Ruan Transport Corp.

National Labor Relations Board - Board Decisions

Jan 16, 1978

234 N.L.R.B. 241 (N.L.R.B. 1978)

RUAN TRANSPORT CORPORATION
Ruan Transport Corporation and District Lodge No.
77, International Association of Machinists and
Aerospace Workers, AFL-CIO. Case 18-CA-5167
January 16, 1978
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND MURPHY
On June 29, 1977, Administrative Law Judge
Thomas A. Ricci issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and the Respon-
dent filed cross-exceptions and an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions, cross-
exceptions, and briefs and has decided to affirm the
rulings, findings,' and conclusions of the Administra-
tive Law Judge for reasons set forth herein and to
adopt his recommended Order.
The complaint alleges that the Respondent violated
Section 8(a)(5) of the Act by refusing to execute a
collective-bargaining agreement to which it was
legally bound. The agreement was negotiated in 1976
between the Charging Party Union and a collective-
bargaining agent representing a multiemployer bar-
gaining group. The Administrative Law Judge found
that the Respondent was not included in the multi-
employer bargaining group and that it was therefore
not bound to the collective-bargaining agreement.
Thus, he concluded that the Respondent did not
violate the Act as alleged. The General Counsel
excepted to those findings and that conclusion.
However, we agree with the Administrative Law
Judge for the reasons stated below.
Briefly, the relevant facts are as follows. On or
about October 22, 1973, the Union signed a 3-year
collective-bargaining agreement with the Midwest
Employers Labor Advisory Council, Inc. (hereafter
Council), an organization providing professional
labor relations consultation which represented a
group of employers in the interstate transport busi-
ness. The contract was effective from July 1, 1973, to
June 30, 1976. The Respondent, a transport firm,
sometime thereafter also signed the agreement. How-
l The Respondent's cross-exceptions note that the Administrative Law
Judge inadvertently stated that the heanring in this proceeding was held on
March 3, 1977. and that the Respondent is incorporated in the State of
Ohio. We hereby correct the record to reflect the correct facts that the
hearing was conducted on May 13, 1977. and the Respondent is an Iowa
corporation.
2 All dates hereafter are in 1976, unless otherwise stated.
3 This provision is sometimes referred to hereafter as the "one bargaining
unit" provision. Our dissenting colleague makes an unwarranted assumption
234 NLRB No. 31
ever, the Respondent did not participate in the
negotiations of the contract. Moreover, it was not a
member of the Council nor did it expressly authorize
the Council to negotiate an agreement with the
Union on its behalf.
In May 1976,2 the Union and the Council began
negotiations for a contract to succeed the 1973
agreement due to expire on June 30. Once again, the
Respondent did not participate in the negotiations,
join the Council, or expressly authorize the Council
to bargain on its behalf. The negotiating parties
reached agreement on July 16. Subsequently, the
Union's business representative brought the terms of
the new contract to the attention of the Respondent.
The Company's manager of industrial relations
objected to certain provisions of the agreement and
refused to sign it on behalf of the Respondent. The
parties reached an impasse, and a strike ensued
lasting approximately 6 weeks. Thereafter, the Union
filed the instant 8(aX5) charge.
The General Counsel contends that the Respon-
dent is bound by the 1976 agreement executed
between the Union and the Council because it was
part of the multiemployer bargaining group on
whose behalf the Council negotiated the 1976 con-
tract. In support of that position, the General
Counsel introduced into evidence the 1973 contract,
which provided in section 2, article I:
The employees convered under this Agreement
shall constitute one bargaining unit. Accordingly,
the Midwest Employers Labor Advisory Council,
Inc., and the Employers who are parties to this
Agreement acknowledge that they are part of a
multi-employer collective-bargaining unit com-
prised of the Midwest Employers Labor Advisory
Council, Inc., and those of their members who
have or will certify the Council to represent them
for the purpose of collective bargaining, and only
to the extent of such authorization; and also such
other individual employers who have or may
singly become parties to this agreement. [Empha-
sis supplied.]3
The Administrative Law Judge found this contrac-
tual provision to be "at best ambiguous on the
critical point" of whether the Respondent was bound
that "in order to increase the cohesion of all employers who utilized the
services of the multiemployer association, either directly or through
adoption of the resulting bargaining agreements," the Union and the
Council included the "one bargaining unit" provision in the 1973 contract.
We note, however, that this hypothesis was not advanced by the General
Counsel, there is nothing in the record suggesting this factual occurrence,
nor is there any evidence in the record that the "one bargaining unit"
provision was first adopted by the parties in their 1973 contract, as implied
by our dissenting colleague.
241
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the 1976 agreement because it was part of the
multiemployer bargaining group.4 Uncertain of the
meaning of the contractual provision, the Adminis-
trative Law Judge examined the conduct of the
parties in order to determine their true intent. After a
detailed analysis of the pertinent evidence, discussed
below, the Administrative Law Judge determined
that the parties never considered the Respondent to
be a part of the multiemployer bargaining group.
At this point in our Decision, we note that a
multiemployer unit, unlike other types of bargaining
units, is consensual in nature. The Board has
consistently held that "the essential element warrant-
ing the establishment of multiple-employer units is
clear evidence that the employers unequivocally
intend to be bound in collective bargaining by group
rather than by individual action. The correlative
standard for excluding an employer from such a unit
is evidence of an intent to pursue an individual
course of action with respect to labor relations."5 As
a general rule, the Board has found that an employer
does not become a part of a multiemployer bargain-
ing group (i.e., it does not intend to be bound by
group bargaining) where it merely adopts a collec-
tive-bargaining agreement in the negotiation of
which it did not actually participate and which it did
not authorize another to negotiate on its behalf. 6
In this case, the Respondent did not actually
participate in negotiations of the 1976 agreement
between the Council and the Union. Thus, in order
to conclude that the Respondent became a part of
the multiemployer bargaining group, we must find
I In particular, the Administrative Law Judge was puzzled by the
requirement for members of the Council to certify it to represent them if, as
the General Counsel contends, all an employer was required to do in order
to be included in the multiemployer group was to be a party to the
agreement; i.e., sign the contract. (The signature page included space for
each member of the Council to sign the agreement.)
