Ruan Transport Corp.

RUAN TRANSPORT CORPORATION Ruan Transport Corporation and District Lodge No. 77, International Association of Machinists and Aerospace Workers, AFL-CIO. Case 18-CA-5167 January 16, 1978 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND MURPHY On June 29, 1977, Administrative Law Judge Thomas A. Ricci issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Respon- dent filed cross-exceptions and an answering 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 authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions, cross- exceptions, and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administra- tive Law Judge for reasons set forth herein and to adopt his recommended Order. The complaint alleges that the Respondent violated Section 8(a)(5) of the Act by refusing to execute a collective-bargaining agreement to which it was legally bound. The agreement was negotiated in 1976 between the Charging Party Union and a collective- bargaining agent representing a multiemployer bar- gaining group. The Administrative Law Judge found that the Respondent was not included in the multi- employer bargaining group and that it was therefore not bound to the collective-bargaining agreement. Thus, he concluded that the Respondent did not violate the Act as alleged. The General Counsel excepted to those findings and that conclusion. However, we agree with the Administrative Law Judge for the reasons stated below. Briefly, the relevant facts are as follows. On or about October 22, 1973, the Union signed a 3-year collective-bargaining agreement with the Midwest Employers Labor Advisory Council, Inc. (hereafter Council), an organization providing professional labor relations consultation which represented a group of employers in the interstate transport busi- ness. The contract was effective from July 1, 1973, to June 30, 1976. The Respondent, a transport firm, sometime thereafter also signed the agreement. How- l The Respondent's cross-exceptions note that the Administrative Law Judge inadvertently stated that the heanring in this proceeding was held on March 3, 1977. and that the Respondent is incorporated in the State of Ohio. We hereby correct the record to reflect the correct facts that the hearing was conducted on May 13, 1977. and the Respondent is an Iowa corporation. 2 All dates hereafter are in 1976, unless otherwise stated. 3 This provision is sometimes referred to hereafter as the "one bargaining unit" provision. Our dissenting colleague makes an unwarranted assumption 234 NLRB No. 31 ever, the Respondent did not participate in the negotiations of the contract. Moreover, it was not a member of the Council nor did it expressly authorize the Council to negotiate an agreement with the Union on its behalf. In May 1976,2 the Union and the Council began negotiations for a contract to succeed the 1973 agreement due to expire on June 30. Once again, the Respondent did not participate in the negotiations, join the Council, or expressly authorize the Council to bargain on its behalf. The negotiating parties reached agreement on July 16. Subsequently, the Union's business representative brought the terms of the new contract to the attention of the Respondent. The Company's manager of industrial relations objected to certain provisions of the agreement and refused to sign it on behalf of the Respondent. The parties reached an impasse, and a strike ensued lasting approximately 6 weeks. Thereafter, the Union filed the instant 8(aX5) charge. The General Counsel contends that the Respon- dent is bound by the 1976 agreement executed between the Union and the Council because it was part of the multiemployer bargaining group on whose behalf the Council negotiated the 1976 con- tract. In support of that position, the General Counsel introduced into evidence the 1973 contract, which provided in section 2, article I: The employees convered under this Agreement shall constitute one bargaining unit. Accordingly, the Midwest Employers Labor Advisory Council, Inc., and the Employers who are parties to this Agreement acknowledge that they are part of a multi-employer collective-bargaining unit com- prised of the Midwest Employers Labor Advisory Council, Inc., and those of their members who have or will certify the Council to represent them for the purpose of collective bargaining, and only to the extent of such authorization; and also such other individual employers who have or may singly become parties to this agreement. [Empha- sis supplied.]3 The Administrative Law Judge found this contrac- tual provision to be "at best ambiguous on the critical point" of whether the Respondent was bound that "in order to increase the cohesion of all employers who utilized the services of the multiemployer association, either directly or through adoption of the resulting bargaining agreements," the Union and the Council included the "one bargaining unit" provision in the 1973 contract. We note, however, that this hypothesis was not advanced by the General Counsel, there is nothing in the record suggesting this factual occurrence, nor is there any evidence in the record that the "one bargaining unit" provision was first adopted by the parties in their 1973 contract, as implied by our dissenting colleague. 241 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the 1976 agreement because it was part of the multiemployer bargaining group.4 Uncertain of the meaning of the contractual provision, the Adminis- trative Law Judge examined the conduct of the parties in order to determine their true intent. After a detailed analysis of the pertinent evidence, discussed below, the Administrative Law Judge determined that the parties never considered the Respondent to be a part of the multiemployer bargaining group. At this point in our Decision, we note that a multiemployer unit, unlike other types of bargaining units, is consensual in nature. The Board has consistently held that "the essential element warrant- ing the establishment of multiple-employer units is clear evidence that the employers unequivocally intend to be bound in collective bargaining by group rather than by individual action. The correlative standard for excluding an employer from such a unit is evidence of an intent to pursue an individual course of action with respect to labor relations."5 As a general rule, the Board has found that an employer does not become a part of a multiemployer bargain- ing group (i.e., it does not intend to be bound by group bargaining) where it merely adopts a collec- tive-bargaining agreement in the negotiation of which it did not actually participate and which it did not authorize another to negotiate on its behalf. 6 In this case, the Respondent did not actually participate in negotiations of the 1976 agreement between the Council and the Union. Thus, in order to conclude that the Respondent became a part of the multiemployer bargaining group, we must find I In particular, the Administrative Law Judge was puzzled by the requirement for members of the Council to certify it to represent them if, as the General Counsel contends, all an employer was required to do in order to be included in the multiemployer group was to be a party to the agreement; i.e., sign the contract. (The signature page included space for each member of the Council to sign the agreement.) I Pacific Metals Company, Ltd., 91 NLRB 696, 699 (1950). See also Hub Pharmacy, Inc., 216 NLRB 69, 72 (1975); Francis Chevrolet Company, 211 NLRB 740, 744 (1974); Letourneau Brothers Construction Company, 194 NLRB 413, 415 (1971); Weyerhaeuser Company, et al., 166 NLRB 299 (1967). 