The Evening News Association

National Labor Relations Board - Board Decisions

Sep 24, 1965

154 N.L.R.B. 1494 (N.L.R.B. 1965)

1494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by a preponderance of the evidence that the single -employer units sought by the
Union are appropriate and, as a consequence , Respondents did not refuse to bargain
in violation of Section 8(a)( I) and (5) by not acceding to the Union 's requests.
CONCLUSIONS OF LAW
1. Respondents did not violate Section 8 (a)(1) and (5 ) of the Act as alleged in
the complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I recommend that the complaint be dismissed in its entirety.
The Evening News Association, Owner and Publisher of "The
Detroit News" and Detroit Newspaper Printing Pressmen's
Union Local No. 13, International Printing Pressmen and As-
sistants' Union of North America , AFL-CIO
Knight Newspapers, Inc., Owner and Publisher of "The Detroit
Free Press" and Detroit Newspaper Printing Pressmen 's Union
Local No. 13, International Printing Pressmen and Assistants'
Union of North America, AFL-CIO.' Cases Nos. 7-CA-4595 and
7-CA-4596. September 24,1965
DECISION AND ORDER
On May 25, 1964, Trial Examiner Paul Bisgyer issued his Decision
in the above-entitled proceeding, finding that Respondents had
engaged in and were engaging in certain unfair labor practices and
recommending that they cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion . Thereafter, Respondents and Intervenor 2 filed joint excep-
tions to the Trial Examiner's Decision and a joint brief in support
thereof. On October 22, 1964, the National Labor Relations Board,
pursuant to notice, heard oral argument at Washington, D.C., in
which all parties participated.3
The Board has considered the Trial Examiner's Decision, the excep-
tions , the briefs, the positions of the,parties advanced at the oral argu-
ment, and the entire record in this case, and hereby adopts the find-
ings, conclusions , and recommendations of the Trial Examiner, with
the additional comments.
1 Hereinafter called the Union.
Respondents' bargaining agent , Detroit Newspaper Publishers Association , hereinafter
called the Association, was permitted to intervene in this proceeding.
' Publishers A ssociation of New York City filed a brief as amicua curiae and argued
orally in support of Respondents ' position . Pacific Maritime Association also presented
oral argument in support of Respondents ' position.
154 NLRB No. 121.
THE EVENING NEWS ASSOCIATION, ETC. 1495
Respondents have bargained with the. Union on a multiemployer
basis, through the Association, for about 25 years. The most recent
collective-bargaining contract between Respondents and the Union
was effective to February 29, 1964, subject to automatic renewal unless
either party served written notice of a desire to modify the contract
at least 60 days before the terminal date. On December 27, 1963, the
Union wrote each Respondent that it desired to terminate the contract
as of its expiration date and to conduct negotiations for new contracts
on an individual employer basis. Respondents replied that they would
bargain only for a multiemployer unit and refused the request for
individual employer bargaining. The Trial Examiner found that, by
this refusal to bargain individually, Respondents had violated Sec-
tion 8 (a) (5) and (1) of the National Labor Relations Act, as amended.
Under existing law, if either Respondent had unequivocally sought
to withdraw from multiemployer bargaining before negotiations had
begun, as the Union did in this case, it would unquestionably have been
permitted to do so without being required to demonstrate "good rea-
son" for its withdrawal, that "the community of interest shared for 25
years by employees of the multiemployer unit no longer exists," or
that there had been any "substantive change in the composition or
operations of the multiemployer unit," and "without regard to the
desires of the employees in the unit." 4 An employer can withdraw
from a multiemployer bargaining unit at will,5 provided only that the
withdrawal request is made before the date set by the contract for
modification, or before the agreed-upon date to begin the multiem-
ployer negotiations, and the withdrawal is unequivocal .6 Given com-
pliance with these two conditions, neither the employer's motive for
withdrawal nor the impact of the withdrawal upon the bargaining
representative or other employer members of the multiemployer bar-
gaining unit is considered relevant. There can be no question that the
Union's withdrawal in this case was both timely and unequivocal.
The issue here, therefore, is whether the Board can or should adopt
different, more restrictive, rules to govern a union's withdrawal from
multiemployer units than now exist to govern employer withdrawals.
Two courts have spoken on this issue and have said that it would
be irrational and an abuse of discretion for the Board to adopt more
4 The quotations are from the dissenting opinion.
e Bell Bakeries of St. Petersburg, et al., 139 NLRB 1344 ; Cooks, Waiters and Waitresses
Union, Local 327, et al ., 131 NLRB 198; Laundry Owners Association of Greater Cin-
cinnati, 123 NLRB 543 ; Neville Foundry Company, Inc., 122 NLRB 1187 ; Retail Asso-
ciates, Inc., 120 NLRB 388; Johnson Optical Company, at al., 87 NLRB 539.
e E.g., Universal Insulation Corporation , 149 NLRB 1397 ; Tulsa Sheet Metal Works,
Ina, 149 NLRB 1487; Northern Nevada Chapter, National Electrical Contractors A88o-
ciation and Represented Employers , 131 NLRB 550 . See, generally , Retail Associates,
Inc., supra
A96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
restrictive r̀ules : governing union withdrawal from multiemployer-
bargaining units'than,are applicable to employers.? In Truck Driv-
ers Local'Union No. 44.9, Teamsters V. N.L.R.B.,,the Court of Appeals'
for the Second Circuit said (231 F. 2d 110, at 116) :
We see no 'rational basis for holding, in any context, that at
any time any particular employer may, at his will, withdraw
from bargaining through an employers' association of which he
is a member, while a union is not equally free to discontinue bar-
gaining through such an association with respect to any particu-
lar employer member.
And in Local 128, Retail Clerks v. Leedom, 42 LRRM 2031, 2033,
(D.C.D.C.) (April 29, 1958) the court said:
... it appears that it has been the settled policy of the National
Labor Relations Board to permit the employer, at appropriate
times, to withdraw from multi-employer bargaining for any rea-
son whatever, but that in the instant case the Board has not
accorded- the same right of withdrawal to plaintiff unions. In
these circumstances, the Board's decision would appear to be arbi-
trary in excess of the Board's statutory authority ....
In principle, there is no basis for different treatment of union and
employer withdrawals from multi-employer bargaining units. The
Board does not find a multiemployer unit appropriate except where
all parties clearly agree to such a unit or where there has been a his-
tory of bargaining on a multiemployer basis and the employers and
either the incumbent or a rival union desire to continue bargaining on
such a basis .8 In the absence of either of these two factors, the Board
will not find appropriate aunit covering employees of more than one
employer, regardless of the desirability of such a unit .9 It is because
the multiemployer unit is rooted in consent that the Board has always
permitted an employer to withdraw from such a unit for any reason
at a proper time and by giving proper notice. The Board has con-
sidered material to permitting withdrawal only the "time and man-
ner" 10 of the withdrawal request. If, as is apparent, the basis of mul-
TTruck Drivers Local Union No. 449, Teamsters v. N.L.R.B., 231.F. 2d 110 (C.A. 2),
reversed on other grounds 353 U.S. 87. (The Supreme Court expressly reserved the ques-
tion whether a union should be accorded the same freedom of voluntary withdrawal from
a multiemployer bargaining unit ' as the ' Board has ' accorded to individual employers.
Id. at 94 , footnote '22) ; Local 128, Retail Clerks v. Leedom,'supra. See also Multi-
Employer Bargaining and the National Labor Relations Board, 66 Harv . L. Rev. 886,
894-895 (1953).
8E.g., Quality Limestone Products ; Inc., 143 NLRB 589; Rose Exterminator Company
of Northern Cahfornis, Inc., 143 NLRB 59; Francis L. Bennett and Harold J. Bennett,
Partners, d/b/a Bennett Stone Company , 189 NLRB 1422; Chester County Beer Distribu-
tors Association, 133 NLRB 771. See, generally ; Retail Associates , Inc., 8upa. -
aE.g., Laundry Owners Association of Greater Cincinnati, supra; Texas Cartage Com-
pany, 122 NLRB 999.
10 Retail Associates , Inc., 120 NLRB at 393.
THE EVENING NEWS- ASSOCIATION, ETC. 1497
tiemployer bargaining unit is both original and continuing consent by
both parties, the Board cannot logically deny the bargaining repre-
sentative the same opportunity it allows employers of withdrawing
from the multiemployer unit by withdrawing its consent to such unit.
