Joseph C. Collins & Co., Inc.

940 DECISIONS OF NATIONAL Joseph C. Collins & Co., Inc. and Local 23-L, Lithographers and Photoengravers International Union, AFL-CIO. Case 25-CA-3508 August 19, 1970 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND BROWN On March 26, 1970, Trial Examiner George J. Bott issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief, and the Respon- dent filed a brief in support of the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE GEORGE J. BOTT, Trial Examiner : Upon a charge of unfair labor practices filed by Local 23-L, Lithographers and Photoengravers International Union , AFL-CIO, herein called the Union, on Sep- tember 10 , 1969, against Joseph C. Collins & Co., Inc., herein called Respondent or Employer, the ' General Counsel's unopposed motion to correct the transcript is hereby granted LABOR RELATIONS BOARD General Counsel of the National Labor Relations Board issued a complaint and notice of hearing on October 30, 1969, in which he alleged that Respon- dent had engaged in unfair labor practices in viola- tion of Section 8(a)(1) and (5) of the National Labor Relations Act, as amended, herein called the Act. Respondent's answer admitted certain allega- tions of the complaint but denied the commission of any unfair labor practices. A hearing was held before me in Indianapolis, Indiana, on December 15 and 16, 1969, at which all parties were represented. Subsequent to the hearing, Respon- dent and General Counsel filed briefs which have been considered. Upon the entire record' in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. RESPONDENT'S BUSINESS Respondent is an Indiana corporation with an of- fice and plant in Indianapolis, Indiana, where it is engaged in the manufacture, sale, and distribution of printed matter. During the 12-month period prior to the issuance of the complaint, Respondent manufactured and shipped products valued in ex- cess of $50,000 from its Indianapolis plant to States other than the State of Indiana. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. 111. THE ALLEGED UNFAIR LABOR PRACTICES A. Basic Findings 1. Negotiations preceding the September 3 strike Prior to 1968, Respondent was unorganized, but on February 21, 1968, a majority of Respondent's employees in an appropriate lithographic depart- ment unit designated the Union as their representa- tive in a Board election and the Union was certified as such on March 1, 1968. Thereafter, Respondent and the Union negotiated and, on April 4, 1968, ex- ecuted a contract covering the appropriate unit. Since at least 1963, the Union has had collective- bargaining contracts with Indianapolis Union Prin- ters Division of Printing Industries of Indiana, herein called the Association, covering lithographic department employees of members of the Associa- tion and nonmembers who authorize the Associa- tion to bargain on their behalf. The Union's con- tract with the Association, effective August 5, 184 NLRB No. 113 JOSEPH C. COLLINS & CO., INC. 941 1966, terminated on August 4, 1969, the same time as its contract with Respondent expired. On June 4, 1969, the Union wrote to all em- ployers with which it had contracts, including Respondent, advising them that the existing labor agreement was about to expire and requesting that negotiations for a new contract begin. Charles Schultz, president of the Union, testified that Respondent did not answer his written communica- tion. He also testified credibly, however, that after sending an identical letter to Merle Rose, president of Studio Press, Inc., and chairman of the Associa- tion's negotiating committee, Rose replied by letter of June 6 and advised the Union that the Associa- tion was organizing its negotiating group and soon would be in touch with Schultz for the purpose of "arranging the first meeting to negotiate a new con- tract." Within a week of receiving Rose's letter, Schultz spoke with him on the telephone. Rose told Schultz that he was chairman of the Association's negotiat- ing group, that the group had expanded , and that "most of the city shops had agreed to negotiate jointly." Schultz inquired about the identities of the new participants, and Rose named Respondent as one of them. Thereafter, Schultz spoke with representatives of all of the companies that Rose had listed as joining in group bargaining, and he testified credibly that all of them, including Joseph C. Collins, president of Respondent, indicated that they would be "negotiating as part of the group." Both Rose and William Habing, the Association's executive director, confirmed Schultz' testimony that Joseph Collins had been asked to participate in group bargaining with the Union and had con- sented. Rose's conversation with Collins was ap- parently by telephone, but Habing visited Collins at his office around June 1. He said he explained the reason for his visit and noted the need for a "united front." Collins, according to Habing's uncon- tradicted testimony, said he would "go along with the group and be a party to it." The Association held meetings of its negotiating group on June 24 and July 8 to discuss and plan for the forthcoming bargaining sessions with the Union. Habing testified that Collins was present on June 24 and that Rose appointed him a member of a sub- committee to study and propose contract language to present to the Union. Although Collins testified that he was unaware of this appointment, I credit Habing's and Rose's testimony that Collins was so selected, and Habing's statement that Collins made no objection to his appointment. After the preliminary meetings but before the 'first bargaining meeting with the Union, Habing, assisted by Rose and the Association's attorney, prepared the Association's written proposals to the Union and distributed copies to all employers named therein as being represented by the Associa- tion. The Joseph C. Collins Company is listed in the document, and Habing testified that Mr. Collins did not object to his company's name appearing in the proposals. The Union also delivered copies of its proposals to Habing before negotiations began and Habing forwarded copies to all members of the As- sociation and to Respondent. Formal negotiations between the Association and the Union began on July 17, 1969. At this meeting the Association presented to the Union the written proposals which had previously been