Fairmont Foods Co.

National Labor Relations Board - Board Decisions

May 2, 1972

196 N.L.R.B. 849 (N.L.R.B. 1972)

FAIRMONT FOODS CO.
Fairmont Foods Company and Milk Drivers and Dairy
Employees , Local 471, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America . Case 18-CA-3220
May 2, 1972
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS FANNING,
JENKINS , AND PENELLO
On November 30, 1971, Trial Examiner Myron S.
Waks issued the attached Decision in this proceeding.
Thereafter, Respondent filed exceptions and a sup-
porting brief.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
brief and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions and to adopt his
recommended Order.
The Trial Examiner finds that Respondent violated
Section 8(a)(5) and (1) of the Act by refusing to sign
the contract arrived at during multiemployer bargain-
ing. Respondent excepts to this finding contending,
inter alia, that the Union consented to its withdrawal
from multiemployer bargaining. Unlike our dissent-
ing colleague, we agree with the Trial Examiner that
the evidence does not support this contention.
Our dissenting colleague in essence would find that
the Union, • by failing to object, consented to
Respondent's withdrawal from multiemployer bar-
gaining. In our opinion the failure to object without
more is insufficient to establish consent. Of course,
consent may be implied from affirmative conduct
which is indicative of consent to the withdrawal. The
John J. Corbett Press Inc., 163 NLRB 154, 158. Our
dissenting colleague does not point to any such af-
firmative conduct on the part of the Union and in our
opinion, there is none. Rather he infers such consent
by speculating that the Union here was willing to
consent to have a stumbling block to the negotiations
removed through the withdrawal of Respondent and
that this is the reason that the Union did not object
to Respondent's withdrawal. The facts here do not
support such an inference and, in any case, we do not
believe the Board should indulge in such speculation.
It is true that Respondent's position on load limits was
a stumbling block in the negotiations. However, it was
only one of several items which separated the parties
at the point of Respondent's attempted withdrawal.
Moreover, there is nothing here to indicate that the
Union thought that Respondent's continued presence
prevented agreement. Respondent had, in past nego-
tiations on both a multiemployer and single employer
849
basis, taken substantially the same position it was
taking during these negotiations and in the past had
always receded from that position. In fact, during the
current negotiations the multiemployer group, includ-
ing Respondent, had modified its position on this is-
sue in the "final offer" it submitted to the Union and,
so far as the record shows, the Union had no reason
to believe agreement could not be reached with the
employers on this issue. (The Union was not informed
of Respondent's reservation of authority to block any
agreement which included load restrictions.) In these
circumstances, we can not agree with our dissenting
colleague's conclusion that the Union's failure to ob-
ject to Respondent's announced withdrawal meant
acquiescence because it must have understood that
the nonparticipation of Respondent in the group ne-
gotiation would lead to an agreement which would
not be reached if Respondent continued as part of the
group. Our dissenting colleague suggests that negotia-
tions had reached the point of impasse at the time of
withdrawal. We do not agree for the reasons set forth
by the Trial Examiner. However, even if negotiations
had reached impasse at the time of the attempted
withdrawal, the disagreement included issues other
than the load limits issue and there is no basis for
assuming that the Union would conclude that it
would be substantially closer to an agreement because
of the withdrawl of this one employer such that con-
sent could be implied from a failure to object to a
withdrawal at that point.
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
Order of the Trial Examiner and hereby orders that
Fairmont Foods Company, Minneapolis, Minnesota,
its officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's recom-
mended Order.
CHAIRMAN MILLER , dissenting:
In Ice Cream, Frozen Custard Employees, Local 717,
145 NLRB 865, this Board said, at 870:
... where there has been a breakdown in negotia-
tions leading to an impasse and a resultant strike,
an employer, if he so chooses and the union
agrees, is not precluded from voluntarily with-
drawing from a multiemployer unit.... .
The voluntary withdrawal of the aforesaid em-
ployers from multiemployer bargaining, howev-
er, neither excused Respondents from its
obligation to respect the integrity of the multiem-
ployer unit to the extent it thereafter remained
intact, nor released the Union from its duty to
196 NLRB No. 122
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
continue to recognize the Council's representa- TRIAL EXAMINER'S DECISION
tive status for those employers who still desired
to bargain on a multiemployer basis.
Although the above langauge appeared in the con-
text of an alleged violation of our Act by a union, the
principles stated with respect to both union and em-
ployer conduct seem to me to be sound and to be
applicable here.
True, the Trial Examiner and my colleagues are
unable to find either impasse or union acquiescence
in the instant case. But in so finding, it is my view that
they fail to appreciate the realities of bargaining and
what the record convinces me where the realities of
this case.
It seems clear to me that the issue of load re-
strictions was a stumbling block to the negotiations,
and it seems equally clear to me that all parties knew
that Respondent's firm position on this issue was not
fully shared by other members of the group. As that
situation became clear and as the parties neared their
negotiating deadline, two things occured-one, the
"final" offer of the multiemployer negotiators failed
to achieve a recommendation of the union negotiating
committee and all concerned knew-as any expe-
rienced negotiator knows-that as a result the final
offer was doomed to rejection and a strike was immi-
nent. Thus at that point, an impasse existed.
It is true that as events unfolded, the impasse was
shortlived. But why? Again, it seems clear to me that
a change in the position of the employers' negotiators
on the issue of load restrictions was a sine qua non for
breaking the impasse. And that became possible 1
through Respondent's decision to go it alone on this
issue and to withdraw from the group, thus clearing
the way for a resolution of this issue by those who
remained in the multiemployer negotiations.
Under these circumstances, the failure of the Union
to protest Respondent's withdrawal is quite under-
standable, but as one understands it in this light, it is
equally clear that its silence meant, and was indeed
intended to mean, acquiescence.
And it seems particularly incongruous for this
Board to find a defecting member of a bargaining
group guilty of a bad-faith bargaining when, as here,
his leaving the negotiations permitted-and indeed
was essential to-further progress toward meaningful
bargaining between the employer group and the un-
ion.
For these reasons, I dissent and would dismiss this
complaint.
STATEMENT OF THE CASE
MYRON S. WAKS, Trial Examiner : This matter was heard
on July 27, 1971, 1 at Minneapolis , Minnesota , pursuant to
a charge filed May 11, and a complaint issued on June 11.
The complaint alleges that Respondent , a member of a
multiemployer bargaining group, has failed and refused to
sign the contract agreed to by the multiemployer group and
the Union in violation of Section 8(a)(1) and (5) of the Act.
Respondent Company, while admitting certain allegations
of the complaint, denied that its admitted refusal to sign the
multiemployer agreement with the Union was violative of
the Act.
All parties were represented at the hearing and were af-
forded full opportunity to be heard, to introduce relevant
evidence, to present oral argument, and to file briefs. The
parties waived oral argument ; briefs were received from all
parties. Based on a consideration of the entire record herein,
the briefs of the parties, and upon my observation of the
witnesses , I make the following:
FINDINGS OF FACT
I. COMMERCE
The pleadings establish and I find that Respondent, a
Delaware corporation with its principal office in Omaha,
Nebraska , is engaged in the production and wholesale dis-
tribution of dairy products in several States including Min-
nesota, where it operates a plant engaged in the processing
and distribution of dairy products in Minneapolis ; further,
that Respondent in the year preceding the complaint sold
goods valued in excess of $50 ,000 and received goods valued
in excess of $50,000 which were transported to its various
processing plants directly from points located outside the
several States where such plants are located.
