I C Refrigeration Service, Inc.

I C REFRIGERATION SERVICE 687 I C Refrigeration Service, Inc and Sheet Metal Workers Union No 495, Sheet Metal Workers' International Association, AFL-CIO Tenny A Norquist, Inc and Sheet Metal Workers Union No 495, Sheet Metal Workers' Internation- al Association, AFL-CIO Saunders Sheet Metal and Sheet Metal Workers Union No 495, Sheet Metal Workers' Internation- al Association, AFL-CIO Valley Air Cond Eng , Inc and Sheet Metal Workers Union No. 495, Sheet Metal Workers' Internation- al Association, AFL-CIO Cases 20-CA-6406, 20-CA-6407,20-CA-6408, and 20-CA-6409 December 1, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On March 31, 1972, Administrative Law Judge' Stanley Gilbert issued the attached Decision in this proceeding Thereafter, the Respondents filed excep- tions and supporting briefs, and the General Counsel filed limited exceptions and a supporting brief, and a brief in support of the Administrative Law Judge's Decision 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 and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, only to the extent consistent herewith The consolidated complaint alleges, and the Ad- ministrative Law Judge found, inter aha, that Respondents violated Section 8(a)(5) and (1) of the Act by refusing to abide by the 1970 collective- bargaining agreement and the residential addendum thereto between the Union and the Sheet Metal and Air Conditioning Contractors National Association, Inc, Yosemite Area Chapter (herein referred to as the Association), and by refusing to execute a copy of the agreement as requested by the Union In so finding, the Administrative Law Judge concluded that Respondents did not unequivocally withdraw from multlemployer bargaining prior to execution of the agreement, and that following execution of the agreement the Union did not acquiesce in Respon- dents' attempted withdrawal, but merely negotiated with Respondents in an attempt to settle this case While we agree with the Administrative Law Judge that Respondents' attempts to withdraw from mul- tiemployer bargaining prior to execution of the contract were ineffective, we find, in agreement with the contentions of Respondents, that thereafter the Union acquiesced in Respondents' abandonment of multlemployer bargaining There is no dispute over the critical facts The four Respondents were members of the Association during the term of the 1967-70 agreement and at the commencement of negotiations for the contract involved herein Unlike most association members, Respondents primarily are engaged in residential, rather than commercial, construction Since the costs and rates of pay on nonunion residential jobs are significantly lower than commercial costs and rates, Respondents are at a competitive disadvantage with nonunion residential contractors To offset this disadvantage, the Association, in behalf of its residential contractor-members, unsuccessfully had sought to include a "residential clause" 2 in the 1967-70 contract Events Prior to Execution of Agreement Negotiations for a new contract commenced on May 13, 1970 3 At the May 25 and June 10 negotiating sessions, the association negotiators stated that it would be necessary to have a residential clause "in order to hold on to some of our contractors" The Union refused to consider the clause because no such concession had been made by any other union, and its members had instructed the negotiators not to consider such a clause At the June 15 negotiating session, the Association presented a contract from an Ohio local which contained a residential clause, but the Union refused to consider it because it would "open up a can of worms "4 On July 1, the old contract expired and the Union struck the association members, including Respondents Between July 10 and 15, all four Respondents submitted letters of resignation to Peterson, the Association's executive director At the July 16 meeting, Peterson displayed four envelopes and stated that they contained the resignation of four 1 The title of Trial Examiner was changed to `Administrative Law Judge effective August 19 1972 2 A residential clause is one which allows firms doing work on residential jobs to pay a lower rate than is paid for comparable work on commercial projects 3 All dates are 1970 unless otherwise indicated 4 The record contains conflicting testimony as to the date the Ohio contract was first presented However the exact date is not critical and the June 15 date serves as a convenient point of reference 200 NLRB No 107 688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD members who "were in fact going to resign" unless they got a residential clause 5 The Union did not protest the right of members to resign, nor did the Union contend that the resignees would be bound by the contract The Union continued to refuse to consider a residential clause At the July 27 meeting, Hilts, the union business manager, objected to sitting across the table, from a "scab," apparently referring to Saunders, one of the Respondents and a member of the negotiating committee Saunders replied that he did not want to be a nonunion shop, but that he could not sign a contract without a residential clause Saunders offered to resign from the negotiating committee, but was persuaded by Peterson to stay On August 18, the Union was given copies of the letters of resignation, with the admonition that unless the contract contained a residential clause, some of the members would not sign the contract Again, the Union did not protest the right of members to resign, nor did it state its assent However, the Union did express a willingness to study the Ohio contract, and on August 20, the Union proposed a residential clause, which the Association accepted, subject to ratification by the union membership The member- ship later rejected the proposal, but the Union's executive board agreed to take the proposal back to the members when the Association made it clear that the four Respondents would not sign a contract without a residential clause However, the members refused to reconsider the proposal or any other residential proposal, and the Association was so notified on August 25 At that point the Respondents informed the Association not to hold out any further for their benefit, stating that they simply could not sign any contract without a residential clause On August 30 or 31, the union and association negotiators reached agreement and the strike ended On September 2, Saunders