Land O'Sun Dairies, Inc.

National Labor Relations Board - Board Decisions

Feb 18, 1954

107 N.L.R.B. 1195 (N.L.R.B. 1954)

LAND O'SUN DAIRIES, INC. 1195
ing representative of the employees in the unit found to be
appropriate at the Employer's Lititz, Pennsylvania, plant.]
Member Rodgers took no part in the consideration 'of the
above Supplemental Decision and Certification of Representa-
tives.
LAND O'SUN DAIRIES, INC. and ALBERT P. B. KERR, EUGENE
E. RHODES AND MYER GOLDBERG, Petitioners and TEAM-
STERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS
LOCAL NO. 390, INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND
HELPERS OF AMERICA, AFL. Case No. 10 -RD-138. Feb-
ruary 18, 1954
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before John S. Patton,
hearing officer. The hearing officer's rulings made at the hear-
ing are free from prejudicial error and are hereby affirmed.
Upon the entire record in the case, the Board finds:
1. The Employer is engaged in commerce within the meaning
of the Act.
2. The Petitioners assert that the Union, whichhas been cer-
tified and is being currently recognized by the Employer as the
bargaining representative , is no longer a representative as de-
fined by Section 9 (a) of the Act.
3. No question affecting commerce exists concerning the rep-
resentation of employees of the Employer within the meaning of
Section 9 (c) (1) and Section 2 (6) and (7) of the Act for the
following reasons:
The Union contends that a collective - bargaining agreement
with the Employer covering the employees involved herein, which
is effective until July 1, 1954, is a bar to this proceeding. On July
1, 1950, the Employer and the Union entered into a 2-year bar-
gaining agreement , renewable annually thereafter unless written
notice to terminate or modify was given by either party at least
60 days before any anniversary date. In July 1952, the contract-
ing parties entered into an agreement which provided that certain
modifications of the 1950 contract which were still being negoti -
ated would " be added to this agreement by way of addenda thereto
.... Any such addenda shall be effective from July 1, 1952 to June
30, 1953, unless such addendaprovide otherwise ." OnAugust 5,
1952, the parties signed such an addendum , modifying some of
the substantive provisions of the agreement.
No notice of intention to terminate or modify was given by
either party prior to May 1, 1953, the operative date of the
automatic renewal clause, although the Union failed to do so
only through a clerical oversight. On June 5, 1953, the Union
informed the Employer that it wished to negotiate certain
107 NLRB No. 253.
1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
changes in the agreement for the year beginning July 1,
1953. On June 16, 1953, the Employer replied that it regarded
the agreement as having been automatically renewed for an
additional year. The Employer also said , however, that,
although it would not open the contract for negotiations, it would
consider any proposals which the Union might make and would
put them into effect if feasible. The Union then presented its
proposals which the parties discussed at a series of meetings
lasting into September. On September 22, the employees struck
to enforce their contract demands. The Union sanctioned the
strike despite a no-strike clause in the original agreement.
At one of the conferences during the strike, the Employer's
attorney orally stated to an official of the International Union
that he considered the contract no longer in effect because of
the Union's breach of the no-strike provision. However, the
strike was settled within 24 hours thereafter, and the parties
immediately resumed discussion of the Union's proposals.
Although an understanding was reached with respect to most,
if not all of the Union's proposals, no signed agreement was
entered into because of the filing of the instant petition for
decertification on October 5, 1953.
The Petitioners contend that no contract bar exists to an
immediate election because: (1) The agreement between the
Company and the Union expired by its own terms on June 30,
1953; (2) even if the agreement was automatically renewed on
July 1, 1953, for an additional 1-year period, it was "opened-
up" by the negotiations of the Employer and the Union; and
(3) assuming that the agreement did not expire on June 30,
1953, it was breached by the unlawful strike of the Union, and
was terminated for that reason by the Employer.
As to the Petitioners' first contention, that the agreement
expired on June 30, 1953, we find that the Employer and the Un-
ion did not intend that the addenda of July and August 1952 should
affect those provisions of the original agreement which were
not specifically modified. In support of this finding is the fact
that the addenda left most of the original agreement unmodified,
and did not by themselves constitute a complete bargaining
agreement . The adoption of certain specific provisions which
were to remain in effect only until June 30, 1953, is not in-
consistent with the premise that the parties intended to continue
in effect the renewal as well as other unmodified substantive
provisions of the original agreement . Further, the conduct of
the parties in June 1953 indicates that they both considered that
the renewal clause was still operative.
As we find that the agreement was renewed on Julyl, 1953,
for an additional 1-year period, we must now consider whether
the parties "opened-up" the contract by their subsequent
conduct. The Union's proposals for changes in the contract
dealt with substantive modifications relating to wages and
working conditions, but did not attempt to extend the termina-
tion date of June 30, 1954. In accordance with the principle
FISHER GROCERY COMPANY 1 197
established in the Western Electric case,' we find that the
negotiation of modifications in the existing agreement did
not "open up" the contract to the Petitioners' prematurely
filed petition.
The Petitioners' last contention, that the contract was
breached by the illegal strike, is also without merit. Whatever
the Employer's right to rescind the contract for the Union's
breach of the no-strike clause, we are satisfied that there was
no rescission in this case.2 The attorney's statement that he
considered the contract no longer in effect because of the strike
appears to have been an assertion of his client's rights rather
than a clear and unambiguous expression of termination. This
is evidenced by the fact that immediately, upon the cessation of
the strike, both parties resumed negotiations for modification
of the existing agreement without questioning the continued
validity of that agreement. Nor has the Employer contended in
this proceeding that it rescinded the contract because of the
employees' strike.
For the foregoing reasons, we find that the 1950 contract as
automatically renewed to June 30, 1954, is a bar to this pro-
ceeding . We shall therefore dismiss the petition without prej-
udice to the filing of a new petition a reasonable time before
the automatic renewal date of the existing contract.
[The Board dismissed the petition.]
I Western Electric Company. Inc., 94 NLRB 54.
2See 12 American Jurisprudence 1028.
FISHER GROCERY COMPANY and RETAIL CLERKS
INTERNATIONAL ASSOCIATION, LOCAL NO. 536, AFL.
Case No. 13 -RM-171. February 18, 1954
SUPPLEMENTAL DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
Pursuant to a Decision and Direction of Election issued by
the Board on September 25, 1953,' an election by secret ballot
was conducted on October 21, 1953, under the supervision of
the Regional Director for the Thirteenth Region, among em-
ployees in the unit found appropriate by the Board. Upon com-
pletion of the election, the parties were furnished with a tally
of ballots which showed that of approximately 108 eligible
voters, 105 cast valid ballots, of which 41 were for and 64
against the Union. There were 4 challenged ballots which are
not sufficient in number to affect the results of the election.
On October 24, 1953, the Union filed timely objections to
conduct allegedly affecting the results of the election. In
'Not reported in printed volumes of Board Decisions and Orders.
107 NLRB No. 255.
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