Upon the admitted facts, I fnd that Respondent is an em-
3lo er engaged in commerce within the meaning of Section
(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The pleadings further establish and I find that Milk
Drivers and Dairy Employees, Local 471, affiliated with
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
1. Background
The Union has had a collective-bargaining relationship
with the Respondent since 1957 when the Respondent first
started doing business in the Minneapolis area. This rela-
tionship has been maintained by a series of successive con-
tracts through April 30, 1971. For a number of years, the
Respondent bargained as part of a multiemployer group 2
of about 14 employers engaged in the dairy industry in the
Minneapolis area. Although the record is not clear as to the
Unless otherwise indicated , the dates referred to herein occurred in 1971.
Z Until recent years there was a formal association with a secretary; the
Agreement on any other basis appears to have been literally beyond association has been discontinued, but a review of the contracts in evidence
reach , since the Respondent had reserved the right , as against the Associa - shows that a majority of the employers who participated in the multiemploy-
tion, to block any agreement which included load restrictions . er bargaining has been the same for each contract.
FAIRMONT FOODS CO. 851
earliest date that group bargaining , started , it establishes
that at least as of 1965 multiemployer bargaining between
the employers ' group and the Union was followed . In 1965
the multiemployer group bargained A 2-year contract with
the Union . The method of bargaining followed by the em-
ployers' group and the Union in 1965 and for each of the
succeeding contracts was outlined by the undisputed testi-
mony of Robert E. Moran , president of Local 471. The
employers ' group prior to the onset of bargaining retained
a bargaining representative , who, with a committee of em-
ployers ' representatives selected by the employer-members
of the group , negotiated with the union committee. Upon
agreement the contract was signed by the Union and the
representatives of the employers ' group obtained the signa-
tures of the employer-members to the document . The doc-
ument executed between the Union and the
employer-members is entitled "Articles of Agreement be-
tween Minneapolis Milk Dealers and the Milk Drivers and
Dairy Employees Union Local 471. In the recognition
clause of this and each of the successive contracts signed
between the employers' group and the Union , the Union is
recognized as the bargaining agent for all the employees
of the signatory employers whose job classifications are set
forth in the document . The Respondent , as a member of the
employers ' group , participated in the negotiation and exe-
cution of both the 1965-67 agreement and the 1967-69
agreement ; it did not participate in the 1969-71 agreement
between the multiemployer group and the Union , having
negotiated and executed a separate agreement with the Un-
ion.
For the negotiation of the 1967-69 agreement, Elwin
Hadlick , a Minneapolis attorney, was retained as the chief
spokesman for the employers ' group . Hadlick also repre-
sented the employers' group in the negotiation of the 1969-
71 agreement . As noted Fairmont did not participate in this
agreement with the Union .3 However the separate agree-
ment signed by Fairmont at an addendum to the Teamsters
Central-Southern Conference agreement provided for the
same wages , hours , and other working conditions as the
contract signed by the employers ' group ; Fairmont's con-
tract also had the same expiration date as the regular mul-
tiemployer contract.
2. The 1971 contract negotiations
In February the Union sent "opening letters" to the
employers, pertaining to the current agreement which was
to expire April 30. On March 2, the Union received a tele-
phone call from Hadlick who had been retained again to
represent the employers' group in the 1971 negotiations.
Hadlick suggested that to save time the Union present its
proposals on a date prior to the start of the formal negotia-
tions and the Union agreed to do so. Meanwhile, by letter
dated March 9, Respondent rejoined the multiemployer
group, authorized its negotiating committee to represent
Respondent "and others similarly situated" in negotiations
with the Union for a labor contract beginning May 1, un-
dertook not to negotiate with the Union on an individual
3 According to Maurice S. Archer, the labor relations manager for Fair-
mont, the reason the Company chose to negotiate the separate 1969-71
agreement was to obtain a contract without the load restrictions for whole-
sale drivers that was contained in the 1967-69 multiemployer contract and
continued in the 1969-71 contract. Respondent wished to eliminate all load
restrictions and provide for an hourly rate for the wholesale drivers instead
of a commission rate. However, Respondent's separate 1967-69 contract with
the Union discloses that the load restriction provision finally agreed on by
the Company was the same as that in the contract between the employers'
group and the Union for that period.
basis or to sign a separate or side agreement with the Union,
and withheld authorization to commit the Company to any
particular contract provisions prior to Respondent's specific
approval. It is undisputed that the reservation of authority
was at no time communicated o the Union prior to the
Union and the multiemployer group reaching agreement.
Pursuant to Hadlick' s suggestion , Moran and other union
representatives met with Hadlick on or about March 9. At
that time the Union presented a copy of its proposals which
the parties discussed. Also at that time Hadlick informed
the Union of the member companies of the group he was
representing, noting that this included Respondent Fair-
mont Foods .4 Also on March 16 in a letter addressed to the
Federal and State Mediation Services with a copy to Local
471, Hadlick listed the companies that he was representing
and included among those companies the name of the Re-
spondent. Just prior to the start of formal negotiations a
letter setting forth the initial proposal of the employers'
group was received by the Union. Among the changes
sought in the employers' proposal was the elimination of
load limits for wholesale drivers. The Union's proposal did
not include modification of the load limit restrictions which
had been included in prior contracts.
The formal negotiations between the parties started on
March 30. Present as members of the employers' negotiating
committee were Maurice S. Archer, Fairmont's labor rela-
tions manager, and George Sanda, Fairmont's regional
manager. At the initial meeting there was an exchange of
proposals by the parties and some discussion. Thereafter,
further negotiations took place on April 7,13,21,26,29, and
30 without agreement being reached.
On April 30, the contract termination date of the employ-
ers' group contract as well as that of Respondent, the nego-
tiation meeting of the parties lasted from 10 a.m. until about
12:30 a.m. on May 1. Both the state and Federal mediators
were present as they had been for several previous meetings.
Each of the bargaining committees were in separate rooms
and met at intervals. That evening the union committee
made a proposal to management. When the union had not
received the employers' response or counterproposal by
11:30 p.m., Moran, who felt the parties were so tar apart
that they would not reach agreement before the contract
expired at midnight, sent the union committee members
back to the office to prepare for a strike; only Moran and
Peters, another union representative, remained to continue
the negotiations, if any.
Shortly before midnight Moran and Peters went to the
employers' room and informed them that unless the em-
ployers came up with something new, he and Peters were
leaving to join the rest of the committee and prepare for a
strike. Moran was told that the employers were working on
a proposal and asked to wait. Thereafter, about midnight,
Moran and Peters were called to the em, lo ers' room and
were given the employers' proposal verbally. Moran and
Peters told the employers that the proposal would not be
acceptable to the union committee and the members. At
that time the parties were apart on at least 15 different
items. Moran told the employers' committee that they were
leaving to put up picket lines and that they would be in the
office the next day, May 1, "if they were interested in sign-
ing the agreement."5 Thereafter Moran and Peters were
All of the 14 companies comprising the multiemployer group represented
by Hadlick are involved in the dairy industry; however, all of the companies
do not perform the identical operations-two of the companies process milk
and bottle it but do not distribute it, many are just distributors alone, and
a few like Fairmont process, bottle , and engage in the distribution of milk.
5 The foregoing is based on the testimony of Moran . There were some
Continued
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
asked to be at the union office at 1 o'clock that afternoon
and were told they would receive the employers ' final offer.
