Sheridan Creations, Inc.

National Labor Relations Board - Board Decisions

Oct 1, 1964

148 N.L.R.B. 1503 (N.L.R.B. 1964)

SHERIDAN CREATIONS, INC. 1503
Sheridan . Creations, Inc. and District 65, Retail , Wholesale &
Department Store Union , AFL-CIO and Knitwear Employers
Association , Inc., Party to the Contract . Case No. 2-CA-9344.
October 1, 1964
DECISION AND ORDER
On March 26, 1964, Trial Examiner Thomas S. Wilson issued his
Decision in the above-entitled proceeding, finding that the Respondent
had not engaged in the unfair labor practices alleged in the com-
plaint and recommending that- the complaint be dismissed in its
entirety as set forth in the attached Trial Examiner's Decision.'
Thereafter, the General Counsel and the Respondent filed exceptions
and briefs in -support thereof. The Respondent also filed a reply
brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Fanning and
Brown]. •
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in the case. We find merit in the General Counsel's exceptions and
accordingly adopt the findings, conclusions, and recommendations of
the Trial Examiner only to the extent consistent with this Decision
and Order.
1. The complaint alleges that 'on or about April 30, 1963, the
Knitwear Employers Association, Inc., hereinafter called the Asso-
ciation, agreed upon a collective-bargaining agreement -for and on
behalf of its employer-members, including -Respondent, and that
Respondent refused, and, has continued to 'refuse, to recognize the
Union as the exclusive collective-bargaining representative of Re-
spondent's employees in a unit of warehouse, office, and clerical
employees and showroom clerks at Respondent's place of business,
and refused, and has continued to refuse, to comply with the terms of
the aforesaid agreement.
The Association was incorporated in November 1957 for the pur-
pose, among others, of bargaining collectively on behalf of its
employer-members. It is comprised principally of employers who
I Prior to the issuance of the Trial Examiner 's Decision , the Trial Examiner , on Octo-
ber 1, 1963, after receipt of the General Counsel' s evidence and on motion of the Respond-
ent, dismissed the complaint herein on the ground that the General Counsel had failed to
make out a prima facie case . On appeal by the General Counsel, the Board, by order
dated December 12, 1963, reversed the Trial Examiner ' s ruling and remanded the case to
the Trial Examiner for further hearing
148 NLRB No. 148.
1504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have previously bargained with the Union on a single-employer
basis. On February 1, 1958, the Association entered into a collective-
bargaining agreement with the Union; 2 it has since continuously
bargained with the Union on behalf of its members.
On July 28, 1959, after the Union had organized Respondent's
employees, the Respondent entered into an agreement with the Union.
The Respondent subscribed to the then existing collective-bargaining
agreement between the Union and the Association and agreed that
upon the expiration of the then current agreement of the Association
it would bargain as part of the Association .3
On February 25, 1963, the Union notified the Association , and each
of its employer-members, including Respondent, that it desired to
make certain changes in the collective-bargaining agreement. The
Association and the Union met on March 14 and 25 to discuss the
Union's demands, and, after some five negotiating sessions during
April, reached agreement on April 30 on terms of a new contract,
subject to ratification by the Union membership .4 The contract was
ratified by the Union members that evening and the Association's
chief negotiator, Harold Korzenik, was so notified by telephone on the
morning of May 1. The Association, by letter dated May 1, 1963,
notified its members of the new contract negotiated with the Union.
The record does not indicate whether Respondent was among those
notified.
Weitz testified that in the latter part of 1962 he was told by one or
more employees that a majority of the Respondent's employees no
longer wished to be represented by the Union. On making an inquiry
of Korzenik, the nature of the inquiry not being disclosed in the
record, Weitz was advised by Korzenik that Respondent was bound
by the terms of the then current agreement until its April 30, 1963,
termination date. Weitz testified further that some of Respondent's
'employees asked him about getting out of the Union. Thereafter,
2 The February 1, 1958, contract , and all subsequent contracts , contain the following
preamble :
AGREEMENT made this [DATE] by and between KNITWEAR EMPLOYERS
ASSOCIATION, INC., of 51 Chambers Street, New York, NY, hereinafter referred
to as the "ASSOCIATION", in behalf of its individual members constituting the
same , hereinafter designated as "EMPLOYER" or "EMPLOYERS", and DISTRICT
65, affiliated R W.S D U, AFL-CIO, of 13 Astor Place, New York, N Y., hereinafter
referred to as the "UNION"
a On one or two occasions , Harold Weitz, Respondent ' s secretary -treasurer , was part
of the Employer's committee to assist the Association in its negotiations As Respond-
ent's representative , Weitz also signed a separate schedule attached to the above agree-
ment which embodied certain additional terms and conditions of employment peculiar to
the individual employer-members and was to be signed by the individual employer-members.
