Ice Cream, Frozen Custard Industry Employees, Local 717

National Labor Relations Board - Board Decisions

Jan 8, 1964

145 N.L.R.B. 865 (N.L.R.B. 1964)

ICE CREAM, FROZEN CUSTARD EMPLOYEES, LOCAL 717 865
4. Each of the Companies makes sales of at least $50,000 to Berke-
ley, over whom the Board would assert jurisdiction. As such sales
constitute indirect outflow as the term has been defined by the Board
in Siemons' and as they amount to at least $50,000 annually, the op-
erations of each of the Companies would meet the Board's standard
for the assertion of jurisdiction over nonretail enterprises.
Accordingly, the parties are advised, under Section 102.103 of the
Board's Rules and Regulations, Series 8, as amended, that upon the
allegations submitted herein, the Board would assert jurisdiction over
the operations of each of the companies with respect to disputes cog-
nizable under Sections 8, 9, and 10 of the Act.'
4 "Indirect outflow refers to sales of goods and services to users meeting any of the
Board 's jurisdictional standards except the indirect outflow or indirect inflow standard."
Ssemons Mailing Service, supra, at 85.
5 The Board expresses no opinion as to whether the milkers , over whose representation
the dispute herein arose, are "agricultural laborers" excluded from the definition of "em-
ployee" in Section 2 ( 3) of the Act nor as to what impact such a finding would have.
The Board 's Advisory Opinion procedures concern questions of the applicability of the
Board 's discretionary commerce standards . See Broward County Port Authority, 144
NLRB 1539.
Ice Cream, Frozen Custard Industry Employees, Drivers, Vendors
and Allied Workers Union Local 717, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, and John Thibeau , its Agent and Ice Cream Council,
Inc. Case No. 13-CB-1174. January 8, 1964
DECISION AND ORDER
On September 10, 1962, Trial Examiner C. W. Whittemore issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondents, the Union, and its agent, John Thibeau, had not
engaged in and were not engaging in unfair labor practices and rec-
ommending that the complaint be dismissed in its entirety, as set forth
in the attached Intermediate Report. Thereafter, the General Counsel
and the Charging Council filed exceptions to the Intermediate Report
and supporting briefs.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Leedom and Fanning].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the entire
record in this case, including the Intermediate Report, the excep-
tions, and the briefs, and as set out below finds merit in the exceptions
145 NLRB No. 71.
734-070--64-vol . 145-58
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Charging Council and the General Counsel. Accordingly, the
Board adopts the findings, conclusions, and recommendations of the
Trial Examiner only to the extent consistent herewith.
1. The collective-bargaining history between the Union and the
Council may be summed up briefly. Periodically, the Council,' on be-
half of its member-employers, negotiated a single agreement with the
Union. From 1944 to 1956, each such agreement, binding upon all the
members of the Council, was signed for the Employers by the Council
spokesman and for the Union by its secretary-treasurer. In 1957,
upon the Union's insistence, the participating Employers for the first
time signed separate but identical contracts. The same procedure
was followed in 1959. In negotiating the contracts in both 1957 and
1959, agreement was first reached upon a list of changes in the ex-
piring contracts, and the new contracts were drafted by the Council
and sent to the Union for signature.
Early in 1961, the employer-members of the Council appointed Fred
Nonnamaker as their spokesman. In March of that year, Nonnamaker
had lunch with Union Agent John Thibeau, told him that he hadbeen
designated spokesman for the Council,' and stated that he would
arrange a meeting when the Union was ready to negotiate new
contracts.'
The first meeting between the parties was held on April 13, 1961, at
which time the Union presented its proposed amendments to the 1959
contracts. In its proposals, the Union did not demand any change in
health and welfare benefits 4 Likewise, the Council's counterproposals
contained no mention of any change in these benefits. Approximately
10 more negotiation meetings were held before the Union, dissatisfied
with the results of these meetings, struck the Council's members on
May 25 or 26, 1961.
The strike was terminated before June 3 against some four in-
dividual employer-members of the Council who reached separate
understandings with the Union as a result of their approaching the
Union and requesting the Union to bargain with them on an indi-
vidual basis. Subsequently in October these employers executed sepa-
rate contracts embodying the understandings previously reached.
1 From its inception in 1935 until 1960 , the Council was known as the Ice Cream Manu-
facturers' Association of Cook County.
2 The employer-members of the Council in the spring of 1961 were : Arctic Ice Cream Co.,
Baldwin Ice Cream Co., Borden Co., Bowman Dairy Co., Bresler Ice Cream Co., Deluxe
Ice Cream Products Co., Drexel Ice Cream Co., Goldenrod Ice Cream Co., Hawthorne
Mellody Farms Dairy, National Dairy Products Corporation ( Sealtest ), National Ice Cream
Co., Shurtleff Ice Cream Co., Sidney Wanzer & Sons, Inc., and Thompson Ice Cream Co.
s The 1959 contracts then in existence were due to expire on May 1, 1961.
' Thibeau 's concern in the area of health and welfare benefits seems clearly to have been
to enlist the Council 's aid in getting its delinquent members to pay up their arrears under
the plan then in effect, and it is this "demand," rather than a demand for increased bene-
fits, which appears to have been the subject of discussion.
ICE CREAM, FROZEN CUSTARD EMPLOYEES, LOCAL 717 867
Meanwhile, the Union continued negotiations with the Council, and
on the morning of June 3 reached a complete agreement at a lengthy
and crucial meeting which had begun the previous day and resulted
in the termination of the strike.'
