Joseph C. Collins & Co., Inc.

National Labor Relations Board - Board Decisions

Aug 19, 1970

184 N.L.R.B. 940 (N.L.R.B. 1970)

940 DECISIONS OF NATIONAL
Joseph C. Collins & Co., Inc. and Local 23-L,
Lithographers and Photoengravers International
Union , AFL-CIO. Case 25-CA-3508
August 19, 1970
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND BROWN
On March 26, 1970, Trial Examiner George J.
Bott issued his Decision in the above-entitled
proceeding, finding that the Respondent had not
engaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision and a supporting brief, and the Respon-
dent filed a brief in support of the Trial Examiner's
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that the complaint herein be, and it hereby
is, dismissed in its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE J. BOTT , Trial Examiner : Upon a charge
of unfair labor practices filed by Local 23-L,
Lithographers and Photoengravers International
Union , AFL-CIO, herein called the Union, on Sep-
tember 10 , 1969, against Joseph C. Collins & Co.,
Inc., herein called Respondent or Employer, the
' General Counsel's unopposed motion to correct the transcript is hereby
granted
LABOR RELATIONS BOARD
General Counsel of the National Labor Relations
Board issued a complaint and notice of hearing on
October 30, 1969, in which he alleged that Respon-
dent had engaged in unfair labor practices in viola-
tion of Section 8(a)(1) and (5) of the National
Labor Relations Act, as amended, herein called the
Act. Respondent's answer admitted certain allega-
tions of the complaint but denied the commission
of any unfair labor practices. A hearing was held
before me in Indianapolis, Indiana, on December
15 and 16, 1969, at which all parties were
represented. Subsequent to the hearing, Respon-
dent and General Counsel filed briefs which have
been considered.
Upon the entire record' in the case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS
Respondent is an Indiana corporation with an of-
fice and plant in Indianapolis, Indiana, where it is
engaged in the manufacture, sale, and distribution
of printed matter. During the 12-month period
prior to the issuance of the complaint, Respondent
manufactured and shipped products valued in ex-
cess of $50,000 from its Indianapolis plant to States
other than the State of Indiana.
Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the
meaning of Section 2 (5) of the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. Basic Findings
1. Negotiations preceding the September 3 strike
Prior to 1968, Respondent was unorganized, but
on February 21, 1968, a majority of Respondent's
employees in an appropriate lithographic depart-
ment unit designated the Union as their representa-
tive in a Board election and the Union was certified
as such on March 1, 1968. Thereafter, Respondent
and the Union negotiated and, on April 4, 1968, ex-
ecuted a contract covering the appropriate unit.
Since at least 1963, the Union has had collective-
bargaining contracts with Indianapolis Union Prin-
ters Division of Printing Industries of Indiana,
herein called the Association, covering lithographic
department employees of members of the Associa-
tion and nonmembers who authorize the Associa-
tion to bargain on their behalf. The Union's con-
tract with the Association, effective August 5,
184 NLRB No. 113
JOSEPH C. COLLINS & CO., INC. 941
1966, terminated on August 4, 1969, the same time
as its contract with Respondent expired.
On June 4, 1969, the Union wrote to all em-
ployers with which it had contracts, including
Respondent, advising them that the existing labor
agreement was about to expire and requesting that
negotiations for a new contract begin. Charles
Schultz, president of the Union, testified that
Respondent did not answer his written communica-
tion. He also testified credibly, however, that after
sending an identical letter to Merle Rose, president
of Studio Press, Inc., and chairman of the Associa-
tion's negotiating committee, Rose replied by letter
of June 6 and advised the Union that the Associa-
tion was organizing its negotiating group and soon
would be in touch with Schultz for the purpose of
"arranging the first meeting to negotiate a new con-
tract."
Within a week of receiving Rose's letter, Schultz
spoke with him on the telephone. Rose told Schultz
that he was chairman of the Association's negotiat-
ing group , that the group had expanded , and that
"most of the city shops had agreed to negotiate
jointly." Schultz inquired about the identities of the
new participants, and Rose named Respondent as
one of them. Thereafter, Schultz spoke with
representatives of all of the companies that Rose
had listed as joining in group bargaining, and he
testified credibly that all of them, including Joseph
C. Collins, president of Respondent, indicated that
they would be "negotiating as part of the group."
Both Rose and William Habing, the Association's
executive director, confirmed Schultz' testimony
that Joseph Collins had been asked to participate in
group bargaining with the Union and had con-
sented. Rose's conversation with Collins was ap-
parently by telephone, but Habing visited Collins at
his office around June 1. He said he explained the
reason for his visit and noted the need for a "united
front." Collins, according to Habing's uncon-
tradicted testimony, said he would "go along with
the group and be a party to it."
The Association held meetings of its negotiating
group on June 24 and July 8 to discuss and plan for
the forthcoming bargaining sessions with the Union.
Habing testified that Collins was present on June 24
and that Rose appointed him a member of a sub-
committee to study and propose contract language
to present to the Union. Although Collins testified
that he was unaware of this appointment, I credit
Habing's and Rose's testimony that Collins was so
selected, and Habing's statement that Collins made
no objection to his appointment.