Respondents argue that the positions of employers and unions par-
ticipating in multiemployer bargaining are dissimilar , and therefore
more restrictive rules should be applied to union withdrawals from
such units than to employer withdrawals. The basic arguments
offered in support of differential treatment reduce themselves, upon
analysis , to the proposition that when a union withdraws from multi-
employer bargaining, its strength vis a vis the employer is substan-
tially enhanced, whereas when an employer withdraws, his position
is weakened. Without passing on the factual validity of this argu-
ment, we note that bargaining power of either union or employer
is not a criterion used to determine the appropriateness of a bargain-
ing unit. Section 9 (b) of the Act says only that the Board shall decide
the appropriateness of a unit in terms of what will "assure to employ-
ees the fullest freedom in exercising the rights guaranteed by this
Act..." The Act nowhere says that, in determining the appropriate-
ness of a unit, the Board shall consider relative bargaining power of
the parties to the proceeding. It is beyond dispute that the Board
does not consider bargaining power in deciding whether a multiem-
ployer unit should be found appropriate in the first instance. Bar-
gaining power should not therefore be a test in determining whether
a multiemployer unit once created should be retained against the
desires of one of the parties. As stated by the Supreme Court: 11
[Our labor policy does not] contain a charter for the National
Labor Relations Board to act at large in equalizing disparities
of bargaining power between employer and union.
As an aspect of the power argument, Respondents assert that if
unions are permitted the same freedom as employers to withdraw from
multiemployer bargaining units, unions will also be free to utilize the
so-called "whipsaw strike" and the employers will be left without the
right to use the counterbalancing defensive lockout allowable under
the decision in N.L.R.B. v. Truck Drivcrs Local Union No. 449, Team-
sters, 353 U.S. 87. Even if this were the only union motivation for
seeking withdrawal from such units-a desire to exercise more effec-
tively its strike weapon-we agree with the Trial Examiner that it
would not provide a legitimate basis for preventing withdrawals. In
any event, we have no occasion to decide at this time whether a union's
'N.L.R.B. v. Insurance Agents ' International Union, AFL-CIO ( Prudential Ins. Co.),
361 U.S. 477, 490. The Supreme Court has more recently made the same point just as
forcefully , stating that "the Act's provisions are not indefinitely elastic, content-free
forms to be shaped in whatever manner the Board might think best conforms to the
proper balance of bargaining power ." American Ship Building Company v . N.L.R.B., 380
E.S. 300.
1498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
withdrawal from multiemployer bargaining followed by its striking
fewer than all of the former employer-members of the larger unit
would effectively deny to the employers who are not struck the right to
engage in a lockout. That question, among others concerning lock-
outs, remains to be decided in light of the recent relevant Supreme
Court decisions.12
Our dissenting colleague contends that an employer's right to with-
draw from participation in multiemployer bargaining is "totally dif-
ferent" from a union's right similarly to withdraw. In this respect,
he argues "one could equate an employer's participation in multiem-
ployer bargaining with a single union's engagement in multiunion
(e.g., through a Council) bargaining." In our view, the equations
does not balance . As the dissent recognizes, in multiunion bargaining,
once a broad unit has been established by consent, one of the constitu-
ent unions could not generally change the unit by unilateral action; 13
but neither would the employer be permitted to do so. A similar situa-
tion exists with respect to single-employer, multiplant units.14 In
these types of cases , employer and union are treated alike. Neither
can break up the unit. By contrast, in the present case, the dissent
would give a right to the employer to withdraw from the unit at will,
and deny the same right to the union. It is this proposed inequality
of treatment which is at the root of our disagreement with the dissent.
This inequality is emphasized in the dissenting Member's catalogue of
conditions which he would regard as warranting a union's action in
fragmentizing a multiemployer unit. Before permitting a union to
withdraw, the dissent would weigh the length and character of the
bargaining history ; the nature of the employment practices in the
industry or among the particular employers; common control of, or
participation in, labor relations by the employers; and the union's
reasons for seeking to establish a different bargaining unit. But an
employer would be permitted to withdraw without any of those justi-
fications simply by giving good-faith notice of withdrawal before the
12N.L.R.B. v. Brown, et al., d/b/a Brown Food Store, 380 U .S. 278; American Ship
Building Company v . N.L.R.B ., 380 U.S. 300. See also Detroit Newspaper Publishers
Association, et al. v. N.L.R.B., 346 F. 2d 527 (C.A. 6).
18 This is generally but not always true. One of the constituent unions could sever a
segment of the broader unit , if it filed a petition with the Board at an appropriate time,
and if the smaller unit were otherwise appropriate.
is Radio Corporation of America, 135 NLRB 980 , cited by the dissent, involved multi-
plant bargaining by a single International union and its locals with a single company. The
question presented in that case was whether a national agreement negotiated by the
International union which provided for automatic coverage of local plants for which
the International or its locals should thereafter be recognized as bargaining representa-
tive justified the employer 's position that a newly certified local was bound by the national
agreement . A majority of the Board held that it was. Member Fanning joined with
Member Brown in dissenting from this conclusion . Member Fanning does not believe
that the Radio Corporation case has any relevancy to the issue posed by the present case.
THE EVENING NEWS ASSOCIATION, ETC. 1499
start of negotiations for a new contract. Unlike our dissenting col-
league , we believe that the rules for withdrawal from multiemployer
bargaining units should be the same for unions as for employers
because, unlike the dissenter, we perceive no material difference in the
impact on the employing entity and on the union flowing from an
employer's withdrawal from a multiemployer unit, on the one hand,
and the union's withdrawal, on the other hand. In either case, the
withdrawing party forces the other to forego bargaining in the estab-
lished multiemployer unit, and in either case, the union may be faced
with the possibility of having to demonstrate that it has been desig-
nated by a majority of the employees in the individual employer units
resulting from the breakup of the multiemployer unit, if it is to retain
its status as the bargaining representative of such employees.
The dissent also argues that multiemployer bargaining creates "uni-
form conditions and benefits for employees" in the multiemployer unit
leading to "stability" 18 in the relations between the employers and the
union and that since these conditions are desirable,16 union with-
drawal should be restricted.17 First of all, we point out that even if
the premises of this argument are valid, the conclusion hardly fol-
lows. Unions, like employers, would understandably be reluctant to
initiate multiemployer bargaining if the decision to do so were virtu-
ally irrevocable.18 Restricting union withdrawal might therefore in
fact discourage multiemployer bargaining and not encourage it.
Moreover, if a union remains bound to a multiemployer unit with
which it has become dissatisfied while the employers are free to with-
draw, the union's only recourse then is to seek to stimulate employer
withdrawals in order to fragment the unit; e.g., by framing and insist-
ing on demands which are far less acceptable to some employers than
to others. Inequality of freedom to withdraw thus could become a
means of producing, not stability, but friction and instability in the
bargaining unit.
We believe that the legitimate interests of the parties and the poli-
cies of the Act are furthered by multiemployer bargaining in certain
16 A leading study indicates that while multlemployer bargaining reduces the incidence
of work stoppages below that of single-employer bargaining , the stoppages that occur in
multiemployer bargaining are substantially more severe in their impact on the economy
than those that occur in single-employer situations. Kerr and Fisher , Multiple-Employer
Bargaining : The San Francisco Expersence, pp. 53-55 (Univ. of Calif. Press, 1948).
16 "Uniform conditions" when viewed as the elimination of competition , however, have
been the basis for criticism of multiemployer bargaining . E.g., Pollak, Social Implica-
tions of Industry-Wide Bargaining, ch. I (Univ. of Pa. Press, 194'8).
14 We note that employer withdrawal would appear to have the same adverse impact
in this connection , but the dissent does not suggest that employer withdrawal also be
limited, nor do Respondents.
18 See Multi-Employer Bargaining and the National Labor Relations Board, 66 Harv.
L. Rev. 886, 895 ( 1953).
1500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
situations.19 Indeed, it is this belief that has been the basis of our
policy toward such units in the representational area. Our views in
this respect do not warrant, however, our intervention in all situa-
tions to enforce multiemployer bargaining upon unwilling parties,
whether they be employers or unions, who have given timely and
appropriate notice of their desire to withdraw. There has been a con-
tinuing debate as to the desirability of multiemployer bargaining.20
As the Supreme Court has noted : 21
At the time of the debates on the Taft-Hartley amendments, pro-
posals were made to limit or outlaw multi-employer bargaining.
These proposals failed of enactment. They were met with a storm
of protest that their adoption would tend to weaken and not
strengthen the process of collective bargaining and would conflict
with the national labor policy of promoting industrial peace
through effective collective bargaining.
The resolution of the debates is hardly tantamount to a directive to
attempt to promote multiemployer bargaining in disregard of its tra-
ditional consensual basis. Again, in the Supreme Court's words :
The inaction of Congress with respect to multi-employer bargain-
ing cannot be said to indicate an intention to leave the resolution
of this problem to future legislation. Rather, the compelling
conclusion is that Congress intended "that the Board should con-
tinue its established administrative practice of certifying multi-
employer units, and intended to leave to the Board's specialized
judgment the inevitable questions concerning multi-employer
bargaining bound to arise in the future."