There is no question that the June 2-3 meeting culminated in a
strike settlement agreement in the early morning of June 3,1961. The
agreement was embodied in a written document stating that "the
following amendments or additions are made to the present (1959)
contract." 5 It also stated that it was to be in effect for a 3-year term
ending April 30, 1964. By reference to the 1959 contracts and the
addition of other provisions, it encompassed the full range of subjects
generally covered in labor agreements. On its face, it reserved noth-
ing for future negotiations. Several employer-members of the
Council, whose testimony was credited by the Trial Examiner, were
present during the meeting and were convinced of Thibeau's under-
standing that all issues had been resolved.
The Trial Examiner found that the Union did not unlawfully re-
fuse to embody this agreement in signed contracts, principally on the
ground of Thibeau's testimony that a full understanding on the health
and welfare provisions had not been reached at the meeting. Not-
withstanding Thibeau's testimony, however, the terms of the settle-
ment agreement clearly included health and welfare provisions, and
did not reserve the subject for future negotiations. YYTe are convinced
that the document signed by Thibeau speaks for itself and is deter-
minative of the main issue presented herein.
Moreover, even assuming the existence of the other factors relied on
by the Trial Examiner, we do not agree with the Trial Examiner's
reasons for accepting the Union's position. The Trial Examiner
placed much weight on statements made by N'onnamaker at the hear-
ing that his desire was to "settle the strike," and on the fact that the
document signed by the parties on June 3 was entitled "Strike Settle-
ment Agreement." In this regard, we agree with the position of the
General Counsel that there is no evidence to indicate that the parties
construed the strike-settlement agreement to be anything less than a
full agreement, and that the Trial Examiner made an untenable in-
ference in equating the strike-settlement agreement with a mere in-
terim or incomplete agreement. It is clear that the parties were
following their normal procedure of agreeing on new contracts by
-determining what amendments should be made to the preceding con-
5 The four employers who had previously reached separate understandings with the
Union did not participate in the June 2-3 meetings, although they had individually partici-
pated in the Council's earlier meetings. So far as appears, neither the Council nor its re-
maining members thereafter indicated in any fashion that they considered the aforesaid
employers still part of the multiemployer bargaining group
9 Thibeau's denial that he actually signed one copy of the document was discredited by
-the Trial Examiner.
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tracts. The fact that mutual agreement to proposed amendments also
brought about a settlement of the strike does not detract from the
finality of the parties' agreement.
Unlike the Trial Examiner, we do not place reliance on the fact
that the document embodying the strike-settlement agreement con-
tained no provision regarding health and welfare. It is evident that
the agreement reenacted the 1959 contracts except as expressly
amended. As the Trial Examiner found, one of the terms of the 1959
contracts was that certain health and welfare benefits would be put
into effect no later than December 1959 and would be paid for by the
Employers. It is beyond question that such a provision of the old
contracts remained in effect when it went unmentioned in the new and
purely amendatory agreement.
It is true, as pointed out by the Trial Examiner, that the Union's
initial written demands in the 1961 negotiations proposed that "Health
and Welfare shall be paid for by the Employers and Pension Plan
Central States." This proposal, however, merely reaffirmed the
Union's demand for a continuation of the provision of the 1959 con-
tracts that the Employers pay the cost of the established health and
welfare benefits. Although the proposal also discloses a demand for
a Teamsters Central States pension plan,7 it does not evince a demand
by the Union for a Central States health and welfare plan.
We likewise note that the Union struck all the employers on May 25
or 26, but called off the strike, before the June 2-3 meeting, against
the four employers who agreed to adopt the Central States health
and welfare plan. We do not believe, however, that this agreement
indicated that the Union was then also demanding a Central States
health and welfare plan from all the other employers. Nor do we
agree that because such a plan was not included in the June 2-3
agreement, it must have been left to be negotiated at a later date.
The record shows that Thibeau initially testified that only two of the
four employers, Deluxe and National Ice Cream, had orally agreed to
the Central States health and welfare plan. His later contradictory
testimony, itself corroborated by other evidence, makes it clear that
the plan which was finally put into effect by these employers called
for benefits which were not up to the level of those under the Central
States plan. In any event, the fact that some Employers may have
orally agreed to pay increased benefits in return for an immediate
termination of the strike against them does not prove the existence of
any parol understanding with the Council on June 3 that increased
health and welfare benefits would be negotiated after June 3 with re-
spect to the other employers.
4 This pension plan was adopted in the strike-settlement agreement.
ICE CREAM, FROZEN CUSTARD EMPLOYEES, LOCAL 717 869
Finally, the Trial Examiner noted that after June 3 all but three
of the employers belonging to the Council signed separate contracts
with the Union containing health and welfare clauses granting bene-
fits "equal to" those under the Central States plan. It is true that
the separate contracts were signed, many under strike pressure. But
they contained differing health and welfare clauses, increasing the
benefits as the Union's success in undermining the multiemployer unit
grew. The fact that the Union violated its obligation to embody its
multiemployer agreement in signed contracts but instead obtained
separate single-employer contracts, is not proof that the Union's
earlier agreement with the Council was incomplete with respect to
health and welfare benefits.
The above considerations in our view remove the support the Trial
Examiner found for the Union's arguments. On the contrary, we
find that the intended finality of the June 2-3 agreement is amply
established by the facts and events which both preceded and took
place at the meeting of that date, as well as by the express terms of
the agreement.
Accordingly, we find that the strike-settlement agreement reached
by the parties covered all the amendments contemplated by the Coun-
cil and the Union to the 1959 contracts, including the duration of the
new agreement, and that no issue of increased health and welfare
benefits was reserved for further negotiation. In view of all the
factors which have brought us to this conclusion, we are unable to
attach any controlling weight to the Trial Examiner's resolution of
the conflicting testimony of Thibeau and Nonnamaker as to certain
events at the June 2-3 meeting.8
In October 1961 a form agreement for the Council's members, em-
bodying the 1959 contracts as amended by the June 3 agreement and
including some minor language changes as worked out by the parties,
was submitted by the Council to the Union for signature. The Union
refused to sign. We find that by refusing to sign this document the
Union violated Section 8 (b) (3) of the Act.
