Sav-Mor Foods

SAV-MOR FOODS 39 Eberle Builders, Inc. d/b/a Sav-Mor Foods and Retail Clerks Local 1439, affiliated with Retail Clerks International Association . Case 19-CA-4501 record, and after due consideration of the briefs filed by the Respondent and Charging Party, there is hereby made the following: October 21, 1970 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On June 3, 1970, Trial Examiner Henry S. Salim issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in certain unfair labor practices alleged in the complaint, as set forth in the attached Trial Examiner's Decision. Thereafter, the Charging Party filed timely exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommend- ed Order of the Trial Examiner and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. 1 We find it unnecessary to the Decision herein to hold that the law placed an affirmative duty on the Union to make inquiry of Respondent regarding doubts the Union might have had with respect to Respondent's March 31 letter. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HENRY S. SAHM, Trial Examiner: This case heard at Spokane, Washington, on February 24, 1970, pursuant to a charge, filed the preceding September 15, and a complaint I issued December 11, 1969, presents one question, namely: whether the Respondent effectively withdrew from a multiemployer collective-bargaining unit. Upon the entire I Para. 5 of the complaint which reads "Associated Industries of Spokane" was amended to read "Associated Industries of the Inland Empire." 2 The reporter mistakenly captioned the parties' joint exhibits as "Joint FINDINGS OF FACT2 I. THE BUSINESS OF THE RESPONDENT AND THE LABOR ORGANIZATION INVOLVED Respondent, herein called also Sav-More Food Stores, Inc., and Sav-More Foods, a Washington corporation, is engaged at Spokane, Washington, in the retail sale of groceries, meat products, and miscellaneous articles. At its food market at 1019 East Francis Street, the said grocery store annually sells groceries, meats, and sundries valued in excess of $500,000, of which items valued in excess of $50,000 were purchased and received directly from suppliers who, in turn, had received said goods from outside the State. It is found Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The Charging Party, Retail Clerks Local 1439, affiliated with Retail Clerks International Association, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Undisputed Facts The Sav-More Food Stores, Inc., incorporated. in the State of Washington on April 22, 1959, was a member of the Associated Industries of the Inland Empire, herein called the Association, for the purpose of collective bargaining prior to and during 1964. In 1964, the Association and Retail Clerks Local 1439, hereinafter referred to as the Union, executed a 5-year collective- bargaining agreement. Sav-More Food Stores, Inc., ran into financial difficulties and executed on March 6, 1967, by its majority and principal shareholder, Anton Eberle, an assignment to the Spokane Merchants Association for the benefit of its creditors, transferring all its assets including $22,000 in cash. At the time of this assignment, Sav-More Food Stores, Inc., which at one time operated six grocery stores, was operating only one store located at 1019 East Francis Street in Spokane. After this creditors' assignment, the East Francis Street store, the remaining store of Respondent, was operated by the Spokane Merchants Association, and it advised creditors of Sav-More Food Stores, Inc., of the status of the assignment for the benefit of creditors. Spokane Merchants Association operated the store for approximately a week from March 6, to March 14, 1967, and the store then closed on March 15. On March 23, 1967, Eberle Builders, Inc.,3 "primarily owned by Anton Eberle" purchased for $65,000 the inventory and fixtures of the East Francis Street store from Spokane Merchants Association, whereupon Sav-More Food Stores, Inc., went out of existence. On March 23, Board's." It is hereby corrected to read "Joint Exhibits." 3 Anton Eberle and his wife are incorporators and owners of both Eberle Builders, Inc., which was incorporated in 1956, and Sav-More Food Stores, Inc., established in 1959. 186 NLRB No. 8 40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1967, Eberle Builders, Inc., d/b/a Sav-More Foods, entered into a lease agreement whereby the store was rented by Anton and Marianna Eberle, husband and wife. On the same day, Eberle Builders, Inc., and Anton Eberle and his wife, Marianna, executed a chattel mortgage and real estate mortgage with Spokane Merchants Association as the mortgagee.4 The following day, March 24, the store was reopened for business by Eberle Builders, Inc., doing business under the firm name of Sav-More Foods.5 On March 13, 1969, the Union served notice on the Association, and on "[Anton] Eberle or Marilyn Peterson" stating that "This letter will serve as a sixty (60) day notice that we desire to open our agreement for modification and additions to the present agreement that expires June 1, 1969."6 By