Brotherhood of Teamsters, Local No. 70

National Labor Relations Board - Board Decisions

Nov 12, 1974

214 N.L.R.B. 902 (N.L.R.B. 1974)

902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brotherhood of Teamsters and Auto Truck Drivers
Local No. 70, International Brotherhood of Team-
sters, Chauffeurs , Warehousemen & Helpers of
America and Granny Goose Foods , Inc.; Nabisco,
Inc.; Standard Brands, Inc.; Sunshine Biscuits, Inc.
Case 20-CB-2993
November 12, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS AND
KENNEDY
On June 25, 1974, Administrative Law Judge Hen-
ry S. Salim issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief, and the Charging Parties and the
General Counsel filed cross-exceptions and support-
ing briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
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 I of the Administrative Law Judge and
to adopt his recommended Order as modified herein.
AMENDED CONCLUSIONS OF LAW
1. Delete Conclusions of Law 1 and 3 from the
Administrative Law Judge's Decision and substitute
the following:
"1. All drivers, hostlers, lift jitney operators, fork-
lift operators, platform men, new furniture helpers
and helpers employed by members of the above-
mentioned employers group, including Granny
Goose Foods, Inc., Standard Brands, Inc., and Sun-
shine Biscuits, Inc., constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
"3. By refusing to accept and be bound by the
terms of the 1973-76 National Master Freight Agree-
ment and Supplement thereto, with respect to the
aforesaid employees of Granny Goose Foods, Inc.,
Standard Brands, Inc., and Sunshine Biscuits, Inc.,
Respondent has engaged in, and is engaging in, un-
fair labor practices within the meaning of Section
8(b)(3) of the Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified
below and hereby orders that Respondent, Brother-
hood of Teamsters and Auto Truck Drivers Local
No. 70, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America,
its officers, agents, and representatives, shall take the
action set forth in the said recommended Order, as
modified below.
1. Substitute the following for paragraphs 1(a) and
(b):
"(a) Refusing to give full force and effect to the
National Master Freight Agreement and the Joint
Council No. 7 Local Pickup and Delivery Supple-
mental Agreement for the contract term April 1,
1973, to June 30, 1976, with respect to employees of
Granny Goose Foods, Inc., Standard Brands, Inc.,
and Sunshine Biscuits, Inc., in the following classifi-
cations: All drivers, hostlers, lift jitney operators,
forklift operators, platform men, new furniture help-
ers and helpers.
"(b) Requesting and seeking separate and individ-
ual bargaining agreements from the above-named
Employers for their employees covered under the
aforesaid National Master Freight Agreement and
Joint Council No. 7 Supplement."
2. Substitute the following for paragraphs 2(a) and
(c):
"(a) Notify, in writing, each of the above-named
Employers that it will adhere to and be bound by the
terms of the National Master Freight Agreement and
the Joint Council No. 7 Supplement for the contract
term April 1, 1973, to June 30, 1976, and sign said
agreements upon request.
"(c) Deliver to the Regional Director for Region
20 signed copies of said notice in sufficient numbers
to be posted by each of the above-named Employers
at their places of business, if said Employers are will-
ing.
3. Substitute the attached notice for that of the
Administrative Law Judge.
IT IS FURTHER ORDERED that the allegations of the
complaint not hereinabove found to have been sup-
ported by the evidence be, and they hereby are, dis-
missed.
1 We find no evidence to support the Administrative Law Judge 's conclu-
sion that Respondent 's conduct toward Nabisco , Inc , was inconsistent with
its timely notice of withdrawal from the mulhemployer, multiunion bargain-
ing unit Accordingly , we shall order that the portion of the complaint alleg-
ing that Respondent violated Sec 8(b)(3) of the Act with respect to that
Employer be dismissed
214 NLRB No. 135
BROTHERHOOD OF TEAMSTERS , LOCAL NO. 70 903
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to give full force and ef-
fect to the National Master Freight Agreement
and the Joint Council No. 7 Local Pickup and
Delivery Supplemental Agreement for the con-
tract term April 1, 1973, to June 30, 1976, with
respect to employees of Granny Goose Foods,
Inc., Standard Brands, Inc., and Sunshine Bis-
cuits, Inc., in the following classifications: All
drivers, hostlers, lift jitney operators, forklift op-
erators, platform men, new furniture helpers and
helpers.
WE WILL NOT seek separate collective-bargain-
ing agreements from the above-named Employ-
ers for their said employees who are covered un-
der the aforesaid National Master Freight
Agreement and Joint Council No. 7 Supple-
ment.
WE WILL notify, in writing, each of the above-
named Employers that we will adhere to and be
bound by the terms of the National Master
Freight Agreement and the Joint Council No. 7
Supplement for the contract term April 1, 1973,
to June 30, 1976, and sign said agreements upon
request.
BROTHERHOOD OF TEAM-
STERS AND AUTO TRUCK
DRIVERS LOCAL No. 70,
INTERNATIONAL BROTHER-
HOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSE.
MEN & HELPERS OF
AMERICA
DECISION
STATEMENT OF THE CASE
HENRY S. SAHM, ADMINISTRATIVE LAW JUDGE: This pro-
ceeding was heard at San Francisco, California, between
January 28 and 31, 1974, inclusive, pursuant to a charge
filed on September 10, 1973,1 by Granny Goose Foods,
Nabisco, Inc., Standard Brands, Inc., and Sunshine Bis-
cuits, herein referred to interchangeably as the Charging
Parties , Companies, and Employers. The complaint, which
issued on December 14, presents the question , inter alia,
whether Respondent Union, Local 70, affiliated with Inter-
1 All dates herein refer to the year 1973 unless otherwise indicated
national Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America, effectively withdrew
from the multiemployer-multiumon bargaining group cov-
ered by a nationwide collective-bargaining agreement,
herein referred to as the National Master Freight Agree-
ment executed by the International Brotherhood of Team-
sters and the multiemployer group called Trucking Em-
ployers, Inc. Respondent Local 70 contends it did with-
draw effectively with respect to each of the four
above-named Employers, the Charging Parties, and thus
separated them from the national negotiations, so that each
is legally required to bargain individually with Local 70 for
a separate collective-bargaining agreement. Therefore, ar-
gues Respondent Union, it is neither bound by its Interna-
tional Union's National Master Freight Agreement vis-a-
vis the four Employers, nor is it guilty of violating Section
8(b)(3) of the Act.2
Primarily, the unfair labor practice here alleged is that
the Respondent Union violated Section 8(b)(3) by refusing
to abide by the National Master Freight Agreement, a na-
tionwide contract and its supplements thereto, for the peri-
od 1973 to 1976. In an amendment to the complaint, it is
further alleged that Local 70 violated Section 8(b)(1)(B) by
improperly interfering with the Charging Parties' selection
of a collective-bargaining representative.