I Pacific Metals Company, Ltd., 91 NLRB 696, 699 (1950). See also Hub
Pharmacy, Inc., 216 NLRB 69, 72 (1975); Francis Chevrolet Company, 211
NLRB 740, 744 (1974); Letourneau Brothers Construction Company, 194
NLRB 413, 415 (1971); Weyerhaeuser Company, et al., 166 NLRB 299
(1967).
6 See, e.g., Nick Augustine and Irving Gould, d/b/a Victorville Glass
Company, 193 NLRB 289 (1971); Moveable Partitions, Inc., 175 NLRB 915,
916 (1969); Colonial Cedar Company, Inc., 119 NLRB 1613, 1614 (1958);
Associated Shoe Industries of Southeastern Massachusetts, Inc., et al. 81
NLRB 224, 229 (1949). See also Phoenix Air Conditioning, Inc., 231 NLRB
341 (1977).
Our dissenting colleague has misapplied the holding of Dover Tavern
Owners'Association, 164 NLRB 933 (1967), cited by him as authority for his
statement that "this Board has never held that ... actual participation in
bargaining is the sine qua non necessary for a finding that an employer is
included within a multiemployer bargaining group." In Dover, a group of
tavern owners formed an association and, contrary to the belief of our
dissenting colleague, authorized the association to bargain on their behalf.
In fact, the Board stated: "Prior to the hearing in this case the Petitioner had
never received notice from any member of the Association that it was
withdrawing authorization to engage in bargaining from the Association's
committee." 164 NLRB at 933. See also Dover Tavern Owners' Association,
169 NLRB 28 (1968), wherein the Board granted summary judgment in an
unfair labor practice proceeding related to the above-cited representation
decision, and N.L.R.B. v. Dover Tavern Owners' Association, 412 F.2d 725,
728 (1969), where the Third Circuit, enforcing the Board's Order in the
that the "one bargaining unit" provision of the 1973
agreement served to authorize the Council to negoti-
ate on behalf of the Respondent in 1976.7 We have
framed the issue in this case accordingly, in order to
comport with the aforementioned general rule that
an employer does not become a part of a multiem-
ployer bargaining group unless it participates (either
personally or by an authorized representative) in
joint bargaining with the union.
We agree with the Administrative Law Judge that
the "one bargaining unit" provision is not the model
of clarity. However, assuming arguendo that the
provision was clearly written and unambiguous, we
find that such a bare covenant by the Respondent by
which it agreed to be a part of a multiemployer
bargaining group does not itself suffice to clearly
demonstrate that the Respondent delegated authority
to the Council to represent it in future negotiations
with the Union. The most that can be said for the
"one bargaining unit" provision is that it perhaps
implicitly authorized the Council to represent the
Respondent in the 1976 negotiations. However, we
find that something in addition to a mere implied
delegation of authority is needed in order to consti-
tute clear evidence of an unequivocal intent on the
part of an employer to be bound by group bargain-
ing. We would require, for example, some conduct on
the part of the employer which indicates that it
actually pursued a group course of action with regard
to labor relations. 8
The conduct of the Respondent in fact clearly
demonstrates that it did not intend to pursue group
unfair labor practice proceeding, observed: "There was no evidence in the
record that the members unequivocally withdrew, prior to February 10,
1967, their authorization to bargain previously given to the respondent."
Thus, the issue of whether the tavern owners had actually participated in
bargaining was of no concern to the Board or the court since the tavern
owners had already delegated authority to the association to bargain on
their behalf and, hence, they participated through their authonzed agent.
Furthermore, in Dover, no individual employer had claimed not to be bound
by multiemployer bargaining, as the Respondent argues in the instant case.
Rather, the association itself claimed that its members did not constitute a
single multiemployer unit, a contention that the Board found to be without
merit. Accordingly, it is clear that Dover is inapposite to the issues presented
herein.
' As noted above, the Respondent did not expressly authorize the
Council to bargain on its behalf. Members of the Council, however, signed
authorization letters which explicitly delegated power to the Council to
bargain on their behalf.
I Our dissenting colleague states that the "one bargaining unit" provision
is unambiguous insofar as the Respondent agreed that its employees are part
of a specified unit. Assuming, although not conceding, that the clause is
unambiguous to that extent, we fail to understand how our dissenting
colleague ultimately concludes that the provision is also an unambiguous
delegation of authority to the Council to represent the Respondent in future
negotiations with the Union. If the parties had in fact agreed to such a
delegation, it would have been logical for them to have set it forth explicitly.
Thus, we refuse to find that the "one bargaining unit" provision clearly
constituted an unequivocal intent on the part of the Respondent to
relinquish control over its labor negotiations to the Council or any other
bargaining representative.
In addition, we do not agree with our dissenting colleague's view that the
Respondent's execution of the 1973 contract below the signature of an
officer of the Council, which purported to represent all employers who
242
RUAN TRANSPORT CORPORATION
bargaining. The evidence shows that the Respondent,
as well as the Union, clearly bargained with the other
in 1976 on an individual basis. In April, prior to the
opening of the negotiations between the Union and
the Council, the Respondent's attorney sent the
Union a letter which advised it of the Respondent's
intent to negotiate a collective-bargaining agreement
with the Union and noted that the Respondent
would submit contract proposals in the near future.
Also, as mentioned above, the Respondent did not
participate in negotiations for the 1976 agreement. 9
After the 1976 contract between the Union and
Council had been agreed to on July 16 by those
parties, the Union sent the Respondent copies of that
contract. The covering letter stated that "we propose
to cover our members employed by your firm [with
this agreement]." (Emphasis supplied.) Thereafter,
the Respondent and Union engaged in mail corre-
spondence, meetings, and telephone conversations
regarding the substantive terms of the agreement.
The union representative repeatedly justified the
economic gains which the Union had "won" from
the other employers at the bargaining table. The
parties even agreed to modify a provision of the
contract relating to the number and hours of starting
times for work shifts. However, they reached an
impasse on other provisions, especially a clause
regarding the transfer of employees to future facili-
ties of the employer.