Important practical considerations demonstrate the wisdom of
leaving intact the freedom of the parties involved to form and dis-
solve, to modify and adapt, multiemployer units. Practices vary from
industry to industry, from one section of the country to another, and
from time to time even within one industry or one section of the coun-
try. No one pattern of bargaining structure has been found best
adapted to all situations. The bentfits that flow from multiemployer
bargaining result from the participants' mutual agreement that their
19 With the exception of certain industries, including perhaps that involved here, multi-
employer bargaining is engaged in by relatively "small" employers, and the Supreme
Court emphasized the interest of "small" employers in multiemployer bargaining in
N.L.R.B. v. Truck Drivers Local Union No. 449, Teamsters (Buffalo Linen Supply Co.),
353 U.S. 87, 94, 96. See The Structure of Bargaining Units in the United' States, 10
Ind. & Lab. Rel. Rev. 3 (1956) ; and Major Union Contracts in the United States,
85 Monthly Labor Review, 1136, 1137-1138. Comparing the date in the later of the
two articles cited with that in the earlier indicates that multiemployer bargaining is
becoming increasingly prevalent in this country.
20 See, for example, views collected in Industry-Wide Collective Bargaining (Warne ed.
1950), and in the recent Multiempioyer Association Bargaining and its Impact on the
Collective Bargaining Process, Rept. of House General Subcommittee on Labor, Comm. on
Education and Labor, 88th Cong., 2d sess. (1964).
121 N.L.R.B. v. Truck Drivers Local Union No. 449, supra, 353 U.S. 87, 95, 96.
THE EVENING NEWS ASSOCIATION, ETC. 1501
individual interests are best served by negotiating within the frame-
work of multiemployer units. We are far from persuaded that our
-failure to place greater restrictions upon union withdrawals from
multiemployer units than are placed upon employer withdrawals will
undermine the existence of such units. To the contrary, it appears
more likely that such an intervention by the Board would preclude
possible future experimentation with and expansion of such bargain-
ing. These considerations support our conclusion that this is a situa-
tion where the experience and judgment of the parties themselves as
to the best method of furthering their interest and structuring their
bargaining relations in the multiemployer area should continue to be
controlling.
For the foregoing reasons, we believe that the existing rules govern-
ing employer withdrawal from multiemployer units should be applied
on an equal basis to union withdrawal from such units. As the notice
of withdrawal served by the Union on Respondent would have been
sufficient, if served by Respondents upon the Union, to terminate the
obligation to bargain upon a multiemployer basis, we find that it had
the same effect in this case, and that by Respondents' refusal there-
after to bargain individually and separately with the Union, the
Respondents each violated Section 8(a) (5) and (1) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Order recommended by the Trial Examiner and orders that
the Respondents, The Evening News Association, Detroit, Michigan,
owner and publisher of "The Detroit News," and Knight Newspapers,
Inc., Detroit, Michigan, owner and publisher of "The Detroit Free
Press," their respective officers, agents, successors, and assigns, shall
take the action set forth in the Trial Examiner's Recommended Order.
MEMBER BROWN, dissenting:
Unlike my colleagues, I would reverse the findings of the Trial
Examiner and would dismiss the complaint. His rationale, which the
majority adopts, gives too little weight, in my opinion, to established
bargaining history and over-emphasizes so-called "equality" of fac-
tors which are not in reality equal. Upon consideration of the nature
of the long bargaining history on a multiemployer basis, I would hold
that the Union is not entitled to fragmentize this unit in view of its
failure to demonstrate good reason for doing so.
The Respondents and the Union have bargained on a multiem-
ployer basis for over 25 years. While there have been the usual inci-
dents of economic strife the relationship has been a salutary one, on
the whole, with resulting benefits to all parties. The Union now would
1502 DECISIONS .OF NATIONAL LABOR RELATIONS BOARD
break up this two-employer bargaining unit and bargain singly with
each employer. There is no showing that the community of interest
shared for 25 years by employees of the multiemployer unit no longer
exists . Nor is there any other showing of substantive change in the
composition or operations of the multiemployer unit; Indeed, the
Union contends that it is entitled to break up the established unit
without even considering such factors and without regard to the
desires of the employers in the unit. My colleagues evidently agree,
as they hold, in effect, that the Act necessarily obliges these individual
employers to forego the established unit and, merely because the Union
so requests, now to bargain on an individual basis instead.
The Board has long held, in many different contexts, that bargain-
ing history is a significant factor in determining appropriate units,22
and this is particularly true in cases where any party has sought to
sever one company's employees from a multiemployer unit 23 A mul-
tiemployer bargaining relationship comes into being with the original
consent of all interested parties. Contrary to the statement of the
majority, the Board has not, until now, held that "continuing consent"
of both parties is the basis for a multiemployer unit, such mutual con-
sent having been considered only in the establishment of such a unit 24
To the contrary, once a multiemployer unit is established, the statutory
objective of promoting effective collective bargaining makes the bar-
gaining history on a multiemployer basis a material factor in proper
unit determinations. Thus, a union may successfully defeat the desire
of an employer or group of employers to initiate association bargain-
ing by the simple act of refusing to agree 25 After a successful expe-
rience in group bargaining, however, even an employer's right to with-
draw is circumscribed, and it may be bound by the results of group
bargaining despite assertions of contrary wishes.26
It is apparent that an employer's right to withdraw its participa-
tion in, and negotiation through, an association or group is totally
different from the asserted right to require an employer to withdraw.
22 Continental Baking Company , 99 NLRB 777, 785. In that case the Board stated
that "[s]o far as it lies within the Board ' s power, we should not upset traditional meth-
ods of bargaining except for very cogent reasons. For 'collective bargaining is facilitated
by adhering to the methods of the past , in the absence of any indication that a change in
these methods has become necessary.' 11
23 Continental Baking Company , supra; The Stouffer Corp., 101 NLRB 1331, 1332;
MolineZli, Santoni & Freytes, d/b/a Panaderia La Reguladora etc., et al ., 118 NLRB 1010
1012 ; Thos. & Geo. M. Stone, Inc., at al., 120 NLRB 480, 482-483; The Standard Register
Company, Pacif o Dicision, 120 NLRB 1361 , 1363; The A. B. Hirschfeld Press, Inc., 140
NLRB 212, 216 ; Harbison-Walker Refractories Company, Leslie Works, 137 NLRB 1686.
94 Quality Limestone Products, Inc., at al., 153 NLRB 1009, footnote 2.
ss Chicago Metropolitan Home Builders Association , 119 NLRB 1184.
20 E.g., Anderson Lithograph Company, Inc., et al., 124 NLRB 920, enfd. sub nom.
N.L.R.B. v. Jeffries Banknote Co., 281 F. 2d 893 (C.A. 9) ; Detroit Window Cleaners
Union, Local 139 of the Building Service Employees ' International Union, AFL-CIO
( Daelyte Service Company ), 126 NLRB 63; Donaldson Sales, Inc., 141 NLRB 1303, 1305.
It is unnecessary in this case to consider whether, as the majority suggests in footnote 17,
employer withdrawals should be more limited.
THE EVENING NEWS ASSOCIATION, ETC. 1503
In fact, the term "union withdrawal" is misleading, for a union does
not withdraw unilaterally, but compels an employer to forego group
action and pursue an independent course. Thus, when a union with-
draws, it remains unaffected as an entity while requiring a change in
the very identity, nature, and composition of the employer with whom
bargaining is to be conducted. In contrast, an employer's withdrawal
has no impact on the union as an entity in any way. In this respect,
one could equate an employer participation in multiemployer bar-
gaining with a single union's engagement in multiunion (e.g., through
a council) bargaining.27 Where a group of unions representing dif-
ferent units of a single employer wish to consolidate, a single com-
bined unit can be achieved only with the employer's agreement 26
Once a broad unit is established by mutual consent, an employer could
not refuse to bargain with the multiunion group as the representative
of his employees; and while the question has never been decided, it
may be that one of the unions could, under the proper circumstances
and with prescribed rules, withdraw from the council in order to seek
an independent course of bargaining with the employer.29 In an
analogous situation involving multiplant units, the Board has taken
the view that a union could not change the unit by unilateral action.
In fact it has been held that an employer did not violate Section 8 (a)
(5) of the Act by refusing to deal separately with a local union desig-
nated by employees of one plant where the Board found that the plant
had merged with the preexisting multiplant unit.30
It is obvious by the nature of the relationship that a union's rights
and obligations are, and must be, different in many respects from those
of employers. The weakness in the majority's rationale lies in its cir-
cular reasoning, since its major premise is the same as its conclusion,
i.e,, it argues that because employers and unions must be treated alike,
they are entitled to equal treatment. Rules to provide equal treatment
a+ See, e.g., Indiana Limestone Company, Inc ., 136 NLRB 697; Francis L. Bennett and
Harold J. Bennett, d/b/a Bennett Stone Company, 139 NLRB 1422, at 1425; Bowman
Transportation, Inc., 142 NLRB 1093, 1095.