At 2 a .m. on Saturday , May 1, the Union , using the
limited manpower available to it, picketed six processing
plants of employer-members of the growp;6 this picketing
was extended to cover the remaining employers ' operations
as pickets became available during the next 2 days.
The next afternoon at 1 p.m . Hadlick appeared at the
Union 's office accompanied by the state and Federal me-
diators. Moran and Peters were there and received the pro-
posal of the employers ' group which Hadlick presented to
them . Hadlick told Moran that this was the best and final
offer he would receive from the employers ' group , that he,
Hadlick , had no authority to change even one comma,"
and that he hoped Moran would recommend it to the mem-
bers. This offer from the employers ' group , inter alia, de-
parted from the initial position that all load restrictions had
to be removed and the system of ay changed from a com-
mission rate to an hourly rate for wholesale drivers and
offered a compromise by raising the load limit from 3,500
units to 5,500 units and a change to an hourly rate depend
ing on the size of the load. Moran informed Hadlick that the
employers ' offer would be presented to the Union 's execu-
tive board that afternoon , and that he did not expect it to
be favorably recommended to, or accepted b y , the mem-
bership who were to meet at 2 p .m. the next day, Sunday,
May 2. Hadlick asked that he be called after the meeting
and informed of the result . At the membership meeting on
May 2 , the membership rejected the employers ' proposal.
Pursuant to Hadlick 's request, Moran called Hadlick and
informed him that the offer had been rejected . Hadlick
stated he was "not suprise[d ]" and that he expected "to be
talking to [Moran] soon ." Moran also called -both the me-
diators, was able to reach the state mediator , and told him
the result of the vote . When the state mediator inquired
whether the union committee would be willing to attend a
meeting if it could be set up , Moran stated that they certain-
ly would be.
Following the rejection of the multiemployer group's of-
fer, the picketing of the members continued. Late in the
afternoon of May 2 , Moran received a call from Richard
Cook , the manager of Hastings Creamery , a member of the
employers ' group ; Hastings complained about the picketing
and wanted to know what would be required by the Union
to remove the pickets . Moran indicated the pickets would
remain until agreement was reached. Cook then conferred
with his board , and Moran discussed with the union com-
variances between Moran's testimony and that of Archer and Sanda which
for the most part were not significant . It was Archer's testimony that Moran's
parting statement to the assembled employers was "if any one of the employ-
ers wanted to sign this agreement , which contained these changes , that he
would be in his office for an hour or so ." Sanda similarly testified that Moran
stated "he would be in his office until about one o'clock or thereabouts for
anybody who would like to come in and sign the contract or his offer."
Moran expressly denied that he had told the employers that he would be back
in his office if any employer wanted to sign up. I have credited Moran with
regard to the events of the evening of April 30 because he impressed me as
having the better recollection of what had occurred. Furthermore, Moran's
later undisputed testimony regarding inquiries made by employer-members
as to what was needed to remove the pickets would tend to support the
finding that he did not indicate that any employer-member could sign an
individual agreement containing the union proposal of April 30. In any event,
I do not believe that even if Archer and Sanda were credited as to this it
would change the disposition of this case or the fact that it was the individual
employers who 2 or 3 days later sought out the Union and reached the interim
agreements hereinafter discussed.
6 The pickets were told to instruct the employees to process all milk on
hand and deliver it but to turn the employees back if their jobs involved
receiving more milk for processing.
mittee what terms were required of Hastings . 'When Hast-
ings called again , it was told the terms of the agreement the
Union required . Hastings was advised that the agreement
outlined was what the Union expected to get from the em-
ployers' group and that if some other agreement was ulti-
mately reached it would be binding on Hastings . Hastings
agreed verbally to this arrangement and the picketing of
Hastings stopped.
Late in the afternoon of May 2, Moran also received a
call from Johnson , president of Country House , a distrib-
utor and another member of the employers ' group . Johnson
inquired what the Union required for an agreement so that
he could get his trucks operating . Moran outlined the agree-
ment he had required of Hastings , and Johnson indicated
he would go along with it. Johnson asked that it be reduced
to writing . Johnson also agreed that Country House would
be bound by any subsequent agreement negotiated with the
employers ' group . On the morning of May 3 , a written
agreement prepared by the Union was signed by Johnson
and Moran . Article 22 of the agreement provided that: "The
load limit shall remain as is unless changes are made in
negotiations with the Minneapolis Milk Dealers Assn. If
such changes are made they shall be applicable to all signa-
tures." The pickets were told to let Country House trucks
operate.
On the morning of May 3, Moran also received a call
from Al Wolfe of Dairy Distributors , another member of
the employers ' group, who wanted to know why Country
House trucks were operating and his were not . Wolfe was
told that Country House had reached an agreement with the
Union. When Wolfe asked why the Union couldn 't do the
same for Dairy Distributors , Moran replied that Dairy Dis-
tributors had not asked . As a result of further conversation,
Dairy Distributors orally agreed to the same terms as had
Country House, including the agreement to be bound by the
contract ultimately reached between the Union and the
multiemployer group As a result of the interim agreement
reached with Dairy Distributors its trucks were permitted to
operate..
On onday , May 3, the Union and employers ' group, as
a result of arrangements by the mediators, agreed to meet
at the Nicollett Hotel at 3 : 30 p.m . Before proceeding to the
meeting at the Nicollett Hotel, the members of the multiem-
ployer group met at Hadlick 's office about noon on May 3.
There was a great deal of discussion among the employers
concerning the individual agreements that had been
reached between the Union and employer-members of the
group . A copy of the Country House agreement was avail-
able and was passed among the employers. Archer read the
agreement including section 22 pertaining to the load limit
restriction . The employers also discussed among themselves
the position that should be taken with the Union , and differ-
ent employers indicated what they would or would not go
along with to reach agreement with the Union . Some of the
employers indicated they were going to sign up with the
Union . During this discussion the Respondent Company
announced that it was withdrawing from the compromise
position regarding load restrictions that it had concurred
with when the final proposal had been presented to the
Union on May 1. Respondent now informed the group that
it was receding to its original position and now wanted a
contract provision that would allow for an hourly wage rate
for wholesale delivery with no restriction on load limits;
Respondent further indicated that they would not be a party
to any agreement that provided for load limits.
Following the meeting at Hadlick 's office the employers
proceeded to the scheduled meeting with the union bargain-
ing committee and the mediators at the Nicollett Hotel. At
FAIRMONT FOODS CO.
