United Marine Division Local 333

National Labor Relations Board - Board Decisions

Mar 30, 1977

228 N.L.R.B. 1107 (N.L.R.B. 1977)

UNITED MARINE DIVISION LOCAL 333 1107
United Marine Division Local 333 and General
Marine Transportation Corp . Case 2-CB-5998
March 30, 1977
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING, JENKINS, AND PENELLO
On May 14, 1976, Administrative Law Judge
Joseph I. Nachman issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief.
The Board has considered the record and the
attached 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 issue presented is whether the provisions of
Section 8(d) apply where a union, pursuant to
contract provisions, terminates the contract because
the employer is failing to comply with its provisions,
and immediately strikes seeking negotiation of a new
contract. The Administrative Law Judge concluded
that Congress did not intend Section 8(d) to apply in
this situation. We disagree.
Facts i
General Marine Transportation Corp. (hereinafter
General), was a member of the Marine Towing and
Transportation Employers' Association (herein Asso-
ciation), and a party to the collective-bargaining
agreement which the Association executed with
United Marine Division Local 333 (herein Union) on
April 1, 1973. The expiration date of the contract was
March 31, 1976.
Section 14(d) of the contract provided that, if any
employer subject to the agreement was 30 days
delinquent in making payments to an insurance,
pension, and health and welfare fund, the Union
could terminate the contract as to that employer.
Between late 1974 or early 1975 and July 1975,
General became delinquent in the fund payments by
an amount in excess of $44,000. Receiving no
response to its letter to General of July 3, the Union
by letter dated August 6 informed General that it
was invoking the provisions of Section 14(d) and
terminating the contract as of midnight August 10,
1975.2 On August 14, the Union circulated a notice
to its members informing them that the contract had
been terminated and they were not to work until a
contract was negotiated. They were also warned in
the letter that, if they did not support the Union's
I There is no controversy as to the facts . They are set forth in greater
detail in the Administrative Law Judge 's Decision.
228 NLRB No. 128
position, they faced reprisals; namely, the bringing of
charges which could result in the loss of union
membership and related rights and benefits. The
employees struck on August 18, 19, and 20, 1975.
With the beginning of the strike General sought
injunctive relief and the Federal district court
directed the parties to settle the dispute under the
terms of the contract. At the time of the hearing
herein an arbitration proceeding was pending.
Discussion
The single issue presented is whether the Union
could lawfully apply the terms of a contract
permitting its termination and then engage in a strike
in support of negotiations for a new contract without
complying with the strike deferral requirements of
Section 8(d) of the Act.
In relevant part Section 8(d) states:
Provided, That where there is in effect a collective-
bargaining contract covering employees in an
industry affecting commerce, the duty to bargain
collectively shall also mean that no party to such
contract shall terminate or modify such contract,
unless the party desiring such termination or
modification-
(1) serves a written notice upon the other party
to the contract of the proposed termination or
modification sixty days prior to the expiration
date thereof, or in the event such contract
contains no expiration date, sixty days prior to
the time it is proposed to make such termination
or modification;
(2) offers to meet and confer with the other
party for the purpose of negotiating a new
contract or a contract containing the proposed
modifications;
(3) notifies the Federal Mediation and Concili-
ation Service within thirty days after such notice
of the existence of a dispute, and simultaneously
therewith notifies any State or Territorial agency
established to mediate and conciliate disputes
within the State or Territory where the dispute
occurred, provided no agreement has been
reached by that time; and
(4) continues in full force and effect, without
resorting to strike or lockout, all the terms and
conditions of the existing contract for a period of
sixty days after such notice is given or until the
expiration date of such contract, whichever
occurs later:... .
The Union admits that, except for its letter of August
6, it at no time gave the Company notice of contract
2 On August 8, General paid the full amount due the fund.
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
termination, and that it has not given any notice of
the dispute to either the Federal or state mediation
services. As found by the Administrative Law judge,
there is no question but that the language of Section
8(d) is broad enough to embrace the factual situation
presented. As he stated: "Certainly, the Union
`terminated' a currently effective collective-bargain-
ing agreement without giving the Employer the 60-
day notice, and failed within 30 days after the notice
it did give to give the required notice to the state and
Federal services." As noted above, however, we
disagree with his conclusion that Congress did not
intend to apply Section 8(d) to this type of situation.