told Hilts that he could not sign the contract without a residential clause, but that if one could be agreed to perhaps "we could work something out " At an association meeting on September 3, all of the members, except Respondents (who attended as "guests"), agreed to sign the contract 6 Respondents indicated that they would not sign any contract without a residential clause Saunders then resigned from the negotiating commit- tee and other association offices Later that day, Peterson and Hilts met and signed the contract, effective September 1 Peterson informed Hilts that he was not signing for the four Respondents Hilts replied that he did not think that they were serious and that their refusal to sign would "probably necessitate him taking economic action " Events Subsequent to Execution of Agreement In mid-September Hilts again asked Saunders to sign the association contract Saunders stated his position had not changed In response to Saunders' question concerning an attempt to work something out, Hilts replied that he expected someone from the International within 3 to 6 months to try to resolve the residential problem and that perhaps something could be worked out at that time On October 9, the Union mailed to each of the Respondents a copy of the association-union con- tract, together with a letter stating that "inasmuch as you were a member of the Association at the time the contract was negotiated, and Local 495 received no information from you to the contrary, please sign and return our copy by October 20, 1970 " None of the Respondents signed or returned the contract, nor are they operating under its terms On November 4, the Union filed the charges herein On December 18, Hilts again asked Saunders whether the matter couldn't be resolved other than through the charges Saunders replied he could not sign without a residential rate Hilts informed Saunders that he still expected the International to send someone to "talk to some of the nonunion shops," including Respondents, to "see if they couldn't work out some type of residential agree- ment " On January 6, 1971, Hilts and Saunders met by accident in the presence of Wade, a Board "investigator," and Hawkins, an International repre- sentative Wade asked if the parties couldn't get together and resolve their problems and "get the charges dropped " Saunders replied that a solution might be found "if there was some type of residential agreement " Hilts affirmed that he still expected someone to come into the area to try to work something out On June 16, 1971, Hawkins visited Saunders and Respondent Norquist in their respective shops and left them with a tentative proposal for a residential rate worked out by the International, with the understanding that he was not prepared to negotiate at that time, he first had to get authorization from the Local to negotiate with Respondents for a residential rate Twice in early September, 1971, counsel for the General Counsel suggested to Roche, the Union's new business agent, that a settlement of the case was possible if the Union and Respondents could reach satisfactory terms on a residential clause Roche indicated that his "goal" was to "get these people 5 A, this time the Union was not told the identity of the four alleged enter into an agreement it was the Association s policy to make the resignees and the Union regarded the resignations as a bluff members aware of the final contract terms 6 Although the association negotiating committee was authorized to I C REFRIGERATION SERVICE 689 back in the Union and drop these charges " Thereaf- ter, Roche called Saunders and said that he wanted to discuss a proposal Saunders referred Roche to Foster, Respondents' new representative As a result, a meeting took place on September 7, 1971, among Foster, the Respondents, Roche, and Hawkins After the Union ascertained that Respondents were acting individually, Roche said that he had authority to attempt to negotiate a residential clause and that he was meeting with them in an attempt to settle the matter before it went to hearing However, the meeting terminated when Roche stated that he did not have the authority to reach a final agreement In late September, 1971, Roche informed Foster that he had obtained full authority to negotiate, that he was going to attempt to discuss a residential clause with the Association, and that he would contact Respondents if the Association agreed to a clause Foster stated that he was not sure that Respondents could agree to the same terms as the Association, Roche replied that there would still be time to work out any differences On September 29, 1971, the Union advised the Respondents that it was meeting on October 4, 1971, with the Association to consider a residential clause addendum to the association contract, and it suggested they contact the Association if they wanted to be represented at the meeting Respondents did not attend On October 11, 1971, Roche and Hawkins met with Respondents and Foster and presented two propos- als (1) the residential proposal rejected by the union membership in August 1970, and (2) a proposal drafted by the International There was some discussion about certain changes suggested by the Union, and the meeting ended with the Union's agreeing to give Respondents time to study the proposal and make counterproposals On October 19, 1971, Respondents presented a counterproposal The Union then presented the proposal it had made to the Association on October 4, 1971, which was pending ratification by the union members Respondents rejected this proposal and Hawkins left the meeting, but Roche continued unsuccessfully to attempt to reach an agreement On November 2, 1971, the Association and Union reached agreement on a residential addendum, effective November 1, 1971 Roche called Norquist and Saunders to see if they were interested in r Anderson Lithograph Company Inc 124 NLRB 920 enfd 281 F 2d 893 (C A 9) Universal Insulation Corporation 149 NLRB 1397, enfd 361 F 2d 406 (C A 2) The Kroger Co 148 NLRB 569 affd 330 F 2d 210 Service Roofing Company 173 NLRB 321 8 Retail Associates Inc 120 NLRB 388 Service Roofing Company supra Joseph C Collins & Co Inc 184 NLRB No 113 Tulsa Sheet Metal Works Inc 149 NLRB 1487 enfd 367 F 2d 55 (C A 10) Sheridan Creations Inc 148 NLRB 1503 enid 357 F 2d 245 (C A 2) 9 The John J Corbett Press Inc 163 NLRB 221 C & M Construction "participating in that agreement " However, no agreement was reached with Respondents by the opening of the