Chel LaCort

National Labor Relations Board - Board Decisions

Dec 16, 1994

315 N.L.R.B. 1036 (N.L.R.B. 1994)

1036
315 NLRB No. 154
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Employer also contended that the Acting Regional Director
erred in finding that the initial meeting constituted the start of the
negotiations.
2 The Union and amici curiae AFL–CIO; Building and Construc-
tion Trades Department, AFL–CIO; International Longshoremen’s
Association, AFL–CIO; U.S. Chamber of Commerce; National Elec-
trical Contractors Association, Inc.; and Associated General Contrac-
tors of America, Inc. participated in the oral argument in the instant
case, and several of these also filed postargument briefs. The Em-
ployer did not participate in the oral argument or file a postargument
brief. By letter dated May 4, 1994, counsel for the Employer notified
the Board that the Employer would not participate in the oral argu-
ment, but would rely on its previous submissions to the Board.
3 Joseph J. Callier, 243 NLRB 1114, 1117 (1979).
4 Acropolis Painting, 272 NLRB 150 (1984), cited by the Em-
ployer, is clearly distinguishable as the parties there had expressly
agreed to a specific period for withdrawal. Other cases, such as Gary
Jasper Enterprises, 287 NLRB 746 (1987), are also distinguishable
in our view. That case involved a peculiar bargaining history in
which there had been a long hiatus since the association had last bar-
gained on the employer’s behalf, and the employer had been released
from the predecessor contract several months prior to the commence-
ment of negotiations. Unlike Gary Jasper, where the association uni-
laterally activated a dormant authority to bargain on behalf of the
employer, this case simply presents an uninterrupted exercise of del-
egated bargaining authority by the Employer’s designated agent.
5 We note in this regard that there is no evidence in this case of
collusion or conspiracy involving the Union. We leave to another
Chel LaCort, Petitioner and Northeast, Western
Pennsylvania and Ohio Department and East-
ern Pennsylvania Department, International
Ladies Garment Workers Union. Case 4–RM–
1172
December 16, 1994
DECISION ON REVIEW
BY CHAIRMAN GOULD AND MEMBERS STEPHENS,
DEVANEY, BROWNING, AND COHEN
The issue in this case is whether the Employer-Peti-
tioner timely withdrew from the multiemployer bar-
gaining unit. On June 7, 1991, the Acting Regional Di-
rector issued a decision and order (pertinent portions
are attached as an appendix) finding that the Employ-
er’s withdrawal was untimely under the rules set forth
in Retail Associates, 120 NLRB 388 (1958), inasmuch
as the Employer failed to give notice of withdrawal
prior to commencement of the negotiations over a suc-
cessor collective-bargaining agreement, and also failed
to show any ‘‘unusual circumstances’’ that would per-
mit its otherwise untimely withdrawal under those
rules. Accordingly, the Acting Regional Director dis-
missed the Employer’s petition.
On July 5, 1991, the Employer filed a request for
review of the Acting Regional Director’s decision and
order with the Board. The Employer contended that the
Acting Regional Director had erred in finding its with-
drawal untimely under the rules in Retail Associates
since the Employer and the general membership of the
multiemployer association as a whole had not been in-
formed of the initial meeting between the multiem-
ployer association and the Union, which occurred sev-
eral months prior to the deadline set in the contract for
notification to reopen.1
By order dated January 23, 1992, the Board granted
the Employer’s request for review as it raised substan-
tial issues warranting review. Thereafter, on May 23,
1994, the Board held oral argument concerning the ap-
plication of the rules set forth in Retail Associates.2
The Board has considered the Acting Regional Di-
rector’s decision in light of the record, request for re-
view, oral arguments, and postargument briefs, and has
decided to affirm the Acting Regional Director’s deci-
sion and order for the reasons set forth therein.
In Retail Associates, the Board stated that, in ac-
cordance with the Act’s fundamental purpose of foster-
ing and maintaining stability of bargaining relation-
ships, it would refuse to permit withdrawal of an em-
ployer or union from a duly established multiemployer
bargaining unit, ‘‘except upon adequate written notice
given prior to the date set by the contract for modifica-
tion, or to the agreed-upon date to begin the multiem-
ployer negotiations.’’ The Board further stated that
‘‘where actual bargaining negotiations based on the ex-
isting multiemployer unit have begun, we would not
permit, except on mutual consent, an abandonment of
the unit upon which each side has committed itself to
the other, absent unusual circumstances.’’ 120 NLRB
at 395.