After extended discussions regarding the proposed
contract at a meeting in September, the Union
agreed to delete the transfer provision if Ruan's
employees voted to accept the contract without that
clause. The employees voted against this change and
thereafter agreed to strike the Respondent.'1 The
parties soon thereafter met with a Federal mediator
in order to resolve their remaining differences. At the
mediation session, the Union offered a compromise
proposal regarding the transfer provision, but the
Respondent declined to accept it. Subsequently, in
early October, the parties met again but failed to
reach agreement. Finally, in March 1977, the Re-
signed the 1973 contract, "amounted to an express delegation of authority
by the Respondent to the [Council I for it to act as the Respondent's
bargaining representative" in the 1976 negotiations. (In fact, the General
Counsel did not contend that the Council represented the Respondent in the
1973 negotiations.) Rather, we find that the Respondent's execution of the
1973 contract, in the circumstances described above, does not constitute
clear evidence of an unequivocal intent by the Respondent to forego
individual bargaining in the 1976 contract negotiations between it and the
Union.
9 Nor did the Respondent even receive information from the Council
regarding the dates and places of the negotiations.
i0 Our dissenting colleague states that "li t was not until after a strike
was called on September 20 ... that the Union backed off from its position
that it would not permit any modifications to the contract." However, the
record is clear that the Union took a vote of the employees to determine if
they would agree to modify the contract before the employees voted to strike
the Respondent.
spondent and Union held another bargaining ses-
sion. However, they failed to resolve the impasse.
These facts clearly demonstrate that the Respon-
dent intended to and did engage in individual
bargaining with the Union.1 The only evidence of
group bargaining with respect to the Respondent is
the fact that the Union's initial proposals to it were
embodied in the 1976 agreement reached between
the Union and the Council. This evidence, however,
represents no more than the fact that the Respondent
and Union merely engaged in "pattern" bargain-
ing.12
In these circumstances, we agree with the findings
of the Administrative Law Judge that the Respon-
dent was not a part of the multiemployer bargaining
group on whose behalf the Council reached agree-
ment with the Union on the 1976 contract, and,
consequently, that the Respondent was not bound by
that contract.13 We also agree with his conclusion
that the Respondent did not therefore violate Section
8(a)(5) of the Act by refusing to execute the 1976
agreement. Accordingly, we shall dismiss the instant
complaint.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
MEMBER JENKINS, dissenting:
In justifying the dismissal of the 8(a)(5) allegations
specified in the complaint herein, the majority has
presented an overly restrictive view of Board prece-
dent regarding multiemployer bargaining groups,
and consequently has reached a conclusion from
which I must dissent.
From 1958 until 1976 the Respondent and the
Union had entered into a series of collective-bargain-
ing agreements adopting the terms of the agreements
executed between the Union and the multiemployer
" However, the mere fact that a single employer bargains individually
with a union on limited matters of peculiar concern to it does not necessarily
negate the inclusion of an employer in a multiemployer bargaining unit
where it otherwise participates in negotiations on a group basis on all other
matters. See The Kroger Ca. 148 NLRB 569, 573 (1964).
12 Our dissenting colleague sets forth several instances of conduct by the
Respondent which, in his opinion, demonstrates that the Respondent
intended to pursue collective bargaining on a group basis. (See especially fn.
20 of the dissent, infr.) However, that conduct is also characteristic of an
employer who is preparing to and eventually does engage in "pattern
bargaining" on an individual basis.
'3 Therefore, we do not reach the issue, discussed in length by our
dissenting colleague, of whether the Respondent effectively withdrew from
the multiemployer bargaining group.
243
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
group. While the evidence indicates that the Respon-
dent never formally joined the multiemployer group
and never participated in bargaining on the multiem-
ployer level, the record clearly shows that the
multiemployer association was fully aware that other
employers, including the Respondent, were pattern-
ing their bargaining agreements after those executed
by the larger association, while at the same time
avoiding the financial obligations incurred by formal
membership. An officer of the multiemployer associ-
ation testified that it did not put nonmembers on the
negotiating committee, but nevertheless would invite
them to send observers to certain negotiating ses-
sions. Pursuant to such an invitation, a representative
of the Respondent was present at one of these
sessions in 1970. The 1973-76 multiemployer bar-
gaining agreement, indeed, concretely recognized
that it was the practice of certain nonmembers to
follow the terms of the multiemployer agreement.
Specifically, under the execution clause of the agree-
ment, an officer of the multiemployer association
signed the agreement, expressly indicating that it was
"representing" a specified group of employers. In-
cluded in this group was the name of the Respondent
and also several other employers, who at the time of
the hearing were not formal members of the associa-
tion. Furthermore, in order to increase the cohesion
of all employers who utilized the services of the
multiemployer association, either directly or through
adoption of the resulting bargaining agreements, the
Union and the multiemployer association included
the following clause in the 1973-76 contract executed
October 22, 1973:
The employees covered under this Agreement
shall constitute one bargaining unit. Accordingly,
the Midwest Employers Labor Advisory Council,
Inc., and the Employers who are parties to this
Agreement acknowledge that they are part of a
multi-employer collective-bargaining unit com-
prised of the Midwest Employers Labor Advisory
Council, Inc., and those of their members who
have or will certify the Council to represent them
for the purpose of collective bargaining, and only
to the extent of such authorization; and also such
"4 Joseph McDaniel, an Individual Proprietorship d/b/a Custom Colors
Contractors, 226 NLRB 851 (1976); Hub Pharmacy, Inc., 216 NLRB 69, 73
(1975); The Kroger Co., 148 NLRB 569, 573 (1964); Belleville Employing
Printers, 122 NLRB 350, 353 (1958).
15 Dover Tavern Owners'Association, 164 NLRB 933 (1967). The majority
contends that I have misapplied the holding of this Decision since in Dover
there was actual participation in bargaining by a committee of tavern
owners. However, my colleagues have failed to indicate wherein this alleged
distortion lies since this case clearly holds that employers who were not
members of the negotiating committee and who consequently were not
participants in the actual bargaining nevertheless were also included in the
multiemployer unit. There was also no evidence in that case that the
members of the association had expressly delegated bargaining authority to
either the association or the negotiating committee.
other individual employers who have or may
singly become parties to this Agreement.
Shortly thereafter, the Respondent signed a copy of
the bargaining agreement containing this clause, and
it is plain that as a result of its execution of this
agreement it became a part of the multiemployer
group.