2. It is abundantly clear from the record before us that up to the
start of negotiations between the Council and the Union in 1961, a
multiemployer unit was in existence. This fact is evidenced by the
participation of the employers in joint bargaining for a substantial
B We are particularly mindful of the fact that although the Trial Examiner generally
credited Thibeau, he discredited him on one of the significant aspects of the case, that is,
Thibeau 's denial of having signed a copy of the strike-settlement agreement on June 3
We also note that Thibeau's testimony that Nonnamaker was inebriated at the time of that
meeting , although reported by the Trial Examiner as being uncontradicted , was in fact con-
tradicted by the testimony of both Nonnamaker's former secretary and Douglas of Dean
Milk Company who participated in the negotiations ; further , although Douglas testified
that Nonnamaker was tired and exhausted on the night of June 2, he also stated , "I'm sure
everybody in that room was exhausted and I was too."
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
length of time, by their execution of identical agreements negotiated
by the Council for them, and by their membership in the Council and
their delegation to it of power to represent them in negotiations. This
fact is confirmed, in our opinion, by the Union's conduct in 1961 in
entering into negotiations with the Council as the representative of
its member-employers on a joint basis.
The Trial Examiner expressed doubt in his report that the multi-
employer unit remained intact "according to Board standards" after
several of the participating employers reached separate agreements
with the Union, or that an 8(b) (1) (B) violation could be found
where the violation was "provoked" by the Council. But he cited no
authority to support his expressed doubts, and we find no merit in
them.
As for the employers who the Trial Examiner found signed sepa-
rate contracts with the Union in October 1961, there is no evidence to
indicate that the Union restrained or coerced them into revoking their
selection of the Council as their representative. It appears that they
signed the contracts voluntarily, pursuant to understandings reached
between them and the Union during an impasse in the negotiations
prior to the June 2-3 meeting. It further appears that these under
standings were initiated by the employers themselves when they ap-
proached the Union and requested the Union to bargain with them
individually. We find that by thus inviting and entering into sepa-
rate understandings with the Union, these employers effectively
revoked their designation of the Council as their representative and,
with the agreement of the Union, withdrew from multiemployer bar-
gaining. In a situation such as this, where there has been a break-
down in negotiations leading to an impasse and a resultant strike, an
employer, if he so chooses and the union agrees, is not precluded from
voluntarily withdrawing from a multiemployer unit. On all the
facts, and particularly in the absence of any evidence that Respond-
ents exerted pressure against these employers that was in any way
different from the lawful strike pressures it was then applying against
all Council members, we find no basis for holding that Respondents.
restrained or coerced them within the meaning of Section 8(b) (1) (B),
of the Act.'
The voluntary withdrawal of the aforesaid employers from multi-
employer bargaining, however, neither excused Respondents from its
obligation to respect the integrity of the multiemployer unit to the
extent it thereafter remained intact, nor released the Union from its
O Further , even assuming arguendo that the Union acted unlawfully in entering into
separate negotiations and reaching separate understandings with the aforesaid employers,
its conduct in that respect occurred outside of the limitations periods prescribed by Sec-
tion 10 (b) of the Act and cannot therefore provide a basis for an unfair labor practice
finding.
ICE CREAM, FROZEN CUSTARD EMPLOYEES, LOCAL 717 871
duty to continue to recognize the Council's representative status for
those employers who still desired to bargain on a multiemployer basis.
When the Council refused the Union's demand made to the remain-
ing Council members to negotiate separate agreements commencing
in December 1961, the Union resorted to a series of strikes to force
them to revoke their selection of the Council as their representative.
National Dairy Products Corporation (Sealtest) was struck on Feb-
ruary 6 and again on May 23, 1962, and then signed a separate agree-
ment. On June 9, 1962, the Union struck every remaining Council
member without a signed contract except Wanzer, and on June 11
the Union threatened Wanzer with a strike. Four of these remain-
ing employers quickly signed agreements similar to the one signed
by Sealtest. Three of the remaining employers continued to refuse
to sign.
We find that in December 1961 and thereafter, by striking and
threatening to strike the remaining employer-members of the Council
for separate agreements in derogation of the Council's status as their
bargaining representative, the Union illegally attempted to force
these employers to bypass their designated collective-bargaining rep-
resentative. Accordingly, we further find that by thus restraining
and coercing employer-members of the Council in their selection of rep-
resentatives for the purpose of collective bargaining, the Union
violated Section 8 (b) (1) (B) of the Act.10
THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth above have a close, inti-
mate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
REMEDY
Having found that the Respondents engaged in certain unfair labor
practices, we shall order that they cease and desist therefrom and take
certain affirmative action which we find necessary to effectuate the
policies of the Act.
We have found that Respondents unlawfully refused to sign the con-
tracts to which they and the Council had agreed on June 3, 1961. We
have further found that Respondents restrained or coerced certain
Council members in the selection of their bargaining representative
and in derogation of the Council's status as such representative. We
do not believe that it would effectuate the policies of the Act to permit
Respondents to retain any benefits which might have been derived
10Hoiating t Portable Engineers Local Union # 701, International Union of Operating„
Engineers, AFL-CIO ( Cascade Employers Association, Inc.), 141 NLRB 469.
