Detroit Window Cleaners Union, Local 139, etc.

DETROIT WINDOW CLEANERS UNION, LOCAL 139, ETC 63 of Port Arthur, Texas, and Lake Charles, Louisiana, including masters and chief engineers,6 but excluding all supervisors As defined in the Act [Text of Direction of Election omitted from publication ] 6 The record does not show that the masters and chief engineers actually possess supervisory authority as defined in the Act Detroit Window Cleaners Union, Local 139 of the Building Serv- ice Employees' International Union, AFL-CIO and Daelyte Service Company. Case No 7-CB-384 January 12, 1960 DECISION AND ORDER On March 13, 1959, Trial Exam ner Eugene F, Frey issued his Intermediate Report in_ the above-entitled proceeding, finding that the Respondent had not engaged in certain unfair labor practices as alleged in the complaint and recommending that the complaint be dismissed, as set forth in the copy of the Intermediate Report at- tached hereto Thereafter, the General Counsel and the Respondent .filed exceptions to the Intermediate Report and supporting briefs 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 Inter- mediate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, to the extent consistent with our decision set forth below We agree with the Trial Examiner that the Respondent did not refuse to bargain with Daelyte Service Company, the Charging Party herein, in violation of Section 8(b) (3) and (1) (AY of the Act, by insisting that Daelyte sign the agreement which the Respondent negotiated with the Association For many years, the Respondent has bargained on a multiemployer basis with the Association which has represented its member- employers, including Daelyte As a result of such negotiations, sepa- rate successive contracts were executed by the Respondent and the Association and its individual members. In November 1956, about 2 months before the expiration of the 1955 agreement, Daelyte resigned from the Association However, neither Daelyte nor the Association notified the Respondent of the resignation until June 15, 1957 In the meantime, pursuant to tunely notice to reopen the 1955 agreement given by the Respondent in February 1957, the Association and the Respondent instituted negotiations for a new contract After 126 NLRB No. 18 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a number of meetings, the parties reached agreement on May 14, 1957. Although Daelyte did not participate in these negotiations, it kept itself informed of their progress through members of the Association. In addition, before the negotiated agreement was reduced to final printed form, Daelyte requested the Respondent to furnish it with an advance copy of the agreement which the Respondent did. There- after, on June 15, 1957, in accordance with past practice, the Re- spondent submitted to Daelyte printed copies of the agreement for signature. Daelyte, however, declined to sign the contract because it regarded the industry promotion fund and performance bond clauses illegal, although the others terms of the contract were acceptable to it. At this meeting, Daelyte informed the Respondent for the first time that it had resigned from the Association and did not consider itself bound by the Association-negotiated agreement. Thereafter, follow- ing unsuccessful efforts to persuade Daelyte to sign the agreement, the Respondent called a strike of the Company's employees on July 2. Two weeks later the strike was settled with Daelyte signing the con- tract, reserving, however, the right to submit to the Board the°ques- tion of the legality of the two disputed clauses. The complaint, in substance, alleges only that the Respondent un- lawfully refused to bargain with Daelyte on an individual employer basis. It does not allege, nor was evidence adduced to show, that the industry promotion fund and performance bond clauses were unlaw- ful; indeed, no such contention has ever been in this case. In these circumstances, we find, as did the Trial Examiner, that the disputed clauses were proper subjects for collective bargaining, which the Respondent and the Association were privileged to negotiate into their contract.' The General Counsel, contends, however, that the Respondent, whose good faith is not otherwise impugned, violated its statutory bargaining obligation, by insisting that Daelyte execute the contract negotiated with the Association because Daelyte had previously resigned from that organization. Regardless of Daelyte's resignation as a member of the Association, we find no merit in the General Counsel's contention. As indicated above, Daelyte never gave the Respondent notice that it had withdrawn from the multiemployer collective-bargaining unit or resigned from the Association until after contract negotiations had been concluded. Instead, it stood by while negotiations were being conducted, keeping informed of the progress of these negotiations, without giving the Respondent the slightest reason to believe that the Association was no longer bargaining on its behalf. Indeed, it was only after negotiations were concluded and after it had received a requested preliminary copy of the agreement and later a final printed 'Cf. NL.R.B. v. Wooster Division of Borg-Warner Corporation, 356 U.S 342. DETROIT WINDOW CLEANERS UNION, LOCAL 139, ETC. 65 copy that Daelyte notified the Respondent that it had resigned from the Association and was therefore not obligated to sign the agree- ment. Significantly, it asserted this position only because it believed that the industry promotion fund and performance bond clauses were "illegal." As found above, however, these clauses are not unlawful. In view of all the facts and circumstances in this case, we find that Daelyte was estopped from requiring the Respondent to bargain with it on an individual basis concerning the terms of a new ,contract and that the Respondent, therefore, did not refuse to bargain with Daelyte within the meaning of Section 8(b) (3) and (1) (A) of the Acts Accordingly, in agreement with the Trial Examiner, we shall dismiss the complaint in its entirety. [The Board dismissed the complaint.] - CHAIRMAN LEEDOM and MEMBER RODGERS took no part in the con- sideration of the above Decision and Order. 