Upon the entire record in this proceeding, including ob-
servation of the demeanor of the witnesses as they testified
and consideration of the briefs filed by all the parties on
April 1, 1974, there are hereby made the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANIES INVOLVED HEREIN
The four Companies involved herein are the Charging
Parties. It is alleged in the complaint as follows:
(a) At all times material herein, Granny Goose, a Cali-
fornia corporation with places of business located through-
out the United States, including a facility located in Oak-
land, California, has been engaged in the processing, distri-
bution, and wholesale sale of potato chips and other food
products.
(b) During the past year, Granny Goose, in the course
and conduct of its business operations, sold and shipped
goods and products valued in excess of $50,000 from its
facilities in the State of California directly to nonretail pur-
chasers located outside the State of California.
(c) At all times material herein, Nabisco, a Delaware
corporation with places of business located throughout the
United States, including a facility in Oakland, California,
has beern engaged in the processing, distribution, and
wholesale sale of bakery products.
(d) During the past year, Nabisco, in the course and
conduct of its business operations, sold and shipped goods
and products valued in excess of $50,000 from its facilities
in the State of California directly to nonretail purchasers
located outside the State of California.
(e) At all times material herein, Standard, a Delaware
2 Section 8(b)(3) states it is an unfair labor practice for a union " to refuse
to bargain collectively with an employer, provided it is the representative of
his employees subject to the provisions of Section 9(a)"
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
corporation with places of business located throughout the
United States, including a facility located in San Francisco,
California, has been engaged in the processing, distribu-
tion, and wholesale sale of food products.
(f) During the past year, Standard, in the course and
conduct of its business operations, sold and shipped goods
and products valued in excess of $50,000 from its facilities
in the State of California directly to nonretail purchasers
located outside the State of California.
(g) At all times material herein, Sunshine, a New York
corporation with places of business located throughout the
United States, including a facility located in Oakland, Cali-
fornia, has been engaged in the processing, distribution,
and wholesale sale of bakery products.
(h) During the past year, Sunshine, in the course and
conduct of its business operations, sold and shipped goods
and products valued in excess of $50,000 from its facilities
in California directly to nonretail purchasers outside Cali-
fornia.
Respondent admits the foregoing allegations. Accord-
ingly, it is found that said Companies are employers en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent Union is a labor organization within
the meaning of Section 2(5) of the Act and it is affiliated
with the International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen & Helpers of America, herein re-
ferred to as the International.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Since 1964 it has been the practice in the trucking indus-
try for representatives of a group of the various Teamsters
locals and a group of various trucking employers to negoti-
ate national agreements and supplemental agreements cov-
ering local areas. Agreements covering the 1970-73 period
had expired on March 31, 1973. Negotiations between the
negotiating committees of the multiumon and multiem-
ployer groups towards a contract for the period 1973-76,
began May 9, 1973, and continued to June 28. On July 1,
the Teamsters negotiating committee approved the nation-
al and various supplemental agreements and in the same
month two representatives from each of the Teamsters lo-
cals in the multiunion group approved the agreements.
Thereafter a nationwide referendum vote of all Teamsters'
members was conducted and it was determined that the
employees had ratified the agreements as of July 31, 1973.
The Union, Respondent Local 70, claimed it was not
bound by the new agreements because it had made a time-
ly and valid withdrawal from the multiunion-multiemploy-
er bargaining unit in a letter of December 19, 1972, to the
Charging Party employers, informing them of the Union's
demand to negotiate with each of them on an individual
basis.3
3 In Brotherhood of Teamsters and Auto Truck Drivers, Local No 70, (Gran-
B. The Evidence
The record is not clear as to the precise length of time
that the four Companies had bargained with Local 70 on a
separate and individual basis prior to 1964 when na-
tionwide bargaining was instituted. Since 1964, in the
trucking industry, collective-bargaining agreements be-
tween the International Brotherhood of Teamsters, on be-
half of its Teamster locals, and a group of various trucking
employers, represented by Trucking Employers Inc., have
been negotiated and executed on a nationwide basis. It
appears that the unit found appropriate in this decision,
infra, for purposes of collective bargaining within the
meaning of Section 9(b) of the Act, is the same unit of
employees for which the Charging Party Employers herein
and Local 70 have been bargaining for at least 20 years and
perhaps as much as 30 years.
Nationwide negotiations commenced in 1964 and culmi-
nated in the first National Master Freight Agreement for
the period 1964 to 1967. Due to geographical differences
throughout the United States with respect to wages and
working conditions, it was agreed that "supplemental
agreements" should be negotiated by those employers and
local unions familiar with conditions in their respective ar-
eas. Local 70 and the four Companies in this proceeding
beginning in 1964 and continuing until the expiration of
the 1970-73 National Master Freight Agreement were par-
ties to successive supplemental agreements, called the Joint
Council No. 7 Supplemental Agreements which covered
the San Francisco Bay area and to which employers and
the nine Teamsters Unions operating in this geographical
area were signatories.