4 Whether Weitz participated in the March 14 or 25 negotiating meetings is a matter of
some uncertainty Weitz denied that he had attended these negotiating sessions and there
is evidence to corroborate him at least as to one of the meetings . The Trial Examiner
did not resolve this issue , deeming it unnecessary . In view of our determination herein,
we also find that a resolution of this issue is unnecessary.
SHERIDAN CREATIONS, INC 1505
apparently acting on the advice of his attorney, Weitz filed a repre-
sentation petition with the Board on March 27, 1963,° and on April 1
notified the Association by letter that Respondent had withdrawn all
authority from the Association to bargain for Respondent as of
March 26, 1963 The Association sent a copy of this letter to the
Union on April 3 Since April 1, 1963, the Respondent has refused
to recognize the Union as the exclusive bargaining agent of its em-
ployees, and has failed to execute the Association contract
The Trial Examiner found, and we agree, that, notwithstanding
certain aspects of individual employee bargaining, bargaining in fact
was conducted on a multiemployer basis and that the appropriate
unit was a multiemployei unit 6 The Trial Examiner, however, found
that the Respondent's refusal to execute the Association agreement of
April 30, 1963, did not constitute a refusal to bargain in violation of
Section 8(a) (5) of the Act, since, in the Trial Examiner's opinion,
the Respondent had "successfully" withdrawn from multiemployer
bargaining before agreement had been reached on April 30 In so
finding, the Trial Examinee expressed the view that the controlling
consideration in determining whether the Respondent was under an
obligation to execute the Association contract was the Respondent's
good faith in withdraw ing fl om the multiemployer unit, and where
good faith is found, the fact that the w rthdi awal occurred after
negotiations had begun for a new contract was not determinative
We do not agree Although the Respondent evinced an intent to
withdraw from multeemployee bargaining after negotiations for re-
newal of the multiemployer contract had begun and before agreement
had been reached, the evidence is clear that the Respondent neither
sought nor obtained union consent to such withdrawal In the absence
of such consent, it is well settled now that an attempted withdrawal
at that stage of negotiations is neither timely nor effective 7
The Respondent contends, however, that at the time it withdrew
from multiemployer bargaining it believed in good faith that the
Union no longer represented a majority of the Respondent's em-
ployees But in our opinion the evidence tendered by the Respondent
is not sufficient to overcome the presumption of a continued majority
status that flows from the Association's recognition of the Union as
majority representative 8 For another thing, even if we were to
assume that a majority of Respondent's employees no longer favored
6This petition wis withdrawn on April 9 , 1903 Respondent filed another petition on
April 26 which was withdrawn on May 1 and a petition filed on May 1 w,is withdrawn on
June 10, 1903
'Furniture Employers ' Council of Southern California , Inc, 96 NLRB 1002, 1004,
United States Warehouse Company, 98 NLRB 14, 15 , Safeway Stores , Incorpo,ated,
98 NLRB 528 529
7 The Kroger Co , 148 NLRB 569
8 Celanese Corporation of America, 95 NLRB 664, 668
760-577-65-vol 148-96
1506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union and did not wish to be iepiesented by the Union, that fact
,i ould not relieve the Respondent of its obligation to bargain with
the Union as to the appiopriate multiemployer unit, nor justify an
untimely withdrawal from such unit The test of the obligation to
baigam in this case is whethei the Union represents a majority of
employees in the multiemployer unit as a whole a The contiact lecog-
nized the Union as maj01ity repiesentative and we find the evidence
insufficient to overcome the piesumption of continued majoiity status
In view of the foregoing we find that the Respondent, by its refusal
to recognize the Union and its refusal to sign the contiact of April
30, violated Section 8(a) (5) and (1) of the Act
'I HE REMEDY
Having found that the Respondent has engaged in unfair labor
pi actlces within the meaning of Section 8(a) (5) an (1) of the Act,
we shall oidel that it cease and desist theiefiom and take certain
affitmative action designed to effectuate the policies of the Act
ADDITIONAL CONCLUSION OF LAW
1 All ww aiehouse, office, and clerical employees and showioom
cleiks employed by all employer-membeis of the Association, includ-
ing the Respondent, at their New Yolk places of business, exclusive
of salesmen, professional and technical employees, watchmen and
guaids, and supeivisois, as defined in the Act, constitute a unit appro-
priate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act
2 At all times material heiein, District 65, Retail, Wholesale R
Depai tment Stone Union, AFL-CIO, has been and continues to be the
exclusive bargaining repiesentative of all the employees in the afore-
mentioned unit fot the proposes of collective bargaining
3 By iefusing on and after May 1, 1963, to bargain with the
Union as the exclusive baigaming repiesentative of its employees in
the afoiesaicl unit, and by refusing, on and after the aforesaid date,
to execute and to maintain in full foice and effect the terms and
conditions of the collective-bargaining agreement negotiated by the
Union and the Association on or about April 30, 1963, the Respondent
has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a) (5) of the Act
n 01 and Rapids Fuel Company, 107 NLRB 1402 See also Michigan Advc, using Dis
tbitutnnq Company, 114 NLRB 1259 , enforcement denied on other grounds, sub none.