After the preliminary meetings but before the
'first bargaining meeting with the Union, Habing,
assisted by Rose and the Association's attorney,
prepared the Association's written proposals to the
Union and distributed copies to all employers
named therein as being represented by the Associa-
tion. The Joseph C. Collins Company is listed in the
document, and Habing testified that Mr. Collins did
not object to his company's name appearing in the
proposals. The Union also delivered copies of its
proposals to Habing before negotiations began and
Habing forwarded copies to all members of the As-
sociation and to Respondent.
Formal negotiations between the Association and
the Union began on July 17, 1969. At this meeting
the Association presented to the Union the written
proposals which had previously been prepared and
distributed to those employers it represented. The
Union was represented by International Vice Pre-
sident Petrakis, Local Union President Schultz, and
three local union members. The Union also had
other members of a committee present in a caucus
room for consultation. The Association' s bargaining
committee included Habing, Rose, and Cross, the
Association's attorney, on a regular basis, and its
other members, who were representatives of the in-
dividual members of the Association, varied from
meeting to meeting . Association members , like the
Union, also had a private caucus room.
Collins was present on July 17 in the Associa-
tion's caucus room "as one of the members ... or
group in the caucus room," as he described it. The
second negotiating session was held on July 21, and
Collins, acting as a member of the Association's
team , directly participated in the negotiations with
the Union. Collins admittedly was present in the
caucus room at the July 22 meeting as well as the
subsequent meetings of July 28 and 29.2
Collins testified that he began to have second
thoughts about being involved with the Association
and, on either July 21 or 22, asked Habing if his
presence would be "binding " on him in some way.
Habing told him to consult the Association's attor-
ney. Later Collins made a similar inquiry of Cross,
attorney for the Association, who advised Collins
that this was a subject he should consult his own at-
torney about. Collins did, and was advised to write
the parties and inform them that only an officer of
Respondent could bind it in negotiations. Collins
attended the Association caucus prior to the July
29 bargaining session and told Habing and Cross
that he was withdrawing from association bargain-
ing because he could not afford the economic terms
of any contract he could anticipate being arrived at
between the Association and the Union. Although
Cross indicated that he thought Collins had no right
to withdraw at that time, Collins handed the As-
sociation a handwritten statement rescinding any
authority the Association had to negotiate or sign a
contract on Respondent's behalf.
As the bargaining session of July 29 was about to
commence, Cross handed the Union Collins' hand-
written note. According to Schultz, Petrakis asked
1 Schultz and Petrakis appeared sincerely certain that Collins was ac-
tually in the bargaining session on July 22, but it is unnecessary to resolve
this conflict, for Collins, without having advised the Union to the contrary,
stayed with group bargaining until he withdrew on July 29, and the Union
knew he was there
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cross what had caused Collins' action and stated
something to the effect that Collins would "still
have to to on the Indianapolis settlement." Petrakis
testified that after he read Collins' communication
he stated that he did not think that "legally the em-
ployer could withdraw at this time, that he was
obligated to any negotiations the employers as-
sociation had made." Habing recalled Petrakis'
reaction as noting that it was not "within the law
for them to pull out," and he said that the Associa-
tion representatives told Petrakis that they were in
agreement. Collins did not participate in that day's
negotiations or any other association-union bar-
gaining thereafter.
On July 29 Schultz received a letter from Collins
stating that no one but Respondent was authorized
to bargain for Respondent and that Respondent was
"available at any time for negotiation." On July 30,
1969, Collins mailed a letter to Habing informing
him that Collins had never authorized the Associa-
tion to bargain on his behalf and that no organiza-
tion had the authority to collectively bargain for
Respondent.
The contract between Respondent and the Union
expired on August 4 as did the contract between
the Association and the Union. By July 29, when
Respondent advised the parties that it would not be
bound by Association bargaining, the Association
and the Union had reached agreement on practi-
cally all of the noneconomic provisions of an agree-
ment . Subsequent to July 29, the Association and
the Union continued to negotiate and reached final
agreement on August 13. The terms of the con-
tract, including wages and other economic matters,
were retroactive to August 4. All employers
represented by the Association immediately put the
wage increases into effect and gave employees
checks for the retroactive pay. On August 14, the
day the contract was ratified by the members of the
Union, Charles Little, shop steward at Respon-
dent's plant, gave Collins a summary of the
economic package. Collins commented that the
economic terms were about what he thought would
result from the negotiations. It appears that during
negotiations both sides participated in drafting vari-
ous clauses and tentative drafts of agreements. After
negotiations were concluded, however, the Union
had the final draft typed and presented it to the As-
sociation for signature . This draft did not contain
the name of Respondent as an employer
represented by the Association.
Collins testified that after his withdrawal from
Association bargaining he had a telephone call or
two from the Union "on some small subject" and
also met with Schultz and a factory committee in
his office on August 25 on grievances. During these
telephone calls and during the grievance meeting
nothing was said about the recently negotiated As-
sociation contract, and the Union did not indicate
that Respondent was bound by it, according to Col-
lins' uncontradicted testimony. Collins said that
when he "expressed a desire to get together and get
our contract written up" during the meeting,
Schultz indicated that a representative from the In-
ternational Union would be available shortly and a
meeting would be arranged.