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from such conduct. Accordingly, we shall order Respondents to sign,
upon request, the agreed-upon contract with the Council, and to cease
giving effect to any individual contract executed with employer-
members of the Council after October 1961, as a result of the unlawful
restraint and coercion found above.
Upon the basis of the foregoing findings of fact, and upon the entire
record in this case, the Board makes the following :
CONCLUSIONS OF LAW
1. Ice Cream, Frozen Custard Industry Employees, Drivers, Vendors
and Allied Workers Union Local 717, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a
labor organization within the meaning of Section 2(5) of the Act,
and John Thibeau is its agent.
2. Ice Cream Council, Inc., and its member-employers are engaged
in commerce within the meaning of Section 2(6) and (7) of the Act.
3. All inside employees, drivers, and special deliverymen employed
in Cook County, Illinois, by the employer-members of the Council,
who had not signed contracts with the Respondent in October 1961,
excluding office clerical employees, outside nondriver salesmen, profes-
sional employees, and supervisors as defined in the Act, constitute an
appropriate unit for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
4. The aforesaid labor organization is, and at all times material
herein has been, the exclusive representative of the employees in the
above appropriate unit for the purposes of collective bargaining within
the meaning of Section 9 (a) of the Act.
5. By refusing to bargain collectively with Ice Cream Council, Inc.,
Respondent Union and its agent John Thibeau have engaged in and
are engaging in unfair labor practices within the meaning of Sec-
tion 8 (b) (3) of the Act.
6. By restraining and coercing certain employer-members of the
Council in the selection of representatives for the purposes of col-
lective bargaining, Respondent Union and its agent, John Thibeau,
have engaged in and -are engaging in unfair labor practices within the
meaning of Section 8 (b) (1) (B) of the Act.
7. The aforesaid unfair labor practices affect commerce within the
meaning of Section 2 (6) and (7) of the Act.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Ice Cream,
ICE CREAM, FROZEN CUSTARD EMPLOYEES, LOCAL 717 873
Frozen Custard Industry Employees, Drivers, Vendors and Allied
Workers Union Local 717, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, its officers, agents
(including John Thibeau), representatives, successors, and assigns,
shall :
1. Cease and desist from :
(a) Refusing, upon the request of Ice Cream Council, Inc., to sign
the written agreement tendered to them by the Council in October 1961.
(b) Restraining or coercing the employer-members of Ice Cream
Council, Inc., in the selection of their representative for the purpose
of collective bargaining.
(c) Giving effect to the individual contracts it executed with mem-
bers of the Council after October 1961, or any modification, continua-
tion, extension, or renewal thereof.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Upon request, sign the written agreement tendered by the
Council in October 1961, embodying the terms agreed to at the bar-
gaining meeting of June 2-3, 1961.
(b) Post at its offices and meeting halls, copies of the attached
notice marked "Appendix." 11 Copies of said notice, to be furnished
by the Regional Director for the Thirteenth region, shall, after being
duly signed by an authorized representative of the Respondent Union
and by John Thibeau, be posted by the Respondent Union immedi-
ately upon receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places where
notices to its members are customarily posted. Reasonable steps shall
be taken to insure that said notices are not altered, defaced, or covered
by any other material.
(c) Sign and mail sufficient copies of said notice to the Regional
Director for the Thirteenth Region, for posting by Ice Cream Council,
Inc., and its member-employers involved in this proceeding, at all
locations where notices to their employees are customarily posted.
(d) Notify the Regional Director for the Thirteenth Region, in
writing, within 10 days from the date of this Order, what steps have
been taken by Respondents to comply herewith.
MEMBER LEEDOM, dissenting in part :
My colleagues have found, and I agree, that these Respondents
violated Section 8('b) (3) and (1) (B) of the Act. In the face of
these findings, I cannot agree with their refusal to set aside the sepa-
rate contracts which the Respondent Union executed with certain
11 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "A Decision and Order" the words "A
Decree of the United States Court of Appeals , Enforcing an Order "
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employer-members of the Council in October 1961, and with their
,exclusion of the employees of such employers from the appropriate
unit.
It is clear that prior to the strike which began on May 25 or 26, 1961,
these employers were part of the multiemployer unit for which the
Council was then bargaining. During the course of this strike the
Union called off the strike against four of these employers,12 appar-
ently in return for these employers' agreement to enter into separate
contracts with the Union. The strike against the remaining employ-
ers was settled by the June 3 agreement covering the multiemployer
unit. There is, however, no evidence either that the Council or its
other members were aware of the nature of the separate agreement
reached during the strike, or that any of these employers had sought
in any way to revoke the authority of the Council to bargain on their
behalf. Thus, insofar as the Council and the other employer-mem-
bers apparently knew, the Council had continuing authority to bar-
gain for all its members, and was bargaining for all of them in nego-
tiating the June 3 agreement.13 Thereafter, in October 1961, about
the same time that it was unlawfully refusing to execute the June 3
agreement, the Union entered into separate contracts with these four
employers and with a fifth employer 14 with whom it apparently had
no prior oral understanding.
On these facts there can be no doubt, if these employers continued
to be part of the multiemployer unit until these events occurred in
October 1961, that the Respondents' refusal to sign the agreement
then was as much a refusal to bargain as we all find with respect to the
other employer-members of the Council; the execution of separate
single-employer agreements at a time when the Respondents were
obligated to execute the multiemployer agreement was further con-
,duct in derogation of the Council's status as the representative of that
multiemployer unit; and abrogation of these single-employer agree-
ments would be necessary in order that the refusal to bargain in the
multiemployer unit might properly be remedied. My colleagues have
,concluded, however, that these five employers effectively withdrew
from the multiemployer unit, so that such unit was no longer ap-
propriate as to them.