2 In making our determination herein , we do not adopt the Trial Examiner 's interpreta- tion of Retail Associates, Inc, 120 NLRB 388 In that case a majority of the Board by way of dicta set forth certain ground rules which it indicated it would consider in future appropriate cases Member Jenkins there stated that he considered "it inappropriate to express . . . a view with respect to ground rules which, in his opinion, are inapplicable to this case " We also do not adopt the Trial Examiner's interpretation of earlier Board decisions, regarding the requirement of notice for withdrawal from multiemployer units. INTERMEDIATE REPORT STATEMENT OF THE CASE The issue in this case is, whether Detroit Window Cleaners Union, Local 139 of the Building Service Employees ' International Union, AFL-CIO, hereafter called the Union, in the course of bargaining negotiations with Daelyte Service Company, herein called Daelyte or the Employer, refused to bargain collectively with the Employer in violation of Section 8(b)(3) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act, by its insistence that the Employer sign a collective-bargaining contract containing certain provisions described below. The issue arises on a complaint issued against the Union on July 24, 1958, by the General Counsel of the National Labor Relations Board, herein called General Counsel and the Board , through the Board's Regional Director for the Seventh Region, on the basis of a charge duly filed by the Employer, and the Union's answer denying the commission of any unfair labor practices. Pursuant to notice a hearing was held in Detroit, Michigan, on October 20 and 21, 1958, before the duly designated Trial Examiner, in which all parties except the Employer participated and were represented by counsel. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses , to introduce evidence bearing on the issues , and to present oral argument and briefs. Oral argument was waived, but all parties filed written briefs which have been carefully considered by the Trial Examiner. Upon the entire record in the case, and from my observation of the witnesses on the stand, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER The Employer is a Michigan corporation , with its principal office and place of business located in Detroit , Michigan, where it is engaged in the business of in- 554461=60-vol. 126-6 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dustrial building maintenance, including window cleaning, painting, building clean- ing, and janitor service . In the course of its operations, the Employer annually performs services valued in excess of $ 100,000 for industrial concerns located in the State of Michigan, each of whom, in turn, annually ships from its Michigan plants products valued in excess of $50,000 directly to points outside the State of Michigan. I find that the Employer is and has been engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED , AND ITS AGENTS The Union is a labor organization within the meaning of Section 2(5) of the Act which admits to membership employees of the Employer . Bert Palmer and Loren Hayes were at all times material herein president and business agent , respectively, of the Union, and were agents of the Union. III. THE UNFAIR LABOR PRACTICES A. Sequence of events All persons employed by the Employer who perform window cleaning work, excluding office clerical , technical and professional employees , watchmen, and supervisors, constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act. At all times material herein, the Union has been designated by a majority of employees in the unit aforesaid as their representative for purposes of collective bargaining, and by virtue of Section 9(a) of the Act it has been and now is the exclusive representative of all employees in said unit for purposes of collective bargaining with respect to rates of pay, wages, hours of employment, or other conditions of employment. For many years Window Cleaning Contractors Association of Detroit , herein called the Association, has been a voluntary association of window cleaning firms located in the Detroit area, which has been authorized by its members to negotiate on their behalf collective-bargaining contracts with the Union and other labor organizations. The Employer was a member of the Association from its inception until November 14, 1956, when it formally resigned from that body. Since that date the Employer has taken no part in the activities of the Association, including its negotiations of collective-bargaining contracts with the Union. At the time of its resignation , the Employer was operating under the terms of a collective-bargaining agreement executed by the Association for its members on or about April 15, 1955 , which was due to expire April 15, 1957. After its resigna- tion, the Employer continued to honor the terms of that agreement , in accordance with a trade practice of operating under terms of an existing contract until a new one is negotiated and executed. On February 15, 1957 , the Union notified all window cleaning companies covered by the 1955 contract (which included members of the Association and nonmembers or "independent" employers, including the Employer ) in writing of the expiration date of that contract, and requested a meeting for negotiation of a new contract. Shortly thereafter, a bargaining committee of the Association and the Union began negotiations. By May 9, 1957, they had agreed on most of the substantial terms of a new contract, including wage rates and other financial provisions , and on that date the Union sent a letter to the Employer and other "independents ," advising them of the agreement with the Association on a new 2 -year contract which would not be available in completed written form for several weeks, and reciting increased wage rates and other financial provisions , with the effective date of each, contained in it. The parties did not reach complete agreement on all terms and wording of the new contract until about May 14. The membership of the Union ratified the contract in final form on or about May 20, 1957. The Employer took no part in the negotiations between the Association and Union, but learned of their progress through informal reports from Association members. About