With the approach of the opening of negotiations for the
1973-76 National Master Freight Agreement, Respondent
Local 70, on December 19, 1972, gave identical written
notices to each of the four Charging Party Companies that
it wished to bargain separately with each of them for a new
collective-bargaining agreement. The Union's notice of
December 19 to the four Companies stated that it "will not
be bound by any Agreement not negotiated by us, and we
have given no one the authority to negotiate on behalf of
the members of Local #70." Seven days later, on Decem-
ber 26, 1972, each of the four Companies by identical let-
ters notified the Respondent Union "that the multiemploy-
er-multiunion, nationwide collective-bargaining unit is the
only appropriate unit for collective bargaining purposes,"
and stated that they would not negotiate on an individual
basis.
On February 26, Frank E. Fitzsimmons, chairman of the
Teamsters National Freight Industry Negotiating Commit-
ny Goose Foods , et al) 195 NLRB 454 (1972), the same parties were litigants
in a similar proceeding which involved whether Local,70 had given timely
notice of its withdrawal from the multiunion bargaining group The Board
held it had not See also Brotherhood of Teamsters & Auto Truck Drivers
Local 70 (California Trucking Association), 194 NLRB 674 (1971) These two
cases describe the establishment and operations of the multiunion -multiem-
ployer bargaining unit of which the four Companies and Respondent Union
were members in the 1970 negotiations and of which judicial notice is taken.
It is found as in all negotiations since 1964, that the Charging Parties agreed
to be bound by the negotiations of the multiunfon-multiemployer groups for
the 1973-76 contracts
BROTHERHOOD OF TEAMSTERS , LOCAL NO. 70
tee, notified all employers that the National Master Freight
Agreement negotiations for the period 1973-76 would
commence at a date to be announced later. Upon receipt
of this letter, the said four Companies notified Local 70
that "collective bargaining for a new contract covering our
employees [members of Local 70] shall be conducted as
described in Mr. Fitzsimmon's letter [of February 26 and]
that such negotiations will cover the nationwide multiem-
ployer, multiunion collective-bargaining unit."
The first meeting of the multiunion negotiating commit-
tee and multiemployer bargaining group for the negotia-
tions of a new national agreement was held in Washington,
D.C., on May 9, 1973. Mack, secretary-treasurer of Local
70, was in attendance at various times for approximately a
month during these national negotiations. Negotiations for
the 1973-76 National Master Freight Agreement and Sup-
plements continued until June 28, when tentative agree-
ment was reached. Two delegates from each of the Team-
sters' locals met and approved the action of its national
negotiating committee. The National Master Freight
Agreement was then submitted to the union membership
for nationwide ratification. The agreement was duly rat-
ified on July 31. The effective date of the new agreement
was July 1, 1973, with an expiration date of March 31,
1976. International President Fitzsimmons then notified
the employers that they were to implement the monetary
terms of the new agreement by August 17 and that certain
nonmonetary clauses would become effective as of July 31,
1973.
During the course of the national negotiations, Walter J.
Shea, assistant to the International president, by letter dat-
ed May 14, notified C. G. Zwingle, president of Trucking
Employers, Inc., the Employers' bargaining representative,
that "the Teamsters National Freight Industry Negotiating
Committee is the authorized representative for Teamsters
Local Union 70, Oakland, California."
By letter dated May 18, counsel for the four Companies
notified the Teamsters' International president that "his-
torically" Sunshine Biscuits (one of the four Charging Par-
ties) had been part of the multiemployer-multiunion na-
tional collective-bargaining unit and that it is the
Company's intention to remain a part of the unit. The let-
ter stated that Sunshine Biscuits "does not wish to have a
representative attend the negotiations. As in the past, the
Company will be represented at negotiations pursuant to
the appropriate contract terms. Since it is a member of the
multiemployer-multiunion bargaining unit, it will automat-
ically be bound by any contract which is negotiated by the
parties." 4
In August 1973, after the ratification of the 1973-76 Na-
tional Master Freight Agreement on July 31, Local 70 re-
quested each of the four Employers in this proceeding to
enter into negotiations. However, all four took the position
that the new National Master Freight Agreement was
The record is not clear whether the other three Companies sent the same
letter However, Local 70's secretary-treasurer acknowledged receipt of a
copy of the letter and by letter dated May 30, he advised the four Compa-
nies' counsel that inasmuch as it had given "proper and legal notice" it
would not negotiate on a multfemployer-multiunion basis but only "sepa-
rately "
905
binding upon them and Local 70. By letter dated August
30, Mack, secretary-treasurer of Local 70, wrote to the four
Companies that Local 70 was "desirous of negotiating with
you independently." A letter, dated September 10, was sent
by company counsel to Local 70, reiterating that the four
Companies were a part of the multiunion-multiemployer
bargaining unit and therefore bound by the National Mas-
ter Freight Agreement ratified on July 31, and stating that
they had already placed into effect the terms and condi-
tions of that agreement. The letter continued that if the
Union insisted on independent negotiations, "We will be
forced to seek appropriate legal relief. This would include,
of course, the institution of additional National Labor [Re-
lations ] Board proceedings and other necessary legal ac-
tion."
Immediately thereafter, unfair labor practice charges
were filed by both the Charging Parties and Respondent:
by the Companies in support of its position that the Union
had refused to accept and be bound by the 1973-76 nation-
al collective-bargaining agreement in violation of Section
8(b)(3); and by the Union which alleged that the Compa-
nies violated Section 8(a)(5) by their refusal to recognize
that the Union had validly and effectively given timely no-
tice to them of its withdrawal from the multiunion bargain-
ing unit and its desire to bargain individually with them.
The Regional Director untied this Gordian knot by issuing
the complaint herein on December 13, and advising the
parties that action upon Local 70's unfair labor practice
charge against the four Companies was deferred pending
issuance of a definitive decision in the case at bar.
On January 23, 1974, the president of Joint Council No.
7 signed the supplemental agreement for the period 1973 to
1976 on behalf of the various locals in the San Francisco
Bay area, including Local 70.