The majority gives undue emphasis to the fact that
no express authorization was ever submitted by the
Respondent to the multiemployer association and
that the Respondent did not personally participate in
the multiemployer bargaining. While it is obvious
that an employer's involvement in multiemployer
bargaining may be manifested by such conduct, this
Board has never held that either express delegation
of authority 14 or actual participation in bargaining 5
is the sine qua non necessary for the finding that an
employer is included within a multiemployer bar-
gaining group. The sole test to be used in these
instances is whether the Respondent has indicated an
unequivocal intention to be bound in collective
bargaining by group rather than by individual
action.16 If the evidence presented in this case merely
indicated that the Respondent followed a pattern of
adopting the terms of contracts previously negotiated
by the multiemployer group, my colleagues would be
correct in their conclusion that the Respondent
would not, without more, be bound by the multiem-
ployer negotiations.17 However, it is clear that
something more exists here. Specifically, the Respon-
dent clearly agreed to be bound by the outcome of
multiemployer negotiations when it executed the
bargaining agreement containing the above-cited
multiemployer bargaining unit clause.' 8
The Administrative Law Judge has gone far afield
in finding justification for his conclusion that the
multiemployer unit clause is fatally ambigous and
therefore is of no operative effect, and the majority
incorrectly gives credence to this finding. In view of
the fact that this Board does not require either formal
membership in multiemployer associations or the
express delegation of bargaining authority before an
employer may be included in a multiemployer group,
as previously noted, the language in the relevant
clause regarding such authorizations by formal mem-
'6 McAx Sign Company, Inc., 231 NLRB 957 (1977); Custom Colors
Contractors, supra, Bill O'Grady Carpet Service, Inc., 185 NLRB 587, 590
(1970); The Kroger Co., supra; Chicago Metropolitan Home Builders Associa-
tion, 119 NLRB 1184 (1957).
17 Moveable Partitions, Inc., 175 NLRB 915 (1969).
18 Although I do not find it necessary to rely on the formality of the
following proposition, it is clear that the language in this clause, and the
Respondent's ratification of the language of the execution clause, to wit,
that the multiemployer association executed the agreement as a representa-
tive of the Respondent, amounted to an express delegation of authority by
the Respondent to the multiemployer association for it to act as the
Respondent's bargaining representative.
244
RUAN TRANSPORT CORPORATION
bers of the association is irrelevant for the purpose of
deciding whether the Respondent unambiguously
manifested an intention to be included within the
larger unit. In any event, the language of this clause
indicates that certain specified parties are to be
included within the multiemployer unit, among
whom are "such other individual employers who
have or may singly become parties to this agree-
ment." I find no ambiguity surrounding this clause.
Furthermore, the majority errs in concluding that
such a "bare covenant" even when construed as a
clear expression of intent, is insufficient as an
unequivocal manifestation of intent to be so bound.
Recognitional clauses defining the unit covered by
collective-bargaining agreements are a standard fea-
ture of collective-bargaining agreements' 9 and are
therefore not so esoteric as to require additional
indicia that the Respondent intended to do what it
expressly agreed to do; i.e., be a part of the specified
unit. In including itself within this larger bargaining
unit, the Employer need not presently identify with
specificity who will be its representative in subse-
quent negotiations. The only relevant concern of this
Board is that the Respondent has indicated an
unequivocal intention to be bound by group action.
By executing an agreement which states that the
Respondent is part of a multiemployer unit, it is clear
that the Respondent has aligned itself with group
action, whether or not it is involved in negotiations.
Evidence of subsequent conduct, at best, may be
probative only of the Respondent's attempts to
withdraw from this unit.20
By its terms, the 1973-76 bargaining agreement
was due to expire on June 30, 1976. However, no
specific date was contained in this agreement con-
cerning the earliest appropriate time for the initiation
of negotiations directed toward the execution of a
succeeding bargaining agreement. Accordingly, in
January 1976, the Union and representatives of the
multiemployer association met with representatives
of other multiemployer associations in order to
initiate negotiations which were to lead to the
execution of a multiemployer bargaining agreement
covering employers in a nine-state area. At that time
the Union submitted copies of proposals for such a
modified agreement to the employer representatives.
In late February the Union mailed to the Respon-
19 In a parallel situation, this Board has recently held that employees at a
single plant may be merged within a multiplant unit based on the language
of the multiplant recognition clause, even where the employees at the single
plant were covered by the terms of the multiplant agreement only
subsequent to its original execution. Westinghouse Electric Corporation. 227
NLRB 1932 (1977).
10 Indeed, it would appear that, if subsequent conduct of the parties were
to be determinative of the Respondent's intent to enter into the multiem-
ployer group, the Respondent has in fact indicated by its conduct that it
considered itself to be part of this group. First, in June, the Respondent's
industrial relations manager, Ralph McCrary, listened, without objection, to
dent a copy of the contract proposals which had been
circulated during the January meeting. In mid-April
the Union sent to the Respondent the 60-day notice
necessary to prevent the automatic renewal of the
terms of the old bargaining agreement. On April 27
the Respondent's counsel mailed to the Union a
letter, stating in appropriate part:
Please be advised that this office represents
Ruan Transport Corporation relating to all labor
matters including collective bargaining negotia-
tions.
We will advise you of our intent to negotiate a
collective bargaining agreement ....
We will submit our proposals in the very near
future and request possible dates for commence-
ment of negotiations.
No further communication was received from the
Respondent, and from May 25 to July 16 the Union
and the multiemployer association were engaged in
further negotiations prior to the execution on the
latter date of the 1976-79 contract, retroactively
effective as of June 30, 1976. On July 21 the Union
met with the Respondent and outlined the changes
which had been negotiated in the new agreement. A
copy of the agreement was sent to the Respondent on
August 12, and on August 18 both parties met and
the provisions of the contract were again explained
to the Respondent. On September 1, the Respondent
sent the Union a letter seeking modifications to a few
terms of the agreement, and on September 6 a
representative of the Union responded and flatly
rejected the possibility of any such modifications
Shortly thereafter the employees threatened to strike
and, despite further efforts on the part of the Union
to persuade the Respondent to accept the terms of
the agreement, the employees struck the Respondent
on September 20. In an effort to settle the strike, the
Union offered to modify one of the terms of the
contract but the Respondent rejected the settlement
offer. The strike lasted until the first week in
November, subsequent to the filing of the charges
herein.
It is well-established Board law that consequent to
an employer's entry into a multiemployer bargaining
group he is no longer free to examine the product of
such negotiations and thereupon decide whether to
several progress reports on the multiemployer negotiations presented by a
union representative. Moreover, at no time during the pendency of
multiemployer bargaining did the Respondent even attempt to engage in
bargaining separately from the multiemrnployer group. Second, after the
Union delivered a copy of the 1976-79 multiemployer contract to the
Respondent on August 12, 1976, the Respondent asked for explanations of
several terms in the agreement which met with its displeasure, and only
belatedly objected to its inclusion in the multiemployer bargaining unit after
it had become clear that the Union was not willing to grant to the
Respondent any special concessions from the terms of the multiemployer
agreement.
