Custom Colors Contractors

CUSTOM COLORS CONTRACTORS 851 Joseph McDaniel , an Individual Proprietorship d/b/a Custom Colors Contractors and International Brotherhood of Painters & Allied Trades, AFL- CIO, Local Union No. 1010 Beckham, Inc. and International Brotherhood of Painters & Allied Trades, AFL-CIO, Local Union No. 1010. Cases 12-CA-7010 and 12-CA-7013 November 9, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND WALTHER On June 3, 1976, Administrative Law Judge Anne F. Schlezinger issued the attached Decision in this proceeding. Thereafter, General Counsel and the Union filed exceptions and supporting briefs. Re- spondent Beckham filed a brief in answer thereto. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. Central Florida Chapter, Painting and Decorating Contractors of America, Union Division, hereinafter referred to as the Association, is an association of employers whose members are painting and decorat- ing contractors in the central Florida area. Prior to 1975 the contractor members of the Association bar- gained with the Union as a group but with an eye to the negotiation of separate contracts binding individ- ually upon the respective members of the Associa- tion. The question before us is whether in 1975 this bargaining arrangement changed to one in which the Association members, including Respondents Beck- ham and McDaniel, consented to have the Associa- tion bargain in their behalf and to be bound by the product of this joint bargaining. Sometime before the 1975 negotiations (possibly in 1973 but in any event before the commencement of negotiations), the Association bylaws were changed to set up a union division and a nonunion division. Turner, the secretary of the Association, testified that the purpose of the change was to enable the Union Division members to negotiate for a single multiem- ployer unit contract.' i It is not clear whether Respondent Beckham participated in amending the bylaws or was notified of the change Nor is it clear whether Respondent In April 1975, the Union sent the normal contract reopener notices to the Association members, includ- ing Respondents Beckham and McDaniel. All the contractor members were notified individually of the contract reopening because the bargaining format- whether it was to be on an individual or group ba- sis-had not at that time been worked out. Shortly thereafter, in May, the Association held a meeting of its membership to discuss the upcoming negotiations. Beckham was present. The Associa- tion's president, William Pass, stated at this meeting that the Association members would negotiate as the Union Division, not as individual contractors as they had in the past, and this was discussed and agreed upon by all the members in attendance. The Associa- tion elected to include on the negotiating committee all those who at that time belonged to the Union Division or had contracts with the Union. Respon- dent McDaniel, who did not attend the May meet- ings, was subsequently notified that he was on the negotiating committee. In mid-June, the Association sent the Union a letter listing the names of the mem- bers of the negotiating committee. Beckham and Mc- Daniel were on the list. The first negotiating session was held on June 24, 1975. At the very outset of this session, President Pass stated that the Association was bargaining on behalf of all the union contractors and that bargain- ing would not be on an individual basis as before.' Both McDaniel and Beckham were present at this meeting and neither demurred from or in any way objected to Pass' statement.' Some five or six negoti- ation meetings were thereafter held, with McDaniel being present at the first two or three meetings and Beckham present at nearly all. Throughout the nego- tiations, neither McDaniel nor Beckham indicated that he did not intend to be bound by the contract McDaniel was a member of the Association at the time of the change 2 Pass did not tell the Union what specific contractors the Association was negotiating for, other than that the Association was bargaining for all Union Division members He did, however, tell the Union that all Associa- tion Union Division members were also on the negotiating team 7 Unbeknown to the Union, the Association sent all the Association members and all the employers who had a prior contract with the Union an assignment of bargaining rights form, in order that the Association might acquire their bargaining rights for the new negotiations At different points during the negotiations, Beckham and McDaniel , again without the Union's knowledge , were solicited to sign the assignment of bargaining rights form McDaniel declined to sign the form, stating to Turner that he wasn't going to give his bargaining rights to someone else Nevertheless , McDaniel on another occasion told Pass that although he would not be able to attend all the negotiating sessions, and was not even sure whether he was going to remain union or not, whatever the negotiating committee decided upon was fine with him McDaniel also told Turner that it looked as if the negotia- tions would be drawn out and that whatever the negotiating committee did would be okay with him Beckham, like McDaniel , failed to execute a completed assignment of bargaining rights form , but there is no evidence that he ever expressly de- clined to do so As it turned out , only two members of the negotiating committee , Pass and Turner, actually executed bargaining rights assignment forms 226 NLRB No. 120 852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD negotiated by the Association negotiating committee. At the final negotiating session held on July 28, 1975, the contractors returned from a private caucus and stated to the Union that they were in agreement as to a contract except that Beckham had to be given relief on the retroactive pay provisions for current jobs. The Union in response refused to put into writ- ing a more favorable clause for Beckham but agreed that it would not interfere if Beckham could get his employees to waive retroactive pay. Beckham said that he could take care of his employees and then everyone present, including Beckham, announced that they had an agreement.4 Expressly left open for future action by the negoti- ating parties was the formation of a joint trade board and an agreement on residential rates. The agree- ment on residential rates was held up pending forma- tion of the joint trade board and was to be included as an addendum to the contract. A document reflecting the parties' agreement was thereafter drawn up for signature. The completed contract's recognition clause stated as follows: The Union recognizes the Association as agent for and on behalf of the companies listed under Appendix A, hereinafter referred to as the "Em- ployer," as the primary bargaining representa- tive for all contractors operating within the geo- graphic jurisdiction of the Union, as more particularly set forth herein.' 1. This Agreement is negotiated by the Asso- ciation acting as agent only for the aforemen- tioned Employers. For any breach of this con- tract, the liability of the Employer shall be several, not joint, and the liability of the Associ- ation shall be only that of negotiating agent without liability for any acts of the aforemen- tioned Employers. In late September or early October, following rati- fication of the contract by the union membership, Pass and Turner signed the contract on behalf of the Association 6 Approximately a week later, Beckham, who had not secured retroactive pay waivers from his employees, called both Pass and Turner and objected to the fact that they had signed the contract before agreement was reached as to retroactive pay and resi- dential rate matters. Three weeks later, Pass and Turner discussed the format of Appendix A and agreed that it should have 4 Beckham stated during the private caucus that this or any other agree- ment, if he did not get relief (presumably as to retroactive pay), would not do any good because he would be out of business 5 The desirability of having an appendix which listed the names of the contractors bound by the agreement was brought up at the negotiations and was agreed to by everyone 6 The contract execution date was backdated to July 31, 1975 signature lines for the various contractors and that each contractor's signature should be obtained. They felt that the signatures were needed to clarify and give support to the fact that the contractors whose names were listed were definitely assigning their bar- gaining rights to the Association and agreeing to the contract as negotiated. Turner was, as he himself readily admitted, delin- quent in preparing Appendix A and submitting it to the Association members. It was not until early De- cember (and then only in response to pressure from both the NLRB, which was investigating various 8(a)(5) charges filed in conjunction with the Associa- tion members' failure to sign the contract, and the Union, which had individually approached the vari- ous employers involved in the negotiations in an at- tempt to get the contract signed)' that Turner pre- sented the appendix to the Association members for their signatures. Beckham refused to sign, stating that he wanted to take the agreement back to his attorney before affix- ing his signature. He added, "I have nothing against signing this document. We have some other things that we had discussed during the negotiations that I have to get completed with the Union, at which time I'll sign the document." Beckham told Pass and Turner he had heard that McDaniel did not intend to go union or sign the con- tract. Consequently, Pass and Turner inked out Mc- Daniel's name on the appendix. All of the other ne- gotiating committee members signed the appendix, either at the meeting or subsequently thereto. Upon a close review of the above facts, we are persuaded, contrary to the Administrative Law Judge, that Respondents are bound by the collective- bargaining contract negotiated by the Association. Although we agree in part with the Administrative Law Judge's statement of the applicable law, we think that she has taken an unnecessarily restrictive view of the conditions under which one becomes le- gally obligated to accept as one's own (and to sign) the contractual product of joint bargaining negotia- tions. It is well established that the test to be applied in determining such obligation is whether the members of the group have indicated from the outset an un- equivocal intention to be bound in collective bar- gaining by group rather than individual action.' If this unequivocal intention is appropriately manifest- ed, the individual employer must accept the results of the multiemployer negotiations, and cannot at his ' The Union, in October, solicited signatures