prepared and distributed to those employers it represented. The Union was represented by International Vice Pre- sident Petrakis, Local Union President Schultz, and three local union members. The Union also had other members of a committee present in a caucus room for consultation. The Association' s bargaining committee included Habing, Rose, and Cross, the Association's attorney, on a regular basis, and its other members, who were representatives of the in- dividual members of the Association, varied from meeting to meeting. Association members , like the Union, also had a private caucus room. Collins was present on July 17 in the Associa- tion's caucus room "as one of the members ... or group in the caucus room," as he described it. The second negotiating session was held on July 21, and Collins, acting as a member of the Association's team , directly participated in the negotiations with the Union. Collins admittedly was present in the caucus room at the July 22 meeting as well as the subsequent meetings of July 28 and 29.2 Collins testified that he began to have second thoughts about being involved with the Association and, on either July 21 or 22, asked Habing if his presence would be "binding " on him in some way. Habing told him to consult the Association's attor- ney. Later Collins made a similar inquiry of Cross, attorney for the Association, who advised Collins that this was a subject he should consult his own at- torney about. Collins did, and was advised to write the parties and inform them that only an officer of Respondent could bind it in negotiations. Collins attended the Association caucus prior to the July 29 bargaining session and told Habing and Cross that he was withdrawing from association bargain- ing because he could not afford the economic terms of any contract he could anticipate being arrived at between the Association and the Union. Although Cross indicated that he thought Collins had no right to withdraw at that time, Collins handed the As- sociation a handwritten statement rescinding any authority the Association had to negotiate or sign a contract on Respondent's behalf. As the bargaining session of July 29 was about to commence, Cross handed the Union Collins' hand- written note. According to Schultz, Petrakis asked 1 Schultz and Petrakis appeared sincerely certain that Collins was ac- tually in the bargaining session on July 22, but it is unnecessary to resolve this conflict, for Collins, without having advised the Union to the contrary, stayed with group bargaining until he withdrew on July 29, and the Union knew he was there 942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cross what had caused Collins' action and stated something to the effect that Collins would "still have to to on the Indianapolis settlement." Petrakis testified that after he read Collins' communication he stated that he did not think that "legally the em- ployer could withdraw at this time, that he was obligated to any negotiations the employers as- sociation had made." Habing recalled Petrakis' reaction as noting that it was not "within the law for them to pull out," and he said that the Associa- tion representatives told Petrakis that they were in agreement. Collins did not participate in that day's negotiations or any other association-union bar- gaining thereafter. On July 29 Schultz received a letter from Collins stating that no one but Respondent was authorized to bargain for Respondent and that Respondent was "available at any time for negotiation." On July 30, 1969, Collins mailed a letter to Habing informing him that Collins had never authorized the Associa- tion to bargain on his behalf and that no organiza- tion had the authority to collectively bargain for Respondent. The contract between Respondent and the Union expired on August 4 as did the contract between the Association and the Union. By July 29, when Respondent advised the parties that it would not be bound by Association bargaining, the Association and the Union had reached agreement on practi- cally all of the noneconomic provisions of an agree- ment. Subsequent to July 29, the Association and the Union continued to negotiate and reached final agreement on August 13. The terms of the con- tract, including wages and other economic matters, were retroactive to August 4. All employers represented by the Association immediately put the wage increases into effect and gave employees checks for the retroactive pay. On August 14, the day the contract was ratified by the members of the Union, Charles Little, shop steward at Respon- dent's plant, gave Collins a summary of the economic package. Collins commented that the economic terms were about what he thought would result from the negotiations. It appears that during negotiations both sides participated in drafting vari- ous clauses and tentative drafts of agreements. After negotiations were concluded, however, the Union had the final draft typed and presented it to the As- sociation for signature . This draft did not contain the name of Respondent as an employer represented by the Association. Collins testified that after his withdrawal from Association bargaining he had a telephone call or two from the Union "on some small subject" and also met with Schultz and a factory committee in his office on August 25 on grievances. During these telephone calls and during the grievance meeting nothing was said about the recently negotiated As- sociation contract, and the Union did not indicate that Respondent was bound by it, according to Col- lins' uncontradicted testimony. Collins said that when he "expressed a desire to get together and get our contract written up" during the meeting, Schultz indicated that a representative from the In- ternational Union would be available shortly and a meeting would be arranged. Schultz testified that he telephoned Collins in late August and asked to meet with him "for the purpose of signing a contract." He stated that he "expected (Collins) to sign the Indianapolis settle- ment," by which he meant "the association settlement" because he "assumed that being in the Indianapolis area that it was proper for him to sign that contract, that he was bound by it as far as we were concerned." He conceded, however, that in his conversation he did not specify a particu- lar document that he expected Collins to sign, but did expect Collins "to sign