The Carvel Co.

THE CARVEL COMPANY 111 The Carvel Company and C and D Plumbing and Heating Company and Plumbers, Steamfitters and Metal Trades, Local 321, AFL-CIO. Case 1-CA- 10813 September 23, 1976 DECISION AND ORDER On April 21, 1976, Administrative Law Judge Mel- vin J. Welles issued the attached Decision in this pro- ceeding. Thereafter, Respondent filed an exception and a brief in support of the Administrative Law Judge's Decision and the single exception, and the General Counsel filed exceptions and a supporting brief. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, con- clusions, and recommendations of the Administra- tive Law Judge only to the extent consistent here- with. 1. The complaint alleges that Respondent Carvel Company, herein called Carvel, and Respondent C and D Plumbing and Heating Company, herein called C and D, constitute a single employer under the Act; that Carvel violated Section 8(a)(5) of the Act by its refusal to sign the 1975 collective-bargain- ing agreement negotiated between the Union and a multiemployer association, and by substituting C and D as the plumbing contractor on the Addison, Maine, construction site for- the purpose of avoiding its bargaining obligation with the Union; and that Carvel violated Section 8(a)(3) of the Act by discrim- inatorily discharging its employees working on the Addison project. For the purposes of his Decision, the Administra- tive Law Judge assumed that Carvel and C and D constitute a single employer, but nevertheless con- cluded that no violation of the Act had been estab- lished. Therefore, he recommended dismissal of the complaint in its entirety without making a specific finding on the single employer issue. As set forth in- fra, we find, contrary to the Administrative Law Judge, that Carvel's refusal to sign the collective-bar- gaining agreement was violative of Section 8(a)(5) because its Withdrawal from multiemployer bargain- ing was not timely. Thus, our disposition of the case requires us to pass on the single employer question in order to determine whether both Carvel and C and D are obligated to sign the agreement. For the reasons set forth below, we find that Carvel and C and D are separate employers under the Act. Richard Carvel, president of Carvel Company, owns 90 percent of the outstanding Carvel stock, while his sister owns the remaining 10 percent. Rich- ard Carvel also owns-all of the stock of C and D. Thus, the record establishes common ownership, but that factor is not determinative in the absence of common control of labor relations policies.' Further- more, "such common control must be actual or ac- tive, as distinguished from potential control." 2 Other factors to be considered are interrelation of opera- tions and common management. The record reveals that C and D is a separate legal entity with separate bank and payroll accounts, and separate lines of credit. Management of C and D is vested in Byron Dow who is president, treasurer, and general manager. Regarding labor relations policies, the record shows that C and D employees are hired by Dow or a foreman under his control, while Carvel employees are hired by Carvel foremen. Dow con- trols the day-to-day labor relations of C and D. In addition, there are no joint employees of Carvel and C and D, and there is no temporary interchange of employees. Thus there are different job estimators and job superintendents for each company. Although both companies do business as plumbing contractors, they submit separate job bids and do not compete for the same jobs. Carvel's contracts involve a higher dollar volume than those of C and D. Carvel has an employee complement of 30 to 50; C and D has only 9. On the basis of the foregoing and the record as a whole, we find that Richard Carvel, by virtue of his status as sole stockholder, has potential control over C and D's operations, but that actual control over labor relations policies and day-to-day operations lies with C and D's president, Byron Dow. Accord- ingly, we conclude that Carvel and C and D consti- tute separate employers under the Act. 2. The Administrative Law Judge found that Carvel's withdrawal from the multiemployer bargain- ing unit was timely and effective under the Board's Retail Associates rule,3 and therefore Carvel did not violate Section 8(a)(5) of the Act by refusing to sign the contract ultimately negotiated. We disagree. In sum, the facts are as follows. For many years, Carvel has been a member of the Pipefitting Con- tractors Association, Inc., of Maine, herein called^ the Association, and, as such, a member of a multiem- ployer bargaining unit and party to a series of con- tracts with the Union. The 1973 contract between the Association and the