from both McDaniel and Beckham Neither signed 8 Fairbanks Dairy, Division ofCooperdale Dairy Company, Inc, 146 NLRB 893 (1964), Korner Kafe, Inc, 156 NLRB 1157 (1966); Bill O'Grady Carpet Service, Inc, 185 NLRB 587 (1970) CUSTOM COLORS CONTRACTORS pleasure renounce his commitment to be bound by the group action. The Board has repeatedly held that once commitment to group bargaining is made the employer can extricate himself from the multiem- ployer relationship only by making a timely and un- ambiguous withdrawal from that arrangement (a withdrawal which, to be timely, must, absent unusual circumstances, be made before the actual commence- ment of contract negotiations).9 The manifestation of an "unequivocal intention" to be bound requires something less, however, than a solemnly executed document signed and sealed with hot wax. A commitment to bargaining on a multiem- ployer basis will not be made to depend on the pres- ence of a formal associational structure among the bargaining participants or on the formal delegation of authority from the individual employer to the mul- tiemployer group.1° Nor will the Board, faced with outward manifestations of intent to engage in group bargaining, consider as controlling an employer's pri- vate manifestations of dissent. An employer who, through a course of conduct or otherwise, signifies that it has authorized the group to act in its behalf will be bound by that apparent creation of authori- ty.]] The record here amply demonstrates that Respon- dents acted in a manner which unambiguously com- municated to the Union their desire to abide by the results of the group negotiations. Thus, the record shows that prior to 1975 the Association officers con- templated a changeover to multiemployer bargaining and changed the bylaws to accomplish this result; that in May 1975 Beckham and other Association members agreed to bargaining on a group basis; that, at the first negotiating session in June, Association President Pass specifically told the Union that the Association was bargaining on behalf of its mem- bers; 'Z that neither Beckham nor McDaniel demur- red from this announcement; and that Beckham and McDaniel continued to participate in the bargaining sessions. Only when it came time to sign a contract incorporating the terms of the agreement reached on June 28, did McDaniel and Beckham publicly an- 9 Retail Associates, Inc, 120 NLRB 388 (1958). 10Rayonier Incorporated, Grays Harbor Division, 52 NLRB 1269 (1943), Korner Kafe, Inc, supra, Bill O'Grady Carpet Service, Inc, supra, Field and Sons, Inc, 189 NLRB 406 (1971) 11 Intercity Petroleum Marketers, Inc, d/b/a Red Triangle Oil Company, and Red Triangle Supply Company, Inc, 173 NLRB 1420 (1968), Homer Gale and Howard Gale, Co-Partners, d/b/a American Sign & Neon Company, 176 NLRB 1049 (1969), Bill O'Grady Carpet Service, Inc, supra, N L R B v Southwestern Colorado Contractors Association, et al , 379 F 2d 360 (C A 10, 1967) 12 Our reading of the record convinces us that the Association president's remarks at the first negotiating session concretely and specifically commu- nicated to the Union the Association's change in bargaining posture and were not vague or inexplicit as the Administrative Law Judge found 853 nounce to the Union that they did not intend to be conclusively bound by the negotiations. Since both before and during the negotiations Re- spondents created the appearance of having ac- quiesced wholeheartedly in the multiemployer ar- rangement, they are bound by the unequivocal manifestations of this public acquiescence." The fact that Respondents McDaniel and Beck- ham failed to execute bargaining rights assignment forms does not detract from this result. First, as we have mentioned above, a commitment to be bound by group bargaining does not depend upon such a formal delegation of authority, and, in fact, only two of the six negotiating committee members signed such forms. Second, and most important, the exis- tence of the bargaining rights assignment forms was not communicated to the Union. Nor do we find that Respondent's private declara- tions of intent show such an overwhelming lack of commitment to group bargaining as might cast doubt on their public commitment to joint negotiations. Al- though McDaniel reportedly told Turner that he wasn't going to assign his bargaining rights to some- one else, he on two other occasions stated that what- ever the negotiating committee decided would be sat- isfactory to him. And although Beckham admittedly objected to Pass' and Turner's signing the contract on the Association's behalf, Beckham did not ques- tion the Association's authority ultimately to bind him to a contract-he simply questioned the Associa- tion's right to bind him to what he perceived to be an incomplete agreement. Moreover, Beckham agreed at the May Association meeting that the 1975 negoti- ations be conducted on a group basis. We also reject the suggestion that the format of Appendix A negates any inference of a commitment to multiemployer bargaining. Contrary to the Ad- ministrative Law Judge's implication, the Union and the Association did not agree that an employer would be bound by the contract only if he signed Appendix A. According to Pass, the necessity for signing Appendix A was not brought up during the negotiations. Rather, it was after the negotiations were completed that Pass and Turner discussed the desirability of obtaining the employers' signatures on Appendix A in order to reinforce the individual em- ployer's commitment to the agreement. The language of the contract's recognition clause, which makes no 13 Intercity Petroleum Marketers, Inc, d/b/a Red Triangle Oil Company, supra, American Sign & Neon Company, supra We do not think a different result is called for by the fact that the Union was not specifically told which contractors the Association negotiating committee was negotiating for The Union was told that the negotiating committee was bargaining for all the Union Division members of the Association and that all the Union Division members were on the negotiating team From this the Union could easily deduce the fact that the negotiating committee was bargaining on behalf of all the employers who were on the negotiating committee 854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reference to signatures, supports the conclusion that the requirement of employer signatures was an after- thought imposed upon the agreement by Pass and Turner. In any event, the fact that individual employers execute separate but identical contracts rather than delegating the right of execution to a representative authorized to act for all is not inconsistent with mul- tiemployer bargaining and appears, in fact, to be a common practice.14 The record supports the conclu- sion that Appendix A was designed to be nothing more than a substitute for this sort of arrangement. That signing Appendix A subsequently became for some parties a sine qua non to agreement on the con- tract cannot properly be made to reflect on the par- ties' original intention. We are also not persuaded that the Union's at- tempt in October to get some of the Association members to sign individual contracts justifies a dif- ferent conclusion. Faced with an unnecessary and burdensome delay in the employers' execution of Ap- pendix A, a delay which Turner admits was caused by his own negligence, the Union had a perfect and understandable right to depart from the appointed procedure and solicit individual signatures.15 Finally, we reject as without merit the Administra- tive Law Judge's assertion that Respondents are not bound by the jointly negotiated contract because no agreement was reached regarding the residential rates and the waiver of retroactive pay for Beckham. The record conclusively shows that the Union re- fused during last-minute negotiations to put into writing a more favorable clause for Beckham on the retroactive pay question. It was instead agreed that, although Beckham would be nominally bound by the regular contract terms, the Union would take no ac- tion if Beckham got his employees to waive retroac- tive pay. Thus, as far as the contract itself was con- cerned, agreement had been reached. Beckham agreed to let the present retroactive pay agreement stand but gambled on being able to secure waivers from his employees. Further negotiations on the ret- roactive pay question were neither contemplated nor called for, since Beckham's ability to secure waivers from his employees was manifestly not within the purview of the Union's control." 14 The Evening News Association, d/b/a Detroit News, Knight Newspaper, Incorporated, d/b/a Detroit Free Press, Detroit Times, Division of Hearst Publishing Company, Inc, 119 NLRB 345 (1957), Korner Kafe, supra 15 Cf N L R B v Joseph T Strong d/b/a Strong Roofing and Insulating Co, 386 F.2d 929 (CA. 9, 1967) 16 The fact that Beckham was in some sense given separate treatment from the rest of the Association members on the retroactive pay question is of no import Separate agreement between union and individual employers as to limited matters is not inconsistent with multiemployer bargaining See The Kroger Co, 141 NLRB 564 (1963), enfd sub nom Retail Clerks Union No 1550, et al, Retail Clerks International Association, AFL-CIO [The Kro- ger Company] v NLRB, 330 F 2d 210 (C A D C , 1964) With regard to the residential rate agreement, the record shows that the parties agreed to finalize terms on residential rates once the joint trade board was set up and that the rates would be incorporated in an addendum to the contract as they had been in 1972. Additionally, although not mentioned by the Admin- istrative Law Judge, Turner testified that the major stumbling block to agreement on the residential rates-i.e., the actual percentage of the rates them- selves-had been agreed to by the Union at the July 28 negotiating session and set at 75 percent. It is clear therefore that the July 28 terms of agree- ment were intended by the parties to be final and binding. The decision to put off for later discussion the terms of the residential rates effectively disposed of this last unresolved issue. By this decision, the par- ties signified that agreement on the whole contract did not hinge on agreement as to residential rates and that the contract could become effective without such an agreement. Contracting parties often table otherwise negotiable matters by agreeing to renegoti- ate these at some future appointed time or by agree- ing to modify the contract upon mutual consent. Such understandings reflect the presence rather than the absence of agreement and in no way preclude enforcement of the completed contract." Accordingly, since we have found that Respon- dents Beckham and McDaniel manifested an un- equivocal intention to be