Brotherhood of Teamsters, Local 70

454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brotherhood of Teamsters and Auto Truck Drivers Local No. 70, International Brotherhood of Team- sters, Chauffeurs, Warehousemen & Helpers of America and Granny Goose Foods and Lady's Choice Foods, Division of Early California Foods, Inc. and National Biscuit Company and Standard Brands, Inc. and Sunshine Biscuit Company. Cases 20-CB-2227-1, 20-CB-227-2, 20-CB-2227-3, 20- CB-2227-4, and 20-CB-2227-5 February 17, 1972 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY On September 13, 1971, Trial Examiner Stanley Gil- bert issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a support- ing brief, the General Counsel filed limited cross-excep- tions and a brief in answer to the Respondent's excep- tions and in support of the Trial Examiner's Decision, and the Charging Parties filed cross-exceptions and a supporting brief. 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 au- thority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopt his recommended Order' as modified herein.2 ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Trial Examiner and hereby orders that Respondent, Brotherhood of Teamsters and Auto Truck Drivers Local No. 70, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, its officers, agents, and representatives, shall take the ac- ' See Brotherhood of Teamsters & Auto Truck Drivers Local No. 70, International Brotherhood, of Teamsters, Chauffeurs, Warehousemen & Helpers ofAmerica (California Trucking Association, Inc.). 194 NLRB No 106 ' The General Counsel contends the Trial Examiner's Order should spe- cifically name the Charging Parties herein We agree and will modify the Order accordingly The Charging Parties except to the Trial Exqiminer's recommended Order contending that the Trial Examiner failed to recommend that Respondent be ordered to mail copies of the notice to all of its members and that Respondent be ordered to read the notice to its membership at each of two consecutive monthly meetings We agree that the Respondent should be ordered to send copies of the notice to its entire membership and will so provide; however, we do not believe that Respondent ' s conduct herein warrants that it be ordered to read the notice at its membership meetings tion set forth in the Trial Examiner's recommended Order, as modified herein: 1. Substitute the following for paragraph 1(a): "(a) Refusing to give full force and effect to the National Master Freight Agreement and the Joint Council No. 7 Supplement thereto for the contract term April 1, 1970, to June 30, 1973, with respect to employees of Granny Goose Foods; Lady's Choice Foods, Division of Early California Foods, Inc.; Na- tional Biscuit Company; Standard Brands, Inc.; and Sunshine Biscuit Company in the following classifica- tions: All drivers, hostlers, lift jitney operators, forklift operators, platform men, new furniture helpers, and helpers." 2. Substitute the following for paragraph 2(b) (the Trial Examiner's footnote 12 will be retained as set forth in his Decision). "(b) Post at its union offices in Oakland, California, and distribute to its membership by mail or other means, copies of the attached notice marked "Appen- dix." Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by one of Respondent's representatives, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its members are customarily posted. Reasonable steps shall be taken by Respondent to in- sure that said notices are not altered, defaced, or cov- ered by any other material." TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE STANLEY GILBERT, Trial Examiner: Based on charges filed on April 21, 1970, by Granny Goose Foods, hereinafter re- ferred to as Granny Goose; by Lady's Choice Foods, Division of Early California Foods, Inc., hereinafter referred to as Lady's Choice; by National Biscuit Company, hereinafter referred to as Nabisco; by Standard Brands, Inc., hereinafter referred to as Standard; and by Sunshine Biscuit Company, hereinafter referred to as Sunshine, in Cases 20-CB-2227-1, 20-CB-2227-2, 20-CB-2227-3, 20-CB-2227-4, and 20- CB-2227-5, respectively, the consolidated complaint herein was issued on October 30, 1970. The complaint, as amended, alleges that Brotherhood of Teamsters and Auto Truck Drivers Local No. 70, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehouse- men & Helpers of America, hereinafter referred to as the Respondent violated Section 8(b)(1)(B) and 8(b)(3) of the National Labor Relations Act. By its answer, Respondent denies that it committed the unfair labor practices alleged in the complaint and, in addition, alleges various affirmative defenses. Pursuant to notice, a hearing was held in San Francisco, California, on March 16, 17, and 18; April 27, 28, 29, and 30; and May 3, 4, and 5, 1971, before me. All parties were repre- sented by counsel and filed briefs within the time designated therefor. Upon the entire record in this proceeding and my observa- tion of the witnesses as they testified, I make the following: 195 NLRB No.102 BROTHERHOOD OF TEAMSTERS , LOCAL 70 455 FINDINGS OF FACT I THE BUSINESS OF THE COMPANIES INVOLVED HEREIN The five companies involved herein are the Charging Par- ties. It is alleged in the complaint as follows: (a) At all times material herein, Granny Goose, a California corporation with places of business located throughout the United States, including a facility located in Oakland, California, has been engaged in the processing, distribution and wholesale sale of potato chips and other food products. (b) During the past year, Granny Goose, in the course and conduct of its business operations, sold and shipped goods and products valued in excess of $50,000 from its facilities in the State of California directly to non-retail purchasers located outside the State of California. (c) At all times material herein, Lady's Choice, a Cali- fornia corporation with places of business located throughout the United States, including a facility located in Hayward, California, has been engaged in the processing, distribution and wholesale sale of pickles and