the end of May 1957, all non-Association window cleaning contractors, including the Employer, received invitations by telephone from the Union to attend a meeting of Association members with the Union on June 4, to review and discuss the final draft of the new contract. The Employer did not attend the meeting. At that session, the contract was explained in detail to all employers present, and arrangements were made for printing copies for distribution to all concerns in the industry, so that absent employers could examine the contract , in preparation for a later meeting of all employers for formal execution of the contract. DETROIT WINDOW CLEANERS UNION, LOCAL 139, ETC. 67 On or about June 15, 1957, at the prior request of Horace Boutell, vice president of the Employer, Hayes brought an advance copy of the contract to the Employer's office. President Harry Teegarden of the Employer looked it over casually and told Hayes that he had some doubts about some provisions, but said he would ex- amine it fully and give Hayes his opinion about it later, after he had discussed it with his attorney. Teegarden and Boutell then reviewed the contract, and found no objection to its financial and other provisions, except two new provisions, clause (5) "Industry Promotion and Improvement Fund," and clause (15) "Guaranty of Contract Liability."' They consulted counsel who expressed the opinion that these clauses were illegal, and advised the Employer not to sign any contract containing them. A day or so after his first visit, Hayes brought additional printed copies of the contract to Teegarden, and asked him to sign them. After some discussion of the contract terms, Teegarden told Hayes that the Employer found all provisions of the contract acceptable except the clauses quoted above, and that the Employer, on advice of counsel, would not sign the contract if it contained those clauses, as it considered them illegal, and that counsel had suggested the Employer take the question of their legality to the National Labor Relations Board for decision. Hayes replied that the two clauses would have to remain in the contract, as they had been negotiated between the contractors' Association and the Union. Teegarden told Hayes that the Employer was no longer a member of the Association. On June 19, 1957, Boutell attended a meeting of Association members with Union Agents Palmer and Hayes, to which nonmember employers had been invited by the Association. At the meeting, Association members and some nonmember em- ployers signed the contract, but Boutell and representatives of several other non- member employers refused to sign it at the time because it contained the two clauses mentioned above. When Boutell voiced his objection to the union agents, they stated that they felt the two provisions would not stand in the way of a working arrangement between the Union and the Employer, but Hayes said both clauses would have to remain in any contract with the Employer because they were the result of negotiation with the Association. Boutell told the union agents he knew the contract had been negotiated with the Association, but the Employer was ob- jecting to these clauses, not as an Association member, but as a nonmember. He also told them that, until a new contract was consummated between the Union and the Employer, the latter would continue to operate under the terms of the expired contract. After the June 19 meeting, Rolland O'Hare, counsel for the Union, was authorized by the Union to discuss the problem further with counsel for the objecting employers, in an effort to work out a solution. A meeting was held on June 26, 1957, between O'Hare, Guy Bratton, attorney for the Employer, and Harry Davidow, attorney for Michigan Window Cleaning Company, another "independent" em- ployer. Davidow and Bratton contended that clauses 5 and 15 were illegal for several reasons: They argued clause 5 was an illegal invasion of managerial pre- rogative, and questioned why the clause made no provision for union representation on the board of trustees managing the fund. O'Hare replied that he had concluded that "under Section 302 of the Taft-Hartley Act it was perhaps illegal, as we all know," and he was fearful that direct union participation in management of the fund might conceivably be considered a violation of Section 302, the antikickback provision, of the Act, hence he had insisted that the fund be set up under the sole management of employer trustees. As justification for the Union's insistence on the clause, O'Hare recited the experience of other unions with similar funds, which he said had been used by employers in other industries to publicize the use of their products, resulting in increase in their business and employment of union labor; he felt that use of a similar fund to publicize the employment of skilled journeymen window cleaners, as against unskilled labor pulled off the street, would benefit both the window-cleaning companies and their employees in like manner. To this argument, Davidow said his client had its own advertising program and did not need any "industry fund." Bratton took the same position on behalf of the Employer.2 As to the performance bond requirements of clause 15, both em- ployer representatives argued it was against public policy, and that their clients had never been delinquent in meeting their obligations under prior contracts, that both were financially responsible, hence the bond provisions were an unwarranted burden 1 Copies of these clauses are set forth in Appendix A hereto. During the discussion, Davidow was the main spokesman for both employers ; Bratton said little other than to agree with Davidow's statements , and O'Hare understood that Bratton's views coincided with those of Davidow throughout. 