In agreement with the Union and most of the amici
curiae who participated at the May 23, 1994 oral argu-
ment, we find that no modification to the 36-year old
Retail Associates rules is necessary or warranted to ad-
dress the issues raised by this case. We further find
that the Acting Regional Director properly applied
those rules to the facts here in finding that the Em-
ployer had failed to show any ‘‘unusual cir-
cumstances’’ within the meaning of Retail Associates
justifying its otherwise untimely withdrawal. The ‘‘un-
usual circumstances’’ exception under Retail Associ-
ates has historically been limited to only the most ex-
treme situations, such as where the withdrawing em-
ployer can establish that it is faced with dire economic
circumstances, such as imminent bankruptcy, or when
the multiemployer unit has dissipated to the point
where the unit is no longer a viable bargaining entity.3
Neither the Employer, nor our dissenting colleagues,
cite any precedent which would support extending the
‘‘unusual circumstances’’ exception to situations where
the multiemployer association fails, either deliberately
or otherwise, to inform its employer-members of the
start of negotiations.4
Nor do we think the ‘‘unusual circumstances’’ ex-
ception should be extended to such situations.5 Wheth-
1037CHEL LACORT
case to decide whether or when such evidence would be sufficient
to show ‘‘unusual circumstances.’’
6 Indeed, imposing such a notice requirement on the multiemployer
association might actually have the effect of imposing such a re-
quirement on the union, for the only way the union could be sure
that such notice was given and that the employer-members would be
bound would be to give such notice itself.
1 Although the majority distinguishes it on factual grounds, Gary
Jasper Enterprises, 287 NLRB 746 (1987), is not without relevance
for several reasons. First, even though the Board did not use the ru-
bric of the ‘‘unusual circumstances’’ exception, the case still dem-
onstrates that the Board has not applied Retail Associates mechani-
cally. Instead, the Board there adopted what has been described as
a case-by-case approach whereby it takes into account unique facts
and circumstances of a dispute. Secondly, Gary Jasper Enterprises,
albeit without elaboration, indicates that ‘‘[n]otification of the date
set for bargaining is a prerequisite to ‘timely’ withdrawal,’’ thus sug-
gesting at the very least that the presence or absence of notice may
be a factor to consider in the analysis. See Action Electric v. Elec-
trical Workers Local 292, 856 F.2d 1062, 1066 (8th Cir. 1988), in
which the court observed with respect to Retail Associates that ‘‘re-
cent Board cases [including Gary Jasper Enterprises] also indicate
that a case-by-case approach taking into account all the relevant cir-
cumstances is necessary and appropriate to the resolution of disputes
in this area and to balance the legitimate interests of stability and
voluntariness.’’
er and to what extent a multiemployer association
communicates with its members is an internal associa-
tion matter which is properly and readily resolved by
and between the multiemployer association and its
members. Were we to find ‘‘unusual circumstances’’
in cases of this kind where the multiemployer associa-
tion fails to notify its members of the start of negotia-
tions, we would effectively be imposing a notice re-
quirement on the multiemployer association and insert-
ing ourselves into the association/member relationship
unnecessarily and with uncertain consequences.6
Finally, while we share the concern expressed in
Member Cohen’s dissent for the rights of employees,
we do not agree that imposing a notice requirement on
the multiemployer association would provide the em-
ployees of the individual employer-member with any
greater protection. Whether an employer bargains indi-
vidually or as part of a multiemployer unit has no di-
rect impact on employees’ Section 7 rights. While it
may determine the scope of the appropriate unit in any
representation election, the fact remains that the deci-
sion whether to join or remain in the multiemployer
bargaining unit is made by the employer, not the em-
ployees, and without necessarily any regard for the
employees’ desires. Contrary to Member Cohen, we
would not presume that the desires of an individual
employer seeking to withdraw from a multiemployer
unit are coextensive with its employees’ desires in
such circumstances.
Accordingly, the Acting Regional Director’s deci-
sion and order is affirmed.
MEMBER STEPHENS, dissenting.
For many of the reasons set forth in Member
Cohen’s separate dissent, I join him in voting to re-
verse the Acting Regional Director’s dismissal of the
Employer’s petition. The credited evidence establishes
the deliberately covert manner in which the Associa-
tion commenced ‘‘actual bargaining negotiations,’’
thereby depriving the Employer of a meaningful oppor-
tunity to timely withdraw from the multiemployer unit.
