Star-Dee Health Products, Inc.

National Labor Relations Board - Board Decisions

Apr 11, 1980

248 N.L.R.B. 1100 (N.L.R.B. 1980)

1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Stur-Dee Health Products, Inc. and Biorganic
Brands, Inc. and International Industrial Pro-
duction Employees Union, Petitioner. Case 29-
RC-4757
April 11, 1980
DECISION ON REVIEW AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
On December 7, 1979, the Regional Director for
Region 29 of the National Labor Relations Board
issued his Decision and Direction of Election in the
above-entitled proceeding in which he found that
the contract between the Joint Employer (herein
called the Employer) and the Intervenor' did not
constitute a bar to the petition filed herein. Ac-
cordingly, he ordered an election for all produc-
tion, maintenance, and shipping and receiving em-
ployees employed by the Employer. Thereafter, in
accordance with Section 102.67 of the National
Labor Relations Board Rules and Regulations,
Series 8, as amended, the Employer and the Inter-
venor filed timely requests for review of the Re-
gional Director's decision on the grounds, inter
alia, that the Regional Director had departed from
Board precedent and misapplied Board doctrine.
By telegraphic order dated January 9, 1980, the
Board granted the Employer's and Intervenor's re-
quests for review.
Pursuant to Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board has delegated its authority in this
proceeding to a three-member panel.
The Board has considered the entire record in
this case with respect to the issue under review and
makes the following findings:
The Employer recognized the Intervenor in 1970
as the collective-bargaining representative for the
unit of employees petitioned for herein. From 1970
to the present, the Employer and the Intervenor
have entered into a series of collective-bargaining
agreements of 4 years' duration, each containing a
reopener provision permitting the Intervenor the
right to reopen the contract in the 60 days prior to
the end of the third year of the agreement. The
record indicates that in both 1973 and 1976 the In-
tervenor exercised its right under the reopener pro-
vision. On both occasions, the parties were unable
to reach agreement, and, pursuant to the contract,
submitted issues to binding arbitration. Subsequent
to arbitration, the Employer and the Intervenor
signed the contracts.
I Local 1115 Employees Union, a Division of 1115 Joint Board, inter-
vened on the basis of a contractual interest.
248 NLRB No. 138
Pursuant to the reopener provision of the 1976
contract, the Intervenor notified the Employer in
1979 of its intention to reopen contract negotia-
tions. Approximately five bargaining sessions were
held between the two parties from September 6 to
October 5, 1979.2 During these negotiations, the
Employer and the Intervenor agreed to renew and
extend the 1976 agreement for 4 years, with the In-
tervenor maintaining the right to reopen the con-
tract at the end of the third year. However, the
parties were unable to reach agreement on eco-
nomic terms of the contract, and agreed to submit
the issue to interest arbitration. They also agreed to
apply any increases granted by the arbitrator retro-
actively to October 9, the effective date of the bar-
gaining agreement. This agreement by the. parties
was embodied in a letter prepared and signed by
the Intervenor on October 9, and signed by the
Employer on October 12.3 The instant petition was
filed on October 23. The arbitration pursuant to the
October 9 agreement was held on October 24, but
no decision had been rendered by the close of the
hearing. 4
In finding that the agreement between the Em-
ployer and the Intervenor did not constitute a bar
to the instant petition, the Regional Director, rely-
ing on Herlin Press Inc.,5 concluded that the provi-
sion to arbitrate economic terms rendered the con-
tract fatally defective for contract-bar purposes.
Contrary to the Regional Director, we conclude
that in these circumstances the agreement between
the Employer and the Intervenor constitutes a con-
tract bar.
The Board has long held that, to be a bar, a con-
tract must be "so complete as to substantially stabi-
lize labor relations between the parties,"6 and
should "chart with adequate precision the course
of the bargaining relationship [so that] the parties
can look to the actual terms and conditions of the
contract for guidance in their day-to-day prob-
lems." 7 Thus, an agreement limited only to wages
and fringe benefits,8 or one which has been sub-
stantially abandoned or altered, 9 will not constitute
a bar to a petition. However, the Board has never
held that the failure of a contract to contain or de-
2 All dales hereinafter are in 1979 unless otherwise indicated.
3 The letter recited the agreement of the parties to extend the terms of
the 1976 contract, set forth the effective date of the new contract as well
as the termination date, and stated that economic terms would be submit-
ted to binding (interest) arbitration.