The parties here were in the position of having to
negotiate a new collective-bargaining agreement
following the Respondent's contractually permitted
notice to the Employer that the previous contract
was terminated effective August 10, 1975. As the
Supreme Court stated in Mastro Plastics v. N.L.R.B.,
350 U.S. 270, 287-288 (1956), Congress in enacting
Section 8(d) clearly sought to prevent the use of
"quickie strikes" during periods of such negotiations
in order to gain economic advantage. The Supreme
Court noted that Senator Ball, the manager for the
1947 Amendments in the Senate and one of the
conferees on the bill, stated:
"The provision in the National Labor Relations
Act defining collective bargaining, and providing
that where a contract between a union and an
employer is in existence , fulfilling the obligation
on both sides to protect [bargain] collectively
means giving at least 60 days' notice of the
termination of the contract, or of the desire for
any change in it, is another provision aimed
primarily at protecting the public, as well as the
employee, who have been the victims of `quickie'
strikes. I do not think that is taking away any
rights of labor . . . it is simply saying that they
should all follow the sound, fair, and sane
procedure which a majority of the good ones now
follow." 93 Cong. Rec. 5014. [Mastro Plastics v.
N. L. R. B., supra at 288.]
The Court therein recognized a dual purpose of the
Taft-Hartley Act: to substitute collective bargaining
for economic warfare and to protect the right of
employees to engage in concerted activities for their
own benefit.
' Member Jenkins mdic'tes that he agrees with the Administrative Law
Judge that if Sec 8(d) applies in this situation the Union will be left without
a meaningful remedy for Employer breach of the contract We cannot agree.
The right to terminate , even with the 8(d) notice requirements, is a
meaningful remedy It gives the Union the right to negotiate for a more
favorable agreement at a time when , but for the breach and termination of
the contract , no such right would exist Further, the Union can, if it wishes,
insist through all of the various means available to the parties to the
collective-bargaining agreement that the agreement be complied with
In this case the parties, by including in their
contract Section 14(d), established a procedure
permitting the Union to terminate the contract
without notice if General became delinquent in
making payments to the fund. The lack of contrac-
tual notice requirements for such "mid-term" termi-
nation cannot operate, however, as a license to the
parties to ignore the statutory notice requirements
relating to the institution of economic sanctions in
support of new bargaining proposals. In N.L.R.B. v.
Lion Oil Company, 352 U.S. 282 (1957), the Supreme
Court found that the congressional intent was that
parties not be able to avoid the notice requirements
of Section 8(d) although they could agree to have
notice provisions for longer periods. Thus, the
Supreme Court stated, "One thing the most authori-
tative gloss on § 8(d), the report of the Senate
Committee, makes clear is that the statutory notice
requirement operates wholly independently of what-
ever notice requirement the parties have fixed for
themselves." Id. at 292-293.
More recently the Board in Carpenters District
Council of Denver and Vicinity, AFL-CIO, et al.
(Rocky Mountain Prestress, Inc.), 172 NLRB 793
(1968), dealt at length with the application of Section
8(d) where the contract by its own terms had expired.
The Board, after an extensive discussion of the
legislative history, concluded that the mere fact that
a collective-bargaining agreement has terminated by
the operation of its terms at the time a strike or
lockout begins does not excuse the parties' failure to
have conformed such action to the notice and
waiting provision of Section 8(d). Rather, Section
8(d)(4) requires them to maintain their contracts in
full force and effect beyond the "expiration date" if
that is necessary to achieve compliance with the 60-
day notice provision. The fact that the "expiration
day" here is determined by one of the parties, as a
result of the breach of the contract by the other,
makes this reasoning no less applicable. The strike
deferral requirements of Section 8(d) must be
complied with.3 Consequently, we find that the
Union violated Section 8(d) of the Act by striking
within 60 days of giving notices of termination4 and
by failing to give notice, as is required by Section
8(d)(3), to the mediation and conciliation services.
Having concluded that the Union violated Section
8(d) of the Act by taking its members out on strike in
Member Jenkins suggests that we are precluding strike action for 60 days
should the employer refuse to pay "more than half the agreed upon wages."
In doing so he misperceives the nature of our decision herein . Our holding
has no bearing on the Union's right to strike to protest a unilateral change of
that nature . The only prohibition is against striking in order to obtain a new
agreement before the provisions of Sec . 8(d) have been complied with.