Gerald S1lai et al, 416 P 2d 145 (CA 6 ) lie also find without merit the Respondent's
contention that the Union in an unfair labor prlctice charge filed with the Poard alleging
that Respondent bs its unlawful acts had caused it to lose its majority, admitted its lack
of mijoi1t3 status unong Respondent ' s employees
SHERIDAN CREATIONS, INC. 1507
4. By the aforesaid refusal to bargain with the Union, the Re-
spondent has interfered with, restrained, and coerced its employees in
the exercise of their rights guaranteed in Section 7 of the Act, thereby
engaging in unfair labor practices within the meaning of Section
8(a) (1) of the Act.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Sheridan Crea-
tions, Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with District 65, Retail,
Wholesale & Department Store Union, AFL-CIO, as the exclusive
bargaining representative of its employees in the following appro-
priate unit:
All warehouse, office, and clerical employees and showroom clerks
employed by all employer-members of the KnitwearEmployers Asso-
ciation, Inc., including the Respondent, at their New York places of
business, exclusive of salesmen, professional and technical employees,
watchmen and guards, and supervisors, as defined in the Act.
(b) Refusing to sign the agreement, dated May 1, 1963, negotiated
with District 65, Retail, Wholesale & Department Store Union, AFL-
CIO, by the Knitwear Employers Association, Inc.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of their rights guaranteed in
Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act. , • „ •
(a) Upon request, bargain collectively with District 65, Retail,
Wholesale & Department -Store Union, AFL-CIO, as the exclusive
bargaining representative of the employees in the appropriate multi-
employer unit.
(b) Forthwith sign the agreement, dated May 1, 1963, negotiated
with District 65, Retail, Wholesale & Department Store Union, AFL-
CIO, by the Knitwear Employers Association, Inc.
(c) Post at its plant in New York, New York, copies of the
attached notice marked "Appendix." 10 Copies of said notice, to be
furnished by the Regional Director for Region 2, shall, after being
duly signed by an authorized representative of Sheridan Creations,
Inc., be posted immediately upon receipt thereof, and be maintained
^OIn the event this Order is enforced by a decree of,a United States Court of Appeals,
there shall be substituted for the words "a Decision and Order " the words "a Decree of
the United States Court of Appeals , Enforcing an Order."
1508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by it for a ' period of 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to insure that
such notices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for Region 2, in writing, within
10 days from the date of this Order, what steps the Respondent has
taken to comply herewith.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL bargain collectively upon request with District 65,
Retail, Wholesale & Department Store Union, AFL-CIO, as the
exclusive bargaining representative of all our employees in the
appropriate unit described below with respect to rates of pay,
wages, hours of employment, and other terms and conditions of
employment. The appropriate unit is:
All warehouse, office, and clerical employees and showroom
clerks employed by all employer-members of the Knitwear
Employers Association, Inc., including the Respondent, at
their New York places of business, exclusive of salesmen,
professional and technical employees, watchmen and guards,.
and supervisors, as defined in the Act.
WE WILL forthwith sign the agreement dated May 1 1963,
negotiated with District 65, Retail, Wholesale & Department
Store Union, AFL-CIO, by the Knitwear Employers Associa-
tion, Inc.
WE WILL NOT in any like or related manner interfere with,.
restrain, or coerce employees in the exercise of their rights to
self-organization, to form labor organizations, to join or assist
the above-named, or any other labor organization, to bargain col-
lectively through representatives of their own choosing, and to
engage in any other concerted activities for the purpose of col-
lective-bargaining or other mutual aid or protection, or to refrain
from any or all such activities.