the hotel the employers' bargaining committee was assigned
to one room and the Union s to another. The Federal me-
diator expressed the view that there were too many people
involved and to get the matter settled negotiations should
proceed through the chief spokesman for each group. This
was agreeable to Moran and apparently to Hadlick. Meet-
ings between Moran, Hadlick, and the mediators took place
starting at least before 6 p.m. that evening. There were four
or five more meetings at which "quite a bit of progress" was
made-although the parties were still "miles apart."7 Then
shortly after midnight Moran was called to a meeting with
Hadlick by the mediators. Moran was told by Hadlick that
Respondent "had `walked out' of the negotiations and that
they refused to be bound by the terms of any collective-
bargaining agreement that might be negotiated." Hadlick
added that "Fairmont Foods was still a member of the
Minneapolis Milk Dealers' Association."8
According to the testimony of Archer and Sanda the
following events on the night of May 3 preceded Fairmont's
withdrawal. In the discussion among the employers con-
cerning the formulation of a proposal to the Union there
was some indication that a number of employers were of the
view that they should work out some kind of proposal that
would contain a provision for load limits. Fairmont re-
mained firm in its discussion with the employers' group that
it would not agree to any contract that contained a re-
striction on load limits and that if the position of the other
employers was otherwise Fairmont would pursue its own
contract with the Union. A suggestion that Fairmont with-
draw from the group negotiations came up about 9 p.m. One
of the employers, Dairy Fresh, suggested that perhaps that
was the thing for Fairmont to do if it wanted to-i.e. nego-
tiate separately with the Union. The other employers
agreed. Fairmont stated that, if the rest of the employers
r This is based on Moran's credited testimony. Hadlick was not called as
a witness in this proceeding and the testimony of Archer and Moran was not
in direct conflict. Sands admitted that he was not aware of Hadlick's pres-
ence "at all times" during the meeting at the Nicollett on May 3. In response
to a question whether Hadlick was in the employers' meeting room at all
times, Archer responded only that there were people going in and out, includ-
ing the mediators . The testimony of Sands and of Archer that "to his knowl-
edge" there were no proposals either received or transmitted to the Union
or any bargaining prior to the time Fairmont left the negotiations , because,
according to Archer, there was nothing for the mediators to take to the Union
since the employers were unable to agree on a proposal , does not conflict with
Moran's testimony that "quite a bit of progress" was being made . While the
employers' may not have been able to agree to an overall proposal it does
not rule out the fact that Hadlick in his capacity of chief spokesman reached
tentative agreement on some of the items in dispute.
8 Moran testified on direct examination that Hadlick had stated merely
that "Fairmont is no longer with us ... they have left, they may be back,
I don't know . However they are still members of the Association." Moran
further testified on direct examination that , after agreement had been
reached early in the morning of May 4, he asked Hadlick if the agreement
included Fairmont and was told by Hadlick that he, Hadlick , couldn't an-
swer for them because they had not come back but that they were still
members of the Association . However, on cross-examination , it was brought
out that, in response to a letter from Fairmont, Moran wrote on June 10:
I acknowledge that shortly before said Agreement was reached that Mr.
Elwin Hadlick , legal counsel for the Minneapolis Milk Dealers ' Associa-
tion, announced to me that the representatives of Fairmont Foods had
"walked out" of the negotiations and that they refused to be bound by
the terms of any Collective Bargaining Agreement that might be nego-
tiated . He did , however, say that Fairmont was still a member of the
Minneapolis Milk Dealers ' Association.
I find that this statement acknowledged by Moran as accurate at the time
it was written more accurately reflects Hadlick's announcement to Moran
regarding Fairmont 's withdrawal from the negotiations on the evening of
May 3. As to the statement that Fairmont was still a member of the Associa-
tion, Moran testified that Hadlick explained this meant Fairmont would pay
its share of the negotiation expenses.
853
were not willing to support or agree with it, Fairmont would
try to sign a contract separately with the Union containing
that provision. Hadlick, who was present at the time, was
told of Respondent's decision to negotiate separately and to
so inform the mediators and the Union, stating as the rea-
sons therefor that they were hung up on load limits, that
Respondent was insisting on no load restrictions and an
hourly rate, and the fact that other dairies had signed in
advance. While Archer could not recall the precise ex-
change with Hadlick, his testimony was that Hadlick agreed
with Fairmont's decision to withdraw.
Following Hadlick's announcement to the Union about
midnight that Fairmont had withdrawn from the multiem-
ployer group, further negotiations ensued. About 3:30 a.m.
the parties reached agreement on the new contract which
was subsequent) executed and signed by all members of
the group including those that had reached interim agree-
ments (i.e., Hastings, Dairy Distributors, and Country
House) but excluding Fairmont. The agreed-upon contract
contained a modification of the provision for load re-
strictions in wholesale deliveries which was a compromise
between the Union's earlier position and that of the employ-
ers' group 9
On May 4, Moran spoke to Archer by telephone-it is not
clear who initiated the call. Archer wanted the Union to let
the processed milk already in trucks at Respondent's plant
be delivered, which the Union refused to allow. It was `mu-
tually agreed" that they should meet but because of conflict-
ing engagements Archer indicated that he would come to
town I 'days later "and see what we could work out on an
agreement."
Meanwhile on May- 5, at the request of the mediators,
Moran met with company representatives Hadlick, Sanda,
and a Mr. Tuttle. According to Moran the Union attended
the meeting "to get our agreement signed as agreed to as the
other companies had." When the parties got into conversa-
tion, however, the Union was told that the company repre-
sentatives had no authority to agree to anything and that
they were just there to get the Union's permission to remove
the milk that was in trucks at Respondent's plant. The Un-
ion refused to agree to the Company's request and the meet-
ing broke up very shortly thereafter.10
A further meeting was called by the mediators which the
parties attended on May 7. Present for the Company were
a Mr. Suitor and Sanda. Suitor did most of the talking for
the Company. Suitor castigated the Union for doing a bad
job of negotiating a contract, complained that all the com-
panies in town would go broke, and threatened to liquidate
if Respondent lost its customers. Suitor stated that Respon-
dent would never sign an agreement that provided for load
restrictions. Moran responded that "there would be no oth-
er contract signed with Fairmont except the one the other
employers had signed and they were a member of that asso-
ciation and was bound by it." During this meeting the Com.
pany raised the Union's inability to police distributors
outside its jurisdiction, and the problem of layoffs if there
were no load restrictions was mentioned. Almost all of this
discussion was brought about by the Company with the
Union making only a few comments.
9See G.C. Exh. 12, art. XIV, Sec. D.
10 There was a conflict in testimony between Moran and Sanda as to
whether Hadlick was present as the representative of the Company and
whether Hadlick had stated that only the companies which had signed the
contract were bound as the group had not continued as an association.
Moran's testimony was that Hadlick during the meeting did most of the
talking for the Company and I find that his presence was to represent Fair-
mont . Furthermore, I credit Moran's denial that Hadlick made any statement
like that attributed to him by Sanda from which it could be inferred that he
no longer represented Fairmont.
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A final meeting between the Company and the Union
took place on May 10. Present were Archer and Sanda for
the Company , Moran and a union business agent for the
Union , and the mediators . The meeting was a short one.
Fairmont stated its willingness to sign the multiemployer-
union agreement if the Union would add the option that the
Employer could either follow the provision pertaining to
load limits or pay an hourly rate with no load limits. The
Union responded that it would not agree to any contract
different from that signed with the employers' group. The
mediator requested that the Union leave the room and
shortly thereafter the mediators stated that it was obvious
that no progress could be made at the time and the meeting
was adjourned . On May 11 the Union filed the charge in this
case.
The only other contact between the parties consisted of
an exchange of correspondence. By letter dated May 24,
Respoent advised the Union that the purpose of the letterwa t ld
formally advise ... and confirm ' that the Company
had withdrawn from the "Minneapolis Milk Employers Ne-
gotiating Committee" formed for the purpose of negotiating
the bargaining agreement ; that it was "forced to withdraw
from negotiating sessions on May 3, on the grounds that the
Negotiating Committee decided on such date to continue in
effect existing load restrictions and commissions for the
forthcoming contract term ." The letter further recites that
Fairmont 's withdrawal was in accord with its agreement
with the negotiating committee whereby the committee had
agreed to demand the discontinuance of load restrictions
and commissions and that the committee was specifically
not authorized to commit Fairmont to any particular con-
tract-provision prior to the Company 's specific approval.