4 See Local 742, International Union of Electrical, Radio and Machine
Workers, AFL-CIO (Randall Bearings, Inc), 213 NLRB 824 (1974).
UNITED MARINE DIVISION LOCAL 333 1109
order to encourage General to negotiate a new
contract, we conclude that the Union also violated
Section 8(b)(3) of the Act.5
Respondent threatened members with charges and
withdrawal of membership if they did not support
the Union in its position on the strike. Thus, the
Union sought to compel employees to strike under
threat of disciplinary action if they failed to do so.
Since the strike was called in violation of the
provisions of Section 8(d) of the Act, the threats of
discipline for failure to support the strike violated
Section 8(b)(1)(A) of the Act. Local Union No. 153,
International Brotherhood of Electrical Workers,
AFL-CIO (Belleville Electric & Heating, Inc.), 221
NLRB 418 (1975); Warehouse Union Local 6,
International Longshoremen's and Warehousemen's
Union (Associated Food Stores, Inc.), 210 NLRB 666,
670 (1974); Carpenters and Joiners of America, Local
1620 (David M. Fisher Construction Company), 208
NLRB 94 (1974); Charles, Rutherford, President,
Local No. 18, International Union of Operating
Engineers, AFL-CIO (B. D. Morgan & Company),
Inc., and Mecco, Inc., 205 NLRB 487 (1973),
enforcement denied in material part 503 F.2d 780
(C.A. 6). See also Communications Workers of
America, AFL-CIO, Local 1127 (New York Telephone
Company), 208 NLRB 258, 262 (1974), and Communi-
cations Workers of America, AFL-CIO, Local 1170
(Rochester Telephone Corporation), 194 NLRB 872,
873 (1972).
The Remedy
Having found that the Union has engaged in unfair
labor practices within the meaning of Section 8(d),
(b)(3), and (b)(1)(A) of the Act, we shall order it to
cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the
Act as set forth in the Order below.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
United Marine Division, Local 338, New York, New
York, its officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with General
Marine Transportation Corp., concerning the termi-
nation or modification of a collective-bargaining
agreement with said Company by failing to continue
in full force and effect, without resorting to strike, all
the terms and conditions of said collective-bargain-
ing agreement for a period of 60 days from the date
the Union gave notice of termination of said
agreement, or until the expiration date of said
agreement, which ever occurs later, as provided by
Section 8(d)(4) of the Act, and by failing, within 30
days after such notice, to notify the Federal Media-
tion and Conciliation Service and any appropriate
State or territorial mediation or conciliation agency
as provided by Section 8(d)(3) of the Act.
(b) Engaging in, calling, or causing the employees
of General Marine Transportation Corp. to engage in
a strike without first having complied with the
requirements of Section 8(d) of the Act.
(c) Restraining or coercing employees in the
exercise of their rights guaranteed in Section 7 of the
Act by threatening to bring charges against employ-
ees and threatening to revoke union membership
from employees if they do not support a strike called
in violation of the provisions of Section 8(d)(3) and
(4) of the Act, and in any like or related manner
restraining or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the Act:
(a) Post at their business offices copies of the
attached notice marked "Appendix." 6 Copies of said
notice, on forms provided by the Regional Director
for Region 2, after being duly signed by the
Respondent's representative, shall be posted by
Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereaf-
ter, in conspicuous places, including all places where
notices to members are customarily posted. Reason-
able steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered
by any other material.
(b) Furnish to the Regional Director for Region 2
signed copies of said notice for posting by General
Marine Transportation Corp., if the Company is
willing, in places where notices to employees are
customarily posted.
(c) Notify the Regional Director for Region 2, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
MEMBER JENKINS, concurring in part and dissenting
in part:
The Employer fell more than $44,000 behind in its
payments due to Respondent Union's pension and
welfare fund. The collective-bargaining agreement
permitted the Union to terminate it upon such
default, the Union did so, and its members thereafter
stopped working, pursuant to instructions of Respon-
5 Id. at 826; Carpenters District Council of Denver, supra at 795. of the National Labor Relations Board" shall read "Posted Pursuant to a
6 In the event that this Order is enforced by a Judgment of a United Judgment of the United States Court of Appeals Enforcing an Order of the
States Court of Appeals, the words in the notice reading "Posted by Order National Labor Relations Board."
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dent. My colleagues assert that in such case Respon-
dent is required to give the 60-day notice of
termination of the contract, as provided in Section
8(d) of the Act, before striking.