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on them and should be eliminated from their contracts. During the meeting there was no proposal by either side for changes in the form or wording of either clause. The meeting ended without any agreement, but with opposing counsel exchanging threats to file charges with the Board. The parties made no arrangement for future meetings. O'Hare reported at once to Hayes on the failure of the above meeting, and the union executive board on June 26, 1957, ordered that the employees of the Em- ployer and other contractors who had refused to sign the Association contract, be called out on strike. On Friday, June 28, 1957, about 4 p.m., Hayes called the Employer's office in an effort to get a contract executed before the following Monday, as the union executive board had insisted that he get a contract signed or call a strike. Neither Teegarden nor Boutell was available, so Hayes left a message for Teegarden that the Employer had until 4:30 p.m. to sign the contract at the union office, "or else." Shortly after, Hayes' secretary called the Employer's office and advised Teegarden's secretary that the men would strike if the Employer did not come to the union office and sign the contract. Shortly after 4:30 p.m., Hayes himself called again and told Teegarden's secretary she had better contact some officer to sign the contract. Hayes called the strike at the Employer's plant on July 2. Some employees stopped work that day, and others followed suit on succeeding days until all were on strike by July 8 and remained out until July 16. When Teegarden talked to the union steward, Trink Wells, the day the strike started, the latter replied that the men would not work unless the Employer signed the contract, as it was against union rules for them to work in a shop without a signed contract During the first week of the strike, Teegarden .asked the president of the Associa- tion to intercede with the Union in an effort to get the employees back to work while the Employer and the Union negotiated over the disputed clauses. That official reported back, after talking to union officials, that there was nothing "we" could do until the Employer signed the contract. During the strike Hayes applied- further economic pressure on the Employer by warning its employees against per- forming work other than window cleaning for the Employer. On July 11 or 12, 1957, Hayes advised the Employer that it had better not have any men working, as they were all on strike. Teegarden at once called Hayes and said he wanted to discuss the contract and figure out a way to get his men back to work. On July 15, 1957, Teegarden and Hayes met at the Employer's office. Teegarden told Hayes that, in order to get the men back to work, and on advice of counsel, he would sign the contract containing the two disputed clauses under protest, and would then abide by all terms of the contract except those clauses, but would take the issue regarding them to the National Labor Relations Board, and would abide by its decision . Hayes agreed to this procedure, while maintaining both clauses were legal. Both men then signed the contract, and at the same time signed a separate document reading as follows: JULY 15, 1957. It is expressly understood and agreed that this contract is signed under protest with specific reference to Paragraphs #5 and # 15, it being our contention that these provisions are illegal. It is further understood and agreed that the employer reserves the right to contest the validity of said provisions in the proper form. DAELYTE SERVICE COMPANY, Witness MARY Lou LOHR (Signed) HARRY TEEGARDEN, President. Witness ----------------- (Signed) L. HAYES,3 Local 139 Business Agent. The employees returned to work July 16, with the exception of two or three who had been out of town and could not be reached by the Union. Since the execution of the contract, the Employer has complied with all its terms and provisions retroactively to April 15, 1957, except the two disputed clauses. B. Contentions of the parties, and concluding findings It is clear from the above facts, and I find, that in its few discussions with the Employer before the strike, the Union always insisted that the Employer execute ' Hayes affixed his signature merely as a witness to the signature of Teegarden, and the latter admits that he did not consider Hayes' signature as an admission of the illegality of the two clauses DETROIT WINDOW CLEANERS UNION, LOCAL 139, ETC. 69 only the Association contract containing the disputed clauses, and would not agree to accept a contract without them, and that it called the strike on July 15, 1957, to enforce that demand, and maintained it until the Employer capitulated by signing the contract with those clauses. During its discussions with the Employer, there was no attempt by the Union to bargain on the subject of those clauses by inviting or suggesting, or even leaving the door open for suggestions of, substitute provisions or proposals. At the hearing, Agent Hayes took the position that, once a majority of the employers had signed the Association contract, the Union would never favor the Employer as against other contractors by giving it a contract omitting the disputed clauses; he testified that, at most, the Union might be willing now to let the Employer change the wording of clauses 5 and 15, "as long as it amounted to the same thing," but would never agree to let the Employer omit payment of money into a fund, whatever it is called, or forego the procurement of some type of per- formance band? Hence, the Union has been at all times adamant in its insistence on the Employer's acceptance of these clauses, and nothing else. This poses the basic question whether the Union's adamant insistence on them constituted a refusal to bargain within the meaning of Section 8(b) (3) of the Act. However, the Union's brief raises a preliminary question which should be considered first. 