On these facts, application of the ‘‘unusual cir-
cumstances’’ exception of the Retail Associates rule
(120 NLRB 388 (1958) is neither an unwarranted nor
an uncomfortable stretch.1
In applying that exception, I would not—as the ma-
jority suggests—simply be providing redress for an in-
ternal communications problem that would best be
dealt with in civil lawsuits under state law governing
private associations. Rather, I am seeking to protect the
right of employers freely to choose whether they shall
bargain individually or in a group. The legislative his-
tory of Section 8(b)(1)(B) of the Act reflects Congress’
concern in this regard; and we properly take it into ac-
count in establishing the rules for determining when an
employer will be regarded as having designated an as-
sociation as its collective-bargaining representative and
when and by what means it is free to withdraw that
designation so far as obligations under the Act are af-
fected. Establishment of such rules is clearly within the
province of the Board. See Acropolis Painting, 272
NLRB 150, 154 (1984), and cases there cited.
At the same time, I am mindful of the policy of
‘‘fostering and maintaining stability in bargaining rela-
tionships’’ which underlies Retail Associates. I would
not give to those employers who do not like the way
negotiations seem to be shaping up the option of with-
drawing simply by using the excuse of lack of express
notice and inattentiveness to past bargaining practice.
For that reason, it is critical to my decision here that
the Association sent affirmatively misleading news-
letters to its members indicating that, whatever might
have been the practice in the past, negotiations had not
yet begun and would not commence until after the As-
sociation members had met to formulate their position.
In my view, this is truly an unusual case and therefore
one for which the ‘‘unusual circumstances’’ exception
is appropriate.
MEMBER COHEN, dissenting.
Like my colleagues, and as argued by the Union and
most amici curiae at the May 23, 1994 oral argument
in this case, I would apply the principles of Retail As-
sociates, 120 NLRB 388 (1958), to the facts of this
case. Thus, under Retail Associates, the Employer’s
withdrawal from the Atlantic Apparel Contractors As-
sociation (Association), after negotiations had begun
with the Union for a successor contract, was untimely,
unless there were ‘‘unusual circumstances’’ permitting
1038 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Employer was not aware of the Union’s letter.
2 All subsequent dates are in 1991 unless noted.
3 Consistent with Delin’s testimony, the evidence indicates that the
Employer was kept in the dark about the January negotiations in
1988. Thus, in March 1988, the Employer learned from Association
members that negotiations were about to begin for a successor to the
1985–1988 contract.
the withdrawal. Contrary to the majority, however, I
find ‘‘unusual circumstances’’ in this case.
The following facts are undisputed. After the Em-
ployer commenced operations in 1985, it recognized
the Union, joined the Association, and authorized the
Association to bargain on its behalf as part of a multi-
employer unit. Thereafter, the Employer became bound
to the successor collective-bargaining agreement nego-
tiated by the Union and the Association, effective from
June 1, 1988, until May 31, 1991.
Under the 1988–1991 contract, if either the Union or
the Association wished to modify its terms, that party
was required to give written notice at least 60 days
prior to the May 31, 1991 expiration date. Pursuant to
this contractual requirement, the Union wrote the As-
sociation on December 10, 1990, seeking to modify the
agreement and requesting a meeting in early January
1991.1
Subsequently, the Association and the Union agreed
to meet on January 7, 1991.2 The Association’s board
of directors was notified of the meeting, and, through
it, about 25 to 30 Association members informally
learned of the meeting. The Employer and the other
125 members did not. Indeed, the January 7 meeting
was ‘‘private,’’ and the Association deliberately kept
the meeting secret from its members. As the Associa-
tion’s executive director, Delin, explained:
No, we don’t tell them because you don’t tell
them those things. When you do . . . they’d be
bothering you everyday.
Further, when pressed as to whether an employer
who had been an Association member for 5 years
would know that negotiations usually begin with a pri-
vate meeting in January, Delin acknowledged that such
an employer would not know.3
At the January 7 meeting, the Union submitted bar-
gaining proposals to the Association. Thus, this meet-
ing constituted the onset of negotiations. However, as
discussed above, the Association deliberately concealed
this meeting from the Employer. Further, the Associa-
tion perpetuated this deception in subsequent commu-
nications with its members. Thus, on January 14, the
Association wrote its members that a special meeting
would be held February 4, to ‘‘discuss the upcoming
contract negotiations.’’ (Emphasis supplied.) Similarly,
in its February 4 newsletter to members, the Associa-
tion repeated that the February 9 special meeting had
been scheduled ‘‘to discuss upcoming contract negotia-
tions.’’ (Emphasis supplied.) Neither the January 14
notice nor the February 4 newsletter mentioned the
January 7 meeting.
Having received no indication that bargaining had
commenced, the Employer wrote the Association and
the Union on February 19 or 20 that it was withdraw-
ing from the Association and rescinding the Associa-
tion’s authority to bargain on its behalf. The Associa-
tion and Union received these letters on February 21
and 22, respectively. At the time of the attempted
withdrawal, the only bargaining that had occurred was
at the January 7 meeting which the Association had
concealed from the Employer.