All our employees are free to become or to remain members of Dis-
trict 65, Retail, Wholesale & Department Store Union, AFL-CIO,
or any other labor organization, or to refrain from such membership,
SHERIDAN CREATIONS, INC. 1509
except to the extent that this right may be affected by an agreement
authorized by Section 8(a) (3) of the Act, as_amended by the Labor-
Management Reporting and Disclosure Act of 1959.
SHERIDAN CREATIONS, INC.
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
-other material.
Employees may communicate directly-with the Board' s Regional
-Office, 5th Floor, Squibb Building, 745 Fifth Avenue, New York,
New York, Telephone No. 751-5500, if they have any question con-
cerning this notice or compliance with its provisions.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge duly filed on May 15, 1963, by District '65, Retail , Wholesale &
Department Store Union , AFL-CIO, hereinafter called the Union, the General Coun-
sel of the National Labor Relations Board , hereinafter called the General Counsel 1
and the Board respectively , by the Regional Director for Region 2 (New York, New
York), issued his complaint dated July 15, 1963, against Sheridan Creations, Inc.,
hereinafter called the Respondent . The complaint alleged that Respondent had
engaged in and was engaging in unfair labor practices affecting commerce within
the meaning of Sections 8(a) (1) and ( 5) and 2 (6) and (7) of the Labor-Management
Relations Act, 1947, as amended , herein called the Act. Copies of the charge,
complaint , and notice of hearing thereon, were duly served upon the Union and
Respondent.
Respondent duly filed its answer admitting certain allegations of the complaint
but denying the commission of any unfair labor practices.
Pursuant to notice , a hearing was held at New York, New York, on September 30
and October 1, 1963, before Trial Examiner Thomas S. Wilson. At this point in the
proceeding the General Counsel having presented his case rested . Respondent moved
to dismiss on the grounds that no prima facie case had been made out. This motion
was granted.
The General Counsel thereupon appealed this ruling to the Board . By order dated
December 12, 1963, the Board ruled in pertinent part as follows:
The Board has duly considered the request for review , the motion in opposi-
tion thereto , and the entire record in the case to date. In the opinion of the
Board , the allegations of the complaint are such that a full and complete hear-
ing on the facts and circumstances is warranted . Accordingly, we shall grant
the General Counsel's Petition for Review and shall remand this proceeding
for further hearing before Trial Examiner Thomas S. Wilson and for the prepa-
ration and issuance of an appropriate Trial Examiner's Decision.
It is hereby ordered that the Trial Examiner 's ruling dismissing the complaint
herein be, and it hereby is, reversed.
In accordance with said order , a further hearing was held in New York, New York,
on January 15, 1964, at which time Respondent presented such evidence as it cared to.
All parties appeared throughout the hearing , were represented by counsel, and
were afforded full opportunity to be heard, to produce , examine, and cross-examine
witnesses , and to introduce evidence material and pertinent to the issues. Oral
1 This term specifically includes the attorneys appearing for the General Counsel at the
hearing.
1510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
argument - was heard at the conclusion of the General Counsel 's case and again at
the conclusion of Respondent 's case. Briefs were received from General Counsel,
Respondent, and the Union on February 14, 1964.
Upon the entire record in the case and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Sheridan Creations , Inc., is and has been at all times material herein, a corporation
duly organized under, and existing by virtue of, the laws of the State of New York.
At all times material herein , Respondent has maintained its principal office and place
of business at-1384 Broadway, in the city and State of New York, herein called the
New York place of business, where it is, and has been at all times material herein,
engaged in the wholesale sale and distribution of ladies' sweaters and related prod-
ucts. During the past fiscal year, which period is representative of its annual opera-
tions generally , the Respondent , in the course and conduct of its business operations,
sold and distributed at its New York place of business, products valued in excess
of $50,000, of which products valued in excess of $50.000 were shipped from said
place of business in interstate commerce directly to States of the United States other
than the State in which Respondent is located.
All during the past fiscal year, Respondent , in the course and conduct of its business,
purchased and caused to be transported and delivered to its New York place of
business , knitted sweaters and other goods and materials valued in excess of $50,000,
of which goods and materials valued in excess of $50,000 were transported and
delivered to its place of business in interstate commerce directly from States of the
United States other than the State in which Respondent is located.
The complaint alleges, the answer admits, and the Trial Examiner finds that
Respondent is engaged in commerce within the meaning of the Act.
Knitwear Employers Association, Inc , herein called the Association, is, and has
been at all times material herein , a" membership corporation duly organized under,
and existing by virtue of, the laws of the State of New York.
