Anchorage Laundry & Dry Cleaning Association, Inc.

National Labor Relations Board - Board Decisions

Jan 10, 1975

216 N.L.R.B. 114 (N.L.R.B. 1975)

114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Anchorage Laundry & Dry Cleaning Association, Inc.
and Local 333, Laundry and Dry Cleaning
International Union , AFL-CIO. Case 19-CA-6884
January 10, 1975
DECISION AND ORDER
BY ACTING CHAIRMAN FANNING AND
MEMBERS KENNEDY AND PENELLO
On July 15, 1974, Administrative Law Judge David
G. Heilbrun issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting 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 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.
Respondent excepts to the Administrative Law
Judge's findings that Respondent's refusal to bargain
respecting changes in its collective-bargaining agree-
ment with the Union was in violation of Section
8(a)(5) and (1) of the Act. We find merit in these
exceptions.
Respondent, an association made up of employers
in the drycleaning business, was party to a collective-
bargaining agreement with the Union effective from
May 8, 1971, until February 1, 1974. Under this
agreement, any party desiring to negotiate changes or
modifications, or to terminate the agreement, was to
notify the other party 60 days prior to the expiration
date of the agreement. If such notice was not given,
the agreement was to continue in effect from year to
year.
On Friday, November 30, the Union's business
agent, Chambers, sent a registered letter to Respon-
dent's president, Harris, notifying the latter that the
Union was desirous of meeting with representatives
of Respondent prior to February 1, 1974, for the
purpose of "amending, supplementing, and/or modi-
fying" the existing agreement. Harris received this
letter on December 3, 1974, and caused copies of it to
be sent to each employer-member of Respondent.
Between November 30, 1974, and January 10,
1974, Chambers also advised Crawford, the general
manager of Harris' drycleaning establishment, and a
participant in the 1971 negotiations, that the Union
would be receiving contract proposals from its
International, and that it would furnish the same to
I I9ONLRB651 (1971)
2 182 NLRB 819 (1970).
Respondent upon receipt. On January 7, 1974,
Chambers received the contract proposals and on
January 10, 1974, delivered copies to Crawford who
in turn caused their distribution to all employer-
members of Respondent.
After Harris and Respondent's secretary-treasurer,
Imada, perused their copies of the proposals around
January 15, 1974, Imada contacted Attorney John-
stone about representing the association in negotia-
tions as he had in 1971, and set up a meeting with
Johnstone for January 22 in order to provide for a
"consent to agency."
On January 17, 1974, Johnstone informed Cham-
bers by letter that he had received Chambers' letter
to Harris and the contract proposals, and that he was
not sure of the number of employers he would be
representing in the forthcoming negotiations.
When Johnstone met with the members of the
Association on January 22, 1974, he advised them
that the Union's notice to the Association was not
given 60 days prior to the termination date of the
agreement and, in his opinion, was not timely for the
purpose of forestalling automatic renewal of the
agreement. The Association members then adopted
this advice as their formal position.
On January 24, 1974, a meeting was held between
the Association and the Union, at which time
Johnstone informed the Union of the Association's
position as to the notice. Since then, Respondent has
declined to negotiate further with the Union, and its
members have continued to apply the 1971-74
agreement.
First, we find that the notice itself was not timely
given to Respondent, not having been received by
Respondent until December 3, 1973, less than 60
days from the expiration date of the contract. This
late delivery was not due to factors beyond the
control of the Union, as the evidence shows that
Chambers mailed the notice on November 30, fully
anticipating its delivery on Monday, December 3.
However, despite the late receipt of notice, Res-
pondent, by its action, could have waived the notice
requirement, and agreed to bargain with the Union.
This was found to have been done by the Adminis-
trative Law Judge, with whom we disagree.
In finding that Respondent's actions had fore-
stalled the automatic renewal of the 1971-74 con-
tract, the Administrative Law Judge rejected Res-
pondent's contention that Sawyer Stores, Inc.,' is
controlling, and found that General Maintenance
Service Co., Inc.,2 was more analogous to the instant
case . We disagree, as we believe the facts as
presented in this case are more closely analogous to
Sawyer Stores.
