Sav-Mor Foods

National Labor Relations Board - Board Decisions

Oct 21, 1970

186 N.L.R.B. 39 (N.L.R.B. 1970)

SAV-MOR FOODS 39
Eberle Builders, Inc. d/b/a Sav-Mor Foods and Retail
Clerks Local 1439, affiliated with Retail Clerks
International Association . Case 19-CA-4501
record, and after due consideration of the briefs filed by the
Respondent and Charging Party, there is hereby made the
following:
October 21, 1970
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On June 3, 1970, Trial Examiner Henry S. Salim
issued his Decision in the above-entitled proceeding,
finding that the Respondent had not engaged in
certain unfair labor practices alleged in the complaint,
as set forth in the attached Trial Examiner's Decision.
Thereafter, the Charging Party filed timely exceptions
to the Trial Examiner's Decision and a supporting
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
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 brief, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations 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 Recommend-
ed Order of the Trial Examiner and hereby orders that
the complaint be, and it hereby is, dismissed in its
entirety.
1 We find it unnecessary to the Decision herein to hold that the law
placed an affirmative duty on the Union to make inquiry of Respondent
regarding doubts the Union might have had with respect to Respondent's
March 31 letter.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HENRY S. SAHM, Trial Examiner: This case heard at
Spokane, Washington, on February 24, 1970, pursuant to a
charge, filed the preceding September 15, and a complaint I
issued December 11, 1969, presents one question, namely:
whether the Respondent effectively withdrew from a
multiemployer collective-bargaining unit. Upon the entire
I Para . 5 of the complaint which reads "Associated Industries of
Spokane" was amended to read "Associated Industries of the Inland
Empire."
2 The reporter mistakenly captioned the parties' joint exhibits as "Joint
FINDINGS OF FACT2
I. THE BUSINESS OF THE RESPONDENT AND THE
LABOR ORGANIZATION INVOLVED
Respondent, herein called also Sav-More Food Stores,
Inc., and Sav-More Foods, a Washington corporation, is
engaged at Spokane, Washington, in the retail sale of
groceries, meat products, and miscellaneous articles. At its
food market at 1019 East Francis Street, the said grocery
store annually sells groceries, meats, and sundries valued in
excess of $500,000, of which items valued in excess of
$50,000 were purchased and received directly from
suppliers who, in turn, had received said goods from
outside the State. It is found Respondent is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
The Charging Party, Retail Clerks Local 1439, affiliated
with Retail Clerks International Association, herein called
the Union, is a labor organization within the meaning of
Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Undisputed Facts
The Sav-More Food Stores, Inc., incorporated. in the
State of Washington on April 22, 1959, was a member of
the Associated Industries of the Inland Empire, herein
called the Association, for the purpose of collective
bargaining prior to and during 1964. In 1964, the
Association and Retail Clerks Local 1439, hereinafter
referred to as the Union, executed a 5-year collective-
bargaining agreement. Sav-More Food Stores, Inc., ran into
financial difficulties and executed on March 6, 1967, by
its majority and principal shareholder, Anton Eberle, an
assignment to the Spokane Merchants Association for the
benefit of its creditors, transferring all its assets including
$22,000 in cash. At the time of this assignment, Sav-More
Food Stores, Inc., which at one time operated six grocery
stores, was operating only one store located at 1019 East
Francis Street in Spokane.
After this creditors' assignment, the East Francis Street
store, the remaining store of Respondent, was operated by
the Spokane Merchants Association, and it advised
creditors of Sav-More Food Stores, Inc., of the status of the
assignment for the benefit of creditors. Spokane Merchants
Association operated the store for approximately a week
from March 6, to March 14, 1967, and the store then
closed on March 15.
On March 23, 1967, Eberle Builders, Inc.,3 "primarily
owned by Anton Eberle" purchased for $65,000 the
inventory and fixtures of the East Francis Street store from
Spokane Merchants Association, whereupon Sav-More
Food Stores, Inc., went out of existence. On March 23,
Board's." It is hereby corrected to read "Joint Exhibits."