The Association is comprised of Employer-Members located in New York State,
and in the boroughs of New York City in particular , engaged in the wholesale dis-
tribution of knitted outerwear and related apparel
The Association performs , inter alia , the function of negotiating collective-bargain-
ing agreements on behalf of its Employer -Members with District 65, Retail, Wholesale
& Department Store Union, AFL-CIO, which represents employees employed by
the respective Employer-Members in their operations.
During the past fiscal year, which period is representative of their annual operations
generally, Employer-Members of the Association, in the course and conduct of their
business operations , manufactured , sold, and distributed , at their New York places
of business , products valued in excess of $50,000, of which products valued in excess
of $50,000 were shipped from said places of business in interstate commerce directly
to States of the United States other than the State in which they are located.
II. THE UNION INVOLVED
District 65, Retail, Wholesale & Department Store Union, AFL-CIO, is a labor
organization admitting to membership employees of Respondent and of the Em-
ployer-Members of the Association.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The facts
In November 1957 the Knitwear Employers Association , Inc., was incorporated
pursuant to the membership corporations law of the State of New York. This Asso-
ciation was composed , for the most part, of firms which previously had had collective-
bargaining agreements with the Union on a single -employer basis.
On February 1, 1958, the Union entered into a collective -bargaining agreement
with the Association, the preamble of which reads in pertinent part as follows:
Agreement made this first day of February 1958 by and between Knitwear
Employers Association, Inc. of 51 Chambers Street, New York, New York,
hereinafter referred to as the "Association ," in behalf of its individual members
constituting the same, hereinafter designated as "Employer" or "Employers,"
and District 65 ....
SHERIDAN CREATIONS, INC. 1511
This agreement in paragraph one describes the unit as follows:
The Employers agree, each for himself , to recognize and deal with the Union
as the sole and exclusive bargaining agency for their respective warehouse and
office and. other employees named in schedule A, executed simultaneously here-
with, in behalf of each of the respective establishments covered hereby , and the
successors of such employees ....
Section 30 of this agreement provides as follows:
This agreement shall be binding upon each Employer subscribing hereto, the
Union and its members , and the successors and assigns of the parties hereto.
Each Employer or member of the Association becoming bound hereby, will
evidence such intention by the execution of a ratification from subject to ac-
ceptance by the Union and thereupon this agreement will become binding upon
each such Employer or member, with the same force and effect as if he had
directly and individually executed this agreement as a party thereto. , The resig-
nation or expulsion of any such Employer or member from the Association
shall not terminate or affect such Employer's or member's continuing obligation
under said agreement unless the Union shall, upon such event, elect to terminate
the same .2
On July 28, 1959, after the Union had organized the employees of Respondent,
Respondent entered into an agreement with the Union which provided , inter alma:
(1) That Respondent subscribed to the then existing collective-bargaining agreement
between the Union and the Association , and (2 ) that Respondent would bargain as
part of the Association when the then current Association agreement expired.
In 1960 Respondent accordingly became a member of the Association and bar-
gained as a part of the Association with the Union for the new collective -bargaining
agreement effective from May 1 , 1960, to April 30, 1961. Again in, 1961 Respondent,
as part of the Association , bargained with the Union . for a new agreement which, by
its terms , expired on April 30 , 1963. On one or both of these occasions Respondent's
secretary-treasurer, Harold Weitz , acted as a member of the six-man Employer's
committee to assist the Association 's chief negotiator , Harold Korzenik , during the
negotiations.
The contract renewals of 1960 and 1961 were executed by the chairman of the
Knitwear Association but the schedule A attached to the individual Employers ' copies
of the contract were executed by individual officers of the particular employer.
Harold Weitz executed schedule A for Respondent on both these occasions.
On February 25, 1963, the Union, in accordance with past practice , notified the
Association and each member of the Association, including Respondent, by registered
mail that it desired to make certain changes in the collective -bargaining agreement
and requested a date for negotiations thereon.
Although Respondent made no answer to this letter, Korzenik , for the Association,
and Dicker , for the Union , agreed that the parties would meet on March 14, 1963.
On March 14 Dicker presented the demands of the Union and explained them at
both this and the next meeting held on March 25 , 1963.3 At each of these meetings
both negotiators had committees with them . In addition there were 30 or 40 em-
ployers and employees present in the room as observers . There is a dispute which
will be more fully referred to hereinafter , as to whether or not Harold Weitz was in
attendance at these two meetings.