216 NLRB No. 22
ANCHORAGE LAUNDRY & DRY CLEANING
In General Maintenance, the union mailed the
notice on a date when it could reasonably believe the
notice would be timely, and it was delayed by the
post office in circumstances not attributable to the
sender. Further, the union had notified General
Maintenance that the notice was in the mail the day
after it had deposited it. Moreover , the respondent
therein never notified the union after the receipt of
the notice that it considered the contract automati-
cally renewed, but rather raised no objection to the
delayed delivery until it utilized that argument as a
defense at the Board hearing on its alleged refusal to
bargain. Under those circumstances, the Board
found that the notice requirement had been waived.
In Sawyer Stores, the union's notice was received a
number of hours late for the 60-day notice specified
in the contract. There respondent was aware of the
untimeliness of the notice and, after agreeing to meet
with the union upon request , sought advice from the
Board ' s Regional Office concerning its obligation to
bargain. Although it did not receive an answer from
the Regional Office until after it first met with the
union , and it did discuss some of the union's
proposals with the union representatives, it also
advised the union at this meeting that it did not
consider the notice timely, and suggested that this
issue be resolved by the Board or the union's
International . After receiving the Board 's response,
respondent refused the union's requests for further
meetings. Under those circumstances , the Board
found that respondent did not waive the 60-day
notice requirement, and did not unlawfully refuse to
meet to bargain with the union over a new contract.
We find the factual situation in the instant case to
be more analogous to that in Sawyer Stores.
Although Respondent herein did not advise the
Union that its notice was untimely either at the time
of its receipt or following receipt of the Union's
contract proposals, and Johnstone arranged a negoti-
ating meeting with the Union, it did advise the
Union of its position concerning the untimeliness of
the notice at their first and only meeting. Under
these circumstances, we do not believe that Respon-
dent's actions constituted a waiver of the 60-day
notice requirement . Since the notice was untimely,
the contract was automatically renewed on February
I, 1974. Therefore, Respondent was under no
obligation to bargain concerning changes in that
contract.
Accordingly, as we have found Respondent did not
unlawfully refuse to bargain, we will order that the
complaint herein be dismissed in its entirety.
ORDER
115
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby orders that the complaint
herein be , and it hereby is, dismissed in its entirety.
DECISION
STATEMENT OF THE CASE
DAVID G. HEILBRUN , Administrative Law Judge: This
case was heard at Anchorage, Alaska, on April 25, 1974,
based on a charge filed January 31, 1974, and a complaint
issued April 3, 1974, alleging that Anchorage Laundry &
Dry Cleaning Association , Inc., called Respondent , violat-
ed Section 8(a)(1) and (5) of the National Labor Relations
Act, as amended by refusing to bargain with Local 333,
Laundry andDryCleaning International Union, AFL-CIO,
called the Union. The issue is whether a collective-
bargaining agreement between the parties was renewed for
an extended term as, if so, no obligation to bargain existed
while , if not, Respondent has intentionally refused to
bargain based on an erroneous legal position.
Upon the entire record in this case , including my
observation of the witnesses , and upon consideration of
briefs filed by the Umon and Respondent , I make the
following-
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT AND THE LABOR
ORGANIZATION INVOLVED
Respondent , a corporation , is an association of employ-
ers operating retail laundry and drycleaning businesses in
and around Anchorage , Alaska. Respondent was formed
and exists for a purpose of representing its employer
members in matters of collective bargaining and whose
employer members , in the aggregate , annually derive gross
revenue in excess of $500 ,000 and annually purchase goods
valued in excess of $25,000 which originate outside the
State of Alaska. I find , as Respondent admits, that it 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
Facts and Discussion
On May 8, 1971, a collective- bargaining agreement was
made and entered into between the Union and Respon-
dent . Then , as now, Respondent comprised six employers
including Alaska Cleaners, Inc., and Snow White Laundry
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
& Cleaners, Inc. Frank W. Harris is coowner of Alaska
Cleaners ; Yukio Imada is coowner of Snow White and
these individuals have at all times since at least May 1971
been president and secretary -treasurer of Respondent,
respectively. Each party was represented by an attorney
during negotiations leading to this contract ; Robert M.
Goldberg, for the Union and Karl S . Johnstone, for
Respondent . Article XXVIV (sic) reads:
TERM OF AGREEMENT
The agreement shall become effective as to all
changed provisions from date of signing, except wage
increases to existing classifications , which shall be
retroactive to February 1, 1971. This agreement shall
continue in full force and effect until February 1, 1974.
Either party desiring to negotiate changes in this
agreement shall give sixty (60) days written notice of
proposed changes prior to the expiration date of the
agreement . If no notice or modification , changes, or
termination is given sixty (60) days prior to the
expiration of this agreement , the same shall continue in
effect from year to year.