28 Cf. General Motors Corporation, Cadillac Motor Car Division, 120 NLRB 1215, 1220-
1221 ; Radio Corporation of America , 121 NLRB 633.
79 Cf. International Paper Company , 115 NLRB 17; The-American Brass Company, 120
NLRB 1276 , footnote 3; Florida Tile Industries, Inc., 130 NLRB 897; Jefferson Chemical
Company, Inc., 134 NLRB 1552 . I know of no cases, and the majority cites none, to
support the rule stated by it in footnote 13.
O Radio Corporation of America , 135 NLRB 980. The Board majority in that case, in
effect, held that a local union which had not consented to become part of a multiunion
bargaining group was nevertheless compelled to negotiate in a multiplant unit and did not
have the right to decline to become part of the group. That holding was inconsistent
with the voluntarism and freedom of election which the majority finds so persuasive
herein. I dissented in that case because I felt that, absent agreement of the bargaining
agent, it could not be bound into a group bargaining situation . Once having agreed,
however, a different standard would, in my opinion, be applicable.
1504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
must take the differences into consideration. In most instances 31 the
union , after agreeing to the multiemployer bargaining pattern and
engaging in such negotiations, has established uniform conditions and
benefits for employees; in fact, it can compel discussion on a group
basis in an effort to achieve such uniformity on any matter relating to,
wages, hours, and conditions of employment.$2 Where a union has
attained substantially uniform terms and conditions of employment
through multiemployer negotiations, it is my opinion that essential
objectives of this statute are defeated if we permit a union-absent
legitimate reason therefor-unilaterally to thwart the stability
achieved through years of fruitful association bargaining 33 Thus,
as in so many other cases which the Board must decide, "[t]he prob-
lem is the balancing of legitimate conflicting interests," a function
which the Supreme Court has considered to be within the Board's
special expertise 34
While it is impossible to make a complete catalogue of conditions
which I believe would warrant a union's action in fragmentizing the
multiemployer unit, there are a number of factors which undoubtedly
would be important in evaluating any given situation. I would, for
example , weigh the length and character of the bargaining history;
the nature of employment practices in the industry or among the par-
ticular employers; common control of, or participation in, labor rela-
tions by the employers; and the union's reasons for seeking to estab-
lish a different bargaining unit. It may be that where a brief history
of group bargaining exists (and especially if it has been unsuccessful
or unsatisfactory), the union's desires to adopt a different form of
bargaining should prevail without additional showing of justifica-
tion. Thus, the need for such justification should increase as the
length of successful bargaining history increases. And where employ-
ment practices in an industry are such that employees may work for a
different member of the group on any given day, as in those industries
where employees are hired on a daily basis through a hiring hall, or
where representatives of one employer participate in the resolution of
ffi Obviously , the instances to which I refer do not include such situations as existed in
The Kroger Co., 141 NLRB 564 , enfd . sub nom. Retail Clerks Union, No. 1550, et at.,
Retail Clerks v. N.L.R.B., 330 F. 2d 210 (C.A.D.C.), and Rice Lake Creamery Company,
131 NLRB 1270 , enfd. sub nom. General Drivers and Helpers Union , Local 662, Teamsters
v. N.L.R .B., 302 F. 2d 908, cert . denied 371 U.S. 827 , in which the parties retained their
rights to withdraw upon notice at any time prior to execution of a contract.
is Pacifio Coast Association of Pulp and Paper Manufacturers , 133 NLRB 690.
83 In the 10 to 20 years since the views expressed in the law review articles cited by
the majority were written , many of the apprehensions concerning multiple employer
bargaining have been dispelled . Even in the late 1940 's to mid-1950's, when those arti-
cles were published , the views there set forth were hardly unanimous . See, e.g., Koretz,
The Lockout Revisited , 7 Syracuse L. Rev. 264 ( 1956) ; Meltzer, Single -Employer and
Multi-Employer Lockouts Under the Taft-Hartley Act, 24 U. Chi . L. Rev. 70 (1956-57) ;
Meltzer , Lockouts Under the LMRA; new shadows on an old terrain , 28 U. Chi. L. Rev.
614 (1961).
"Footnote 12, supra.
THE EVENING NEWS ASSOCIATION, ETC.' 1505
grievances respecting employees of another, I might well feel that the
respective interests of the employers as a group and the employees as
a whole are so intertwined as to require that they be handled on the
broader basis.
As to circumstances warranting a change, a union's desire to avoid
the application of the Buffalo Linen doctrine 35 or to serve short-run
interests would not support abandonment of the historical unit. On
the other hand, an attempt to sever one or more employers from the
unit should probably succeed where the community of interest among
the employers in the group has ceased to exist because the same goods
or services are no longer produced or rendered or because the opera-
tions have moved to another geographic location. It is apparent in
these latter circumstances that the employees of such employers would
no longer have as much in common with the employees in the multi-
employer unit.
It is manifest that the Union's action here is.not justified by any of
these significant factors. The 25-year bargaining history is not shown
to have been unsuccessful in any material way. On the contrary, this
same pattern of bargaining has been successfully pursued by this
Union and by many other craft labor organizations representing other
units of the Respondents' employees. It also appears that many of
the employees here work part time for each of the Respondents, there
are common insurance and other benefits, and a single grievance pro-
cedure exists to handle grievances arising among employees of both
Employers. The Union's asserted object of strengthening its bar-
gaining position is unpersuasive, as this is but a euphemistic state-
ment of the real reason for the instant action-the Union's desire to
strike the Employers individually 36 This is not a long-run objective
which serves to foster industrial peace and stability. Rather, I agree
with the Trial Examiner that the fact that the bargaining power of
one party would be enhanced and the other diminished is not an over-
riding consideration in determining the issues here.
I do not read Retail Associates, 37 relied on by the Trial Examiner
and my colleagues, as requiring any different result. That Decision
does not indicate anything more than the Board's recognition of the
fact that a union has a right under some circumstances to require that
an employer not continue in multiemployer bargaining-and a state-
ment that in future cases, where the issues are squarely presented, the
ss N.L.R.B. v. Truck Drivers, Local Union No. 449, Teamsters (Buffalo Linen Supply
Go.), 353 U.S. 87. It is to be noted that the Supreme Court specifically reserved ruling
on the lower court's language as to the absolute equality of an employer 's and a union's
right to withdraw.
86 The assertion by the Union that the breaking up of the established unit is necessary
because the wishes of the smaller Free Press unit are overridden by the greater number
of employees in the larger News unit is not persuasive , as many intraunion devices are
available by which this condition could be eliminated.
87 Retail Assocwates, Inc., 120 NLRB 388.
206-446-66-vol. 154-96
1506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board would determine when that right might be exercised 38 The
issue is, I agree, now squarely presented insofar as one set of circum-
stances is concerned. While I also agree, as indicated above, that a
union may be entitled to require an employer to bargain separately
under some circumstances, I do not believe that this is such a case.
In sum, I would find that separate employer units are not appropri-
ate in the circumstances of this case, and would dismiss the complaint.
MEMBER ZAGORIA took no part in the consideration of the above Deci-
sion and Order.
31 Ibid., at 395.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon separate charges' duly filed by Detroit Newspaper Printing Pressmen's
Union Local No. 13, International Printing Pressmen and Assistants' Union of North
America, AFL-CIO, herein called the Union, against The Evening News Associa-
tion , Owner and Publisher of "The Detroit News," and Knight Newspapers, Inc.,
Owner and Publisher of "The Detroit Free Press," herein respectively called the
News and the Free Press, and collectively the Respondents, the General Counsel
issued a consolidated complaint dated March 16, 1964. In substance, the complaint
alleges that the Respondents were in violation of Section 8(a)(5) and (1) of the
National Labor Relations Act, as amended, because they refused to bargain with the
Union as the duly designated bargaining representative of journeymen and appren-
tice pressmen and flymen in their pressrooms on the basis of separate employer units
concerning rates of pay, wages, hours, and other conditions of employment. In their
answer, the Respondents deny the commission of any unfair labor practices, question
the appropriateness of single-employer units and assert that, in accordance with past
bargaining practices, they and their bargaining agent , Detroit Newspaper Publishers
Association, herein called the Association, have at all times been ready and willing
to engage in joint contract negotiations with the Union. On motion of the Associa-
tion, that organization was permitted to intervene in this proceeding.