bound by the Association's bargained-for contract and since neither Respondent McDaniel nor Respondent Beckham effected a time- ly withdrawal from this arrangement, we find that by refusing to honor and adhere to the terms of the con- tract negotiated in their behalf Respondents violated Section 8(a)(5) and (1) of the Act.18 REMEDY Having found that Respondents have engaged in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act, Respondents will be or- dered to cease and desist therefrom and to take ap- propriate affirmative action. In recognition of the fact that the contract negotiated in Respondents' be- half expires by its terms on June 30, 1976, Respon- dents will be directed to sign the contract upon the Union's request and to bargain with the Union as the exclusive bargaining representative of the employees in the unit described below, until such time as Re- spondents timely and unequivocally withdraw from such unit. Respondents will also be directed to give retroac- n See Central Plumbing Company, 198 NLRB 925 (1972) 18 Anderson Lithograph Company, Inc, 124 NLRB 920 (1959), enfd sub nom N L R B v Jeffries Banknote Company, 281 F 2d 893 (C A 9, 1960) CUSTOM COLORS CONTRACTORS tive effect to the contract and make whole any em- ployees covered by the contract for any financial losses sustained by them as a result of Respondents' unlawful refusal to sign the contract, with backpay to be computed on a quarterly basis in the manner set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest thereon at the rate of 6 percent per annum, as set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). AMENDED CONCLUSIONS OF LAW Substitute the following for the Administrative Law Judge's Conclusion of Law 3: "3. All journeyman and apprentice painters, dry- wall finishers, paperhangers, and sandblasters em- ployed by members of the Association, excluding all other employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9(b) of the Act. "4. At all times material herein the Union has been the recognized representative of the employees in the above appropriate unit for purposes of collec- tive bargaining within the meaning of Section 9(a) of the Act. "5. By refusing to honor and abide by the contract agreed to by the Association and the Union on July 28, 1975, and executed by them effective on July 31, 1975, Respondents Beckham and McDaniel have en- gaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. "6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) 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 Respondent Joseph McDaniel, an Individual Proprietorship d/b/a Cus- tom Colors Contractors, Orlando, Florida, and Re- spondent Beckham, Inc., Orlando, Florida, their offi- cers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to honor and abide by the collective- bargaining agreement executed by the Association and the Union effective on July 31, 1975, and refus- ing to comply with the agreement's terms. (b) Refusing to bargain on an Association basis with the Union until such time as Respondents shall timely and unequivocally withdraw from such a bar- gaining arrangement. (c) In any like or related manner interfering with, 855 restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action: (a) Upon request of the Union, sign and give ret- roactive effect to the contract executed by the Asso- ciation and the Union effective on July 31, 1975, and make whole any employees covered by the contract for any monetary losses they may have suffered as a consequence of Respondents' refusal to sign the con- tract in the manner set forth in the remedy section of this Decision and Order. (b) Upon request, bargain with the Union as the exclusive representative of all employees in the fol- lowing appropriate unit: All journeyman and apprentice painters, dry- wall finishers, paperhangers, and sandblasters employed by members of the Association, ex- cluding all other employees, guards, and super- visors as defined in the Act, until such time as Respondents shall timely and equi- vocally withdraw from the above bargaining unit. (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 their Orlando, Florida, places of busi- ness copies of the attached notices marked "Appen- dix A" and "Appendix B," respectively.19 Copies of said notices, on forms provided by the Regional Di- rector for Region 12, after being duly signed by Re- spondents' representatives, shall be posted by Re- spondents immediately upon receipt thereof, and be maintained by them for 60 consecutive days thereaf- ter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by Respondents to in- sure that said notices are not altered, defaced, or cov- ered by any other material. (e) Notify the Regional Director for Region 12, in writing, within 20 days from the date of this Order, what steps Respondent have taken to comply here- with. MEMBER WALTHER, dissenting: I cannot agree with my colleagues' conclusion that Respondents Beckham and McDaniel manifested an unequivocal intention to participate in multiemploy- er bargaining and are therefore required to abide by 19 In the event 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 Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board 856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the contract purportedly negotiated in their behalf. My colleagues have, I am afraid, overstepped the bounds of descriptive lexicography and have wres- tled unexpected new meaning from the word "un- equivocal." What they find to be unequivocal I find to be fraught with ambiguity, uncertainty, and dis- guise. The record shows that prior to 1975 the members of the Association bargained as a group but with the intention that each employer would sign a separate contract with the Union and be bound individually to the terms of that contract. Although the record reveals that some efforts were made before the com- mencement of the 1975 negotiations to convert this method of bargaining into a multiemployer bargain- ing arrangement, the record does not indicate that this purpose was effectively communicated either to the Association members themselves or to the Union. Rather, we are confronted, in a significantly large number of instances, with behavior on both the Union's and Respondents' part which suggests that no departure from the old bargaining scheme was envisioned by the bargaining participants. While the record does contain evidence that group bargaining was contemplated, this evidence is not of the con- vincing unambiguous variety required by the Board to prove consent to a multiemployer bargaining ar- rangement. Thus, although Turner testified that the Associa- tion bylaws were amended to prepare the way for multiemployer bargaining, there is no reference in the bylaws to such bargaining, nor is it shown that the Respondents were made aware of the change. Similarly, while it is established that at the May meeting a changeover to group bargaining was dis- cussed, there is no evidence that Respondent Beck- ham specifically participated in this discussion or that Respondent McDaniel, who was absent from the meeting, was notified as to what had been agreed. Additionally, there is no evidence that at the first negotiating session Respondents Beckham and Mc- Daniel heard or understood Pass' remarks indicating that bargaining would be on a multiemployer basis. The record is populated with incidents and facts which contradict my colleagues' conclusion that mul- tiemployer bargaining was clearly intended. As the Administrative Law Judge observed, the Union was not told which specific contractors the Association was bargaining for nor does it appear that the Union deduced the names of these contractors, as my col- leagues suggest.20 When, during the negotiations, Re- 20 This fact is borne out by Johnson's testimony that he sought the signa- ture of individual contractors to the agreement because "I didn't have no names I didn 't know who was members, who wasn't members , or anything spondents Beckham and McDaniel were solicited to assign their bargaining rights to the Association, both declined, McDaniel stating expressly that he was not going to give his rights to somebody else. Later, after the July 28 final negotiating session, Beckham chal- lenged the right of Turner and Pass to sign a contract without reaching agreement on the retroactive pay and residential rate questions. Furthermore, Pass and Turner, the instigators of the group bargaining plan, demonstrated that even they were uncertain as to whether the Association members had consented to multiemployer bargain- ing. Both testified that Appendix A was designed to provide for individual signatures in order to bolster each member's consent to be bound by the contract, consent which Pass admitted was at that time only implied. Finally, the Union itself acted in a manner which suggests that it had no firm understanding that mul- tiemployer bargaining was intended, when after the contract was drafted it sought to obtain signatures to the contract individually from the various contrac- tors involved. My colleagues make much of the fact that Respon- dents Beckham and McDaniel never communicated to the Union a desire not to be bound by the Associ- ation's bargaining and thus created the appearance of having acquiesced in a multiemployer bargaining arrangement. But upon close examination it appears that Respondents' only contributions to this creation of apparent authority were their silence at the first negotiating session and their continued appearance at the negotiating sessions." I would not base the manifestation of an unequivocal intention to be bound on so slim a reed, especially considering the parties' past bargaining history. Bargaining on a multiemployer basis is "rooted in consent." 