My colleagues base this conclusion on their finding that "by thus
inviting and entering into separate understandings with the Union,
12 Arctic Ice Cream Co., Baldwin Ice Cream Co., Deluxe Ice Cream Products Co., and
National Ice Cream Co.
18 The fact that these four employers may not thereafter have participated directly in
the negotiations is not, in my opinion , tantamount to notice to the Council that they were
.seeking to revoke the Council's authority to bargain for them.
14 Hawthorne Mellody Farms Dairy.
ICE CREAM, FROZEN CUSTARD EMPLOYEES, LOCAL 717 875
these Employers effectively revoked their designation of the Council
as their representative and, with the agreement of the Union, with-
drew from multiemployer bargaining," and their further statement of
principle, without precedential support, that "[I] n a situation such
as this, where there has been a breakdown in negotiations leading to
an impasse and a resultant strike, an employer, if he so chooses and
the union agrees, is not precluded from voluntarily withdrawing from
a multiemployer unit." Apart from the fact that there is no evidence
at all that Hawthorne Mellody Farms Dairy reached any separate
understanding with the Union prior to June 00, this rationale cannot
in my opinion support my colleagues' conclusion as to any of these
employers, both because I cannot agree that there was an impasse in
the multiemployer bargaining at any relevant time, and because I can-
not accept the proposition that in the circumstances here, and assum-
ing arguendo the existence of an impasse, an existing multiemployer
unit can be so easily fragmented.
Thus, as my colleagues point out, after some 10 or 11 negotiation
meetings, the Union called a strike because it was dissatisfied with
the results of those meetings. My colleagues advert to no facts, how-
ever, to support a conclusion that at the time of the strike the negotia-
tions had reached a point where no further progress seemed possible.15
Moreover, assuming an impasse at the time the strike was called, the
Board has pointed out, with court approval, that a strike serves to
break an impasse, so that further bargaining may be fruitful;16 and
my colleagues have cited nothing to justify a conclusion that a new
impasse developed between the beginning of the strike and the time
the Union and the four employers reached their separate understand-
ings. Indeed, the fact that the Union and the Council reached com-
plete agreement less than 10 days after the beginning of the strike is
in my opinion persuasive evidence that any impasse which may have
existed was effectively broken by the strike. Consequently, I would
find that at the time of these separate understandings there was in fact
no impasse.
Further, and in my opinion of much greater consequence, I can see no
warrant, even assuming pan impasse, for permitting the fragmentation
of this multiemployer unit. With Supreme Court approval, the Board
has held that the employer-members of a multiemployer unit have a
sufficient legitimate interest in the preservation of such a unit so that
' See, e.g., The Westchester County Emecutive Committee Representing the Subordinate
Unions Numbers 20, 22, 27, 48, 51 , 55, 75 and 83, etc. (Builders Institute of Westchester
and Putnam Counties, Inc.), 142 NLRB 126, in which it was stated that "[a]n impasse
should not be mechanically inferred simply because the parties have failed to reach com-
plete agreement after some specified number of negotiating sessions . . . .
16 See, e.g., United States Cold Storage Corporation , 96 NLRB 1108, enfd . 203 F. 2d 924
( C.A 5), cert . denied 346 U.S. 818 ; R.J. Oil & Refining Co., Inc., 108 NLRB 641.
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they may temporarily lock out their employees to prevent that unit's
fragmentation by a "whipsaw" strike." Similarly, in my opinion,
where, as here, bargaining has begun for a new multiemployer agree-
ment,"' the multiemployer representative and the other employers have
a sufficient legitimate interest in the preservation of their unit to pre-
clude their being disregarded prior to any fragmentation of that unit,
whether in consequence of "whipsaw" settlements, as here, or other-
wise. Here they were disregarded. Thus, whether or not there was an
impasse, I would find that at all times relevant to this case the four
employers who had separate understandings with the Union, and a
fortiori the fifth employer who had no such understanding, remained
part of the multiemployer unit, and that the Respondents also violated
that Act,as to them.19 To remedy this violation, the separate agree-
ments executed by these employers should be abrogated, and their em-
ployees should be included in the unit with respect to which the Union
is required to bargain.
14 Buffalo Linen Supply Company ; et al., 109 NLRB 447 , affd. sub nom. N.L R.B. v.
Truck Drivers Local Union No. 449, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America, AFL, 353 U.S. 87.
Is An employer may of course withdraw from multiemployer bargaining at an "appropri-
ate" time. I am unwilling , however, to conclude that an appropriate time had been reached
here when the impasse , if any, was of such short duration.
11 As the separate negotiations prior to June 3 did not in my opinion constitute an effec-
tive withdrawal from the multiemployer unit , these employers were still part of that unit
when they executed their separate written agreements in October 1961 . Consequently,
Section 10(b ) is no bar to finding a violation as of that time.
APPENDIX
NOTICE TO ALL MEMBERS OF ICE CREAM, FROZEN CUSTARD INDUSTRY
EMPLOYEES, DRIVERS, VENDORS AND ALLIED WORKERS UNION LQCAL
717, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND HELPERS OF AMERICA AND TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL, upon the request of Ice Cream Council, Inc., sign the
written agreement tendered to us in October 1961, embodying the
terms agreed to at the meeting of June 2-3,1961.
WE WILL NOT restrain or coerce employer-members of Ice Cream
Council, Inc., in the selection of their representative for the pur-
pose of collective bargaining.
ICE CREAM, FROZEN CUSTARD EMPLOYEES, LOCAL 717 877
WE WILL NOT give effect to or enforce or attempt to enforce
our individual contracts with members of the above-named Coun-
cil executed after October 1961.