C. Discussion
Both multiunion and multiemployer bargaining, as the
Supreme Court has observed, has been widely recognized
as an effective way to create stability in collective-bargain-
ing relationships and "a vital factor in the effectuation of
the national policy of promoting labor peace through
strengthened collective bargaining." 5 The practice first
came to the Board's attention in 1938 in representation
cases as a problem of defining the unit appropriate for
purposes of collective bargaining, and the Board held that
it had the authority to find a unit composed of the employ-
ees of several competing employers bargaining as a group
with a union, to be an appropriate one. Recognizing that
the foundation of a multibargaining group is consensual, it
follows that once the Company or Union evidences an in-
tention to no longer remain in a collective-bargaining
group, it will not be considered a part of the unit 7 The
same rules concerning the right to withdraw apply to both
5 N.L R B v Truck Drivers Local No 449, IBT, 353 U S. 87, 95 (1957)
See also N L R B v Brown, et a!, dba Brown Food Store, et al, 380 U S. 278,
284 (1965)
6 Shipowners Association of the Pacific Coast, 7 NLRB 1002, 1024-25
7 Carlton & Co, 54 NLRB 222, 228, Canada Dry Ginger Ale, 73 NLRB
460, 463, Milk and Ice Cream Dealers, 94 NLRB 823, 824 (1951)
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employers and unions alike.8 However, a company's or
union's withdrawal must be done at an appropriate time;
namely, before bargaining negotiations commence? Con-
versely, a member of a multiunit bargaining association
violates the Act if it withdraws from bargaining after nego-
tiations begin, absent special circumstances. 10 In 1958, in
the case of Retail Associates," the Board enunciated its
approach to the matter of withdrawal of either a union or
employer from a multiemployer unit as follows:
The right of withdrawal by either a union or employer
from a multiemployer unit has never been held, for
Board purposes, to be free and uninhibited, or exercis-
able at will or whim. For the Board to tolerate such
inconstancy or uncertainty in the scope of collective-
bargaining units would be to neglect its function in
delineating appropriate units under Section 9, and to
ignore the fundamental purpose of the Act of fostering
and maintaining stability in bargaining relationships.
Necessarily under the Act, multiemployer bargaining
units can be accorded the sanction of the Board only
insofar as they rest in principle on a relatively stable
foundation. While mutual consent of the union and
employers involved is a basic ingredient supporting
the appropriateness of a multiemployer bargaining
unit, the stability requirement of the Act dictates that
reasonable controls limit the parties as to the time and
manner that withdrawal will be permitted from an es-
tablished multiemployer bargaining unit. Thus, the
Board has repeatedly held over the years that the in-
tention by a party to withdraw must be unequivocal,
and exercised at an appropriate time. The decision to
withdraw must contemplate a sincere abandonment,
with relative permanency, of the multiemployer unit
and the embracement of a different course of bargain-
ing on an individual-employer basis. The element of
good faith is a necessary requirement in any such deci-
sion to withdraw, because of the unstabilizing and dis-
rupting effect on multiemployer collective bargaining
which would result if such withdrawal were permitted
to be lightly made. [Footnotes omitted.]
We would accordingly refuse to permit the withdrawal
of an employer or a union from a duly established
multiemployer bargaining unit, except upon adequate
written notice given prior to the date set by the con-
tract for modification, or to the agreed-upon date to
begin the multiemployer negotiations.12 Where actual
8 The Evening News Assn, 154 NLRB 1494, 1495 (1965), enfd sub nom,
Detroit Newspapers Publishing Assn v N L R B, 372 F 2d 569, 570 (C A 6,
1967), Publishers Association of New York City, 364 F 2d 293 (C A 2, 1966)
enfg 156 NLRB 210, cert denied 385 U S 971 (1966)
9 Brotherhood of Teamsters and Auto Truck Drivers Local No 70 (Granny
Goose Foods), 195 NLRB 454 (1972)
10 N L R B v State Electric Service, Inc, 477 F 2d 749, 751, 752 (C A 5,
1973), cert. denied 84 LRRM 2458.
11 120 NLRB 388, 393-395 (1958)
12 In Adams Furnace Co, 159 NLRB 1792 1794 (1966), the Board stated
that where the notice is "in writing and was given in a timely fashion with
respect to the termination date of the contract and prior to the commence-
ment of any multiemployer bargaining, and as the Union exhibited an un-
equivocal intention henceforth to conduct its negotiations with each Em-
ployer on an individual basis and to abandon permanently bargaining in a
bargaining negotiations based on the existing multi-
employer unit have begun, we would not permit, ex-
cept on mutual consent, an abandonment of the unit
upon which each side has committed itself to the
other, absent unusual circumstances. 13
D. Contentions of the Parties
The General Counsel argues that Retail Associates is in-
applicable to this proceeding since the holding in that case
with respect to timely withdrawal involved a single union
which represented the employees in a multiemployer unit,
whereas in the instant case there is involved both a mul-
tiumon and multi-employer situation. From this premise,
he argues that where a multiunion-multiemployer bargain-
ing unit is involved as here, to permit the Respondent
Union to unilaterally "sever out" the four Employers
would be tantamount to conceding to a "private party" the
authority to determine the appropriateness of a bargaining
unit wholly outside of the requirements of Section 9 of the
Act. Such determinations by a single party in a multiunion
situation, without the consent of the party to be "severed
out," he asserts, "are clearly detrimental to peaceful collec-
tive-bargaining procedures as well as a denigration of the
exclusive authority conferred on the Board by the Act to
make such determinations." He concludes that the filing of
either a representation petition or a UC petition for unit
clarification "is the only appropriate method by which a
union can sever an employer out of a multiunion bargain-
ing unit." As authority for this proposition, he cites Ameri-
can Pipe & Construction Co., 169 NLRB 1024 (1968), and
United Metal Trades Association, 172 NLRB 410 (1968).