In these circumstances, where the onset of bargain-
ing was intentionally withheld from the Employer, and
the Employer would not otherwise have known that
bargaining would begin in early January, I view the
February withdrawal as privileged under the ‘‘unusual
circumstances’’ exception in Retail Associates. The
Act guarantees employees the right to choose, in an
appropriate unit, whether they wish to be represented
by a union. The appropriate unit is multiemployer wide
only if the employer of the employees has clearly con-
sented to be part of such a unit. In the instant case,
the Employer has chosen precisely the opposite, i.e., it
has chosen to be in a separate unit. But for the decep-
tion practiced by the Association, that decision would
have been effectuated prior to the onset of negotia-
tions. In these circumstances, I would not permit the
Association’s deception to frustrate the rights of the
employees.
My colleagues suggest that I am imposing a ‘‘no-
tice’’ requirement in all cases, i.e., a requirement that
an association notify its members of any and all nego-
tiations with the union. I am not imposing any such re-
quirement. My decision is based on the narrow facts
of this case. Those facts show, through the testimony
of the executive director of the Association, that the
Association deliberately kept members in the dark with
respect to the holding of early negotiations.
My colleagues and the Union argue that the Asso-
ciation is the agent of the Employer, and thus the Em-
ployer’s remedy is to proceed against its agent, the As-
sociation. However, the issue of concern to the Board
in this case is not the business claims of employers
vis-a-vis each other; rather it is the statutory rights of
the employees under Section 7 and of the Employer
under Section 8(b)(1)(B).
With respect to employee rights, my colleagues say
that ‘‘whether an employer bargains individually or as
part of a multiemployer unit has no direct impact on
employees’ Section 7 rights.’’ I disagree. The unit de-
termination in this case has a direct impact on whether
the Employer’s employees will be able to decide for
themselves whether they wish to be represented by a
union.
1039CHEL LACORT
Finally, my colleagues assert that I am presuming
that the desires of the employees are the same as those
of the Employer. I make no such presumption. I do not
know the desires of the employees concerning the
issue of whether the Employer should bargain in a
multiemployer unit. That is a consensual decision for
the Employer and the Union, and here the Employer
has clearly chosen not to bargain in the multiemployer
unit. Of greater importance is the desire of the Em-
ployer’s employees on the issue of whether they wish
to be represented by the Union. Again, I do not know
their desires. I wish to conduct an election to ascertain
their desires. Therefore, I dissent.
APPENDIX
REGIONAL DIRECTOR’S DECISION AND ORDER
Upon a petition duly filed under Section 9(c) of the Na-
tional Labor Relations Act, as amended, a hearing was held
before a hearing officer of the National Labor Relations
Board.
The Employer is a partnership engaged in cutting textiles
at its facility in Pen Argyl, Pennsylvania. The Employer’s
principal partners are Donald Cassiono and Fred C. DeRea.
The Employer began operations in the fall of 1985. In about
October or November 1985, the Employer voluntarily recog-
nized the International Ladies’ Garment Workers Union
(ILGWU) as the bargaining representative of its employees.
At approximately the same time, the Employer joined the At-
lantic Apparel Contractors Association, Inc., which is a mul-
tiemployer trade association of employers in the garment in-
dustry. The Association and ILGWU have had a collective-
bargaining relationship for about 15 years. The Association
and ILGWU, on behalf of its affiliated locals located within
the Northeast, western Pennsylvania and Ohio Department
and the eastern Pennsylvania Region of ILGWU, were par-
ties to a collective-bargaining agreement effective from June
1, 1988, until May 31, 1991. The Employer contends that al-
though it was bound to the contract, it has withdrawn from
the Association and is not bound to any contract reached be-
tween the Association and ILGWU as a result of their cur-
rent negotiations. The Union contends that the Employer’s
request to withdraw from the Association was untimely and
that the Employer remains part of the multiemployer bargain-
ing unit and, therefore, the instant petition should be dis-
missed.
The Association’s only contract is with ILGWU. In the
past, ILGWU has asked the Association to begin negotiations
for a new agreement in December or January before the ex-
isting contract expires, and for about the last 15 years, the
parties’ contract negotiations have begun in December or
January every third year. In the last negotiations, ILGWU
sent the Association a letter dated December 14, 1987, re-
questing negotiations for a new contract, and negotiations
began in January 1988.