I disagree with this principle, for the reasons stated
by the Administrative Law Judge. Section 8(d) was
intended to prevent "quickie" or heat-of-temper
strikes at the end of a contract term, when negotia-
tions for a new contract would normally be imminent
or under way. The notice requirement was not
intended to be imposed in cases where the union
refuses to work because of a substantial breach of the
contract by the employer. Indeed, in such case it is
more accurate to say that the employer "terminates"
the contract within the meaning of Section 8(d) than
to say that the union's formal termination notice did
so. If an employer refuses to pay more than half the
agreed-upon wages, must the employees continue
working for 60 days at half pay? My colleagues seem
to think so. I do not think Section 8(d) requires this.
The majority's view that the Union may lawfully
strike against the very large default in payment here,
but not to obtain revised contract terms, is unwork-
able and practically meaningless . In such circum-
stances, the Union is entitled to obtain changes in the
contract which will protect it against, or offset
recurrence of the default. And their reliance on
Rocky Mountain Prestress Inc., is misplaced, because
that case involved a normal contract expiration, not
termination because of a grave default in payments.
However, there are other facts here which cause me
to conclude my colleagues have reached the correct
result. Respondent, in ending the contract by a
notice of August 6, specified a termination date of
midnight August 10. The Employer on August 8 paid
the full amount due and so advised the Respondent.
Thus the default was cured within the "grace period"
apparently accorded the Employer. The Respon-
dent's strike thereafter was thus unrelated to the
arrears and instead was for the purpose of replacing
the old contract with a new one. Such contract
termination and strike I think does fall within both
the purpose and the terms of Section 8(d), and I
therefore concur in finding the violation.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found,
after a hearing, that we violated Federal law, we
hereby notify employees of General Marine Trans-
portation Corp., and our members that:
WE WILL NOT refuse to bargain collectively with
General Marine Transportation Corp., concern-
ing the termination or modification of a collec-
tive-bargaining agreement with said Company by
failing to continue in full force and effect, without
resorting to strike, all the terms and conditions of
said collective-bargaining agreement for a period
of 60 days from the date we gave notice of
termination of said agreement, or until the
expiration date of said agreement, whichever
occurs later as provided by Section 8(d)(4) of the
Act, and by failing, within 30 days after such
notice, to notify the Federal Mediation and
Conciliation Service and any appropriate state or
territorial mediation or conciliation agency as
provided by Section 8(d)(3) of the Act.
WE WILL NOT engage in, call, or cause the
employees of General Marine Transportation
Corp., to engage in a strike without first having
complied with the provisions of Section 8(d) of
the Act.
WE WILL NOT restrain or coerce employees in
the exercise of their rights guaranteed in Section 7
of the Act by threatening to bring charges against
employees and threatening to revoke union
membership from employees if they do not
support a strike called in violation of the
provisions of Section 8(d)(3) and (4) of the Act,
and WE WILL NOT in any like or related manner
restrain or coerce our employees in the exercise of
the rights guaranteed them by Section 7 of the
Act.
UNITED MARINE
DIVISION , LocAL 338
DECISION
STATEMENT OF THE CASE
JOSEPH I . NACHMAN, Administrative Law Judge: This
proceeding , heard before me at New York, New York, on
UNITED MARINE DIVISION LOCAL 333
March 17, 1976, with all parties present and duly
represented, involves a complaint,' pursuant to Section
10(b) of the National Labor Relations Act, as amended
(herein Act), which alleges2 that United Marine Division
Local 333 (herein Respondent or Union), refused to
bargain with General Marine Transportation Corp. (herein
Company or General), and otherwise restrained and
coerced employees in the exercise of rights guaranteed
them by Section 7 of the Act, in that the Union terminated
an existing contract with General, and engaged in a strike
against General, without complying with the provisions of
Section 8(d) of the Act. By answer, Respondent admitted
virtually all allegations of the complaint, but denied the
commission of any unfair labor practice. For reasons
hereafter more fully stated, I recommend that the com-
plaint be dismissed in its entirety.