Schultz testified that he telephoned Collins in
late August and asked to meet with him "for the
purpose of signing a contract." He stated that he
"expected (Collins) to sign the Indianapolis settle-
ment ," by which he meant "the association
settlement" because he "assumed that being
in the Indianapolis area that it was proper for him
to sign that contract, that he was bound by it as far
as we were concerned." He conceded, however,
that in his conversation he did not specify a particu-
lar document that he expected Collins to sign, but
did expect Collins "to sign the contract on the same
terms as the Indianapolis area settlement."
Respondent and the Union met at Respondent's
plant on September 2. Present for the Employer
were Collins and his wife, Supervisor Shepherd, and
Jim Collins. The Union was represented by Schultz,
Petrakis, and two employees from the plant, includ-
ing a shop steward. The Union presented Collins
with a written summary of the economic package in
the area agreement . Collins said that he "went into
a very lengthy economic speech on how he could
not afford that package ...... Petrakis offered to
let Respondent accept the contract for 1 year,
rather than 2 years as provided in the Association
contract, on condition that he agree to the entire
contract. Collins said he would think about it and
give the Union his answer the next day.
On September 3 the parties met again with the
same representatives present. The meeting lasted
less than an hour. Petrakis asked Collins for his
decision on Petrakis ' suggestion for a 1-year ar-
rangement , and Collins replied that he had con-
sidered it, but could not afford it, for it would only
be "buying time." Collins asked the Union if they
would consider anything less than the area agree-
ment and was told that the Union would not. Col-
lins said that the Union's position made him feel
that it would be useless to make a counteroffer.
None was made, and the meeting adjourned.
Since one of the principal issues in the case is
whether the Union had acquiesced in Collins'
withdrawal from Association bargaining and was
evidencing this acquiescence by its conduct in
meeting with him directly, the use of particular
words by the parties, their failure to make certain
claims during negotiations and their own interpreta-
tions of what kind of bargaining was going on as-
sume unusual importance in the contentions of the
parties and require certain immediate findings. First
of all, both Schultz and Petrakis, although insisting
that they wanted Collins to agree to the terms of
the area agreement, conceded that they were
willing to and were "negotiating" with Collins
"directly" on September 2 and 3. Second, the Union
did not tell Collins that he was already bound by
the contract which the Association had negotiated
nor, consistent with that position, ask him to put
JOSEPH C. COLLINS & CO., INC.
into effect the terms of the Association agreement
immediately or make retroactive payment of wages.
It also appears that Collins was the only employer
in the area who was offered a 1-year contract.
As soon as the September 3 meeting with Collins
was over, Schultz and Petrakis met with the em-
ployees in the unit and told them what had hap-
pened. Schultz and Petrakis testified credibly that
they informed the employees that "the Employer
had turned down the area agreement" and an im-
passe existed. The employees voted to strike and
were still on strike at the time of the hearing in this
case.
2. Negotiations after the strike
On September 4, Schultz wrote to Collins and
stated that the Union had gone on strike "protest-
ing the management's stand on their contract
proposal," but stood "ready to enter into further
meetings whenever the Company is willing."
Charges of unfair labor practices were filed and a
complaint issued, however, and no further meetings
occurred until after Schultz telephoned Respon-
dent's present attorney on November 5.3
Schultz testified that counsel for the International
Union told him that the Board had issued a com-
plaint of unfair labor practices against Respondent,
but also advised him to keep the door open for
possible settlement of the dispute. In his call to
Owen he described some of the background of the
case, noting in his conversation that Collins had
never submitted a counterproposal to the Union
This, he said, was a statement of fact, not a request
for a counterproposal, but Owen agreed that they
should meet and that Collins should have a coun-
terproposal. Schultz also stated, and I credit him,
that in his talk with Owen there was no discussion
of whether or not Respondent was already bound
by the area agreement negotiated by the Associa-
tion. Schultz did concede, however, that he told
Owen that he was willing to negotiate with Respon-
dent " in an effort to reach an agreement."
On November 11, Respondent and the Union
met. The Union was represented by Schultz,
Petrakis, and two employees, and Owen and Collins
were present for Respondent. Schultz testified, and
I credit his testimony, that the Union immediately
proposed that Respondent "accept the Indianapolis
area settlement." Collins reminded Petrakis of his
earlier offer of a 1-year contract, but Petrakis
replied that since Collins had not accepted it, it was
withdrawn, and the Union was now proposing "the
whole package." During the meeting, the parties
reviewed the noneconomic language in the recently
expired contract with Respondent. A copy of the
contract with the Association was not yet available
and this discussion was primarily for the benefit of
Respondent's new counsel.
' Respondent 's corporate attorney advised Schultz that Attorney Owen
had been retained to handle the labor case
943
After the Union explained the noneconomic
terms of the agreement, Respondent submitted cer-
tain economic proposals for the Unions' considera-
tion , including a wage proposal lower than that pro-
vided in the new Association agreement. Respon-
dent also offered to accept the Union's proposal on
welfare and education funds, conditioning its ac-
ceptance, however, on the Union agreeing to have
the payments made as of the date of the signing of a
new agreement. Later in the meeting , Respondent
accepted the welfare and education fund provisions
of the area agreement, excluding payment, how-
ever, for the time employees had been on strike.