Union provided that it was to continue in effect until April 30, 1975,4 but that "[i]f 1 Gerace Construction, Inc and Helger Construction Company, Inc, 193 NLRB 645 (1971) 'Id 3 Retail Associates, Inc, 120 NLRB 388, 395 (1958) 4 All dates herein are in 1975 unless otherwise indicated 226 NLRB No. 18 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD either party desires a change in this agreement after April 30, 1975-they shall notify the other party on or before Feb. 1, 1975 and both parties shall meet with- in fifteen days to discuss same." Absent such notice, the contract automatically renewed itself for another year. Prior to the February 1 automatic renewal date, Union President James McLaughlin orally advised the Association that the Union wished to reopen con- tract negotiations. On February 11, the Union sent the Association a letter whose terms are fully set forth in the Administrative Law Judge's Decision. In brief, this letter stated that the membership had'-vot- ed to reopen negotiations and included a list of the Union's tentative proposals. In reference to the earli- er oral communication with the Association, the Union stated that it was "agreed that in lieu of a called meeting at this time, it would suffice primarily to set forth in a letter, the desired changes in the contract." The Association replied on February 14, acknow- ledging receipt of the Union's tentative proposals and stating that "this exchange of letters serves as the intial [sic] negotiation which the contract requires to take place prior to February 15th." In closing, the letter stated that the Union would be contacted "in order to set a firm date for the next meeting for bar- gaining purposes." On February 27, the resignation of Carvel Compa- ny was submitted to the Association, and on March 5 the resignation was accepted. Shortly thereafter, the Union was informed of Carvel's withdrawal from the Association. The first actual meeting between the As- sociation and the Union for the purpose of negotiat- ing a new agreement occurred on April 9. After the contract expired, and with no new con- tract having been agreed upon, the Union com- menced a strike beginning about May 5. The strike lasted until May 31 when the membership ratified a new agreement, effective from May 1, 1975, to April 30, 1977. Carvel has refused to sign the new contract negotiated by the Association and the Union. While there is some testimony in the record that Carvel stated that it would "pay the wages, fringes and so forth," there is no evidence that it has done so or has implemented the other terms and conditions of the agreement. In Retail Associates, supra, the Board set forth the rules governing the withdrawal of an employer or a union from multiemployer bargaining. An employer may withdraw without the union's consent prior to the start of bargaining by giving unequivocal notice of the intent to abandon the multiemployer unit and to pursue negotiations on an individual employer ba- sis. However, once negotiations have actually begun, withdrawal can only be effectuated on the basis of "mututal consent" or "unusual circumstances." We disagree with the Administrative Law Judge's finding that "negotiations" within the meaning of the Board's rule did not begin until the parties' first meeting on April 9, and that therefore Carvel's with- drawal was timely and effective. Here, prior to the February 1 renewal date, the Union orally informed the Association of its intent to reopen the contract, and subsequently submitted a list of its bargaining proposals. On February 14, the Association informed the Union that it had received those proposals and acknowledged that the process of reopening the con- tract had begun. Under these circumstances, to hold, as did the Administrative Law Judge, that Carvers subsequent withdrawal was timely, even though it oc- curred after the disclosure to the Association of the Union's bargaining demands, would be contrary to the purpose, of the Retail Associates rule of "fostering and maintaining stability in bargaining relation- ships." 5 For, an employer would thus be permitted to withdraw "in the hope of obtaining, through sepa- rate negotiations, more favorable contract terms than those which are foreshadowed" by the Union's pro- posals 6 The rule, however, is designed precisely to prevent such a "disruption of the multiemployer group via a race for bargaining leverage;" In view of the foregoing, we conclude that "negoti- ations" within the meaning of the Retail Associates rule commenced at the latest on February 14, Carvel's subsequent withdrawal from multiemployer bargaining was untimely, and therefore Carvel vio- lated Section 8(a)(5) and (1) of the Act' by its refusal to adopt the agreement reached between the Associa- tion and the Union.' As we have found that Carvel and C and D are separate employers under the Act; the obligation to sign the contract negotiated be- tween the Union and the Association lies only with Carvel, and we shall order that it take such action. 