certified letter dated March 31, 1969, Joseph P. Delay, "Attorney for Tony Eberle et ux," notified the Union as follows: This letter is 60 day notice that Tony Eberle or Marilyn Peterson does hereby terminate and cancel the present agreements that expire June 1, 1969, effective June 1, 1969. By letter dated March 31, 1969, the Association sent to 10 named employers, a copy of the Union's new contract proposals and notice to attend a negotiating meeting on April 9. The Respondent's name does not appear among the named addressees. Meetings were thereafter held and on May 13, 1969, the Association sent a letter to eight named employers, but Respondent's name does not appear among those listed, enclosing "a summary of the status of negotiations to date" and a notice when the next negotiating meeting would be held. On August 18, 1969, the Union and Association executed a collective-bargaining agreement captioned "Spokane Food Agreement" effective from June 1, 1969, to June 1, 1972. Shortly after the Union delivered a copy of the 1969-1972 "Spokane Food Agreement" to Respondent, it began picketing the Sav-More Foods store at 1019 East Francis Street on September 8, 1969, and picketing was continuing on February 24, 1970, the date of this hearing. B. The Testimony Dannie O'Brien, secretary-treasurer of the Union for 8 years, was the General Counsel's sole witness. He testified that at no time from 1967 to 1969, inclusive, did he or the Union ever receive a notice of withdrawal from Anton Eberle, Marilyn Peterson, Sav-More Foods, Inc., Eberle Builders, Inc., Sav-More Food Stores, Associated Indus- tries of the Inland Empire, or anyone else that the Association no longer represented Eberle or any of his corporate entities for the purpose of collective bargaining with the Union. On cross-examination, O'Brien was referred to a letter dated March 31, 1969, which he admitted receiving from 4 Spokane Merchants Association changed its name to National Association of Credit Management Its former name is used in this Decision as that is what it is referred to in the transcript 5 Counsel for the Union proposed a stipulation that when Sav-More Foods opened for business on March 24, 1967, that it employed "basically the same employees who were employed" by Sav-More Food Stores, Inc, but the parties were unable to agree However , Marilyn Peterson, manager, and a part owner of the store, testified that when the store reopened, they employed the same people who worked in the bankrupt store This Joseph P. Delay, Eberle's lawyer, notifying the Union that Eberle was terminating, as of June 1, 1969, his authority for the Association to represent him in the impending new contract negotiations with the Union which were scheduled to begin shortly.7 O'Brien acknowledged he did not contact Eberle or his attorney after receiving the said notice. When he was asked: "Didn't you wonder what the attorney meant when he sent that letter?", his answer was "No, I did not." Respondent's counsel then asked him again, "Why didn't you wonder about it?" and O'Brien ambiguously replied: First of all, they had been, and still are, as far as I am concerned, they had been affiliated and a member of the Association, regardless of whether they are dues paying members or not, they are represented by the Association. Some of the exhibits will prove this fact so it was not necessary for us to be concerned about the letter. Counsel persisted and asked O'Brien if he did not think he should have advised Respondent that he had received this notice of withdrawal and his equivocal answer was "Not necessarily." Then he was asked if he didn't feel that he had to do anything and his evasive answer again was "Not necessarily." Respondent's counsel made reference to a union letter, dated March 13, 1969, addressed to the Association's then manager, Charles R. Lyon, which listed the names of nine employers, but did not include Respondent, which letter stated the Union was giving 60-day notice of intention to reopen the contract due to expire on June 1, 1969.8 The letter, which was signed by O'Brien, also stated that the Union "ha[d ] requested a new list of the employers that the association may now represent or no longer represent without answer. However, let it be know [sic] by this letter that this is a sixty (60) day opener that this is to include all employers of the food agreement that is now signatory to the present agreement." O'Brien was then asked why in listing the names of the employers in his letter (Joint Exh. 12), he failed to include Respondent and his answer reads as follows: I think you will find on that particular opener going to the Association, that I included several members of the Association that they did the negotiating for, however, you will also find that I sent out particular individual notices to those that were affiliated and those who were not affiliated with the Association. Such a letter dated March 13, was sent by the Union to "Mr. Tony Eberle or Marilyn Peterson." Eberle then turned over this letter on March 19, to his attorney, Joseph P. Delay, who, in