At the hearing all parties were permitted to introduce
relevant and material evidence, to examine and cross-
examine witnesses, and to argue orally on the record. Oral
argument by the respective parties and by the amicus is
included in the transcript. Briefs submitted by the parties
and by the amicus have been duly considered. Upon the
pleadings, stipulations of counsel, the evidence, including
my observation of the demeanor of the witnesses while
testifying, I make the following:
FINDINGS OF FACTS
For a number of years a collective-bargaining relation-
ship has existed between the Union and Marine Towing
and Transportation Employer's Association (herein Asso-
ciation), of which General is a member. The contract
recites that General is one of the employers on whose
behalf the contract is executed. The last such contract was
executed April 1, 1973, and has an expiration date of
March 31, 1976. The contract requires the employers to
make certain deductions from the wages of the employees,
to add certain contributions of their own, and to remit the
total each month to an insurance, pension, and health and
welfare fund which is jointly administered by the Union
and the employers. Section 14(d) of the contract makes
provision regarding the rights of the Union in the event of
default by an employer in the payment of the required
moneys. The provision, to the extent here material, reads as
follows:
(d) Delinquent Employer. If an employer is delin-
quent for thirty (30) days in the payment of the
contributions required of it under paragraphs "a"
and/or "b" of this Section 14, the Union may terminate
this Agreement, as to the delinquent Employer, by
mailing such Employer a notice as to that effect by
certified mail, which notice shall specify the date as of
which the contract shall be so terminated. If such
delinquency occurs, irrespective of the Union's action
I Issued November 5, on a charge filed August 21, and amended October
29 These and all dates hereafter mentioned are 1975, unless otherwise
stated
2 At the hearing, General Counsel's unopposed motion to amend the
complaint by rephrasing par. 9, and renumbering it as par. 9(a), and adding
a new paragraph designated 9(b), was granted . The amendment , made to
enable Respondent to admit certain facts, is set forth in the transcript.
3 No issue concerning commerce or labor organization is presented. The
under the preceding sentence, the Trustees may require
the payment of interest on the amount that is
delinquent at the rate of 6% per annum computed from
the date on which the contribution should have been
paid hereunder, and if the trustees incur legal expense
in enforcing of such delinquent amount, the trustees
shall also be entitled to recover their reasonable counsel
fees and other expense incurred in effecting collection.
The contract also contains provisions relating to strikes
and lockouts, in the following language:
Section 7. Stoppage of work
The Union, in its own behalf and in behalf of the
Employees , agrees that during 'the life of this Agree-
ment, as well as during the pendency of any proceed-
ings before the Adjustment Committee or Board of
Arbitration as provided for in Article II, or during any
period of Negotiations for a new agreement or for the
modification or renewal of this Agreement, there shall
be no strikes, `sit-downs,' sympathy strikes or stoppage,
picketing or cessation of work by the Union or the
Employees and to that end the Union and the
Employees agree not to stop, hinder or restrain, nor to
instigate or encourage any other person to stop, hinder
or restrain the Employers' vessels in any manner from
carrying on the Employer's business, and Employees
who do not abide by the provisions of this Section may
be discharged by the Employers. Upon the violation of
this Section by the Union or any of the Employees, this
Agreement may be terminated with respect to any by
all or any of the Employers.
Section 8. Lockouts
The Employers agree that during the life of this
Agreement or during any period of Negotiations for a
new agreement, or for the modification or renewal of
this Agreement, there shall be no lockout of the
Employees and, upon violation of this provision by the
Employers, this Agreement may be terminated by the
Union. However, the prohibition against lockouts
contained herein shall not be construed to prevent the
Employers or any one of them from laying up any
vessels, or discontinuing their operations and laying off
their crews (Employees), in whole or in part at any time
when for business reasons the Employers deem it
advisable to do so.
Sometime in late 1974 or early 1975, General became
delinquent in payment of contributions as required by the
contract. By July, this delinquency reached an amount in
excess of $44,000.4 Accordingly, by letter dated July 3,
counsel for the Union wrote General, calling attention to
complaint alleges and the answer admits facts which establish those
elements. I find those facts to be as pleaded . The issue presented by this
record is one of law, there being no dispute as to the facts . Indeed,
Respondent admits virtually all of the allegations of the complaint , denying
only the conclusion that its conduct violated the Act.
4 Whether any payments on account were made during the period
mentioned, the record does not show.
1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the delinquency and stated that despite repeated demands
General had failed to pay the same ; and that unless
payment was made immediately, the Union would have no
alternative except to institute legal proceedings , including
seizure of its vessels , in order to recover the amounts due
with interest, costs, and attorneys' fees. Admittedly,
General received this letter.