On March 27, 1963, Respondent filed an RM petition with the Regional Director
for Region 2 of the Board requesting an election for its employees in a single-
employer unit, composed of its own employees only naming the Union as a recog-
nized or certified bargaining agent. This petition was withdrawn by Respondent on
April 9, 1963, after Respondent had been informed by the Regional Office that the
petition was untimely.
2 The above -quoted contract provisions have remained virtually unchanged in all sub-
sequent renewals of this agreement.
3 During the oral argument on Respondent 's motion to dismiss at the conclusion of
General Counsel's case , the Trial Examiner from memory quoted Dicker , without correc-
tion , as having referred to the meetings of March 14 and 25 as "exploratory" and as
"setting the ground rules ." A diligent search of the record indicates that the Trial
Examiner ' s memory on that to have been faulty as the transcript fails to disclose any
such answer by Dicker.
1512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
By letter dated April 1, 1963, Respondent notified the Association as follows:
Please be advised that the undersigned, as of March 26, 1963, withdrew all
authority that you may have had to bargain for it, or as its representative, with
District 65, Retail, Wholesale and Department Store Union, AFL-CIO.
Thank you for your past services in this regard. This withdrawal of authority
is not related to any dissatisfaction with your services.
Although Respondent did not send the Union a copy of this letter, the Association,
by letter dated April 3, 1963, mailed the Union a copy of Respondent's letter of
April 1. The Union in turn did nothing.
Further negotiating sessions on an Associationwide basis were held on April 1, 11,
19, and 30, 1963. At the final session on April 30, the Association and the Union
orally agreed to the terms of a new contract subject to ratification by the union mem-
bership. Dicker and Korzenik shook hands on the agreement.
Later that evening the union membership ratified the agreement. Dicker so
notified Korzenik by telephone the next morning, May 1.
At 8:55 a.m., May 1, Respondent filed another RM petition with the Regional
Office again requesting an election among its own employees who had been previ-
ously covered by the Association contract.4 On June 10 Respondent again withdrew
this petition.
By letter dated May 1, 1963, the Association notified each of its members that "at
a late hour last night we arrived with the Union at a settlement of the terms of a
2-year contract effective May 1, 1963, and terminating April 30, 1965." This notifica-
tion contained a description of the changes made from the past contract.
The new contract was typed and sent to the printers who returned it approximately
1 week later in printed form when it was thereupon signed by representatives of the
Association and the Union. This was in accordance with past practices.
Such was the state of the record when General Counsel rested and Respondent
moved to dismiss the complaint, which the Trial Examiner granted.
When the hearing was reopened on January 15, 1964, pursuant to the order of the
Board, noted supra, Respondent presented essentially the following evidence:
Harold Weitz denied that he had attended either of the negotiation meetings held
on March 14 and 25. One of the members of the Association's negotiating committee,
Saul Yellin, who attended the March 25 meeting, but not that on March 14, corrobo-
rated Weitz as to the second meeting 5
Weitz also testified that in the latter part of 1962, probably December, he was told
by an unnamed employee, or employees, that a majority of Respondent's employees
no longer desired to be represented by the Union, but, upon inquiry, was advised by
Korzenik that Respondent was bound by the then current agreement until its termi-
nation date of April 30, 1963.
Weitz testified further that in March 1963 an unnamed employee, or employees,
again asked Respondent about getting out of the Union At this point, according to
,Weitz, he contacted his attorney, Hyman Clurfeld, who, in turn, got in touch with
Attorney Ralph P. Katz, upon whose advice Respondent filed the RM petition of
March 27, 1963.
Testimony given by Attorney Katz is set out in Respondent's brief as follows:
15. During the completion of the "commerce questionnaire" Hyman Clurfeld
advised Ralph P. Katz that Sheridan was a member of the Knitwear Employers
Association and a: letter was immediately prepared for Sheridan to effect its
withdrawal from that Association as of the date Katz believed the petition had
been filed. A copy of that letter [dated April 1, 1963], was forwarded by the
Association to District 65 [on April 3, 1963].
16. District 65 and Sheridan met at the offices of the Second Region of the
Board on April 8, 1963. at which time Sheridan and District 65 set forth their
respective positions.
4 A similar RM petition had been filed by Respondent on April 26 which it withdrew
on May 1
5In making his decision on Respondent's motion to dismiss, the Trial Examiner, of
course, accepted the testimony of Dicker that Weitz had attended the meetings of
March 14 and 25 as true. This was not only because on such a motion at the close of the
General Counsel's case all testimony presented must be deemed to be true for the purposes
of the motion, but also because the Trial Examiner found Dicker to be a truthful witness.