other food products. (d) During the past year, Lady's Choice, in the course and conduct of its business operations, sold and shipped goods and products valued in excess of $50,000 from its facilities in the State of California directly to non-retail purchasers located outside the State of California. (e) At all times material herein, Nabisco, a Delaware corporation with places of business located throughout the United States, including a facility in Oakland, Cali- fornia, has been engaged in the processing, distribution and wholesale sale of bakery products. (f) During the past year, Nabisco, in the course and conduct of its business operations, sold and shipped goods and products valued in excess of $50,000 from its facilities in the State of California directly to non-retail purchasers located outside the State of California. (g) At all times material herein, Standard, a Delaware corporation with places of business located throughout the United States, including a facility located in San Francisco, California, has been engaged in the process- ing, distribution and wholesale sale of food products. (h) During the past year, Standard, in the course and conduct of its business operations, sold and shipped goods and products valued in excess of $50,000 from its facilities in the State of California directly to non-retail purchasers located outside the State of California. (i) At all times material herein, Sunshine, a New York corporation with places of business located throughout the United States, including a facility located in Oak- land, California, has been engaged in the processing, distribution and wholesale sale of bakery products. 0) During the past year, Sunshine, in the course and conduct of its business operations sold and shipped goods and products valued in excess of 50,000 from its facilities in the State of California directly to non-retail purchasers located outside the State of California. By its answer, Respondent admits the foregoing allegations, and said allegations are found as facts herein. As is admitted by Respondent, each of the above-men- tioned employers has been at all times material herein an employer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED As is admitted by Respondent, it has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act and it has been affiliated with the International Brotherhood of Teamsters , Chauffeurs, Ware- housemen & Helpers of America , herein referred to as IBT. III THE UNFAIR LABOR PRACTICES Respondent admits, and it is found, as follows: For a number of years, and at all times material herein, Respondent has represented a majority of the drivers, hostlers, lift jitney operators, forklift operators, platform men, new furniture helpers and helpers em- ployed by each of the Charging Employers within Re- spondent's geographical jurisdiction and, by virtue of Section 9(a) of the Act, Respondent has been, and now is, the exclusive representative of all the said employees for the purpose of collective bargaining with respect to rates of pay, wages, hours of employment and other terms and conditions of employment. Essentially the unfair labor practices litigated herein are whether or not Respondent violated Section 8(b)(3) and 8(b)(1)(B) of the Act by refusing to abide by a contract and supplement thereto' for the period April 1, 1970, to June 30, 1973, arrived at in multiunion-multiemployer bargaining negotiations which covered the aforesaid employees of the Charging Parties,' and by attempting to coerce each of the Charging Parties to bargain with it for a separate contract. As is set forth more fully below, a contract and supplemental agreement for 1970-73 were negotiated by said multiunion- multiemployer bargaining unit. The record clearly establishes that Respondent refused to abide by said contract and supple- mental agreement vis-a-vis the Charging Parties and sought to negotiate a separate contract with them. The primary ques- tions' to be resolved herein are whether Respondent and the Charging Parties were members of said multiunion-multiem- ployer bargaining unit and whether Respondent effected a timely withdrawal from said bargaining unit. There is little or no dispute as to the material facts, but rather as to what inferences may appropriately be drawn therefrom. The findings herein are based upon credited testimony and docu- mentary evidence in the record. ' Referred to herein as the National Master Freight Agreement and its Joint Council No 7 Supplement ' The allegation in the complaint that Respondent violated Sec 8(b)(3) of the Act by refusing to accept and be bound by said 1970-73 agreement and supplement thereto appears, by its language, to extend to other employ- ers as well as the employers involved herein However, it is not clear from the record herein that the parties attempted to litigate the question of whether Respondent's refusal extended to said other employers It is noted that said issue apparently was fully considered inBrotherhood of Teamsters & Auto Truck Drivers Local No. 70, International Brotherhood of Team- sters, Chauffeurs, Warehousemen & Helpers of America (California Truck- ing Association, Inc.) 194 NLRB No 106, that Trial Examiner Herman Corenman issued his decision therein on August 4, 1971 (TXD-(SF)-99- 71), and that he found that Respondent violated Sec 8(b)(3) and 8(b)(1)(B) of the Act by refusing to be bound by said agreement and supplement thereto and by coercive means sought to bargain individually with members of the multiemployer bargaining unit who were members of the California Trucking Association, inc , an employer association whose representatives participated in said negotiations The Charging Parties herein are not mem- bers of said Association ' Essentially these are the questions considered in Respondent's brief which recites that it is addressed solely to the salient issues raised 11 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. The Multiunion-Multiemployer Bargaining Unit Commencing in 1964, it has been the practice in the truck- ing industry for representatives of a group of the various Teamsters locals and a group of various trucking employers