The Company also added that a basis for its withdrawal was
that the Union had signed with other dairies individually
without consulting the employers' group . The Company in
its letter to the Union stated it was ready to negotiate a
contract with the Union . The letter concluded with the as-
sertion that it was sending a copy to Hadlick to confirm the
oral understanding reached with the other employers that
Fairmont withdrew with their consent and understanding.
The Union replied to the May 24 letter by telegrams
dated May 27 and 28 . In its May 27 teleggram the Union
expressed its readiness to meet with the Employer. In the
May 28 telegram the Union made clear to the Company that
it was relying on the contract negotiated between it and the
multiemployer group which it felt was binding on Respon-
dent.
3. Analysis, additional findings,
and conclusions
Section 8(d) of ,the Act expressly defines the duty "to
bargain collectively" to include "the execution of a written
contract incorporating any agreement reached if requested
by either party." See also H. J. Heinz Company v. .I,.R.B.,
311 U.S. 514, 526. The same requirement applies to a mul-
tiemployer agreement reached with a union by an authoriz-
ed representative of the employer , acting on its behalf.
N. L.R.B. v. Sheridan Creations, Inc., 357 F.2d 245, 247
(C.A. 2), cert. denied 385 U.S. 1005; N.L.R.B. v. Jeffries
Banknote Company, 281 F.2d 893, 896 (C.A. 9). Where the
employer attempts to withdraw from the multiemployer
group before such agreement is reached , his bargaining ob-
ligation depends on whether the attempted withdrawal is
timely made , there is union consent , or there are "unusual
circumstances"; an attempted withdrawal following the
commencement of negotiations on a multiemployer basis is
not timely . Retail Associates, 120 NLRB 388 ; Service Roof-
in Co., 173 NLRB 321, 322.
in the instant case , the undisputed facts establish that the
Minneapolis milk dealers have historically bargained as a
group with the Union and that , following agreement be-
tween the group and the Union , all employers have execu-
ted the agreed-upon contract . There is no evidence in this
record that at any time in the past employer -members have
withdrawn from negotiations once begun or by any other
action or communication indicated to the Union that the
participating employers were free to accept or reject the
agreed-upon contract . The instant negotiations followed the
historic pattern ; Hadlick informed the Union and the Fed-
eral and state mediators of the companies who comprised
the multiemployer group in the upcoming negotiations.
Consistent with group bargaining a single proposal for the
employers' group was presented to the Umon at the onset
of the negotiations as was true of later proposals . During the
bargaining which followed , the group was represented by
Hadlick acting as chief spokesman and by a committee
selected by the employer -members of the group who acted
in concert to arrive at the proposals made to the Union.
Following agreement all employer members of the multiem-
ployer grow except Respondent became signatories to the
contract. With regard to the Respondent it is significant that
Respondent felt called on to advise the Union that it was
withdrawing from group negotiation and would not be
bound by the agreement reached in the multiemployer bar-
gaining; implicit in this is the Respondent's understanding
that it would otherwise be bound by the agreement reached
in the group bargaining . It is also significant that Respon-
dent in its authorization for group representation expressly
undertook not to sign any separate or side agreement with
the Union. It is apparent from the foregoing that the mem-
bers of the multiemployer group evinced an intention both
before and throughout the bargaining to be bound by group
rather than individual bargaining." Having so found, it
follows under settled law that the informal (or "loosely
knit") and unstructured character of the multiemployer
group did not impair its status as a multiemployer unit
composed of all employer-members who had assented to the
existing bargaining arrangement. See Field and Sons, Inc.,
189 NLRB No . 59. Accordingly, I conclude that , although
Respondent 's employees were in a separate appropriate unit
during the preceding contract period , that unit became
merged into the multiemployer unit when the Employer,
with the Union 's approval, rejoined the multiemployer
group in March for the purpose of negotiating the new
contract.12
11 In view of the past history and the circumstances related to the instant
negotiations , I find without legal significance Respondent 's reservation in its
authorization to the bargaining group of the right to approve any specific
provision agreed to since that reservation was never communicated to the
Union which in the circumstances had reason to believe, and to rely on the
premise, that the Respondent would be bound by the results of the multiem-
ployer negotiations to the same extent and in the same manner as all other
members of the multiemployer group . See Homer Gale, 176 NLRB No. 147;
Quiel Bros. Electric Sign Service Co., Inc., 153 NLRB 326.
12 As the pleadings establish that Respondent 's employees set forth in the
complaint constituted a separate appropriate unit and that the Union was the
majority representative of the employees in that unit, the Employer could,
with the consent of the Union, lawfully rejoin the multiemployer unit to deal
with the Union on a group rather than on an individual basis regarding
wages , hours, and other working conditions. Respondent in its brief does not
appear seriously to contest the appropriateness of the multiemployer unit for
bargaining purposes . Since the issue of withdrawal was litigated on the prem-
ise that the rules governing multiemployer units were applicable to the situ-
ation here presented and since , as I have found , the employees of members
of the multiemployer group constitute the appropriate unit, the complaint's
allegation that Respondent's employees constituted an appropriate separate
FAIRMONT FOODS CO.
Respondent, while not contesting Fairmont's member-
ship in the multiemployer group at the onset of its bargain-
ing for an agreement with the Union, denies that
Respondent was obligated to accept the agreement reached
between the employers' group and the Union. In support of
this position Respondent's brief urges:
'T'here are two separate grounds for this conclusion:
First, an impasse having occurred between the mul-
tiemployer group and the Union, Fairmont exercised a
timely right to withdraw during the impasse (with or
without union consent), particularly when it occurred
at a time when the Union itself was engaged in individ-
ual bargaining with other Employers in the multiem-
ployer group. Second, the Union manifested through its
conduct that it had consented to such a withdrawal.
A. The Question of Timely Withdrawal
by the Respondent
Respondent urges that as a matter of law the existence
of an impasse in multiemployer negotiations permits the
withdrawal of an employer (as well as a union) from mul-
tiemployer bargaining with or without the consent of the
other party and that this is particularly so in this case where
there had been prior individual agreements between the
Union and other members of the multiemployer group.
Thus, a sine qua non to this defense of Respondent is the
finding that there was an impasse in bargaining between the
multiemployer group and the Union.
It has been stated in both Board and court cases, as
Respondent recognizes, that the determination whether an
impasse has occurred in the bargaining between the parties
is a matter of fact to be determined by the circumstances of
the individual case; the standard generally stated is that an
impasse exists if there is "no further reasonable prospect of
reaching agreement" (N.L.R.B. v. Intercoastal Terminal Co.,
286 F.2d 954, 958 (C.A.5)), or as it is sometimes put "further
negotiations would have been valueless" (Westchester Coun-
ty Executive Committee, etc., 142 NLRB 126, 127). In decid-
ing whether further bargaining bears a reasonable prospect
of agreement between the parties, no mechanistic approach
is possible but turns on an evaluation of all the circum-
stances generally. While a review of the cases dealing with
the question of impasse discloses that a particular circum-
stance has been viewed as significant in the context of the
situation in which it occurred, its probative weight in resolv-
ing the question in the circumstances of another case may
be substantially reduced or of little importance.13 Based on
the facts as found herein it is my conclusion that no impasse
had been reached during the course of the bargaining be-
tween the multiemployer group and the Union to reaching
an agreement in the early hours of May 4.
unit does not preclude the finding of the unfair labor practice herein made.
See Field and Sons, Inc., supra, where under comparable circumstances the
Board so ruled.