On April 18 and 20, 1964, all parties entered into a stipulation whereby they agreed
that the matters involved in this proceeding be submitted for determination directly
to a Trial Examiner of the National Labor Relations Board on the basis of a record
consisting of the following: The charges filed in the instant cases, the consolidated
complaint, the Respondents' joint answer, and the Acting Regional Director's Order
permitting the Association to intervene; the transcript of the hearing and the formal
exhibits in Cases Nos. 7-CA-4366 and 7-CA-4367, with certain factual exceptions;
the Intermediate Report in 145 NLRB 996 involving the Respondents herein and a
number of labor organizations, including the Union herein, "to the extent that the
Trial Examiner herein properly deems the contents of said Intermediate Report
material and relevant to a decision in the instant case"; a copy of the collective-
bargaining agreement between the News, the Free Press, and the Union for the term
beginning November 28, 1962, and ending February 29, 1964; the briefs filed by
the parties in Cases Nos. 7-CA-4366 and 7-CA-4367; and, lastly, certain stipulated
facts. The parties further agreed to waive a hearing on the issues, the filing of briefs,
and oral argument before the Trial Examiner. The stipulation, however, expressly
reserved to the parties the right to take exception to the Trial Examiner's Decision
or to appeal therefrom, with accompanying briefs, to the Board or courts as provided
by law. Thereafter, Trial Examiner Paul Bisgyer was designated to act in this
proceeding.
Upon the stipulated record, I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENTS
The Respondent, News, a Michigan corporation, has its principal office and place
of business in Detroit, Michigan, where it publishes "The Detroit News," a daily and
1Separate charges against each Respondent were filed on February 25, 1964, and a
copy of the applicable charge was served on each of them on or about the next day.
THE EVENING NEWS ASSOCIATION, ETC. 1507
Sunday newspaper, and engages in other related operations. During the year 1963,
the Respondent derived gross revenue from its publishing business in excess of $2
million. During the same period it purchased and received materials valued in
excess of $500,000 which were shipped to its Detroit plant directly from points out-
side that State.
The Respondent, Free Press, an Ohio corporation, has maintained its principal
office in Detroit, Michigan, where it publishes "The Detroit Free Press," a daily and
Sunday newspaper, and engages in other related operations. During 1963, its gross
revenue from its publishing business exceeded $2 million. During this period it also
purchased and received materials valued at more than $500,000 which were shipped
to its Detroit plant from points outside that State.
In the course and conduct of their operations, both Respondents hold membership
in, or subscribe to, interstate news services, including United Press International and
Associated Press; publish nationally syndicated features; and advertise nationally
sold products.
The Respondents admit, and I find, that they are, and at all material times were,
engaged in commerce within the meaning of Section 2(6) and (7) of the Act. I
further find that they meet the Board's standards for the assertion of jurisdiction over
employers in the newspaper industry.
II. THE LABOR ORGANIZATION INVOLVED
It is conceded that the Union is a labor organization within the meaning of Section
2(5) of the Act.
Ill. THE UNFAIR LABOR PRACTICES
The broad question here presented is whether the Respondents, who have engaged
in joint bargaining and negotiated joint labor agreements with the Union over a
period of some 25 years, may lawfully refuse to bargain for a new contract on an
individual employer basis demanded by the Union, and insist upon following their
traditional pattern of multiemployer negotiations. Determination of this issue turns
upon the answer to the novel question whether a labor organization should be
accorded the same right as that enjoyed by employers to withdraw at a proper time
from an established multiemployer bargaining unit in order to pursue a separate
course of dealing with the individual employers. This was a question on which the
Supreme Court in Buffalo Linen 2 expressly reserved decision until presented in the
appropriate case . The relevant facts are not in dispute and are recited below.
A. The facts
For the past 25 years the Respondents, concededly distinct employer entities, have
bargained as a single unit with the Union as the exclusive representative of their
journeymen and apprentice pressmen and Hymen. Representing the Respondents as
their bargaining agent in the negotiations since 1945 has been the Association, which
they had formed and in which they are now the only members.3 The Union is but
one of at least nine labor organizations with whom the Association and the Respond-
ents have separately bargained on a multiemployer basis for the craft or unit of
employees respectively represented by these organizations .4 Such negotiations have
resulted in successive contracts signed by the Respondents, the Association, and the
Union. The last contract so negotiated with the Union was executed on Novem-
ber 28, 1962, for a term expiring on February 29, 1964, subject to automatic renewal
for 1 year in the absence of written notice to modify given by either party not less
than 60 days prior to the expiration date.
Pursuant to the terms of the latest contract, the Union on December 27, 1963, sent
separate letters, identical except for names, to each Respondent with a copy to the
Association, notifying them of the Union's desire to terminate their agreement and
enclosing a list of proposed changes to be included in a new contract. In addition,
2N.L.R.B . v. Truck Drivers Local Union No. 449, Teamsters ( Buffalo Linen Supply
Co.), 353 U.S . 87, 94 , footnote 22, where the Supreme Court noted that the union 's strike
was actually not an attempt to withdraw from a multiemployer unit.
8 Until November 1960, the publisher of the Times, another Detroit newspaper , was also
a member of the Association and part of the multiemployer bargaining group. On that
date , that company went out of existence.
The Association also assists the Respondents in the adjustment of grievances and
advises them on other matters pertaining to labor relations.
A There are also about five other unions with whom the Respondents and the Asso-
ciation deal separately on an individual employer basis.
1508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the letter advised each Respondent that the Union demanded that the negotiations
for a new contract covering printing pressmen be conducted "separately and indi-
vidually" but "not jointly" with the other Respondent. It also acknowledged each
Respondent's right to "choose its bargaining representative as provided by, law,"
with whom the Union was prepared to bargain.
On January 16, 1964, Lawrence A. Wallace, the executive secretary of the Asso-
ciation, on behalf of the Respondents, replied to the Union's letter, pointing out that
As you know, all negotiations with craft unions, including your own have, since
1945, been conducted on behalf of The Detroit News and The Detroit Free
Press by a committee composed of this Association's Executive Secretary as
Chairman and a representative of each of these employers, and such negotiations
have resulted in a joint contract with your Union.
He also informed the Union that it was the Respondents' "desire and intention to
continue this same method and procedure of contract negotiations and, as in the past,
that negotiations result in a joint contract." Wallace further stated that the Respond-
ents' contract proposals would be mailed in a week or so.
As promised, the Association, on January 30, forwarded to the Union the Pub-
lishers' new contract proposals and scheduled the first negotiating session for Febru-
ary 5 at the Association's offices. The Union responded to this communication by
addressing separate letters on February 4 to each Respondent in which it voiced the
view that the Respondents' January 30 letter was "another indication that [the Com-
panies were] . rejecting the demand . . . [of the Union] for separate negotia-
tions . . ." The Union also stated that it was repeating "its insistence on a separate
bargaining unit for the employees" of each Company and that the Union's position
was "supported by the National Labor Relations Act, as amended." Respecting the
proposed negotiating session on February 5, the Union expressed a willingness to
meet with the Respondents "only if this meeting is conducted on the basis of a sepa-
rate bargaining unit for each Publisher."
The same day the Association promptly replied by telegram in which it reiterated
"the desire and intention of these Newspapers to continue joint negotiations conducted
by this Association on their behalf resulting in a joint contract with your Union."
The Association also informed the Union that it was ready to meet with the Union
at the scheduled time and date "to negotiate a joint contract or to hear . . . [the
Union's] reasons for ... [its] insistence upon separate contracts." In what appears
to be the final exchange between the parties, at least for the purposes of this case,
the Union, on February 5, telegraphed its rejection of the Respondents' proposed
joint bargaining and expressed its willingness to begin negotiations immediately "on
the basis of separate bargaining units for each Publisher."
As indicated previously, the Union, on February 25, filed charges against each
Respondent, alleging that each Respondent refused to bargain with the Union respect-
ing its own employees' terms and conditions of employment and thereby violated
Section 8(a)(5) and (1) of the Act.
B. Analysis-concluding findings
The critical question here to be decided is whether the Union has a right com-
parable to employers to withdraw from an established multiemployer bargaining
-unit at a time when the parties' collective-bargaining agreement, by its terms, could
be opened for renegotiation and to insist on bargaining on the basis of single-employer
units. If this question is answered in the affirmative and therefore the Union's pro-
posed units would be appropriate, then, under settled Board and court precedent, the
Respondents' refusal to bargain with the Union in separate-employer units would
be violative of their statutory bargaining obligation, regardless of their good faith,5
in view of the Union's undeniable status as majority representative of each Respond-
ent's employees involved herein.
Since early in the administration of the Act, the Board has held that under certain
circumstances a multiemployer unit may be appropriate for collective-bargaining
purposes, even though the Act specifically authorizes the Board to decide whether an
"employer unit, craft unit, plant unit, or subdivision thereof," is appropriate.6 In so
B Tom Thumb Stores, Inc., 123 NLRB 833, 835 (Member Leedom dissenting) ; United
Butchers Abattoir, Inc., 123 NLRB 946, 957.