General Counsel also argues as authority for his conten-
tion that the Board "indicated" in 1965 in The Evening
News Association case, supra, that "because of the joint rep-
resentation aspect . . . it is necessary for a union to peti-
tion the Board to determine whether the smaller unit com-
posed of the employer-or several employers-and a single
union would be an appropriate unit for bargaining." The
General Counsel's contention is based on obiter dictum in
the Evening News case on the part of the majority in re-
sponse to an argument advanced in the dissent. The major-
ity states, p. 1498:
Our dissenting colleague contends that an
employer's right to withdraw from participation in
multiemployer bargaining is "totally different" from a
union's right similarly to withdraw. In this respect, he
argues "one could equate an employer's participation
in multiemployer bargaining with a single union's en-
gagement in multiunion (e.g., through a Council) bar-
gaining." In our view, the equation does not balance.
As the dissent recognizes, in multiunion bargaining,
once a broad unit has been established by consent,
muitiemployer unit, we find that the Union has effectively withdrawn from
the multiemployer bargaining arrangement" In Hearst Consolidated Publi-
cations, Inc, 156 NLRB 210, 212 (1965), the Board spoke of the Union
having given "unequivocal notice of its desire to withdraw from the mul-
tiemployer unit and to bargain with each (employer] individually with-
out qualification or limitation "
13 See NLRB v Jeffries Banknote Co, 281 F 2d 893 (C A 9, 1960).
N L R B v Sheridan Creations, Inc, 357 F 2d 245 (C A 2, 1966)
BROTHERHOOD OF TEAMSTERS , LOCAL NO 70
one of the constituent unions could not generally
change the unit by unilateral action; 13 but neither
would the employer be permitted to do so.
13 This is generally but not always true One of the const ituent
unions could sever a segment of the broader unit, if it filed a petition
with the Board at an appropriate time, and if the smaller unit were
otherwise appropriate.
From the foregoing, it is argued by the General Counsel
that where, as here the bargaining unit from which with-
drawal is sought is multiunion in character, the only meth-
od open to a party for withdrawal is the filing of a petition
for an election; that withdrawal by written notice only is
not sufficient.
To this argument of the General Counsel, Respondent
answers that the dissenting Board member in Evening News
is referring to a situation where a single employer bargains
with many different craft unions which are represented by
a union council and whose members are all employed in a
single, plantwide bargaining unit. Respondent contends
that the language relied upon by the Board must thus be
read in the light of what the dissent stated. Turning to the
dissent in Evening News, the statement at page 1503 reads:
In this respect, one could equate an employer partici-
pation in multiemployer bargaining with a single
union's engagement in multiunion (e.g., through a
council) bargaining. [Citations omitted.] Where a
group of unions representing different units of a single
employer wish to consolidate, a single combined unit
can be achieved only with the employer's agreement.
[Citations omitted.] Once a broad unit is established
by mutual consent, an employer could not refuse to
bargain with the multiunion group as the representa-
tive of his employees; and while the question has never
been decided, it may be that one of the unions could,
under the proper circumstances and with prescribed
rules, withdraw from the council in order to seek an
independent course of bargaining with the employer. 14
[Emphasis supplied.]
Respondent points to the fact that the situation to which
the dissenting Board member in The Evening News refers,
and which the Board answers on page 1498 of its decision,
was a craft severance problem, where various crafts or
groups of employees of a single employer were engaged in
joint bargaining through a council of several unions. The
propriety of such severance, where opposed by an employ-
er, contends Respondent, is for determination by the
Board, and not possible by unilateral action of a union.
The present case, continues Respondent, involves instead a
different factual situation, namely, the question of whether
a union may separate one or more employers from a mul-
tiemployer bargaining unit. In such a case, contends Re-
spondent, the consent which is the basis for the original
participation can be withdrawn at an appropriate time for
14 The dissenting member at fn 29, p 1503 of Evening News, cites for
comparison four cases and states "I know of no cases, and the majority
cites none, to support the rule stated by it in footnote 13 "
907
the reasons stated by the Board in Retail Associates. Re-
spondent concludes that since there is no doubt in. the pre-
sent case that the Union satisfied the Board's requirements
for withdrawal as articulated in Retail Associates, its with-
drawal in the present case was effective, and it was entitled
thereafter to bargain separately with each of the Employ-
ers.
E. Conclusions
The Evening News decision rejected the contention ex-
pressed in the dissent that the Board could or should adopt
different or more restrictive rules to govern a union's with-
drawal from a multibargaining situation. In the instant
proceeding, however, the General Counsel nevertheless
contends that an additional requirement should be im-
posed on the withdrawing Union beyond the established
requirements of Retail Associates, namely that the Respon-
dent Union in order to make its withdrawal effective must
also petition the Board for a representation or unit clarifi-
cation proceeding.
The General Counsel's reliance on footnote 13 of Eve-
ning News as authority for the proposition that the Union
must seek unit approval before there may be a valid with-
drawal is without merit. This argument addresses itself to a
situation dissimilar from that involved here. In Evening
News the facts involved a single union (not, as here, a mul-
tiunion situation) which prior to its withdrawal had bar-
gained with a multiemployer bargaining unit. In the Eve-
ning News dissent, it was stated that an employer's right to
withdrawal from participation in a multiemployer unit was
entirely different from that of a union in a multiunion situ-
ation. The Board rejected this contention and denied that
any analogy could be made between the situation in a mul-
tiemployer unit, where one employer may withdraw con-
sent, and that of a union in a multiunion bargaining situa-
tion with a single employer where one union seeks to with-
draw and may thus change the entire nature of the
established bargaining unit. The quoted footnote 13 does
not express the contention made by the General Counsel in
the present case, but rather is referring to a craft severance
type of situation which involves altogether different con-
siderations.15
The holdings of American Pipe & Construction and Unit-
ed Metal Trades Association, supra, which are cited by the
General Counsel as stare decisis for the proposition that
Respondent Local 70's notice of withdrawal to the four
Companies was legally insufficient because its failure to
file a petition with the Board is inapposite as both these
cases also involved craft severance situations. In both these
cases the Board had before it a representation petition filed
by the bargaining representative to adjudicate the appro-
priateness of a newly sought bargaining unit . The Board
held that a single union would not be appropriate for bar-
gaining in light of the strong "community of interest" of
the single petitioning union's craft employees in the ex-
isting plantwide production and maintenance unit. The
employees had been represented by a multiunion council
in both of the above-cited cases for 14 and 27 years, re-
in Mallinckrodt Chemical Works, 162 NLRB 387 (1966)
908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spectively. The paramount interest, the Board held, was the
maintenance of stability in the existing multiunion bar-
gaining unit. To hold otherwise, the Board concluded,
would not only disrupt the existing pattern of representa-
tion, but also fragment the single petitioning union 's craft
employees' community of interest from that of the craft
employees of the other craft unions. This employee com-
munity of interest was found by the Board to be an essen-
tial and integral part of the total production process of the
plant. Thus both cases held that severance of the single
craft union from the other unions would be inappropriate.