13 An example of this is the relevance of a strike in determining the ques-
tion of impasse. In a number of cases the Board has held that a strike
"breaks" an impasse stating "what seemed a rigidity of bargaining positions
before strike action, afterward might very well become a model of flexible
compromise" (United States Cold Storage Corporation, 96 NLRB 1108, 1109,
enfd. 203 F.2d 924 (C.A. 5)). Similarly, in rejecting the notion that a strike
evidences an impasse the Board has recognized that the strike is frequently
used as a "tactic" to enforce bargaining demands without evidencing that an
impasse exists. J. H. Bonck Co., 170 NLRB 1471, 1479. On the other hand
in Bi-Rite, 147 NLRB 59, the Board concluded that in the circumstances of
that case (which inter alia included about 24 bargaining sessions over a period
of 4 months following initial certification) "the strike was in itself rather clear
evidence that an impasse had been reached"
855
It is Respondent's position that an impasse in bargaining
existed on April 30. Although prior to that date the parties
had engaged in only five bargaining sessions without reach-
ing agreement, mediators had been called in by the Union
to assist the parties. The record does not disclose the extent
to which the parties prior to April 30 had discussed each of
the items over which there was disagreement. However, the
fact is that only minor progress had been made prior to that
date. There is no question that during the negotiations on
April 30 the parties were actively seeking to reach agree-
ment and negotiations did not end at a standstill, although
the parties were apart on at least 15 items. For although the
parties after a long day of bargaining had been unable to
reach agreement-the last proposal made by each side
being unacceptable to the other party-neither party at the
conclusion oTthe April 30 meeting had abandoned the pos-
sibility that further bargaining between them might resolve
their differences. This is evident from the employers' notice
to the Union, after being adivsed that a strike would be
undertaken that night, that a further proposal by the mul-
tiemployer group would be forth coming. Moreover, in
these circumstances the strike which was started because the
contract had expired clearly was not regarded by either
party as foreclosing further meaningful bargaining and was
not, as Respondent urges, an indication that impasse had
been reached; rather, r find, the strike merely represented
a union's tactical use of an economic weapon in support of
its bargaining position. 914 In sum I conclude that at the ter-
mination of bargaining on April 30 continued negotiation
between the parties could not be regarded as futile or that
an impasse existed with all the consequences which might
flow therefrom.
Similarly a state of impasse could not be found to exist
on May 1, when the employer presented what it characteriz-
ed to the Union as its "best and final" offer. Since this
proposal, which contained modifications from the employ-
ers' previous position, was before the Union for considera-
tion, it is obvious that the parties were still engaged in
bargaining which had a reasonable possibility of bearing the
fruit of agreement. This state continued at the very least
until the afternoon of May 2 when the proposal was consid-
ered by the union membership and rejected.
Moreover, a state of impasse arising from the employers'
rejection of what the employers had termed its "best and
final" offer is negated by the further conduct of the parties
which evidences that they had not arrived at a state in which
both considered further negotiation as hopeless. Indeed the
record suggests the contrary-i.e., that neither party was so
"fixed" in the position it had taken that further meetings at
that time would not be meaningful in terms of resolving
their differences. Thus immediately following the rejection
of the employer's "final" proposal on May 2 both parties at
the mediators' request agreed to meet the following day,
May 3, to continue in their attempts to iron out their differ-
ences. Also following rejection of the employers' latest offer,
the Union in entering interim agreements on the request of
three member-employers had insisted that these employer-
members be bound by the terms that in fact came out ofthe
multiemployer negotiations. That such union conduct sup-
ports a finding that there was no impasse in the bargaining
was recognized by the court in N.L.R.B. v. Tulsa Sheet
Metal Workers, Inc., 367 F.2d 55, 58 (C.A. 10). In that case
the court noted in finding no impasse that "the Union be-
tween May 31 and June 17 executed interim agreements
with ten Association members," whereby these members
agreed to accept all terms and conditions of employment,
as may be agreed on in negotiations being conducted be-
14 J. H. Bonck Company, supra.
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tween the union and the association . The court concluded
that, "This indicates an expectation tiat negotiations would
continue to a successful conclusion , and it is apparent that
there was no impasse."
Furthermore, that the Union 's position was not "fixed"
is demonstrated by its attitude regarding wholesale delivery
load limits , one of the stumbling blocks in the bargaining
and the one on which Respondent relies so heavily in its
impasse argument . This is shown by the interim agreement
signed with Country House ; for, while it continued the load
limit restrictions of the old contract , the agreement express-
ly stated that if changes were made in the negotiations with
the multiemployer group such changes would apply to
Country House . The only fair inference to be drawn from
this, I find , is that the Union was prepared to yield to some
extent on this item of disagreement , a fact which the Re-
spondent and the other employer -members had reason to
know since they had read the Country House agreement
during the meeting at Hadlick's office on the morning of
May 3 . Significant, too, in the determination of impasse was
Hadlick 's statement to Moran that he was not "surprised"
at the rejection of the employers ' May 1 proposal and his
further statement that he expected to be "talking" to Moran
soon ; this statement emanating from the representative of
the multiemployer grou evidenced that he did not regard
the May 1 offer as in fact a "final" offer from which his
group would not budge and which would make further dis-
cussion meaningless , particularly when taken together with
the fact , noted above , that the employers' group as well as
the Union had agreed to meet at the request of the media-
tors the very next day.
Clearly no impasse between the parties developed during
the May 3 negotiations which continued into the early hours
of May 4 when agreement was reached between the parties.
Indeed close examination of the events of May 3 only con-
firms my view that there was no impasse in the bargaining
between the parties, notwithstanding Respondents self-
serving declarations to the contrary . Thus, at the meeting of
the multiemployer group at Hadlick's office that morning,
the bargaining group had evidenced its intention to seek a
compromise on the items which were still unresolved. It was
during this meeting that Respondent, who had previously
owed in the compromise proposal regarding load limits on
May 1 and who r find was aware of the implication from
the Country House agreement that the Union 's position on
this was not a fixed one, began to swim in a direction oppo-
site that of the other employer -members by reverting to the
initial proposal the groupp had taken at the start of the nego-
tiations on March 30 . Respondent continued to adhere to
this initial position during the caucus between the employer-
members of the multiemployer group at the bargaining
meeting at the Nicollett Hotel . An impasse that existed on
May 3 as I see it was not between the two bargaining parties
who, starting at 6 p .m. were making "some progress," but
between the Respondent and the other members of the
employers ' group . Indeed it was only after the other em-
ployer-members had indicated that they would not support
the position to which Respondent had reverted that Re-
spondent withdrew from the roup to seek separate bargain-
ing with the Union . Significantly , Respondent 's formal
letter of withdrawal to the Union dated May 24 recites as
its first reason therefor that "Fairmont was forced to with-
draw from negotiating sessions on May 3, 1971, on the
grounds that the negotiating committee decided on such
date to continue in effect existing load restrictions and com-
missions for the forthcoming contract term." The letter,
while adding as a reason for withdrawal the Union's sep-
arate interim agreements with other dairies without consult-
ation with the employer group , makes no mention of an
impasse between the multiemployer group and the Union as
a reason for its action . Respondent 's complaint concerning
the failure of the employer committee to go along with its
alleged agreement to seek no load restrictions and to pro-
ceed to compromise with the Union without Respondent's
agreement while it reflected disagreement between the Re-
spondent and the other members of the group was not the
kind of impasse or other "special circumstance" which
would privilege the Respondent's otherwise untimely with-
drawal from the group bargaining it had elected to pursue.