B Section 8(b) of the Act, in relevant part, provides that "the Board shall decide in
each case whether, in order to assure to employees the fullest freedom in exercising the
rights guaranteed by the Act, the unit appropriate for the purposes of collective bargain-
ing shall be the employer unit, craft unit, plant unit, or subdivision thereof. .. .
THE EVENING NEWS ASSOCIATION, ETC. 1509
doing, the Board has recognized a familiar pattern of industrial relations which long
antedated the original Wagner Act and thereafter "had its greatest expansion .. .
because employers have sought through group bargaining to match increased union
strength." 7 However, because multiemployer bargaining is essentially consensual
in nature, having its roots in the parties' voluntary acceptance of this method of bar-
gaining, the Board has consistently held that the employer-parties to this relationship
had the right to withdraw from the group unit to pursue an individual course of
dealing with the union, despite a long history of multiemployer bargaining. Signifi-
cantly, the employer's reason for withdrawing has never been the subject of Board
inquiry, although two limitations have been imposed on the exercise of this right
in furtherance of the statutory objective of fostering and maintaining stability in
labor relations. One requirement has been that the withdrawal be unequivocal and
not a mere sham or pretense for strategic purposes; the other, that the withdrawal
be made at a proper time. While the Board has not precisely defined the proper
time, one thing is clear and that is that the time prescribed in the parties' contract
for renegotiating its terms is opportune.8
Until its decision in the Retail Associates case,9 the Board had not expressly con-
ceded that a labor organization possessed the same right that an employer enjoyed
to abandon an established multiemployer pattern of bargaining, without the employ-
ers' consent. Although the Board in that case found it unnecessary to decide this
broad question because the union's conduct there under settled precedent applicable
to employer withdrawals, was not unequivocal but, on the contrary, clearly revealed
that the union had not abandoned its original objective of seeking associationwide
bargaining and obtaining a contract with the Association, a majority of the Board
thought it fitting to express their views regarding this problem, as follows (p. 395) : 10
. 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 ensure sta-
bility 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. [Emphasis supplied.]
This announced prospective policy of equality of treatment of employers and
unions appears to me to be dictated by the Act itself. Section 9(c) (2) provides
that in "determining whether or not a question of representation affecting commerce
exists, the same regulations and rules of decision shall apply irrespective of the
identity of the persons filing the [representation] petition or the kind of relief
sought ." 11 While this restriction on Board power is imposed in the section
relating to representation proceedings, the statutory language is not so limited to
exclude refusal-to-bargain complaint cases. Moreover, it has been the Board's uni-
form practice to apply in complaint cases of this type controlling Board precedent
developed in representation cases in determining appropriate unit issues, such as that
involved in the instant proceeding.12 This concept of equal treatment also finds
7N.L.R.B. v. Truck Drivers Local Union No. 449 (Buffalo Linen Supply Co.), 353 U.S.
87, 94-95.
s Retail Associates, Inc., 120 NLRB 388, 393-395, and cases cited there.
Y Ibid.
10 Former Board Member Joseph A. Jenkins regarded such expression of views unnec-
essary to the case.
n Although legislative history of the 1947 Taft-Hartley amendments reveals that this
provision was inserted in the Act principally to assure independent unions fair and equal
treatment, the statutory language is explicit enough to apply to all labor organizations,
as well as employers who were given greater rights respecting the filing of representation
petitions than they had enjoyed before the amendments were passed.
12 See, for example, Fairbanks Dairy, Division of Cooperdale Dairy Company, Inc., 146
NLRB 893; Detroit Window Cleaners Union, Local 139 of the Building Service Employees
International Union, AFL-CIO ( Daelyte Service Company ), 126 NLRB 63.
1510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
support in the dictum of the Second Circuit Court of Appeals in the Buffalo Linen'
case 13 where it observed that "it would seem only fair that the union be accorded'
the same privilege of voluntary withdrawal as is enjoyed by the employer" because it
could perceive "no rational basis for holding, in any context, that at any time any
particular employer may, at his will, withdraw from bargaining through an employers'
association of which he is a member, while a union is not equally free to discontinue
bargaining through such an association, with respect to any particular employer
member."
In the instant case, there is nothing in the record indicating that the Union's with-
drawal was other than timely with reference to the contract's expiration date and
unequivocal for the purpose of bargaining separately with each Respondent on a
single-employer basis.14 Moreover, there is no evidence that, notwithstanding the
Union's withdrawal, it nevertheless resumed joint bargaining with the Respondents.
Had the Respondents exercised their time-honored right to abandon joint bargaining
under the same circumstances and in the same manner as the Union did here and
insisted upon separate employer contract negotiations, it can hardly be denied that
the Union, if it had refused, would have been in violation of its bargaining obliga-
tion under Section 8(b)(3) of the Act. For this reason, the question reserved in
Retail Associates is "squarely presented" here.
The Respondents and the Association, vigorously contend that the employers' right
of withdrawal should not be extended to labor organizations, in general, and the
Union, in particular. They seek to justify such disparate treatment on the ground
that there is an inherent difference between a union and employer withdrawal.lh
Specifically, they urge that, if the Union were permitted to withdraw from a multi-
employer unit it would nevertheless retain its "multiemployer union" character of
representing the employees of both Respondents and the collective strength implicit
in such organization, whereas the Respondents' Association, which was formed to
match the Union's economic power, would be destroyed 16 with each Respondent being
forced to bargain separately with the Union on a weakened single-employer basis.
In essence, it is the position of the Respondents and the Association that a union
withdrawal deprives the Respondents of an effective lockout weapon sanctioned by
the Supreme Court in Buffalo Linen, supra, to counteract and restrain "whipsaw"
18 Truck Drivers Local Union No. 449 (Buffalo Linen Supply Co.) v. N.L.R.B., 231 F.
2d 110, 115, 116 (C.A. 2), reversed by the Supreme Court on other grounds in N.L.R.B.
v. Truck Drivers Local, Union No. 449, 353 U.S. 87, 95. See also the dissent of former
Board Member Styles in Continental Baking Company, 99 NLRB 777, 785-790, and
Retail Clerks International Association Local 128 v. Leedom, 42 LRRM 2031, 2033
(D.C.D.C.), April 29, 1958.
14 In the Board's decision in The Evening News Association, etc., 145 NLRB 996, foot-
note 3, involving the same Respondents, the Board noted that before the Respondents
negotiated their 1961-63 joint agreement with another union, that union had made a
timely request for separate bargaining. However, because the union thereafter bargained
jointly with the Respondents and signed a joint contract, the Board found that the
multlemployer unit remained intact.
15 The assumption advanced by the Respondents and the Association in their brief that
an employer' s, unlike a union's, voluntary withdrawal from multiemployer bargaining
is usually to the employer's disadvantage is highly questionable as experience in Board
cases demonstrates.
1a This assertion is not entirely correct as the Respondents still can retain the Associa-
tion and utilize its services and thereby maintain a common approach to problems,
although at separate bargaining tables, as the Respondents have apparently been doing in
their dealings with the Teamsters and other unions with whom they have had separate
employer bargaining relationships. See, The Evening News Association, supra. Indeed,
the Union in its communications with the Respondents expressly acknowledged the Re-
spondents ' right to designate their own bargaining agent. For this reason, as well as
the absence of any coercion on the Union's part to force the Respondents to revoke the
Association's designation, there is no merit in the argument of the Respondents and the
Association that the Union's insistence on separate employer contract negotiations con-
stituted restraint and coercion of the Respondents in the selection of their bargaining
representative within the meaning of Section 8(b) (1) (B) of the Act. The cases relied
on by the Respondents and the Association that the Union's withdrawal violated this
provision and Section 8(b) (3) for refusing to bargain in the multlemployer unit are not
,applicable if, for no other reason , than the cited cases involved "whipsaw" strikes while
multlemployer negotiations were in progress.
THE EVENING NEWS ASSOCIATION, ETC. 1511
strikes 17 by the Union to compel acceptance of its demands. In that case the Supreme
Court held that where a labor organization engages in a "whipsaw" strike against
one member of a multiemployer bargaining group in support of its contract demands,
the other employer-members may temporarily lock out their employees as a defen-
sive measure to preserve the integrity and unity of their joint bargaining unit.