3. For the reasons set forth in his Decision, we agree with the Administrative Law Judge's dismissal 120 NLRB at 393 t Mor Paskesz, 171 NLRB 116, 118 (1968), enfd. 405 F.2d 1201 (CA. 2, 1969). Id We find no merit in Respondent's contention that the Union consented to Carvel's withdrawal. The Union's failure to immediately object to the withdrawal, standing alone , is insufficient to establish ' acquiescence. See N.LR.B. v John J Corbett Press, Inc., 401 F.2d 673, 675 (CA. 2, 1968), enfg. 163 NLRB 154 ( 1967). Although in a letter dated June 9 the Union inquired as to whether Carvel wished to sign the contract as a "non mem- ber," the letter specifically reserved the "right of either party to exercise their rights in the event of failure to reach an agreement " Furthermore, the Union never abandoned its insistence that Carvel accept the Association contract and at no time did the Union indicate to Caravel a willingness to negotiate terms different from those agreed upon with the Association. See I C Refrigeration Service, Inc., 200 NLRB 687, 690 (1972) For those rea- sons, Respondent's reliance on Atlas Sheet Metal Workers, Inc., 148 NLRB 27 (1964), is clearly misplaced. THE CARVEL COMPANY 113 of the complaint allegation that Respondent Carvel violated Section 8(a)(3) of the Act by discriminatori- ly discharging its employees working on the Addison, Maine, construction site. In addition, as we have found that Carvel and C and D are separate employ- ers, we shall dismiss the complaint insofar as `it alleg- es that Carvel unlawfully substituted C and D as the plumbing contractor on the Addison project in order to avoid Carvel's bargaining obligation with the Union. CONCLUSIONS OF LAw 1. Carvel and C and D are separate employers within the meaning of Section 2(2) of the Act. 2. Respondent Carvel is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. The Union is a labor organization within the meaning of Section 2(5) of the Act. 4. The Union is, and has been at all material times, the exclusive bargaining representative of the employees of Respondent Carvel in the following ap- propriate unit: All journeymen and apprentices of the plumbing and pipefitting industry employed by members of the Association; excluding all other employ- ees, guards, and supervisors as defined in the Act. 5. By its refusal to adopt the agreement reached between the Association and the Union, and by its refusal to give effect to the terms and conditions con- tained therein, Respondent engaged in and is engag- ing in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. The aforesaid unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the,Act. THE REMEDY Having found that Respondent Carvel has en- gaged in certain unfair labor practices, we shall order it to cease and desist therefrom and take certain af- firmative action that we find necessary to-effectuate the policies of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that -the Respondent, The Carvel Company, Portland, Maine, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Plumb- ers, Steamfitters and Metal Trades, Local 321, AFL- CIO, as the exclusive bargaining representative of its employees in the appropriate unit described herein. (b) Refusing to sign and to implement the 1975-77 contract between the Union and the Pipefitting Con- tractors Association, Inc., of Maine with respect to its employees in the appropriate unit described here- in. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights under the National-Labor Relations Act, as amended. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Forthwith sign and implement the 1975-77 contract between the Union and the Association in- sofar as it applies to employees of Respondent in the described unit, and give retroactive effect thereto from its effective date in 1975. (b) Make whole its employees in the aforesaid bargaining unit for any loss of pay or other employ- ment benefits they may have suffered by reason of Respondent's refusal to sign and to implement the aforesaid collective-bargaining agreement between the Union and the Association. Backpay is to be computed in a manner consistent with Board policy as set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest thereon at the rate of 6 per- cent per annum as set forth in Isis Plumbing & Heat- ing Co., 138 NLRB 716 (1962). (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its place of business in Portland, Maine, copies of the attached notice marked "Ap- pendix." 