6 See, e.g., Nick Augustine and Irving Gould, d/b/a Victorville Glass Company, 193 NLRB 289 (1971); Moveable Partitions, Inc., 175 NLRB 915, 916 (1969); Colonial Cedar Company, Inc., 119 NLRB 1613, 1614 (1958); Associated Shoe Industries of Southeastern Massachusetts, Inc., et al. 81 NLRB 224, 229 (1949). See also Phoenix Air Conditioning, Inc., 231 NLRB 341 (1977). Our dissenting colleague has misapplied the holding of Dover Tavern Owners'Association, 164 NLRB 933 (1967), cited by him as authority for his statement that "this Board has never held that ... actual participation in bargaining is the sine qua non necessary for a finding that an employer is included within a multiemployer bargaining group." In Dover, a group of tavern owners formed an association and, contrary to the belief of our dissenting colleague, authorized the association to bargain on their behalf. In fact, the Board stated: "Prior to the hearing in this case the Petitioner had never received notice from any member of the Association that it was withdrawing authorization to engage in bargaining from the Association's committee." 164 NLRB at 933. See also Dover Tavern Owners' Association, 169 NLRB 28 (1968), wherein the Board granted summary judgment in an unfair labor practice proceeding related to the above-cited representation decision, and N.L.R.B. v. Dover Tavern Owners' Association, 412 F.2d 725, 728 (1969), where the Third Circuit, enforcing the Board's Order in the that the "one bargaining unit" provision of the 1973 agreement served to authorize the Council to negoti- ate on behalf of the Respondent in 1976.7 We have framed the issue in this case accordingly, in order to comport with the aforementioned general rule that an employer does not become a part of a multiem- ployer bargaining group unless it participates (either personally or by an authorized representative) in joint bargaining with the union. We agree with the Administrative Law Judge that the "one bargaining unit" provision is not the model of clarity. However, assuming arguendo that the provision was clearly written and unambiguous, we find that such a bare covenant by the Respondent by which it agreed to be a part of a multiemployer bargaining group does not itself suffice to clearly demonstrate that the Respondent delegated authority to the Council to represent it in future negotiations with the Union. The most that can be said for the "one bargaining unit" provision is that it perhaps implicitly authorized the Council to represent the Respondent in the 1976 negotiations. However, we find that something in addition to a mere implied delegation of authority is needed in order to consti- tute clear evidence of an unequivocal intent on the part of an employer to be bound by group bargain- ing. We would require, for example, some conduct on the part of the employer which indicates that it actually pursued a group course of action with regard to labor relations. 8 The conduct of the Respondent in fact clearly demonstrates that it did not intend to pursue group unfair labor practice proceeding, observed: "There was no evidence in the record that the members unequivocally withdrew, prior to February 10, 1967, their authorization to bargain previously given to the respondent." Thus, the issue of whether the tavern owners had actually participated in bargaining was of no concern to the Board or the court since the tavern owners had already delegated authority to the association to bargain on their behalf and, hence, they participated through their authonzed agent. Furthermore, in Dover, no individual employer had claimed not to be bound by multiemployer bargaining, as the Respondent argues in the instant case. Rather, the association itself claimed that its members did not constitute a single multiemployer unit, a contention that the Board found to be without merit. Accordingly, it is clear that Dover is inapposite to the issues presented herein. ' As noted above, the Respondent did not expressly authorize the Council to bargain on its behalf. Members of the Council, however, signed authorization letters which explicitly delegated power to the Council to bargain on their behalf. I Our dissenting colleague states that the "one bargaining unit" provision is unambiguous insofar as the Respondent agreed that its employees are part of a specified unit. Assuming, although not conceding, that the clause is unambiguous to that extent, we fail to understand how our dissenting colleague ultimately concludes that the provision is also an unambiguous delegation of authority to the Council to represent the Respondent in future negotiations with the Union. If the parties had in fact agreed to such a delegation, it would have been logical for them to have set it forth explicitly. Thus, we refuse to find that the "one bargaining unit" provision clearly constituted an unequivocal intent on the part of the Respondent to relinquish control over its labor negotiations to the Council or any other bargaining representative. In addition, we do not agree with our dissenting colleague's view that the Respondent's execution of the 1973 contract below the signature of an officer of the Council, which purported to represent all employers who 242 RUAN TRANSPORT CORPORATION bargaining. The evidence shows that the Respondent, as well as the Union, clearly bargained with the other in 1976 on an individual basis. In April, prior to the opening of the negotiations between the Union and the Council, the Respondent's attorney sent the Union a letter which advised it of the Respondent's intent to negotiate a collective-bargaining agreement with the Union and noted that the Respondent would submit contract proposals in the near future. Also, as mentioned above, the Respondent did not participate in negotiations for the 1976 agreement. 9 After the 1976 contract between the Union and Council had been agreed to on July 16 by those parties, the Union sent the Respondent copies of that contract. The covering letter stated that "we propose to cover our members employed by your firm [with this agreement]." (Emphasis supplied.) Thereafter, the Respondent and Union engaged in mail corre- spondence, meetings, and telephone conversations regarding the substantive terms of the agreement. The union representative repeatedly justified the economic gains which the Union had "won" from the other employers at the bargaining table. The parties even agreed to modify a provision of the contract relating to the number and hours of starting times for work shifts. However, they reached an impasse on other provisions, especially a clause regarding the transfer of employees to future facili- ties of the employer. After extended discussions regarding the proposed contract at a meeting in September, the Union agreed to delete the transfer provision if Ruan's employees voted to accept the contract without that clause. The employees voted against this change and thereafter agreed to strike the Respondent.'1 The parties soon thereafter met with a Federal mediator in order to resolve their remaining differences. At the mediation session, the Union offered a compromise proposal regarding the transfer provision, but the Respondent declined to accept it. Subsequently, in early October, the parties met again but failed to reach agreement. Finally, in March 1977, the Re- signed the 1973 contract, "amounted to an express delegation of authority by the Respondent to the [Council I for it to act as the Respondent's bargaining representative" in the 1976 negotiations. (In fact, the General Counsel did not contend that the Council represented the Respondent in the 1973 negotiations.) Rather, we find that the Respondent's execution of the 1973 contract, in the circumstances described above, does not constitute clear evidence of an unequivocal intent by the Respondent to forego individual bargaining in the 1976 contract negotiations between it and the Union. 