Even though a conflict has now arisen as to this testimony, the Trial Examiner sees no
necessity for resolving it but will continue to assume that Weitz attended one or both of
said meetings.
SHERIDAN CREATIONS, INC. 1513
Since April 1 , 1963, Respondent has refused to recognize the Union as the repre-
sentative of its employees . Respondent has also failed to execute the Association's
contract agreed to on April 30, 1963.
b. Conclusions
There can be no question due to the past history but that the multiemployer unit is
an appropriate unit here. Nor in view of the fact that the Association -Members of
all had had single -employer contracts with the Union prior to the formation of the
Association in 1957, when Associationwide bargaining commenced , can there be any
question but that , as of March -April 1963 , the Union represented the majority of the
employees within that multiemployer unit . The presumption is that the majority
continued . There is no evidence to the contrary.
The sole question for decision here is whether Respondent successfully withdrew
from the multiemployer unit by its letter to the Association dated April 1 , 1963, or
whether those efforts were unsuccessful so that Respondent 's withdrawal of recogni-
tion from the Union and its refusal to sign the April 30, 1963, renewal agreement
constituted a refusal to bargain within the meaning of Section 8(a) (5) of the Act.
General Counsel's main contention now is the same as it was at the time of the
motion to dismiss, namely, that the Respondent 's attempted withdrawal from the
Association was untimely in that Respondent did not attempt its withdrawal until
after the negotiations for the renewal of the Association 's contract had begun and
after Weitz had attended the first two of those negotiation sessions on March 14
and 25.
General Counsel also still places his main reliance upon the phraseology used by
the Board in Retail Associates , Inc, 120 NLRB 388, 395, where in a dictum, and
objected to as such by one Board Member , the Board said:
... While , as indicated above, this extreme question does not arise in this case,'
we believe it reasonable to establish in appropriate future cases , where such
issues are squarely presented , specific ground rules, resting upon existing prin-
ciples and policies under the Act, to govern questions of representation in multi-
employer bargaining units. Among other things , the timing of an attempted
withdrawal from a multiemployer bargaining unit, as Board cases show, is an
important lever of control in the sound discretion of the Board to insure stability
of such bargaining relationships . We would accordingly refuse to permit the
withdrawal of an employer or a union from a duly established multiemployer
bargaining unit, except upon adequate written notice given prior to the date set
by the contract for modification , or to the agreed -upon date to begin the multi-
employer negotiations . Where actual bargaining negotiations based on the
existing multiemployer unit have begun , we would not permit , except on mutual
consent, an abandonment of the unit upon which each side has committed itself
to the other , absent unusual circumstances . It is clear that under the ground
rules to be promulgated , we would reach the same result as found in the present
case.
Under rules thus set forth , Respondent 's attempted withdrawal in the instnace
matter was clearly untimely regardless of whether Weitz sat in on March 14 and 25
meetings or not.
However, prior to the above statement of "specific ground rules" to be applied in
"appropriate future cases ," the Board actually decided the Retail Associates case,
supra at 394, on the following principle of law:
The decision to withdraw must contemplate a sincere abandonment, with
relative permanency , of the multiemployer unit and the embracement of a
different course of bargaining on an individual -employer basis . The element of
good faith is a necessary requirement in any such decision to withdraw , because
of the unstabilizing and disrupting effect on multiemployer collective bargaining
which would result if such withdrawal were permitted to be lightly made. The
attempted withdrawal cannot be accepted as unequivocal and in good faith
where, as here, it is obviously employed only as a measure of momentary ex-
pedience , or strategy in bargaining , and to avoid a Board election to test the
union majority.
In other words the Board 's actual decision in the Retail Associates case, unlike its
dictum , is based upon the bad faith of the decision to withdraw from the multiem-
1514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployer unit which, as the Board there pointed out, was "obviously employed only as
a measure of momentary expedience, or strategy in bargaining, and to avoid a Board
election to test the union majority." 6
At the conclusion of the General Counsel's case here, General Counsel conceded
that the only evidence of bad faith in Respondent's decision to withdraw from the
multiemployer unit consisted of the fact that the announcement to withdraw came
approximately 2 weeks too late (according to the dictum of the Retail Associates
case), to wit, either on March 27 when the RM petition was filed or on April 1 when
Respondent's letter to the Association was written and, therefore, after Weitz had
sat in on one or two of the preliminary bargaining sessions of March 14 and 25.
