Birkemwald, Inc.

National Labor Relations Board - Board Decisions

Aug 7, 1979

243 N.L.R.B. 1151 (N.L.R.B. 1979)

BIRKENWAL D. INC.
Birkenwald, Inc. d/b/a Birkenwald Distributing Com-
pany and General Teamsters Local Union No. 174,
affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America. Case 19 CA 9993
August 7, 1979
DECISION AND ORDER
On July 31. 1978, Administrative Law Judge Stan-
ley Gilbert issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief, and the General Counsel filed a
brief in support of the Administrative Law Judge's
Decision.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions' of the Administrative Law Judge and to
adopt his recommended Order.2
For reasons more fully explicated and discussed in
Charles D. Bonanno Linen Service, Inc., 243 NLRB
1093 (1979), we agree with the Administrative Law
Judge's conclusions that the bargaining impasse be-
tween the Union and Allied Employers, Inc., was not.
of itself, sufficient to justify Respondent's unilateral
withdrawal from the bargaining unit and that-under
the circumstances herein-the multiemployer group
was not sufficiently fragmented so as to constitute an
"unusual circumstance" justifying such withdrawal.
Moreover, in adopting the Administrative Law
Judge's finding that Respondent violated Section
8(a)(5) of the Act, we also rely upon the finding that
there was no impasse at the time Respondent at-
tempted to effectuate its withdrawal from the mul-
tiemployer bargaining unit. For the record herein, in
fact, establishes that Respondent's desire to withdraw
its bargaining authority from Allied was motivated-
'We hereby correct an inadvertent error in the Administrative Law
Judge's conclusion of law 5 by substituting the words "employers of employ-
ees" for "employees of employers."
Member Murphy is not convinced that the act of untimely withdrawal
from a multiemployer unit is by itself a violation of Sec. 8(aX5) of the Act It
is the refusal thereafter to be bound by the collective-bargaining agreement
negotiated by the group which is a violation of the Act, and she so finds on
the facts here. See, for example, Chicago Magnesium Castings Compant, 240
NLRB 337 (1979): Ringside Dquors. Inc.. d/b/a Dino's Lounge, et al., 237
NLRB 30 (1978); Independent Association of Steel Fabricators. Inc.. et al.
231 NLRB 264., fn. 2(1977). Accordingly. Member Murphy suggests that her
colleagues gain nothing in finding this additional violation and in fact may
be creating a hanging, unenforceable one.
Chairman Fanning adheres to the position he expressed n Ohmpia Auto-
mobile Dealers Association. 243 NLRB 1086 (1979). and in Preston H Has-
kell Co., 238 NLRB 743 (1978).
2 We hereby modify he Administrative Law Judge's remedy to compute
the backpay due in a manner consistent with Board pohc as set forth in
Ogle Protection Service. Inc., 183 NLRB 682 (1970). with interest thereon to
be computed as set forth in Florida Steel Corporoiion, 231 NLRB 651 (1977)
In addition, we have modified the Administrative Law Judge's notice to
conform with his recommended Order.
not by the earlier impasse-but by the expressed will-
ingness of the other Allied-represented employers to
reach an accomodation with the Union by making an
improved contract offer.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent, Birkenwald, Inc. d/b/a
Birkenwald Distributing Company. Seattle, Washing-
ton, its officers, agents, successors. and assigns, shall
take the action set forth in the said recommended
Order, except that the attached notice is substituted
for that of the Administrative Law Judge.
APPENDIX
NoTIrCE To EMPLOYEES
PosTED BY ORDER O(F til
NATIONAIl LABOR RELATIONS BOARD
An Agency of the United States Government
WE WII.. NOT refuse to honor the collective-
bargaining agreement entered into between Al-
lied Employer, Inc., and General Teamsters Lo-
cal Union No. 174. affiliated with International
Brotherhood of Teamsters. Chauffeurs. Ware-
housemen and Helpers of America. which was
ratified by said Union's membership on Novem-
ber 19, 1977.