9 Copies of said notice, on forms provided by the Regional Director for Region 1, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to, employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, de- faced, or covered by any other material. (e) Notify the Regional Director for Region 1, in writing, within 20 days from the date of this Order, 9In 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." 114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD what steps the Respondent has taken to comply here- with. IT IS -FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it- alleges violations not found herein. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain with Plumb- ers, Steamfitters and Metal Trades, Local 321, AFL-CIO, by refusing to sign and to implement the 1975-77 contract between the Union and the Pipefitting Contractors Association, Inc., of Maine. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights under the-National Labor Relations Act, as amended. WE WILL forthwith sign and implement the 1975-77 contract' between the Union and the Association and give retroactive effect thereto, from its effective date in 1975. WE WILL make whole 'our employees in the bargaining unit for any loss of pay or other em- ployment benefits they may have suffered by reason of our refusal to sign and to implement the aforesaid collective-bargaining agreement between the Union and the Association. THE CARVEL COMPANY DECISION STATEMENT OF THE CASE MELVIN J. WELLES, Administrative Law Judge: This case was heard at Bangor, Maine, on December 10, 11, and-12, 1975, pursuant to charges filed June 25, 1975, and amend- ed August 8, 1975, and a complaint issued September 5, 1975, alleging violations of Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended. The Gen- eral Counsel and the Respondent have filed briefs. Upon the entire record in the case, including my obser- vation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER AND THE LABOR ORGANIZATION INVOLVED Carvel Corporation is a Maine corporation, with its prin- cipal office and place of business at Portland, Maine, and does business as a plumbing contractor . In the course of its business operations, it receives goods and materials valued in excess of $50,000 directly from points outside the State of Maine. I find, as Carvel admits, that it is an employer engaged in commerce` within the meaning of Section 2(6) and (7) of the Act. C &. D Plumbing and Heating Compa- ny, herein called, C & D, also a Maine 'corporation en- gaged in the plumbing contractor business , and also having its principal , office in Portland, Maine, is'alleged to be en- gaged in a common business enterprise with Carvel, and to be "a continuation and/or alter ego of Carvel." For reasons that will become apparent subsequently, I make no finding in this respect, but assume, for purposes of resolving the issues in this case, that C & D, which is admittedly wholly owned by Richard Carvel, who owns the Carvel Company, is under Carvel's control. Plumbers, Steamfitters and Metal Trades, Local 321, AFL-CIO, herein called Local 321, is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts Respondent Carvel has been a member of the Pipefitting Contractors Association, Inc.,' of Maine, herein called the Association, for many years, and as such a member of a multiemployer bargaining unit and party to a series of con- tracts with. Local 321. The 1973 contract between the Asso- ciation and Local 321 provided that it was to continue in effect until April 30, 1975, but that "if either party desires a change in this agreement after April` 30, 1975, they shall notify the other party on or before Feb,. 1, 1975, and both parties shall meet within fifteen,days to discuss same." The contract goes on to state that, absent such notice, the con- tract automatically renews itself for another year. On February 11, Union President James McLaughlin wrote to the Association as follows:] At a Notified Meeting of U.A. Local #321, Bangor, Me. it was voted by majority to re-open contract nego- tiations with your organization. The following tenta- tive proposals were presented for negotiation, with no changes proposed in the body of the contract: Wages-$1.65 per hour increase Vacation-5% of negotiated wage Travel-22¢ per mile & by employee vehicle 25¢ per mile Per Diem-$15.00 per day Apprentice Fund-to 5¢ per hour In a conversation with Earle Reed, we agreed that in lieu of a called meeting at this time, it would suffice primarily to set forth in a letter, the desired changes in the contract. We have, by the way, composed a con- 1 Although the letter was addressed to one Omer