the contract on the same terms as the Indianapolis area settlement." Respondent and the Union met at Respondent's plant on September 2. Present for the Employer were Collins and his wife, Supervisor Shepherd, and Jim Collins. The Union was represented by Schultz, Petrakis, and two employees from the plant, includ- ing a shop steward. The Union presented Collins with a written summary of the economic package in the area agreement . Collins said that he "went into a very lengthy economic speech on how he could not afford that package ...... Petrakis offered to let Respondent accept the contract for 1 year, rather than 2 years as provided in the Association contract, on condition that he agree to the entire contract. Collins said he would think about it and give the Union his answer the next day. On September 3 the parties met again with the same representatives present. The meeting lasted less than an hour. Petrakis asked Collins for his decision on Petrakis ' suggestion for a 1-year ar- rangement, and Collins replied that he had con- sidered it, but could not afford it, for it would only be "buying time." Collins asked the Union if they would consider anything less than the area agree- ment and was told that the Union would not. Col- lins said that the Union's position made him feel that it would be useless to make a counteroffer. None was made, and the meeting adjourned. Since one of the principal issues in the case is whether the Union had acquiesced in Collins' withdrawal from Association bargaining and was evidencing this acquiescence by its conduct in meeting with him directly, the use of particular words by the parties, their failure to make certain claims during negotiations and their own interpreta- tions of what kind of bargaining was going on as- sume unusual importance in the contentions of the parties and require certain immediate findings. First of all, both Schultz and Petrakis, although insisting that they wanted Collins to agree to the terms of the area agreement, conceded that they were willing to and were "negotiating" with Collins "directly" on September 2 and 3. Second, the Union did not tell Collins that he was already bound by the contract which the Association had negotiated nor, consistent with that position, ask him to put JOSEPH C. COLLINS & CO., INC. into effect the terms of the Association agreement immediately or make retroactive payment of wages. It also appears that Collins was the only employer in the area who was offered a 1-year contract. As soon as the September 3 meeting with Collins was over, Schultz and Petrakis met with the em- ployees in the unit and told them what had hap- pened. Schultz and Petrakis testified credibly that they informed the employees that "the Employer had turned down the area agreement" and an im- passe existed. The employees voted to strike and were still on strike at the time of the hearing in this case. 2. Negotiations after the strike On September 4, Schultz wrote to Collins and stated that the Union had gone on strike "protest- ing the management's stand on their contract proposal," but stood "ready to enter into further meetings whenever the Company is willing." Charges of unfair labor practices were filed and a complaint issued, however, and no further meetings occurred until after Schultz telephoned Respon- dent's present attorney on November 5.3 Schultz testified that counsel for the International Union told him that the Board had issued a com- plaint of unfair labor practices against Respondent, but also advised him to keep the door open for possible settlement of the dispute. In his call to Owen he described some of the background of the case, noting in his conversation that Collins had never submitted a counterproposal to the Union This, he said, was a statement of fact, not a request for a counterproposal, but Owen agreed that they should meet and that Collins should have a coun- terproposal. Schultz also stated, and I credit him, that in his talk with Owen there was no discussion of whether or not Respondent was already bound by the area agreement negotiated by the Associa- tion. Schultz did concede, however, that he told Owen that he was willing to negotiate with Respon- dent " in an effort to reach an agreement." On November 11, Respondent and the Union met. The Union was represented by Schultz, Petrakis, and two employees, and Owen and Collins were present for Respondent. Schultz testified, and I credit his testimony, that the Union immediately proposed that Respondent "accept the Indianapolis area settlement." Collins reminded Petrakis of his earlier offer of a 1-year contract, but Petrakis replied that since Collins had not accepted it, it was withdrawn, and the Union was now proposing "the whole package." During the meeting, the parties reviewed the noneconomic language in the recently expired contract with Respondent. A copy of the contract with the Association was not yet available and this discussion was primarily for the benefit of Respondent's new counsel. ' Respondent 's corporate attorney advised Schultz that Attorney Owen had been retained to handle the labor case 943 After the Union explained the noneconomic terms of the agreement, Respondent submitted cer- tain economic proposals for the Unions' considera- tion , including a wage proposal lower than that pro- vided in the new Association agreement. Respon- dent also offered to accept the Union's proposal on welfare and education funds, conditioning its ac- ceptance, however, on the Union agreeing to have the payments made as of the date of the signing of a new agreement. Later in the meeting, Respondent accepted the welfare and education fund provisions of the area agreement, excluding payment, how- ever, for the time employees had been on strike. The Respondent also proposed a management prerogative clause which the Union rejected. There was discussion of other matters, and the meeting adjourned with the Union agreeing to submit to Respondent a copy of the current Association agreement and certain information relating to the Union's early retirement fund. At no time during the November 1 1 meeting did the Union propose or agree to accept anything other than the terms of the Association contract. On the other hand, Schultz agreed that at no time during this meeting did the Union take the position that Respondent was bound by a contract because of