WE Wll.L NOT in any like to related manner,
interfere with, restrain, or coerce our employees
in the exercise of rights guaranteed them by Sec-
tion 7 of the Act.
WlI WILL implement the aforesaid collective-
bargaining agreement between Allied Employer,
Inc., and General Teamsters. Chauffeurs. Ware-
housemen and Helpers of America as it applies
to our employees.
WE WILl. give retroactive effect to the terms
and conditions of said agreement. including. but
not limited to, the provisions covering wages and
other employment benefits.
WE WILL make our employees whole for any
losses they may have suffered by our refusal to
honor said agreement.
BIRKENWVAID, IN(. I)/B/A BIRKENWAI)
DISIRIBUIIN; COMPANY
DECISION
SIAIF MIF\I 01 HIl. CASI'
SIANI.EY GI BERI Administrative Law Judge: Based on
a charge filed on December 1. 1977. b) General Teamsters
243 NLRB No. 155
1151
DE('ISIONS OF NATIONAL LABOR RELATIONS BOARD
Local Union No. 174. affiliated with International Brother-
hood of Teamsters, Chauffeurs. Warehousemen and Help-
ers of America, hereinafter referred to as ocal 174 or the
Union. the complaint herein was issued on January 4. 1978.
The complaint alleges that Birkenwald, Inc. d/b/a Birken-
wald Distributing Company. hereinafter referred to as Bir-
kenwald or Respondent. violated Section 8(a)(5) and (I) of
the Act. Respondent, by its answer, denies that it engaged
in conduct violative of the Act as alleged.
Pursuant to notice, a hearing was held in Seattle. Wash-
ington. on April 20. 1978. before me, the duly designated
Administrative Law Judge. Appearances were entered on
behalf of the General Counsel, the Charging Party (Local
174). and Respondent. Briefs were timely filed by each of
said parties.
Based on the entire record in this proceeding and my
observation of the witnesses as they testified, I make the
following:
FINI)NG(S OF FA('I
I. tlE BUSINESS O()F RESPON)DFNI
Respondent is, and has been at all times material herein,
a Washington corporation with an office and place of busi-
ness located in Seattle, Washington. It is engaged in the
wholesale distribution of wine and beer, and during the past
12 months, which period is representative of all times mate-
rial herein, it sold and shipped from its Seattle. Washing-
ton, facility finished products valued in excess of $50,000 to
points outside the State of Washington. Also, during said
period, in the course and conduct of its business operations,
it purchased and caused to be transferred and delivered to
its aforesaid facility, goods and materials valued in excess
of $50,000 which were transported to said facility directly
from States other than the State of Washington.
As is admitted by Respondent, it is, and has been at all
times material herein, an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
spondent, in the negotiation of a multiemployer bargaining
unit collective-bargaining agreement which expired on May
15, 1977. and which covered the following job classifica-
tions: "Drivers, helpers, loaders, warehousemen, bull lilt
drivers, extra employees, dispatchers, and working fore-
men."
On July 27. 1977. Local 174 and Allied began negotia-
tions over the terms and conditions of a new agreement to
replace the above-mentioned expired agreement. Allied, at
that time, represented I employers, including Respondent.
in a multiemployer bargaining unit (with respect to their
employees in the above-described classifications) which
constitutes a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
Also, at that time, Local 174 was the duly recognized. ex-
clusive bargaining representative of the employees in said
multiemployer bargaining unit. Ultimate!v, Local 174 and
Allied reached an agreement which was ratified by the
Union's membership on November 19. 1977.
During the time material herein, of the aforesaid I I em-
ployers in the multiemployer groups, Premium Distribu-
tors, hereinafter referred to as Premium, was the largest.
having approximately 60 employees out of the approxi-
mately 200 employees in the aforesaid unit, and Respon-
dent had approximately 14 or 15 employees in said unit.