ICE CREAM, FROZEN CUSTARD INDUSTRY EMPLOYEES,
DRIVERS, VENDORS AND ALLIED WORKERS UNION
LOCAL 717, INTERNATIONAL BROTHERHOOD OF TEAM-
STERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS
OF AMERICA, AND JO-II THIBEAU, ITS AGENT,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
-------------------------------------
(.TORN TIIIBEAU , Agent)
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.
Employees may communicate directly with the Board's Regional
Office, 176 West Adams Street, Chicago 3, Illinois, Telephone No. Cen-
tral 6-9660, if they have any question concerning this notice or com-
pliance with its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
On February 13, 1962 , a charge was filed by Ice Cream Council , Inc., in the above-
entitled case. Based upon that charge the General Counsel of the National Labor
Relations Board issued and served his complaint dated May 11, 1962, and an
amended complaint and notice of hearing on June 28, 1962 . To the original com-
plaint the Respondent filed a written answer dated June 14, 1962, and at the hearing
voiced oral answer to the amendments . Pursuant to notice , a hearing was held
in Chicago, Illinois, on July 9, 10 , and 11 , 1962, before Trial Examiner C. W.
Whittemore.
The complaint alleges and the answers deny that the Respondents have engaged
in and are engaging in unfair labor practices in violation of Section 8(b)(1)(B)
and (3 ) of the National Labor Relations Act, as amended.
At the hearing all parties appeared and participated, and were afforded full oppor-
tunity to present evidence pertinent to the issues, to argue orally, and to file briefs.
Briefs have been received from General Counsel and the Respondents.
The Trial Examiner has received from General Counsel a motion, dated August 31,
1962, to correct numerous typographical errors in the transcript . Attached to said
motion is a declaration that copies were the same day sent by certified mail to other
parties. No objections having been received, the motion is hereby granted and
made a part of the record.
Upon the record thus made, and from his observation of the witnesses , the Trial
Examiner makes the following:
FINDINGS OF FACT
1. THE BOARD'S JURISDICTION
Ice Cream Council , Inc., is a nonprofit corporation duly organized under the laws
of the State of Illinois and is composed of about 15 members who are employers
engaged in the manufacture , processing, and distribution of ice cream and other milk
878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
products . Its office and place of business is in Chicago , Illinois. Among its activities
is the conduct of labor negotiations on behalf of its members with labor organizations
representing employees of said members.
Each of said members of the Council , during the calendar year 1961 , purchased
milk valued at more than $ 100,000 in States other than the State of Illinois and
shipped said milk to their places of business in Illinois.
It was conceded at the hearing that each of said employers is engaged in commerce
within the meaning of the Act and that the Board has jurisdiction in this case. It is
so found.
H. THE RESPONDENTS
Ice Cream, Frozen Custard Industry Employees, Drivers, Vendors and Allied
Workers Union Local 717, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, is a labor organization within the meaning
of the Act, and John Thibeau, secretary-treasurer of the local, is its agent.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Setting and major issues
From 1935 through 1959 an organization of employers in the Chicago area ice
cream industry, known as the Ice Cream Manufacturers Association, engaged in
periodic negotiations with the Respondent Union and contracts resulted. For some
years a master contract applying to each Association employer was executed by a
representative of the Association. From 1955 through 1959, however, after negotia-
tions each participating employer signed his own contract.
In 1960 the Association formally changed its name but not its purpose. It became
the Ice Cream Council, Inc. Its purpose remained: "to arrange wage agreements
and working conditions between the members hereof and their employees." Attorney
Fred Nonnamaker, who until then appears to have had no connection with the
Association, was employed by the Council to serve as its executive secretary.
Before the opening of the 1961 negotiations, which are in issue here, the Union
was informed of the change of name, the fact that Nonnamaker would be "spokes-
man" for the employer group, but not the precise identity of each employer whom
the Council purported to represent. The record shows, however, that negotiations
looking toward a new contract began, in all essential respects, as they had down
through the years-the chief difference being that Nonnamaker, and not an employer
officer of the Association, served as spokesman for the Employers. For the Union
John Thibeau, secretary-treasurer of the local, continued as he had in the past to be
the spokesman.
Actual negotiations were in general carried on by these two spokesmen, with
representatives of the Union and representatives of employers in separate but nearby
offices available for consultation by the spokesmen.
After some 8 or 10 meetings in April and May and apparently dissatisfied with
progress of negotiations the Union called a strike against all the employers here in-
volved.' As to most of these employers the strike continued until June 3. It is un-
disputed that the Union called off such strike action against at least four of these
employers before this date, upon their agreement, among other things, to adopt the
Teamsters Central States health and welfare plan.
The crucial negotiating meeting began on June 2 and continued until the morning
hours of June 3. It will be reviewed in more detail in a later section. There is
little controversy, however, as to the fact that the economic pressure upon employers
against whom the strike had not been terminated was great, and that the participants
were extremely anxious that their delivery trucks start "rolling." Eventually an
agreement was reached, and Thibeau permitted resumption of deliveries the morn-
ing of June 3, even before the local's members had ratified the provisions of the
agreement.
The pivotal point upon which this entire case turns, in the opinion of the Trial
Examiner, is whether or not the agreement reached between Thibeau and Nonna-
maker at this extended meeting was, as General Counsel claims, a complete contract
1 Employers involved in these negotiations , either as Council members or as participat-
ing employers , Include: Bowman Dairy , Dean Milk, Borden , Bresler , Goldenrod , Drexel,
Arctic, Baldwin, Deluxe, Sidney Wanzer & Sons, Hawthorne Mellody, National Dairy
( Sealtest ), National Ice Cream , Shurtleff , Dean , and Beatrice Foods.