245
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
accept those terms, but must abide by the terms of
such labor agreements negotiated on a group basis. 21
Only in certain specified situations will this Board
allow an individual employer who has joined such a
group to avoid this bargaining obligation: where the
employer has manifested in a timely and unequivocal
fashion his intent to withdraw from the larger
group; 22 where the union has consented to or
acquiesced in the employer's untimely withdrawal; 23
or where unusual circumstances exist.2 4 The timeli-
ness of an employer's attempted withdrawal is based
on two criteria; whether such withdrawal predates
the date agreed upon in the prior contract for the
initiation of negotiations 25 and whether the with-
drawal predates the actual commencement of con-
tract negotiations. 2 6
Based, on these standards, it is my view that
nothing in this record indicates that there is either a
sufficient factual or legal basis for the conclusion
that the Respondent has acted properly in rejecting
the terms of the multiemployer agreement. By the
end of February, representatives of the multiemploy-
er association and the Union had met and bargaining
proposals had been submitted, the contents of which
the Respondent had become specifically aware.
Although the current contract was not due to expire
until the following June 30, I do not consider such
entry into multiemployer negotiations to have oc-
curred at an unreasonably early date. No provision
in the current contract specifically defined the
earliest date for the initiation of negotiations, inas-
much as the contract merely specified that notice of
such negotiations must be given at least 90 days prior
to the termination date. It is manifest that to allow
the Respondent to first observe the proposed terms
submitted by the Union to the multiemployer group
and then allow it the opportunity to opt for separate
negotiations would have a seriously disruptive effect
on multiemployer negotiations. 2 7
Moreover, even were I to conclude that multiem-
ployer negotiations first occurred as of May 25, when
the multiemployer group met with the Union again
and discussed the contract proposals, I would still
not find that the Respondent effectively withdrew
from the multiemployer group, inasmuch as the
Respondent's letter of April 27 is not an unequivocal
manifestation of an intent to withdraw from the
multiemployer group. In Interstate Construction Com-
pany, supra, this Board adopted an Administrative
Law Judge's finding that a similarly worded letter
afforded the union therein only the required 60-day
21 RetailAssociates, Inc., 120 NLRB 388 (1958).
22 Interstate Construction Company, 229 NLRB 271 (1977).
23 Joseph C. Collins d Co.. Inc., 184 NLRB 940 (1970).
24 U.S. Lingerie Corporation, 170 NLRB 750 (1968).
25 Retail Associates, supra, at 395.
26 Standard Plumbing and Heating Company, Inc., 185 NLRB 444, 448
(1970).
notice that the employer sought to prevent the
automatic renewal of the current bargaining agree-
ment. Any possible "inferential knowledge" that the
employer was also thereby seeking to withdraw from
the multiemployer group was found to be insufficient
to meet the legal standard that such notice be
unequivocal.2 8 Here, as well, the letter sent by the
Respondent did not clearly state the Respondent's
alleged attempt to withdraw from the multiemployer
group, and its receipt shortly before the end of the
60-day notice period shows that the only clear
meaning to be drawn from the letter was that the
Respondent was merely attempting to prevent the
automatic renewal of the current contract. The
record indicates that the first time the Respondent
claimed that it was not in the multiemployer group
was on September 10, during a meeting called by the
Respondent after it learned that the employees were
threatening to call a strike.
The majority states that the Respondent and the
Union engaged in individual bargaining, from which
it may be assumed that they would also conclude
that even had the Respondent given untimely notice
of withdrawal from a multiemployer group the
Union has, in any event, acquiesced in the Respon-
dent's withdrawal from the larger group.2 9 The
record, in my view, does not support a finding that
the parties engaged in individual bargaining or in
any other manner acquiesced in the Respondent's
withdrawal from the multiemployer unit. Subsequent
to the execution of the multiemployer agreement on
July 16, the Union met with the Respondent several
times during the next 3 months. During the meetings
held in July and August, the Union's efforts were
aimed directly at having the Respondent sign the
multiemployer agreement without any modifications.
Efforts made by the Union to clarify or explain the
terms of the new agreement are not tantamount to
bargaining, especially in view of the fact that the
Union specifically refused to modify any term in the
agreement. When the employees learned during the
first week of September that the Respondent persist-
ed in its refusal to sign the agreement, they threat-
ened to strike the Respondent's operations. The
Union's business representative was not confident
that he could avert such a strike and, on September
10, after meeting with the Respondent's employees,
he informed the Respondent, according to the
testimony of one of the Respondent's managers, that
the Union would "consider" modifying one of the
several terms; i.e., the provision regarding starting
27 The Carvel Company and C and D Plumbing and Heating Company, 226
NLRB I 11 (1976); Mor Paskesz, 171 NLRB 116, 118 (1968), enfd. 405 F.2d
1201 (C.A. 2,. 1969).
28 See also B. Brody Seating Co., 167 NLRB 830 (1967).
29 1, C Refrigeration Service. Inc., 200 NLRB 687, 689 (1972).
246
RUAN TRANSPORT CORPORATION
times. The union representative testified that he did
not recall any conversation relating to starting times
at this meeting and that he did not agree to modify
that provision. The Respondent's manager also
testified that on September 20, during a meeting at
the union hall, the Union stated that the parties
could have agreement on the modified starting time.
No testimony was elicited from the union representa-
tive present at this meeting concerning this purported
agreement, despite the fact that he gave detailed
evidence regarding other matters discussed at this
meeting. It was not until after a strike was called on
September 20 that the evidence clearly indicates that
the Union backed off from its position that it would
not permit any modifications to the contract. How-
ever, such concessions directly aimed toward avert-
ing or terminating a strike are an insufficient indica-
tion of the Union's acquiescence in the Respondent's
withdrawal. To hold otherwise would lead to the
anomalous result that this Board would be directly
discouraging efforts to resolve strikes, the paramount
manifestation of labor discord, by requiring unions
which engage in such settlement negotiations to
waive any claim that an employer is still a member of
a multiemployer group. Such a result would mean
that the employer who refuses to execute such a
multiemployer agreement would be able to benefit
from his wrongdoing if he is sufficiently tenacious in
maintaining his position long enough to force even a
minor concession from the union. In any event, it has
long been Board policy to allow employers covered
by a multiemployer bargaining agreement to negoti-
ate individually on certain matters of peculiar con-
cern to them.3 0
For the reasons stated above, I therefore conclude
that the Respondent violated Section 8(a)(5) and (1)
of the Act by refusing to execute the bargaining
agreement negotiated between the Union and the
multiemployer bargaining group.