The Issue
The principal issue in this case is whether or not Respon-
dent violated Section 8(a)(5) and (I) of the Act by refusing
to be bound by the aforesaid agreement between ocal 174
and Allied which, as above indicated, was ratified by the
union membership on November 19. 1977. Respondent
contends that its withdrawal from the multiemployer bar-
gaining unit relieved it from being bound by said agree-
ment. Thus, in order to resolve the issue herein it is neces-
sary to determine whether, in the circumstances of this case
and in light of applicable precedents, Respondent's conten-
tion is not well-founded. as General Counsel and the Union
contend.
II. THE LABOR ORGANIZATION INVOLVED
As is admitted by Respondent, Local 174 is, and has been
at all times material herein. a labor organization within the
meaning of Section 2(5) of the Act.
tit. THE UNFAIR LABOR PRACTICES
Background Information and Undisputed Facts
Allied Employers, Inc., hereinafter referred to as Allied.
is an organization of employers, including beer and wine
distributors in the Seattle, Washington, area, which exists.
inter alia, for the purposes of representing certain of its em-
ployer-members' in collective bargaining with Local 174
and other labor organizations.
Allied acted as bargaining representative of certain of its
beer and wine distributor employer-members, including Re-
' It appears that in some instances members have not authorized Allied to
act as their bargaining representative.
Resolution of the Issue
The General Counsel called only witness, Robert Cooper.
secretary-treasurer of Local 174; and Respondent called
only one witness, Richard King. secretary-manager of Al-
lied. The facts found hereinbelow are based upon credited
portions of their testimony. Each was the principal spokes-
man for his organization in their negotiations and in infor-
mal conversations.
For a number of years, there was a pattern in bargaining:
the beer and wine distributors followed substantially the
same monetary settlement reached by the Union with the
grocery industry. This pattern was continued in 1977. with
a settlement reached in the grocery or food industry fol-
lowed by bargaining in the beer and wine industry begin-
ning about July 14. 1977.
After a number of negotiation sessions, there wvas a ses-
sion on October 21, 1977. held at the Federal mediation
office in Seattle. A subcommittee meeting at that session
was attended by Earl Bush. an International organizer for
1152
BIRKENWALD. INC
the Teamsters Union: Russ Olson. business agent for
Teamsters Local 117 (which represents sales personnel in
the industry); Robert L. Cooper. secretary-treasurer of the
Union; Jack Garvey. Federal mediator: and Richard
(Dick) King. secretary-manager of Allied. In separate
rooms were a drivers' committee and the employers' group.
King told the Union at that meeting that the employers
were going to make a last and final offer, and Cooper in-
formed him that his position would be that he would not
recommend anything less than the agreement the Union
had signed in the beer industry with the largest beer com-
pany in King County, K & L Beverage. K & L Beverage is
a beer distributorship which does not, and did not. belong
to the multiemployer group represented by Allied. The
Union signed a contract with K & L Beverage on October
8, 1977.
On October 28, Allied sent to the Union its final offer.
which was rejected by the union membership on October
29, followed by a strike vote which was unanimous. Within
the time material herein, however, the necessary strike
sanction had not been obtained.
About November 7. Premium, as above-mentioned, the
largest member of the multiemployer group, contacted the
Union and on November 10 signed a contract almost iden-
tical to the K & L agreement. The Union did not solicit the
contact from Premium: Al Rosellini. president of Premium.
initiated the contact and proposed going along with the
K & L contract.
On November 9. King learned that, despited his efforts to
dissuade Premium from doing so. Premium had indepen-
dently arrived at a settlement with the Union. On Novem-
ber 10, the members of the multiemployer bargaining group
met with King to discuss the situation. It is not clear
whether anyone representing Premium was at the meeting.
but a representative of Birkenwald was present. King pre-
sented three alternatives to the employer-members: (I) to
fragment the group, allowing everyone to go out and nego-
tiate his own contract; (2) to meet with the Union and agree
to a contract like that entered into by Premium: or (3) to
meet with the Union and see if anything could be salvaged
through negotiating further. The employers present leaned
towards the third alternative, except for Don Kragerud.