ICE CREAM, FROZEN CUSTARD EMPLOYEES, LOCAL 717 879'
or, as the Union contends, only an "interim" or "strike settlement" agreement with
other contractual issues still unresolved. Specifically, there is a direct clash between
the testimony of Nonnamaker and Thibeau concerning the status of negotiations
concerning a health and welfare plan.
The meeting of June 2 and 3 was the last negotiating meeting in which employers
were participants as consultants to Nonnamaker. In July, however, Thibeau and
Nonnamaker met to discuss certain contract changes the former had proposed by
letter after the June 3 meeting. It appears that except for the health and welfare
issue, such changes were chiefly of a language nature. Nonnamaker agreed to some
of the proposals, but flatly refused to negotiate further on a health and welfare
plan, insisting that this point had been disposed of on June 2 and 3.
Thereafter Nonnamaker had prepared a new draft contract, which in substance
was the old 1959 agreement amended by such provisions as had been agreed upon
at the June 2-3 meeting and at his July meeting with Thibeau. It was submitted
to Thibeau, but he did not sign it.
On the contrary, in October Thibeau submitted the Union's own version of a con-
tract to a number of employers, and at least five involved herein (Arctic, Baldwin,
Deluxe, Hawthorne Mellody, and National Ice Cream) apparently signed without
any threat of a strike.
Other employers, who were approached with the union version in October or
thereafter, declined to sign, in general basing such refusal upon their understand-
ing that an agreement had already been reached in June.
In December a number of employer representatives who had not already signed
individual contracts met with Thibeau. Council representatives maintained their
position that a full agreement had already been reached. Nothing was
accomplished.
Early in February the Union struck employees of National Dairy (Sealtest). This
employer then began individual bargaining with the Union and a contract was
eventually signed in May.
After obtaining this contract Thibeau struck, or threatened to strike, all but one
of the Employers who had not yet signed a contract. All employers herein in-
volved, except Borden, Bowman, and Dean, have since then signed contracts with
the Union.
The two chief issues here are: (1) whether or not the Respondent Union violated
Section 8(b)(3) of the Act by refusing to sign a contract, provisions of which had
been agreed upon on June 2 and 3; and (2) whether or not the Respondent Union
violated Section 8(b) (1) (B) of the Act by striking certain of the employers in-
volved, thereby "impairing" their right to select their own bargaining representative.
B. The issue of alleged violation of 8(b) (3)
As noted above the critical point here is whether or not at the June 2-3 meet-
ing a full understanding as to all contractual issues was reached. There is no dis-
pute that Thibeau thereafter declined to sign an agreement which Nonnamaker
submitted as a claimed full contract.
Resolution of the point must rest, in the opinion of the Trial Examiner, upon sur-
rounding circumstances and upon the credibility of Thibeau and Nonnamaker.
Testimony of some employer witnesses as to what their "understanding" was as
to whether or not certain matters of a contractual nature still remained for fur-
ther negotiation was, of course, mere hearsay, insofar as the actual agreement be-
tween Thibeau and Nonnamaker is concerned.
The following quotations tend to support Thibeau and the Union's position that
not a contract in its entirety but only a "strike settlement" was reached by the two
negotiators:
a. According to Nonnamaker's own testimony: "I was . . . directed [by his
principals in another room] to find out from Mr. Thibeau what his ultimate posi-
tion was and what his musts were to settle the strike." [Emphasis supplied.]
b. Also according to Nonnamaker the two "went over . item by item" a
Council document submitted to the Union on May 28, entitled "Memorandum of
Settlement." Yet the document finally drawn up the morning of June 3 is entitled
"Strike Settlement Agreement."
c. When asked what happened after the "strike settlement agreement" was signed,
Nonnamaker as a witness replied: "That night everybody shook hands and both
sides were happy to see the strike over and settled."
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
d. As to when the strike ended, Nonnamaker testified: "In accordance with the
agreement that Mr. Thibeau said, if we could make a deal that night, that be would
let the routes go out the next day and not wait for ratification . . . I know some
of the company routes went out the morning of June 3."
The Union's contention that the issue of "health and welfare" was still unsettled
and on June 3 was subject to further negotiations is supported by the following
facts, concerning which there is no dispute:
a. The 1959-61 contract, which expired on May 1, 1961, contained certain pro-
visions covering "an insured minimum program of Health and Welfare benefits."
Following details of minimum benefits, the parties had agreed that: "A plan of
benefits providing at least the above minimum benefits shall be put into effect no
later than December, 1959 and the cost of the employee coverage thereunder shall
be paid for by the Company."
b. The Union's initial written demands in the 1961 negotiations proposed, in
changing article XXX of the preceding agreement that: "Health and Welfare shall
be paid for by the Employers and Pension Plan-Central States."
c. As previously noted, the Union struck all employers here involved on May
25 or 26, but called off such strike early against four employers who agreed to adopt
the Central States health and welfare plan.
d. The "Strike Settlement Agreement" contains no provision regarding "health
and welfare," but only a "pension plan."
e. All but three employers here involved have now signed individual contracts with
the Union containing a clause providing that the Employer shall pay for health
and welfare benefits "equal to" those "under the Central States . . . Health and
Welfare Fund."
In the opinion of the Trial Examiner, the five factors noted immediately above,
without more, reveal a situation where it is reasonably more probable that the health
and welfare issue was still unresolved on June 3. Nothing in the Union's con-
duct, from its initial proposals to the signing of the last individual contract in
1962, supports Nonnamaker's bland claim:
The subject of Health and Welfare was never really a subject of any con-
troversy at all because Mr. Thibeau at various occasions told me that the bulk
of the employees who were employed by such companies as Bordens and Seal-
test and the other large companies were under company plans which were of
such a nature that they were most satisfied, and that there was nothing to be
done about Health and Welfare?