30 The Kroger Co., supra.
DECISION
STATEMENT OF THE CASE
THOMAS A. RICCI, Administrative Law Judge: A hearing
in this proceeding was held at Minneapolis, Minnesota, on
March 13, 1977, on complaint of the General Counsel
against Ruan Transport Corporation, here called the
Respondent or the Company. The complaint issued on
February 24, 1977, upon a charge filed on October 29,
1976, by District Lodge No. 77, International Association
of Machinists and Aerospace Workers, AFL-CIO, here
called the Union. The issue of the case is whether the
Respondent unlawfully refused to bargain with the Union
in violation of Section 8(a)5) of the National Labor
Relations Act, as amended.
Upon the entire record, and from my observation of the
witnesses, I make the following:
I. THE BUSINESS OF THE RESPONDENT
Ruan Transport Corporation, a State of Ohio corpora-
tion, is engaged in the interstate transportation of bulk and
petroleum products. During the year ending December 31,
1976, a representative period, it derived gross revenues
from the conduct of its business in excess of $50,000 from
interstate transportation of goods and materials. During
the same period it caused to be transported to its place of
business in St. Paul, Minnesota, goods and materials
valued in excess of $50,000 directly from points located
outside the State. During the same period Respondent also
performed services valued in excess of $50,000 for various
enterprises, each of which is engaged in nonretail opera-
tions within the State of Minnesota, and each of which
annually purchases goods from out-of-state sources valued
in excess of $50,000. I find that the Respondent is engaged
in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
I find that District Lodge No. 77, International Associa-
tion of Machinists and Aerospace Workers, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
A. The Question Presented
In 1973, District Lodge No. 77 of the IAM signed a
single collective-bargaining agreement with a group of
employers acting in concert through a negotiating organi-
zation called Midwest Employers Labor Advisory Council,
Inc. It was a 3-year contract and the underlying bargaining
unit was multiemployer in character - i.e., it included the
employees of all the separate companies which had
expressly authorized the Midwest Council to bargain on
their behalf. Ruan Transport, the trucking company Re-
spondent here, was not a participant in any of the activities
connected with the making of the 1973 contract; it was not
a member of the Midwest Council; it did not authorize that
organization to act on its behalf; and it took no part -
either directly or indirectly - in the negotiations that led
to its signing. Ruan did, however, itself sign the agreement
as a separate and individual employer, after its execution
and implementation by the directly contracting parties.
In 1976, the IAM, and a very large number of trucking
companies, negotiated a renewal of the expiring 1973
agreement. Now the scope of the contract coverage was
considerably expanded. The International Union itself
became a party and, besides its Local Lodge No. 77, five
other local lodges also became parties to the contract. The
single, multiemployer bargaining unit underlying the entire
agreement became a nine-state affair. In fact, the Midwest
Council, as authorized spokesman for those trucking
companies which again, as every time in the past, had to
reauthorize it to act on their behalf, assigned its "authoriza-
tion to represent" to the Multi-employer Collective-bar-
gaining Committee, whatever organization that may be.
247
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The expiration date of the 1973 contract was June 30, 1976.
By July 16, the now multiple multiemployer groups, it
would seem, and all the IAM Lodges had reached
agreement upon renewal, the new contract to be effective
July 1, 1976, to June 30, 1979.
After this, Lester Brown, business representative of
Lodge 77, brought the terms of the new contract to the
attention of Ruan Transport. A fair reading of the record
made in this case is that Brown tried to sell the deal to
Ruan but failed. The Respondent objected seriously to
three items, and it held firm to this position even to the day
of this hearing. Lodge 77 insisted on all of it - or almost
all of it, and, on September 20, Ruan's 14 employees who
would have become covered by such a contract struck to
enforce the Union's demand. The strike failed, and was
abandoned the first week in November.
On October 29, Lodge 77 filed the charge here involved.
Now for the first time it took the unequivocal position that
Ruan was always a party bound to the multiemployer
negotiations that had taken place in June and July, that its
14 employees had for 3 years been part and a parcel of a
single bargaining unit underlying the expired 1973 con-
tract, and that therefore the Respondent never had any
choice, as a matter of law, from as far back as July 16, but
to execute the renewal agreement precisely as agreed upon
by the many IAM Lodges and the nine-state employer
groups. The complaint alleges that because it refused to
sign that contract, exactly as executed by the large group of
unions and employers, the Respondent illegally refused to
bargain with Lodge 77 and thereby violated Section 8(aX5)
of the Act.
The defense rests on the assertions that (1) Ruan's
employees were never joined into a single bargaining unit
with employees of other companies under the 1973 con-
tract, (2) Ruan's signing of the 1973 contract brought into
being a separate bargaining unit of only 14 employees
represented by Lodge 77, and (3) this Company never had
anything to do with any multiemployer bargaining, never
authorized any other agency to bargain on its behalf, and
never adopted such past representation retroactively. The
Respondent advances the alternative defense that, even
assuming it had been included in a single multiemployer
unit under the 1973 contract, it gave timely notice of
withdrawal, and for that reason also was privileged to
bargain for itself.
B. The Evidence; Analysis and Conclusion
Every time a new contract is envisaged, the Midwest
Council obtains written authorizations from each and
every company on whose behalf it negotiates. It did this
also in the spring of 1976. All members pay dues for
membership in the Council, contributed monthly and
based upon the number of employees involved for each
company. It is conceded Ruan Transport never signed any
authorization in favor of the Council, or any other
negotiating representative, and never paid any money for
any services to the Council. It is also undisputed that no
representative of Ruan ever participated in the least in the
negotiations that took place leading to either the 1973 or
1976 understanding between the Union and the multiem-
ployer group.