The two cited cases then are clearly distinguishable and
not dispositive of the issues of the instant case.
The situation here, however, is entirely different. In con-
trast to the above cases, where the unit sought to be se-
vered had never been determined to be appropriate, Local
70 has been the bargaining representative of the employees
of the four Charging Parties for over 20 years. In 1964 this
bargaining unit was incorporated into the multiunion-mul-
tiemployer bargaining unit which is recognized in the Na-
tional Master Freight Agreement. All that Local 70 has
sought here is to withdraw that consent and resume bar-
gaining in the unit recognized as appropriate for many
years. Such action is not only proper, but is sanctioned by
the doctrine of Retail Associates, supra. However, for the
reasons hereinafter explicated, it is found that although
Respondent Union's written notice of withdrawal was
timely, it was not unequivocal.
Following conclusion of the multiunion-multiemployer
negotiations for the 1973-76 National Master Freight
Agreement and supplements thereto, officers of the Re-
spondent Union met at various times, beginning on August
29, with officials of certain of the Charging Party employ-
ers to inquire about implementation of certain monetary
increases and additional employee benefits provided for in
the new national agreement. At some time subsequent to
July 1, 1973, Sunshine Biscuits paid monetary increases
and gave additional employee benefits retroactive to July
1, provided for in the new National Master Freight Agree-
ment. Increased benefits were provided with respect to sick
leave, an additional week of vacation, wage increases also
retroactive to July 1, as well as increased contribution rates
to the Teamsters union health and welfare fund and pen-
sion funds.
Standard Brands, in accordance with the 1973-76 Na-
tional Master Freight Agreement, is presently paying the
increased monetary allowances for lodging and meals for
their truckdnvers, members of Local 70, on out-of-town
overnight trip layovers. In addition, Standard Brands made
a monetary adjustment in wages retroactive to July 1, pur-
suant to the increases contained in said National Master
Freight Agreement and Joint Council 7 Supplement for
1973-76. Also, Standard Brands paid increased health and
welfare and pension contributions for its employees to
both these Teamsters funds in excess of the payments
called for under the expired 1970-73 National Master
Freight Agreement.
Granny Goose presently pays its employees, who are
represented by Local 70, sick leave beginning with the first
day as provided for in the 1973-76 National Master
Freight Agreement, as well as the pay increase retroactive
to July 1, as provided for in the national agreement. In
addition, said Company has been billed since July 1, for
increased contributions to the Teamsters union pension
fund which it has paid.
The General Counsel's witnesses, officials of Standard
Brands, Sunshine Biscuits , and Granny Goose credibly tes-
tified that subsequent to the ratification of the National
Master Freight Agreement, the president and secretary-
treasurer of Local 70 contacted their Companies individu-
ally concerning the above-mentioned new and increased
benefits.16 Muniz, president of Local 70, asked Walter Sav-
age, an official of Standard Brands, in Savage's office on
December 12, whether his Company intended to pay the
increased truckdriver's meal and lodging allowance provid-
ed for in the new national contract and supplemental
agreement." Savage replied in the affirmative stating that
as soon as he examined the new contract and received the
approval of his superiors, he would do so. The union offi-
cial, James Muniz, then informed Savage that he would
mail him the new contract. He did so on December 12.
Later Savage pursuant to orders from his superiors made
all "monetary adjustments" required by the new National
Master Freight Contract and Supplements retroactive to
July 1, 1973. Savage also stated that his Company in-
creased the amount of its contribution to the Union's pen-
sion and health and welfare funds, retroactive to July 1, as
provided for in the new National Master Freight Agree-
ment. Savage testified that about 2 weeks after his meeting
with Muniz on December 12, the latter came to his office
and tried to elicit from him that Standard Brands was not
a party to the National Master Freight Agreement which
Savage denied. He further testified that at the December 12
meeting in his office, Muniz told him that Standard
Brand's truckdrivers were entitled to the increased rates
provided for in the new 1973-76 national contract.
Charles Adams, distribution manager for Granny Goose
(and like Savage a supervisor within the meaning of Sec-
tion 2(11) of the Act), testified that Ortiz, Local 70's shop
steward, came to him in late August and asked him if the
Company "was going to pay the first-day sick leave" provi-
sion in the new contract which became effective on July 1.
This provision states that pay for sick leave shall be com-
puted from the first day, whereas under the expired con-
tract the first day of sick leave was excluded and not paid
by the employer. Adams replied he would consult his su-
pervisors. He did so and was authorized to make payments
retroactive to July 1, beginning with the first day as speci-
fied under the new sick leave provision. It was stipulated
that all four Companies have been making the increased
payments into the pension and health and welfare fund as
provided in the new national contract.
Nunez, an official of Sunshine Biscuits, testified that on
August 29, Mack came to his office and asked Nunez if
Sunshine intended to pay the sick leave and the additional
16 The union shop stewards of Granny Goose, Standard Brands, and Sun-
shine Biscuits either alone or accompanied by union officers, Muniz and
Mack, also spoke to company officials with respect to the said provisions of
the new national contract
n The increased benefits are provided for in the 1973-76 National Master
Freight Agreement into which the supplemental agreement is incorporated
BROTHERHOOD OF TEAMSTERS , LOCAL NO 70
week of vacation provisions specified in the new contract.