In fact the evidence at that stage in the proceedings indicated that, although slightly
belated as to time, Respondent's withdrawal was based upon a presumptively good-
faith doubt that the Union actually represented its employees. Accordingly, as the
element of bad faith in the decision to withdraw thus was absent from General
Counsel's case, the motion to dismiss was granted.
Exclusive of the dictum in Retail Associates, the Trial Examiner knows of no
Board decision where the Board has refused a party the right to withdraw from a
multiemployer unit based exclusively upon the inappropriate timing of the announce-
ment of withdrawal alone and in the absence of other evidence of bad faith in the
party's decision to withdraw. Nor was any such case pointed out in the very able
briefs filed'with the Trial Examiner.
In its brief, Respondent seeks to distinguish the instant case from the dictum of
Retail Associates on the grounds that here the decision to withdraw stemmed from
doubt as to the Union's majority status among its employees. The Trial Examiner
does not see this as a distinguishing feature but only as one of a myriad of reasons
which may influence an employer to withdraw from a multiemployer unit.
Respondent then becomes highly technical in its brief by setting up the argument
that it-became relieved of its obligations in the multiemployer unit when it refiled
its RM petition at 8:55 a.m. on May 1, because at that time no Association-Union
contract was in existence because that renewal contract was not, in fact, executed
by the parties until the printed agreement had returned from the printers approxi-
mately 1 week later. The facts show, however, that agreement between the Association
and the Union was reached on the evening of April 30. Even in labor relations, the
Trial Examiner believes that oral agreements are as binding as written ones.
Respondent in its brief also contended that the contracts it had executed with the
Union were individual agreements between it and the Union and were not part of
the Associationwide contract due to the inclusion of a separate exhibit A attached
to each employer's contract. This contention is without merit.
The Union's brief seems to concede that an employer may withdraw from a multi-
employer unit at an inappropriate time provided that the employer continues bar-
gaining in a single-employer unit, presumably with the same union. In the light of
the predominant theory behind recent amendments to the Act, this argument is
singularly unconvincing.
The briefs filed with the Trial Examiner have served to confirm his opinion that
the touchstone in these cases of withdrawals from multiemployer units remains the
good faith of that decision to withdraw and that the so-called inappropriate timing
of the notice of withdrawal is but an element to be considered on the basis question
of good faith.
As these briefs quite correctly point out, the Respondent's failure to move until
March 27 or April 1 after allegedly first learning of its employees' alleged reluctance
to continue to be represented by the Union during the previous December, casts
considerable doubt on the good faith of Respondent's doubt in that regard. The
Trial Examiner freely confesses that he was much more firmly convinced of the
correctness of his decision on the motion to dismiss before the aforementioned doubts
were cast. However, the Trial Examiner believes that the presumption of good
faith, which must be accorded Respondent, still overcomes the doubt thus cast
Thus the essential element of bad faith on the part of Respondent is still missing
from the General Counsel's case
Having thus found that Respondent has not violated the Act, the Trial Examiner
will recommend that the complaint be dismissed in its entirety.
"In addition to the above evidence of bad faith, the Board pointed out elsewhere in the
decision that the Union in that case "deliberately went out of compliance" in order to
thwart the holding of an election
F. F. FIELDS OF N.Y., INC. 1515
Upon the basis of the foregoing findings of fact, the Trial Examiner makes the
following:
CONCLUSIONS OF LAW
1. Sheridan Creations , Inc., is engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. District 65, Retail Wholesale & Department Store Union , AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
3. Respondent has not engaged in the unfair labor practices alleged in the
complaint.
RECOMMENDED ORDER
The Trial Examiner hereby recommends that the complaint be dismissed in its
entirety.
F. F. Fields of N.Y., Inc. and Amalgamated Meat Cutters,
Butcher Workmen and Affiliated Crafts of North America,
District Union Local No. 1, AFL-CIO and The Sunshine Club,
Party in Interest . Case No. 3-CA-2259. October 2, 196.E
DECISION AND ORDER
On July 21, 1964, Trial Examiner Lloyd Buchanan issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
within the meaning of the Act, and recommending that it cease and
desist therefrom and take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter, the Respondent
filed exceptions to the Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Leedom, Fanning, and
Brown].
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 recom-
mendations of the Trial Examiner with the modifications hereinafter
noted.
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order, the Order recom-
mended by the Trial Examiner, and orders that Respondent F. F.
Fields of N.Y., Inc., Schenectady, New York, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in the Trial Exam-
iner's Recommended Order, with the following modifications :
148 NLRB No. 151.