its relationship with the Association prior to July 29, 1969, and he conceded that he and Petrakis told Owen and Col- lins at that meeting that the "Union was willing to negotiate directly with Mr. Collins," and he agreed that this was why the Union had its negotiating committee present. Schultz supplied the information requested in the previous meeting , and the parties met again on November 25, at which time Respondent agreed to accept most, if not all, of the noneconomic provi- sions in the Association agreement. It was also agreed, however, that any references to the As- sociation in the agreement should be deleted and that Respondent's name only should be inserted as a party. Petrakis was not present at this meeting, but Schultz testified without contradiction that when Owen made the proposal about deleting all language in the agreement referring to the Associa- tion , he stated that this would be no problem, but he conditioned his acceptance on Respondent agreeing to the economic terms of the area con- tract. The Union also gave Respondent its proposal on a management rights clause . Collins agreed that although the Union was willing to compromise on a management rights clause and was willing to negotiate with and sign a contract with him in- dividually, it continued to insist on his accepting "all the substantive terms of the area agreement." During the course of the meeting the parties agreed on a compromise management rights clause. At the end of the meeting , only the economic matters were left unresolved, for all practical purposes, and the parties agreed to meet again on December 2.4 ' Collins testified that he could have gone along with the rest of the area agreement if he could have worked out the "wage scale problem " 944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The only departure from the area settlement the Union had made in this meeting was the manage- ment rights clause, which does not appear in the Association agreement, and changes in language in- dicating that the agreement was with Respondent as a separate entity not represented by the Associa- tion. Schultz and two employees met with Collins and Owen on December 2 in a rather brief meeting Owen opened the meeting by stating that Respon- dent could not offer a better wage offer than it had at the last meeting and reiterated that Respondent had lost a considerable sum of money over the last 4 years. Respondent also made a proposal to settle the strike by offering reemployment to the strikers as vacancies occurred. Schultz refused to agree to any economic settlement less favorable than the area agreement and argued that other area non- represented employers were able to operate suc- cessfully at the agreed area wages. Schultz agreed that he had rejected Respondent's proposals at this last meeting, and he conceded that he had also in- dicated that he was still willing to negotiate directly with Respondent "independently of the Associa- tion" and so stated at the end of the December 2 meeting. Schultz maintained that at no time since September 2 did the Union agree to take less from Respondent than the terms of the agreement negotiated with the Association. Collins conceded that the only substantive changes made in the area agreement during the negotiations that he could name were the management rights clause and changes in the name of the employer to reflect that it was not a group contract There had been no ad- ditional meetings between the parties at the time of the hearing. B. Analysis, Additional Findings, and Conclusions Multiemployer bargaining is based on the mutual and voluntary consent of the parties, and when a member of a multiemployer bargaining unit at- tempts to withdraw from group bargaining after it has commenced, his withdrawal will not be con- sidered "timely" and will not relieve him from the obligations of any contract subsequently negotiated with the Union, unless the Union consents to his withdrawal.5 General Counsel contends that the facts in this case require a finding that Respon- dent's withdrawal from multiemployer bargaining and its subsequent refusal to sign and adhere to the agreement negotiated by the Union and the As- sociation were individually and collectively viola- tive of Section 8(a)(5) and (I) of the Act. Respon- dent, although apparently not disputing the un- timeliness of Collins' withdrawal on July 29 after a number of bargaining sessions, contends that he had never indicated an intention to be bound by the Association's collective bargaining, and that, in any case, the Union acquiesced in Respondent's withdrawal by its conduct after July 29, 1969. Respondent argues that it had never participated in joint bargaining before and not specifically designated the Association to represent it or given it authority to execute an agreement in its behalf. However, all that is essential to establish a multiem- ployer unit is that the employer member has in- dicated an intention to be bound by a group rather than individual action. Formal membership or designation to act is not controlling.6 I find that Respondent by its words and acts clearly indicated an intention to be bound by group action during negotiations for a new agreement. Before negotia- tions began, Collins accepted Rose's and Habing's invitations to participate with the other employers, and this information was communicated by Rose to the Union. When the Union telephoned Collins be- fore negotiations started, and at a time when it had not received a reply to its request to him to begin bargaining for a new contract, Collins told the Union that he would be negotiating with the Union as part of the multiemployer group. Before associa- tion bargaining commenced, Collins participated in a strategy session with other members of the As- sociation, and when bargaining actually started he appeared in both the formal sessions and in the caucus room. It was not until July 29, after a sub- stantial part of the contract had been settled and a short while before the economic terms were agreed upon, that Collins had second thoughts about his participation and notified the Union that he was getting out. The Union to that time had been led to believe both by Collins and by the Association with his permission that he was bargaining in good faith as part of a group. Indeed, the Union would have been unreasonable if it had not assumed