These two items were subsequently granted by Sunshine
Biscuit to its employees represented by Local 70, retroac-
tive to July 1, 1973.
Some of the testimony of Savage, Adams, and Nunez
was disputed by Muniz and Mack, the officers of Respon-
dent Teamsters Local 70, with respect to matters of little
importance. All such testimony is resolved in favor of the
versions testified to by Savage, Adams, and Nunez, as to
the importuning of the Companies by the union officials to
pay their employees the benefits granted by the new na-
tional agreement.18 Testimony of the two union officials
denying generally any knowledge of contracts and specifi-
cally the provisions of the new national agreement and its
supplements is not creditable.
Attention must now be focused upon the legal relevance
and incidence of the above-described conduct on the part
of the officers of Local 70. It is clear that beginning less
than a month after ratification of the national agreement
they prevailed upon the Charging Party Companies to put
into effect the additional benefits and monetary increases
provided for in the 1973-76 National Master Freight
Agreement and its supplements.
Under the Board's decision, in order for withdrawal to
be effective, the notice must be in writing, at an appropn-
ate time, and unequivocal.19 The record reveals that Local
70 gave timely written notice to the four Companies prior
to the commencement of negotiations between the Interna-
tional multiunion bargaining unit and the multiemployer
bargaining unit. In addition to timely written notice, how-
ever, there is an additional indicium necessary for an effec-
tive withdrawal, namely, that the notice given by the party
seeking to withdraw from the multiparty bargaining group
be unequivocal.20
In 1951, the Board refused to recognize a purported
withdrawal because the employer had not "unequivocally
evinced" an intent to withdraw from a multiemployer bar-
gaining unit.21 In Retail Associates, it was stated that a
withdrawal to be effective must be "unequivocal" and
made in "good faith" at an appropriate time. Moreover,
the Board stated that a union's subsequent conduct must
not be inconsistent with its purported "unequivocal" with-
drawal.
In N.L.R.B. v. Jeffries Banknote Co,22 the Court of Ap-
peals for the Ninth Circuit held that the Board was war-
ranted in finding that the employer had not unequivocally
withdrawn from a multiemployer bargaining unit before an
agreement was reached which the employer refused to sign.
It was found that the employer continued negotiating with
18 No witness appeared to testify on behalf of Nabisco, Inc
19 Engineering Metals Products Corp, 92 NLRB 823, 824 (1951), Purity
Stores, Lid, 93 NLRB 199, 201 (1951), Washington Hardware Co, 95 NLRB
1001, 1003 (1951), Retail Associates Inc, 120 NLRB 388, 394, 395 (1958),
Teamsters Local 70 (Granny Goose et al), 195 NLRB 454 (1972)
20 Retail Associates, Inc, supra, Hearst Consolidated Publications, Inc, su-
pra, and John-Tyler Printing and Publishing Co, 112 NLRB 167 (1955).
where withdrawal was not allowed because the employer did not unequivo-
call^ evince an intent to pursue a course of completely individual action
2 Washington Hardware Co., 95 NLRB 1001, 1003 (1951), Adams Furnace
Co, 159 NLRB 1792 (1966). See In 12 of this decision
22 281 F.2d 893 (C.A 9, 1960), enfg sub nom Anderson Lithograph Co,
124 NLRB 920 (1959)
909
the union on a multiemployer basis instead of withdrawing
unequivocally in favor of negotiating on a single-employer
basis.
In Marrow Trucking Co.,23 the employer as a party to a
successive multiemployer contract contended that he was
not a party to the current contract because he timely with-
drew authority to bargain from the multiemployer associa-
tion and also had not individually signed that contract.
When the current multiemployer contract was executed,
the employer accepted a copy and permitted the union to
distribute copies to his employees. The employer also ad-
hered to the terms and conditions of the current contract,
including wages , dues checkoff and payments for health,
welfare, and pension benefits. In addition, when the em-
ployer learned of the wage scale provided for in the current
contract, he "promptly" applied it to his employees. The
Board concluded that the employer had neither "unequivo-
cally manifested an intention to withdraw from the estab-
lished multiemployer unit [nor] to pursue a course of deal-
ing individually with the [union] on a single employer ba-
sis." This definition of unequivocal as expressed in
Marrow, becomes a necessary indicium in determinng
whether in the case at bar, Respondent effectively with-
drew from the multiemployer bargaining unit.
A synthesis of the cases cited above with respect to the
import of the phrase "unequivocal intent," as defined by
the Board and courts, means not only that an employer or
union, as the case may be, must clearly express the decision
to withdraw but also that such an unequivocal decision:
[M]ust contemplate a sincere abandonment, with rela-
tive permanency, of the multiemployer unit and the
embracement of a different course of bargaining on an
individual-employer [or union] basis. The element of
good faith is a necessary requirement in any such deci-
sion to withdraw, because of the unstabihzing and dis-
rupting effect on multiemployer collective bargaining
which would result if such withdrawal were permitted
to be lightly made. The attempted withdrawal cannot
be accepted as unequivocal and in good faith where,
as here, it is obviously employed only as a measure
of momentary expediency, or strategy in bargain-
ing. ... 24
Therefore, in applying the essence of the above decisions
to the facts in the instant case, it is found that the conduct
of the Local 70 officials following their purported with-
drawal renders it equivocal. It appears that the notice given
to the four Charging Party Employers was both timely and
appropriate, but in derogation of Local 70' s expressed in-
tention to unequivocally withdraw from the multiunion
bargaining unit, by its thereafter insisting that the four Em-
ployers adhere to certain of the monetary and benefit in-
creases of the current 1973-76 National Master Freight
Agreement. Such inconsistent conduct establishes that the
Respondent Union's alleged withdrawal was neither un-
equivocal nor made in good faith. Thus, the actions of the
Respondent Union constituted a retraction of its purported
23 155 NLRB 271 (1965)
24 Retail Associates, Inc, 120 NLRB 388, 394 (1958)
910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
withdrawal and reestablished through its subsequent ac-
tions, an agency relationship with its bargaining represen-
tative, the International, in seeking and obtaining benefits
granted by the new National Master Freight Agreement.