The Respondent also proposed a management
prerogative clause which the Union rejected. There
was discussion of other matters, and the meeting
adjourned with the Union agreeing to submit to
Respondent a copy of the current Association
agreement and certain information relating to the
Union's early retirement fund. At no time during
the November 1 1 meeting did the Union propose or
agree to accept anything other than the terms of
the Association contract. On the other hand,
Schultz agreed that at no time during this meeting
did the Union take the position that Respondent
was bound by a contract because of its relationship
with the Association prior to July 29, 1969, and he
conceded that he and Petrakis told Owen and Col-
lins at that meeting that the "Union was willing to
negotiate directly with Mr. Collins," and he agreed
that this was why the Union had its negotiating
committee present.
Schultz supplied the information requested in the
previous meeting , and the parties met again on
November 25, at which time Respondent agreed to
accept most, if not all, of the noneconomic provi-
sions in the Association agreement. It was also
agreed, however, that any references to the As-
sociation in the agreement should be deleted and
that Respondent's name only should be inserted as
a party. Petrakis was not present at this meeting,
but Schultz testified without contradiction that
when Owen made the proposal about deleting all
language in the agreement referring to the Associa-
tion , he stated that this would be no problem, but
he conditioned his acceptance on Respondent
agreeing to the economic terms of the area con-
tract. The Union also gave Respondent its proposal
on a management rights clause . Collins agreed that
although the Union was willing to compromise on a
management rights clause and was willing to
negotiate with and sign a contract with him in-
dividually, it continued to insist on his accepting
"all the substantive terms of the area agreement."
During the course of the meeting the parties agreed
on a compromise management rights clause. At the
end of the meeting , only the economic matters
were left unresolved, for all practical purposes, and
the parties agreed to meet again on December 2.4
' Collins testified that he could have gone along with the rest of the area
agreement if he could have worked out the "wage scale problem "
944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The only departure from the area settlement the
Union had made in this meeting was the manage-
ment rights clause, which does not appear in the
Association agreement, and changes in language in-
dicating that the agreement was with Respondent as
a separate entity not represented by the Associa-
tion.
Schultz and two employees met with Collins and
Owen on December 2 in a rather brief meeting
Owen opened the meeting by stating that Respon-
dent could not offer a better wage offer than it had
at the last meeting and reiterated that Respondent
had lost a considerable sum of money over the last
4 years. Respondent also made a proposal to settle
the strike by offering reemployment to the strikers
as vacancies occurred. Schultz refused to agree to
any economic settlement less favorable than the
area agreement and argued that other area non-
represented employers were able to operate suc-
cessfully at the agreed area wages. Schultz agreed
that he had rejected Respondent's proposals at this
last meeting, and he conceded that he had also in-
dicated that he was still willing to negotiate directly
with Respondent "independently of the Associa-
tion" and so stated at the end of the December 2
meeting. Schultz maintained that at no time since
September 2 did the Union agree to take less from
Respondent than the terms of the agreement
negotiated with the Association. Collins conceded
that the only substantive changes made in the area
agreement during the negotiations that he could
name were the management rights clause and
changes in the name of the employer to reflect that
it was not a group contract There had been no ad-
ditional meetings between the parties at the time of
the hearing.
B. Analysis, Additional Findings, and Conclusions
Multiemployer bargaining is based on the mutual
and voluntary consent of the parties, and when a
member of a multiemployer bargaining unit at-
tempts to withdraw from group bargaining after it
has commenced, his withdrawal will not be con-
sidered "timely" and will not relieve him from the
obligations of any contract subsequently negotiated
with the Union, unless the Union consents to his
withdrawal.5 General Counsel contends that the
facts in this case require a finding that Respon-
dent's withdrawal from multiemployer bargaining
and its subsequent refusal to sign and adhere to the
agreement negotiated by the Union and the As-
sociation were individually and collectively viola-
tive of Section 8(a)(5) and (I) of the Act. Respon-
dent, although apparently not disputing the un-
timeliness of Collins' withdrawal on July 29 after a
number of bargaining sessions, contends that he
had never indicated an intention to be bound by the
Association's collective bargaining, and that, in any
case, the Union acquiesced in Respondent's
withdrawal by its conduct after July 29, 1969.
Respondent argues that it had never participated
in joint bargaining before and not specifically
designated the Association to represent it or given
it authority to execute an agreement in its behalf.
However, all that is essential to establish a multiem-
ployer unit is that the employer member has in-
dicated an intention to be bound by a group rather
than individual action. Formal membership or
designation to act is not controlling.6 I find that
Respondent by its words and acts clearly indicated
an intention to be bound by group action during
negotiations for a new agreement. Before negotia-
tions began, Collins accepted Rose's and Habing's
invitations to participate with the other employers,
and this information was communicated by Rose to
the Union. When the Union telephoned Collins be-
fore negotiations started, and at a time when it had
not received a reply to its request to him to begin
bargaining for a new contract, Collins told the
Union that he would be negotiating with the Union
as part of the multiemployer group. Before associa-
tion bargaining commenced, Collins participated in
a strategy session with other members of the As-
sociation, and when bargaining actually started he
appeared in both the formal sessions and in the
caucus room. It was not until July 29, after a sub-
stantial part of the contract had been settled and a
short while before the economic terms were agreed
upon, that Collins had second thoughts about his
participation and notified the Union that he was
getting out. The Union to that time had been led to
believe both by Collins and by the Association with
his permission that he was bargaining in good faith
as part of a group. Indeed, the Union would have
been unreasonable if it had not assumed that he
was. At this stage of the negotiations the parties
had revealed their positions, and to permit a
withdrawal at that time, no matter how unequivo-
cal, would be unfair to the Union. I conclude,
therefore, that Respondent made an untimely
withdrawal from multiemployer bargaining and that
the single-employer unit of Respondent's em-
ployees had been merged into the overall multiem-
ployer unit by reason of the group bargaining en-
gaged in by Respondent and the Union.'