22 It is for that reason that the Board re- quires that contracting parties unequivocally mani- fest an intention to participate in group bargaining, before it finds a multiemployer unit to be appropri- ate?' Where there is no prior history of multiemploy- er bargaining, as is the case here, the Board must insist on affirmative clear evidence of parties' con- sent to engage in joint bargaining in establishing this unequivocal intention. For the reasons given above, I do not find such evidence to be present. As an additional reason for not requiring Respon- dents to abide by the agreement negotiated in 1975, I 21 McDaniel, of course, only participated in two or three bargaining ses- sions 22 The Evening News Association, Owner and Publisher of "The Detroit News," 154 NLRB 1494 (1965) 23 Council of Bagel and Bialy Bakeries and its Employer Members, 175 NLRB 902 (1969) CUSTOM COLORS CONTRACTORS would find that no agreement had in fact been reached. The matter of residential rates was, contrary to what my colleagues' suggest, an intrinsic and nec- essary part of the contract-not something without which the contract could "float on its own." It was clearly contemplated-and Beckham's protest to Pass and Turner bears this out-that until a residen- tial rate agreement was reached the contract would not be final. Since negotiations on the residential rates were still going on at the time of the hearing, I would not require Respondents to sign what is at best an interim agreement. In conclusion, I would adopt the Decision of the Administrative Law Judge and would dismiss the complaint in its entirety. APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL, upon request of the Union, honor and give retroactive effect to the contract execu- ted, effective on July 31, 1975, and WE WILL compensate any employees covered by the con- tract for any monetary losses they may have suf- fered as a result of our refusal to sign the con- tract. WE WILL, upon request of the Union, bargain with the Union as the exclusive representative of the employees in the following unit: All journeyman and apprentice painters, dry- wall finishers, paperhangers, and sandblasters employed by members of the Central Florida Chapter, Painting and Decorating Contrac- tors of America, Union Division until such time as we shall timely withdraw from the above unit. WE WILL not in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed in Sec- tion 7 of the Act. JOSEPH MCDANIEL, AN INDIVIDUAL PROPRIETORSHIP d/b/a CUSTOM COLORS CONTRACTORS APPENDIX B 857 NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL, upon request of the Union, honor and give retroactive effect to the contract execu- ted, effective on July 31, 1975, and WE WILL compensate any employees covered by the con- tract for any monetary losses they may have suf- fered as a result of our refusal to sign the con- tract. WE WILL, upon request of the Union, bargain with the Union as the exclusive representative of the employees in the following unit: All journeyman and apprentice painters, dry- wall finishers, paperhangers, and sandblasters employed by members of the Central Florida Chapter, Painting and Decorating Contrac- tors of America, Union Division until such time as we shall timely withdraw from the above unit. WE WILL not in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed in Sec- tion 7 of the Act. BECKHAM, INC. DECISION STATEMENT OF THE CASE ANNE F. SCHLEZINGER, Administrative Law Judge: Upon charges filed on November 17, 1975,1 by International Brotherhood of Painters & Allied Trades, AFL-CIO, Local Union No. 1010, herein referred to as the Charging Party or the Union, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 12, issued an order consolidating cases, consolidated com- plaint, and notice of hearing on January 9, 1976. The con- solidated complaint alleges, in substance, that Joseph Mc- Daniel, an Individual Proprietorship d/b/a Custom Colors Contractors, and Beckham, Inc., herein referred to individ- ually as Respondent McDaniel and Respondent Beckham and jointly as the Respondents, who are members of Cen- tral Florida Chapter, Painting and Decorating Contractors of America, Union Division, referred to herein respectively as the Contractors Association and the Union Division, an association of employers which negotiates contracts on be- half of members who have recognized the Union as the collective-bargaining representative of their employees, re- fused to sign and to comply with the terms of a collective- 1 All dates hereinafter refer to 1975 unless otherwise indicated 858 DECISIONS OF NATIONAL bargaining contract, effective July 15 , 1975, to June 30, 1976, which the Association negotiated on behalf of mem- bers including the Respondents, and thereby violated Sec- tion 8(a)(5) and (1) of the National Labor Relations Act. The Respondents in their answers duly filed, and amended by Respondent McDaniel at the hearing , admit some of the factual allegations of the complaint , but deny that their conduct was violative of the Act. Pursuant to notice , a hearing was held before me in Or- lando, Florida, on March 29, 30, and 31, 1976. All the parties appeared at the hearing and were afforded full op- portunity to be heard, to examine and cross-examine wit- nesses, and to introduce relevant evidence . At the opening of the hearing, the General Counsel made an opening statement, and at the close of the hearing all counsel pre- sented closing arguments . Only Respondent McDaniel filed a brief, on or about May 3, 1976, which has been duly considered. Upon the entire record in these cases and from my ob- servation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENTS Joseph McDaniel, an Individual Proprietorship d/b/a Custom Colors Contractors, is engaged in performing painting work on construction sites in the State of Florida. Beckham, Inc., is a Florida corporation engaged in indus- trial, commercial , and institutional painting and decorat- ing. Central Florida Chapter , Painting and Decorating Contractors of America, Union Division, is an association of employers whose members are painting and decorating contractors in the central Florida area , which negotiates collective-bargaining contracts with the Union on behalf of its members who have recognized the Union as the collec- tive-bargaining representative of theirjourneymen and ap- prentices engaged in painting , drywall finishing, paper- hanging, and sandblasting. Respondent McDaniel has been a member of the Association since on or before June 1972. Respondent Beckham has been a member of the As- sociation since on or about June 1975. Employer members of the Association , during the 12 months preceding the issuance of the consolidated com- plaint, collectively purchased and received goods, supplies, and materials valued in excess of $50,000 directly from points outside the State of Florida , and performed services valued in excess of $50,000 for concerns which meet a di- rect standard of the Board for assertion of jurisdiction. The complaint alleges, the Respondents admit, and I find that all employer members of the Association are, and at all times material herein have been, employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the Respondents admit, and I find that International Brotherhood of Painters & Allied Trades, AFL-CIO, Local Union No. 1010, is, and at all LABOR RELATIONS BOARD times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The issues are whether certain contractors who prior to 1975 negotiated with the Union as a group but for separate employer agreements, in 1975, through the Union Division of the Contractors Association , negotiated and entered into a contract with the Union for a multiemployer unit which was binding upon the Respondents , and whether the Respondents, by failing to make a timely and unequivocal withdrawal from the multiemployer unit, and by failing and refusing to sign or to abide by the terms of the con- tract, violated Section 8(a)(5) and (1) of the Act. The General Counsel called as witnesses certain union representatives and employer members of the Union Divi- sion. Respondent Beckham recalled some of these witness- es and called other witnesses on its behalf. Respondent McDaniel called no witnesses . Both McDaniel and Beck- ham were present during much of the hearing but neither was called to testify. The testimony as to what occurred is in large part undisputed, but the parties dispute the legal effect of what occurred B. Bargaining History The parties are in agreement that a number of contractor members of the Association had, prior to 1975 , bargained with the Union as a group , but that each contractor signed a separate contract with the Union and was bound individ- ually to the terms of that contract . The contract prior to the one here in issue was negotiated in 1972 for a 3-year period, July 1, 1972, to June 30, 1975. A copy of that con- tract, placed in evidence by Respondent Beckham , is enti- tled "Agreement" of the Union, provides that it shall be between the Union and the signatory painting contractor or employer , contains signature lines for the Union and for "FIRM NAME OF EMPLOYER," and has a blank execution date. The General Counsel and the Charging Party maintain that this pattern of bargaining changed in 1975, and that a number of contractors including the Respondents became bound to a single 1-year Association-union contract. The parties are in agreement as to the appropriateness of a unit composed of employees engaged as journeyman and ap- prentice painters , drywall finishers, paperhangers, and sandblasters. C. Formation of the Union Division Pass, president of Pass Painting Company and president of the Contractors Association , and Turner, vice president of Boyd E. Hart, Inc., and secretary of the Association, testified that the Association bylaws were changed to set up a union division and a nonunion division . Pass testi- fied that this was begun shortly after the 1972 contract negotiations, that the procedures for such amendment took about a year and were completed in 1973, before he be- came president and while , he thought, Turner was presi- dent ; and that this was done "so that the union could offi- CUSTOM COLORS CONTRACTORS cially recognize the PDCA as the bargaining agent for union painting contractors in this jurisdiction." Turner tes- tified that the bylaws were amended a few months before the 1975 negotiations began, and that the purpose was to provide for the employer members who recognized the Union to negotiate for a single-unit contract. The bylaws, placed in evidence by the Charging Party, are headed "Proposed new bylaws," but Turner testified, on cross-examination by Respondent McDaniel, that they were carried in this form, that he did not recall when and the document in evidence is undated, that he did not know but thought it took a quorum to do this, that he did not recall who was present and did not know if there was a quorum, that he doubted if absent members were notified of this action, and that this was the only bylaw relating to setting up the two divisions, a "Union division composed of Painting and Decorating Contractors holding agree- ments with local Painters and Decorating Unions," and a "Non Union division" composed of contractors who do not. There is, as Pass and Turner admitted, no reference in the bylaws to the purpose of the two divisions or to collec- tive-bargaining negotiations. Pass testified that he did not recall if McDaniel was a member of the Association when the bylaws were changed. D. The 1975 Negotiations 1. The Union's request Johnson, business manager of the Union for about 10 years, sent a telegram dated April 14 to Beckham as "Secy- Treas., Union Affiliate, Central Florida Chapter, PDC of A," which stated: "Please be notified that Painters Local