turn, notified O'Brien by letter dated March 31, that Respondent was no longer represented by the Association 9 Dannie O'Brien, the union official, was asked, if during the 1969 negotiations with Michael J. O'Brien, manager of testimony stands uncontradicted See infra 6 The agreement executed on June 1, 1964, was to expire on June 1, 1969, supra r A copy of this letter was also sent to the Association. See above 8 Joint Exh 12 This letter also states, inter alia, "We understand the Associated Industries now or did represent the following firms " and then listing the names of the above-referred to nine Spokane area grocery store owners 9 See Joint Exh 17 above SAV-MOR FOODS the multiemployers' bargaining association, they had discussed Respondent's "status. " 10 Dannie O'Brien's answer reads as follows: Oh, I don't actually recall what was mentioned, but there had been some comment in regard to the letter that I received from the attorney.... on April 2nd. Union official O'Brien went on to testify that upon receipt of Respondent's notice of withdrawal from the Association that he failed to contact either Eberle or his attorney. When O'Brien was asked when he first learned that "Respondent withdrew from the Association," his answer was: "Actually I was not aware of it until after we had completed negotiations." It was stipulated that the Union and Association executed the agreement on August 18, 1969. O'Brien admitted that he was aware Respondent was experiencing "financial difficulties" testifying that when the 1964 contract was signed that Respondent owned five stores but that he later "disposed" of four stores. He denied, however, knowing that Respondent had made an assign- ment of all his assets for the benefit of his creditors in March 1967. When it was pointed out to O'Brien by counsel that he was a trustee and secretary of the Retail Clerks Health and Welfare Trust Fund, O'Brien was forced to admit, after a considerable amount of circumlocution, that he knew the trustees of the above-mentioned fund filed a claim against Respondent for debts owed to the Retail Clerks Joint Labor-Management Trust.1' Michael J. O'Brien,'imanager of Associated Industries of the Inland Empire, since April 1, 1969, was the industry spokesman for the employer members of the Association, in the negotiations with the Union which began on April 9 and culminated in an agreement being executed on August 18, 1969.12 O'Brien, the Association's manager, testified as follows: The letter dated March 31, which the Union sent to the employers listed in the letter, requested them to attend a negotiating meeting on April 9, and testified O'Brien they "were the members of Associated Industries, to my knowledge, as of that date of March 31, the members that we were representing in collective bargaining.. . . I did not consider [Eberle] as being represented in the negotiations," which commenced on April 9.13 When O'Brien, the Association's manager, was asked if the Union inquired during the course of contract negotiations whether the Association was representing Respondent, he replied as follows: My best recollection is that it was approximately the 5th of July. . . . I would say roughly the 1st of July of '69. Dannie O'Brien, the secretary of Retail Clerks, contacted me. My recollection is it was after one of our negotiating meetings. . . . He said something to the effect, "Where does Eberle fit into this, are you representing Eberle?" My reply was that I didn't know. I said I would check and I called Mr. Eberle. . . . I called Mr. Eberle at his store and asked him if Associated Industries was representing him in the negotiations and he said no, very flatly he said no, that he did not wish to be represented in the negotiations. 41 ... I called Dannie O'Brien prior to July 18 I believe about July 1, and I said that I did check with Mr. Eberle and he said that Associated Industries did not represent him in these negotiations. I contacted Mr. O'Brien by telephone and said I had talked to Mr. Eberle and that Mr. Eberle said that Associated Industries was not to represent him or Sav-More during these negotiations. Well, Dannie said then that he would contact Mr. Eberle after the negotiations were over and he would sign a contract or have pickets. I remember the pickets because I think there was some discussion about the fact that the pickets would hurt Mr. Eberle in the particular location where his store was. . . . I believe I related this to Mr. Eberle, that he was faced with this when the negotiations were completed. The witness continued that he has had occasion to check on the membership status of Respondent, Eberle or his Company, since his conversation with O' Brien, the Union's negotiator, and he determined from the records of the Association that "Mr. Eberle rejoined our Association, I believe, on March 5th. . . . but I think it was March 5th that he sent the application back to reenter the Association, March 5, 1969." Respondent's Exhibit No. 2 shows that Sav-More Foods by Anton Eberle filed an application for membership in the Associated Industries