to negotiate national agreements and supplemental agree- ments covering local areas. The Respondent has been one of the local Teamsters unions which participated in such bar- gaining which led to contracts and supplemental agreements for the periods 1964-67 and 1967-70. As stated hereinabove, Respondent is affiliated with the International Brotherhood of Teamsters, Chauffeurs, Ware- housemen & Helpers of America. IBT is divided into four geographical jurisdictions including the Western Conference of Teamsters which comprises locals in 11 western states including California. The Western Conference of Teamsters is further broken down into groups of various locals in certain geographical areas including a group known as Joint Council No. 7. Joint Council No. 7 embraces locals in the San Fran- cisco Bay Area including Respondent which represents em- ployees of various employers in the Bay Area including em- ployees of the Charging Parties. The record is clear that Respondent was a member of the multiunion group which negotiated the 1964-67 and 1967-70 National Master Freight Agreements and the Joint Council No. 7 Supplements thereto. The multiemployer group consists of various state and area employer associations as well as individual employers. An entity was formed called the Trucking Employers, Inc., herein referred to as TEI, which ultimately became the bar- gaining representative for the multiemployer group. B. The Charging Employers' Membership in the Multiunion-Multiemployer Bargaining Group It is the General Counsel's positions, as well as that of the Charging Parties, that at the time negotiations started for the 1970-73 contract and supplements thereto all of the Charg- ing Parties were members of the multiunion-multiemployer bargaining unit. On the other hand, the Respondent contends that they were not, that historically it has bargained with each of said Charging Parties individually. Hereinbelow is set forth a resume of the facts material to this dispute with respect to each of the said Charging Parties. Granny Goose: On February 5, 1965, Granny Goose and Respondent entered into an agreement which provided as follows: It is hereby agreed by and between: Granny Goose Foods, Inc., ' hereinafter called the Union, that the Employer hereby adopts and agrees to be bound by all the terms and conditions of the NATIONAL MASTER FREIGHT AGREEMENT, THE JOINT COUNCIL AND LOCAL 70 LOCAL PICKUP AND DELIV- ERY AGREEMENT, effective July 1, 1964, to and in- cluding March 31, 1967, except as hereinafter provided. The terms of said agreement shall be altered as follows: 1. All references to the Association shall be considered deleted. In its place, the name of the individual employer signatory to this agreement shall be considered as sub- stituted. 2. Article V, dealing with disputes and grievances, shall be referred to a committee consisting of two (2) representatives of the Employer signatory to this agree- ment and two (2) representatives of the Union. ' Although this line is blank, it is apparent from the context that Re- spondent's name was understood to be in this blank space as the other party to the agreement By letter dated January 6, 1967, Respondent wrote to Granny Goose as follows: You are hereby notified that the NATIONAL OVER- THE-ROAD AND CITY CARTAGE POLICY AND NEGOTIATING COMMITTEE, the WESTERN CONFERENCE OF TEAMSTERS, and the under- signed LOCAL UNION as bargaining agents for the involved employees desire to negotiate changes or revi- sions in the NATIONAL MASTER FRIEGHT AGREEMENT and in all AREA, REGIONAL and LOCAL SUPPLEMENTS, ADDENDAS, APPEN- DICES or RIDERS thereto for the contract period com- mencing April 1st, 1967 as provided in Article 37 thereof. If you will not be represented in such negotiations by any Employer Association and desire individual notice of the time and place of future negotiating meetings, please advise this office and the office of the Western Conference. We enclose herewith, a copy of Article XVI, Sections 4, 5 and 6, of the Constitution of the International Brotherhood of Teamsters so that you may be informed of the union's requirement for entering into a binding agreement. Apparently Granny Goose made no reply to said letter. The record does not disclose that there was any communication, written or verbal, between Granny Goose and Respondent with respect to Granny Goose agreeing to be bound by the 1967-70 national agreement and pertinent supplement thereto. It appears, however, that the parties adhered thereto. Lady's Choice: By letter dated September 23, 1963, Re- spondent wrote to Lady's Choice as follows: You are hereby notified that the National Over-the- Road and City Cartage Policy and Negotiating Commit- tee and the undersigned Local Union, as bargaining agents for the involved employees, desire to terminate the Local 70 Local Pickup and Delivery Agreement for the contract period commencing July 1, 1964, and to enter into a National Agreement. If you will not be represented in such negotiations by any Employer Association and desire individual notice of the time and place of future negotiating meetings, please advise the office of the WESTERN MASTER FREIGHT DIVISION OF THE WESTERN CON- FERENCE OF TEAMSTERS, Flood Building, Room 605, 870 Market Street, San Francisco, California. On July 16, 1964, Lady's Choice executed a document which reads as follows- By our signature hereby we signify our commitment to execute the National Master Freight Agreement and the Over-the-Road and Pick-Up and Delivery Supplements thereto for the period of July 1, 1964 to March 31, 1967, and to be bound by the terms and conditions thereof. By letter dated June 9, 1967, Respondent notified Lady's Choice of the changes which were negotiated in the 1967-70 national agreement and supplement thereto. It appears that Respondent and Lady's Choice adhered to the 1967-70 na- tional agreement and supplement thereto Nabisco: In a letter dated July 6, 1965, from Nabisco to Respondent, Nabisco wrote as follows: It is hereby agreed that National Biscuit Company will be governed by the terms of the current Local Pick-up and Delivery Agreement, for the