hearing on November 4, 1971 As indicated above, Respondents contend, inter alga, that assuming arguendo the correctness of the Administrative Law Judge's finding that they did not unequivocally withdraw from the Association prior to execution of the agreement, nonetheless, the Union's subsequent conduct in undertaking individ- ual negotiations with Respondents while bargaining separately and simultaneously with the Association over a residential rate evidences the Union's acquies- cence in Respondents' abandonment of multiem- ployer bargaining, notwithstanding that such mdivid- ual bargaining may have been, in part, for the purpose of settling the case For the following reasons, we find merit in Respondents' contentions In determining the effectiveness of an attempt to withdraw from the multiemployer bargaining, the Board first requires that the employer's conduct unconditionally and unequivocally evidence an intent to abandon multiemployer bargaining 7 In addition, once negotiations have commenced, with- drawal will not be permitted absent either "unusual circumstances" 8 or consent by the union And although consent may be implied from the union's conduct, such conduct usually must involve a course of affirmative action "clearly antithetical" to the union's claim that the employer has not withdrawn from multiemployer bargaining 9 In this regard, the Board will examine the totality of the union's conduct to determine whether by that conduct, the union has consented to, or acquiesced in, the employer's attempted withdrawal A prime indicator of a union's consent or acquies- cence, and clearly a determinative factor in the present case, is a union's willingness to engage in individual bargaining with the employer seeking to abandon multiemployer bargaining While individual bargaining may not, in every instance, result in a determination that the union has acquiesced,l° the Board repeatedly has found that such individual bargaining demonstrates a union's acceptance of the employer's withdrawal The difficult determination in this area, however, is whether a union has, under the specific facts of each case, engaged in individual bargaining or merely has attempted to persuade a recalcitrant employer to return to the multiemployer Company 147 NLRB 843 Atlas Sheet Metal Works Inc 148 NLRB 27 10 See The Kroger Co supra and Springfield Electrotype Service Inc 166 NLRB 647 wherein the Board stated that the individual bargaining on limited matters of peculiar concern to individual employers does not constitute abandonment of multiemployer bargaining where the parties mutually understand that individual variances in agreements can be negotiated by individual parties Cf Central Plumbing Company 198 NLRB No 135 690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fold Thus, where a union expresses its willingness to meet and discuss terms peculiar to an individual employer's operation, and listen to counterproposals, the Board has found that such conduct evidences acquiescence in an otherwise untimely withdrawal, even though the union ultimately insisted that the employer could sign only the association contract Publicity Engravers, Incorporated, 161 NLRB 221 In so finding, the Board interpreted the union's ultimate demand not as a demand that the employer be bound by the association contract, but rather that those terms were the only ones acceptable to the union Recently, the Board reaffirmed the concept that acquiescence exists where a union engages in separate negotiations with a withdrawing employer, listens to counterproposals, and agrees to make certain concessions not offered the association Hartz-Kirkpatrick Construction Co, Inc, 195 NLRB No 154 In that case, the Board agreed that no acquiescence would have been found had the union met with the employer in an effort to win back the employer into the association by having it abrogate its withdrawal and execute the association contract However, the umon went further, and offered the employer terms not contained in the association contract By bargaining for different terms and conditions, the union demonstrated its acceptance of the employer's separate bargaining status and ap- proved the employer's withdrawal 11 Thus, the Board has recognized that parties may bargain individually over limited matters of peculiar concern to individual employers where the parties mutually understand that individual variances are permitted, and that a union may meet with an employer subsequent to its attempted withdrawal for the purpose of attempting to convince the employer to abrogate the withdrawal and accept the associa- tion contract But, when the union abandons its insistence on acceptance of the association contract, as such, and, instead, negotiates different terms or expresses its willingness to consider counterpropo- sals, the Board readily has found that the umon has acquiesced in the employer's abandonment of mul- tiemployer bargaining Applying these principles to the facts of the present case, we cannot agree with the Administrative Law 11 A case which further demonstrates the difficulty in determining whether a union is engaging in individual bargaining or merely attempting to get an employer to return to the association fold is Joseph C Collins & Co Inc supra In Collins the union sought to get the withdrawing employer to sign the Indianapolis settlement and nothing less, although ultimately the union did offer a compromise In finding union acquiescence in the employers withdrawal the Trial Examiner placed the problem in proper perspective by pointing out the difficulty in determining whether the union was trying to get the employer to sign the association contract or a contract exactly like the one the association had signed As the Trial Examiner indicated it may very well Judge's conclusion that the Union never abandoned its position that Respondents were bound by the association agreement On the contrary, we believe that the facts adequately demonstrate the Union's acquiescence in Respondent's withdrawal In this regard, we note that dunng the December 18, 1970, conversation, Hilts indicated to Saunders that an International representative was going to talk to the nonunion shops, including Respondents, to attempt to work out a residential proposal Sigmfi- cantly, there were no plans to discuss residential proposals with the Association at that time, nor in January, when Hilts reiterated the plan Also, both Saunders and Norquist were approached by Hilts and