9 Nor did the Respondent even receive information from the Council regarding the dates and places of the negotiations. i0 Our dissenting colleague states that "li t was not until after a strike was called on September 20 ... that the Union backed off from its position that it would not permit any modifications to the contract." However, the record is clear that the Union took a vote of the employees to determine if they would agree to modify the contract before the employees voted to strike the Respondent. spondent and Union held another bargaining ses- sion. However, they failed to resolve the impasse. These facts clearly demonstrate that the Respon- dent intended to and did engage in individual bargaining with the Union.1 The only evidence of group bargaining with respect to the Respondent is the fact that the Union's initial proposals to it were embodied in the 1976 agreement reached between the Union and the Council. This evidence, however, represents no more than the fact that the Respondent and Union merely engaged in "pattern" bargain- ing.12 In these circumstances, we agree with the findings of the Administrative Law Judge that the Respon- dent was not a part of the multiemployer bargaining group on whose behalf the Council reached agree- ment with the Union on the 1976 contract, and, consequently, that the Respondent was not bound by that contract.13 We also agree with his conclusion that the Respondent did not therefore violate Section 8(a)(5) of the Act by refusing to execute the 1976 agreement. Accordingly, we shall dismiss the instant complaint. 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 Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. MEMBER JENKINS, dissenting: In justifying the dismissal of the 8(a)(5) allegations specified in the complaint herein, the majority has presented an overly restrictive view of Board prece- dent regarding multiemployer bargaining groups, and consequently has reached a conclusion from which I must dissent. From 1958 until 1976 the Respondent and the Union had entered into a series of collective-bargain- ing agreements adopting the terms of the agreements executed between the Union and the multiemployer " However, the mere fact that a single employer bargains individually with a union on limited matters of peculiar concern to it does not necessarily negate the inclusion of an employer in a multiemployer bargaining unit where it otherwise participates in negotiations on a group basis on all other matters. See The Kroger Ca. 148 NLRB 569, 573 (1964). 12 Our dissenting colleague sets forth several instances of conduct by the Respondent which, in his opinion, demonstrates that the Respondent intended to pursue collective bargaining on a group basis. (See especially fn. 20 of the dissent, infr.) However, that conduct is also characteristic of an employer who is preparing to and eventually does engage in "pattern bargaining" on an individual basis. '3 Therefore, we do not reach the issue, discussed in length by our dissenting colleague, of whether the Respondent effectively withdrew from the multiemployer bargaining group. 243 DECISIONS OF NATIONAL LABOR RELATIONS BOARD group. While the evidence indicates that the Respon- dent never formally joined the multiemployer group and never participated in bargaining on the multiem- ployer level, the record clearly shows that the multiemployer association was fully aware that other employers, including the Respondent, were pattern- ing their bargaining agreements after those executed by the larger association, while at the same time avoiding the financial obligations incurred by formal membership. An officer of the multiemployer associ- ation testified that it did not put nonmembers on the negotiating committee, but nevertheless would invite them to send observers to certain negotiating ses- sions. Pursuant to such an invitation, a representative of the Respondent was present at one of these sessions in 1970. The 1973-76 multiemployer bar- gaining agreement, indeed, concretely recognized that it was the practice of certain nonmembers to follow the terms of the multiemployer agreement. Specifically, under the execution clause of the agree- ment, an officer of the multiemployer association signed the agreement, expressly indicating that it was "representing" a specified group of employers. In- cluded in this group was the name of the Respondent and also several other employers, who at the time of the hearing were not formal members of the associa- tion. Furthermore, in order to increase the cohesion of all employers who utilized the services of the multiemployer association, either directly or through adoption of the resulting bargaining agreements, the Union and the multiemployer association included the following clause in the 1973-76 contract executed October 22, 1973: The employees covered under this Agreement shall constitute one bargaining unit. Accordingly, the Midwest Employers Labor Advisory Council, Inc., and the Employers who are parties to this Agreement acknowledge that they are part of a multi-employer collective-bargaining unit com- prised of the Midwest Employers Labor Advisory Council, Inc., and those of their members who have or will certify the Council to represent them for the purpose of collective bargaining, and only to the extent of such authorization; and also such "4 Joseph McDaniel, an Individual Proprietorship d/b/a Custom Colors Contractors, 226 NLRB 851 (1976); Hub Pharmacy, Inc., 216 NLRB 69, 73 (1975); The Kroger Co., 148 NLRB 569, 573 (1964); Belleville Employing Printers, 122 NLRB 350, 353 (1958). 15 Dover Tavern Owners'Association, 164 NLRB 933 (1967). The majority contends that I have misapplied the holding of this Decision since in Dover there was actual participation in bargaining by a committee of tavern owners. However, my colleagues have failed to indicate wherein this alleged distortion lies since this case clearly holds that employers who were not members of the negotiating committee and who consequently were not participants in the actual bargaining nevertheless were also included in the multiemployer unit. There was also no evidence in that case that the members of the association had expressly delegated bargaining authority to either the association or the negotiating committee. other individual employers who have or may singly become parties to this Agreement. Shortly thereafter, the Respondent signed a copy of the bargaining agreement containing this clause, and it is plain that as a result of its execution of this agreement it became a part of the multiemployer group. The majority gives undue emphasis to the fact that no express authorization was ever submitted by the Respondent to the multiemployer association and that the Respondent did not personally participate in the multiemployer bargaining. While it is obvious that an employer's involvement in multiemployer bargaining may be manifested by such conduct, this Board has never held that either express delegation of authority 14 or actual participation in bargaining 5 is the sine qua non necessary for the finding that an employer is included within a multiemployer bar- gaining group. The sole test to be used in these instances is whether the Respondent has indicated an unequivocal intention to be bound in collective bargaining by group rather than by individual action.16 If the evidence presented in this case merely indicated that the Respondent followed a pattern of adopting the terms of contracts previously negotiated by the multiemployer group, my colleagues would be correct in their conclusion that the Respondent would not, without more, be bound by the multiem- ployer negotiations.17 However, it is clear that something more exists here. Specifically, the Respon- dent clearly agreed to be bound by the outcome of multiemployer negotiations when it executed the bargaining agreement containing the above-cited multiemployer bargaining unit clause.' 