3 Anton Eberle and his wife are incorporators and owners of both
Eberle Builders, Inc., which was incorporated in 1956, and Sav-More Food
Stores, Inc., established in 1959.
186 NLRB No. 8
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1967, Eberle Builders, Inc., d/b/a Sav-More Foods, entered
into a lease agreement whereby the store was rented by
Anton and Marianna Eberle, husband and wife. On the
same day, Eberle Builders, Inc., and Anton Eberle and his
wife, Marianna, executed a chattel mortgage and real estate
mortgage with Spokane Merchants Association as the
mortgagee.4 The following day, March 24, the store was
reopened for business by Eberle Builders, Inc., doing
business under the firm name of Sav-More Foods.5
On March 13, 1969, the Union served notice on the
Association, and on "[Anton] Eberle or Marilyn Peterson"
stating that "This letter will serve as a sixty (60) day notice
that we desire to open our agreement for modification and
additions to the present agreement that expires June 1,
1969."6 By certified letter dated March 31, 1969, Joseph P.
Delay, "Attorney for Tony Eberle et ux," notified the
Union as follows:
This letter is 60 day notice that Tony Eberle or
Marilyn Peterson does hereby terminate and cancel the
present agreements that expire June 1, 1969, effective
June 1, 1969.
By letter dated March 31, 1969, the Association sent to 10
named employers, a copy of the Union's new contract
proposals and notice to attend a negotiating meeting on
April 9. The Respondent's name does not appear among
the named addressees. Meetings were thereafter held and
on May 13, 1969, the Association sent a letter to eight
named employers, but Respondent's name does not appear
among those listed, enclosing "a summary of the status of
negotiations to date" and a notice when the next
negotiating meeting would be held. On August 18, 1969, the
Union and Association executed a collective-bargaining
agreement captioned "Spokane Food Agreement" effective
from June 1, 1969, to June 1, 1972.
Shortly after the Union delivered a copy of the 1969-1972
"Spokane Food Agreement" to Respondent, it began
picketing the Sav-More Foods store at 1019 East Francis
Street on September 8, 1969, and picketing was continuing
on February 24, 1970, the date of this hearing.
B. The Testimony
Dannie O'Brien, secretary-treasurer of the Union for 8
years, was the General Counsel's sole witness. He testified
that at no time from 1967 to 1969, inclusive, did he or the
Union ever receive a notice of withdrawal from Anton
Eberle, Marilyn Peterson, Sav-More Foods, Inc., Eberle
Builders, Inc., Sav-More Food Stores, Associated Indus-
tries of the Inland Empire, or anyone else that the
Association no longer represented Eberle or any of his
corporate entities for the purpose of collective bargaining
with the Union.
On cross-examination, O'Brien was referred to a letter
dated March 31, 1969, which he admitted receiving from
4 Spokane Merchants Association changed its name to National
Association of Credit Management Its former name is used in this
Decision as that is what it is referred to in the transcript
5 Counsel for the Union proposed a stipulation that when Sav-More
Foods opened for business on March 24, 1967, that it employed "basically
the same employees who were employed" by Sav-More Food Stores, Inc,
but the parties were unable to agree However , Marilyn Peterson , manager,
and a part owner of the store, testified that when the store reopened, they
employed the same people who worked in the bankrupt store This
Joseph P. Delay, Eberle's lawyer, notifying the Union that
Eberle was terminating, as of June 1, 1969, his authority for
the Association to represent him in the impending new
contract negotiations with the Union which were scheduled
to begin shortly.7 O'Brien acknowledged he did not contact
Eberle or his attorney after receiving the said notice. When
he was asked: "Didn't you wonder what the attorney meant
when he sent that letter?", his answer was "No, I did not."