On November 30, 1973, Frances N. Chambers, business
agent and financial secretary -treasurer of the Union,
prepared and sent a registered letter addressed to Harris as
Respondent 's president . It read:
This is to advise you that due to the expiration on Feb.
1, 1974 of the contract between the Laundry & Dry
Cleaning Int'l Union Local # 333 and your association
members:
Alaska Cleaners, Inc.
Snow White Laundry & Cleaners, Inc.
Betty's City Laundry & Cleaners
One Hour Martenizing
Peacock Cleaners
Coles Cleaners
Local # 333 is desirous of meeting with representatives
of your Association prior to Feb. 1, 1974 for the
purpose of amending, supplementing , and / or modify-
ing this agreement so that a contract agreement can be
reached to supercede the existing agreement.
Harris received this letter December 3, 1973, caused copies
to be made and on December 4, 1973, sent one to each
employer member of Respondent . In the period between
November 30, 1973, and January 10, 1974, Chambers had
several conversations with Tim Crawford, general manager
of Alaska Cleaners , informing him the Union expected a
contract proposal from Russell Crowell, international
president , and assuring this would be furnished on receipt.
With covering letter dated January 7, 1974, Crowell
transmitted to Chambers a 31-page contract proposal that
included an index and appendix alluding only to wages as
..an hourly increase effective February 1, 1974." Chambers
duplicated this proposal and on January 10, 1974,
delivered copies to Crawford who in turn promptly caused
their distribution to all employer members.
Harris and Imada each perused their copies , mentally
deplored the breadth of proposed change, and conversed
on or about January 15, 1974 "[R]elative to having Mr.
Johnstone handle our negotiations ." Imada telephoned
Johnstone and a meeting was scheduled in the latter's
office for January 22, 1974. By letter dated January 17,
1974, Johnstone wrote Chambers to advise he was in
receipt of her letter to Harris together with the union
proposal and that the exact number of establishments he
would represent "in the forthcoming negotiations" was yet
unascertained.
A "consent to agency" was provided to, and executed by,
each employer member of Respondent before or during the
January 22 meeting at which Johnstone was, in fact,
retained. The preliminaries of fees and authorizations over,
Johnstone addressed himself to circumstances and ex-
pressed his conclusion that a count of calendar days
applied to the termination clause of the agreement made
the Union's notice untimely for purpose of forestalling
automatic renewal . The clients unanimously embraced this
advice , adopting it as their formal position to be presented
to the Union.
Johnstone and Chambers then arranged a meeting for
January 24, 1974, at the union office. Upon arriving, the
employer members of Respondent caucused briefly with
their attorney, reviewed their theory with him, and
proceeded to discuss it with the Union after Johnstone
exacted assent from Crowell that presence in such manner
by Respondent's collective self would not constitute any
form of waiver . Respondent has declined to negotiate
further and employer members have continued to apply
the 1971-74 contract since February 1, 1974.
Collateral to case chronology is the fact that Crawford
participated in "quite a few" of the negotiation sessions in
1971, that he first discussed the likelihood of a new
contract with Chambers in October 1973, that no meeting
of Respondent was held from 1971 until January 22, 1974,
that Respondent's officers guilelessly anticipated renewal
negotiations , that no claim of untimely notice was raised
by Respondent until January 24, 1974, and that during the
time prior to December 3, 1973, Harris harbored a vague
understanding that a proposed new contract was in
preparation.
General Counsel's theory of the case is expressly
confined to a waiver doctrine . The Union's theory
expressly advances dual assertions that notice was timely
to forestall contract renewal and Respondent 's conduct
constituted a commencement of bargaining from which it
could not withdraw. This disparity brings into question
whether decisional rationale may address such enlarged
theory of the Union, as Charging Party, which it advances
without General Counsel 's sanction. Standing of a Charg-
ing Party was discussed extensively in Spector Freight
System, Inc., 144 NLRB 1110 (1963). There the Board held
that "unreasonable limitations" on examination of witness-
es by the Charging Party were not prejudicial to its
substantial rights. Notably, the erroneous limitations
included those of rulings denying requests for examination
of witnesses on matters General Counsel refused to cover.