of the Inland Empire, dated March 5, 1969, with the "effective date of membership April 1, 1969." When O'Brien was asked if Respondent has been a member of the Association since April 1, 1969, his answer reads as follows: I would say they were, Your Honor, until approximate- ly August or September when they terminated the membership. They sent back the billing and said to cancel their membership, that they . . . In fact, I don't know that it [a letter of termination] exists. It was the bill we sent out and there had been a notation on it to please cancel their membership and that was all. Our secretary might have thrown it away even.. . . I believe it was signed by Tony Eberle, but I couldn't say that for sure. He stated at one point in his testimony, the approximate date that he received the withdrawal notice from Eberle was "either August or September 1969." TRIAL EXAMINER: Can you recall whether it was before the execution date of the new contract of August 18, 1969, was it before or after that? THE WITNESS: I would say it was after that, Your Honor, because it was after the picketing had com- menced. I would say it was after the execution of the new contract. When the witness was informed that it was stipulated picketing began on September 8, his reply was: "On that basis I think it came in September 8th." O'Brien testified that he examined the Association's membership records and other records as to the payment of membership dues by its members and that he looked also into the membership status of Sav-More Food Stores, Inc., in 1967. He had with him at the hearing the ledger sheets which he referred to as the "dues register," for the period 10 The negotiations which began on April 9, 1969, eventuated in a collective-bargaining agreement being executed on August 18, 1969. 11 It appears that the Retail Clerks Joint Labor-Management Trust and the Retail Clerks Health and Welfare Trust Fund are one and the same. 12 Not to be confused with Dannie O'Brien, the union official. 13 See Joint Exh. 12 and supra. 42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from January 1967 to May 1967, inclusive, which shows for Sav-More Foods, Inc., that "as of the end of the year of 1966 there was a balance due of $60 and it shows the monthly dues were $20 per month at that time. It indicates that the dues for the last 3 months of 1966 had not been paid. It shows in January an entry of $20 dues which were payable. It shows that they were not paid through January. It shows in February that the dues were reduced to $5 per month and that was billed to Mr. Eberle and was paid on the 24th of February, leaving a balance still of $80. Then there was another billing in March of $5 making a balance of $85. Then in April there is a notation of out-of-business and a line drawn and the ledger stops there as far as Mr. Eberle is concerned, Sav-More stores is concerned." When O'Brien was asked the approximate date when the "out-of- business" notation was placed in the dues register, opposite Respondent's name , he testified, "it was in the period covered by the month of April [1967] when dues would have been registered." When he was asked what is the policy of the Associated Industries in regard to its members' dues delinquencies he answered: [The bylaw as to nonpayment of dues] is that it is discretionary with the manager and/or the board of directors as to whether a member may be dropped [for dues delinquency]. O'Brien concluded his testimony by stating that there was approximately $85 owed by Eberle "at the time the books were closed on him," and that he did not consider him a member of the Association after April 1967. On cross-examination, Michael O' Brien testified that he telephoned Eberle in July at which time Eberle advised him that the Association was not to bargain for him. However, continues O'Brien's testimony, he first learned that Eberle withdrew from the Association when he received a copy of a letter dated March 31, 1969, which Eberle's attorney wrote to Dannie O'Brien, secretary-treasurer of the Union.14 It was elicited by counsel for the Union that the witness has never seen a writing expelling any member of the Association. However, O'Brien, who assumed the manager- ship of the Association on April 1, 1969, stated: I believe there have been letters to members to say that we are terminating their membership because of nonpayment of dues, but there is no form as such. It would be a letter from the manager to the member. He states, however, that he has never seen such a letter directed to Sav-More Food Stores, Inc., or Eberle Builders, or to Eberle himself. Marilyn Peterson, manager of the East Francis Street store, has been employed by Respondent since 1959.15 Her testimony that when the store reopened on March 24, 1967, after Respondent had suffered financial difficulties, all the personnel hired "were former employees of ours," stands uncontradicted in the record.16 Peterson testified that after the execution of the collective-bargaining agreement on 14 See Joint Exh 17 15 Anton Eberle testified that Peterson invested