1. The effect of the Employer's resignation from the Association The Union argues that the Employer's resignation from the Association in November 1956 was not an effective withdrawal from multiemployer bargaining because of the Employer's failure to give the Union timely and effective notice thereof, hence the Employer was bound by the 1957 bargaining negotiations between the Association and the Union, and the contract, which resulted therefrom, and the Union did not violate the Act by exerting economic pressure to compel the Employer to sign that contract. The record shows that although the Employer resigned from the Association on November 14, 1956, about 3 months before the Union opened negotiations with the Association for a new contract, the Union never received specific notice of the resignation from the Employer, either directly or through the Association, until about June 15, 1957, which was a little over a month after the Association and Union had reached a meeting of the minds, and about 4 days before they met to sign the completed contract. General Counsel argues that the withdrawal at this late date was sincere, unequivocal, permanent, and timely, and hence effective to withdraw the Employer completely from the multiemployer bargaining unit. The Board has repeatedly held that withdrawal of a party from a multiemployer bargaining unit is effective to change the bargaining unit only if the party "unequivo- cally manifests its intention to withdraw from multiemployer bargaining and to pursue an individual course of action after proper notice at an appropriate time." 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 .-9 I find from the record, and the Union does not dispute the fact, that , so far as the Association was concerned, the Employer's withdrawal in 1956 was unequivocal, in good faith, timely, and permanent.6 The Union argues, however, that the Em- ployer never gave it timely notice of its intention to withdraw from multiemployer bargaining, hence the Employer is bound by the Association contract. I find merit in this contention. The Employer's withdrawal from the Association was never communicated to the Union until June 15, 1957, after the 1957 negotiations with the Association were concluded and only the final step of execution of the contract remained. Prior to that date, the Union had every reason to believe that the Employer was still in the multiemployer unit for purposes of collective bargaining. The Employer was one of the largest companies in the industry, had been a charter member of the Associa- tion and represented by it throughout its life in collective bargaining with the Union, and representatives of the Employer had been on the bargaining committee of the Association during every negotiation up to the 1957 meetings. While a Daelyte 41 do not credit equivocal testimony of the Union's counsel regarding his discussions with Daelyte counsel during the strike which intimates that the Union was willing to "go back into negotiations and negotiate from the beginning with you," but was not willing to consider the Association contract as a "group of proposals," for this testimony conflicts with Hayes' clear admissions above 5 McAnary & Welter, Inc., 115 NLRB 1029, 1031 ; Retail Associates, Inc., 120 NLRB 388. 6 The Employer's reason for withdrawal is immaterial . See Bearing & Rim Supply Co, 107 NLRB 101, 103. 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representative was not on that committee during the 1957 negotiations, this wis not unusual, for not all members of the Association had a representative on the com- mittee, the composition of which fluctuated from year to year. Hence, mere absence of a Daelyte representative in 1957 was not a circumstance which of itself could be expected to warn the Union that the Employer was no longer in the Association. The Association maintained no written list of its members which was available to, the public or the Union at any time, so that the Union had no ready way of checking on the precise employers involved in the multiemployer unit during bargaining sessions, even if it wanted to do so. In fact, it had no reason to do so in 1957, for in past negotiations the Association bargaining committee had always contacted the "independent" employers in an effort to bring them into negotiations personally or by proxy, and when negotiations were concluded by a contract, that document had always been presented to the "independents" for their consideration, and they usually "fell in line" by signing the same contract as the Association; and the record discloses no unusual circumstances attending the 1957 negotiations, so far as the Employer's apparent vicarious participation in them is concerned, which would indicate to the Union that past practices would not prevail. The normalcy of the negotiations in this respect is highlighted by the contrasting situation involving Michigan Window Cleaning Company, another "independent." The Union had had trouble with Michigan in the past, hence it made specific inquiry during the 1957 negotiations about its participation therein, and learned that Michigan had given the Association written power of attorney to represent it during the negotiations. In contrast, the Union's relations with the Employer after its withdrawal from the Association were normal: the Employer continued to honor the Association contract of 1955, and dealt amicably with the Union on grievances right up to the 1957 negotiations; and during those negotiations Business Agent Hayes visited the Em- ployer's plant weekly to collect union dues, but was never advised even informally by employer officials that it was no longer in the Association. Hence, the Union had no reason to make the same inquiry about the Employer's status vis-a-vis the long-standing multiemployer unit as it made regarding Michigan. I am therefore of the opinion that in the circumstances disclosed in this case, it was the clear duty of the Employer to notify the Union in clear and unequivocal terms, before the start of the 1957 negotiations, of its prior withdrawal from the Association nand multiemployer bargaining, and of its intent to divest itself of any connection with or responsibility for the existing multiemployer bargaining, and to engage thereafter in individual bargaining with the Union. The Board has held that withdrawal of an employer from a multiemployer bar- gaining unit is timely and effective where it occurred substantially before actual joint negotiation and consummation of a contract involving that unit (Pacific Metals Company, Ltd., et al., 91 NLRB 696, 699, 700), and even where it took place after due notice of termination or modification of an existing agreement, or after its expiration date, or before or during joint negotiation of a new contract. Sullivan Mining Company, 101 NLRB 1366, 1369; 20th Century Press, 107 NLRB 292, 293; Stamford Wall Paper, Inc., 92 NLRB 1173, 1175, 1176; Jones & Anderson Logging Company, Inc., 114 NLRB 1203, 1205; Milk and Ice Cream