Respondent's counsel then asked him again, "Why didn't
you wonder about it?" and O'Brien ambiguously replied:
First of all, they had been, and still are, as far as I am
concerned, they had been affiliated and a member of
the Association, regardless of whether they are dues
paying members or not, they are represented by the
Association. Some of the exhibits will prove this fact so
it was not necessary for us to be concerned about the
letter.
Counsel persisted and asked O'Brien if he did not think he
should have advised Respondent that he had received this
notice of withdrawal and his equivocal answer was "Not
necessarily." Then he was asked if he didn't feel that he had
to do anything and his evasive answer again was "Not
necessarily."
Respondent's counsel made reference to a union letter,
dated March 13, 1969, addressed to the Association's then
manager, Charles R. Lyon, which listed the names of nine
employers, but did not include Respondent, which letter
stated the Union was giving 60-day notice of intention to
reopen the contract due to expire on June 1, 1969.8 The
letter, which was signed by O'Brien, also stated that the
Union "ha[d ] requested a new list of the employers that the
association may now represent or no longer represent
without answer. However, let it be know [sic] by this letter
that this is a sixty (60) day opener that this is to include all
employers of the food agreement that is now signatory to
the present agreement." O'Brien was then asked why in
listing the names of the employers in his letter (Joint Exh.
12), he failed to include Respondent and his answer reads
as follows:
I think you will find on that particular opener going to
the Association, that I included several members of the
Association that they did the negotiating for, however,
you will also find that I sent out particular individual
notices to those that were affiliated and those who were
not affiliated with the Association.
Such a letter dated March 13, was sent by the Union to
"Mr. Tony Eberle or Marilyn Peterson." Eberle then turned
over this letter on March 19, to his attorney, Joseph P.
Delay, who, in turn, notified O'Brien by letter dated March
31, that Respondent was no longer represented by the
Association 9
Dannie O'Brien, the union official, was asked, if during
the 1969 negotiations with Michael J. O'Brien, manager of
testimony stands uncontradicted See infra
6 The agreement executed on June 1, 1964, was to expire on June 1,
1969, supra
r A copy of this letter was also sent to the Association. See above
8 Joint Exh 12 This letter also states , inter alia, "We understand the
Associated Industries now or did represent the following firms " and then
listing the names of the above-referred to nine Spokane area grocery store
owners
9 See Joint Exh 17 above
SAV-MOR FOODS
the multiemployers' bargaining association, they had
discussed Respondent' s "status . " 10 Dannie O'Brien's
answer reads as follows:
Oh, I don't actually recall what was mentioned, but
there had been some comment in regard to the letter
that I received from the attorney.... on April 2nd.
Union official O'Brien went on to testify that upon receipt
of Respondent's notice of withdrawal from the Association
that he failed to contact either Eberle or his attorney.
When O'Brien was asked when he first learned that
"Respondent withdrew from the Association," his answer
was: "Actually I was not aware of it until after we had
completed negotiations ." It was stipulated that the Union
and Association executed the agreement on August 18,
1969.
O'Brien admitted that he was aware Respondent was
experiencing "financial difficulties" testifying that when the
1964 contract was signed that Respondent owned five
stores but that he later "disposed" of four stores. He denied,
however, knowing that Respondent had made an assign-
ment of all his assets for the benefit of his creditors in
March 1967. When it was pointed out to O'Brien by counsel
that he was a trustee and secretary of the Retail Clerks
Health and Welfare Trust Fund, O'Brien was forced to
admit, after a considerable amount of circumlocution, that
he knew the trustees of the above-mentioned fund filed a
claim against Respondent for debts owed to the Retail
Clerks Joint Labor-Management Trust.1'
Michael J. O'Brien,'imanager of Associated Industries of
the Inland Empire, since April 1, 1969, was the industry
spokesman for the employer members of the Association, in
the negotiations with the Union which began on April 9
and culminated in an agreement being executed on August
18, 1969. 12 O'Brien, the Association's manager, testified as
follows: The letter dated March 31, which the Union sent to
the employers listed in the letter, requested them to attend a
negotiating meeting on April 9, and testified O'Brien they
"were the members of Associated Industries, to my
knowledge, as of that date of March 31, the members that
we were representing in collective bargaining.. . . I did not
consider [Eberle] as being represented in the negotiations,"
which commenced on April 9.13 When O'Brien, the
Association' s manager, was asked if the Union inquired
during the course of contract negotiations whether the
Association was representing Respondent, he replied as
follows:
My best recollection is that it was approximately the 5th
of July. . . . I would say roughly the 1st of July of '69.