Birkenwald's representative, who informed the group that
he had not been happy with the previous last and final
offer, but that he went along with it to preserve the unity of
the group. He told the employers that if they went beyond
that offer, he was going to go out on his own and negotiate
on an individual basis. He apologized to the group, ex-
plained to them his reasons and left the meeting. Either
sometime near the end of the November 10 meeting or
shortly thereafter, King contacted Cooper of the Union in
an effort to forestall the Union from signing an individual
contract with Premium, but King was unsuccessful in so
persuading Cooper.'
2 Although Cooper testified he had only one conversation with King after
the final offer was rejected on October 29 and that ii occurred on November
I I, and King in testifying had considerable difficulty in remembering dates,
King was the more convincing witness that the two had conversations on
both November 10 and II In his brief. General Counsel appears to accept
the testimony that there were the said two conversations.
On November II. the employers held another meeting
and authorized King to attempt to salvage whatever agree.
ment he could with the Union. Following the meeting. King
called Cooper. There is some dispute over what was said.
Cooper testified that:
Dick [King] called me late in the afternoon, and he
said that Allied was going to go along with a proposal.
but they had a problem with two companies. And. I
asked him what two companies it was, and he hesitated
in saying. and I finally told him I had to know who he
was dealing with or who he was representing. And. he
said, 'Well, I think it's going to be Birkenwald and
C & B. They may withdraw. I don't know. I just don't
know what they're going to do ... " He told me that he
would have the proposal over to me Monday ... I told
him that was fine.
King, who was the more convincing witness as to what he
stated to Cooper. credibly testified that he told Cooper:
It's falling apart. Two employers have already with-
drawn from the unit, and it appears as if there's going
to be more employers withdrawing. He said who are
the two employers, and I said well, you could guess.
He [Cooper] says no I couldn't, and I said C & B and
Birkenwald. And. he said something to the effect. "Oh.
I wouldn't have guessed them" . . . I told him that I
wanted to make one last effort to try and resolve it....
I wanted to talk to him about a settlement. which was
almost exactly what he was asking for but wasn't quite
there, a little face sa,er for us .... There's no hard
issues involved in it.
King credibly testified that he then discussed the proposal
with C(ooper. that he told (ooper some of the employers
who were left were still talking in terms that the, vaere
going to do like what C & B' and Birkenwald did ( ith-
draw); that Cooper asked how could he review an accepted
proposal if he did not know whom King was making the
proposal on behalf of: and that King replied that if they
could get a settlement on these items, it was his opinion that
the rest of the employers would not withdraw. King told
Cooper that he had given the employers a deadline of noon
on Monday to tell him whether or not they were going to
withdraw, that they then discussed the proposal, and Coop-
er replied that the proposal sounded pretty good. C'ooper
then requested the proposal be put in writing. and King
promised to have it to him the following Monday.
On Monday morning. November 14, Respondent hand-
delivered a letter from Respondent's labor consultant to the
Union notifying the Union that Respondent had withdrawn
from the multiemployer bargaining group and terminated
Allied's negotiating authority. In said letter it was also indi-
cated that Respondent was prepared to enter into separate
negotiations. On November 15, the Union wrote to Respon-
dent's labor consultant and advised him that Local 174 did
not "consent" to the "purported withdrawal." and stated
that Respondent would be bound by any agreement arrived
at by Allied and the Union. On that same day, King suh-
mitted to the Union Allied's contract proposal. which was
ratified by the Union's membership on November 19, 1977.
C & B eventually did not withdraw.
1153
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On November 22, the Union again wrote Respondent. ad-
vising it that it considered Respondent bound by the agree-
ment concluded between Allied and the Union. The mul-
tiemployer group contract was subsequently reduced to
writing and signed. Nine of the original I I employer-mem-
ber groups were named therein as being covered by the
contract. Neither Premium nor Respondent was among
those named.
