Evening star., 1948-07-25
Conflict Over Meaning
Of 'CooIinq-Off Period
NLRB Must Resolve Differing Views
Of Trial Examiner and u. S. Court.
n 0J n N III

NLRB Must Resolve Differing Views !
Of Trial Examiner and u. S. Court.
By Gerard d. Reilly
The frst case involving the application a
the cooling-off period requirements Of the TAFT
Hartley Act has resulted In q conflict OF opinion
between United States District Court and Q
trial examiner Of the National Labor Relations
Board, which the board itself win have to re-
solve. The case arose out Of . strike at the
Boeing Airplane Co. plant In Seattle which was
called by the Machinists' Union after the ne
gotiation committees failed to agree On the
terms Of = new contract.
When the strike continued the company re-
fused to resume negotiations with the union.
General Counsel Robert N. Denham then Is
sued complaint charging the manufacturer
with refusal to bargain collectively with the
representative OF the l4,ooo employees covered
by the prior contract. 1t also sought to expe-
dits . settlement Of the strike by applying to
the local Federal court for an Injunction. The
defense of the company was that the union
itself had been guilty Of . refusal to bargain.
claiming that its failure to Ale eo-day notice
before going on strike was q violation Of Sec
ton s(d) Of the new statute.
After listening to the testimony in the case,
with the company's contention that Section
SOD had been violated. This subsection makes
strike called without the requisite notice not
only an unfair labor practice, but also an act
for which the strikers lose their status as en-
ployes unless subsequently reinstated. Judge
Bowen therefore reasoned that since the union
represented the strikers rather than the nom
strikers and the -eplacements who were still at
work, that 1t no longer represented employees Of
the company. Consequently he held that the
company was under no duty to bargain
with the employees and dismissed the petition
for injunctive relief
This decision was the subject Of considerable
comment in labor and industrial circles, for
the prior contract between the union and the
company had been negotiated more than q
year prior to the passage of the Tart-Hartley
Act. It contained q duration clause which
provided that 1t should remain "in full force
and effect from March 16, 1916, to March l6,
1947. and thereafter until new agreement has
been reached by the parties either through
negotiation or arbitration" The contract also
provided in another clause that no strike
should be caused or sanctioned by the union
during the life of this agreement"
***
The provisions of the Taft-Hartley Act re-
eiIlplOycIS hIlu W
working terms and conditions for so days
after written notice is given apply only where
a collective bargaining contract is in effect.
This section came into the act as result Of a
separate bill originally drawn by Senator FL
lender of Louisiana in an effort to overcome
the traditional objections Of labor organiza-
tions to such mandatory cooling of periods as
were required by the Smith -Connally Act.
His theory was that all that the law should
strive to bring about was . reasonable period
for negotiations In order to avoid industrial
strife that this period should be defined as
not less than 60 days, and that If the parties
fail to agree on q new contract during the first
80 days, the mediation service should be noti-
fed, thereby being afforded an opportunity to
work out an adjustment He felt that unions
could not properly object to such clause since
If they fled the notice in timely fashion the
cooling-oh period would occur while the old
contract was still In effect and an obligation to
refrain from striking existed under its terms
1t was an admitted fact in the Boeing case
that the union had struck without the s0-day
written notice. The real crux Of the contro-
versy, therefore, was whether or not the coll
lective agreement Of March Is, 1s46, was still
in effect on April 20 Of this year. This was
the date on which the union local called q
strike.
When the matter was presented to Trial Ex-
aminer William E. Spencer he held that the
clause which provided that the old contract
was to remain in effect until a new agreement
had been reached did not have the effect of
continuing the old contract indefinitely His
finding was that the parties could not have
Intended the clause to be given its literal mean
ing since the party which found the old con-
tract satisfactory could thereby keep It alive
perpetually merely by refusing to agree on a
new one He pointed to the fact that the union
had originally requested the negotiation of a
new contract more than a year before and that
as result the parties had substantially done
all that was required under Section s(d) by
maintaining the terms of the old contract for
many months after its expiration date.
x**H
In discussing the notice and cooling of period
requirements Of the act the examiner said:
Section SD is but a part of statutory
scheme one of the basic purposes Of which is
to narrow the field of industrial conflict by
requiring appropriate parties to make bona
fide effort to settle their differences through
the orderly processes of collective bargaining
To insure against an abrupt termination of
contractual relationships in the labor manage
ment field and thus to encourage the settle-
ment Of differences through collective bargain
ing, Congress provided in Section SOD, as part
of its overall statutory scheme, what is in
effect cooling off or waiting period Of go
days. during which neither party to collective
bargaining contract can terminate or modify
It, during which the conciliation and mediation
services of the State and Federal Governments
are to be served with appropriate notice so
as to enable them to proffer their services In
settlement of disr,1te isses. and d,,rip0 uvl,ich
the parties are under q continuing duty to
meet and negotiate. At the end of the 60-day
period the party desiring to terminate or mod
ify the existing agreement is free to act. This
Is how SOD fits into the statutory scheme, and
its formal or notice requirements should not
be so strictly construed as to make q caricature
of iIYada r,iirr