The Board concluded its disposition in the case would have
been unchanged even accepting as true matters the
Charging Party sought to adduce and based on extensive
participation otherwise enjoyed by Charging Party includ-
ing that of arguing "its position" and submitting a brief. In
Tulsa General Drivers, 176 NLRB 780 (1969), the charging
ANCHORAGE LAUNDRY & DRY CLEANING 117
party, an employer, advanced "a theory of complaint
greatly at variance from that of the General Counsel."1
The decision adopted by the Board expressed uncertainty
whether "the Charging Party has standing in a complaint
proceeding so drastically to alter the complaint theory of
the General Counsel," but proceeded to thoroughly discuss
such theory and find it without ment as a matter of fact
and law . In Parkwood IGA, et al., 201 NLRB 905 (1973), a
labor organization with limited interest as to which "no
significant issues of fact" existed sought remand of a
consolidated complaint proceeding. The peripheral in-
volvement of this labor organization was noted in denial of
the motion.
These cases show an inclination to accord fullest
standing to a Charging Party when the thrust of its view of
the case complements that of General Counsel or relates to
a key interest cognizable under the Act. Here the Union
initiated the claim of timely notice at the hearing,
Respondent acknowledged viability of the issue, circum-
stances bearing on the claim were fully litigated, and both
briefing parties addressed the subject. One of the core
rights ("bargain collectively") of Section 7 is at stake, and
trial of this case saw the responsibility of cross-examining
Respondent's witnesses yielded to the Charging Party.
Overall, a unique intimacy of interest arose in this case
between General Counsel and the Charging Party warrant-
ing recognition of the Union's standing to have its theory
of the complaint treated in fullest manner.
On the facts, I conclude Respondent has committed a
refusal to bargain . One of the causes is failure to appreciate
distinctions inherent in the Act's statutory scheme. This
first appears as Respondent's obsession with the provisions
of Section 8(d). The statutory notice pattern involved there
is to best assure fulfillment of collective-bargaining
agreements. Absent strike action, a labor organization's
conduct is not germane under Section 8(d) and such
written notice as may be the subject of dispute between
parties to a contract is not tested by the stringent
requirements of that section . The misconception manifests
specifically with reliance on Vapor Recovery Systems
Company.2 In that case the Board adopted a view of the
particular fact situation that warranted finding a labor
organization had forestalled contract renewal by timely
notice. Section 8(d) was superfluously footnoted without
connection up to actual grounds for decision. Refusal to
enforce the Board's order in Vapor Recovery does not affect
settled doctrine under which the Board has declined to
construe the notice requirements of Section 8(d)(1) to
apply to, or affect the automatic renewal provisions of, an
existing collective-bargaining agreement . Crowley's Milk
Company, Inc., 79 NLRB 602 (1948); International Harvest-
er Company, 77 NLRB 242 (1948).3 Cf. Proctor & Gamble
Independent Union v. Proctor & Gamble Mfg. Co., 312 F.2d
181, 188 (C.A. 2, 1962), cert. denied 374 U.S. 830 (1963). A
i In Tulsa, both General Counsel and the Charging Party urged further
grounds for an unfair labor practice finding. This facet is not to be confused
with the issue of the Charging Party unilaterally seeking enlargement of the
complaint 's main theoretical basis.
2 133 NLRB 580 ( 1961), enforcement denied 311 F.2d 782 (C.A. 9, 1962).
3 The court considered Vapor Recovery governed by Sec. 8(d) and
coupled the view with reasoning based on general concepts of contract law.
Although due weight is accorded the court 's decision, the Board subse-
second area in which issues touching on 60-day notice
appear is that of the contract-bar doctrine. Koenig
Brothers4 was such a case with the Board requiring strict
compliance by an employer seeking contract termination
as a prelude to its RM petition.
Neither concept suffices to judge whether, as here, a
renewal of contract has occurred. The most compelling
reason to say it has not is the actual manner of notice
within the context of contract language. Operative phra-
seology is found in the last three sentences of article
XXVIV's (XXIX) final paragraph. The first of these
sentences is a simple statement of contract duration. The
second is enabling language for a "written notice of
proposed changes" only. The third sentence requires a
reading out of the minor prepositional inadvertence "or"
rather than "of." Ordinarily this would hardly bear
mentioning, but that is the sole passage authorizing
automatic contract renewal and the actual, unreformed
language shows looseness of preparation and disharmony
with its preceding sentence in which no reference to the
contemplated "modification" or "termination" appears. In
this realm of pure contract notice, Respondent relies on
Sawyer Stores,5 a case construing the phrase "shall notify"
to mean that a communication intended to forestall
contract renewal must be actually received in a place
physically sufficient as constructive notification to the
other party. But General Maintenance, supra, a case holding
contract renewal was forestalled, dealt with the same verb
as found here ("is given"/"shall give") in concluding that
to set notice in motion suffices where such is actually
received with promptness, was expected, where no preju-
dice to the recepient was shown and after conduct
reflecting a waiver of defect was followed by mere
afterthought objections.