It cannot be seriously doubted that the lockout weapon has proved to be a valu-
able strike deterrent for employer-members of a joint bargaining group. This has
been especially so in the newspaper industry which, because of the integrated nature
of its operations, the perishability of its product, and the number of unions repre-
senting different crafts and units of employees, has been susceptible to repeated work
stoppages.18 Indeed, the Respondents themselves have had occasion to resort to
protective lockouts to counteract strike action directed against one of them by
various unions with which they have been dealing on a multiemployer basis.19 On
the other hand, while the Respondents' desire to continue their joint bargaining
arrangement is understandable, there is certainly nothing fundamentally unlawful
in the Union's determination to strengthen its bargaining hand by seeking to regain
an unhampered statutory right to strike 20 individual employers in recreated single-
employer units, if necessary to secure contract concessions.
It is thus quite clear that the principal reason for the opposition of the Respond-
ents and the Association to equal withdrawal privileges for the Union and the con-
comitant reestablishment of appropriate single-employer units is that the Union's
bargaining power would thereby be enhanced and the Respondents' would be pro
tanto diminished. However, this is not a valid consideration in determining the issue.
As indicated above, the Board is enjoined by Section 9(c) (2) of the Act to apply the
same rules of decision in resolving appropriate unit questions, "irrespective of the
identity of the persons" seeking relief.21 Moreover, were the Board to consider the
relative bargaining strength of the parties under different patterns of bargaining in
deciding such questions, it would actually be functioning "as an arbiter of the sort
of economic weapons the parties can use in seeking to gain acceptance of their
bargaining demands." 22 In my opinion, the Act does not vest that authority in the
"These are familiar union tactics whereby the union strikes individual employer-
members of a multiemployer bargaining group with the calculated purpose of forcing
successive capitulations to the union's demands . However , such a strike is a protected
concerted activity under Section 13 of the Act, unless it is in breach of contract or
in violation of an express statutory provision . N.L.R.B. v. Truck Drivers Local Union
No. 449 , supra, 96.
' Publishers' Association of New York City, et at., 139 NLRB 1092, affil. sub nom.
New York Mailers ' Union Number Six, ITU, AFL-CIO v. N.L.R B, 327 F 2d 292 (C.A. 2).
na The Evening News Association, supra. There, the Board vindicated the Respondents'
supportive lockout action where the locked -out employees were represented in a multi-
employer unit. However , the Board found that the Respondent News violated Section
8(a) (3) and (1) of the Act when it locked out employees who were represented by a
union on a single-employer basis.
81 Section 13 provides : "Nothing in this Act , except as specifically provided for herein,
shall be construed so as either to interfere with or impede or diminish in any way the
right to strike , or to affect the limitations or qualifications on that right." Indeed, this
right is not totally lost when exercised against individual members of the joint employer
group during the course of multiemployer negotiations , as the Supreme Court in Buffalo
Linen, supra, recognized . However , on balancing the legitimate but conflicting interests
of employees and employer-members of a joint bargaining group, the Court concluded that
it was permissible for the nonstruck employers to meet such economic pressure defensively.
211 find no merit in the contention of the Respondents and the Association that, if
employees desire separate employer units, they should be required to file a decertification
petition provided for in Section 9 of the Act. However, the Act does not restrict the
determination of appropriate unit questions to such a proceeding . Moreover, a decer-
tification petition would be subject to dismissal on the ground that an inappropriate unit
was sought, if the Respondents were correct that only employers have the privilege of
terminating a multiemployer unit or if a union and the employers should agree to
preserve the joint unit.
N.L.R .B. V. Insurance Agents' International Union (Prudential Insurance Company),
861 U .S. 477 , 497. There, the court held that the union did not refuse to bargain in
violation of Section 8 ( b) (3) simply because the Board disapproved of the harassing
tactics the union used during negotiations to force the company to agree to its terms.
1512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board and for the Board to exercise it would amount to an unwarranted intrusion
into the substantive aspects of the collective-bargaining process. • Such an assump-
tion of authority the Supreme Court in the Insurance Agents' case, supra, cautioned
the Board to avoid. In language so fitting to the instant case , the Court stated
(pp.488-489):
It must be realized that collective bargaining, under a system where the Govern-
ment does not attempt to control the results of negotiations , cannot be equated
with an academic collective search for truth-or even with what might be
thought to be the ideal of one . The parties-even granting the modification of
views that may come from a realization of economic interdependence-still
proceed from contrary and to an extent antagonistic viewpoints and concepts
of self-interest. The system has not reached the ideal of the philosophic notion
that perfect understanding among people would lead to perfect agreement among
them on values. The presence of economic weapons in reserve, and their actual
exercise on occasion by the parties, is part and parcel of the system that the
Wagner and Taft-Hartley Acts have recognized. Abstract logical analysis
might find inconsistency between the command of the statute to negotiate toward
an agreement in good faith and the legitimacy of the use of economic weapons,
frequently having the most serious effect upon individual workers and pro-
ductive enterprises, to induce one party to come to the terms desired by the
other. But the truth of the matter is that at the present statutory stage of our
national labor relations policy, the two factors-necessity for good-faith bargain-
ing between parties, and the availability of economic pressure devices to each
to make the other party incline to agree on one's terms-exist side by side.
[Emphasis supplied.]
Continuing, the Court noted that (p. 490) :
... if the Board could regulate the choice of economic weapons that may be
used as part of collective bargaining, it would be in a position to exercise con-
siderable influence upon the substantive terms on which the parties contract.
As the parties' own devices became more limited, the Government might have
to enter even more directly into the negotiation of collective agreements. Our
labor policy is not presently erected on a foundation of Government control of
the results of negotiations. See S. Rep. No. 105, 80th Cong., 1st Sess., p. 2.
Nor does it contain a charter for the National Labor Relations Board,to act at
large in equalizing disparities of bargaining power between employer and union.
[Emphasis supplied.]
Surely, the teaching of the Insurance Agents' case is that the Board lacks the power
to bar the Union here from abandoning the multiemployer bargaining unit to pursue
an individual course of dealing with each Respondent simply because it would enable
the Union in future negotiations to secure concessions which it would not otherwise
be in a position to obtain, to the disadvantage of the Respondents. Otherwise stated,
it is not for the Board to select that type of unit which will tend to balance the
bargaining strength of the parties.
The same can be said for the alternative argument of the Respondents and the
Association that the Board should deny the Union the withdrawal privileges enjoyed
by employers unless a compelling reason is furnished, although it is not suggested
that a similar condition be imposed on the employers themselves. Underlying this
contention is the theory that this result necessarily follows from a proper weighing
of the legitimate interests of the employees, the employers, and the public There
can be no doubt that Congress has committed to the Board in a proper case the
delicate and difficult primary responsibility of resolving conflicting interests to
effectuate national labor policy.23 However, under the guise of striking a balance,
Congress did not leave it to the Board to "define through its processes what economic
sanctions might be permitted negotiating parties" 24 and the condition under which
they might be employed. Yet, without any standards for measuring the economic
strength of the parties to a bargaining relationship, this is precisely what the
23 N.L.R B. v. Truck Drivers Local Union No. 449, etc. (Buffalo Linen Supply Co.),
353 U.S. 87, 96; N.L.R .B. v. Insurance Agents' Union, supra, 499-500.
2Insurance Agents' Union, supra, 500. The court also noted (at 498) that "Congress
had been rather specific when it has come to outlaw particular economic weapons on the
part of unions."
THE EVENING NEWS ASSOCIATION , ETC-' 1513,
Respondents and the Association request the Board to do . If it is not the availability
of economic weapons to the parties but the public interest in maintaining the multi-
employer unit that controls, the same proposed limitations on withdrawals from
that unit should be equally applicable to employers as to unions . Perhaps, it is in
this area of greater restraints on both the unions' and the employers ' right to withdraw
from an established pattern of multiemployer bargaining that the policies and purposes
of the Act can best be effectuated . That is to say, if this form of bargaining serves
the public interest well by stabilizing industrial relations , encouraging the peaceful
settlement of labor disputes , and minimizing industrial strife and interruptions of
commerce , as the Respondents and the Association urge , the Board may wish to
reconsider its rules relating to withdrawals from such units to make them more
restrictive for both employers and labor organizations alike, without regard to their
comparative economic strength . Anything short of equal treatment whereby employ-
ers are permitted to choose that form of bargaining which is calculated to afford them
the most advantageous bargaining position , while denying the same freedom to the
incumbent union, appears to me to be beyond the Board's authority.
Accordingly, as the Respondents have admittedly refused to bargain with the
Union in separate employer units , which I find to be appropriate under existing law,
I conclude that the Respondents violated Section 8(a) (5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above , occurring in con-
nection with their operations described in section - 1, above, have a close, intimate,
and substantial relationship to trade, traffic , and commerce among the several States
and tend to lead to labor disputes burdening and obstructing commerce and its
free flow.
V. THE REMEDY
Pursuant to Section 10(c) of the Act, I recommend that the Respondent cease and
desist from engaging in the unfair labor practices found herein and from engaging
in any like and related conduct and that they take certain affirmative action designed
to effectuate the policies of the Act.