money in the store which enabled him to reopen in March 1967 16 See fn 5 , above 17 Lyon was employed by the Association at least until March 21, 1969, because on that date he wrote a letter to the Union See Joint Exh 16 Lyon acknowledged this in his testimony when he stated that he reported August 18 , 1969 (Joint Exh. 21 ), Irene Kremer, business representative of the Union, came to the store, handed her the newly executed contract and said : "Marilyn, I know you are not too interested in this, but I have to bung it to you. Will you see that Tony [Eberle] gets it to look over? She said, `Just between you and I , Dannie [O'Brien] has talked to the Teamsters Union and he is out to get you.' " Charles R. Lyon, was manager of the employers' association for 7 years until "the middle of March" 1969.17 Among his various duties were handling the labor relations of the Association , including contract negotiations with the Union. During the course of his testimony, reference was made to Joint Exhibit 16, which is a letter dated March 21, 1969, from Lyon to O'Brien, the Union's secretary- treasurer, in reply to the Union 's request for a list of those employers represented by the Association . Lyon in listing the employers represented by the Association included "Savemore Foods." 18 When Lyon was asked at the hearing, why he included Respondent "Savemore Foods" in his letter to the Union but the Union 's letter did not list said Respondent, he replied : "I do not have the answer to that because it is a part of memory and my memory, frankly, is not that conclusive on the matter." Lyon testified that Eberle called him on "several occasions" during the month of March 1969 , and "we talked about various problems which he had in the operation of his store." His testimony reads as follows. Q Was Sav-More a member of your association at any time, to your knowledge? A. They were long-time members of Associated Industries and were members at the time the 1964-1969 agreement was negotiated. They remained members until certain reverses caused them to resign . The date of that resignation, I do not have. Q. You don't know for a fact whether there was any written resignation as such , do you? A. No, I do not. Q. Now, when you prepared the letter which is Joint Exhibit 16, were you aware of any membership application from Mr. Eberle or Sav-More Foods for membership in the association? A. I cannot answer that specifically because I do not remember whether there was an application specifically at that time. Q. I would like to show you Respondent's Exhibit 2. When you wrote the letter which is Joint Exhibit 16, were you aware of Respondent's Exhibit 2? A. I cannot say that I was or was not.19 Anton Eberle, was and is president of Sav-More Food Stores, Inc., and Eberle Builders, Inc., doing business as Sav-More Foods Sav-More Foods, Inc., operated six grocery stores in November 1959. At that time Eberle had collective-bargaining agreements with both the Union in to a new job on April I, after resigning as manager of the Association Michael O'Brien succeeded Lyon on April I 1s See Joint Exh 12, the Union's letter which does not list Sav-More Foods 19 Resp. Exh 2 is Eberle's application for membership, dated March 5, 1969, in the Association, "effective" April 1, 1969 SAV-MOR FOODS 43 this proceeding and the Teamsters. In 1966, one of his stores was destroyed by fire, a month later he closed two more stores and a fourth store was vacated due to a failure to pay the rent so that only one store remained open in December 1966. In March 1967, due to his inability to pay his debts, some of his creditors brought involuntary bankruptcy proceedings against Eberle. In March 1967, Eberle assigned all his assets to the Spokane Merchants Association and an agreement was reached with his creditors whereby he paid $3,000 each month to the Spokane Merchants Association for the benefit of his creditors. Eberle testified that in March 1967, Eberle Builders, Inc., purchased the store and its equipment, which he now operates, from the Spokane Merchants Association for $65,000 to be repaid over a period of years. Eberle's testimony continues as follows: He was not a member of the Association in March 1967, due to his financial situation being so grave that he was unable to pay his monthly association dues and fell into arrears. He did not recommence paying his dues until March 1969, when he made application on March 5, to again join the Association, effective as of April 1.20 His testimony continues that he filed his application with Otto Warn, Secretary of the Association, at which time he told Warn: ... I was only interested in the insurance program. I did not want to authorize him for collective bargaining. Eberle stated he received the Union's letter dated March 13, 1969, notifying him of its intention to begin negotiations for a new contract which he turned over to his attorney, J. P. Delay, at which time he instructed Delay "to get about a 60-day termination of contract." After Attorney Delay sent Eberle a copy of the letter which Delay sent to the Union (Joint