8 The Administrative Law Judge has gone far afield in finding justification for his conclusion that the multiemployer unit clause is fatally ambigous and therefore is of no operative effect, and the majority incorrectly gives credence to this finding. In view of the fact that this Board does not require either formal membership in multiemployer associations or the express delegation of bargaining authority before an employer may be included in a multiemployer group, as previously noted, the language in the relevant clause regarding such authorizations by formal mem- '6 McAx Sign Company, Inc., 231 NLRB 957 (1977); Custom Colors Contractors, supra, Bill O'Grady Carpet Service, Inc., 185 NLRB 587, 590 (1970); The Kroger Co., supra; Chicago Metropolitan Home Builders Associa- tion, 119 NLRB 1184 (1957). 17 Moveable Partitions, Inc., 175 NLRB 915 (1969). 18 Although I do not find it necessary to rely on the formality of the following proposition, it is clear that the language in this clause, and the Respondent's ratification of the language of the execution clause, to wit, that the multiemployer association executed the agreement as a representa- tive of the Respondent, amounted to an express delegation of authority by the Respondent to the multiemployer association for it to act as the Respondent's bargaining representative. 244 RUAN TRANSPORT CORPORATION bers of the association is irrelevant for the purpose of deciding whether the Respondent unambiguously manifested an intention to be included within the larger unit. In any event, the language of this clause indicates that certain specified parties are to be included within the multiemployer unit, among whom are "such other individual employers who have or may singly become parties to this agree- ment." I find no ambiguity surrounding this clause. Furthermore, the majority errs in concluding that such a "bare covenant" even when construed as a clear expression of intent, is insufficient as an unequivocal manifestation of intent to be so bound. Recognitional clauses defining the unit covered by collective-bargaining agreements are a standard fea- ture of collective-bargaining agreements' 9 and are therefore not so esoteric as to require additional indicia that the Respondent intended to do what it expressly agreed to do; i.e., be a part of the specified unit. In including itself within this larger bargaining unit, the Employer need not presently identify with specificity who will be its representative in subse- quent negotiations. The only relevant concern of this Board is that the Respondent has indicated an unequivocal intention to be bound by group action. By executing an agreement which states that the Respondent is part of a multiemployer unit, it is clear that the Respondent has aligned itself with group action, whether or not it is involved in negotiations. Evidence of subsequent conduct, at best, may be probative only of the Respondent's attempts to withdraw from this unit.20 By its terms, the 1973-76 bargaining agreement was due to expire on June 30, 1976. However, no specific date was contained in this agreement con- cerning the earliest appropriate time for the initiation of negotiations directed toward the execution of a succeeding bargaining agreement. Accordingly, in January 1976, the Union and representatives of the multiemployer association met with representatives of other multiemployer associations in order to initiate negotiations which were to lead to the execution of a multiemployer bargaining agreement covering employers in a nine-state area. At that time the Union submitted copies of proposals for such a modified agreement to the employer representatives. In late February the Union mailed to the Respon- 19 In a parallel situation, this Board has recently held that employees at a single plant may be merged within a multiplant unit based on the language of the multiplant recognition clause, even where the employees at the single plant were covered by the terms of the multiplant agreement only subsequent to its original execution. Westinghouse Electric Corporation. 227 NLRB 1932 (1977). 10 Indeed, it would appear that, if subsequent conduct of the parties were to be determinative of the Respondent's intent to enter into the multiem- ployer group, the Respondent has in fact indicated by its conduct that it considered itself to be part of this group. First, in June, the Respondent's industrial relations manager, Ralph McCrary, listened, without objection, to dent a copy of the contract proposals which had been circulated during the January meeting. In mid-April the Union sent to the Respondent the 60-day notice necessary to prevent the automatic renewal of the terms of the old bargaining agreement. On April 27 the Respondent's counsel mailed to the Union a letter, stating in appropriate part: Please be advised that this office represents Ruan Transport Corporation relating to all labor matters including collective bargaining negotia- tions. We will advise you of our intent to negotiate a collective bargaining agreement .... We will submit our proposals in the very near future and request possible dates for commence- ment of negotiations. No further communication was received from the Respondent, and from May 25 to July 16 the Union and the multiemployer association were engaged in further negotiations prior to the execution on the latter date of the 1976-79 contract, retroactively effective as of June 30, 1976. On July 21 the Union met with the Respondent and outlined the changes which had been negotiated in the new agreement. A copy of the agreement was sent to the Respondent on August 12, and on August 18 both parties met and the provisions of the contract were again explained to the Respondent. On September 1, the Respondent sent the Union a letter seeking modifications to a few terms of the agreement, and on September 6 a representative of the Union responded and flatly rejected the possibility of any such modifications Shortly thereafter the employees threatened to strike and, despite further efforts on the part of the Union to persuade the Respondent to accept the terms of the agreement, the employees struck the Respondent on September 20. In an effort to settle the strike, the Union offered to modify one of the terms of the contract but the Respondent rejected the settlement offer. The strike lasted until the first week in November, subsequent to the filing of the charges herein. It is well-established Board law that consequent to an employer's entry into a multiemployer bargaining group he is no longer free to examine the product of such negotiations and thereupon decide whether to several progress reports on the multiemployer negotiations presented by a union representative. Moreover, at no time during the pendency of multiemployer bargaining did the Respondent even attempt to engage in bargaining separately from the multiemrnployer group. Second, after the Union delivered a copy of the 1976-79 multiemployer contract to the Respondent on August 12, 1976, the Respondent asked for explanations of several terms in the agreement which met with its displeasure, and only belatedly objected to its inclusion in the multiemployer bargaining unit after it had become clear that the Union was not willing to grant to the Respondent any special concessions from the terms of the multiemployer agreement. 