Dealers of the Greater Cincinnati, Ohio, Area, etc., 94 NLRB 23, 25; York Transfer & Storage Co., 107 NLRB 139, 141, 142; W. A. Swanson Logging Co., et al., 111 NLRB 495, 496, 497. On the other hand, the Board has rejected a withdrawal by an employer as untimely and ineffective when it was attempted at the conclusion of joint negotiations in which the employer had participated, and only when the completed contract was presented to him by the union for signature. McAnary & Welter, Inc., supra, at 1032. Applying the same principle to a labor organization, the Board in Sheet Metal Workers Union, Local 65, etc. (Inland Steel Products Company), 120 NLRB 1678, found a union guilty of a refusal to bargain in violation of Section 8(b)(3) of the Act, where its agent refused to sign an agreement, terms of which had previously been negotiated and agreed upon by representatives of both employer and union, and rejected as ineffective the union's disclaimer of representation of employees in the unit which was communicated to the employer long after its refusal to sign the agreement. Although the Board in these cases did not specifically state that effectiveness of the withdrawal depended on notice thereof to the labor organization involved, the fact of such notice appears in each, and the Board specifically found or adverted to that fact, hence it is clear that actual notice to the labor organization at an appropriate time was an essential element of the Board's conclusion. See also Canada Dry Ginger Ale, IncorpoPated, 73 NLRB 460, 463. The Board has recently restated the principles governing withdrawals from multi- employer bargaining, and the rationale thereof, in Retail Associates, Inc., supra, as follows: DETROIT WINDOW CLEANERS UNION, LOCAL 139, ETC. 71 The right of withdrawal by either a union or employer from a multiemployer unit has never been held , for Board purposes, to be free and uninhibited, or exercisable at will or whim . For the Board to tolerate such inconstancy and uncertainty in the scope of collective-bargaining units would be to neglect its function in delineating appropriate units under Section 9 , and to ignore the fundamental purpose of the Act of fostering and maintaining stability in bar- gaining relationships. Necessarily under the Act , mutiemployer bargaining units can be accorded the sanction of the Board only insofar as they rest in principle on a relatively stable foundation . While mutual consent of the union and employers involved is a basic ingredient supporting the appropriateness of a multiemployer bargaining unit , the stability requirement of the Act dictates that reasonable controls limit the parties as to the time and manner that withdrawal will be permitted from an established multiemployer bargaining unit. Thus, the Board has repeatedly held over the years that the intention by a party to withdraw must be unequivocal, and exercised at an appropriate time. The decision to withdraw must contemplate a sincere abandonment, with rela- tive permanency, of the multiemployer unit and the embracement of a different course of bargaining on an individual employer basis. . . . The Board took occasion in this case to set forth the following "ground rules" for the future as to withdrawal by any party from multiemployer bargaining to govern questions of representation in multiemployer units: Among other things, the timing of an attempted withdrawal from a multi- employer bargaining unit, as Board cases show, is an important lever of control in the sound discretion of the Board to ensure 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 multiemployer negotia- tions. Where actual bargaining negotiations based on the existing multiemployer unit have begun, we would not permit , except on mutual consent, an abandon- ment of the unit upon which each side has committed itself to the other, absent unusual circumstances... . While I agree with General Counsel that these "ground rules," promulgated in May 1958, cannot govern the appraisal of the conduct of the Employer during 1956 and 1957, it is clear that, as the Board states, they rest "upon existing principles and policies under the Act." In this respect they appear to be a condensation of the principles stated in the cases cited above. Recognizing this fact, General Counsel claims that the wording of the "rules" indicate that the Board intended that notice be given only to the multiemployer association from which an employer sought to withdraw, and that there is no mandate upon it to give notice of withdrawal to the labor organization . The argument is, that the Board distinguishes between an attempted withdrawal prior to the date set for negotiations , where the requirement is merely one of "adequate written notice" of the withdrawal, without specifying the exact recipient of the notice, and a withdrawal after joint negotiations have begun, where withdrawal is not allowed "except on mutual consent "; in the latter case, "mutual consent" implies notice to the labor organization followed by its express consent to the withdrawal, but lack of that requirement in the prior instance indicates that no such notice is required before joint negotiations start . The argu- ment is fallacious for several reasons. First, it conflicts with the Board decisions cited above, which appear to be the basis for the new "ground rules." Second, it improperly equates the obvious necessity for affirmative consent by one party to a change in the composition of the multiemployer unit , after both parties have started active negotiations on the basis of that unit and thereby adopted it, with the clear right of the employer group to change its own composition by unilateral action before negotiations with the union begin . It ignores the obvious corollary to that unilateral action, notice thereof to the other party in the coming negotiations, which both on principle and under the authorities cited above , appears to be a prerequisite to an effective change in the multiemployer unit. If the "ground rules," and the principles on which they are based , are to be construed to permit an employer at will to withdraw silently from a long-standing multiemployer bargaining unit, without any notice to the union, the other necessary party to