Dannie O'Brien , the secretary of Retail Clerks,
contacted me. My recollection is it was after one of our
negotiating meetings . . . . He said something to the
effect, "Where does Eberle fit into this, are you
representing Eberle?" My reply was that I didn't know.
I said I would check and I called Mr. Eberle. . . . I
called Mr. Eberle at his store and asked him if
Associated Industries was representing him in the
negotiations and he said no, very flatly he said no, that
he did not wish to be represented in the negotiations.
41
... I called Dannie O'Brien prior to July 18 I believe
about July 1, and I said that I did check with Mr. Eberle
and he said that Associated Industries did not represent
him in these negotiations. I contacted Mr. O'Brien by
telephone and said I had talked to Mr. Eberle and that
Mr. Eberle said that Associated Industries was not to
represent him or Sav-More during these negotiations.
Well, Dannie said then that he would contact Mr.
Eberle after the negotiations were over and he would
sign a contract or have pickets. I remember the pickets
because I think there was some discussion about the
fact that the pickets would hurt Mr. Eberle in the
particular location where his store was. . . . I believe I
related this to Mr. Eberle, that he was faced with this
when the negotiations were completed.
The witness continued that he has had occasion to check
on the membership status of Respondent, Eberle or his
Company, since his conversation with O' Brien, the Union's
negotiator, and he determined from the records of the
Association that "Mr. Eberle rejoined our Association, I
believe, on March 5th. . . . but I think it was March 5th
that he sent the application back to reenter the Association,
March 5, 1969." Respondent's Exhibit No. 2 shows that
Sav-More Foods by Anton Eberle filed an application for
membership in the Associated Industries of the Inland
Empire, dated March 5, 1969, with the "effective date of
membership April 1, 1969." When O'Brien was asked if
Respondent has been a member of the Association since
April 1, 1969, his answer reads as follows:
I would say they were, Your Honor, until approximate-
ly August or September when they terminated the
membership. They sent back the billing and said to
cancel their membership, that they . . . In fact, I don't
know that it [a letter of termination] exists. It was the
bill we sent out and there had been a notation on it to
please cancel their membership and that was all. Our
secretary might have thrown it away even.. . . I believe
it was signed by Tony Eberle, but I couldn't say that for
sure.
He stated at one point in his testimony, the approximate
date that he received the withdrawal notice from Eberle was
"either August or September 1969."
TRIAL EXAMINER: Can you recall whether it was
before the execution date of the new contract of August
18, 1969, was it before or after that?
THE WITNESS: I would say it was after that, Your
Honor, because it was after the picketing had com-
menced. I would say it was after the execution of the
new contract.
When the witness was informed that it was stipulated
picketing began on September 8, his reply was: "On that
basis I think it came in September 8th."
O'Brien testified that he examined the Association's
membership records and other records as to the payment of
membership dues by its members and that he looked also
into the membership status of Sav-More Food Stores, Inc.,
in 1967. He had with him at the hearing the ledger sheets
which he referred to as the "dues register," for the period
10 The negotiations which began on April 9, 1969, eventuated in a
collective-bargaining agreement being executed on August 18, 1969.
11 It appears that the Retail Clerks Joint Labor-Management Trust and
the Retail Clerks Health and Welfare Trust Fund are one and the same.