245 DECISIONS OF NATIONAL LABOR RELATIONS BOARD accept those terms, but must abide by the terms of such labor agreements negotiated on a group basis. 21 Only in certain specified situations will this Board allow an individual employer who has joined such a group to avoid this bargaining obligation: where the employer has manifested in a timely and unequivocal fashion his intent to withdraw from the larger group; 22 where the union has consented to or acquiesced in the employer's untimely withdrawal; 23 or where unusual circumstances exist.2 4 The timeli- ness of an employer's attempted withdrawal is based on two criteria; whether such withdrawal predates the date agreed upon in the prior contract for the initiation of negotiations 25 and whether the with- drawal predates the actual commencement of con- tract negotiations.2 6 Based, on these standards, it is my view that nothing in this record indicates that there is either a sufficient factual or legal basis for the conclusion that the Respondent has acted properly in rejecting the terms of the multiemployer agreement. By the end of February, representatives of the multiemploy- er association and the Union had met and bargaining proposals had been submitted, the contents of which the Respondent had become specifically aware. Although the current contract was not due to expire until the following June 30, I do not consider such entry into multiemployer negotiations to have oc- curred at an unreasonably early date. No provision in the current contract specifically defined the earliest date for the initiation of negotiations, inas- much as the contract merely specified that notice of such negotiations must be given at least 90 days prior to the termination date. It is manifest that to allow the Respondent to first observe the proposed terms submitted by the Union to the multiemployer group and then allow it the opportunity to opt for separate negotiations would have a seriously disruptive effect on multiemployer negotiations. 2 7 Moreover, even were I to conclude that multiem- ployer negotiations first occurred as of May 25, when the multiemployer group met with the Union again and discussed the contract proposals, I would still not find that the Respondent effectively withdrew from the multiemployer group, inasmuch as the Respondent's letter of April 27 is not an unequivocal manifestation of an intent to withdraw from the multiemployer group. In Interstate Construction Com- pany, supra, this Board adopted an Administrative Law Judge's finding that a similarly worded letter afforded the union therein only the required 60-day 21 RetailAssociates, Inc., 120 NLRB 388 (1958). 22 Interstate Construction Company, 229 NLRB 271 (1977). 23 Joseph C. Collins d Co.. Inc., 184 NLRB 940 (1970). 24 U.S. Lingerie Corporation, 170 NLRB 750 (1968). 25 Retail Associates, supra, at 395. 26 Standard Plumbing and Heating Company, Inc., 185 NLRB 444, 448 (1970). notice that the employer sought to prevent the automatic renewal of the current bargaining agree- ment. Any possible "inferential knowledge" that the employer was also thereby seeking to withdraw from the multiemployer group was found to be insufficient to meet the legal standard that such notice be unequivocal.2 8 Here, as well, the letter sent by the Respondent did not clearly state the Respondent's alleged attempt to withdraw from the multiemployer group, and its receipt shortly before the end of the 60-day notice period shows that the only clear meaning to be drawn from the letter was that the Respondent was merely attempting to prevent the automatic renewal of the current contract. The record indicates that the first time the Respondent claimed that it was not in the multiemployer group was on September 10, during a meeting called by the Respondent after it learned that the employees were threatening to call a strike. The majority states that the Respondent and the Union engaged in individual bargaining, from which it may be assumed that they would also conclude that even had the Respondent given untimely notice of withdrawal from a multiemployer group the Union has, in any event, acquiesced in the Respon- dent's withdrawal from the larger group.2 9 The record, in my view, does not support a finding that the parties engaged in individual bargaining or in any other manner acquiesced in the Respondent's withdrawal from the multiemployer unit. Subsequent to the execution of the multiemployer agreement on July 16, the Union met with the Respondent several times during the next 3 months. During the meetings held in July and August, the Union's efforts were aimed directly at having the Respondent sign the multiemployer agreement without any modifications. Efforts made by the Union to clarify or explain the terms of the new agreement are not tantamount to bargaining, especially in view of the fact that the Union specifically refused to modify any term in the agreement. When the employees learned during the first week of September that the Respondent persist- ed in its refusal to sign the agreement, they threat- ened to strike the Respondent's operations. The Union's business representative was not confident that he could avert such a strike and, on September 10, after meeting with the Respondent's employees, he informed the Respondent, according to the testimony of one of the Respondent's managers, that the Union would "consider" modifying one of the several terms; i.e., the provision regarding starting 27 The Carvel Company and C and D Plumbing and Heating Company, 226 NLRB I 11 (1976); Mor Paskesz, 171 NLRB 116, 118 (1968), enfd. 405 F.2d 1201 (C.A. 2,. 1969). 28 See also B. Brody Seating Co., 167 NLRB 830 (1967). 29 1, C Refrigeration Service. Inc., 200 NLRB 687, 689 (1972). 246 RUAN TRANSPORT CORPORATION times. The union representative testified that he did not recall any conversation relating to starting times at this meeting and that he did not agree to modify that provision. The Respondent's manager also testified that on September 20, during a meeting at the union hall, the Union stated that the parties could have agreement on the modified starting time. No testimony was elicited from the union representa- tive present at this meeting concerning this purported agreement, despite the fact that he gave detailed evidence regarding other matters discussed at this meeting. It was not until after a strike was called on September 20 that the evidence clearly indicates that the Union backed off from its position that it would not permit any modifications to the contract. How- ever, such concessions directly aimed toward avert- ing or terminating a strike are an insufficient indica- tion of the Union's acquiescence in the Respondent's withdrawal. To hold otherwise would lead to the anomalous result that this Board would be directly discouraging efforts to resolve strikes, the paramount manifestation of labor discord, by requiring unions which engage in such settlement negotiations to waive any claim that an employer is still a member of a multiemployer group. Such a result would mean that the employer who refuses to execute such a multiemployer agreement would be able to benefit from his wrongdoing if he is sufficiently tenacious in maintaining his position long enough to force even a minor concession from the union. In any event, it has long been Board policy to allow employers covered by a multiemployer bargaining agreement to negoti- ate individually on certain matters of peculiar con- cern to them.3 0 For the reasons stated above, I therefore conclude that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to execute the bargaining agreement negotiated between the Union and the multiemployer bargaining group. 