presented a residential proposal in June 1971-3 months prior to the time the Umon initiated discussion of any such proposal with the Association In early September 1971, Roche stated that part of his goal as business agent was to get Respondents back into the Union While such a statement may be interpreted as meaning that Roche merely sought to get Respondents to abide by the association contract, it is equally indicative of Roche's belief that Respondents were no longer association members, especially when considered in conjunction with his call to Saunders, immediately thereafter, during which Roche stated that he wanted to meet with Saunders to discuss a proposal, again at a time when no such proposal had been offered to the Associa- tion Further indication that the Umon regarded Re- spondents as other than association members is the Union's willingness to meet, on September 7, 1971, with Respondents and their "new representative" -Foster-during which meeting, in answer to a question by Hawkins, the Union was assured that Respondents were acting as individuals, whereupon Roche announced that the executive board had authorized him to negotiate a residential proposal Again, at this time, no such proposal had been offered to the Association Once the Umon did commence postcontract negotiations with the Association on a residential addendum, its conduct belied its contention that it regarded Respondents as members Thus, when Foster was notified that the Umon and the Associa- tion were negotiating and he expressed doubt that be that the union was not sure at least in the beginning, what it wanted especially since the union indicated that it made no difference whether the employer signed the area settlement or an individual contract on the same basis That dilemma notwithstanding, the Trial Examiner correctly concluded that the union had engaged in individual bargaining indicative of acquiescence But see Johnson Sheet Metal Inc 179 NLRB 644 wherein clearly individual bargaining was found not to constitute acquiescence where prior to and during the bargaining the union objected orally and in writing to the employer s right to withdraw and when making the offer to bargain separately specifically reserved the right to object to the withdrawal I C REFRIGERATION SERVICE 691 Respondents could agree to the same terms as the Association, Roche replied that "there would still be time to work out any differences " When a meeting was arranged with the Association, the Umon notified Foster to see if Respondents wanted to attend, although the Union did not so notify other employers Indeed, while the Umon was engaged in negotia- tions with the Association, it engaged in simultane- ous separate negotiations with Respondents, present- ed different proposals than those offered to the Association, amended its own proposals, and ex- pressed a willingness to consider, and did consider Respondents' counterproposals And when the Un- ion and the Association finally reached agreement on a residential addendum, although an 8(a)(5) charge was then pending, the Umon did not otherwise make a specific claim that Respondents were bound by the addendum Rather, the Union "offered" that propos- al to Respondents and asked Saunders if he was "interested in participating in that agreement " Thus, while some of the discussions between the Union and Respondents following execution of the initial contract may support General Counsel's contention that such discussions were merely an effort to get Respondents to reconsider and sign the association contract, we find that the Umon aban- doned that attack and thereafter undertook to negotiate with Respondents as individual employers rather than association members In the present case, we find that the Union's total course of conduct following execution of the agree- ment, including the fact that it was willing to, and did, engage in separate negotiations with Respon- dents on terms and conditions different from those agreed to by the Association, listened to Respon- dents' counterproposals, and at no time insisted that Respondents were bound by the association agree- ment, clearly evidences its intention to reach agree- ment on terms beyond the framework of multiem- ployer bargaining, notwithstanding the fact that the Union also manifested its interest in avoiding the present litigation Thus, we conclude that the Umon did, in fact, acquiesce in Respondents' withdrawal from multiemployer bargaining subsequent in time to the execution of the contract with the Associa- tion 12 12 Nor do we agree with the Admimstrative Law Judge s conclusion that the discussions between Respondent and the Umon following execution of the agreement constituted nothing more than an attempt to settle the litigation and cannot be held to be evidence of acquiescence It is uncontroverted that dunng many of the discussions the Umon expressed its desire to reach agreement before a hearing and its willingness to drop the charges in the event an agreement could be reached However unlike the Administrative Law Judge we shall not as a matter of law invoke the evidentiary proscriptions applicable to settlement discussions thereby precluding the Board from considering facts highly relevant to the question of acquiescence Where the concessions clearly evidence an intention to Accordingly, we find that Respondents did not violate Section 8(a)(5) and (1) of the Act by refusing to execute or abide by the terms of the 1970 collective-bargaining agreement between the Umon and the Association Accordingly, we shall dismiss the complaint insofar as it alleges that Respondents unlawfully refused to bargain ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent Saunders Sheet Metal, Modesto, California, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Promising benefits to its employees to induce them to abandon their membership in Sheet Metal Workers Union No 495, Sheet Metal Workers' International Association, AFL-CIO, or any other labor organization (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of rights under Section 7 of the Act 2 Take the following affirmative action which is designed to effectuate the policies of the Act (a) Post at its place of business in Modesto, California, copies of the attached notice marked "Appendix "13 Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by Respondent Saunders' representative, shall be posted by Respondent Saunders immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its employees