Respondent 's real complaint is akin to that proffered by the
company in N.L. R.B. v. Tulsa Sheet Metal Workers, Inc.,
supra, wherein the court , in response to the company's plea
that effect be given to its withdrawal from the association
because the wage scale then being considered was excessive-
ly high with respect to its employees , stated (367 F.2d at 58):
owever, to allow withdrawal from the multiemployer
bargaining unit because negotiations are apprehended
by one of the group members to be progressing toward
an agreement which would be economically burden-
some insofar as it is concerned , would be disruptive to
the stability of the group collective -bargaining process.
As the Trial Examiner observed : " . . . some respon-
sibility must rest upon the employer who invokes the
advantages of group bargaining to assess and assume
the responsibilities and limitations inherent therein."
Accordingly, it is my conclusion that Respondent 's with-
drawal from group bargaining was untimely under Board
and court decisions.
B. Whether the Union Consented to the
Respondent's Withdrawal from
Multiemployer Bargaining
It is clear that the consent of the Union (express or
implied) to allow an employer to withdraw from multiem-
ployer bargaining, albeit untimely , relieves the employer of
the obligation to be bound by the resulting contract. There
is no evidence in this case that the Union ever expressly
consented to Respondent's withdrawal from the bargaining
group. Respondent urges, however, that the Union by its
conduct impliedly consented to its withdrawal. In support
of its position the Respondent urges that such implied con-
sent is evidenced by (1) the Union's failure to object to
Respondent's withdrawal at the time it occurred, (2) the
Union's entering into separate agreements with three other
members of the multiemployer group, (3) the Union's as-
serted separate bargaining with Respondent as evidenced
by the several meetings with Respondent's representatives
following union agreement with the multiemployer group
during the early hours of May 4.
It is the fact that the Union, when informed around mid-
night on May 3 that Respondent had withdrawn from the
group bargaining, voiced no objection. However, while this
circumstance has been noted by the Board in some cases
(see C & M Construction Company, 147 NLRB 843, and
Publicity Engravers, Inc., 161 NLRB 221, relied on by Re-
spondent), it was only one circumstance in a pattern of
behavior that included other more persuasive conduct by
the Union indicative of implied consent . It appears to me
that the Union's failure to object in the circumstances of this
case is too thin a reed to support a finding that its silence
in itself indicated implied consent to Respondent's with-
drawal. "Consent" in legal contemplation , when it is im-
plied from conduct, usually requires that such conduct in-
volve a course of affirmative action clearly antithetical to a
claimed position . Typical of such antithetical conduct is
FAIRMONT FOODS CO.
resort by a union to individual bar aining with an employer
followin his asserted withdrawal from multiemplo er bar-
gaining. See The John J. Corbett Press, Inc., 163 NLRB 154,
enfd. 401 F.2d 673. This is a key the Board emphasized in
the C & M Construction and Publicity Engravers cases, su-
pra, as well as Atlas Sheet Metal Workers, Inc., 148 NLRB
27. For reasons which will be set forth infra I do not believe
that the Union's meetings with Respondent following May
4 may reasonably be construed as attempts by the Union at
separate individual bargaining.
Furthermore that fact that the Union reached individual
agreements with three of the employers' group prior to the
multiemployer agreement of May 4 was not indicative of
union consent to Respondent's separate bargaining. Ordi-
narily the fact that a union enters separate contracts with
employer-members of the bargaining group does not there-
by dissolve the multiemployer bargaining entity or relieve
the remaining members from the usual obligations attend-
ant on group bargaining. Shamrock Systems, Inc., 155
NLRB 1120, 1125, and cases there cited. Particularly, since
in this case the individual agreements were all conditioned
on the employers ' agreement to be bound by whatever came
out of the multiemployer negotiations , these interim agree-
ments could not be viewed as indicative, of the Union's
consent to Respondent's withdrawal and its subsequent re-
fusal to subscribe to the multiemployer-union agreement
reached. Moreover, contrary to Respondent's contention,
since the employers involved in the interim agreements were
not subject to any coercion by the Union other than the
strike which was maintained against all employer-members
of the group, the Union was not engaging in a kind of
"whipsaw" tactic whereby it selected the employers with
whom it would deal individually. It is noted in this regard
that it was the employers who sought out the arrangement
with the Union. Whatever else may be said concerning the
rights and obligations of the parties involved in these inter-
im agreements , it is clear that the agreements do not support
Respondent's argument that they could be taken as a pre-
disposition" by the Union to relieve any employer from
being bound by the multiemployer agreement . Indeed the
precondition it placed on the individual agreements estab-
lishes the contrary to be the case.t5
Finally we come to what I believe to be critical to this
argument of Respondent-i.e., whether the Union's three
meetings with representatives of Fairmont on May 5, 7, and
10 were undertaken by the Union merely to insist on
Fairmont's agreement to sign the group contract to which
the Union considered it bound or constituted separate indi-
vidual bargaining. While the telephone exchange between
Archer and Moran on May 4 resulted in a "mutually
agreed" upon meeting on May 10, the meetings of May 5
and 7 were at the request of the mediators. At the meeting
of May 5,, the Company's only purpose was to get the
Union s permission to move out the processed milk at the
Respondent's plant. The Union's onlyy purpose was to get
the Company's agreement to the multiemployer contract.
No negotiations of any kind occurred at this meeting since,
after the Company's representatives told the Union that
they had no authority to agree to anything and made known
their purpose in being there, the meeting broke up with the
Union's refusal to grant the permission that the Company
sought.
On May 7, while the Company complained about the
IS Compare Atlas Sheet Metal Workers, Inc., supra, cited by Respondent,
wherein the employers who signed individual agreements revoked their mem-
bership in the multiemployer bargaining association and there was no agree-
ment to be bound by the association agreement ultimately concluded.
857
contract, discussing the competitive situation and the
Union 's inability to policy outside dealers , the Union made
it clear that the only contract which it would sign with
Fairmont was the multiemployer agreement , that Fairmont
was "a member of the association" and was bound by it. At
the May 10 meeting between the Respondent and the Union
no negotiations for a separate contract occurred ; the Union
did not indicate in any way its departure from the position
that the Respondent was bound by the multiemployer
agreement . The fact that Archer suggested that an option of
no load limits be added to the contract , in light of the
Union 's response that the Company must sign the same
contract as the other employers had signed , could hardly be
viewed as an indication that the Union was interested in
discussing anything but the Company 's agreement to sign
the multiemployer contract . Furthermore , the Union's May
27 response to the Company's letter of May 24 offering to
meet to negotiate a contract , in which the Union expressed
its willingness to meet with the Company, followed as it was
by the telegram of May 28, dispelled any notion that the
Union had changed its position . In its May 28 telegram the
Union stated that it was "replying . [sic] upon the contract
negotiated between it and Minneapolis Milk Dealers Asso-
ciation on May 3, 1971 [sic] which Local 471 feels is binding
upon you since you were at all times a participant in the
negotiations which led up to the final agreement negotiated
at 3:30 A.M. May 3 , 1971 [sic] . We are at all times ready and
willing to sit down with you to have said agreement execu-
ted so that you may resume your business and our members
may resume their work."
In sum , I find that the evidence does not establish that the
Union had by its conduct impliedly consented to the
Respondent 's untimely withdrawal from the multiemployer
group bargaining.