Exh. 17), Eberle never heard anything further from the Union. Nor was he advised, testified Eberle, that the Association was engaged in negotiating a contract with the Union. The last witness who testified was Dannie O'Brien, secretary-treasurer of the Charging Union, who was called on rebuttal. O'Brien admitted that he had received the letter dated March 31, 1969, from Eberle's attorney which notified him that Respondent "does hereby terminate and cancel the present agreements that expire June 1, 1969, effective June 1, 1969," and that he had a conversation with Michael J. O'Brien, manager of the Association, -regarding this letter which the Union received on April 2nd.21 C. Credibility Union official Dannie O'Brien's testimony is not credited that he did not learn until after the contract was executed on August 18, that he first knew Respondent had withdrawn from the Association. O'Brien knew Respon- dent was having serious financial reverses. He incredibly testified that he had no knowledge of Eberle having made an assignment for creditors, then contradicted himself by admitting he knew the Union had filed a claim against 20 See Resp. Exh. 2. 21 Joint Exh. 17. 22 See , supra and infra. Eberle for payments due to the Retail Clerks Health and Welfare Fund of which O'Brien was trustee and secretary.22 Moreover, O'Brien never claimed when he testified that Eberle's lawyer's letter was ambiguous . The evidence is to the contrary as evidenced by the Association 's manager notifying him on July 5, 1969, that Eberle was not represented by the Association in the negotiations which were then in progress. D. Contentions There is no question of successorship involved here as Respondent admits it is the successor of Sav-More Food Stores, Inc. The only issue to be resolved, therefore, is whether Respondent effectively withdrew from the mul- tiemployer bargaining unit? The Charging Union's counsel contends that the only notice of any kind received by the Union from the Respondent was the letter of Respondent's attorney dated March 31, 1969. (Joint Exh. 17.) However, argues the Union, that letter on its face makes no mention of any withdrawal from the multiemployer bargaining unit. The letter, continues the union counsel in his brief, fails to notify the Union that Respondent is not a member of the Association. ". . the only communication," reads the brief, "is totally deficient on its face to constitute notice of withdrawal from a multiemployer bargaining unit." For the reasons hereinafter stated, it is found Respondent effectively and timely notified both the Union and Association of its withdrawal from the multiemployer bargaining unit represented by the Association.23 After the Respondent received an individual reopening letter dated March 13, 1969, from the Union, Respondent's attorney sent a certified letter on March 31, to the Union, notifying it that Eberle and Peterson "terminate and cancel the present agreements that expire June 1, 1969, effective June 1, 1969.11 This letter was received by the Union on April 2, sixty days prior to June 1, 1969, as required by the provisions of the expiring collective-bargaining agreement. Then too, the letter of withdrawal dated March 31, 1969, (Joint Exh. 17) notified the Union prior to the time when negotiations commenced on April 9, 1969, that it was no longer represented by the Association. Assuming, as the Union argues, the language in the March 31 letter, leaves much to be desired, which is contrary to the finding made herein, nevertheless, under the circumstances of this case, it is clear that the Union, as evidenced by its subsequent conduct, knew that Respondent was notifying it of its withdrawal from the bargaining unit. In fact, when O'Brien, the union official, was asked if he "wonder[ed] what the attorney meant when he sent that letter?", his unequivocal answer was: "No, I did not." Cogent evidence corroborating this conclusion is the Union's unaccountably slumberous silence and culpable inaction in the context of the March 31st letter which is tantamount not only to a tacit, if not explicit admission, that the Union was in legal intendment, implicitly acceding and assenting to the Respondent's withdrawal notification 23 As there is no question of successorship, the designation "Respondent" includes Sav-More Food Stores, Inc., and Eberle Builders, Inc., doing business as Sav-More Foods. 44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of March 31, which was received by the Union on April 2nd.24 Furthermore, it would appear that, under such circumstances, the law placed an affirmative duty on the Union to make inquiry of Respondent if there was any doubt on the Union's part with respect to Respondent's March 31 letter. There was no such uncertainty as evidenced by O'Brien's conduct. Equally probative of the above finding is the Union's knowledge that the Respon- dent was experiencing serious financial difficulties as shown by its filing a claim against Respondent when it was delinquent in its payments to the employees' health and welfare fund. The Union also knew that Respondent's six stores had been reduced through financial difficulties to one and that a new entity was operating the one surviving store, as manifested by its March 13th notification addressed to "Mr. Tony Eberle or Marilyn Peterson." 