that he was. At this stage of the negotiations the parties had revealed their positions, and to permit a withdrawal at that time, no matter how unequivo- cal, would be unfair to the Union. I conclude, therefore, that Respondent made an untimely withdrawal from multiemployer bargaining and that the single-employer unit of Respondent's em- ployees had been merged into the overall multiem- ployer unit by reason of the group bargaining en- gaged in by Respondent and the Union.' An employer's untimely withdrawal from mul- tiemployer bargaining may nevertheless be effective if it is based on mutual consent. The Union's con- sent may be implied and indicated by "acquiescen- ce" or any course of conduct which reveals an in- tention to negotiate an agreement with the em- ployer on an individual instead of a group basis. The doctrine of "implied consent" to or S N L R B v Sheridan Creations, Inc , 357 F 2d 245 (C A 2), N L R B v Spun-Jee Corporation, 385 F 2d 379, 381-382 (C A 2), N L R B v John J Corbett Press, Inc , 401 F 2d 673 (C A 2) The Kroger Co , 148 NLRB 569, 573 Sheridan Creations, Inc , 148 NLRB 1503, 1505, enfd 357 F 2d 245 (C A 2), Universal Insulation Corporation v N L R B , 361 F 2d 406 (C A 2), Quality Limestone Products, Inc , 143 NLRB 589, Service Roofing Com- pany, 173 NLRB 321, Johnson Sheet Metal, Inc , 179 NLRB 644, Mor Paskesz, 171 NLRB 116,enfd 405 F 2d 1201 (C A 2) JOSEPH C. COLLINS & CO., INC. "acquiescence" in an untimely withdrawal seems well established in Board law at least,' but since mutual consent is rarely, if ever, found clearly unequivocally expressed in litigated cases, and because the concepts "implied consent" and "acquiescence" are fluid indeed, just what conduct the Board will consider to have constituted a "waiver"9 of an employer's departure from group bargaining, after having lulled the parties into think- ing that he was in the game to the end and after having had the advantage of seeing how the match was going, is something else again. This becomes more apparent when it is considered that "acquiescence," elusive enough as it is, sometimes is evidenced by silence, which may be ambiguous and ambivalent, and when it is recalled that the Board has, in other contexts, taught us that the waiver of a statutory right, and I assume that the right of a union to have an employer involved in group bargaining sign the same agreement the other employers have signed is a right protected by the Act,10 must be "clear and unmistakable."11 In Publicity Engravers, Inc.,12 the manager of the association informed the union by telephone that the employer had withdrawn from the association. The union made no objection and asked the manager to put the information in writing, which he did a few days later. The union did not reply to the letter or voice any objections to the employer's withdrawal during subsequent negotiations with the association. After agreement was reached between the association and the union, the union's president wrote the employer and noted that the employer had withdrawn from the association and that a con- tract had been reached between the association and the union. The writer did not assert that the em- ployer was bound by the association agreement, but offered it the same agreement that had been reached with the association and also offered to meet "at any time to discuss the matter." A short while later, the employer and union met and the union submitted the same contract it had negotiated with the association. The employer asked if it could submit counterproposals, and the union agreed to listen, but when it heard them it stated that it could not agree to them. In response to an inquiry from the employer's representative, the union responded that the contract with the as- sociation was the only contract that the employer could sign. Approximately a week later, the union wrote the employer's counsel and contended that since the employer's withdrawal from association bargaining was untimely, he should sign the con- tract negotiated with the association. On the above facts the Trial Examiner found that the union "impliedly" consented to the employer's "The leading cases upon which Respondent relies are Publicity En- gravers, Incorporated, 161 NLRB 221, C & M Construction Company, 147 NLRB 843, Metke Ford Motors, Inc , 137 NLRB 950, Atlas Sheet Metal Works, Inc , 148 NLRB 27 See John J Corbett Press, Inc , 163 NLRB 154, Service Roofing Company, 173 NLRB 321, Lenox Grill, 170 NLRB 1027, and Johnson Sheet Metal, Inc , 179 NLRB 644, where the doctrine was 945 withdrawal. The Trial Examiner emphasized the union's failure to object to the employer's withdrawal from the association or to claim that any agreement reached with the association should include the employer until after its failure to reach agreement with the employer in their separate bar- gaining session. The Trial Examiner also found it significant that the association contract when drafted, contrary to past practice, had made no provision for the employer's signature, and the union did not object to this; that the union's letter to the employer offering to meet with it could be interpreted as an offer to bargain over a contract applicable to the employer's operations, and, although mentioning the employer's withdrawal from the association, did not protest it or claim that the employer was already bound by an agreement; and that the union still failed to insist that the em- ployer was already under a contract when it met with it, but, to the contrary, explained the terms of the contract with the association and listened to the employer's counterproposals. The Trial Examiner also interpreted the union's statement that the em- ployer could only sign the association contract, made when it rejected the employer's counter- proposals, as not meaning that the employer was bound by the association contract but as a state- ment that only the terms of such agreement would be acceptable to the union. Moreover, he also con- cluded that the union's "conduct" at its meeting with the employer was susceptible to being in- terpreted as an invitation to the employer to bar- gain over the terms of a contract applicable to it, "although the union's starting point was the as- sociation contract." Finally, the presence of the union's negotiating committee at the union's one meeting with the employer was stressed by