Concluding Findings
It has long been a principle under Board decisions that
an employer may withdraw from an established multiem-
ployer bargaining unit after negotiations have started only
if the union consents to it or if "unusual circumstances"
exist. Retail Associates, Inc., 120 NLRB 388, 395 (1958).
Since it is apparent that the Union did not consent to Re-
spondent's withdrawal from the multiemployer bargaining
unit, the question arises whether or not the required "un-
usual circumstances" existed at the time of Respondent's
withdrawal.
Respondent contends, in effect, that the existence of an
impasse in the bargaining negotiations and the fragmenta-
tion of the multiemployer group (by the Union entering
into an agreement with Premium) constituted unusual cir-
cumstances which permitted Respondent to withdraw from
the multiemployer bargaining unit, thereby relieving it of
the obligation to be bound by the agreement entered into
between Allied and the Union.
The General Counsel argues, in effect, that at the time
Respondent withdrew, an impasse no longer existed; that,
in any event, under Board decisions an "impasse alone is
not an unusual circumstance which justifies an untimely
withdrawal": and that Premium's signing a separate agree-
ment "is certainly not the type of fragmentation or weaken-
ing of the multiemployer unit that the Board has found to
justify untimely withdrawals."
As to the question of whether an impasse existed at the
time Respondent withdrew, I am of the opinion that the
record will support a finding that after the Union's rejection
of Allied's final offer on October 29 an impasse did exist.
However, I am not convinced that an impasse existed at the
time Respondent withdrew from the unit, whether Respon-
dent effected its withdrawal on November 10 (by its verbal
communication to King at the meeting of employees on
that date and King's mention of that fact to Cooper later
that day) or by its letters to Allied and to the Union dated
November 14.
An impasse has been defined as "the point in negotia-
tions where the parties had exhausted bargaining possibili-
ties and where further meetings would have been fruitless."
N.L.R.B. v. E. L. Dell, Jr., trading as Wavcross Machine
Shop, 283 F.2d 733, 740 (Cir. 5th, 1960). It appears that at
the point when the Union rejected Allied's final offer the
parties were far apart on four important issues, and there
was no indication that either of them was willing to change
its position or even to discuss the possibility of some com-
promise. However, Respondent did not indicate its intent to
withdraw from the unit until it became evident that the
multiemployer group was going to resume negotiations in
an attempt to see what could be "salvaged." It is apparent
from King's credited testimony that Respondent withdrew
because it feared that the multiemployer group was going
to negotiate a contract containing terms that it (Respon-
dent) did not favor. Thus, it cannot be said that, in such
circumstances, Respondent withdrew because bargaining
possibilities remained "exhausted" and further meetings be-
tween Allied and the Union would have been "fruitless." In
my judgment, therefore, an impasse no longer existed at the
time Respondent withdrew.4
Even if it were to be assumed that an impasse existed at
the time Respondent withdrew, that of itself is not sufficient
to justify Respondent's unilateral withdrawal according to
Board precedents. Bill Cook Buick. Inc., 224 NLRB 1094.
1096 (1976): Hi-Wav Billboards, Inc., 206 NLRB 22. 23
(1973). Although some circuits have held otherwise 5 I am
bound by Board precedents.
The questions remain whether or not the Union's enter-
ing into a separate agreement with Premium sufficiently
fragmented the multiemployer group as to constitute an un-
usual circumstance which justified Respondent's with-
drawal. It is noted that, in its aforementioned letter to the
Union dated November 14, Respondent's labor relations
consultant stated, "Birkenwald, Inc., has, because of the
prevailing impasse and economic reasons, withdrawn" from
the multiemployer bargaining group. There is nothing in
the record to explain what the "economic reasons" were
except possibly Respondent's anticipation that an agree-
ment would be reached between Allied and the Union
which would include terms that Respondent was unwilling
to accept. Nevertheless, since the anticipated signing by
Premium of a separate agreement with the Union precipi-
tated the breaking of an impasse by causing the employers
to lean toward renewing negotiations to "salvage" what
they could, it appears to be appropriate to consider whether
said action by Premium and the Union sufficiently frag-
mented the employer group as tojustil Respondent's with-
drawal. Again, it appears to he a matter to judgment as to
what degree of fragmentation is sufficient.