An employer's untimely withdrawal from mul-
tiemployer bargaining may nevertheless be effective
if it is based on mutual consent. The Union's con-
sent may be implied and indicated by "acquiescen-
ce" or any course of conduct which reveals an in-
tention to negotiate an agreement with the em-
ployer on an individual instead of a group basis.
The doctrine of "implied consent" to or
S N L R B v Sheridan Creations, Inc , 357 F 2d 245 (C A 2), N L R B
v Spun-Jee Corporation, 385 F 2d 379, 381-382 (C A 2), N L R B v John
J Corbett Press, Inc , 401 F 2d 673 (C A 2)
The Kroger Co , 148 NLRB 569, 573
Sheridan Creations, Inc , 148 NLRB 1503, 1505, enfd 357 F 2d 245
(C A 2), Universal Insulation Corporation v N L R B , 361 F 2d 406 (C A
2), Quality Limestone Products, Inc , 143 NLRB 589, Service Roofing Com-
pany, 173 NLRB 321, Johnson Sheet Metal, Inc , 179 NLRB 644, Mor
Paskesz, 171 NLRB 116,enfd 405 F 2d 1201 (C A 2)
JOSEPH C. COLLINS & CO., INC.
"acquiescence" in an untimely withdrawal seems
well established in Board law at least,' but since
mutual consent is rarely, if ever, found clearly
unequivocally expressed in litigated cases, and
because the concepts "implied consent" and
"acquiescence" are fluid indeed, just what conduct
the Board will consider to have constituted a
"waiver"9 of an employer's departure from group
bargaining, after having lulled the parties into think-
ing that he was in the game to the end and after
having had the advantage of seeing how the match
was going, is something else again. This becomes
more apparent when it is considered that
"acquiescence," elusive enough as it is, sometimes
is evidenced by silence, which may be ambiguous
and ambivalent, and when it is recalled that the
Board has, in other contexts, taught us that the
waiver of a statutory right, and I assume that the
right of a union to have an employer involved in
group bargaining sign the same agreement the other
employers have signed is a right protected by the
Act,10 must be "clear and unmistakable."11
In Publicity Engravers, Inc.,12 the manager of the
association informed the union by telephone that
the employer had withdrawn from the association.
The union made no objection and asked the
manager to put the information in writing, which he
did a few days later. The union did not reply to the
letter or voice any objections to the employer's
withdrawal during subsequent negotiations with the
association. After agreement was reached between
the association and the union, the union's president
wrote the employer and noted that the employer
had withdrawn from the association and that a con-
tract had been reached between the association and
the union. The writer did not assert that the em-
ployer was bound by the association agreement, but
offered it the same agreement that had been
reached with the association and also offered to
meet "at any time to discuss the matter." A short
while later, the employer and union met and the
union submitted the same contract it had
negotiated with the association. The employer
asked if it could submit counterproposals, and the
union agreed to listen, but when it heard them it
stated that it could not agree to them. In response
to an inquiry from the employer's representative,
the union responded that the contract with the as-
sociation was the only contract that the employer
could sign. Approximately a week later, the union
wrote the employer's counsel and contended that
since the employer's withdrawal from association
bargaining was untimely, he should sign the con-
tract negotiated with the association.
On the above facts the Trial Examiner found that
the union "impliedly" consented to the employer's
"The leading cases upon which Respondent relies are Publicity En-
gravers, Incorporated, 161 NLRB 221, C & M Construction Company, 147
NLRB 843, Metke Ford Motors, Inc , 137 NLRB 950, Atlas Sheet Metal
Works, Inc , 148 NLRB 27 See John J Corbett Press, Inc , 163 NLRB 154,
Service Roofing Company, 173 NLRB 321, Lenox Grill, 170 NLRB 1027,
and Johnson Sheet Metal, Inc , 179 NLRB 644, where the doctrine was
945
withdrawal. The Trial Examiner emphasized the
union's failure to object to the employer's
withdrawal from the association or to claim that
any agreement reached with the association should
include the employer until after its failure to reach
agreement with the employer in their separate bar-
gaining session. The Trial Examiner also found it
significant that the association contract when
drafted, contrary to past practice, had made no
provision for the employer's signature, and the
union did not object to this; that the union's letter
to the employer offering to meet with it could be
interpreted as an offer to bargain over a contract
applicable to the employer's operations, and,
although mentioning the employer's withdrawal
from the association, did not protest it or claim that
the employer was already bound by an agreement;
and that the union still failed to insist that the em-
ployer was already under a contract when it met
with it, but, to the contrary, explained the terms of
the contract with the association and listened to the
employer's counterproposals. The Trial Examiner
also interpreted the union's statement that the em-
ployer could only sign the association contract,
made when it rejected the employer's counter-
proposals, as not meaning that the employer was
bound by the association contract but as a state-
ment that only the terms of such agreement would
be acceptable to the union. Moreover, he also con-
cluded that the union's "conduct" at its meeting
with the employer was susceptible to being in-
terpreted as an invitation to the employer to bar-
gain over the terms of a contract applicable to it,
"although the union's starting point was the as-
sociation contract." Finally, the presence of the
union's negotiating committee at the union's one
meeting with the employer was stressed by the Trial
Examiner, for he felt that if the union was meeting
with the employer to have him sign a contract by
which he was already bound, a "Negotiating Com-
mittee" had no function to perform.