remainder of its present term, between California Trucking Associations, Inc., Drayman's Association of San Francisco and Brother- hood of Teamsters and Auto Truck Drivers Local 70 covering driver members of Local 70 who deliver Na- BROTHERHOOD OF TEAMSTERS , LOCAL 70 457 tional Biscuit Company products from their Emeryville, California Plant to retail outlets. On December 12, 1966, James R. Hoffa, Chairman for the Teamsters Negotiating Committee, notified Nabisco that said committee "on behalf of each of the Teamsters Locals and affiliates" desired to negotiate changes and revisions in the terms of the national agreement and supplement thereto for the contract period commencing April 1, 1967. Said letter further stated as follows: If you will not be represented at such negotiations by any Employer Association, and desire individual notice of the time and place of future negotiation meetings , please so advise this office. It appears Nabisco made no reply to the aforesaid letter. Similar notices with respect to negotiations on a national level and the area level were sent by Respondent to Nabisco asking if Nabisco desired notice of a time and place of negotiating meetings. It appears that Nabisco made no request for such notices. By letter dated July 10, 1967, from Nabisco to Re- spondent, Nabisco wrote as follows: It is hereby agreed that the National Biscuit Company, Emeryville, California will be governed by the terms of the current Local Pick-up and Delivery Agreement, effective April 1, 1967, to and including March 31, 1970, between California Trucking Association, Inc., Dray- man's Association of San Francisco and Brotherhood of Teamsters and Auto Truck Drivers, Local No. 70 cover- ing the Drivers, members of Local Union No. 70, who deliver National Biscuit Company products from their Emeryville, California Plant to retail outlets. Although the aforesaid letter of Nabisco with respect to the 1967-70 contractual period refers only to "Local Pick-up and Delivery Agreement," which is titled "Joint Council No. 7 Local Pickup and Delivery Supplemental Agreement," it is noted that said supplemental agreement recites as follows: "This Agreement is supplemental to and becomes a part of the National Master Freight Agreement...... It is further noted that the supplemental agreement by its terms does not constitute a complete bargaining agreement , and, therefore, it is considered that by its letter of July 10, 1967, Nabisco agreed to become bound by the terms and provisions of the national agreement as well as the Joint Council No. 7 Supple- mental Agreement. Standard: Standard and Respondent subscribed to an agreement on June 15, 1965, and July 9, 1965, respectively, which provided as follows: It is hereby agreed by and between STANDARD BRANDS SALES COMPANY (subsidiary of STAN- DARD BRANDS, INC.) and TEAMSTERS LOCAL 70, hereinafter called the Union, that the Employer hereby adopts and agrees to be bound by all the terms and conditions of the NATIONAL MASTER FREIGHT AGREEMENT, THE JOINT COUNCIL AND LOCAL 70 LOCAL PICKUP AND DELIV- ERY AGREEMENT, effective July 1, 1964, to and in- cluding March 31, 1967, except as hereinafter provided. The terms of said agreement shall be altered as follows: 1. All references to the Association shall be considered deleted. In its place, the name of the individual employer signatory to this agreement shall be considered as sub- stituted. 2. Articles 8, and 42, dealing with disputes and griev- ances, shall be referred to a committee consisting of 2 (two) representatives of the employer signatory to this agreement and 2 (two) representatives of the Union. 3. This agreement is limited to the employer's em- ployees known as local pickup and delivery drivers working out of 921 - 98th Ave., Oakland, California. 4. Holidays New Year's Day Labor Day Washington's Birthday Veteran's Day Memorial Day Thanksgiving Day Fourth of July Christmas Day Admission Day 5. One dollar ($ 1.00) per day in addition to the appli- cable rate in the National Master Freight Agreement will be paid to all drivers performing customer Yeast delivery service when such service requires the driver to determine the amount of Yeast the customer needs and/ or how much he should bring on his next trip and/or when the driver puts away, rotates and/or unwraps the Yeast as a customer service. By letter dated January 6, 1967, Respondent notified Stan- dard of a desire to negotiate changes or revisions in the na- tional and supplemental agreements for the period commenc- ing April 1 , 1967, and requested advice if Standard wished to be notified of the time and place of negotiating meetings. Standard did not request such notification . Apparently some- time in July 1967, Standard and Respondent entered into an agreement which provided as follows: It is hereby agreed by and between STANDARD BRANDS SALES COMPANY (subsidiary of STAN- DARD BRANDS, INC.) and TEAMSTERS, LOCAL 70, hereinafter called the Union, that the Employer hereby adopts and agrees to be bound by all the terms and conditions of the NATIONAL MASTER FREIGHT AGREEMENT, THE JOINT COUNCIL AND LOCAL 70 PICKUP AND DELIVERY AGREEMENT, effective April 1, 1967, to and includ- ing March 31, 1970. Said agreement included the alterations embodied in the aforesaid agreement entered into in 1965 as well as three additional alterations with respect to "overnight lay-overs," the pay scale and a penalty for discrepancies in employees' applications for employment. Sunshine: By letter dated November 4, 1964, Sunshine wrote Respondent as follows: It is hereby agreed that Sunshine Biscuits , Inc. will be governed by the terms of the current Local Pick-up and Delivery Agreement, between California Trucking As- sociations, Inc., Drayman's Association of San Fran- cisco and Brotherhood of Teamsters and Auto Truck Drivers Local 70, Alameda County, covering driver members of Local 70 who deliver Sunshine Products from their Oakland, California plant to retail outlets.' By letter of January 6, 1967, Respondent notified Sunshine of a desire to negotiate changes in the national and supplemental agreements and requested advice as to whether Sunshine