multiemployer bargain- ing, that party would be compelled during negotiations to deal with an employer group whose outlines and composition would always be shadowy and fluctuating due to possible constant changes in its membership "behind the scenes," so to speak. The union might never know, during or at the conclusion of negotiations , how many or which of the employees that it represents are covered by the agreement which it 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD signs, nor which employers it must thereafter approach for individual bargaining. This would make for uncertainty in the scope of collective-bargaining units which would tend to create increased and perhaps repetitious negotiations between unions and employers, with attendant industrial strife and all its unfortunate economic consequences, which multiemployer bargaining has helped to minimize or elimi- nate.7 In the Retail Associates case, the Board recognized that employers have a right to have the integrity of associationwide bargaining preserved against union disclaimers of representation made for ulterior motives and designed to upset tradi- tional multiemployer bargaining. By the same token a labor organization which engages in good faith in multiemployer bargaining has a correlative right to have the composition of the multiemployer unit with which it deals preserved against silent and perhaps whimsical changes in its composition by members of that unit. This can only be done, and the fundamental objective of the Act achieved, if an employer who desires to withdraw from a traditional multiemployer bargaining unit is required to give "adequate written notice" of his withdrawal, either directly or through the employer group, to the union at the time or times stated by the Board in its "ground rules." On all of the above facts and authorities, I conclude and find that: (1) The Employer's withdrawal from the Association in November 1956 was not an effective abandonment of multiemployer bargaining, such as to relieve it of responsibility for the results of the 1957 multiemployer bargaining with the Union; (2) it was therefore bound by the result of that bargaining, so far as its relationships with the Union were concerned; and (3) its notice of withdrawal to the Union on June 15, 1957, was too late and ineffective. It follows that the Union did not fail or refuse to bargain in good faith by its insistence that the Employer sign the contract which resulted from multiemployer bargaining, or by its institution of a strike of the Employer's employees thereafter to enforce that demand. I therefore conclude that the Union did not violate Section 8(b),(1) (A) and 8(b)(3) of the Act by its conduct. The record shows that both Association and Union bargained over the subject matter of clauses 5 and 15 which were proposed by the Union 8 and such bargaining resulted in their inclusion in the contract of June 19, 1957. Both parties thus treated the union demands embodied in those clauses as a bargainable issue, and as the Employer has not effectively relieved itself from responsibility for the results of the negotiations, it follows that General Counsel's claim that both clauses fall outside the scope of mandatory bargaining must be rejected. Cf. Economy Stores, Incorporated, 120 NLRB 1. On the entire record in the case, and for the above reasons, I shall recommend that the complaint herein be dismissed: Upon the basis of the foregoing findings of fact, and on the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. The operations of the Employer described herein affect commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The Union has not engaged in any unfair labor practices as alleged in the complaint within the meaning of Section 8(b)(1)(A) and 8(b)(3) of the Act. [Recommendations omitted from publication ] 7 See remarks of the United States Supreme Court in N L R B. v. Truck Drivers Local Union No 449 (Buffalo Linen Supply Co.), 353 U S. 87, 94-96 9 The Union proposed the performance bond clause on the basis of past experience with some window-cleaning companies which had defaulted on their obligations under prior Association contracts, and the promotional fund provision on the basis of alleged use of similar funds in other industries which had proven beneficial to both employers and employees. APPENDIX A (5) INDUSTRY PROMOTION AND IMPROVEMENT FUND The parties to this Agreement agree that the window cleaning industry can do much to promote and better itself. Considerable work is'being done in the Detroit and Wayne County area by persons and firms that do not have professional window cleaning training and experience.' The inferior work'done by these firms reflects on the entire window cleaning industry and has in the past prevented the industry from DETROIT WINDOW CLEANERS UNION, LOCAL 139, ETC. 73 taking its place as a user of skilled workers and producer of professional window cleaning. To further the legitimate aims of promoting and improving the window cleaning industry, the Employers signatory to this Agreement have agreed, effective June 1st, 1957, to contribute two cents ($0 02) per hour for each man hour worked by window cleaners in their employment into an Industry Promotion and Improve- ment Fund. This Fund shall be administered by three Employer Trustees under a written declaration of trust. The Association shall have the authority to appoint three Trustees to administer the above Fund. This Fund shall be used for the fol- lowing general purposes- 1. To promote and improve the window cleaning industry through a system of public and customer education and information that will publicize the important benefits of regular and periodic window cleaning. 