In Connell Tpesing Company; Spangler Printer, Inc.
Pulliamn-Marty Tvpographers, Inc, and M & M Typesetting
Companv, 212 NLRB 918. 921 (1974), the Board found ade-
quate unusual circumstances (sufficient fragmentation)
where the union therein involved signed separate or interim
agreements with 23 out of the 36 employers in the multiem-
ployer group, leaving only 36 of the original 209 employees
in the multiemployer bargaining unit. On the other hand,
the Board held in Beck Engraving Co., Inc., 213 NLRB 53,
54 (1974), that the union's consenting to the withdrawal of
I of 10 members of a multiemployer group did not consti-
tute "an 'unusual circumstance' which would allow the Re-
spondent to withdraw,"6 citing We Painters. Inc., 176
NLRB 964 . 966 (1969). In said cited case, it is stated:
That the union involved solicits and obtains individ-
ual contracts from some members of the multiem-
'4 t is stated in Bill Cook Buick. Inc., 224 NLRB 1095, that "whether or
not the set of conditions amounts to impasse is a matter of judgment."
'See N.L.R.B. v. Beck Engraving Co.. Incr. 522 F.2d 475, 483 (3d Cir.
1975).
6 Unfortunately, there is no indication in the decision of what proportion
of the employees in the unit were separated therefrom by the withdrawal of
the one employer.
1154
BIRKENWAI.I). INC.
ployer unit in order to break an impasse in bargaining,
does not appear to constitute special or unusual cir-
cumstances such as would require abandonment of the
rule enunciated in Sheridanl Creauion..s Inc.. supra [that
an employer's withdrawal from a multiemployer unit is
untimely, absent union consent, once negotiations on a
new contract have started.7
In the instant case the Union signed a separate agree-
ment with I of II employers, but it is noted that the one
employer's employees comprised 30 percen or 60 of' the
total complement of 200 employees in the original unit.
While it would appear from the above-cited cases, Beck
Engineering Co. and We Painters. Inc., that the signing by
the Union of a separate agreement with no more than I of
II employers in the multiemployer group does not consti-
tute an "unusual circumstance," there remains a question of
whether the separation of 30 percent of the complement of
employees from the original bargaining unit alters the cir-
cumstance.
Although it does appear that 30 percent of the bargaining
unit constitutes a large proportion of the employees in the
original bargaining unit, nevertheless a substantial majority
(70 percent) thereof remained after Premium signed. There-
fore, I am of the opinion that it would be inappropriate to
find that the multiemployer group was sufficiently frag-
mented to constitute an unusual circumstance which justi-
fies Respondent's withdrawal from the multiemployer bar-
gaining unit. Consequently, it is concluded that the General
Counsel has proved by a preponderance of the evidence
that the Respondent violated Section 8(a)(5) and (I ) of the
Act by unilaterally withdrawing from the multiemplover
group represented by Allied and by refusing to be bound by
the agreement which Allied reached with the Union.
IV. THE EFFECI O()F Till. UNFAIR IAB)tR PRA( I (F UPON
()MM F R(
The unfair labor practice of Respondent set forth in sec-
tion III, above, occurring in connection with its operations
set forth in section I, above, has a close. intimate, and sub-
stantial relation to trade. traffic, and commerce among the
several States, and tends to lead to labor disputes burdening
and obstructing commerce and the free flow thereof.