wished notice of the time and place of future negotiating meetings . Sunshine did not respond to said letter. By letter dated July 21, 1967, Sunshine wrote to Respondent as fol- lows: It is hereby agreed that Sunshine Biscuits, Inc. will be governed by the terms of the current National Master Freight Agreement, the Joint Council and Local 70 Pick-up and Delivery Supplemental Agreement, cover- ing Teamster members of Local 70 who handle and deliver Sunshine Products from their Oakland, Cali- fornia plant to retail outlets. ' For the reasons indicated hereinabove with respect to a similar agree- ment executed by Nabisco, it is considered that by this letter Sunshine agreed to become bound by the terms and provisions of the national agree- ment as well as the Joint Council No. 7 Supplement thereto 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is concluded that all of the Charging Parties agreed to be bound by the terms of the National Master Freight Agree- ments and the Joint Council No. 7 Supplements thereto for the 1964-67 and the 1967-70 periods, to which Respondent was also bound. It appears that the Respondent does not dispute that fact, but, rather, argues that the history of its bargaining relations with the Charging Parties' demonstrates that each one bargained individually with Respondent and by adopting, on a "me too" basis, the agreements which had been negotiated by the multiunion-multiemployer groups they did not become members of the multiemployer group. It is noted that the Board has held that mere adoption by an employer of an agreement which had been negotiated by a multiemployer group does not, without more, make the employer a member of the multiemployer bargaining unit. Moveable Partitions, Inc., 175 NLRB No. 149. It is well established, however, that an employer becomes a member of a multiemployer bargaining unit when said employer enters into an agreement with the union in which it has clearly expressed a willingness to be bound by the multiemployer unit bargaining negotiations , Weyerhaeuser Company, 166 NLRB 299, even though there be a reservation requiring limited separate negotiations. The Kroger Co., 148 NLRB 569, 574. The 1964-67 and the 1967-70 National Master Freight Agreements contain the following provisions: Article 1 Parties to the Agreement Section 1. Employers Covered The Employer consists of Associations, members of Associations who have given their authorizations to the Associations to execute this Agreement and Supplemen- tal Agreements, members of Associations who have not given such powers of attorney, and individual Employers who become signatory to this Agreement and Supplemen- tal Agreements as hereinafter set forth. The signatory Associations enter into this Agreement and Supplemen- tal Agreements on behalf of their members under and as limited by their authorizations. [Emphasis supplied.] Article 2 Scope of Agreement Section 4. Single Bargaining Unit The employees covered under this Master Agreement and the various Supplements thereto shall constitute one bargaining unit. It is understood that the printing of this Master Agreement and the aforesaid Supplements in separate Agreements is for convenience only and is not intended to create separate bargaining units. This National Master Agreement covering city and road operations of the authorizing members of Trucking Employers, Inc., and the other Associations which have participated in the collective bargaining have resulted from joint collective bargaining negotiations as to com- mon problems and interests in respect to basic terms and conditions of employment, and such Master collective bargaining agreement and Supplements thereto cover a single bargaining unit for the purposes of collective bar- gaining. Accordingly, the Associations and Employers which are parties to this Agreement acknowledge that they are part of a multi-employer collective bargaining unit which is comprised of the following named Associations and those of their members which have or will authorize such Associations to represent them for the purpose of ' Said history is summarized hereinabove collective bargaining, and only to the extent of such authorization, and such other individual Employers which have or may singly become parties to this Agree- ment. [Emphasis supplied.] Article 7 Local and Area Grievance Machinery Provisions relating to Local, State and Area Griev- ance Machinery are set forth in the applicable Supple- ments to this Agreement. * Article 31 Multi-Employer Unit The undersigned Employer agrees to become a part of the multi-employer unit established by this National Master Agreement, and to be bound by the interpreta- tions and enforcement of this National Master Agree- ment. The Employer further agrees to participate in joint negotiations of any modification or renewal of this Agree- ment and to remain apart of the multi-employer unit set forth in such Agreement. [Emphasis supplied.] It is concluded that by agreeing to be bound by the terms of the above-said agreements (which contained the above- quoted provisions of the national agreements), the Charging Parties clearly expressed a willingness to be bound by the negotiations of the multiunion-multiemployer groups and, therefore, were members of the multiunion-multiemployer bargaining unit.' It is clear, and apparently the Respondent does not dispute, that the Respondent was a member of the multiunion group which negotiated the 1964-67 and 1967-70 National Master Freight Agreements and the Joint Council No. 7 Supplements thereto. Furthermore, it is apparent from the communications from Respondent to various Charging Parties notifying them of the desire to negotiate changes and revisions in the existing agreement for the periods 1967-70 and 1970-73 the Respondent considered itself and the Charg- ing Parties to be members of the multiunion-multiemployer bargaining unit. (The communications with respect to the negotiations for the 1967-70 agreement and supplement thereto are set forth hereinabove.) With respect to the negotiations for the 1970-73 agreement by the multiunion- multiemployer groups, notices thereof were sent by