With respect to the current negotiations, ILGWU sent the
Association a letter dated December 10, 1990, requesting that
negotiations for a new contract begin and suggesting ‘‘our
first formal meeting’’ be held on January 2, 3, 4, 7, or 8,
1991. On January 7, 1991, two Association representatives
met with four ILGWU representatives. The parties’ chief ne-
gotiators, the Association’s executive director, Arnold Delin,
and ILGWU Vice President Sol Hoffman, were present. The
Association also was represented at the meeting by its presi-
dent, Joseph Dell’Abba. At the meeting, ILGWU gave the
Association a number of written proposals which the parties
discussed, but no agreement was reached.
The Association has about 125 members from Pennsyl-
vania and New Jersey and a 12-member board of directors.
The board members knew in advance that the initial negotia-
tion session was to be held on January 7, l991. Delin esti-
mated at the hearing that 25 to 35 Association members
knew of the meeting beforehand, including those who were
informed by word of mouth. The general membership of the
Association, including the Employer, however, was not in-
formed that the initial bargaining session was being held on
January 7, 1991. In general, members of the Association
know from the past that negotiations begin at the same time
of the year. The Employer has never asked the Association
when it planned to start negotiations; it has not been an ac-
tive participant in the Association’s labor negotiations since
it joined and did not participate in the current negotiations.
The Employer has never attended the Association’s board
meetings and has not participated in any of its committees.
The Association’s notice of special meeting dated January
14, 1991, and its newsletter dated February 4, 1991, which
was distributed to all members of the Association, announced
a membership meeting to be held on February 9, 1991, ‘‘to
discuss the upcoming contact negotiations.’’ At the February
9, 1991 meeting, Delin discussed contract proposals that the
ILGWU had already given to the Association on January 7.
The Association did not give any other formal notification to
its members about the January 7, 1991 negotiation session,
although some members heard about it by word of mouth.
In early February 1991, the date for the second negotiation
session between the Association and ILGWU was scheduled
for March 25, 1991. Before the second session, Delin,
Dell’Abba, and the board appointed five members to join
them on the Association’s labor committee for negotiations
and a sixth member was added at his request. About the first
week of February 1991, the Association’s labor committee
got copies of proposals presented by the ILGWU at the Janu-
ary 7, 1991 negotiation session.
On February 19 or 20, 1991, the Employer’s managing
partner, Fred C. DeRea, sent certified, undated letters to the
Association and to the Union announcing its resignation from
the Association ‘‘retroactive to January 1, 1991,’’ and stating
that the Association was not authorized to negotiate with
ILGWU on its behalf after May 31, 1991. The Employer
thought that contract negotiations had not yet begun. The
collective-bargaining agreement does not provide an agreed-
upon procedure for an employer’s withdrawal from multiem-
ployer bargaining. Cf. Acropolis Painting, 272 NLRB 150
(1984). The Association received its letter on February 21,
1991, and the Union received its letter on February 22, 1991.
By letter dated March 12, 1991, the Union informed DeRea
that it rejected the Employer’s withdrawal from the Associa-
tion because it was untimely. The Association and ILGWU
had additional negotiation sessions on March 25 and April
29, 1991.
The issue presented by this case is whether the Employer
withdrew timely from the multiemployer unit. In Retail Asso-
ciates, 120 NLRB 388 (1958), the Board set forth rules gov-
1040 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
erning the withdrawal of an employer or a union from multi-
employer bargaining. Prior to the beginning of negotiations,
withdrawal can only be effected by an unequivocal written
notice expressing a sincere intent to abandon, with relative
permanency, the multiemployer unit, and to pursue negotia-
tions on an individual employer basis. Once negotiations
begin, withdrawal can only be effected on the basis of ‘‘mu-
tual consent’’ or when ‘‘unusual circumstances’’ are present.
Here, the record establishes that bargaining commenced on
January 7, 1991, and that ILGWU gave the Association con-
tract proposals on that date. In Carvel Co., 226 NLRB 111,
112 (1976), enfd. 560 F.2d 1030 (1st Cir. 1977), the Board
held that once proposals are given by one party to another,
negotiations have commenced and a subsequent withdrawal
by an employer from multiemployer bargaining is untimely.
Further, the Employer’s withdrawal was not effective be-
cause there was no mutual consent and the Employer has not
shown any ‘‘unusual circumstances.’’ Northern Petroleum
Equipment Corp., 244 NLRB 685, 687 (1979). When an em-
ployer’s withdrawal is untimely, it remains part of the multi-
employer unit. Accordingly, I find that the Employer is
bound by the current negotiations, and I shall dismiss the
Employer’s petition. See Elevator Sales & Service, 278
NLRB 627, 632–633 (1986).