Ouelette, as president of the Association, Ouelette was no longer president, Earl D. Reed had suc- ceeded him However, Reed responded to the Union's letter, so the "error" was of no consequence Ouelette was, on February 11, chairman of the Association's bargaining committee THE CARVEL COMPANY 115 tract for Supplemental Housing, Refrigeration etc. for your consideration and study. We think it will be an asset to our organization to institute such a contract in this particular area. We are ready at any time to sit down with you and discuss the issues as presented. The members of our negotiating team are as follows: David Savage, Local President Michael Crawford, Appr. Comm. Everett Pellon, member Merle Boyer, Local Vice President Timothy Jacques, member (alternate) Lawrence Hogan, Fin. Sec. (alternate) James McLaughlin, Bus. Agent Respectfully yours, James McLaughlin, B. A U A Local #321 The Association, on February 14, wrote back as follows: This acknowledges receipt of your letter dated Feb- ruary 11, 1975, which listed your tentative proposals for changes in the present contract, and which en- closed a copy of your proposed Supplemental Agree- ment for Residential Housing and similar work. This also confirms our understanding that this ex- change of letters serves as the intial negotiation which the contract requires to take place prior to February 15th. Your tentative proposals will be presented to our Committee, and we will contact you in order to set a firm date for the next meeting for bargaining purpos- es. The Chairman of our Bargaining Committee is Rog- er Ouellette, and the member in your area is Ken Nel- son of Paul A. Lawrence. In order to make it easier for you, any communication with Ken will serve as a communication with the Association and vice versa. Very truly yours, Earle D. Reed President On February 27, Richard Carvel wrote to Reed, submit- ting the resignation of Carvel Company from the Associa- tion, which letter was acknowledged, and the resignation accepted, on March 5, by President Earle Reed. On March 10, Reed wrote to Local 321, forwarding a list of the cur- rent members of the Association. Carvel was not on this list, nor was C & D or any other company affiliated with Carvel in any way. McLaughlin acknowledged having re- ceived this letter, and noticing the omission of Carvel from the list of members. He then, a day or two later, called Richard Carvel, asked him why his company was not on the list, and was told that the Company was no longer affiliated with the Association, but that he would "pay the wages, fringes, and so forth, but he wouldn't sign a con- tract with the union." The first actual meeting between the Association and Local 321 for the purpose of negotiating a new agreement took place April 9. McLaughlin testified that the first ses- sion took place that late because there was little plumbing work earlier, and he wanted to be able to bring more pres- sure to bear at a time when plumbing work was up. After the contract expired, and with no new contract having been agreed upon, Local 321 went on strike, the strike be- ginning about May 5. The five employees working for Carvel at an Addison, Maine, elementary school job where the general contractor was Nickerson & O'Day went out on strike, along with all other Local 321 members in the entire area. These five employees were Edward Pellon, Da- vid Savage, George Armstrong, Richard Faulkner, and Ev- erett Bellon. The strike lasted until about May 31, when the membership ratified a new contract. Work continued on the Addison school project, as no other craft went on strike. After May 5, Richard Carvel made a number of inquiries of McLaughlin, and also spoke to employees Ed Pellon and Everett Pellon, concerning when the strike might be over. He was told a number of times that ratification of the contract was "expected" soon. About the middle of May, Richard Carvel specifically told Robert Chase, treasurer of Nickerson & O'Day, that the strike was expected to end in a matter of a few days, and the men would go back to work at once. According to Carvel, about the third week of the strike, when Chase told Carvel he could not wait any longer, Carvel asked Chase to "hold out for another week." Chase's testimony does not precisely confirm Carvel's Chase did testify that Carvel, at that time, told him "that the strike would be expected to end in a matter of a few days at the most and that the men would be back to work immediately," but when asked, "Was your company asked to keep Carvel Company on?" he replied, "I really don't think we were asked to, specifically, but we had no inten- tions of doing otherwise until maybe about the 20th, when it became obvious that things still hadn't