the Na- tional Committee on November 24, 1969, and by Respondent on December 19, 1969. Respondent's aforesaid letter con- tained, inter alia, the following: If you will not be represented in such negotiations by any Employer Association and desire individual notice of the time and place of future negotiating meetings, please advise this office and the office of the Western Confer- ence. It appears that none of the Charging Parties made any re- sponse to either of the notices received from the National Teamsters Committee or the Respondent. It is concluded that by their silence each of the Charging Parties indicated their continued willingness to be bound by the negotiations of the multiunion-multiemployer groups for the 1970-73 contracts. ' The changes noted in Respondent's agreements with Granny Goose and Standard, as set forth heremabove, do not affect this conclusion The Kroger Co., supra BROTHERHOOD OF TEAMSTERS, LOCAL 70 459 C. Negotiation of the 1970-73 Agreements On November 17 and 18, 1969, and again on November 30 and December 1, 1969, the negotiating committee of the multiunion group met to discuss bargaining proposals to be made to the employer group. On December 7 and 8, 1969, two delegates from each of the 363 Teamsters locals compris- ing the multiunion group met and unanimously approved the proposals suggested by the negotiating committee. On Janu- ary 7, 1970, the negotiating committee for the multiunion group met with the negotiating committee of the multiem- ployer group. At that meeting the two groups exchanged proposals. The negotiating committee for the multiunion group transmitted its proposals to the multiemployer group not only with respect to the national contract but also for the Joint Council No. 7 Supplemental Agreement. Thereafter, negotiating meetings were held with respect to the national agreement at various times between February 2 and sometime in April 1970. Negotiating meetings were held with respect to the Joint Council No. 7 Supplemental Agree- ment between February 17 and March 13 in which certain items were unresolved. These unresolved items were subse- quently resolved on April 1 or 2 by the national bargaining committees. On April 29, the Teamsters negotiating commit- tee met and approved the national agreement and the various area supplemental agreements including the Joint Council No. 7 Supplemental Agreement. On April 30, the national and supplemental agreements were approved by two repre- sentatives from each of the Teamsters locals in the multiun- ion group. Thereafter, a nationwide referendum vote of all Teamsters members was conducted by the Department of Labor and it determined thereby that the employees had ratified the agreements. In July 1970, the principal negotia- tors for the multiunion and multiemployer groups modified their agreement to provide for an additional wage benefit which resulted from a strike by a Chicago local. Although it appeared during the course of the hearing that Respondent contested the allegation in the complaint that a new National Master Freight Agreement and Joint Council No. 7 Supplemental Agreement for the period April 1, 1970, to June 30, 1973, were entered into by the multiunion-mul- tiemployer bargaining groups, no reference to this contention was made in Respondent's brief. In any event, it is concluded that said agreements were arrived at as above stated. D. Respondent's Contentions It appears from the record and from Respondent's brief that Respondent contends that the Charging Parties' em- ployees are not covered by the aforesaid 1970-73 agreements on two bases. The first basis for this contention (advanced by Respondent in its brief) is that the Charging Parties were not bound by the negotiations for the 1970-73 agreements, since the bargaining history between the Respondent and the Charging Parties discloses that prior agreements were nego- tiated on an individual basis. As set forth hereinabove, there is no merit to this contention since it has been found that each of the Charging Parties had entered into agreements with Respondent, as provided in the 1964-67 and 1967-70 con- tracts, that their bargaining be conducted by the multiunion- multiemployer groups. The second basis for Respondent's contention is that, even if it were to be assumed that Local 70 and the Charging Parties were part of the multiunion-multiemployer bargain- ing unit, Respondent made a timely withdrawal from said unit. Respondent relies on its letter of January 28, 1970, to the various Charging Parties as constituting its timely with- drawal and argues that negotiations did not commence until February 3, 1970. Respondent's aforesaid letter of January 28, 1970, stated as follows: By letter of December 19 , 1969, you were notified that the National Over the Road, City Cartage, Freight Ga- rage, and Freight Office Policy and Negotiating Com- mittee, the Western Conference of Teamsters, and the undersigned Local Union, desired to negotiate changes or revisions in the National Master Freight Agreement and in all area, regional and local supplements, addenda, appendicies or Riders thereto, for the contract period commencing April 1, 1970. It is our understanding that you will not be represented in such negotiations by any Employer Association. Fur- thermore, the nature of your industry is such that it is . not meaningful to conduct negotiations with you at the same bargaining sessions involving the National Master Freight Agreement and the Local Supplement thereto. For these reasons we intend to negotiate a separate agreement from the National Master Freight Agreement and Local Supplement with your industry. Therefore, you are hereby notified that the undersigned Local Union, as bargaining agents for the involved em- ployees, desire to negotiate changes or revisions in the National Master Freight Agreement and in all Area, Regional and Local Supplements , Addenda, Appendi- cies or Riders thereto for the contract period commend- ing April 1, 1970, as provided in Article 37 thereof. You are further notified that this notice applies to any sepa- rate agreement we may have covering freight, garage or freight