The Union's inconsistent conduct in accepting the benefits
of the new contract now precludes it from asserting its
prior withdrawal was unequivocal. The bare statement of
the Union in professing its unequivocal withdrawal is
clearly insufficient in the light of its subsequent contradic-
tory, inconsistent, and cross-purposes conduct. Such con-
duct by Respondent "was obviously employed only as a
measure of momentary expediency or strategy in bargain-
ing." To give credence to the inconsistent conduct and af-
firmations of Respondent's witnesses would be tantamount
to exalting form over substance. In this instance, substance
rather than legalistic form must be controlling. The con-
duct of Local 70, subsequent to its purported withdrawal,
neutralizes the assertion of any desire to negotiate sepa-
rately expressed in the letter of withdrawal dated Decem-
ber 19, 1972.
Accordingly, Respondent's action in equivocally re-
nouncing and refusing to be bound by the terms of the new
National Master Freight Agreement and its supplement
and in demanding individual bargaining with respect to the
four Charging Parties herein, members of the national ne-
gotiating committee of Trucking Employers, Inc., the mul-
tiemployer bargaining unit, violates Section 8(b)(3) of the
Act. 5
F. Section 8(b)(1)(B)
The complaint was amended at the trial to allege a viola-
tion of Section 8(b)(1)(B) of the Act. It is General
Counsel's contention that Respondent Union violated this
section when it attempted to force the Charging Parties
to change their selection of Trucking Employers Inc.,
as its multiemployer bargaining representative. Section
8(b)(1)(B) of the Act provides that it shall be an unfair
labor practice for a labor organization or its agents "to .. .
restrain or coerce . . . an employer in the selection of his
representatives for the purposes of collective bargaining or
the adjustment of grievances." 26 The purpose of this sec-
tion is "clear on its face. It is designed to prevent unions
from restraining management's free choice of its agent to
bargain with the union or adjust grievances." International
Brotherhood of Electrical Workers [Bell Supervisors Protec-
tive Assn.] v. N.L.R.B., 487 F.2d 1143, 1152, (C.A.D.C.,
1972). Accord: Meat Cutters Union Local 81, [Safeway
Stores] v. N.L.R.B., 458 F.2d 794, 798 (C.A.D.C., 1972), fn.
10. The "right of employees and the corresponding right of
employers . . . to choose whomever they wish to represent
them . . . is fundamental to the statutory scheme. In gen-
eral, either side can choose as it sees fit and neither can
control the others' selection .. ," quoting General Electric
Co. v. N.L.R.B., 412 F.2d 512, 516-517 (C.A. 2, 1969). Spe-
25 In Detroit Newspapers Assn v. N L R B, 372 F.2d 569, 571 (C A. 6,
1967), the court stated that "it would seem that the Board could with
propriety inquire into the good faith of withdrawals
2 The briefs of the Charging Parties and Respondent are silent with re-
spect to the 8(b)(1)(B) allegations of the complaint
cifically, as the Senate Labor Committee explained in re-
porting out the bill in which Section 8(b)(1)(B) originated,
"this subsection would not permit a union to dictate who
shall represent an employer in the settlement of employee
grievances...." S. Rep. No. 105, 80th Cong., 1st Sess. 21,
I Legislative History of the Labor Management Relations
Act of 1947, cited with approval, Electrical Workers v.
N.L.R.B., supra. Therefore, union pressure amounting to
restraint and coercion applied directly to the employer to
influence his choice of a duly designated bargaining repre-
sentative is proscribed by the Act.
The facts in this case, however, are not those proscribed
by Section 8(b)(1)(B). Although Congress enacted this Sec-
tion 8(b)(1)(B) to prevent unions from coercing an employ-
er into joining or resigning from an employer association,
the action of Respondent Local 70 in seeking to bargain
individually with the Charging Parties was not inconsistent
with retention by said four Employers of their membership
in Trucking Employers, Inc. Accordingly, this allegation of
the complaint will be dismissed because Local 70 merely
by attempting to withdraw from the multiparty bargaining
unit did not commit an unfair labor practice. In order to
constitute such a violation there must be some showing of
union conduct tending to restrain or coerce27 Such evi-
dence is not present in this proceeding.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The unfair labor practices of the Respondent set forth
above, occurring in connection with the activities of the
Charging Parties described above, have a close, intimate,
and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow
thereof.
THE REMEDY
It having been found that the Respondent has violated
Section 8(b)(3) of the Act, it will be recommended that it
be ordered to cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the
Act.
Upon the basis of the foregoing findings of fact, and
upon the entire record in this proceeding, there are hereby
made the following:
CONCLUSIONS OF LAW
1. All drivers, hostlers, lift jitney operators, forklift oper-
ators, platform men, new furniture helpers, and helpers
employed by members of the above-mentioned employer's
group, the Charging Parties herein, constitute a unit appro-
priate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
2. Respondent represents, and at all material times here-
27 Morand Brothers Beverage Co, 91 NLRB 409, 416 (1950) Compare
Cascade Employers Assn, 141 NLRB 469 (1963), with Cheney California
Lumber Co, 130 NLRB 235, 242, (1961), denying modification 319 F 2d 375
(CA 9, 1963)
BROTHERHOOD OF TEAMSTERS , LOCAL NO. 70 911
in has represented , a majority of the above -described em- the Charging Parties, Respondent has engaged in, and is
ployees of the said four Charging Parties. engaging in, unfair labor practices within the meaning of
3. By refusing to accept and be bound by the terms of Section 8(bX3) of the Act.
the 1973-76 National Master Freight Agreement and sup- 4. Respondent did not violate Section 8 (b)(1)(B) of the
plement thereto, with respect to the aforesaid employees of Act.
[Recommended Order omitted from publication.]