The Board adopted the Trial Examiner's findings
and conclusions on the issue of implied consent,
with one Board member noting as additional factors
supporting his concurrence that the union admitted
that one section of the contract was still a subject
for bargaining when it met with the employer and
that the union's first objection to the employer's
withdrawal came only after "the Union and the
Respondent failed to reach any agreement at their
separate bargaining session."
In C & M Construction Company, 13 the employer
also effected an untimely withdrawal from multiem-
ployer bargaining through a council. The council
informed the union that it had lost a member and
the union requested official notice of such
recognized, but not relied on
° Metke Ford Motors, supra.
° H J Heinz Company v N L R B , 311 U S 514, 526
Cloverleaf Division of Adams Dairy Co , 147 NLRB 1410, 1412
" Supra, fn 8
" Supra, fn 8
946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
withdrawal . The council agreed to provide a letter
to the effect , and negotiations continued until an
agreement was reached the next morning. When
the parties met the next day to execute the agree-
ment , the union again requested the council for a
letter on the employer 's withdrawal and also asked
if it would be all right to visit C & M, who had
withdrawn , and ask them if they would sign an
agreement . The council advised the union to con-
tact C & M individually if they wanted a contract
with them , since they were no longer bound by the
council.
The union met with C & M to "give him a chance
to sign this agreement ." A representative of the
union testified that they understood that the em-
ployer had "moved out of the Council" and they
"presented (a contract) to him." The employer
refused to sign , and the union continued to picket
him. In sustaining the Trial Examiner 's finding that
the union had acquiesced in C & M's withdrawal
from the council , the Board found it significant that
the union voiced no obligation to the withdrawal
when it learned of it ; that it showed its
acquiescence by asking the council if it would be
permissible to "sign up Respondent to a separate
agreement "; and that it was the union's practice to
approach nonmember employers with a copy of the
council agreement for individual signature , but with
respect to council members , execution by the
secretary was sufficient to bind all members. The
Board concluded that the union 's meeting with the
employer when it asked the employer to sign an
agreement , taken in light of an earlier unfair labor
practice charge against the union for picketing the
employer , as well as the union 's practice with
respect to the signing of agreements, indicated that
the union did not consider the employer still a
member of the council or bound by the council's
agreement . This conclusion was supported by the
fact that the union continued to picket the em-
ployer with signs stating that the employer did not
have a collective -bargainin of contract with the
union , and by the absence of any assertion on the
union 's part that the council agreement was binding
on the employer until after the employer filed a
representation petition with the Board.
In Metke Ford Motors ," the union did not
question the employer 's withdrawal but requested a
revised list of employers whom the association was
representing . When it got the list it did not contain
the employer 's name and the union did not object
to its omission . The Board noted that the union
took no action inconsistent with acceptance of, and
consent to , the withdrawal , but instead the union
proceeded to negotiate and execute an agreement
with the association which specifically provided
that the employers covered were those whose
names were attached , and the employer 's name was
not listed . The Board concluded that the em-
ployer 's withdrawal was effective because it had
"the mutual consent of the parties."
In Atlas Sheet Metal Works , Inc.,'-' in finding that
a union had acquiesced in an employer's
withdrawal from an association unit and the em-
ployer was not bound by the contract between the
association and the unions , the Board stated that
union acquiescence was reflected both by its con-
sent to bargain with the employer on a single-em-
ployer basis , even after the union and the associa-
tion had reached an agreement , and by its failure to
present the association contract to respondent for
signature.
The Respondent 's position is that the facts in this
case clearly present a situation for the application
of the doctrine of acquiescence or implied consent
to an untimely withdrawal from multiemployer bar-
gaining because all of the significant facts relied on
by the Board in the cases we have analyzed are
present here and because some of the Union's acts
in this case are even more indicative of consent
than in those cited by Respondent . General Coun-
sel, however , contends that the cases are distin-
guishable , and he places greater emphasis on the
factor of union protest to withdrawal and less on
the Union 's silence in certain areas than does
Respondent . Thus, both sides find comfort in the
same cases.
Preliminarily , it must be said that the parties'
reliance on the same cases is not surprising, not
only because the standards to be applied are
somewhat elastic, as indicated earlier , but also
because the situation we are examining does not in-
volve the conventional type of collective bargaining
where all terms, including the economic, are open
for discussion for the first time. In this case there
had been a contract with Respondent which in all
its terms was very much like the contract with the
Association, and so when the Association and the
Union reached a new agreement on August 13 con-
taining substantial economic improvements and the
Union thereafter sought to get Respondent to do
what the Association had done , it becomes difficult
to determine whether the Union was trying to get
Collins to sign the Association 's contract , which in-
cidently did not yet exist as a written instrument, or
a contract , which incidently did not yet exist as a
written instrument, or a contract exactly like the
one the Association had signed . It may very well be
that the Union was not sure , at least in the
beginning , what it wanted, for as Schultz candidly
and realistically admitted , it made no difference to
the Union whether Collins or any other employer
signed the "area settlement" or an " individual con-
tract " on the same basis . The real bargaining was
all over when the Union approached Respondent. I
stress these points so that we will be careful not to
read too much into the "direct dealing" or
"negotiating" the Union was engaged in with
Respondent or it with the Union.