30 The Kroger Co., supra. DECISION STATEMENT OF THE CASE THOMAS A. RICCI, Administrative Law Judge: A hearing in this proceeding was held at Minneapolis, Minnesota, on March 13, 1977, on complaint of the General Counsel against Ruan Transport Corporation, here called the Respondent or the Company. The complaint issued on February 24, 1977, upon a charge filed on October 29, 1976, by District Lodge No. 77, International Association of Machinists and Aerospace Workers, AFL-CIO, here called the Union. The issue of the case is whether the Respondent unlawfully refused to bargain with the Union in violation of Section 8(a)5) of the National Labor Relations Act, as amended. Upon the entire record, and from my observation of the witnesses, I make the following: I. THE BUSINESS OF THE RESPONDENT Ruan Transport Corporation, a State of Ohio corpora- tion, is engaged in the interstate transportation of bulk and petroleum products. During the year ending December 31, 1976, a representative period, it derived gross revenues from the conduct of its business in excess of $50,000 from interstate transportation of goods and materials. During the same period it caused to be transported to its place of business in St. Paul, Minnesota, goods and materials valued in excess of $50,000 directly from points located outside the State. During the same period Respondent also performed services valued in excess of $50,000 for various enterprises, each of which is engaged in nonretail opera- tions within the State of Minnesota, and each of which annually purchases goods from out-of-state sources valued in excess of $50,000. I find that the Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED I find that District Lodge No. 77, International Associa- tion of Machinists and Aerospace Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICE A. The Question Presented In 1973, District Lodge No. 77 of the IAM signed a single collective-bargaining agreement with a group of employers acting in concert through a negotiating organi- zation called Midwest Employers Labor Advisory Council, Inc. It was a 3-year contract and the underlying bargaining unit was multiemployer in character - i.e., it included the employees of all the separate companies which had expressly authorized the Midwest Council to bargain on their behalf. Ruan Transport, the trucking company Re- spondent here, was not a participant in any of the activities connected with the making of the 1973 contract; it was not a member of the Midwest Council; it did not authorize that organization to act on its behalf; and it took no part - either directly or indirectly - in the negotiations that led to its signing. Ruan did, however, itself sign the agreement as a separate and individual employer, after its execution and implementation by the directly contracting parties. In 1976, the IAM, and a very large number of trucking companies, negotiated a renewal of the expiring 1973 agreement. Now the scope of the contract coverage was considerably expanded. The International Union itself became a party and, besides its Local Lodge No. 77, five other local lodges also became parties to the contract. The single, multiemployer bargaining unit underlying the entire agreement became a nine-state affair. In fact, the Midwest Council, as authorized spokesman for those trucking companies which again, as every time in the past, had to reauthorize it to act on their behalf, assigned its "authoriza- tion to represent" to the Multi-employer Collective-bar- gaining Committee, whatever organization that may be. 247 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The expiration date of the 1973 contract was June 30, 1976. By July 16, the now multiple multiemployer groups, it would seem, and all the IAM Lodges had reached agreement upon renewal, the new contract to be effective July 1, 1976, to June 30, 1979. After this, Lester Brown, business representative of Lodge 77, brought the terms of the new contract to the attention of Ruan Transport. A fair reading of the record made in this case is that Brown tried to sell the deal to Ruan but failed. The Respondent objected seriously to three items, and it held firm to this position even to the day of this hearing. Lodge 77 insisted on all of it - or almost all of it, and, on September 20, Ruan's 14 employees who would have become covered by such a contract struck to enforce the Union's demand. The strike failed, and was abandoned the first week in November. On October 29, Lodge 77 filed the charge here involved. Now for the first time it took the unequivocal position that Ruan was always a party bound to the multiemployer negotiations that had taken place in June and July, that its 14 employees had for 3 years been part and a parcel of a single bargaining unit underlying the expired 1973 con- tract, and that therefore the Respondent never had any choice, as a matter of law, from as far back as July 16, but to execute the renewal agreement precisely as agreed upon by the many IAM Lodges and the nine-state employer groups. The complaint alleges that because it refused to sign that contract, exactly as executed by the large group of unions and employers, the Respondent illegally refused to bargain with Lodge 77 and thereby violated Section 8(aX5) of the Act. The defense rests on the assertions that (1) Ruan's employees were never joined into a single bargaining unit with employees of other companies under the 1973 con- tract, (2) Ruan's signing of the 1973 contract brought into being a separate bargaining unit of only 14 employees represented by Lodge 77, and (3) this Company never had anything to do with any multiemployer bargaining, never authorized any other agency to bargain on its behalf, and never adopted such past representation retroactively. The Respondent advances the alternative defense that, even assuming it had been included in a single multiemployer unit under the 1973 contract, it gave timely notice of withdrawal, and for that reason also was privileged to bargain for itself. B. The Evidence; Analysis and Conclusion Every time a new contract is envisaged, the Midwest Council obtains written authorizations from each and every company on whose behalf it negotiates. It did this also in the spring of 1976. All members pay dues for membership in the Council, contributed monthly and based upon the number of employees involved for each company. It is conceded Ruan Transport never signed any authorization in favor of the Council, or any other negotiating representative, and never paid any money for any services to the Council. It is also undisputed that no representative of Ruan ever participated in the least in the negotiations that took place leading to either the 1973 or 1976 understanding between the Union and the multiem- ployer group. The contention by the General Counsel in support of the complaints that Ruan nevertheless became an inseparable component of a multiemployer bargaining arrangement via its agreement to be bound by the 1976 contract rests entirely upon a phrase appearing in that agreement. Article I, section 2, reads as follows: The employees covered under this Agreement shall constitute one bargaining unit. Accordingly, the Mid- west Employers Labor Advisory Council, Inc. and the Employers who are parties to this Agreement acknowl- edge that they are part of a multi employer collective- bargaining unit comprised of the Midwest Employers Labor Advisory Council, Inc. and those of their members who have or will certify the Council to represent them for