the Trial Examiner, for he felt that if the union was meeting with the employer to have him sign a contract by which he was already bound, a "Negotiating Com- mittee" had no function to perform. The Board adopted the Trial Examiner's findings and conclusions on the issue of implied consent, with one Board member noting as additional factors supporting his concurrence that the union admitted that one section of the contract was still a subject for bargaining when it met with the employer and that the union's first objection to the employer's withdrawal came only after "the Union and the Respondent failed to reach any agreement at their separate bargaining session." In C & M Construction Company, 13 the employer also effected an untimely withdrawal from multiem- ployer bargaining through a council. The council informed the union that it had lost a member and the union requested official notice of such recognized, but not relied on ° Metke Ford Motors, supra. ° H J Heinz Company v N L R B , 311 U S 514, 526 Cloverleaf Division of Adams Dairy Co , 147 NLRB 1410, 1412 " Supra, fn 8 " Supra, fn 8 946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD withdrawal . The council agreed to provide a letter to the effect , and negotiations continued until an agreement was reached the next morning. When the parties met the next day to execute the agree- ment, the union again requested the council for a letter on the employer 's withdrawal and also asked if it would be all right to visit C & M, who had withdrawn , and ask them if they would sign an agreement . The council advised the union to con- tact C & M individually if they wanted a contract with them , since they were no longer bound by the council. The union met with C & M to "give him a chance to sign this agreement ." A representative of the union testified that they understood that the em- ployer had "moved out of the Council" and they "presented (a contract) to him." The employer refused to sign , and the union continued to picket him. In sustaining the Trial Examiner 's finding that the union had acquiesced in C & M's withdrawal from the council , the Board found it significant that the union voiced no obligation to the withdrawal when it learned of it ; that it showed its acquiescence by asking the council if it would be permissible to "sign up Respondent to a separate agreement "; and that it was the union's practice to approach nonmember employers with a copy of the council agreement for individual signature , but with respect to council members, execution by the secretary was sufficient to bind all members. The Board concluded that the union 's meeting with the employer when it asked the employer to sign an agreement, taken in light of an earlier unfair labor practice charge against the union for picketing the employer , as well as the union 's practice with respect to the signing of agreements, indicated that the union did not consider the employer still a member of the council or bound by the council's agreement . This conclusion was supported by the fact that the union continued to picket the em- ployer with signs stating that the employer did not have a collective-bargainin of contract with the union , and by the absence of any assertion on the union 's part that the council agreement was binding on the employer until after the employer filed a representation petition with the Board. In Metke Ford Motors," the union did not question the employer 's withdrawal but requested a revised list of employers whom the association was representing . When it got the list it did not contain the employer 's name and the union did not object to its omission . The Board noted that the union took no action inconsistent with acceptance of, and consent to , the withdrawal , but instead the union proceeded to negotiate and execute an agreement with the association which specifically provided that the employers covered were those whose names were attached , and the employer 's name was not listed . The Board concluded that the em- ployer's withdrawal was effective because it had "the mutual consent of the parties." In Atlas Sheet Metal Works, Inc.,'-' in finding that a union had acquiesced in an employer's withdrawal from an association unit and the em- ployer was not bound by the contract between the association and the unions, the Board stated that union acquiescence was reflected both by its con- sent to bargain with the employer on a single-em- ployer basis , even after the union and the associa- tion had reached an agreement , and by its failure to present the association contract to respondent for signature. The Respondent 's position is that the facts in this case clearly present a situation for the application of the doctrine of acquiescence or implied consent to an untimely withdrawal from multiemployer bar- gaining because all of the significant facts relied on by the Board in the cases we have analyzed are present here and because some of the Union's acts in this case are even more indicative of consent than in those cited by Respondent . General Coun- sel, however , contends that the cases are distin- guishable , and he places greater emphasis on the factor of union protest to withdrawal and less on the Union 's silence in certain areas than does Respondent . Thus, both sides find comfort in the same cases. Preliminarily , it must be said that the parties' reliance on the same cases is not surprising, not only because the standards to be applied are somewhat elastic, as indicated earlier , but also because the situation we are examining does not in- volve the conventional type of collective bargaining where all terms, including the economic, are open for discussion for the first time. In this case there had been a contract with Respondent which in all its terms was very much like the contract with the Association, and so when the Association and the Union reached a new agreement on August 13 con- taining substantial economic improvements and the Union thereafter sought to get Respondent to do what the Association had done , it becomes difficult to determine whether the Union was trying to get Collins to sign the Association 's contract , which in- cidently did not yet exist as a written instrument, or a contract, which incidently did not yet exist as a written instrument, or a contract exactly like the one the Association had signed . It may very well be that the Union was not sure , at least in the beginning, what it wanted, for as Schultz candidly and realistically admitted , it made no difference to the Union whether Collins or any other employer signed the "area settlement" or an " individual con- tract" on the same basis. The real bargaining was all over when the Union approached Respondent. I stress these points so that we will be careful not to read too much into the "direct dealing" or "negotiating" the Union was engaged in with Respondent or it with the Union. 