11 Supra, in 8 I' Supra, fn 8
JOSEPH C. COLLINS & CO., INC.
On the Respondent's side, it is a fact that at no
time after July 29, when Collins made it clear that
he was withdrawing from group bargaining, did the
Union tell the Association, or what is more impor-
tant the Respondent, that it still considered
Respondent to be represented by the Association or
bound by the contract it eventually negotiated with
the Union. This is true despite the fact that Collins
immediately confirmed his position in a letter to the
Union, which was not acknowledged, and even
though Schultz, the Union's president, met Collins
on another union matter after the agreement was
reached with the Association, and although he and
other representatives of the Union met and
discussed a contract with Collins five times after
the Association contract was concluded. The As-
sociation contract provided for retroactive wage in-
creases and all members put such increases into ef-
fect immediately and paid employees a lump sum in
the amount of the retroactive pay. The Union never
asked Collins to make these payments or claimed
that he owed them. So far as silence in these areas
is concerned, therefore, the case is very much like
the cases Respondent relies on.16
It also appears from the cases that an expressed
willingness to meet with the former member of the
Association in order to obtain a contract is con-
sidered important, and this the Union admittedly
did in this case many times. Collins told Schultz in
August that he wanted to meet to "get our contract
written up," and Schultz subsequently telephoned
him to arrange the September 2 meeting, which was
also attended by Petrakis, International vice pre-
sident. Both Schultz and Petrakis told Collins from
the very beginning that they were willing to meet
with him "directly" for the purpose of reaching an
agreement with him. Whether or not they were
"negotiating" fully or in the conventional sense on
September 2 and 3, they were nonetheless willing
to meet with Respondent separately and not as a
member of the Association, and they continued to
meet with Respondent even though no agreement
was reached with him.
Not only did the Union agree to meet separately
but it directly engaged in some kind of "negotia-
tions" with Respondent, for as early as September 3
Petrakis offered a concession not contained in the
Association agreement by proposing that Respon-
dent take a 1-year contract, instead of 2, in order to
determine whether his financial position at the end
of the year would permit him to continue for
another year. Subsequently, in the November
meetings, Respondent proposed, and the Union re-
jected, a management rights clause, but then the
parties agreed on a compromise. My hasty analysis
of the clause suggests to me that Respondent got
" Publicity Engravers, Inc , supra , 223, Meike Ford Motors, supra, fn 1,
951
17 Unfair labor practice charges were pending and a complaint had been
issued
'" Publicity Engravers, Inc , supra , 228 This is not the same negotiating
947
little from it, and I suspect that it may have been a
bargaining ploy," but, nevertheless, there is no
management rights clause in the Association con-
tract and so the Union was treating Respondent dif-
ferently from the Association and conceding that
something at least was open for negotiation.
Additional evidence that the Union was
"negotiating" with Respondent directly and had
therefore accepted his withdrawal from the As-
sociation appears from its willingness to listen to his
economic counterproposals and to patiently explain
the meaning of the noneconomic terms of the old
contract, even if the latter may have been primarily
for the benefit of his new lawyer.
Other conduct of the Union is consistent with the
above factors suggesting acquiescence. During its
meeting with Respondent, the Union had a
negotiating committee with it and this is indicative
of an intention to bargain.' As in the C & M Con-
struction case, the Union's practice is to approach
nonmember employers with a copy of the Associa-
tion agreement for the employer's signature. The
contract used has a line "For the Employer," and
this is where the nonrepresented employer signs.
The Association contract, however, has a line for
"the Employer," but also lines for signatures of the
"Chairman" and "Executive Secretary" who sign
for employers whose names are listed. The Union,
therefore, treated Respondent in this respect as it
did other nonrepresented employers. Moreover,
when the Union prepared the final copy of the
agreement with the Association it did not include
Respondent's name in the list of employers on
whose behalf the officers of the Association were
executing the agreement.
The Union's actions and stated reason for strik-
ing and picketing Respondent is similar to union
conduct in cases cited by Respondent and is con-
sistent with other facts indicating acquiescence.