I have found that the Respondents have refused to bargain collectively with the
Union as the exclusive representative of certain employees in separate appropriate
employer units , described below, concerning rates of pay , wages, hours , and other
terms and conditions of employment . Accordingly , I recommend that the Respond-
ents be ordered to bargain with the Union , upon request , with respect to these
matters and , if an understanding is reached , embody such understanding in a signed
agreement.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Each Respondent is engaged in commerce within the meaning of Section 2(6)
of the Act.
2. The Union is a labor organization within the meaning of Section 2 ( 5) of the
Act.
3. All journeymen and apprentice pressmen and Hymen employed in the press
department of each Respondent , exclusive of all other employees and supervisors as
defined in the Act, constitute separate appropriate units for purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
4. At all times material herein , the Union has been the exclusive bargaining repre-
sentative of the employees in the aforesaid appropriate units within the meaning of
Section 9(a) of the Act.
5. By refusing to bargain collectively with the Union as the exclusive representative
of the employees in the ' aforesaid separate appropriate units since on or about
December 27, 1963, each Respondent has engaged in and is engaging in unfair
labor practices in violation of Section 8(a)(5) of the Act.
6. By engaging in such refusal to bargain , each Respondent has interfered with,
restrained , and coerced its employees in the exercise of their statutory rights in
violation of Section 8(a) (1) of the Act.
7. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and ( 7)'of the Act.
1514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law and upon the entire
record in the case, and pursuant to Section 10(c) of the National Labor Relations
Act, as amended, it is recommended that:
A. The Respondent, The Evening News Association, Owner and Publisher of
"The Detroit News," Detroit, Michigan, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Detroit Newspaper Printing Pressmen's
Union Local No. 13, International Printing Pressmen and Assistants' Union of
North America, AFL-CIO, as the exclusive representative of all journeymen and
apprentice pressmen and flymen employed in the press department at its Detroit,
Michigan, plant, excluding all other employees and supervisors as defined in the
Act, concerning rates of pay, wages, hours, and other terms and conditions of
-employment.
(b) In any like or related manner interfering with the efforts of the above-named
Union to bargain collectively for the employees in the said unit.
2. Take the following affirmative action which is necessary to effectuate the
policies of the Act:
(a) Upon request, bargain collectively with the above-named Union, as the exclu-
sive representative of all the employees in the appropriate unit described above,
concerning rates of pay, wages, hours, and other terms and conditions of employ-
ment and, if an understanding is reached, embody such understanding in a signed
agreement.
(b) Post at its plant in Detroit, Michigan, copies of the attached notice marked
"Appendix A." 25 Copies of said notice, to be furnished by the Regional Director
for Region 7, shall, after being duly signed by the Respondent's representative, be
posted by the Respondent immediately upon receipt thereof, and maintained 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 to insure that said notices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director for Region 7, in writing, within 20 days from
the date of the receipt of this Recommended Order, as to what steps the Respondent
has taken to comply herewith.26
B. The Respondent, Knight Newspapers, Inc., Owner and Publisher of "The Detroit
Free Press," Detroit, Michigan, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Detroit Newspaper Printing Pressmen's
Union Local No. 13, International Printing Pressmen and Assistants' Union of North
America, AFL-CIO, as the exclusive representative of all journeymen and apprentice
pressmen and flymen employed in the press department at its Detroit, Michigan, plant,
excluding all other employees and supervisors as defined in the Act, concerning rates
of pay, wages, hours, and other terms and conditions of employment.
(b) In any like or related manner interfering with the efforts of the above-named
Union to bargain collectively for the employees in the said unit.
2. Take the following affirmative action which is necessary to effectuate the
policies of the Act:
(a) Upon request, bargain collectively with the above-named Union, as the
exclusive representative of all the employees in the appropriate unit described above,
concerning rates of pay, wages, hours, and other terms and conditions of employ-
ment and, if an understanding is reached, embody such understanding in a signed
agreement.
95 In the event that this Recommended Order be adopted by the Board , the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice . In the further event that the Board 's Order he enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals , Enforcing an Order " shall be substituted for the words "a Decision
and Order".
In the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read : "Notify the Regional Director for Region 7, in writing, within
10 days from the date of this Order, as to what steps the Respondent has taken to com-
ply herewith."
THE EVENING NEWS ASSOCIATION, ETC. 1515
(b) Post at its plant in Detroit, Michigan, copies of the attached notice marked
"Appendix B." 27 Copies of said notice, to be furnished by the Regional Director
for Region 7, shall, after being duly signed by the Respondent's representative, be
posted by the Respondent immediately upon receipt thereof, and maintained 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 to insure that said notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for Region 7, in writing, within 20 days from
the date of the receipt of this Recommended Order, as to what steps the Respondent
has taken to comply herewith.28
m See footnote 25, supra.
= See footnote 26, supra.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL bargain collectively, upon request, with Detroit Newspaper Printing
Pressmen's Union Local No. 13, International Printing Pressmen and Assistants'
Union of North America, AFL-CIO, as the exclusive representative of all our
employees described below with respect to rates of pay, wages, hours, and other
terms and conditions of employment and, if an understanding is reached, embody
such understanding in a signed agreement. The bargaining unit is:
All journeymen and apprentice pressmen and Hymen employed in the
press department at our Detroit, Michigan, plant, excluding all other
employees and supervisors as defined in the Act.
WE WILL NOT in any like or related manner interfere with the efforts of the
above-named Union to bargain collectively for the employees in the said unit.
THE EVENING NEWS ASSOCIATION, OWNER AND PUBLISHER OF
"THE DETROIT NEWS,"
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, 500 Book
Building, 1249 Washington Boulevard, Detroit, Michigan, Telephone No. 963-9330,
if they have any questions concerning this notice or compliance with its provisions.
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended , we hereby notify our employees that:
WE WILL bargain collectively , upon request , with Detroit Newspaper Printing
Pressmen 's Union Local No. 13, International Printing Pressmen and Assistants'
Union of North America, AFL-CIO, as the exclusive representative of all our
employees described below with respect to rates of pay, wages , hours, and other
terms and conditions of employment and, if an understanding is reached , embody
such understanding in a signed agreement . The bargaining unit is:
All journeymen and apprentice pressmen and flymen employed in the
press department at our Detroit , Michigan, plant, excluding all other
employees and supervisors as defined in the Act.
1516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any like or related manner interfere with the efforts of the
above-named Union to bargain collectively for the employees in the said unit:.
KNIGHT NEWSPAPERS, INC., . OWNER AND PUBLISHER OF
"THE DETROIT FREE PRESS,"
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 Oface, 500 Book
Building, 1249 Washington Boulevard, Detroit, Michigan, Telephone No. 963-9330,
if they have any questions concerning this notice or compliance with its provisions.
Peoples Service Drug Stores , Inc. and Retail Clerks International
Association , Local 698, AFL-CIO. Cases Nos. 8-CA-3528 and
8-CA-3538. September ^?4, 1965
DECISION AND ORDER
On April 2, 1965, Trial Examiner Ramey Donovan issued his Deci-
sion in the above-entitled proceeding, finding that Respondent had
engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, Respondent and the General Counsel filed excep-
tions to the Trial Examiner's Decision and supporting briefs.
Pursuant to Section 3(b) of the National Labor Relations Act, as
amended, the National Labor Relations Board has delegated its pow-
ers in connection with this case to a three-member panel [Chairman
McCulloch and Members Jenkins and Zagoria].
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 reviewed the Trial Exam-
iner's Decision, the exceptions, the briefs, and the entire record in the
case,1 and hereby adopts the findings, conclusions,2 and recommenda-
tions of the Trial Examiner as modified herein.' .
1 The General Counsel moved before the Trial Examiner to correct the transcript in
a, number of respects. Respondent opposed only item 7 of the motion. The Trial
Examiner made no disposition of the motion in his Decision. Accordingly , we shall grant
the General Counsel's motion except as to item 7, as we believe that the transcript more
accurately reflects the testimony of the witness involved than does the change proposed
in that item.
8 We note, but do not pass upon, the legality of the prehearing Interrogation of em -
ployees by Respondent 's counsel , as described by the Trial Examiner , in the absence of any
allegation by the General Counsel with respect thereto or exceptions to the Trial Ex-
aminer's failure to find a violation therein.
8 The Trial Examiner omitted, apparently by inadvertence , the cards of Glenna Williams
and Charles Henderson from his computation of the majority. The record shows that
Williams Identified a card she signed on April 28 and that Henderson identified a card
he signed on June 11. Accordingly , we shall count Williams' card as of both demand
dates, and Henderson ' s card as of the second demand date . The Trial Examiner found
154 NLRB No. 118.