedient what had been unprotected
would now be protected and the Union could resume
its strike activity with impunity. Such a result seems
to me to suggest that the theory in its application has
placed mere form over substance.
In my opinion, the only logical interpretation that
can be placed on the understanding of July 6 is one
which gives full effect to the literal language of the
statements made by each party. Thus, when the
Respondent's attorney advised the Union that he
would not be returning until July 23, the union
representative replied that he would "keep a blanket
on everything" until the attorney returned. No
mention was made of the opportunity to meet again,
it was purely and simply a commitment to take no
strike action until July 23, at which time it was
evidently anticipated that the Respondent's attorney
would be available to respond to whatever course of
action the Union chose to pursue.
In these circumstances, I would find that on July
23 and thereafter there was no prohibition on the
Union's right to strike, and with the removal of this
disability the strike assumed the status of a protected
activity. Although I accept the proposition that the
Union's failure to observe the no-strike limitation
agreed to constituted a material breach of their
agreement which relieved the Respondent of its
obligation to bargain, this situation obtains only so
long as the vital elements remain unchanged. With
the removal of the no-strike ban on July 23, it could
no longer be said that the Union was refusing to
meet its contractual obligations and, corresponding-
ly, there was no justification for the Respondent's
continued refusal to meet with the Union and
bargain. The strike activity prior to July 23 while
unprotected was not unlawful. The distinction is
important. For example, a strike which is in violation
of the requirements of Section 8(d) of the Act is
unlawful and would result in the striking employees
losing their status as employees by operation of law.
In such circumstances, the strike would of course be
illegal and its status could not be changed or
converted by any outside factor and, hence, the
employer would be under no obligation to bargain
while it continued. Moreover, the very fact that the
strikers in such a situation automatically lose their
status as employees may result in a loss of majority
status by the union which would justify the termina-
tion of the bargaining relationship.'° However, the
same considerations do not apply, when as here, the
strike was not unlawful but was simply an unprotect-
ed activity by virtue of the restrictions of the
contract. If, as was the case here, the restriction no
longer has application, there is no valid basis for
concluding that the activity remains unprotected. An
employer is not without recourse when faced with an
unprotected strike. The Respondent could have, if it
so chose, discharged the striking employees while
they were engaged in this unprotected activity,ii but
it elected not to do so and as of July 23 no unit
employees had been discharged or replaced. As a
consequence, it must be presumed that the Union's
status as majority representative continued and that,
as such, it can insist that the Respondent meet the
bargaining obligations imposed by Section 8(d) of
the Act.
For these reasons, I would find that the Respon-
dent violated Section 8(a)(5) of the Act by refusing
on July 23, 1973, and thereafter to bargain with the
Union as the representative of its employees. I would
find that the Respondent's unlawful conduct has
prolonged the strike, thereby converting it into an
unfair labor practice strike.
10 This is precisely the situation involved in Marathon Electric Mfg Sec. 8(d) of the Act This is a far cry from the situation presented here.
Corp, 106 NLRB 1171, cited and relied on by my colleagues in their 11 Cf. N LR. B v Insurance Agents ' International Union, AFL-CIO, 361
majority opinion. There, the employer' s termination of its contract with the U.S 477 (1960).
union followed the loss of majority status occasioned by the application of