are customarily posted Reasonable steps shall be taken by Respondent Saunders to insure that said notices are not altered, defaced, or covered by any other material (b) 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 MEMBER FANNING, dissenting I would affirm the Decision of the Administrative Law Judge in this case For the reasons stated by him, I do not believe the record will support an inference that the Union acquiesced in the Respon- reach agreement beyond the scope of multiemployer bargaining and the settlement discussions themselves seek solutions on an individual employer basis the mere fact that such concessions were made dunng settlement discussions will not preclude a finding of acquiescence See Joseph C Collins & Co Inc supra compare Johnson Sheet Metal Inc supra 13 In the event that this 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 read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board 692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dent's untimely withdrawal from the Association and I would find Respondent in violation of Section 8(a)(5) and (1) of the Act, as alleged in the complaint APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT promise benefits to our employ- ees to induce them to abandon their membership in Sheet Metal Workers Union No 495, Sheet Metal Workers' International Association, AFL-CIO, or any other labor organization WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of rights under Section 7 of the Act SAUNDERS SHEET METAL (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone 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 compli- ance with its provisions may be directed to the Board's Office, 13018 Federal Building, Box 36047, 450 Golden Gate Avenue, San Francisco, California 94102, Telephone 415-556-0335 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE STANLEY GILBERT, Trial Examiner Based upon charges filed on November 4, 1970, by Sheet Metal Workers Union No 495, Sheet Metal Workers' International Association, AFL-CIO, hereinafter referred to as the Union, in Cases 20-CA-6406, -6407, -6408, and -6409, the consolidated complaint herein was issued on March 2, 1971 The said complaint alleges that Respondents I C Refrigeration Service, Inc, Tenny A Norquist, Inc, Saunders Sheet Metal, and Valley Air Cond. Eng, Inc, violated Section 8(a)(5) and (1) of the Act and that Respondent Saunders also violated Section 8(a)(1) of the Act Respondents, by their answers, not only deny that they committed the unfair labor practices alleged in the complaint, but also deny allegations in the complaint that they were, at the time material herein, members of Sheet Metal and Air Conditioning Contractors National Association, Inc, Yosemite Area Chapter, hereinafter referred to as the Association or SMACNA Therefore, they further deny that the jurisdictional standards of the Board have been met Pursuant to notice , a hearing was held in Stockton, California, on November 4 and 5 , 1971, before the duly designated as Trial Examiner Appearances were entered on behalf of General Counsel and Respondents, and briefs were received from said parties on January 7, 1972 Upon the entire record 1 in this proceeding and my observation of the witnesses as they testified, I make the following FINDINGS OF FACT I THE BUSINESSES OF RESPONDENTS At all times material herein, Respondent I C Refrigera- tion, a California corporation with a place of business in Modesto, California , has been engaged in business as a plumbing, steamfitting, air conditioning, refrigeration, and sheet metal contractor At all times material herein, Respondent Norquist, a California corporation with a place of business in Modesto, California, has been engaged in business as a heating, air conditioning, and sheet metal contractor At all times material herein , Ewell F Saunders and Doyle Saunders have been partners doing business under the trade name of Saunders Sheet Metal with a place of business in Turlock, California, where the Respondent partnership is engaged in the business of a sheet metal contractor At all times material herein, Respondent Valley, a California corporation with a place of business in Modesto, California, has been engaged in business as an air conditioning and sheet metal contractor It is alleged in the complaint that, at all times material herein, all four Respondents have been members of the aforesaid Association , a voluntary association of employ- ers engaged in business as heating, plumbing, air condi- tioning, and sheet metal contractors and that, at all times material herein, said Association has existed for the purpose, inter alra, of representing its employer-members, including Respondents, in collective bargaining and negotiating and administering collective-bargaining agree- ments with various labor organizations, including the Union (the Charging Party herein) As is set forth more fully hereinbelow, the aforesaid allegations have been sustained During the year preceding the issuance of the complaint, employer-members of the Association within the State of California, including Respondents, in the course and conduct of their business operations collectively purchased and received goods and materials valued in excess of $50,000 which were shipped to them directly from suppliers located outside the State of California Therefore, it is concluded that at all times material herein the Association and its employer-members, includ- ing Respondents, have constituted an employer engaged in 1 The General Counsel s unopposed motion to correct the transcript of the proceedings in certain respects is granted I C REFRIGERATION SERVICE 693 commerce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act 2 II THE LABOR ORGANIZATION INVOLVED The Umon is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act III THE UNFAIR LABOR PRACTICES There is little or no dispute as to the material facts in this proceeding, but rather the dispute is as to what appropriate inferences may be drawn therefrom The principal issue is whether or not the Respondents effectively withdrew from the multiemployer bargaining group (consisting of mem- bers of the Association) during the course of negotiations which eventually led to an agreement between the Association and the Union for the period 1970 to 1972 Respondents concede that they were members of the multiemployer bargaining group with respect to the 1967-70 agreement and that they were members of said group at the commencement