11 Supra, in 8 I' Supra, fn 8 JOSEPH C. COLLINS & CO., INC. On the Respondent's side, it is a fact that at no time after July 29, when Collins made it clear that he was withdrawing from group bargaining, did the Union tell the Association, or what is more impor- tant the Respondent, that it still considered Respondent to be represented by the Association or bound by the contract it eventually negotiated with the Union. This is true despite the fact that Collins immediately confirmed his position in a letter to the Union, which was not acknowledged, and even though Schultz, the Union's president, met Collins on another union matter after the agreement was reached with the Association, and although he and other representatives of the Union met and discussed a contract with Collins five times after the Association contract was concluded. The As- sociation contract provided for retroactive wage in- creases and all members put such increases into ef- fect immediately and paid employees a lump sum in the amount of the retroactive pay. The Union never asked Collins to make these payments or claimed that he owed them. So far as silence in these areas is concerned, therefore, the case is very much like the cases Respondent relies on.16 It also appears from the cases that an expressed willingness to meet with the former member of the Association in order to obtain a contract is con- sidered important, and this the Union admittedly did in this case many times. Collins told Schultz in August that he wanted to meet to "get our contract written up," and Schultz subsequently telephoned him to arrange the September 2 meeting, which was also attended by Petrakis, International vice pre- sident. Both Schultz and Petrakis told Collins from the very beginning that they were willing to meet with him "directly" for the purpose of reaching an agreement with him. Whether or not they were "negotiating" fully or in the conventional sense on September 2 and 3, they were nonetheless willing to meet with Respondent separately and not as a member of the Association, and they continued to meet with Respondent even though no agreement was reached with him. Not only did the Union agree to meet separately but it directly engaged in some kind of "negotia- tions" with Respondent, for as early as September 3 Petrakis offered a concession not contained in the Association agreement by proposing that Respon- dent take a 1-year contract, instead of 2, in order to determine whether his financial position at the end of the year would permit him to continue for another year. Subsequently, in the November meetings, Respondent proposed, and the Union re- jected, a management rights clause, but then the parties agreed on a compromise. My hasty analysis of the clause suggests to me that Respondent got " Publicity Engravers, Inc , supra , 223, Meike Ford Motors, supra, fn 1, 951 17 Unfair labor practice charges were pending and a complaint had been issued '" Publicity Engravers, Inc , supra , 228 This is not the same negotiating 947 little from it, and I suspect that it may have been a bargaining ploy," but, nevertheless, there is no management rights clause in the Association con- tract and so the Union was treating Respondent dif- ferently from the Association and conceding that something at least was open for negotiation. Additional evidence that the Union was "negotiating" with Respondent directly and had therefore accepted his withdrawal from the As- sociation appears from its willingness to listen to his economic counterproposals and to patiently explain the meaning of the noneconomic terms of the old contract, even if the latter may have been primarily for the benefit of his new lawyer. Other conduct of the Union is consistent with the above factors suggesting acquiescence. During its meeting with Respondent, the Union had a negotiating committee with it and this is indicative of an intention to bargain.' As in the C & M Con- struction case, the Union's practice is to approach nonmember employers with a copy of the Associa- tion agreement for the employer's signature. The contract used has a line "For the Employer," and this is where the nonrepresented employer signs. The Association contract, however, has a line for "the Employer," but also lines for signatures of the "Chairman" and "Executive Secretary" who sign for employers whose names are listed. The Union, therefore, treated Respondent in this respect as it did other nonrepresented employers. Moreover, when the Union prepared the final copy of the agreement with the Association it did not include Respondent's name in the list of employers on whose behalf the officers of the Association were executing the agreement. The Union's actions and stated reason for strik- ing and picketing Respondent is similar to union conduct in cases cited by Respondent and is con- sistent with other facts indicating acquiescence. When Schultz and Petrakis met with Collins on September 2 and 3 they hoped and expected that Respondent would "sign the contract on the same terms as the Indianapolis area settlement," accord- ing to Schultz, but no particular contract was referred to, and when Collins argued that he could not afford the economic package contained in the area agreement, the Union proposed that he accept it for 1 year, rather than 2, as in the Association contract. Immediately after Respondent's refusal, Schultz and Petrakis reported to the membership the results of their meetings with Respondent, and the employees voted to strike because Respondent had "turned down the area agreement." Picketing began on September 4, and on that day Schultz wrote Collins and informed him that the employees had struck "protesting the management's stand on committee which is present at Association bargaining, but it is like the union group which is present in the caucus