Union #10 10 wishes to re-open the Working Agreement for negotiations. Notification of meeting dates will be sub- mitted later " z Johnson testified, on cross-examination by Respondent McDaniel, that "first of all, we notified the contractors by nightletter, by mailgram-whatever it was-that we wished to negotiate. That was prior to the 30th of March, 1975. Then we sent a letter to I believe Mr. Pass, stating that we wished to start negotiating on a partic- ular date and we'd meet at the union's hall on that date"; that these communications were sent, not only to Pass and Turner, but "to all of them, because at that time we hadn't laid down the rules for the negotiating committee " 2. The Association's response Pass and Turner testified that there was a Union Divi- sion meeting around May , after the Union's telegram was received, about the upcoming negotiations , at which they, Wohl, and Beckham were present , and McDaniel and Knuth were not, that Pass stated at this meeting they would negotiate as the Union Division, not as individual contractors as they did in the past , and that this was dis- cussed and agreed on by all of them . Pass also testified that 2 This telegram , which was placed in evidence by Respondent Beckham, was also sent to Turner at Boyd Hart, Pass at Pass Painting Vickery, Cather Drywall, Orange Drywall, Florida Adywall, Craddock Drywall Custom Colors, and Miller Painting 859 there was no discussion prior to the May meeting as to the scope of the bargaining unit, but that it was decided at that meeting the Association would represent the Union Divi- sion members in the negotiations, and there would not be individual companies acting in a group as prior contracts were negotiated. Turner testified that agreement was reached "pending some telephone calls" that the Union Division "was going to be the bargaining unit for the con- tractors, and . . . we elected to have all of the members that belonged to the Union Division or at that time had contracts with the union sit on the negotiating team"; that he telephoned McDaniel and Knuth who were not "at that meeting in May-if it was in May"; and that "at the meet- ing or sometime subsequent thereto all of the people on this list were aware that they were on the negotiating com- mittee." Turner also testified, on cross-examination by Re- spondent McDaniel, that he telephoned McDaniel and told him, "we're starting negotiations over again and at a regular PDCA meeting we decided that the negotiating team would consist of all the Union Division members. Are you gonna come with us and negotiate?" Turner also testified that neither of the Respondents objected to being on the negotiating team. A letter to the Union dated June 18, signed by Turner as secretary, states under the heading "Negotiation of agree- ment between Central Florida Chapter P.D.C.A." and the Union We respectfully submit the following names to serve as the negotiating committee of P D.C.A., 1. William Pass-Chairman 2. Robert Wohl-Co. Chairman 3. Frank Turner-Member 4. Harry Beham-Member 5. Joe McDaniel-Member 6. Richard Knuth-Member Per prior agreement to the P.D C A committee pro- poses to meet with the negotiating committee of Local Union June 24, 1975. We respectfully request a roster of Local Union 1010's negotiating committee . . . [sic]. Turner testified that he could not recall why this letter was prepared or whether the Union requested it, and that, while it was standard procedure for each side to name its negotiating team, he did not know if it was previously done in writing. 3 Assignments of bargaining rights Pass and Turner had copies of a form entitled "Assign- ment of Bargaining Rights and Designation of Collective Bargaining Agency." 3 None were signed prior to opening of the contract negotiations on June 24. Pass testified that he "was one of the ones that initiated the assignment", that, after getting the Union's telegram, the Association asked the Union for a list of people who had a prior agree- ment with the Union; that the list of about 20 included nonmembers of the Association; and that he directed that a The form, which was placed in evidence by Respondent Beckham, has a blank signature line but is signed by Turner acknowledging acceptance as secretary of the Contractors Association 860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the assignment forms be hand-delivered or mailed to all those on the list "that we already had or were in the pro- cess of getting from the union, in order that we might ac- quire their bargaining rights for the-in negotiations for the new agreement," and, in addition, "if we had any rea- son to believe that they might be performing work in the area during the term of the next agreement , then we sent them an assignment of bargaining rights form." Pass testified at different points that dunng the negotia- tions the Association tried to get these forms signed by all the Union Division members; that he personally solicited Turner, Beckham, McDaniel, and Knuth, to sign them; that he asked some in a group and may have asked some by telephone; that each one was given a copy by him or Turner and he "explained that the purpose of the form was to assign bargaining rights to the association , speaking of the Union Division, giving up power to negotiate for them, as an association, and not as individuals, in the collective bargaining agreement"; that no one in the group signed a copy and handed it back at the meeting, some saying they wanted time to read it as it was "a very legal-sounding format"; that while he had several copies for at least a month, he delayed getting his own in, but did sign one, early in the negotiations but after the first session on June 24, and gave it to Turner at a negotiating session; that he has seen others signed only by Turner and one company whose name he could not recall and who may have been a construction or an out-of-town company ; that he has not seen one signed by Beckham, and did not recall any partic- ular conversation about it with McDaniel; that he did not recall if McDaniel was present when the assignment forms were presented to a group, or if he ever personally pre- sented one to McDaniel or discussed it with McDaniel; that sometime before June 24 he spoke to all the Union Division members about the assignment and about negoti- ating as a group, not as individual contractors; and that he arranged that all in the Union Division and others, about 20 in all, would receive copies, that anyone who had a prior union contract was to get a copy by hand or mailed from the Association secretary. Turner testified that he sent some of these forms, that he thought perhaps Pass sent some , and that to the best of his recollection they were sent to "all of the union members of the PDCA. . . . Six-five"; that he did not recall sending any "out of the jurisdiction"; and that he received executed assignments from his company , from Pass, and from a company whose name he did not recognize, and that he did not receive any from McDaniel or Beckham . Turner testi- fied, on cross-examination by Respondent McDaniel, that he did not recall if he mailed an assignment to McDaniel but that, after they were tendered, he discussed it with Mc- Daniel at a meeting of the employer negotiators at which Beckham also was present ; that McDaniel said "he wasn't assigning his bargaining rights to PDCA" and, when he asked why, McDaniel "said, `I'm not gonna give my right to somebody else,' something to this effect"; and that Mc- Daniel continued to be on the negotiating team although he attended only about the first two or three negotiating sessions . Turner testified that he had a conversation with Beckham at the same time as with McDaniel but did not recall what was said. 4. The negotiations The Union presented a written proposal that was a com- pletely new agreement , not an amendment of the prior contract . It had no wage schedule but one was presented later. No other written proposal was submitted , and the one presented by the Union served as the basis for the negotiations. No one took minutes of the negotiations, and no one had a clear recollection of when and where each negotiating session was held, who was present , or what transpired. Johnson, who testified that he was present as the princi- pal union negotiator at all the bargaining sessions, also testified that the first session was on June 24 and "I don't know definitely, but I'd say there must have been four or five or probably six meetings" prior to the last one on July 28; he thought those present at the first session were Turner, Pass, Beckham "and I believe there was Joe Mc- Daniel, Dick Knuth-and, the-I don't remember"; and that, as to those present at the later sessions , "I believe it was pretty close to the first meeting, because we wanted to determine who we were negotiating with ." Johnson also testified that "I believe it was the chairman, Mr. Pass, who said that the association Union Division would represent all of the contractors , all the union contractors, for the painting and contracting association. . . . Well, I can't re- member distinctly who said it; but, I know that I said, well, that was fine, and I agreed, and we wanted to make it clear that we were representing-that the association was repre- senting all the union contractors at that time ." He admitted that at no time dunng the negotiations did anyone give him a list, or even state the number, of these contractors. Johnson further testified: A. Well, after the first meeting we were assured that the PDC of A was representing all the union contrac- tors of that particular chapter, the Central Florida Chapter. Q. And, did you know who those members were? A. Yes, the chairman of the PDC of A negotiating committee sent me a letter with all the names of their committeemen on the negotiating committee. I did the same for them. Q . . .. I was asking you if you knew who the mem- bership was of the PDCA, the people for whom the PDCA was supposedly negotiating? A. No, I didn't. I knew of the list that they sent me; that's all. Q. And, the list was only of the members- A. On the negotiating team. Asked again about the statement by Pass at the first session about the contractors for whom he was negotiating, John- son testified that, in addition, "I believe he sent us a letter to that effect.... It must have been sometime prior to June 24th"; that that letter was the one that named the negotiating team ; and that Johnson did not recall that any- thing further was said, when they sat down to negotiate, about "who was being represented and who the contract CUSTOM COLORS CONTRACTORS 861 was being negotiated between." Johnson also testified that McDaniel was at only the first one or two sessions but he did not recall seeing McDaniel after that; that