of the negotiations in 1970 However, they contend that they effectively withdrew from said group by tendering their so-called "resignations" to the Association and by the Union's acquiescence to their withdrawal The General Counsel contends that it cannot be inferred from the facts that the Union did acquiesce to their said withdrawal It appears that the Respondents are primarily engaged in work on residential construction and in an area where their competitors are nonunion It further appears that generally residential construction costs are lower than the costs of commercial or industrial construction, and consequently residential contractors cannot readily afford the rates of pay granted by commercial contractors Therefore, during the negotiations in 1967 and again during the negotiations in 1970, the Association sought to have the Union agree to concessions with respect to residential construction em- bodied in a provision of the contract which is frequently referred to in the record as a "residential clause " Although there was no residential clause in the 1967-70 agreement, it appears that the Union did indicate that it would attempt to work out some provisions for residential construction, but nothing was accomplished with respect thereto prior to the commencement of the 1970 negotiations The 1967-70 agreement was effective from July 17, 1967, to June 30, 1970 The negotiations on what eventually became the 1970-72 agreement commenced on May 13, 1970 Numerous negotiating meetings were held between the representatives of the Union and of the Association until an agreement was reached effective as of September 1, 1970 One of the major issues in the negotiations was with respect to the inclusion of a residential clause At the beginning of the negotiations, the spokesman for the Association stated that it would be necessary to have a residential clause "in order to hold on to some of our contractors," and, on the other hand, the Union opposed the inclusion of a residential clause, stating that it did not want to be the first in the country to incorporate such a concession in its contract While progress was made on the other issues during the course of the negotiations, no progress was made with respect to the matter of a residential clause, each side adhering to its position 3 At the expiration of the 1967-70 agreement the Union called a strike commencing July 1, 1970 , against all members of the Association including the Respondents, refusing to have its members work without a contract The strike ended on September 1, 1970 During the period between July 10 and July 15, 1970, each of the Respondents sent a letter to the Association which, in effect, stated that because of economic consider- ations they wished to be released from any obligations to the Union arising from the pending negotiations At the bargaining session of July 16, 1970, Webb Peterson, executive director of the Association, held up four envelopes ostensibly containing the aforementioned letters and stated that they were resignations from members of the Association and that "unless" the contract contained a residential clause the members whose letters he held "would be going non-union " A representative of the Union asked to see the letters, but Peterson refused the request, stating that they were "Association business and not Union business " It appears that the union representatives did learn the names of the members to whom Peterson was referring by seizing an opportunity to look at the envelopes which had been left on the table C Lorne Hilts, business manager of the Union, stated that he did not want to sit across the table from anyone "who intended to be a scab 114 However, Peterson stated that he could not tell the association members "how they should structure their committee " At either the July 16 meeting or a subsequent meeting the association representatives presented to the union representatives a contract which had been executed by a sister local in Ohio which included a residential clause, and the union representatives stated they would consult with their International representative about the propriety of including a residential clause At a meeting sometime in August the union representatives were given copies of the aforementioned letters of resignation At a meeting on August 20 the Union proposed a residential clause which was accepted by the Association It was understood, however, that the clause was subject to ratification by union membership By a vote taken of the union membership the proposed clause was rejected After a discussion between association representatives and the executive board of the Union, the executive board stated that it would take the proposed clause back to the membership However, the membership voted not to reconsider its action in rejecting the residential clause and this fact was reported to the Association On August 25 the Association held a meeting at which it relayed said report to its members At this point, to quote Respondent's brief, "Respondents informed the members 2 The record will not support a finding that the jurisdictional standards reached an impasse of the Board would have been met even if said Respondents had not been 4 It appears that he was referring to Doyle Saunders who was a member found to be members of the Association within the time material herein of the association committee 3 There is no basis for a finding however that the bargaining at any time 694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the Association not to hold out any longer on their behalf since Respondents could not agree to a contract without a residential rate" On September 1 the member- ship of the Union ratified the proposed agreement which had been negotiated (without the inclusion of a residential clause) On September 3 the Association held a meeting of its members to which there is testimony Respondents were invited "as guests " A poll was taken and apparently all those present, except Respondents, indicated that they were willing to accept the agreement without a residential clause Respondents indicated at the meeting that they would not sign the agreement without a residential clause Thereafter Peterson and Hilts met to execute the agreement (which was effective as of September 1, 1970) At that point Peterson informed Hilts that Respondents would not sign without a residential rate to which Hilts responded that he thought they were "bluffing" and that if they did not he would have to "take economic action " Respondents, in their brief, assert that at no time did the Union representatives make a statement to the effect that the Respondents could not withdraw from the multiem- ployer bargaining group The record supports this asser- tion On September 2, 1970, Hilts called Saunders and told him that the union membership had ratified the agreement with the Association and asked if the Union could dispatch their men He questioned whether Saunders was going to sign the 1970 agreement Saunders informed Hilts that his position had not changed and that if they could do something about a residential clause they "could work something out " Two weeks later Saunders and Hilts again met and again Hilts asked him to sign the association contract and again Saunders stated his position had not changed "simply because there hadn't been any residential agreement " Saunders asked if anything was being done about it, that he had heard that some work was going to be done with regard to it Hilts informed him that he expected someone, apparently from the International, would come into the area to see if the residential problem could be resolved The Union sent to each of the Respondents a letter, dated October 9, 1970, which reads as follows Enclosed are copies of the new contract between SMACNA-Yosemite Chapter and Sheet Metal Work- ers Local No 495 Inasmuch as you were a member of the Contractors' Association at the time the contract was negotiated, and Local No 495 received no information from you to the contrary, please sign and return our copy by October 20, 1970 If you have any questions regarding this contract please call me Then, when Respondents did not comply with the above request, the Union filed charges in these proceedings on November 4, 1970, as stated hereinabove On December 18, Hilts and Saunders again had a conversation to which Saunders credibly testified, as follows A I believe he mentioned something to me about the fact that, "Isn't there some way we can resolve this without having to have charges against you7" And, couldn't we sign a contract We had some of the same conversation I just mentioned about, "No, it was about the residential rate " And I asked him again if there was anything being done about the residential rate, and he said to his knowledge, there was supposed to be somebody in in about a month, an International Organizer, and the intent of that was to try to talk to some of the non-union shops and ourselves, and various others, and see if they couldn't work out some type of residential agreement that could be made available to us at that time On January 6, Hilts and Saunders met accidentally and held a conversation at which an investigator of the National Labor Relations Board and a representative of the International Union were also present The NLRB investigator asked if there was any way the parties could get together to solve their problems and "get the charges dropped," to which Saunders replied, "Well, I'm not sure there isn't, but perhaps if there was some type of residential agreement " Saunders asked Hilts whether or not anything more had been done about such an agreement and Hilts responded that he expected somebody, ostensibly from the International, would come into the area some time in the future "to try to do something about it " In June of 1971, a representative of the International met with Saunders and Norquist and left with them a proposal for a residential rate On September 7, October I1 and October 19 the Union met with Respondents to attempt to negotiate a residential clause, but were unsuccessful On September 29, 1971, the Union sent a letter to Respondents notifying them of a meeting with the Association on October 4, 1971, to consider a residential addendum to the 1970-72 agreement and suggested that if Respondents wished to be represented at the meeting to contact the Association It appears that Respondents did not attend the October 4 meeting Shortly before the hearing in this matter the Association and the Union agreed to a residential addendum to the 1970-72 agreement The Respondents contend that it is appropriate to infer from the conduct of the parties that the Respondents effectively withdrew from the multiemployer bargaining unit with the acquiescence of the Union and, therefore, were not bound by the 1970-1972 agreement It is well established that an employer's untimely withdrawal from a multiemployer bargaining group may nevertheless be effective if it is based on mutual consent, and that the Union's consent may be implied from its course of conduct Joseph C Collins & Co, Inc, 184 NLRB No 113 While this principle is well established, an examination of the cases discloses that the facts vary so much from case to case that it is difficult to perceive definitive guidelines as to what constitutes acquiescence to an employer's withdraw- al, and the facts in none of the cases cited in the briefs filed herein or other cases examined are sufficiently similar to the facts in the instant proceeding to permit reliance upon any of said cases as precedent The Trial Examiner is of the opinion, however, that the record in this case will not support a finding that the Union did acquiesce to the Respondents' withdrawal from the multiemployer bargain- ing unit and thereby waived the obligation of the I C REFRIGERATION SERVICE 695 Respondents to be bound by the agreement negotiated between the Union and the Association It is inferred from an analysis of the record with respect to the negotiations that the Respondents did not unequivo- cally notify the Union of their withdrawal but that the Association merely notified the Union that the four Respondents would refuse to be bound by the bargaining negotiations unless the contract contained a residential clause The only comment that the Union made in reply was that one of its representatives stated that he objected to sitting across the table from anyone "who intended to be a scab " It is evident from the record that, at least until the meeting of the Association on August 25 (when Respon- dents informed the other members "not to hold out any longer on their behalf"), the Respondents considered that the association committee was bargaining on their behalf It further appears that the Union considered the above- stated intention of Respondents (not to be bound by the negotiations unless the Union agreed to a residential clause) was a "bluff" to force the Union to accept a residential clause Respondents argue that