Respondent, as indicated , relies principallon the C & M
case in urging a contrary result ; I find that such reliance is
misplaced . The circumstances and the course of the Union's
conduct in the C & M case is distinguishable from what
happened in this case . The Board there was not holding that
the inference of implied consent was warranted if any meet-
ings occurred between the Union and the Company which
had withdrawn untimely ; such a conclusion implicitly
would leave open to the Union only the filin g of charges and
formal proceedings and would preclude it from attempting
through persuasion to arrive at the private resolution of the
differences between the parties-a result clearly at odds
with the purposes of the Act . In the instant case the initial
meetings which occurred were at the behest of the mediators
who had been calling meetings and who Moran testified had
been doing a good job up to that time . In the C & M case
the Board 's conclusion of implied consent was not based on
the fact merely of the separate meeting held with Respon-
dent but rested on significantly different circumstances
from those present here . Prior to the charged unfair labor
practice in that case the union had signed a settlement
agreement in which it agreed inter . alia that it would not
attempt to bargain separately with the individual members
of the council (the employer association ) naming the re-
Tr ondent company and one other member . Upon the with-
awal of respondent from the council , the union requested
written confirmation of this fact and asked the council per-
mission to approach the respondent to see if "it would sign
an agreement '; the union gave the settlement agreement as
its reasons for seeking council approval. It was thereafter
that the union met with the respondent . Also it was the
practice of the union to approach nonmember -employers
with a copy of the council agreement since all council mem-
bers were found by the signature of the council 's executive
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
secretary. The Board in arriving at its conclusion found
union acquiescence to the respondent com any's withdraw-
al, noting that its request for written confirmation and the
approval of the council was to protect itself against a
claimed breach of the settlement agreement which, as noted,
proscribed individual bargaining with the respondent. The
Board also noted, since council execution of the agreement
with the union bound the member-employers to the agree-
ment, that had the union refused to accept the Respondent's
untimely withdrawal there would have been no need for it
to do anything. Other union conduct noted by the Board
included the fact that the union only asserted that the re-
spondent company was bound by the council's agreement
when following its meeting with the respondent a represent-
ation petition was filed by the respondent, and also the
union's continued picketing of respondent with signs stating
that it did not have an agreement with the union.16
Similarly to the extent that the Respondent relied on
Publicity Engravers it is misplaced. In finding the union's
conduct constituted implied consent in that case, the Board,
as a determinative circumstance relied on one which was
not present in this case. In that case it was found that the
union met with respondent and after reviewing the associa-
tion contract with the employer expressly stated its willing-
ness to listen to the respondent's counterproposal and did in
fact do so. And it was more than a week after this meeting
with the respondent that the union for the first time took the
position that the respondent employer was bound by the
association contract. The union's expressed willingness to
listen to counterproposals at a meeting with respondent
would alone it seems to me be substantial evidence of indi-
vidual bargaining from which implied consent to the
company's withdrawal from the association could be
drawn. In the instant case , as I have noted, the Union at the
meeting on May 7, the first meeting during which any real
discussion of the multiemployers' agreement occurred, took
the firm position that the Respondent was bound by the
multiemployer agreement and adhered to this position
throughout.
Accordingly, it is my conclusion that Respondent Fair-
mont Foods by its refusal on and after May 4 to agree to
sign the contract reached by the Minneapolis Milk Dealers
violated Section 8(a)(5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations de-
scribed in section I, above, have a close, intimate, and sub-
stantial relationship to trade, traffic, and commerce among
the several States and tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of com-
merce.
Upon the foregoing findings of facts and upon the entire
record of this case, f make the following:
CONCLUSIONS OF LAW
1. Respondent , Fairmont Foods Company, is an employ-
16 The Respondent in brief argues that like C & M the Union's attempt to
obtain the Respondent's signature in this case varied from the usual practice
of having the multiemployer group's representative obtain the individual
signatures of group members. The short answer to this is that Hadlick in this
case, unlike the council in C & M did not have the power to execute the
er 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. All employees of the employer-members of the mul-
tiemployer group designated Minneapolis Milk Dealers and
covered by the 1971 contract between the Minneapolis Milk
Dealers and the Union constitute a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act.17
4. At all times material herein, the Union has been and
is the exclusive bargaining representative of the employees,
including those of Respondent, in the aforesaid appropriate
unit.
5. By refusing on and after May 4, 1971, to sign the 1971
contract between the Union and the multiemployer group,
Respondent has engaged in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act, which affect
commerce within the meaning of Section 2(6) and (7) of the
Act.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, it will be recommended that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the purposes and policies of the Act.
It has been found that Respondent refused to bargain
with the Union by refusing to execute the 1971 agreement
between the multiemployer group and the Union. It will
therefore be recommended that Respondent sign and honor
that agreement and make whole its employees for any loss
of wages or other benefits they may have suffered since May
1, 1971, the effective date of the contract. See N.L.R.B. v.
Joseph Strong, 393 U.S. 357.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:'
ORDER
Respondent, Fairmont Foods Company, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Failing and refusing to sign the collective-bargaining
agreement effective May 1, 1971, between the multiemploy-
er group, Minneapolis Milk Dealers and the Union, Milk
Drivers and Dairy Employees Union Local 471.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights to self-organization, to join or assist the Union, or any
other like organization, to bargain collectively through rep-
resentatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any and
all such activities.
agreement and thereby bind the member employers to the written document.
17 Among the employees included in the unit are all Respondent's drivers,
loaders, checkers, and other inside workers who are regularly scheduled
employees at its Minneapolis , Minnesota , plant ; excluding Respondent's
office clerical employees, guards, and supervisors.
18 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , recommendations , and recommended Order herein shall, as
provided in Sec. 102.48 of the Rules and Regulations, be adopted by the
Board and become its findings , conclusions , and order, and all objections
thereto shall be deemed waived for all purposes.
FAIRMONT FOODS CO.
2. Take the following affirmative action which will effec-
tuate the policies of the Act:
(a) Forthwith sign the said agreement effective May 1,
1971.
(b) Upon execution of the foregoing agreement, give ret-
roactive effect to its effective date, May 1, 1971, to the terms
and conditions thereof, including but not limited to the
provisions relating to wages and other employment benefits
and, in the manner set forth in the section of this Decision
entitled, "The Remedy," make whole its employees for any
losses they may have suffered by reason of Respondent s
failure or refusal to sign the said contract.
(c) Post at its place of business in Minneapolis, Minneso-
ta, copies of the attached notice marked "Appen-
dix."19 Copies of said notice, on forms provided by the
Regional Director for Region 18, after being duly signed by
Respondent's representative, shall be posted by it imme-
diately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken to insure that such
notices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for Region 18, in writ-
ing, within 20 days from the receipt of this Decision, what
steps Respondent has taken to comply herewith.20
19 In the event the Board's Order is enforced by 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 be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
20 In the event this recommended Order is adopted by the Board after
exceptions have been filed , this provision shall be modified to read : Notify
said Regional Director, in writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply herewith."
859
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL forthwith sign the contract effective May 1,
1971, between the Minneapolis Milk Dealers and Milk
Drivers and Dairy Employees Local 471 affiliated with
International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America.
WE WILL give retroactive effect to the terms and con-
ditions of said contract , including but not limited to the
provisions relating to wages and other employment
benefits , and WE WILL make our employees whole for
any losses they may have suffered by reason of our
refusal to sign the said agreement.
WE WILL NOT in any like or related manner interfere
with , restrain , or coerce our employees in the exercise
of rights guaranteed to them by Section 7 of the Act.
Dated By
FAIRMONT FOODS COMPANY
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office, 316 Federal Building, 110 South
Fourth Street, Minneapolis, Minnesota 55401, Telephone
612-725-2611.