he thought Wohl and Vickery were not at the first session, and no nonmembers were at the first couple of sessions, but, at about the third or fourth session , Vickery was introduced as a union contractor who was not a member of the Con- tractors Association, "and they wished him to be a part of the negotiating team" and he "was admitted as a part of the team, the negotiating team"; that he did not believe any other nonmembers did so; and that as a result of these negotiations the Union entered into an individual contract with Vickery. West, a special representative of the Union, was also at all the negotiating sessions. He testified that Pass at the first session said the contractors were going to negotiate as an association for their members, that Johnson responded that the Union preferred to negotiate with an association for all members of the Association, and that he did not recall what anyone else said in the matter. On cross-exami- nation by Respondent McDaniel, West testified that the contractors present were introduced as the negotiating committee and members of the Association, that he did not know who the other members were, and that McDaniel never indicated an intent to be bound by the agreement "other than being present" at the first couple of sessions. Pass testified that he was at all the negotiating sessions; that they were held, he thought, on June 24, and July 16, 17, 24, and 28; that there were "several meetings in be- tween that weren't official"; and that there may have been other meetings during June and July but he could not re- call the dates or the places Pass also testified that, "as chairman of the team," he stated as one of the first points brought up "the fact that we were bargaining as the associ- ation, and not as individual members. And, we had at that time also a week previous to that submitted our letter giv- ing the names of our negotiating team." Pass admitted, however, on cross-examination by Respondent McDaniel, that "We never told them what specific contractors we were negotiating for. We did tell them that all the Union Division members of PDCA were also on the negotiating team, and they understood that point, as far as I know"; that the authority to bargain as a group "was implied from all of the people that were in the Union Division, PDCA, that were also all on the negotiating committee, that we were bargaining as an association to reach a contract. And, as that, I felt that the association had the implied accep- tance from these people that we were bargaining for their companies. . . . This was implied by me personally from all the general discussion that we, as Union Division mem- bers, had in meetings and informal gatherings prior to ne- gotiations . We didn't have express implied consent of any one particular contractor, directed to the association, that the association was bargaining for them"; and that Mc- Daniel was present at one such gathering, the only one Pass could specifically remember which was "just prior to walking into the negotiating room on the first day of nego- tiations," but he could not recall anything that he and Mc- Daniel said. Pass also testified that, during a break at the second session, McDaniel "mentioned to me as we were walking down the hall that he wasn't gonna be able to attend all the negotiating sessions, that he had other busi- ness that he was trying to perform at the time, and he wouldn't be able to make all the sessions . And, he wasn't even sure at the time if he was gonna remain union or not, and whatever we decided upon, if he did, was fine with him." He also testified that they had no further discussion of this thereafter ; that he telephoned and visited McDaniel on many occasions , but reached him only once or twice, to let him know the time and place of meetings "and if he was available to come, he could , because he was part of our negotiating team", and that McDaniel replied he would come if he could, but was at only one or two sessions after the first one. Turner testified that he thought there were five or six employers in the Union Division and four or five members of the Association who were nonunion; that the composi- tion of the employer negotiating panel was the same in 1975 as in prior negotiations; that neither McDaniel nor Beckham objected to being on the negotiating team; that McDaniel was named on "a list of the negotiating commit- tee" that was sent to the Union, but that nothing was ever expressed at these sessions as far as the committee repre- senting McDaniel individually in a contract . Turner also testified that his letter of June 18 was "a list of the people who were sitting as the negotiating team for the Union Division, PDCA, and that, "As I recall, Bill Pass, the chair- man of the contractors' bargaining unit, stated . . to the union negotiators-at one of the very first meetings that we were bargaining as an association , Union Division of PDCA"; that the first two or three or possibly four meet- ings were held at the union hall; that he could not recall who was at each meeting ; that he thought he, Pass, Wohl, and McDaniel were at the first session but he could not recall if Beckham was; that "all the members that we've talked about before on the negotiating committee, except Mr. Vickery, at one time or another attended some of those meetings at the union hall"; that he telephoned McDaniel once, or Pass did, he did not recall when , for one of the sessions, and McDaniel said if he was not too busy he would come ; and that McDaniel attended "Two, three, four at the very, very most," and Beckham "attended most all of the meetings." Turner also testified that, in addition to the call he or Pass made , "I had one more conversation with Mr. McDaniel. That was held out on the porchway of the union hall, which was during the first or second or third meeting-I can't recall exactly which one-in which Mr. McDaniel said that-yeah, he didn 't necessarily have- let's-Mr. McDaniel said that it didn't look like he was gonna have time for this , it was gonna be a long, drawn-out situation, whatever we'd do, let him know, it'd he okay with him, or something to that effect . I cannot exactly re- member his words." 5. The July 28 session At the July 28 session, when the contractors present came back to the conference room at the union hall after a caucus, Pass stated that they were in agreement except that Beckham had to be given relief on the retroactive pay pro- visions for current jobs, and they could negotiate whether it would be for 90 or 120 days. In the discussion of this 862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD matter, which had been raised at prior sessions , the union negotiators stated, as Johnson testified , that the Union would not sign or put in writing a more favorable clause for Beckham ; Turner or Pass said "We're not asking for more favorable situations . . . We dust have to find some relief, to get this contract squared away , because Mr. Beck- ham needs it"; Johnson said the Union would take no ac- tion if Beckham could get his men to waive the retroactive pay; Turner "made it specific that we weren 't gonna have any problems, if the men said okay"; Beckham said he could take care of his men; and they agreed the waiver period should be 90 days, until October 1 . The negotiators present then shook hands and said they thought they had an agreement . When the General Counsel asked whether either Respondent, at any time prior to the end of that meeting, ever indicated "to the association, either orally or in writing, that they didn't intend to abide by or be bound by the contract," Turner answered that "Beckham made a comment during caucus that-his comment was that this agreement or any other agreement , if he didn't get any relief, wasn't gonna do any good, because he'd be out of business." 6. The contract The contract which is in evidence states that it is effec- tive as of July 15,4 and that it was executed on July 31. Johnson testified that the parties consummated the con- tract on July 28. It is signed by Johnson, designated as the Union "REPRESENTATIVE," and by Pass, president, and Turner, secretary, of the Union Division under "FIRM NAME OF EMPLOYER " Pass testified that he has not signed the con- tract for his company . Turner testified that the contract was signed for Boyd Hart , his company, as well as by him- self as Association secretary.5 It was signed by all three signatories in late September or early October. None of them could place the date of execution more definitely than that. Article XXI of the contract, entitled "NO SUB CONTRACTING AND WORK PRESERVATION,' is inked out and marked "Delete" with the initials W.P. and A.A.J. Johnson testified this de- letion was made on the day of signing, after the contract had been ratified by the membership. A letter from Pass to Johnson dated July 16, placed in evidence by Respondent Beckham, is headed "Re: Wage Proposal," makes certain wage proposals "for the ensuing contract year (thru 30 June 1976)" including proposals that "Residential, repaint and small commercial as defined in present contract to be 70% of Base Journeyman rate. Other conditions same as present contract ," and concludes: "This proposal is an emergency measure. At any time that it is determined by the Joint Trade Board that the volume of work being controlled by contractors employing Union members is increased sufficiently , negotiations for a new wage proposal will be instituted." Turner testified that no agreement was reached in July as to the rates on residential work or the line to be drawn 4 As discussed below, the Union called a strike on July 15 5 Charges filed by the Union alleging unlawful refusal to sign the contract by Pass Painting, Boyd Hart, and Cather Industries were withdrawn between the rates for small commercial and other work; that "The union's position was, `Well, when we get a joint trade board formed, we'll give you a residential rate' "; that when the Association requested incorporation in a written addendum to the contract of provisions on rates for resi- dential and small commercial work, the Union stated that its International would not ratify them and that "as we get the joint trade board set up , we'll get it discussed and get it worked out", and that he could not recall if other provi- sions were omitted from the printed contract . Turner testi- fied further, as to the two matters that were incomplete when the contract was executed, that "Some of the con- tracts in the area are using the 75 percent residential rate, based on the contract before's writings , plus the fact that the joint trade board has been in three , four-two or three meetings-we're discussing the residential rate, and it's being prepared for written form, as well as the formation of the exact wordage of the point trade board, which is part of the contract." He also testified that the joint trade board is made up of management and labor members and handles disputes of various kinds prior to a strike or litigation. These provisions were still under discussion at the time of the hearing herein, when more than half of the I-year con- tract term had run. The signed document provides that it is entered into with the Union by the Union Division on behalf of all its mem- bers, severally and collectively referred to as the Employer, and contains the following: ARTICLE I RECOGNITION CLAUSE A. The Employer agrees to recognize the Union as the sole bargaining agent for all of its employees in those classifications which are set forth in the wage scale contained in Article XII, including any other work claimed to be within the jurisdiction of the Interna- tional Brotherhood of Painters and Allied Trades. B. The Union recognizes the Association as agent for and on behalf of the companies listed under Appendix A, hereinafter referred to as the "Employer," as the primary bargaining representative for all contractors operating within the geographic jurisdiction of the Union, as more particularly set forth herein. 