The contention by the General Counsel in support of the
complaints that Ruan nevertheless became an inseparable
component of a multiemployer bargaining arrangement via
its agreement to be bound by the 1976 contract rests
entirely upon a phrase appearing in that agreement. Article
I, section 2, reads as follows:
The employees covered under this Agreement shall
constitute one bargaining unit. Accordingly, the Mid-
west Employers Labor Advisory Council, Inc. and the
Employers who are parties to this Agreement acknowl-
edge that they are part of a multi employer collective-
bargaining unit comprised of the Midwest Employers
Labor Advisory Council, Inc. and those of their
members who have or will certify the Council to
represent them for the purpose of collective bargaining,
and only to the extent of such authorization; and also
such other individual employers who have or may singly
become parties to this agreement [emphasis supplied].
In anticipation of the negotiations that were to follow,
the Union mailed to each separate employer covered by the
expiring agreement a comprehensive proposal for renewal;
these were the complete and very detailed demands for a
new contract. A copy of such demands was received by
Ruan Transport also, on February 26, 1976. On April 27,
Ruan's lawyer, Mr. Robert Coopes, wrote to the Union
advising that the Company intended "to negotiate a
collective-bargaining agreement" according to all applica-
ble laws, that it would submit "proposals" in the near
future, and that it would soon request a date for starting
negotiations. This was of necessity clear notice to the
Union that, regardless of whether Ruan was or was not at
any time part of any multiemployer bargaining unit, its
intent was to go it alone. Pursuing her basic contention that
Ruan was in fact at that moment included in the multiem-
ployer unit, the General Counsel argues it was too late, on
April 27, for the Respondent to withdraw from the group,
because by that time the Union had already served upon
the multiemployer group its demands for contract renewal.
See The Carvel Company, 226 NLRB 111 (1976).
This theory of complaint raises the question whether an
employer may withdraw from an established multiemploy-
er bargaining arrangement by formally notifying the union
of such intent before the automatic renewal date set out in
the expiring contract, but after the union has submitted its
renewal demands. In Carvel the would-be escapee attempt-
ed to withdraw after the union's demands had been
publicized, as was the case here. But unlike the situation at
bar, that withdrawal notice came after the automatic
renewal date of the old contract had passed. If a union may
preclude withdrawal by any member of the multiemployer
group as long as more than 4 months before the expiration
date of a contract, as would be the case were the complaint
to prevail here, may it also accomplish that foreclosure
objective by publishing its demands 5 months before the
end of the contract period? 6 months? 8 months? Maybe
more? Would the Board hold that either party to such a
contract could bind all the others after a one-shot arrange-
ment so long a time before normal renewal practices in
industrial relations?
248
RUAN TRANSPORT CORPORATION
In my considered judgment, I do not think these
questions need be answered here, for the evidence in its
entirety does not prove convincingly that Ruan Transport
was in fact a part of the multiemployer bargaining
agreement under the 1973-76 contract. On its face, the
contract is at best ambiguous on the critical point. The
opening sentence of section 2 in article I does literally say
that "all employees covered . . . shall constitute one
bargaining unit." When Ruan later signed the document,
of course, its employees joined "all" others who were
"covered," and became part of the "one ... unit." If the
clause said nothing more, a certain picture would appear.
But the section continues, and emphasizes that "according-
ly" - i.e., in keeping with the first sentence - the "multi-
employer collective bargaining unit" consists of the present
members of the Midwest Council, including both those
who already "have," and those who "will" - i.e., in the
future and necessarily during the 3-year life of the contract
- "certify said Council to represent them .... " Ruan
never did that and therefore, if section 2 stopped at that
point, it would be clear that Ruan was off the hook in 1976.
The importance of this business of the group members
authorizing the Midwest Council - whenever they chose
to do so - is then reiterated in the next phrase: ". . and
only to the extent of such authorization."
A meaning these two phrases must have, and it has to be
something of pertinence to the purport of section 2 as a
whole, for they appear in the middle of the contract
paragraph. If, as the General Counsel and the IAM would
now read that entire section, any company which signed
the contract during its life automatically became an
ironbound member of the multiemployer group - and
never mind did Ruan ever authorize Midwest Council at all
- why provide for the requirement of anybody "certify-
ing," or "authorizing" any negotiating team? Could it be
that what this was intended to mean was that in renewal
negotiations members of the Council, before being deemed
bound to future group negotiations, would have to autho-
rize Midwest Council expressly and individually? Could
this be why the Council in fact took pains to obtain written
authorizations from such of its members before the group
bargaining which led to the 1976 renewal?
Section 2 then ends with a clause - not a separate
sentence but part of the sentence stressing the importance
of authorizing the Council - "and also such other
individual Employers who have or may singly become
parties to this Agreement." Does this mean employers later
signing the contract have nothing to do with the Council?
Does it mean, more likely because the language is append-
ed to the sentence about council authorization, that such
later separate signers must in the future authorize the
Council? t
This Midwest Council is a group of professional labor
relations consultants; their skills are expensive. Lloyd
Harris, its executive director, said all members who use its
services must pay so much and so much if they wish to be
represented. A reading of the last clause of section 2 could
as well reveal the Council telling anyone else who later
I The questions go on. If, before the Council could bargain for separate
employers, each one of them had to re-authorize it in writing before the 1976
signs the group contract that, if they wish later to enjoy the
benefits of the Council's expertise, they must pay for it.
Whenever the meaning of contract language is not clear,
and conflicting interpretations later give rise to opposing
substantive claims, contract law has long provided that you
look at the conduct of the parties outside the contract itself,
or in implementation of its written terms, for a clearer
understanding of what their intent really was. Williston on
Contracts, 3d ed., § 263, p. 789. Here, the Union's
activities, largely as related by the IAM representative, Mr.
Brown, show quite clearly that the Union never considered
the Respondent a party included in whatever multiemploy-
er bargaining unit underlay the 1973 contract period.
(1) When, on April 27, Coopes, the Ruan lawyer, wrote
the Union that he was preparing to submit contract
proposals on behalf of his clients, no one on the part of the
IAM protested. This, while the Lodges were preparing to
meet with multiple trucking companies in other cities to fix
the terms of employment of Ruan's employees, if Business
Representative Brown's claims at the hearing are to be
believed. Coopes even wrote about "dates for commence-
ment of negotiations." Does a union, sitting across the
table in multiemployer bargaining negotiations, accept,
and not reject, the idea of separate contract proposals, and
separate negotiations, from any single employer who is in
fact an included employer member of the multiemployer
group?