ended and it was still going on, and we were getting more and more in a bind for some work down there, that we finally decided that we've got to try to do something else." It is clear that the import of Carvel telling Chase that the strike would be over soon and the men would be back immediately was that Carvel wanted to keep the work for Carvel Company. As Chase put it in his testimony, he was "not taking that [the prediction that the strike would end soon] for an answer any more. It dust wasn't a good enough answer for us." It was about May 20 or so that Chase began "aggressive- ly" to seek a replacement for Carvel, because of penalty clauses in its contract, and because of its "reputation," which would be affected if the project were not finished on time . Chase spoke with Richard Carvel, and with Carvel's general superintendent , Walter Butchart, asking if they knew anyone Nickerson & O'Day could get to do the job, and he also talked with several other plumbing contractors in the area. The others (Maynard Lane and Robert Morin) both told Chase they already had too much work to do. Richard Carvel suggested that C & D could do the work, telling Chase that Dow (president of C & D) had been a superintendent for Carvel at one time, and that he knew Dow to be a reliable person, but not telling Chase that he (Richard Carvel) owned C & D. About May 27, Everett Pellon, one of Carvel's employ- ees, who was also on Local 321's negotiating committee, told Carvel that he thought the contract would be ratified 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the following Saturday. Also on Tuesday, May 27, Carvel called employee Ed Pellon and asked Pellon to use his in- fluence to get the members of Local 321 to ratify the con- tract at a union meeting the next night, telling Pellon "we have to get back on that job." In fact the contract was ratified at a Local 321 meeting on Saturday, May 31. Ed Pellon told Richard Carvel on Sunday, June 1, of the ratification, but Carvel said that the job had been "taken away from us," that a "nonunion job contractor will be on the job site in the morning." Carvel also told Pellon to "secure the job." In the meantime, about May 27, Byron Dow had received a call from Chase asking him whether he would be interested in taking over and completing the Addison job. Dow went to Chase's of- fice and, after looking over the blueprints, told Chase that C & D would go up and do the job. At Dow's request, Chase, on May 28, sent a letter to C & D referring to the Addison job and stating: Because of the inability of the Carvel Company to man this job, Nickerson & O'Day is taking over the Plumbing and Piping labor on this project and reas- signing this labor to C & D Plumbing and Heating Company as of this date. C & D Plumbing & Heating will requisition monthly the value of work performed during the past month such requisitions to be submitted directly to us. We, in turn, will backcharge these items against Car- vel Company on a net basis. If there are any questions, please call the writer at any time. Monday morning, June 2, Carvel's employees came to the job, having been directed to do so by the Union's busi- ness agent. Ed Pellon spoke with Chase about 10:45 a.m. or so to inquire about "what was going on." According to Pellon, Chase said that he wished Pellon had told him on Friday. (Obviously, he could not have told him definitely, as the contract was not ratified until Saturday.) Shortly afterward, one of Nickerson & O'Day's officials told the Carvel employees they were no longer on the job. The em- ployees then left the job, and the next day C & D employ- ees took over. According to Chase, he told Ed Pellon, when the latter said that the men were back at work, "I'm sorry. The middle of last week we decided that something else was going to happen and you are going to have to pick up your tools and leave." In addition to the above facts, there was considerable evidence introduced at the hearing concerning the relation- ship between Carvel Company and C & D Company, as well as evidence concerning a "Carco Company," and its connection with the other two companies. As noted above, Carvel does own both Carvel Company and C & D Com- pany, and for purposes of deciding this case, I am assum- ing he completely controls both companies. The evidence concerning Carco is not, in my opinion, germane to the issues herein as they have developed. The evidence also shows that Richard Carvel offered the men who had worked on the Addison job for Carvel Com- pany work on other Carvel Company jobs. The two em- ployees who testified, Everett and Ed Pellon, confirmed this. In fact, Everett Pellon did go to work at Brewer, Maine, for Carvel. He was subsequently,, he