12 Not to be confused with Dannie O'Brien, the union official.
13 See Joint Exh. 12 and supra.
42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from January 1967 to May 1967, inclusive, which shows for
Sav-More Foods, Inc., that "as of the end of the year of
1966 there was a balance due of $60 and it shows the
monthly dues were $20 per month at that time. It indicates
that the dues for the last 3 months of 1966 had not been
paid. It shows in January an entry of $20 dues which were
payable. It shows that they were not paid through January.
It shows in February that the dues were reduced to $5 per
month and that was billed to Mr. Eberle and was paid on
the 24th of February, leaving a balance still of $80. Then
there was another billing in March of $5 making a balance
of $85. Then in April there is a notation of out-of-business
and a line drawn and the ledger stops there as far as Mr.
Eberle is concerned, Sav-More stores is concerned." When
O'Brien was asked the approximate date when the "out-of-
business" notation was placed in the dues register, opposite
Respondent's name , he testified, "it was in the period
covered by the month of April [1967] when dues would
have been registered." When he was asked what is the
policy of the Associated Industries in regard to its
members' dues delinquencies he answered:
[The bylaw as to nonpayment of dues] is that it is
discretionary with the manager and/or the board of
directors as to whether a member may be dropped [for
dues delinquency].
O'Brien concluded his testimony by stating that there was
approximately $85 owed by Eberle "at the time the books
were closed on him," and that he did not consider him a
member of the Association after April 1967.
On cross-examination, Michael O' Brien testified that he
telephoned Eberle in July at which time Eberle advised him
that the Association was not to bargain for him. However,
continues O'Brien's testimony, he first learned that Eberle
withdrew from the Association when he received a copy of
a letter dated March 31, 1969, which Eberle's attorney
wrote to Dannie O'Brien, secretary-treasurer of the
Union.14
It was elicited by counsel for the Union that the witness
has never seen a writing expelling any member of the
Association. However, O'Brien, who assumed the manager-
ship of the Association on April 1, 1969, stated:
I believe there have been letters to members to say that
we are terminating their membership because of
nonpayment of dues, but there is no form as such. It
would be a letter from the manager to the member.
He states, however, that he has never seen such a letter
directed to Sav-More Food Stores, Inc., or Eberle Builders,
or to Eberle himself.
Marilyn Peterson, manager of the East Francis Street
store, has been employed by Respondent since 1959.15 Her
testimony that when the store reopened on March 24, 1967,
after Respondent had suffered financial difficulties, all the
personnel hired "were former employees of ours," stands
uncontradicted in the record.16 Peterson testified that after
the execution of the collective-bargaining agreement on
14 See Joint Exh 17
15 Anton Eberle testified that Peterson invested money in the store
which enabled him to reopen in March 1967
16 See fn 5 , above
17 Lyon was employed by the Association at least until March 21, 1969,
because on that date he wrote a letter to the Union See Joint Exh 16
Lyon acknowledged this in his testimony when he stated that he reported
August 18 , 1969 (Joint Exh. 21 ), Irene Kremer , business
representative of the Union , came to the store , handed her
the newly executed contract and said : "Marilyn, I know
you are not too interested in this, but I have to bung it to
you. Will you see that Tony [Eberle] gets it to look over?
She said, `Just between you and I , Dannie [O'Brien] has
talked to the Teamsters Union and he is out to get you.' "
Charles R. Lyon, was manager of the employers'
association for 7 years until "the middle of March" 1969.17
Among his various duties were handling the labor relations
of the Association , including contract negotiations with the
Union. During the course of his testimony , reference was
made to Joint Exhibit 16, which is a letter dated March 21,
1969, from Lyon to O'Brien , the Union's secretary-
treasurer, in reply to the Union 's request for a list of those
employers represented by the Association . Lyon in listing
the employers represented by the Association included
"Savemore Foods." 18 When Lyon was asked at the hearing,
why he included Respondent "Savemore Foods" in his
letter to the Union but the Union 's letter did not list said
Respondent , he replied : " I do not have the answer to that
because it is a part of memory and my memory, frankly, is
not that conclusive on the matter."