room at multiemployer bargain- ing ready to advise and be consulted about things which may affect their particular employer 427-835 0 - 74 - 61 948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD their contract proposal" and added that the Union was ready to meet again whenever the Employer was willing. The Union's contract proposal was what had been offered Collins on September 3, and Schultz conceded that the strike was over Collins' position as of September 2 and 3. Nothing was said on September 2 and 3 about Respondent already being bound by an agreement, and the strike, picketing, and Schultz' letter revealed no cause for the strike other than Respondent's September 2 and 3 position which was its refusal to reach an agreement with the Union. '9 On September 10, 1969, only a week after the strike, the Union filed an unfair labor practice charge against Respondent alleging that it had refused to bargain in violation of the Act in a unit of Respondent's employees, in that Joseph Collins on September 3 "informed the said representatives of the Union that he refused to meet with the representatives for the purposes of negotiating a contract and that he did not intend to make a counter offer to the Union's offer made to him on September 2, 1969." The charge is, of course, con- sistent with what Schultz said caused the strike and relates only to Respondent's and the Union's rela- tionship in the bargaining area. Negatively it is silent about the Association and about any Associa- tion agreement that Respondent might be bound by. Finally, on Respondent's side of the ledger, as found above, the Union continued to meet with Respondent after the strike until not long before the hearing in this case and during these meetings it listened to counterproposals and agreed to a management rights clause. In General counsel's view, the common signifi- cant controlling factor in Publicity Engravers, Inc., and other cases where "implied consent" to an un- timely withdrawal was found was the union's failure to timely protest the untimely withdrawal. It is true that in certain cases the Board has stressed the union's failure to object to or protest an employer's withdrawals as evidence of its acquiescence in the withdrawal,20 but there were always other factors present which indicated consent. From my reading of the cases, positive action on the union's part is more significant in this area than mere silence, for not only may there be no duty to speak out im- mediately but, as General Counsel suggests, the union may accept the fact of the employer's withdrawal of authority from the association and consider it unrealistic to ignore it and to rely in- stead on the theory that the employer is already legally bound by what the other employers have agreed to. The Union did object to Respondent's withdrawal in this case as soon as it learned of it, but if silence is significant, the Union's objection, it " Publicity Engravers, Inc , supra , 227, C & M Construction Company, supra, 846 Y0 Publicity Engravers, Inc , supra , C & M Construction Company, supra must be noted, was made only to representatives of the Association and never to Respondent, and, moreover, it was never raised thereafter with the Association even though final agreement was reached after additional bargaining. But more im- portant, the Union then engaged in individual bar- gaining with the Respondent on many occasions after he withdrew, as set out above, and it is this positive conduct which indicates more clearly than silence that the Union has consented to his withdrawal. In Service Roofing Company,21 the Board distinguished Publicity Engravers, Inc., and C & M Construction Company by noting that in those cases the union "sought to obtain a separate con- tract from an employer whose withdrawal from a multiemployer unit was untimely." In John J. Cor- bett Press, Inc.,22 the Board, in finding no implied consent to withdrawal, adopted the findings and reasoning of the Trial Examiner who stated: "`Con- sent,' in legal contemplation, arises only from ex- press statement or as an implication from conduct. Where implied from conduct, that conduct must normally involve a course of positive action clearly antithetical to a claimed position. Typical of such antithetical conduct is union resort to individual bargaining with an employer following his asserted withdrawal from a multiemployer bargaining unit, and this is the, or a, key fact indicative of consent to withdrawal." As sympathetic as I find myself to the Union in its dilemma, there can be little question but that it engaged in a course of in- dividual bargaining with Respondent after it reached final agreement with the Association. That the Union wanted or expected Respondent to agree to the terms of the Association agreement is not legally significant,23 and in any case, as found above, the Union offered Respondent terms dif- ferent from those it had settled on,with the Associa- tion. Publicity Engravers,' Inc., and cases like it, control this decision, and I find that the conduct which the Union engaged in in this case establishes that it had consented to Respondent's withdrawal from multiemployer bargaining. Having found that Respondent withdrew from multiemployer bargaining with the Union's consent, the allegations of the complaint that Respondent, since July 29, 1969, the date of Respondent's withdrawal, had refused to bargain with the Union in an association unit have not been sustained. It follows that the allegation that Respondent im- properly refused to execute the Association agree- ment at the Union's request has not been established, and the strike of September 3, 1969, therefore, was not caused or prolonged by any un- fair labor practices Respondent had engaged in. I conclude that Respondent did not violate Sec- tion 8(a)(I) and (5) of the Act, as alleged. 21 173 NLRB 321, fn 9 22 163 NLRB 154, 158 " Publicity Engravers, Inc , supra, 228 JOSEPH C. COLLINS & CO, INC. 949 CONCLUSIONS OF LAW 3. Respondent has not violated Section 8(a)(1 ) and (5 ) of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case , I make the following conclusions of law : RECOMMENDED ORDER 1. Respondent is an employer engaged in com- merce within the meaning of the Act. 2. The Union is a labor organization within the It is recommended that the complaint be meaing of the Act. dismissed in its entirety.