(2) When the Union sent 90-day notices of intent to
negotiate a new contract, and 60-day notice to forestall
automatic renewal of the old one, I suppose it sent such
notices to the Council, the designated bargaining agent of
the multiemployer group. But in this case it also sent
formal written notice, directly to Ruan. This could well
have been no more than an understandable courtesy to
each employer covered by the contract, whether or not
included in a multiemployer bargaining unit. But it could
also be an indication, at least, of knowledge by the Union
that Ruan was an employer apart from the group, and
therefore a contract party that legally had to be so advised.
The basic question here cannot be decided by a single
collateral act, but certainly the fact the Union did this may
well add to the quantum of proof that it well understood
the contract language did not bind Ruan to the activities of
the Midwest Council.
(3) Fairness, as well as logic, demands that the next
reality, also external from the contract, be viewed in two
lights, not only one. The union negotiator, Brown, of
Lodge No. 77, discussed the substantive terms of the final
contract a number of times with officials of the Ruan
Company after agreement had been reached. He also kept
Ruan informed of progress during the bargaining sessions.
He talked to Ralph McCrary, Ruan manager of industrial
relations, at meetings at the union hall on July 21 and
August 18, and on the phone again a few days later. There
is no question Brown was seeking McCrary's acceptance of
the contract. At the start of their talks, the union agent did
not yet have a completed copy to show McCrary and
simply explained it all to him. Now while it is true, as
counsel for the Respondent argues, that, if Ruan were in
negotiations and if, as is a fact, Ruan never did so, who was the bargaining
agent for Ruan at the contract conferences?
249
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fact a part of the multiemployer unit, there would be no
necessity to explain the already agreed-upon contract terms
to him at all, it is still a fact Ruan did have to sign the
contract in its own name. This because Ruan was not a
member of the Midwest Council, which could sign on
behalf of all its members. If Brown did some talking to
make acceptance by McCrary more palatable, one could
say it proves no more than common courtesy or good
public relations.
But Brown did much more than simply bring this one
company up to date on what had been done on its behalf
by the now allegedly authorized group representative.
Again and again he justified the economic gains which the
Union had won from the other employers at the bargaining
table. He disputed McCrary's arguments as to why some of
the new contract provisions were not acceptable economi-
cally. And in the end Brown even offered a compromise
proposal on one of the issues in dispute between him and
Ruan. A very persuasive legal argument could be made
that if this record proved nothing more than the fact that
Brown offered to modify, to Ruan's advantage, a single
substantive clause of the Midwest Council agreement, the
entire theory of this complaint must fail.
At the hearing the General Counsel passingly said that
Brown was not "bargaining" with McCrary at any time.
Unless words have no meaning at all, she was wrong. From
Brown's testimony: "I explained the changes .... We
[Brown and McCrary] went through every change but we
went through every Article .... I went down each item
and these were the noted changes actually from the 1973
agreement, but I did explain each one in detail because it's
only outlined what articles were changed or parts of the
agreement." In the discussion McCrary refused to agree to
three items of economic substance. Again by Brown: "He
said that he would relay the information and wait until I
sent out the agreements to look them over." At another
such meeting a month later: "I recall we looked over the
contract and further explained some of the articles that we
had inserted because the meeting prior to this, we did not
have the supplement, I don't believe, or completed in its
entire language, and that I recall I pointed out how we had
written the language concerning new articles in there ....
I recall I explained to him why the need for supplemental
agreement, and I believe I told him that in a prior
meeting." On the phone a few days later, after Brown again
explained the intendment of the now disputed clauses: "He
told me he would have to clear it with his supervisors and
he would let me know later."
Up to this point at least, with three extended discussions
with McCrary, Brown never once told Ruan it would have
to sign the contract as already negotiated because as a
matter of law the Respondent was already legally bound.
Had he thought the 1973 contract made Ruan an insepara-
ble part of the "employer," he would hardly have stood by
while the industrial relations manager talked of bringing
the union demands to his superiors for consideration. This
is rather the format of true collective bargaining. In fact,
2 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
instead of asserting the claim now made that Ruan had no
choice because of the multiemployer settlement, Brown
told the Company the Union could not yield because
Ruan's employees had been polled and had already agreed
to the terms!
It was not until Brown spoke to Ruan's lawyer, Coopes,
sometime after September 1, that he first mentioned the
fact the Respondent had served no notice it wished "to
withdraw from the multi employer arrangement . . . . I
said at this point, you are too late."
But the bargaining continued thereafter nevertheless.
After the employees threatened to strike, Brown again met
with McCrary and tried to sell him the whole package, still
without success. On September 22, 2 days after the strike
started, the parties met with a Federal mediator; now
Brown offered to compromise one of the three matters in
dispute. He offered to limit the right of transfer to new
locations to present employees only, whereas the agree-
ment reached granted such transfer rights to all employees,
including whoever might be hired later. The Respondent
refused to buy that also. Brown made the offer twice and
again he told the Respondent that the concession would in
any event first have to be accepted by its employees in a
vote. Here he was again shifting from the asserting binding
effect of the joint bargaining and making negotiations with
Ruan a single employer form of bargaining.
(4) In the middle of all this, on August 12, while at least
apparent bargaining was going on, and before any claim of
finality of negotiations is raised, the Union sends a copy of
the Midwest Council agreement to the Respondent, and
the accompanying letter says that by that contract "we
propose to cover our employees employed by your firm."
This is precisely the language that is used when a stranger
to multiemployer bargaining is invited to join the crowd by
separately and individually agreeing to hire, and do
business, by the standards found acceptable by the indus-
try generally in the same area. This is what Ruan had
agreed to do in the past, and I must find this is what it was
being asked to do again in 1976.
The salutary benefits flowing from common area prac-
tices in any industry, as seemingly conceded by the parties,
cannot be gainsaid. Indeed, there is indication in the
candor of the testimony of both Mr. Brown and Mr.
McCrary that they were aware of the possible advantages,
and strived as best they could to achieve a common ground
in order to establish like conditions of employment all over
the nine-state area. But no amount of goodwill on the part
of any of them could serve to change the law that must be
applied to the facts of this case.
Upon the basis of the foregoing findings and conclu-
sions, I hereby issue the following recommended:
ORDER 2
It is hereby recommended that the complaint be, and it
hereby is, dismissed in its entirety.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
250