Lyon testified that Eberle called him on "several
occasions" during the month of March 1969 , and "we
talked about various problems which he had in the
operation of his store ." His testimony reads as follows.
Q Was Sav-More a member of your association at
any time , to your knowledge?
A. They were long-time members of Associated
Industries and were members at the time the 1964-1969
agreement was negotiated . They remained members
until certain reverses caused them to resign . The date of
that resignation , I do not have.
Q. You don' t know for a fact whether there was any
written resignation as such , do you?
A. No, I do not.
Q. Now, when you prepared the letter which is
Joint Exhibit 16, were you aware of any membership
application from Mr. Eberle or Sav-More Foods for
membership in the association?
A. I cannot answer that specifically because I do
not remember whether there was an application
specifically at that time.
Q. I would like to show you Respondent's Exhibit
2. When you wrote the letter which is Joint Exhibit 16,
were you aware of Respondent's Exhibit 2?
A. I cannot say that I was or was not.19
Anton Eberle, was and is president of Sav-More Food
Stores, Inc., and Eberle Builders, Inc., doing business as
Sav-More Foods Sav-More Foods, Inc., operated six
grocery stores in November 1959. At that time Eberle had
collective-bargaining agreements with both the Union in
to a new job on April I, after resigning as manager of the Association
Michael O'Brien succeeded Lyon on April I
1s See Joint Exh 12, the Union's letter which does not list Sav-More
Foods
19 Resp. Exh 2 is Eberle's application for membership, dated March 5,
1969, in the Association, "effective" April 1, 1969
SAV-MOR FOODS 43
this proceeding and the Teamsters. In 1966, one of his
stores was destroyed by fire, a month later he closed two
more stores and a fourth store was vacated due to a failure
to pay the rent so that only one store remained open in
December 1966. In March 1967, due to his inability to pay
his debts, some of his creditors brought involuntary
bankruptcy proceedings against Eberle. In March 1967,
Eberle assigned all his assets to the Spokane Merchants
Association and an agreement was reached with his
creditors whereby he paid $3,000 each month to the
Spokane Merchants Association for the benefit of his
creditors.
Eberle testified that in March 1967, Eberle Builders, Inc.,
purchased the store and its equipment, which he now
operates, from the Spokane Merchants Association for
$65,000 to be repaid over a period of years.
Eberle's testimony continues as follows: He was not a
member of the Association in March 1967, due to his
financial situation being so grave that he was unable to pay
his monthly association dues and fell into arrears. He did
not recommence paying his dues until March 1969, when he
made application on March 5, to again join the Association,
effective as of April 1.20 His testimony continues that he
filed his application with Otto Warn, Secretary of the
Association, at which time he told Warn:
... I was only interested in the insurance program. I
did not want to authorize him for collective bargaining.
Eberle stated he received the Union's letter dated March
13, 1969, notifying him of its intention to begin negotiations
for a new contract which he turned over to his attorney, J.
P. Delay, at which time he instructed Delay "to get about a
60-day termination of contract." After Attorney Delay sent
Eberle a copy of the letter which Delay sent to the Union
(Joint Exh. 17), Eberle never heard anything further from
the Union. Nor was he advised, testified Eberle, that the
Association was engaged in negotiating a contract with the
Union.