office employees. Would you kindly respond to this letter within two weeks with our office, so that a time and place of negotia- tions can be agreed upon. It is hoped that a food industry agreement may be arrived at through negotiations at which all local food companies will be represented. It appears that the Respondent by the aforesaid letter at- tempted to detach the Charging Parties from the multiem- ployer group so that it could conduct negotiations directly with the Charging Parties and other members of the "food industry" and set up a multiemployer bargaining unit of em- ployers in said industry. It is well established that an employer or a union may not withdraw from a multiemployer bargaining relationship after negotiations for a new contract are commenced , absent unusual circumstances, except by mutual consent.' It does not appear that unusual circumstances existed in the instant case in view of the fact that there is no showing that the circumstances differed in 1970 from the circumstances which existed when the Charging Parties agreed to be bound by the 1964-67 and 1967-70 National Master Freight Agreements and Joint Council No. 7 Supplements thereto. The record will not support a finding that the Charging Parties consented to the abandonment by the Respondent and Charging Parties of the multiunion-multiemployer bargaining unit. On the con- trary, three of the Charging Parties , Granny Goose, Nabisco, and Sunshine, sent letters to Respondent in reply clearly indicating that they did not consent to the abandonment of the bargaining unit and there is no credible evidence that the other two Charging Parties indicated their willingness to withdraw from the bargaining unit . Consequently, the only remaining issue to be considered is whether the January 28 letter was a timely notice; i.e., prior to commencement of negotiations. " Retail Associates, Inc., 120 NLRB 388, 395 , The Evening News Associa- tion, Owner and Publisher of "The Detroit News," 154 NLRB 1494, 1501, Sheridan Creations, Inc., 148 NLRB 1503, 1505 , John J. Corbett Press, Inc, 163 NLRB 154, 157, Bill O'Grady Carpet Service, Inc, 185 NLRB No. 41. 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As stated hereinabove, the negotiators for the multiem- ployer and multiunion groups met on January 7, 1970, and exchanged proposals for the 1970-73 national agreement and supplements thereto (including the Joint Council No. 7 Sup- plement). It is the opinion of the Trial Examiner that negotia- tions commenced at that point and, therefore, it is found that the January 28 notice was not timely.' Consequently, it is concluded that Respondent and Charging Parties remained members of the multiunion-multiemployer bargaining unit and were bound by the agreements arrived at in its negotia- tions. E. The Picketing by Respondent The record clearly demonstrates that Respondent engaged in picketing at the premises of each of the Charging Parties on various dates in 1970. Although Respondent denied the allegation in the complaint that such picketing occurred and that it was for the purpose of forcing or requiring the Charg- ing Parties to bargain on an individual basis, Respondent offered no testimony in support of its said denial (either to the effect that the picketing did not occur or that it was not for the purpose stated). The pickets carried signs reading: "Teamsters Local 70 on strike" and the name of the company being picketed. The picketing occurred at the premises of Granny Goose and Sunshine, May 14 through 21, 1970, and at Standard on May 19, 1970. Picketing again occurred at Granny Goose, Sun- shine, Standard and Nabisco from November 30 to December 3, 1970, and at Lady's Choice from December 1 to 3, 1970. Subsequent to Respondent's above-quoted letter of Janu- ary 28, 1970, Respondent, commencing on April 9, 1970, sent a number of communications to each of the Charging Parties seeking negotiating meetings with them. None of the Charg- ing Parties complied with the Respondent's request for such negotiations. The last of said requests was transmitted on November 9, 1970, to which counsel for the Charging Parties responded on that date by declining on their behalf, stating that they were covered by a collective-bargaining agreement to which Respondent was a party. Counsel for Respondent responded to said letter, by a letter dated November 13, 1970, stating, inter alia, "I am hopeful you will advise your client to enter into negotiations. If not, Local 70 feels that it has every right to press its position." It is apparent that, commencing on January 28, 1970, and continuing to the date of the hearing, the Respondent took the positions, and repeatedly notified Charging Parties, that it and the Charging Parties were not bound by the multiun- ion-multiemployer negotiations and that the Charging Par- ties should enter into a separate contract with it. It is con- cluded that Respondent engaged in the above-mentioned picketing to force the Charging Parties to accept its position. There is nothing in the record which would tend to support a finding of any other purpose. Respondent did not introduce any testimony intended to show that the picketing was for some purpose other than that of forcing the Charging Parties to abandon their position that they and the Respondent were bound by the multiunion-multiemployer bargaining negotia- tions and the ensuing a4reements.10 By its aforesaid picketing to force the Charging Parties to accept its said position, Respondent violated Section 8(b)(1)(B) and 8(b)(3) of the Act, and by refusing to abide by the National Master Freight Agreement and the Joint Coun- cil No. 7 Supplement thereto for the period April 1, 1970, to June 30, 1973, violated Section 8(b)(3) of the Act. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The unfair labor practices of the Respondent set forth in section III, above, occurring in connection with the activities of the Charging Parties described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V THE REMEDY It having been found that the Respondent has violated Section 8(b)(1)(B) and 8(b)(3) of the Act, it will be recom- mended that it be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the poli- cies of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW 1. All drivers, hostlers, lift jitney operators, forklift opera- tors, platform men, new furniture helpers and helpers em- ployed by members of the above-mentioned employer group, including the Charging Parties herein , constitute a unit ap- propriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 2. Respondent and the Charging Parties are, and at all times material herein were, members of the above-mentioned multiunion-multiemployer bargaining unit and were, with respect to employees of the Charging Parties whom Respond- ent represents, bound by the negotiations in said unit which resulted in the National Master Freight Agreement and the Joint Council No. 7 Supplemental Agreement for the con- tract period April 1, 1970, to June 30, 1973. 3. By refusing to bound by said national agreement and supplement thereto with respect to the aforesaid employees of the Charging Parties, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Sec- tion 8(b)(3) of the Act. 4. By picketing the Charging Parties for the purpose of detaching them from the multiemployer bargaining group and forcing them to bargain separately with it, the Respond- ent has restrained and coerced, and is restraining and coerc- ing, the Charging Parties in the selection of their representa- tives for the purposes of collective bargaining or adjustment of grievances in violation of Section 8(b)(1)(B) of the Act and has refused to bargain collectively with them within the meaning of Section 8(b)(3) of the Act. Upon the foregoing findings of fact, conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended:" ' In view of this finding, no purpose would be served in considering the issue of whether or not, had the notice been timely, it would have been effective to accomplish the partial withdrawal of Respondent from the multi- union group via-a-vis the Charging Parties and thereby detach the Charging Parties from the bargaining unit. 10 Respondent's beef is silent with respect to the allegation of the picket- ing and its purpose. " In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. BROTHERHOOD OF TEAMSTERS , LOCAL 70 461 ORDER Respondent, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Refusing to give full force and effect to the National Master Freight Agreement and the Joint Council No. 7 Sup- plement thereto for the contract term April 1, 1970, to June 30, 1973, with respect to employees of the Charging Parties in the following classifications: All drivers, hostlers, lift jitney operators, forklift operators, platform men, new furniture helpers and helpers. (b) Seeking separate bargaining agreements from the Charging Parties for their employees covered under the afore- said National Master Freight Agreement and Joint Council No. 7 Supplement thereto. (c) Restraining and coercing the Charging Parties herein in the selection of their representatives for the purposes of col- lective bargaining or the adjustment of grievances by picket- ing or any other means. 2. Take the following affirmative action which is designed to effectuate the policies of the Act: (a) Notify in writing each of the Charging Parties that it will adhere to and be bound by the terms of the National Master Freight Agreement and the Joint Council No. 7 Sup- plement thereto for the contract term April 1, 1970, to June 30, 1973, and sign said agreements upon request. (b) Post at its union offices in Oakland, California, copies of the attached notice marked "Appendix."" Copies of said notice, to be furnished by the Regional Director for Region 20, after being duly signed by a representative of the Re- spondent, shall be posted immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its members are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not al- tered, defaced, or covered by any other material. (c) Deliver to the Regional Director for Region 20 signed copies of said notice in sufficient numbers to be posted by each of the Charging Parties at their places of business, if said Employers are willing. (d) Notify said Regional Director, in writing, within 20 days from the date of the receipt of this Decision, what steps Respondent has taken to comply herewith." APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to give full force and effect to the National Master Freight Agreement and the Joint Coun- cil No. 7 Supplement thereto for the contract term April 1, 1970, to June 30, 1973, with respect to employees of Granny Goose Foods; Lady's Choice Foods, Division of Early California Foods, Inc.; National Biscuit Com- pany; Standard Brands, Inc.; and Sunshine Biscuit Com- pany in the following classifications: All drivers, hos- tlers, lift jitney operators, forklift operators, platform men, new furniture helpers and helpers. WE WILL NOT seek separate bargaining agreements from the above-named Employers for their said em- ployees who are covered under the aforesaid National Master Freight Agreement and Joint Council No. 7 Sup- plement thereto. WE WILL NOT restrain and coerce the above-named Employers in the selection of their representatives for the purposes of collective bargaining or the adjustment of grievances by picketing or by any other means. WE WILL notify in writing each of the above-named Employers that we will adhere to and be bound by the terms of the National Master Freight Agreement and the Joint Council No. 7 Supplement thereto for the contract term April 1, 1970, to June 30, 1973, and sign said agreements upon request. Dated By " In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " " In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read "Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith " BROTHERHOOD OF TEAMSTERS AND AUTO TRUCK DRIVERS LOCAL No 70, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA (Labor Organization) (Representative) (Title) This is an official notice and must not be defaced by any- one. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 13050 Federal Building, 450 Golden Gate Avenue, Box 36047, San Francisco, California 94102, Telephone 556-3197.