2 To point out, through a system of public education and advertising, the hazards and disadvantages of infrequent and haphazard window cleaning by un- skilled and untrained persons 3. To strive for a better understanding between Employers and their employees, between contractors and their customers and between contractors and the general public. APPENDIX B (15) GUARANTY OF CONTRACT LIABILITY (a) The Employer, if not a member of the Window Cleaning Contractors As- sociation, agrees to post a $1,500.00 cash bond to insure and guarantee the faithful performance of this Agreement. The Association agrees to act as surety for each Employer who is a member thereof, but in no event shall the liability of the As- sociation for any one of its members exceed the amount which could have been assessed against the cash bond of a non-member. `b) A Joint Committee of representatives from both the employees and the Em- ployers shall be empowered to hear claims against the bond or against the surety obligation of the Association. The signatories to this Agreement agree that the Association shall have the authority to designate the three (3) Employer representa- tives and the Union shall have the authority to designate the three (3) employee representatives to the Joint Committee. The Employer, if not a member of the Association, agrees to post the required bond with such depository and under such conditions as the Joint Committee shall from time to time designate. The account established for this purpose shall be known as the Window Cleaning Contractors Guaranty Account. (c) The above bond or the suretyship obligation of the Association shall be liable if, at any time, the Joint Committee shall find that the Employer is not faithfully and fully performing any of the conditions of this Agreement, and the bond or suretyship obligation may be levied against for the payment of back wages, de- linquent wages, past due wages, delinquent payment to the Window Cleaning Con- tractors' Insurance Fund, or for any fine or penalty assessed by the Joint Committee because of the Employer's failure to perform any other obligations under this Agreement. Decisions of the Joint Committee shall be by majority vote. (d) In the event of deadlock of the Joint Committee, the question at issue shall be submitted to -arbitration at the written request of'any three (3) of the representa- tives on the Joint Committee, provided that such request is made within seven (7), days of such deadlock. The representatives to the Joint Committee shall agree upon an arbitrator. Should they be unable to do so within seven (7) days of the request for arbitration having been made, an arbitrator shall be selected in accordance with the procedures of the American Arbitration Association. The decision of the 'arbitrator shall have no authority to add to or subtract from any provision of this Agreement. Any award by an arbitrator acting under the provisions of this Agree- ment shall 'be entitled to be entered as a judgment in a court of competent jurisdic- tion, according to the statutes in such case made and provided. The expense of the arbitrator shall be borne equally by the Association and the Union. (e) The Employer agrees that, upon request of the Joint Committee, the books, records and other documents of the Employer evidencing compliance or non- compliance with the terms of this Agreement shall be subject to be produced before and scrutinized by the Joint Committee. (f) It is agreed that checks drawn on the Window Cleaning Contractors Guaranty Account, under the authority of the Joint Committee, shall be paid directly to The Fund or person entitled to same and at least one (1) representative of the em- ployees and at least one (1) representative of the Employer, to be designated by the Joint Committee, shall be required to sign for any withdrawal of Funds. In the event a member of the Association is found to be delinquent under any term or 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD condition of this Agreement , or any fine or penalty is assessed against a member of the Association by the Joint Committee or by any arbitrator appointed pursuant to this Agreement, the Association agrees to pay any sums assessed thereby from its own treasury within three (3) days of the final decision of the Joint Committee or the arbitrator. (g) The liability of the Employers under a bond posted pursuant to this Agree- ment shall be several and not joint . When the obligation of this Agreement shall cease for any reason, the Employer may request the return of his cash bond and the Association may request the cancellation of its obligation as surety. (h) The Union agrees to release the Association as surety for any Employer, a member of the Association, covered hereunder who withdraws from the Association during the term of this Agreement, two (2) weeks after receipt of written notice from the Association that said Employer has withdrawn from the Association. The re- lease of the Association as surety shall not be construed as a release of the Em- ployer involved from the terms of this Agreement by the Union, and such Employer shall post within the aforementioned two (2 ) week period a $1,500.00 cash bond with the Window Cleaning Contractors' Guaranty Account. Failure of an Em- ployer withdrawing from the Association to post such bond within the stipulated period shall be sufficient reason for the Union to cancel its agreement with such Employer, notwithstanding any other provisions of this Agreement. Vapor Blast Manufacturing Company and Vapor Blast Inde- pendent Shop Worker's Association and Erwin Strobel, John G. Westphal, Frederick Kaleya, Edwin Griffa and International Union, United Automobile, Aircraft and Agricultural Imple- ment Workers of America, AFL-CIO, and Its Locals 575 and 1092, Parties to the Contract. Cases Nos. 13-CA-3006,13-CA- 3043, 13-CA-3044, 13-CA-3045, and 13-CA-3046. January 12, 1960 DECISION AND ORDER On August 7, 1959, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceeding, finding that the 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 copy of the Inter- mediate Report attached hereto. He also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint. Thereafter, the Respondent, the General Counsel, and the UAW filed exceptions to the Intermediate Report, and support- ing briefs. The Board 1 has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in these cases,2 and hereby adopts the findings, conclusions, and recom- 'Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with these cases to a three-member panel [Members Rodgers, Jenkins, and Fanning]. 2 As the record and the exceptions and briefs adequately present the issues and the positions of the parties , the Respondent ' s request for oral argument is denied. 126 NLRB No. 6.