The last witness who testified was Dannie O'Brien,
secretary-treasurer of the Charging Union, who was called
on rebuttal. O'Brien admitted that he had received the letter
dated March 31, 1969, from Eberle's attorney which
notified him that Respondent "does hereby terminate and
cancel the present agreements that expire June 1, 1969,
effective June 1, 1969," and that he had a conversation with
Michael J. O'Brien, manager of the Association, -regarding
this letter which the Union received on April 2nd.21
C. Credibility
Union official Dannie O'Brien's testimony is not credited
that he did not learn until after the contract was executed
on August 18, that he first knew Respondent had
withdrawn from the Association. O'Brien knew Respon-
dent was having serious financial reverses. He incredibly
testified that he had no knowledge of Eberle having made
an assignment for creditors, then contradicted himself by
admitting he knew the Union had filed a claim against
20 See Resp. Exh. 2.
21 Joint Exh. 17.
22 See , supra and infra.
Eberle for payments due to the Retail Clerks Health and
Welfare Fund of which O'Brien was trustee and secretary.22
Moreover, O'Brien never claimed when he testified that
Eberle 's lawyer's letter was ambiguous . The evidence is to
the contrary as evidenced by the Association 's manager
notifying him on July 5, 1969, that Eberle was not
represented by the Association in the negotiations which
were then in progress.
D. Contentions
There is no question of successorship involved here as
Respondent admits it is the successor of Sav-More Food
Stores, Inc. The only issue to be resolved, therefore, is
whether Respondent effectively withdrew from the mul-
tiemployer bargaining unit?
The Charging Union's counsel contends that the only
notice of any kind received by the Union from the
Respondent was the letter of Respondent's attorney dated
March 31, 1969. (Joint Exh. 17.) However, argues the
Union, that letter on its face makes no mention of any
withdrawal from the multiemployer bargaining unit. The
letter, continues the union counsel in his brief, fails to
notify the Union that Respondent is not a member of the
Association. ". . the only communication," reads the
brief, "is totally deficient on its face to constitute notice of
withdrawal from a multiemployer bargaining unit."
For the reasons hereinafter stated, it is found Respondent
effectively and timely notified both the Union and
Association of its withdrawal from the multiemployer
bargaining unit represented by the Association.23 After the
Respondent received an individual reopening letter dated
March 13, 1969, from the Union, Respondent's attorney
sent a certified letter on March 31, to the Union, notifying
it that Eberle and Peterson "terminate and cancel the
present agreements that expire June 1, 1969, effective June
1, 1969.11 This letter was received by the Union on April 2,
sixty days prior to June 1, 1969, as required by the
provisions of the expiring collective-bargaining agreement.
Then too, the letter of withdrawal dated March 31, 1969,
(Joint Exh. 17) notified the Union prior to the time when
negotiations commenced on April 9, 1969, that it was no
longer represented by the Association. Assuming, as the
Union argues, the language in the March 31 letter, leaves
much to be desired, which is contrary to the finding made
herein, nevertheless, under the circumstances of this case, it
is clear that the Union, as evidenced by its subsequent
conduct, knew that Respondent was notifying it of its
withdrawal from the bargaining unit. In fact, when O'Brien,
the union official, was asked if he "wonder[ed] what the
attorney meant when he sent that letter?", his unequivocal
answer was: "No, I did not."
Cogent evidence corroborating this conclusion is the
Union's unaccountably slumberous silence and culpable
inaction in the context of the March 31st letter which is
tantamount not only to a tacit, if not explicit admission,
that the Union was in legal intendment, implicitly acceding
and assenting to the Respondent's withdrawal notification
23 As there is no question of successorship, the designation
"Respondent" includes Sav-More Food Stores, Inc., and Eberle Builders,
Inc., doing business as Sav-More Foods.
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of March 31, which was received by the Union on April
2nd.24 Furthermore, it would appear that, under such
circumstances, the law placed an affirmative duty on the
Union to make inquiry of Respondent if there was any
doubt on the Union's part with respect to Respondent's
March 31 letter. There was no such uncertainty as
evidenced by O'Brien's conduct. Equally probative of the
above finding is the Union's knowledge that the Respon-
dent was experiencing serious financial difficulties as
shown by its filing a claim against Respondent when it was
delinquent in its payments to the employees' health and
welfare fund. The Union also knew that Respondent's six
stores had been reduced through financial difficulties to
one and that a new entity was operating the one surviving
store, as manifested by its March 13th notification
addressed to "Mr. Tony Eberle or Marilyn Peterson." 25
Moreover, it is not without significance that the Union's
letter of March 13, 1969 (Joint Exh. 12), which omitted
Respondent's name, appears to indicate that it knew
Respondent was no longer represented by the Association.