1. This Agreement is negotiated by the Association acting as agent only for the aforementioned Em- ployers. For any breach of this contract, the liability of the Employer shall be several, not point, and the liability of the Association shall be only that of negoti- ating agent without liability for any acts of the afore- mentioned Employers. 2. In the event that the membership of any member of the Association shall terminate, this Agreement shall remain in full force and effect during its current term as to the withdrawing member Employer. Turner testified that Beckham told him, sometime be- tween July 28 and October 1, that he was preparing waivers for his employees releasing him from retroactivity and wage increase provisions until October 1 Pass testified that he did not recall any discussion with Beckham about em- ployee waivers after July 28, and that he has discussed the CUSTOM COLORS CONTRACTORS 863 Beckham problem with Johnson but did not recall when these telephone conversations took place or what was said. Pass also testified that, a few days after signing the con- tract, he left a copy at Beckham's office, and that, about a week after the contract was signed, Beckham telephoned and wanted to know why the contract was signed without the provisions as to residential rates and the trade board. Turner testified that Beckham also telephoned him in early October, on the same day he signed the contract or a day or two after that, and they had the following conversa- tion: "He wanted to know what in the world Bill [Pass] and I were doing down there, signing the contract. And, I asked him-I said, `Well, down there signing the contract. It was ratified and agreed on, the whole nine yards.' And, Mr. Beckham mentioned to me that it certainly wasn't a con- tract until certain other circumstances, situations, regard- ing pay and retroactivity, and at that particular time, if I remember correctly, the mention of the residential rate was also mentioned, that these things needed to be taken care of before we had a contract, and that as far as he was concerned, Bill Pass and I had no right to sign it until the situation was squared away." 7. The strike The contract, as noted above, has an effective date of July 15. Johnson testified that the Union called a strike that began on July 15 and lasted about 10 days to 2 weeks; that "We had already given the contractors two weeks without any-without coming to an agreement. Our con- tract expired-July 31st." This was followed by the Gener- al Counsel's question, "The old contract, you say, had ex- pired June 30, so it was two weeks later, July 15?" Johnson answered, "And, one of the negotiating deals was that they wanted it to extend to September 1st. We brought the pro- posal back to the membership, and they voted it down; they voted to go on strike. So, on the 15th we went out on strike." 6 As to the reasons, Johnson testified, "One was the retroactive pay, and the other was the-I believe they had tendered us a wage increase the 1st of January, which the membership voted down." Johnson testified that the strike in July during negotiations was against all employers em- ploying members of the Union, not only those employers on the negotiating team. Beckham wrote a letter to the Union dated July 15 stat- ing that, as discussed on July 11, the meeting to negotiate wages only between the Union and the Association negoti- ating committees was "still set" for the afternoon of July 16, and that, as "was discussed, retroactive pay is a negoti- able item." The Union received an identical letter from Pass as president of the Contractors Association. It also received the one dated July 16 about wage proposals, and one dated July 21 offering retroactive wages on jobs begin- ning on a certain date, signed by Pass as chairman of the Contractors Association Negotiations Committee. In a letter to the Union dated July 15, Beckham stated: "It is the intent of Beckham, Incorporated to abide by the decision of the Negotiating Committees of Local 1010 and P.D.C.A., Central Florida Chapter, in whatever retroactive stance is finally agreed upon by the respective commit- tees." Johnson testified, on cross-examination by Respon- dent Beckham, as follows: Q. Didn't Mr. Beckham write that to you after you told him that if he wrote a letter similar to that, that you would call off the strike? A. (Examining document.) I didn't tell him that personally Q. Did you cause somebody else in your organiza- tion to communicate that to him? A. Probably could be so. Somebody-some of the contractors had signed up at that time. . . To go back to work. And, they agreed to pay all their retro- active pay . . whenever the date was set, or however much it amounted to, they were willing to pay it. Q. . . . Now, didn't you cause someone to tell Beckham that if he signed a letter in that form, that you would call off the strike with respect to his peo- ple? A. I can't recall it. If anybody said anything to Harry Beckham, or if it was said to Bill Pass , or if it was said to Frank Turner, I can't recall. Johnson admitted that a strike was voted, that he had asked other locals in adjoining areas to refuse to work for the contractors involved and the locals had pulled their men from the jobs of those contractors including Beckham, and that he received several letters from contractors "all written just about the same way." 8. Appendix A signatures As noted above, the Association gave the Union a list of the contractors on the Union Division negotiating team, but no list of the contractors on whose behalf they were negotiating. Pass and Turner testified that they could not recall which individual or which side suggested during the negotiations having an appendix for signatures, but it was discussed and everyone thought it a good idea; that they agreed it was to have the company names on one side and the signatures on the other; and that, as Turner testified, the discussion showed "the purpose of it was to alleviate having to go around and have individual contracts signed," and the appendix "would become part of the contract. If you signed that, then you signed the contract." Pass testi- fied that "It was raised from both sides, both from myself and Mr. Johnson, that the appendix was to list the names of the contractors who would be bound by the agreement ... that we would be submitting one so that they would know of course the names of the companies that were bound by the contract"; that in discussing the format he and Turner agreed it should have signature lines and they should get signatures thereon; that he asked to have the signatures appended "to show additional support that the persons or companies whose names were listed definitely were assigning their bargaining rights and agreeing to the contract as it was negotiated." He testified further that in the discussions as to Appendix A 6 A letter from Johnson to Pass, dated July 16, states that the membership voted to refuse any extension of the prior contract beyond July 15 A. I told Mr. Turner that I didn't know if the 864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD PDCA would have some kind of liability for listing a contractor on the appendix, if that particular contrac- tor hadn't given us an assignment form. Therefore, to clarify it, the-the whole thing to me-of course, as president of the PDCA at the time and was very concerned about it. I just didn't have any idea whether we had any lia- bilities or not. So, to clarify the whole thing to me, since we had some that had assignment forms and some didn't have assignment forms-to clarify the whole thing, I said that we should list the names of the companies, with the signature attached, because if you've got the company's name and the signature at- tached, there's no question. And, we were reluctant to-dust as the statement says, we were very reluctant to list a company's name in Appendix A and bind them if we hadn't received an assignment form. . . . Mr. Turner generally agreed with me and said some of the same ideas in a different format. Johnson testified that he made frequent requests of Pass and Turner for this list in telephone calls and visits "in person. And, they stated at the next PDC of A meeting they were going to have the-a list of the names , that the only one that could give them the names-now, I was talk- ing with Mr. Pass-was Mr. Turner , that he was the secre- tary, and he was the only one that could definitely state whether they were in good standing or not in the PDC of A chapter." The testimony of Pass and Turner shows that they dis- cussed the format of Appendix A about a month after the ratification and their signing of the contract, and agreed to provide lines for company signatures. Turner also testified that the delay in preparing Appendix A was due to his own neglect ; that he prepared the list and had it typed in his office ; that he meant to take it to the Association meeting in October "to have it signed" but forgot it and apologized to the meeting for this; that he explained to the Board agent investigating the charges that were filed by the Union alleging 8(a)(5) refusals by certain employers, in- cluding Turner's company, to sign the contract, that "it was strictly my own personal neglect as secretary, not going out and getting it signed ," and he would at the next meeting "present it for signatures"; and that at the Novem- ber meeting, which was held on December 3, "I brought the document in and again apologized for not having it at the prior PDCA meeting for signatures, and I asked the members that