V. THE RMEI)Y
It having been found that Respondent violated Section
8(a)(5) and (I) of the Act by unilaterally withdrawing from
the above-described multiemployer bargaining unit and re-
fusing to be bound by the agreement arrived at by Allied.
representing the employers therein, and the Union, repre-
senting the employees therein, it will be recommended that
Respondent is ordered to cease and desist from said con-
duct. It will be further recommended that Respondent be
7 Again. unfortunately. there is no indication of what proportion of the
employees in the unit were separated therefrom to be considered by the
Board a sufficient or insufficient fragmentation to constitute an unusual cir-
cumstance.
ordered to honor said agreement and make whole its em-
ployees for any loss of wages or other benefits they may
have suffered as a result ot' Respondent's said conduct. BRil
(Cook Buick, Inc.. 224 N LRB 1094. cupra. Backpay. it' aln.
shall be computed in the manner prescribed in F 11'. oo/l-
worth ('onpalnv. 90 NLRB 289 11950, and F'lorido Siel
Corporation, 231 NLRB 651 19771.
Upon the basis of the foregoing findings ol ttact and upon
the entire record in this proceeding. I make the following:
CON(I t SIONS ()F LA w
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Drivers. helpers. loaders, warehousemen. bull lift driv-
ers, extra employees. dispatchers, and working foremen em-
ployed by the employers which designated Allied as their
collective-bargaining representative, including the Respon-
dent, constitute a unit appropriate for the purpose of collec-
tive bargaining within the meaning of Section 9(b) of the
Act.
4. At all times material herein. the Union has been the
exclusive bargaining representative of' the employees, in-
cluding those of Respondent. in the aforesaid appropriate
unit.
5. At all times material herein. Allied has been tile au-
thorized negotiating agent of the employees o ermployers in
the aforesaid bargaining unit. including Respondent.
6. By its unilateral withdrawal of Allied's authorit to
act as its bargaining agent and its refusal to honor the con-
tract which Allied and the nion agreed to and which was
ratified by the union membership on November 19. 1977.
Respondent violated Section 8(a)(5) and (I) of the Act.
UJpon the foregoing findings of fact. conclusions of law.
and upon the entire record, and pursuant to Section 10(c) of
the Act, I herebh issue the follo'wuing recommended:
ORDER'
The Respondent. Birkenwald, Inc. d/b/a Birkenvald
Distributing Company. Seattle, Washington. its officers.
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to honor the collective-bargaining agree-
ment entered into between Allied Employers. Inc.. and
General Teamsters Local Union No. 174, affiliated with In-
ternational Brotherhood of Teamsters. Chauffeurs. Warc-
housemen and Helpers of America. which was ratified by
said Union's membership on November 19, 1977.
(b) In any like or related manner interfering with. re-
'See, generally, Isis Plumbing & Heating Co. 138 NLRB 716 (1962)
In the event no exceptions are filed as provided bh Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board. the findings.
conclusions and recommended Order herein shall, as provided in Sec 102.48
of the Rules and Regulations. be adopted hb the Board and become its
findings, conclusions and Order. and all objections thereto shall be deemed
waived for all purposes.
l115
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
straining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action which is deemed
necessary to effectuate the policies of the Act:
(a) Implement the aforesaid collective-bargaining agree-
ment between Allied and said Union as it applies to its
employees.
(b) Give retroactive effect to said agreement to the eftec-
tive date thereof and make its employees whole for any
losses they may have suffered (in the manner set forth in the
section of this Decision entitled "The Remedy") by reason
of Respondent's refusal to honor said agreement.
(c) Preserve and. upon request, make available to the
Board or its agents, for examination and copying. all pay-
roll records, social security payment records. timecards.
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay, if any, due under
the terms of this recommended Order.
(d) Post at its place of business in Seattle. Washington.
copies of the attached notice marked "Appendix.''l Copies
of said notice, on forms provided by the Regional D)irector
fior Region 19. after being duly signed by Respondent's rep-
resentative, shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive da's
thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said no-
tices are not altered, defaced, or covered by any other mate-
rial.
(e) Notify the Regional Director for Region 19, in writ-
ing, within 20 days from the date of this Order. what steps
Respondent has taken to comply herewith.
l In the event hat this Order is enlbrced bh a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order of,
the National Labor Relations Board" shall read "Posted Pursuanl to a Judg-
ment of' the United States Court oft Appeals Enflorcing an Order of the Na-
tional I.ahor Relations Board."
1156