By letter dated August 6, the Union, having received no
response to the July 3 demand for payment, wrote General
that because of its continued failure to make the required
contributions to the fund, and pursuant to Section 14(d) of
the contract:
The Union hereby advises you that your collective-
bargaining agreement shall be terminated effective
midnight August 10, 1975.
Upon receipt of the Union' s letter of August 6, General on
August 8, paid the full amount then due the fund, and on
August 13, sent the following letter to Joseph O'Hare,
president of Respondent:
I am in receipt of your letter concerning the Local
333 Agreement with General Marine Transport Corp.
The payments to which you refer were made, and I
hereby advise you that the collective bargaining
agreement remains in effect.
On August 14, the Union circulated among its members
employed by General,5 which in pertinent part, reads:
On August 6, 1975, this Union terminated its
contract with Berman effective midnight , August 10,
1975, for the reason that Berman had not paid the
pension and insurance funds after December 1974.
r s * *
Having terminated the contract , we are now instruct-
ing our membership not to work for Berman until a
valid contract is negotiated with the Union.
Under the circumstances, we except that every
member of this union working for Berman will support
the union in its position of No Contract, No Work. We
advise every member that failure to support the union
may result in charges preferred against him which can
mean the loss of union membership and rights and
benefits connected with it.
5 Actually the notice was addressed "To all employees of Berman,"
which is another name under which General operates.
6 The theory of the complaint is not disclosed by this record.
I Counsel stated at the hearing that the United States Court of Appeals
for the Second Circuit affirmed the district court's order, but no citation was
provided.
To the extent here material , Sec. 8(d) provides:
Provided That where there is in effect a collective -bargaining contract
covering employees in an industry affecting commerce , the duty to
bargain collectively shall also mean that no party to such contract shall
terminate or modify such contract, unless the party desiring such
termination or modification-
(I) serves a written notice upon the other party to the contract of the
proposed termination or modification sixty days prior to the expiration
date thereof, or in the event such contract contains no expiration date,
We expect every decent person, whether a member
of this Union or not, to give support.
The complaint alleges and the answer admits that on
August 18, 19, and 20 , the Union engaged in a strike and
work stoppage at General. With the advent of the strike,
General instituted an action in the Federal district court to
enjoin the strikes The court directed that the parties settle
their dispute under article II of the contract which deals
with adjustment of grievances and arbitration of disputes,
and enjoined the strike pending the arbitration proceed-
ings . 7 When the hearing herein concluded , the parties were
preparing to commence the arbitration proceeding, but the
results thereof have not been made known to me, nor has
any stipulation for the record been tendered. Presumably,
pending the arbitration proceeding , both sides are comply-
ing with their respective obligations under the contract.
The Union admits that, except for its August 6 letter, it at
no time gave the Company notice of contract termination,
and that it has not given any notice of the dispute to either
the Federal or state mediation service.
Contentions and Conclusions
The General Counsel and the Charging Employer,
reading Section 8(d) of the Acts literally, argue that the
Union terminated an existing contract without complying
with the notice provisions of Section 8(d) of the Act, and
without maintaining the then existing contract in effect for
the period specified in the Act.
Respondent, on the other hand, argues that Section 8(d)
of the Act has no application and that Congress never
intended it to apply to a situation where , as here, the
Union cancels a contract , not because it seeks new or
different contract terms, but because the Employer is
failing to comply with its obligations under that agreement.
The issue thus raised is the scope of Section 8(d) of the Act.
There can be no question but that the language of
Section 8(d) is sufficiently broad to embrace the factual
situation presented by this record. Certainly, the Union
"terminated" a currently effective collective-bargaining
agreement without giving the Employer the 60-day notice,
and failed within 30 days after the notice it did give, to give
the required notice to the state and Federal services.
However, it is a "familiar rule that a thing may be within
the letter of the statute and yet not be within the statute,
because it's not within its spirit nor within the intention of
its makers." Church of the Holy Trinity v. United States, 143
sixty days prior to the time it is proposed to make such termination or
modification;
(2) offers to meet and confer with the other party for the purpose of
negotiating a new contract or a contract containing the proposed
modifications;
(3) notifies the Federal Mediation and Conciliation Service within
thirty days after such notice of the existence of a dispute, and
simultaneously therewith notifies any State or Territorial agency
established to mediate and conciliate disputes within the State or
Territory where the dispute occurred , provided no agreement has been
reached by that time; and
(4) continues in full force and effect without resorting to strike or
lockout , all the terms and conditions of the existing contract for a
period of sixty days after such notice is given or until the expiration
date of such contract , whichever occurs later:... .