The conduct of Respondent's officers suggests the
applicable precedent for this decision is General Mainte-
nance, not Sawyer Stores. An awareness of the Union's
desire to negotiate changes was present and when notice
arrived it was distributed to employer members without
comments A permeating reconciliation to the commence-
ment of bargaining existed on the part of Respondent's
chief officers as they awaited the Union's new proposal.
This then reveals the parties own attitude on the question.
As February 1, 1974, is excluded from a count, the 60-day
period commenced as a calendar matter on December 3,
1973.7 Chambers never intended more than for notice to be
received that date. December 2, 1973, fell on a Sunday, a
day outside the normal business endeavors of Respon-
dent's employer members (Agreement art. XV, 1.; art.
XVII, 2.).
To uphold Johnstone's recommendation, as rendered,
would be tantamount to considering legal advice shapes
past events. The contrary is true as any advice formulated
must start with the significance of action or nonaction of
quently reiterated its position on this aspect of Sec. 8(d) in General
Maintenance Service Co, Inc, 182 NLRB 819, 822 (1970).
4 108 NLRB 304 (1954).
5 190 NLRB 651 (1971).
6 Vapor Recovery involved the express finding of "no evidence that at any
time prior to its letter . the Union put Respondent on notice that it
sought termination of the existing contract "
7 Carter Machine and Tool Co., 133 NLRB 247 (1961).
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the past. Buttressing this branch of the case is an
evaluation of Crawford's role. Determination of agency
relationship under the Act rests on apparent, not actual,
authority and past participation as a member of Respon-
dent's bargaining group coupled with unrepudiated func-
tioning as conduit for receipt of bargaining proposals
suffices to establish Crawford as Respondent's agent for
limited purposes applying to waiver. Cf. Local 304,
Laborers, 191 NLRB 764 (1971). Finally, the implication
found in wage patterns compounds Respondent's difficulty
in claiming a renewal has occurred. If so, the wage scale for
drycleaning employees (art. XI) would, by its express
terms, expire February 1, 1974, leaving a contractual
vacuum as to this important subject. Only rejection of
Respondent's defense can avoid the distortion of this
contract from the standpoint of bargaining history, its
particular language and telling conduct of the parties.
CONCLUSIONS OF LAW
1. All production and maintenance employees em-
ployed in and around Anchorage, Alaska, by members of
Respondent, but excluding office clerical employees,
guards and supervisors as defined in the Act, constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
2. At all times since May 8, 1971, the Union has been
exclusive representative of all employees in the unit
described above for the purposes of collective bargaining
with respect to rates of pay, wages, hours of employment,
and other conditions of employment.
3. Commencing on January 24, 1974, Respondent
engaged in a continuing refusal to bargain with the Union,
respecting proposed changes in the collective-bargaining
agreement that had existed between the parties until
expiration of its term on February 1, 1974, and through
such conduct committed unfair labor practices prohibited
by Section 8(a)(5) of the Act.
4. By the conduct described above, Respondent has
interfered with , restrained, and coerced its employees in
the exercise of the rights guaranteed in Section 7 of the Act
and has thereby engaged in unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found Respondent has engaged in certain unfair
labor practices violative of Section 8(a)(1) and (5) of the
Act, I shall recommend that it cease and desist therefrom
and take certain affirmative action designed to effectuate
the policies of the Act . My recommendation contemplates
commencement of negotiations upon request of the Union
and execution of a new contract incorporating any
agreement reached as a result of such negotiations . Noting
the retroactive economic features of the 1971-74 contract,
I recommend no further remedial aspects bearing on
negotiations or the relationship of the parties as the hiatus
accountable from this proceeding is best addressed in a
free bargaining process . A posting of notice will be
recommended and in the interest of fully informing
affected employees of their rights , I shall recommend
Respondent supply each of its employer members with
signed copies of the notice with a request for appropriate
posting.
[Recommended Order omitted from publication.]