Also corroborative of this finding is the fact that on May
13, 1969, the Union mailed a letter addressed to named
employers but Respondent's name is not included among
the employers listed, enclosing "a summary of the status of
negotiations to date" and a notice when the next
negotiating session would be held.26
It is not too unreasonable an inference that the
Association's notation "out of business," opposite Respon-
dent's name in its dues register, plus Michael O'Brien's
answer in reply to a question by Union's counsel, that
Association members are terminated for dues delinquency,
justifies the finding that Respondent was not an association
member at that time. The realities of business life would
seem to lend credence to this inference. Additional
corroboration for this conclusion is the uncontroverted
evidence that Respondent, during all times relevant herein,
attended no meetings, was sent no contract proposals and
the record fails to disclose that Eberle was even aware that
negotiations were in progress. Moreover, the testimony of
Michael O'Brien, manager of the Association, and the
employers' chief negotiator, that. he did not consider
Respondent as being represented in the negotiations is
dispositive of the issue as to whether Respondent effectively
withdrew from the multiemployer bargaining unit, in the
context of O'Brien's testimony that he told Union Official
24 See above, where union official Dann admitted that Michael
O'Brien , the Association' s manager , and he had discussed
Respondent's lawyer's letter to him
25 Joint Exh 13
26 See above
27 In July, O'Brien, the Union's official, asked O'Brien, the
Association's manager, "Where does Eberle fit into this, are you
representing Eberle1" When Michael O'Brien asked Eberle, the latter
O'Brien in July that "Eberle said that Associate Industries
was not to represent him or Sav-More during
these negotiations." See supra. Equally revealing
is Lyon's testimony, O'Brien's predecessor, that Respon-
dent "resigned" from the Association. See above. In
fact, it was not until three weeks after the contract was
executed that the Union, in a pro forma gesture, delivered
the contract to Respondent and immediately thereafter
commenced picketing its store. It would seem, under such
circumstances, that the description `pro forma" is not only
reasonable but warranted in view of the fact that picketing
commenced on September 8, and a charge was filed with
the Regional Office on September 15.
Accordingly, it has not been shown by a preponderance
of the evidence, as well as the Union's silence and inaction
after receiving the March 31, withdrawal letter, that
Respondent ever authorized the Association to execute the
August 18, 1969, multi-employer collective-bargaining
agreement on its behalf.27 The evidence, on the contrary,
indicates Respondent effectively withdrew from the
bargaining unit on or about April 2, 1969, and at no time
thereafter did it authorize the Association to bargain on its
behalf. It is concluded, therefore, upon the basis of the
entire record, and the applicable law, that the General
Counsel has failed to sustain the burden of proving by the
necessary preponderance of all the credible evidence that
the Respondent was a member of the Association and one
of the employers encompassed within the collective-
bargaining unit at any time material to this proceeding. It
follows, therefore, that the Respondent is not bound by the
1969-1972 Spokane Food Agreement as Respondent
effectively withdrew from the Association before negotia-
tions began on April 9, 1969. Nor is the Trial Examiner
persuaded that the evidence is sufficiently substantial to
support a finding that the Respondent's conduct constitut-
ed a refusal to bargain within the meaning of Section
8(a)(5) of the Act in the light of its effective withdrawal
from the Association.
In view of the foregoing conclusions, and upon the entire
record, it is found that the evidence is insufficient to
substantiate or warrant a finding that the Respondent
committed unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act, and it will, therefore, be
recommended that the complaint be dismissed in its
entirety.28
notified him that he did not wish to be represented by the Association It
was then that Union Official O'Brien was informed of Eberle's answer The
union official's response, according to Michael O'Brien, was "he would
contact Mr Eberle after the negotiations were over and he would sign a
contract or have pickets "
21 The conventional "Conclusions of Law" which are customarily
repeated at this point are omitted as they will be found in the body of this
Decision