the purpose of collective bargaining, and only to the extent of such authorization; and also such other individual employers who have or may singly become parties to this agreement [emphasis supplied]. In anticipation of the negotiations that were to follow, the Union mailed to each separate employer covered by the expiring agreement a comprehensive proposal for renewal; these were the complete and very detailed demands for a new contract. A copy of such demands was received by Ruan Transport also, on February 26, 1976. On April 27, Ruan's lawyer, Mr. Robert Coopes, wrote to the Union advising that the Company intended "to negotiate a collective-bargaining agreement" according to all applica- ble laws, that it would submit "proposals" in the near future, and that it would soon request a date for starting negotiations. This was of necessity clear notice to the Union that, regardless of whether Ruan was or was not at any time part of any multiemployer bargaining unit, its intent was to go it alone. Pursuing her basic contention that Ruan was in fact at that moment included in the multiem- ployer unit, the General Counsel argues it was too late, on April 27, for the Respondent to withdraw from the group, because by that time the Union had already served upon the multiemployer group its demands for contract renewal. See The Carvel Company, 226 NLRB 111 (1976). This theory of complaint raises the question whether an employer may withdraw from an established multiemploy- er bargaining arrangement by formally notifying the union of such intent before the automatic renewal date set out in the expiring contract, but after the union has submitted its renewal demands. In Carvel the would-be escapee attempt- ed to withdraw after the union's demands had been publicized, as was the case here. But unlike the situation at bar, that withdrawal notice came after the automatic renewal date of the old contract had passed. If a union may preclude withdrawal by any member of the multiemployer group as long as more than 4 months before the expiration date of a contract, as would be the case were the complaint to prevail here, may it also accomplish that foreclosure objective by publishing its demands 5 months before the end of the contract period? 6 months? 8 months? Maybe more? Would the Board hold that either party to such a contract could bind all the others after a one-shot arrange- ment so long a time before normal renewal practices in industrial relations? 248 RUAN TRANSPORT CORPORATION In my considered judgment, I do not think these questions need be answered here, for the evidence in its entirety does not prove convincingly that Ruan Transport was in fact a part of the multiemployer bargaining agreement under the 1973-76 contract. On its face, the contract is at best ambiguous on the critical point. The opening sentence of section 2 in article I does literally say that "all employees covered . . . shall constitute one bargaining unit." When Ruan later signed the document, of course, its employees joined "all" others who were "covered," and became part of the "one ... unit." If the clause said nothing more, a certain picture would appear. But the section continues, and emphasizes that "according- ly" - i.e., in keeping with the first sentence - the "multi- employer collective bargaining unit" consists of the present members of the Midwest Council, including both those who already "have," and those who "will" - i.e., in the future and necessarily during the 3-year life of the contract - "certify said Council to represent them .... " Ruan never did that and therefore, if section 2 stopped at that point, it would be clear that Ruan was off the hook in 1976. The importance of this business of the group members authorizing the Midwest Council - whenever they chose to do so - is then reiterated in the next phrase: ". . and only to the extent of such authorization." A meaning these two phrases must have, and it has to be something of pertinence to the purport of section 2 as a whole, for they appear in the middle of the contract paragraph. If, as the General Counsel and the IAM would now read that entire section, any company which signed the contract during its life automatically became an ironbound member of the multiemployer group - and never mind did Ruan ever authorize Midwest Council at all - why provide for the requirement of anybody "certify- ing," or "authorizing" any negotiating team? Could it be that what this was intended to mean was that in renewal negotiations members of the Council, before being deemed bound to future group negotiations, would have to autho- rize Midwest Council expressly and individually? Could this be why the Council in fact took pains to obtain written authorizations from such of its members before the group bargaining which led to the 1976 renewal? Section 2 then ends with a clause - not a separate sentence but part of the sentence stressing the importance of authorizing the Council - "and also such other individual Employers who have or may singly become parties to this Agreement." Does this mean employers later signing the contract have nothing to do with the Council? Does it mean, more likely because the language is append- ed to the sentence about council authorization, that such later separate signers must in the future authorize the Council? t This Midwest Council is a group of professional labor relations consultants; their skills are expensive. Lloyd Harris, its executive director, said all members who use its services must pay so much and so much if they wish to be represented. A reading of the last clause of section 2 could as well reveal the Council telling anyone else who later I The questions go on. If, before the Council could bargain for separate employers, each one of them had to re-authorize it in writing before the 1976 signs the group contract that, if they wish later to enjoy the benefits of the Council's expertise, they must pay for it. Whenever the meaning of contract language is not clear, and conflicting interpretations later give rise to opposing substantive claims, contract law has long provided that you look at the conduct of the parties outside the contract itself, or in implementation of its written terms, for a clearer understanding of what their intent really was. Williston on Contracts, 3d ed., § 263, p. 789. Here, the Union's activities, largely as related by the IAM representative, Mr. Brown, show quite clearly that the Union never considered the Respondent a party included in whatever multiemploy- er bargaining unit underlay the 1973 contract period. (1) When, on April 27, Coopes, the Ruan lawyer, wrote the Union that he was preparing to submit contract proposals on behalf of his clients, no one on the part of the IAM protested. This, while the Lodges were preparing to meet with multiple trucking companies in other cities to fix the terms of employment of Ruan's employees, if Business Representative Brown's claims at the hearing are to be believed. Coopes even wrote about "dates for commence- ment of negotiations." Does a union, sitting across the table in multiemployer bargaining negotiations, accept, and not reject, the idea of separate contract proposals, and separate negotiations, from any single employer who is in fact an included employer member of the multiemployer group? (2) When the Union sent 90-day notices of intent to negotiate a new contract, and 60-day notice to forestall automatic renewal of the old one, I suppose it sent such notices to the Council, the designated bargaining agent of the multiemployer group. But in this case it also sent formal written notice, directly to Ruan. This could well have been no more