When Schultz and Petrakis met with Collins on
September 2 and 3 they hoped and expected that
Respondent would "sign the contract on the same
terms as the Indianapolis area settlement," accord-
ing to Schultz, but no particular contract was
referred to, and when Collins argued that he could
not afford the economic package contained in the
area agreement, the Union proposed that he accept
it for 1 year, rather than 2, as in the Association
contract. Immediately after Respondent's refusal,
Schultz and Petrakis reported to the membership
the results of their meetings with Respondent, and
the employees voted to strike because Respondent
had "turned down the area agreement." Picketing
began on September 4, and on that day Schultz
wrote Collins and informed him that the employees
had struck "protesting the management's stand on
committee which is present at Association bargaining, but it is like the
union group which is present in the caucus room at multiemployer bargain-
ing ready to advise and be consulted about things which may affect their
particular employer
427-835 0 - 74 - 61
948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their contract proposal" and added that the Union
was ready to meet again whenever the Employer
was willing. The Union's contract proposal was
what had been offered Collins on September 3, and
Schultz conceded that the strike was over Collins'
position as of September 2 and 3. Nothing was said
on September 2 and 3 about Respondent already
being bound by an agreement, and the strike,
picketing, and Schultz' letter revealed no cause for
the strike other than Respondent's September 2
and 3 position which was its refusal to reach an
agreement with the Union. '9
On September 10, 1969, only a week after the
strike, the Union filed an unfair labor practice
charge against Respondent alleging that it had
refused to bargain in violation of the Act in a unit
of Respondent's employees, in that Joseph Collins
on September 3 "informed the said representatives
of the Union that he refused to meet with the
representatives for the purposes of negotiating a
contract and that he did not intend to make a
counter offer to the Union's offer made to him on
September 2, 1969." The charge is, of course, con-
sistent with what Schultz said caused the strike and
relates only to Respondent's and the Union' s rela-
tionship in the bargaining area . Negatively it is
silent about the Association and about any Associa-
tion agreement that Respondent might be bound
by.
Finally, on Respondent's side of the ledger, as
found above, the Union continued to meet with
Respondent after the strike until not long before
the hearing in this case and during these meetings it
listened to counterproposals and agreed to a
management rights clause.
In General counsel's view, the common signifi-
cant controlling factor in Publicity Engravers, Inc.,
and other cases where "implied consent" to an un-
timely withdrawal was found was the union's failure
to timely protest the untimely withdrawal. It is true
that in certain cases the Board has stressed the
union's failure to object to or protest an employer's
withdrawals as evidence of its acquiescence in the
withdrawal,20 but there were always other factors
present which indicated consent. From my reading
of the cases, positive action on the union's part is
more significant in this area than mere silence, for
not only may there be no duty to speak out im-
mediately but, as General Counsel suggests, the
union may accept the fact of the employer's
withdrawal of authority from the association and
consider it unrealistic to ignore it and to rely in-
stead on the theory that the employer is already
legally bound by what the other employers have
agreed to. The Union did object to Respondent's
withdrawal in this case as soon as it learned of it,
but if silence is significant, the Union's objection, it
" Publicity Engravers, Inc , supra , 227, C & M Construction Company,
supra, 846
Y0 Publicity Engravers, Inc , supra , C & M Construction Company, supra
must be noted, was made only to representatives of
the Association and never to Respondent, and,
moreover, it was never raised thereafter with the
Association even though final agreement was
reached after additional bargaining. But more im-
portant, the Union then engaged in individual bar-
gaining with the Respondent on many occasions
after he withdrew, as set out above, and it is this
positive conduct which indicates more clearly than
silence that the Union has consented to his
withdrawal. In Service Roofing Company,21 the
Board distinguished Publicity Engravers, Inc., and C
& M Construction Company by noting that in those
cases the union "sought to obtain a separate con-
tract from an employer whose withdrawal from a
multiemployer unit was untimely." In John J. Cor-
bett Press, Inc.,22 the Board, in finding no implied
consent to withdrawal, adopted the findings and
reasoning of the Trial Examiner who stated: "`Con-
sent,' in legal contemplation, arises only from ex-
press statement or as an implication from conduct.
Where implied from conduct, that conduct must
normally involve a course of positive action clearly
antithetical to a claimed position. Typical of such
antithetical conduct is union resort to individual
bargaining with an employer following his asserted
withdrawal from a multiemployer bargaining unit,
and this is the, or a, key fact indicative of consent
to withdrawal." As sympathetic as I find myself to
the Union in its dilemma, there can be little
question but that it engaged in a course of in-
dividual bargaining with Respondent after it
reached final agreement with the Association. That
the Union wanted or expected Respondent to agree
to the terms of the Association agreement is not
legally significant,23 and in any case, as found
above, the Union offered Respondent terms dif-
ferent from those it had settled on,with the Associa-
tion. Publicity Engravers,' Inc., and cases like it,
control this decision, and I find that the conduct
which the Union engaged in in this case establishes
that it had consented to Respondent's withdrawal
from multiemployer bargaining.
Having found that Respondent withdrew from
multiemployer bargaining with the Union's consent,
the allegations of the complaint that Respondent,
since July 29, 1969, the date of Respondent's
withdrawal, had refused to bargain with the Union
in an association unit have not been sustained. It
follows that the allegation that Respondent im-
properly refused to execute the Association agree-
ment at the Union's request has not been
established, and the strike of September 3, 1969,
therefore, was not caused or prolonged by any un-
fair labor practices Respondent had engaged in.
I conclude that Respondent did not violate Sec-
tion 8(a)(I) and (5) of the Act, as alleged.
21 173 NLRB 321, fn 9
22 163 NLRB 154, 158
" Publicity Engravers, Inc , supra, 228
JOSEPH C. COLLINS & CO, INC. 949
CONCLUSIONS OF LAW 3. Respondent has not violated Section 8(a)(1 )
and (5 ) of the Act.
Upon the basis of the foregoing findings of fact
and upon the entire record in the case , I make the
following conclusions of law : RECOMMENDED ORDER
1. Respondent is an employer engaged in com-
merce within the meaning of the Act.
2. The Union is a labor organization within the It is recommended that the complaint be
meaing of the Act. dismissed in its entirety.