UNITED MARINE DIVISION LOCAL 333 1113
U.S. 457, 459 (1892). Or, as Judge Learned Hand stated the
principle in a somewhat similar context , "[statutes] should
be construed , not as theorems of Euclid , but with some
imagination of the purposes which lie behind them"
(Lehigh Valley Coal Co. v. Yensavage, 218 F. 547, 553 (C.A.
2, 1914).
The position which the General Counsel takes in this
case if carried to its logical conclusion, means that if a
collective-bargaining agreement provided for a wage rate
$5 an hour, and the employer in mid-term unilaterally
decided to pay his employees at the rate of $3 an hour, the
union would be powerless to terminate the contract
without first complying with the notice provisions of
Section 8(d), and until such compliance the employees
would be deprived of 40 percent of the wages lawfully due
them under their contract .9 Plainly, such a result should be
avoided, unless legislative history clearly demonstrates that
such was in fact the intent of Congress.
Neither the General Counsel nor the Charging Party
have referred in their briefs to any portion of the legislative
history from which it would appear that Congress meant
for Section 8(d) to apply to a factual situation such as is
presented here, and my own examination of that history
fails to reveal such an intent on the part of the Congress.
Indeed, there is not the slightest hint or suggestion that
Congress gave any consideration to the idea that a union's
right to invoke ordinary remedies accruing to it from a
breach of a contract, should in anyway be limited. What
the legislative history shows-and all that it shows-is that
Congress was concerned with preventing the situation,
which it regarded as all too prevalent, where the parties
would bargain to the last day a contract was effective, and
the next day either the union struck, or the employer
9 When , in the course of oral argument , I put this question to the General
Counsel , he declined to answer, conceding that my question presented a
much weaker case , but one on which he did not have to take a position. He
also contended that the employees would not be without remedy because
they, could sue for the wages due under the contract that remained unpaid.
Aside from the problems this might present with respect to multiplicity of
suits, and in light of the present crowded dockets of the courts, what this
means is that perhaps at some distant day, after a long delay, the employees
will obtain ajudgment which , at that point may or may not be collectible. If
the rights accruing to employees from a collective -bargaining agreement are
to be thus limited the benefits supposedly inuring to employees from such an
agreement are truly "only a promise to the ear to be broken to the hope, a
teasing illusion like a munificent bequest in a pauper's will" (Per Mr . Justice
Jackson concurring in Edwards v. California, 314 U.S 160, 186 (1941)
locked out, with the resultant tie-up of the establishment.
Congress felt such "quickie" strikes or lock-outs could be
prevented by requiring the 60 day notice to the other party,
and the 30 day notice to the conciliation services, and that
in the interim requiring the parties to keep all the terms of
the contract in effect , without resorting to a strike or a
lockout.10 By these rules, Congress felt, it would allow time
for tempers to cool, with the probability that a new
agreement would be reached, and in the interim the free
flow of commerce would be maintained.
Accordingly, and for the reasons stated, it follows that
the General Counsel has failed to prove by a preponder-
ance of the evidence that the Union has violated the Act as
alleged in the complaint, and that said complaint should be
dismissed in its entirety . I so find and conclude.
Upon the foregoing findings of fact and the entire record
in the case, I state the following:
CONCLUSIONS OF LAW
1. General is an employer within the meaning of
Section 2(2) of the Act, and is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. Respondent Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. The General Counsel has failed to establish by a
preponderance of the evidence that Respondent Union has
violated Section 8(b)(1)(A) or Section 8(bX3) of the Act as
alleged in the complaint, and the same should be
dismissed.
[Recommended Order for dismissal omitted from publi-
cation.]
10 The suggestion in the briefs of both the General Counsel and the
Charging Party, that in the instant case the Union could lawfully strike to
enforce its contract, but could not terminate the contract without complying
with Sec. 8(d), seems contrary to the provisions of the statute, which requires
that until the notice period has run, the parties must continue the contract in
effect without resorting to strikes or lockouts Only by concluding that Sec
8(d) does not apply to the facts of the instant case would it be permissible to
conclude that the Union could lawfully strike . In any event the complaint
herein alleges that the Union violated Sec 8(b)(1)(A) and (3) by engaging in
a strike and work stoppage against General without complying with Sec.
8(d).