than an understandable courtesy to each employer covered by the contract, whether or not included in a multiemployer bargaining unit. But it could also be an indication, at least, of knowledge by the Union that Ruan was an employer apart from the group, and therefore a contract party that legally had to be so advised. The basic question here cannot be decided by a single collateral act, but certainly the fact the Union did this may well add to the quantum of proof that it well understood the contract language did not bind Ruan to the activities of the Midwest Council. (3) Fairness, as well as logic, demands that the next reality, also external from the contract, be viewed in two lights, not only one. The union negotiator, Brown, of Lodge No. 77, discussed the substantive terms of the final contract a number of times with officials of the Ruan Company after agreement had been reached. He also kept Ruan informed of progress during the bargaining sessions. He talked to Ralph McCrary, Ruan manager of industrial relations, at meetings at the union hall on July 21 and August 18, and on the phone again a few days later. There is no question Brown was seeking McCrary's acceptance of the contract. At the start of their talks, the union agent did not yet have a completed copy to show McCrary and simply explained it all to him. Now while it is true, as counsel for the Respondent argues, that, if Ruan were in negotiations and if, as is a fact, Ruan never did so, who was the bargaining agent for Ruan at the contract conferences? 249 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fact a part of the multiemployer unit, there would be no necessity to explain the already agreed-upon contract terms to him at all, it is still a fact Ruan did have to sign the contract in its own name. This because Ruan was not a member of the Midwest Council, which could sign on behalf of all its members. If Brown did some talking to make acceptance by McCrary more palatable, one could say it proves no more than common courtesy or good public relations. But Brown did much more than simply bring this one company up to date on what had been done on its behalf by the now allegedly authorized group representative. Again and again he justified the economic gains which the Union had won from the other employers at the bargaining table. He disputed McCrary's arguments as to why some of the new contract provisions were not acceptable economi- cally. And in the end Brown even offered a compromise proposal on one of the issues in dispute between him and Ruan. A very persuasive legal argument could be made that if this record proved nothing more than the fact that Brown offered to modify, to Ruan's advantage, a single substantive clause of the Midwest Council agreement, the entire theory of this complaint must fail. At the hearing the General Counsel passingly said that Brown was not "bargaining" with McCrary at any time. Unless words have no meaning at all, she was wrong. From Brown's testimony: "I explained the changes .... We [Brown and McCrary] went through every change but we went through every Article .... I went down each item and these were the noted changes actually from the 1973 agreement, but I did explain each one in detail because it's only outlined what articles were changed or parts of the agreement." In the discussion McCrary refused to agree to three items of economic substance. Again by Brown: "He said that he would relay the information and wait until I sent out the agreements to look them over." At another such meeting a month later: "I recall we looked over the contract and further explained some of the articles that we had inserted because the meeting prior to this, we did not have the supplement, I don't believe, or completed in its entire language, and that I recall I pointed out how we had written the language concerning new articles in there .... I recall I explained to him why the need for supplemental agreement, and I believe I told him that in a prior meeting." On the phone a few days later, after Brown again explained the intendment of the now disputed clauses: "He told me he would have to clear it with his supervisors and he would let me know later." Up to this point at least, with three extended discussions with McCrary, Brown never once told Ruan it would have to sign the contract as already negotiated because as a matter of law the Respondent was already legally bound. Had he thought the 1973 contract made Ruan an insepara- ble part of the "employer," he would hardly have stood by while the industrial relations manager talked of bringing the union demands to his superiors for consideration. This is rather the format of true collective bargaining. In fact, 2 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. instead of asserting the claim now made that Ruan had no choice because of the multiemployer settlement, Brown told the Company the Union could not yield because Ruan's employees had been polled and had already agreed to the terms! It was not until Brown spoke to Ruan's lawyer, Coopes, sometime after September 1, that he first mentioned the fact the Respondent had served no notice it wished "to withdraw from the multi employer arrangement . . . . I said at this point, you are too late." But the bargaining continued thereafter nevertheless. After the employees threatened to strike, Brown again met with McCrary and tried to sell him the whole package, still without success. On September 22, 2 days after the strike started, the parties met with a Federal mediator; now Brown offered to compromise one of the three matters in dispute. He offered to limit the right of transfer to new locations to present employees only, whereas the agree- ment reached granted such transfer rights to all employees, including whoever might be hired later. The Respondent refused to buy that also. Brown made the offer twice and again he told the Respondent that the concession would in any event first have to be accepted by its employees in a vote. Here he was again shifting from the asserting binding effect of the joint bargaining and making negotiations with Ruan a single employer form of bargaining. (4) In the middle of all this, on August 12, while at least apparent bargaining was going on, and before any claim of finality of negotiations is raised, the Union sends a copy of the Midwest Council agreement to the Respondent, and the accompanying letter says that by that contract "we propose to cover our employees employed by your firm." This is precisely the language that is used when a stranger to multiemployer bargaining is invited to join the crowd by separately and individually agreeing to hire, and do business, by the standards found acceptable by the indus- try generally in the same area. This is what Ruan had agreed to do in the past, and I must find this is what it was being asked to do again in 1976. The salutary benefits flowing from common area prac- tices in any industry, as seemingly conceded by the parties, cannot be gainsaid. Indeed, there is indication in the candor of the testimony of both Mr. Brown and Mr. McCrary that they were aware of the possible advantages, and strived as best they could to achieve a common ground in order to establish like conditions of employment all over the nine-state area. But no amount of goodwill on the part of any of them could serve to change the law that must be applied to the facts of this case. Upon the basis of the foregoing findings and conclu- sions, I hereby issue the following recommended: ORDER 2 It is hereby recommended that the complaint be, and it hereby is, dismissed in its entirety. 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. 250