25 Moreover, it is not without significance that the Union's letter of March 13, 1969 (Joint Exh. 12), which omitted Respondent's name, appears to indicate that it knew Respondent was no longer represented by the Association. Also corroborative of this finding is the fact that on May 13, 1969, the Union mailed a letter addressed to named employers but Respondent's name is not included among the employers listed, enclosing "a summary of the status of negotiations to date" and a notice when the next negotiating session would be held.26 It is not too unreasonable an inference that the Association's notation "out of business," opposite Respon- dent's name in its dues register, plus Michael O'Brien's answer in reply to a question by Union's counsel, that Association members are terminated for dues delinquency, justifies the finding that Respondent was not an association member at that time. The realities of business life would seem to lend credence to this inference. Additional corroboration for this conclusion is the uncontroverted evidence that Respondent, during all times relevant herein, attended no meetings, was sent no contract proposals and the record fails to disclose that Eberle was even aware that negotiations were in progress. Moreover, the testimony of Michael O'Brien, manager of the Association, and the employers' chief negotiator, that. he did not consider Respondent as being represented in the negotiations is dispositive of the issue as to whether Respondent effectively withdrew from the multiemployer bargaining unit, in the context of O'Brien's testimony that he told Union Official 24 See above, where union official Dann admitted that Michael O'Brien , the Association' s manager , and he had discussed Respondent's lawyer's letter to him 25 Joint Exh 13 26 See above 27 In July, O'Brien, the Union's official, asked O'Brien, the Association's manager, "Where does Eberle fit into this, are you representing Eberle1" When Michael O'Brien asked Eberle, the latter O'Brien in July that "Eberle said that Associate Industries was not to represent him or Sav-More during these negotiations." See supra. Equally revealing is Lyon's testimony, O'Brien's predecessor, that Respon- dent "resigned" from the Association. See above. In fact, it was not until three weeks after the contract was executed that the Union, in a pro forma gesture, delivered the contract to Respondent and immediately thereafter commenced picketing its store. It would seem, under such circumstances, that the description `pro forma" is not only reasonable but warranted in view of the fact that picketing commenced on September 8, and a charge was filed with the Regional Office on September 15. Accordingly, it has not been shown by a preponderance of the evidence, as well as the Union's silence and inaction after receiving the March 31, withdrawal letter, that Respondent ever authorized the Association to execute the August 18, 1969, multi-employer collective-bargaining agreement on its behalf.27 The evidence, on the contrary, indicates Respondent effectively withdrew from the bargaining unit on or about April 2, 1969, and at no time thereafter did it authorize the Association to bargain on its behalf. It is concluded, therefore, upon the basis of the entire record, and the applicable law, that the General Counsel has failed to sustain the burden of proving by the necessary preponderance of all the credible evidence that the Respondent was a member of the Association and one of the employers encompassed within the collective- bargaining unit at any time material to this proceeding. It follows, therefore, that the Respondent is not bound by the 1969-1972 Spokane Food Agreement as Respondent effectively withdrew from the Association before negotia- tions began on April 9, 1969. Nor is the Trial Examiner persuaded that the evidence is sufficiently substantial to support a finding that the Respondent's conduct constitut- ed a refusal to bargain within the meaning of Section 8(a)(5) of the Act in the light of its effective withdrawal from the Association. In view of the foregoing conclusions, and upon the entire record, it is found that the evidence is insufficient to substantiate or warrant a finding that the Respondent committed unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, and it will, therefore, be recommended that the complaint be dismissed in its entirety.28 notified him that he did not wish to be represented by the Association It was then that Union Official O'Brien was informed of Eberle's answer The union official's response, according to Michael O'Brien, was "he would contact Mr Eberle after the negotiations were over and he would sign a contract or have pickets " 21 The conventional "Conclusions of Law" which are customarily repeated at this point are omitted as they will be found in the body of this Decision