testified, pulled off the job by the Union's business agent because the Union did not have a signed contract with Carvel. Ed Pellon was offered a "supervisory" job with Carvel. B. Discussion 1. The alleged refusal to bargain The General Counsel's theory of the refusal-to-bargain allegation, as stated at the hearing and in his brief, is to the effect that "negotiations" for a new contract between the Association and Local 321 began on February 15, so that Carvel Company's withdrawal from the Association on February 27 was untimely under the Board's Retail Associ- ates, Inc. (120 NLRB 388 (1958)) rule. Respondent claims that "negotiations" within the meaning of Retail Associates did not occur until the first meeting between the parties, which occurred April 9, so that Carvel's February 27 with- drawal from the Association, when coupled with the Union's admitted knowledge, by about March 10, of such withdrawal, was prior to bargaining negotiations and therefore effective and timely. In Retail Associates, the Board (at 395) set forth the "rule" in the following dictum: We would accordingly refuse to permit the withdrawal of an employer or a union from a duly established multiemployer bargaining unit, except upon adequate written notice given prior to the date set by the con- tract for modification, or to the agreed-upon date to begin the multiemployer negotiations. Where actual bargaining negotiations based on the existing mul- tiemployer unit have begun, we would not permit, ex- cept on mutual consent, an abandonment of the unit upon which each side has committed itself to the other, absent unusual circumstances. The rule as stated suggests that the contract's provisions, as well as "actual bargaining negotiations," are significant to a determination of whether a withdrawal is timely. A ,careful review of subsequent cases involving the Retail As- sociates rule does not reveal any where a withdrawal was viewed as untimely when made prior to the start of actual bargaining negotiations, although no case has been found defining those words. In the light of the General Counsel's theory here, and the lack of any definitive authority other than the Retail Associates dictum for viewing either the contract's automatic renewal date (February 1 here), or the date set by the contract for negotiations (February 15 here) as cutoff date for effective withdrawal, I am constrained to find no violation of Section 8(a)(5) in this case. The Union itself was late in seeking modification of the contract here- in; despite the February 1 contract date, it did not write the Association until February 11. The Association's reply on February 14 stated, as set forth above, that the "ex- change of letters serves as the initial negotiation which the contract requires to take place prior to February 15th." In the circumstances, Carvel would have had every right to believe, with the passing of the February 1 date, that the old contract was automatically renewed. Had it been, and had Carvel then refused to sign it for its renewal year, there would have been a clear violation, not affected by the sub- THE CARVEL COMPANY 117 Sequent (to the contract's presumed renewal) withdrawal by Carvel from the Association. But here, the Union and the Association were each, in effect, waiving the contract's provisions with respect to the date for modifying the con- tract and negotiating a new contract. In these circumstances, in my view, the only operative date against which to determine the timeliness of a with- drawal from the Association must be the date on which actual negotiations began, and that date is April 9. I can- not view the statement in the Association's letter that the letters themselves constituted "negotiations" as really being negotiations within the meaning of the Board' s rule. Accordingly, Carvel was not obliged to sign the contract ultimately negotiated between Local 321 and the Associa- tion, having effectively withdrawn from the Association and the multiemployer unit on February 27. The General Counsel's brief states that "Even assuming that Carvel had the right and did in fact make a timely withdrawal from the Association, it is still obligated to bar- gain with the Union. The record is clear that even in this regard, Carvel has stated that it would only pay the wages and fringe benefits but would not agree to any other mat- ters. On this point alone, a bargaining order is appropri- ate." It was not my understanding at the hearing that the General Counsel was litigating this theory, which is not the theory of the complaint. Nor is it clear on the record that there was any refusal by Carvel to negotiate individually with the Union. The statement by Carvel referred to in the General Counsel's brief was not in a context of "individual negotiations," but rather in terms of what Carvel would go along with in terms of the agreement reached between the Association (of which Carvel was no longer a member) and Local 321. Manifestly, the "issue" suggested by the Gener- al Counsel in this respect was not in any sense "fully liti- gated." Accordingly, I make no findings in this regard. 