Careful review of all the testimony fails to reveal, to the Trial Examiner at
least, any reasonable explanation as to why, if the Union proposed but immediately
dropped its health and welfare demands, it should have been a major issue in all
contracts eventually signed.
Furthermore, Thibeau's uncontradicted testimony regarding Nonnamaker's mental
and physical condition at the time the strike settlement was drafted, on the morning
of June 3, leads to the reluctant conclusion that the employer spokesman, as a wit-
ness, had no clear recollection of the events of that long negotiating session. Thibeau
testified:
Mr. Nonnamaker and I were there first and then Mr. Baer and Mr. Douglas
(two employer representatives) came in and then Mr. Nonnamaker started to
write it out and he was too drunk to write and Mr. Baer and Mr. Douglas asked
him to leave. . . . He was swearing and cursing and Mr. Douglas and Mr. Baer
were trying to quiet him down because there was two young ladies out in the
outer office present and the door was open and Mr. Douglas and Mr. Baer asked
him to leave, that they would write it up. I got out to get a drink of water,
the next time I see Mr. Nonnamaker he was going in the room where the Union
was with a bottle in each hand.
Also undisputed is Thibeau's testimony to the effect that just before terms of the
"strike settlement" were reached Nonnamaker came in to the union representatives
and declared, "For Christ's sake. Them guys are crazy. I quit. This is the third
2 Seriously inconsistent with his above-quoted testimony as to "various occasions" was
his insistence on cross-examination that "the only time I heard about that [health and
welfare increases for 1961] was at the first meeting . . ." and after this first meeting
"I never heard any discussion" about "health and welfare."
ICE CREAM, FROZEN CUSTARD EMPLOYEES, LOCAL 717 881
time I've quit . .. They [the employer representatives] can't get together on
nothing." 3
Whether Thibeau's diagnosis of the cause of Nonnamaker's incapacity to function
is correct or not, the testimony of Douglas supports his appraisal of the Council
secretary's condition. Douglas said that Nonnamaker called him and Baer into the
office to draft the agreement with Thibeau, and that he was "tired, exhausted."
Under the circumstances revealed by credible testimony and documents in evi-
dence, the Trial Examiner infers that although Nonnamaker actually agreed with
Thibeau that only a "strike settlement agreement" was being negotiated and reached
that night, and that certain other matters, notably the health and welfare problem,
were open for later negotiations, he failed to so inform employer representatives in
the other room. Thibeau's uncontradicted testimony as to Nonnamaker's unre-
strained comments about his own clients, displaying both imbalance and impatience,
suggests a mood wherein any measure, including misrepresentation, was inviting in
order to avoid further negotiations. The record contains no evidence casting doubt
upon the testimony of employer witnesses as to their understanding of the agree-
ment-but it is clear that this understanding was obtained from Nonnamaker alone.
Nor is there any evidence in the record showing that during the long history of
collective bargaining between these employers and the Union either party had been
guilty of bad faith negotiations-until the Council employed the services of
Nonnamaker.
In short, the Trial Examiner concludes and finds that credible evidence does not
sustain the allegation of the complaint to the effect that all terms of a contract were
agreed upon by Thibeau and Nonnamaker on this occasion. It follows that neither
Thibeau nor the Union violated Section 8(b)(3) of the Act.
C. The issue of individual contracts
It appears needless to prolong this Intermediate Report by extensive discussion of
this point.
In the first place it is doubtful if the "multi-employer unit" remained legally intact,
according to Board standards, after several of the participating employers agreed to
health and welfare terms before the June 2 meeting, and actually signed separate
agreements in October-voluntarily, so far as the record shows.
In the second place, it is reasonable to infer that Nonnamaker's refusal to negotiate
further a health and welfare plan after the June meeting was an act provoking pre-
cisely the counteraction taken by Thibeau. The Union sought, as it had in years
past, uniform contracts covering some 1,200 employees. After several employers in
the group had agreed to and did execute contracts containing the health and welfare
plan, and Nonnamaker declined to negotiate on the matter for the remaining Em-
ployers, it appears that the Union proceeded along the only avenue open, short of
protracted litigation during which time employees would be deprived of contractual
benefits. In invoking the companion subsection of 8(b)(1)(B)-8(b)(1)(A)-so
far as the Trial Examiner is aware the Board has consistently declined to find a viola-
tion where an act has been provoked, such as violence on a picket line.
In summary, the preponderance of credible evidence fails to support allegations of
the complaint that the Respondents have violated Section 8(b)(1)(B) and (3) of
the Act.
It will therefore be recommended that the complaint be dismissed in its entirety.
RECOMMENDATIONS
On the basis of the foregoing findings of fact and conclusions of law, the Trial
Examiner recommends that the complaint be dismissed in its entirety.
3 The Trial Examiner does not ignore a fact bearing upon Thibeau's credibility which
General Counsel stresses in his brief, to the effect that competent evidence contradicts
Thi,beau's denial that he actually signed one copy of the "strike settlement" that morning.
The Trial Examiner does not credit the denial. Thibeau admitted that he agreed to the
terms appearing in that settlement, and the most reasonable explanation occurring to the
Trial Examiner as to why he insisted that he did not sign it is that by union rules he was
not empowered to sign any agreement without ratification by members. This evasion of
the truth, however, as to the actual signing of a document, appears to be offset by
Thibeau's admission that the contents of the document were agreed to by him, and does
not deprive other parts of his testimony, especially where supported by other undisputed
evidence, of credibility
734-070-64-vol 145-57