Fairmont Foods Co.Download PDFNational Labor Relations Board - Board DecisionsMay 2, 1972196 N.L.R.B. 849 (N.L.R.B. 1972) Copy Citation 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. 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