2. The alleged 8(a)(3) violations The General Counsel's theory of the alleged discrimina- tory discharge allegations respecting Carvers five employ- ees is that Richard Carvel "orchestrated" Nickerson & O'Day's "fears" that the Union's strike would not be over for a long time ; that the penalty, clause of Nickerson & O'Day's contract would be invoked against it, and that Carvel had nothing to lose by Nickerson & O'Day's "deci- sion," as the contract went to C & D, wholly owned by Richard Carvel, so that the "only losers" would be the Union and the five union member-employees. The General Counsel contends that Carvel, during the week preceding Local 321's ratification of the contract and the consequent end of the strike, deliberately withheld from Nickerson & O'Day's representatives the knowledge he (Carvel) had that the contract would soon be ratified, "knowledge" he had obtained from Ed Pellon, Everett Pellon, and James McLaughlin. It is true that during the last few days Richard Carvel might well have done more to persuade Chase, of Nicker- son & O'Day, not to take the work away from Carvel Com- pany. It is also true that perhaps Richard Carvel had no great incentive at this point to try to undo the assignment of the work to C & D, for he did own C & D. Neither of these facts, however, demonstrates that Richard Carvers motivation was at any stage invidious, or that he took, or refrained from taking, any action for the purpose of rid- ding himself of "union" employees. Carvel had been re- ceiving assurances all along that the strike would end "soon." He had attempted, successfully, to persuade Chase not to take steps to replace Carvel Company when Chase questioned him about the duration of the strike. He had even, as late as Tuesday, May 27, tried to get Everett Pel- lon to push through a union ratification of the contract on the very next day, although he already knew that Chase had made plans to replace Carvel Company, and that the replacement would likely be C & D. Earlier, of course, Richard Carvel had every reason to keep assuring Chase, as he did, that the strike would soon be over, for earlier, there was no way of knowing that Carvel's company, C & D, would get the job. Indeed, Chase's testimony demonstrates that, but for their being too busy, one or the other of two plumbing contractors Chase contacted, when he became convinced that the ending of the strike was too unpredictable to con- tinue without a plumbing contractor on the job, would have received the work formerly done by Carvel Company employees. Furthermore, Carvel offered all Carvel Compa- ny employees at Addison jobs at other Carvel locations, again demonstrating that there was no "animus" toward these union members. Perhaps, although this is entirely speculative, had Richard Carvel transmitted to Nickerson & O'Day the latest "prediction" from the Pellons as to the imminent end of the strike, Chase might have kept Carvel Company on the job despite the commitment to C & D. But he also, and based on his testimony this seems more probable, might have regarded these "predictions" as no different from the earlier predictions, and that this was no longer "a good answer." Carvel may well by this time, as suggested by the General Counsel, have felt an indifference because he personally had "nothing to lose." 2 This still would trot make Nickerson & O'Day's action that of Carv- el. In sum, the record as a whole does not permit the find- ing that Carvel discriminatorily discharged its employees. The General Counsel has not demonstrated that Carvel was responsible, for the men losing their jobs at the Addi- son project, nor has the General Counsel demonstrated (as- suming arguendo) Carvel's "responsibility" by "inaction" any unlawful motivation on Carvel's part. For all the fore- going reasons, I'conclude that the General Counsel has not established a violation of ,Section 8(a)(3) of the Act. CONCLUSION OF LAW Respondent has not engaged in any conduct violative of the Act. [Recommended Order for dismissal omitted from publi- cation.] 2 The Company argues to the contrary in its brief that Carvel did have "something to lose " I make no fording one way or the other, I am merely assuming the General Counsel's position in this respect to be the case in order to consider his argument in its best posture.