The record indicates that it would be approximately 5 weeks before
the arbitrator made the award The hearing in this case was held on No-
vember 8
s 177 NLRB 940 (1969).
6 Spartan Aircraft Company, 98 NLRB 73, 74-75 (1952); Appalachian
Shale Products. Co., 121 NLRB 1160. 1163 (1958).
A .ppalachian Shale, supra at 1163.
J. P Sand and Gravel Company, 222 NLRB 83 (1976)
9 Austin Pouwder Company, 201 NLRB 566 (1973).
STUR-DEE HEALTH PRODUCTS 1101
lineate every possible provision which could
appear in a collective-bargaining agreement negates
the bar quality of such a contract. In Spartan Air-
craft, supra, the Board found an otherwise detailed
contract which contained a provision stating that
the employer and union would "endeavor to agree
upon the proper classification and hourly rate
ranges as soon as possible" '° sufficiently complete
to constitute a contract bar. And the provision to
leave to future negotiations wage rates was not
viewed as requiring a different result. More recent-
ly, in a case quite similar to the instant case, the
Board determined that a contract which contained
substantial terms and conditions of employment,
but lacked specific wage rates for the petitioned-for
employees, provided the requisite degree of labor
relations stability to constitute a bar. Thus, in Levi
Strauss, the Board noted that the parties had bar-
gained about wage rates for the petitioned-for em-
ployees, and also had granted wage increases for
them." Hence, both Spartan Aircraft and Levi
Strauss involved contracts containing substantial
terms and conditions of employment as well as
identifiable agreements, either by contract terms or
practice, to resolve in the future outstanding wage
issues.
Based on the foregoing, we agree with the Em-
ployer and the Intervenor that their agreement pro-
vides a sufficient degree of stability and contains
the requisite substantial terms and conditions of
' Spartan Aircraft, supra at 74
" Levi Strauss & Co.. 218 NLRB 625 (1975). In Levi Strauss., the contract
set forth, inter alia, the following terms and conditions of employment: hours
of work, insurance, disability benefits, vacations, holidays, an arbitration
clause, and a recognition provision. Accord: Local 3, International Brother-
hood ofElectrical Workers, A FL-CIO (Gessin Electrical Contractors. Inc.), 224
NLRB 1484 (1976) (8(b)(7)(A) allegation; contract which failed to set out
precise terms of' age rates held not defective in finding contract sufficient to
remove question concerning representation; contract contained provision to
resolve w% age rates, %% herein parties agreed to be bound by wage rates set forth
in master agreement soon to be negotiated) The 1976-80 agreement betseen
the Employer and the Intervenor, which the parties agreed to extend by
virtue of the October 1979 letter. contains similar detailed provisions as in the
Lemvi Strauss case.
employment comtemplated by the Act. The Em-
ployer has recognized and bargained with the In-
tervenor since 1970. The collective-bargaining
agreements entered into by these two parties con-
tain provisions for, inter alia: recognition of the pe-
titioned-for unit, grievance and arbitration, vaca-
tions, holidays, hours of work, union security, no-
strike agreement, seniority, sick leave, leaves of ab-
sence, maternity leave, bereavement leave, jury
duty, leaves, severance pay, uniform and lockers,
dues checkoff, and trust fund payments. The par-
ties to the contract have an agreed-upon process
for resolving in the near future one uncompleted
aspect of the contract, a process which the parties
have availed themselves of in the past to resolve
similar disputes. Thus, in accord with Levi Strauss
and Spartan Aircraft, we find that the agreement
between the Employer and the Intervenor contains
substantial terms and conditions of employment as
well as a definite and readily ascertainable method
for determining economic terms. 12 Accordingly,
we find the 1979-83 agreement between the Em-
ployer and the Intervenor constitutes a bar to the
instant petition, and we shall therefore dismiss it.
ORDER
It is hereby ordered that the petition filed herein
be, and it hereby is, dismissed.
1 llerhln Press Inc.. supra, relied on the by the Regional Director, is not to
the contrary. In that case, the parties merely extended an agreement pending
new negotiations. The Board concluded that such an extension was not a bar
to a petition, especially since no new agreement was executed, and the
extension was of indefinite duration. The Board further rejected the parties'
argument that an agreement to arbitrate a new contract constituted a bar,
because all the provisions of the new agreement were subject to arbitration.
Thus, there existed no written, signed contract which could act as a bar In the
instant case. the Employer and the Intervenor signed an agreement to
incorporate the substantial terms and conditions of a previous contract into a
new agreement, and expressly limited the scope of the binding arbitration to
those economic terms which had not been agreed upon. See also Local 3.
IBEW supra.
STUR-DEE H ALTH PRODUCTS 1