it can be inferred from the Union's conduct after the Association and the Union had reached an agreement that the Union had acquiesced to the withdrawal of the Respondents from the bargaining unit It is true that after Respondents indicated that they would not execute or abide by the aforesaid agreement the Union offered to try to work out a residential addendum and did in June, September, and October 1971 negotiate with them, though unsuccessfully, with respect to a residential clause However, it is found that the Union's aforesaid conduct will not support a finding that the Union had acquiesced to the Respondent's withdrawal from the bargaining unit It does not appear that the Union ever abandoned its position that Respondents were bound by the agreement negotiated with the Association and it is the Trial Examiner's opinion that its attempt to resolve the problem of Respondents' insistence on a residential clause with the view of disposing of the charges filed in this proceeding constituted nothing more than an attempt to settle the litigation and cannot, in the circumstances, be held to be evidence of abandonment of its position or of acquiescence to the withdrawal of the Respondents from the bargaining unit 5 Consequently, it is concluded that by refusing to abide by the 1970-72 agreement negotiated by the Union and the Association and to execute a copy thereof, as requested by the Union, Respondents violated Section 8(a)(5) and (1) of the Act credited testimony with respect to the first conversation is as follows A Well, Doyle had mentioned they had thought about possibly going non-union, and just different things they would try to do for the men that stayed with him Q What did he say about the different tnmgs he would try to do? A As far as wages, he didn't really mention any specific wages, but said they would try to come up with a medical plan, something comparable to what the Union could offer His credited testimony as to the second conversation is as follows A Well, he just came over to the house, and asked me whether I had thought anymore about what we talked about, and I said I was going to stay in the Union It appears from the above-credited testimony that McClellan reasonably understood that Saunders promised economic benefits if he would agree to abandon the Union Such conduct constitutes interference, restraint, and coercion within the meaning of Section 8(a)(1) of the Act IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The unfair labor practices of the Respondents set forth in section III, above, occurring in connection with their operations set forth in section 1, 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 Respondents have engaged in conduct violative of Section 8(a)(5) and (1) of the Act and that Respondent Saunders also engaged in other conduct violative of Section 8(a)(1) of the Act, it will be recom- mended that they be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies 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 The Violation of Section 8(a)(1) by Saunders It is alleged that Respondent Saunders Sheet Metal, by Doyle Saunders, violated Section 8(a)(1) of the Act on or about July 2 and 9, 1970, by promising economic benefits to employees to induce them to terminate their member- ship in the Union One of Saunders' employees, James McClellan, testified to conversations he had with Doyle Saunders on or about the aforementioned dates His 5 Also, it is noted that an employer may still be considered to be a member of a multiemployer bargaining unit even though he negotiates modifications of a multiemployer bargaining agreement individually with 1 At all times material herein Respondents, and each of them, have been members of the Sheet Metal and Air Conditioning Contractors National Association, Inc, Yosemite Area Chapter, herein called the Association, a voluntary association of employers engaged in business as heating, plumbing, air conditioning, and sheet metal contractors 2 At all times material herein, the Association has existed for the purpose, inter aha, of representing its the Union Teamsters Local No 70 (Granny Goose Foods et a1 ) 195 NLRB No 102 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employer-members, including Respondents, in collective bargaining and in negotiating and administering collective- bargaining agreements with various labor organizations including the Union 3 At all times material herein, the Association and its employer-members, including Respondents, have consti- tuted an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act 4 On or about July 2 and 9, 1970, Respondent Saunders, by Doyle Saunders, at the home of its employee, James McClellan, interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act by promising economic benefits to him to induce him to terminate his membership in the Union in violation of Section 8(a)(1) of the Act 5 All sheet metal workers employed by the Associa- tion's employer-members, including Respondents, but excluding professional employees, guards and supervisors as defined in the Act constitute, and at all times material herein have constituted, a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act 6 For a number of years, and at all times material herein, continuing to date, the Union has represented a majority of the employees in the unit described above in paragraph 5 and, by virtue of the provisions of Section 9(a) of the Act, has been 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 7 On or about September 1, 1970, the Union and the Association reached complete agreement on all the terms of a collective-bargaining contract covering the employees in the unit described above 8 Commencing on or about September 3, 1970, and at all times thereafter, Respondents, and each of them, did refuse, and continue to refuse, the Union's request to sign a written collective-bargaining contract embodying the terms of the collective-bargaining contract reached by the Union and the Association as described above, in violation of Section 8(a)(5) and (1) of the Act 9 Commencing on or about September 3, 1970, and at all times thereafter, Respondents, and each of them, by their agents, did refuse and continue to refuse to accept, be bound by, or give full force and effect to the terms and conditions of the collective-bargaining contract reached by the Union and the Association as described above, in violation of Section 8(a)(5) and (1) of the Act [Recommended Order omitted from publication ]