were listed on the list to sign the document, because I had promised the union, as well as the lady . . . from the NLRB, that this thing would be to the Union by Wednesday, the 3rd." Pass also testified that Turner, at the December 2 meeting of the Union Division held immedi- ately after the Association meeting, "had the appendix drawn up, with the lines for signatures and asked that we all signed it," and that he signed for his company, Turner for his company, but Beckham "said that he wanted to take the agreement back to his attorney before he put his signature on it." Pass also testified that Beckham raised the retroactive pay question at the December 2 meeting but he could not recall what was said about it. Turner testified that, as to those members present at this meeting, "I asked them to sign the document ," that he asked if Beckham was going to sign, if he was or was not "gonna be union," and that "Beckham said, `I have nothing against signing the document . We have some other things that we had dis- cussed during the negotiations that I have to get completed with the union, at which time I'll sign the document.' " Pass testified that Beckham "also said that he didn't know if Custom Colors was still in business or if they even were going to be a union contractor, and as such, he didn't feel right that his name should be listed on the document to be handed to the union"; that this discussion was princi- pally between Beckham and Turner, but that "I do remem- ber saying myself that if he wasn 't gonna be a union con- tractor, then we couldn't submit his name on the list. . . . I do remember saying myself that if Custom didn 't have in- tentions of signing the contract, which I didn't know if he did or didn't, then we-then we shouldn't have his name on the list, on the appendix"; and that he had no informa- tion about it other than what Beckham said at this meeting. Turner testified that at this meeting "Beckham me.- - tioned, in looking over the list of names here, that it was- he had heard it was-it was his impression-he stated that he wasn't absolutely sure that Joe McDaniel was gonna sign the list, he had heard something to the effect that maybe Joe wasn't gonna sign the list. . . . I asked did any- body else know anything about this, and Mr. Pass vaguely recalled that he had heard something about the fact that Joe had mentioned that he wasn't gonna sign the list. At that particular point I says, `Well, gentlemen, we have a list, and if Mr. McDaniel isn't gonna sign it, his name shouldn't be on It.' And, with the concurrence of Mr. Beck- ham and Mr. Pass, I scratched his name out." He also testified that he did not recall talking to McDaniel about this removal of the name from Appendix A, that Appendix A had a complete list of Union Division contractors except for Vickery and McDaniel's name that he inked out, and that McDaniel had paid the annual Association dues but he did not know whether Beckham had. The typewritten document which is in evidence lists on the left-hand side under "COMPANY NAME" Hart , Beckham, Custom Colors, Pass, Cather, and Vickery Co., with Cus- tom Colors inked out, and on the right-hand side under "AUTHORIZED SIGNATURE" a series of signature lines contain- ing Turner's signature on behalf of Boyd E . Hart Co., Pass' signature on behalf of Pass Painting, and, on the line oppo- site Vickery Co., the typewritten notation, "Has signed in- davidual contract [sic]." Turner testified that he signed the contract as secretary of the Association and, after July 28, signed Appendix A as an officer of Boyd Hart. He had the document hand-delivered to the Union. Johnson was in the hospital at the time . As shown by an inked notation, it was received at 2.30 p.m. on December 3 by Diorio, Johnson's assistant. The Union also attempted to obtain signatures to the contract by various employers who had been involved in the negotiations . Johnson testified that neither Respondent has since July 15 made any payments to the Union for pension, health, and welfare funds, or for dues checkoff; that he had dinner with McDaniel in early October after the contract had been signed; that he had called McDaniel CUSTOM COLORS CONTRACTORS several times about back payments on pensions but could not recall who requested this meeting; and that he tendered to McDaniel a copy of the contract and told him "this is the way it was finalized. . . . And, for him to look it over and see what was in it . . . he was gonna take it back with him and look it over. And, at that time he did say that he wasn't sure whether he wanted to sign the agreement at this time, that he might want to be nonunion for a little while, till he could make some money and pay up some retroac- tive payments, and then he wanted to sign up again af- terwards." Johnson testified that he did not say anything about that. Johnson testified that he also tendered a copy of the agreement to Beckham, he thought on October 16, at a breakfast meeting about apprentice training; that "I asked him if he wanted to sign this agreement, because so far I didn't have any Exhibit A. I didn't have no names, I didn't know who was members, who wasn't members, or any- thing, so I thought, well, I'd have these people probably sign individually. He said that he wanted to take it back to the office and look it over, and see if it was the same as the one that we had agreed upon." Johnson further testified that he could not recall if he tendered a copy of the con- tract to Wohl or certain other contractors, that he had giv- en Pass at an Association meeting several signed copies of the contract to distribute to individual contractors, and that he heard nothing further from either McDaniel or Beckham regarding the contract since the conversations in October set forth above. Concluding Findings The General Counsel and the Charging Party contend that the Association, representing a number of employers including the two Respondents, negotiated a contract on behalf of these employers, and that the Respondents, by failure to make a timely and unequivocal withdrawal from the multiemployer unit, and by failing and refusing to sign and to abide by the contract,7 have violated Section 8(a)(5) and (1) of the Act. The Respondents assert that they had not indicated an intent to become part of a multiemployer unit, and, there- fore, that there was no obligation on their part to make a timely and unequivocal withdrawal from such unit. Re- spondent Beckham further argues that there was never a complete contract as agreement on certain provisions had not yet been reached at the time of the hearing. I find, on the record as a whole, that there was not a clear determination or announcement by the Union Divi- sion that it would bargain for certain employers as a single multiemployer unit. The amended bylaws that set up the Union Division make no reference to such bargaining, some members were absent from the May meeting of the Association when this was discussed and the absent mem- bers were not notified of this discussion, the Association at no time gave the Union a list of the employers on whose behalf the employer panel was bargaining or even the num- 7 The General Counsel at the hearing urged that an order should be is- sued requiring the Respondents , not to sign the contract, but to honor and abide by all its terms and conditions 865 ber of employers, and one nonmember of the Union Divi- sion participated in the negotiations and signed a separate contract. Furthermore, the Union in 1975 separately notified the contractors with whom it had entered Tito individual con- tracts in 1972 of the desire to renegotiate the contract. The Union presented the only written proposal considered dur- ing the 1975 negotiations which provided that it was to be signed by "FIRM NAME OF EMPLOYER" The Association' s letter to the Union named those on the negotiating panel, but said nothing about the unit for which they were negotiat- ing. The same panel system of bargaining had been the practice when the contractors signed individual contracts in 1972, and the same individuals were on the Association bargaining panel. While there is testimony that remarks were made at the first negotiating session indicating a change in bargaining from single employer to a multiem- ployer basis, the remarks were not explicit and the testi- mony was based on admittedly vague recollections. The employer-members of the Union Division of the As- sociation, as well as other employers in the area who had union contracts, were solicited by the Association officials to sign the printed assignment of bargaining rights forms. Neither of the Respondents signed an assignment. It was also agreed at negotiating sessions that the employers who were to be parties to the contract would execute Appendix A. The Union Division officials prepared Appendix A to contain signatures, and solicited signatures of the contrac- tors. Neither of the Respondents executed Appendix A. The Union also sought to obtain signatures by the vari- ous contractors. As Johnson testified, even after agreement was reached, "I didn't have no names." The Union also filed charges alleging unlawful refusal to sign, and with- drew the charges when the contractors in question agreed to sign. The charges filed against each of the Respondents which gave rise to this proceeding assert that: "This con- tractor did negotiate and reach an agreement with Local Union on July 31, 1975, which was ratified by a majority of employees. From that date to now, repeated efforts have been made to have this contractor become signatory to the contract that was reached. He has refused to sign up until this date." The consolidated complaint asserts that on July 31 "The Association and the Union agreed to all the terms of a new collective bargaining contract," and that xach of the Respondents since July 30 "has refused to sign the col- lective bargaining contract . . . and has failed and refused and continues to fail and refuse to comply with the terms of that contract... . The General Counsel urges that the recognition clause of the contract shows that the bargaining and the contract were between the Union and the Union Division of the Association on behalf of its members. There are references in the contract, however, indicating that it is between the Union and the signatory employers. Moreover, various provisions to be included in the contract had not been agreed to when the contract by its terms became effective in July. The General Counsel relies on Retail Associates, Inc., 120 NLRB 388 (1958), and Edward E. Schultz d/b/a Schultz Painting & Decorating Co., 202 NLRB 111 (1973). In both cases, however, there was a lengthy history of bargaining 866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on a multiemployer basis , with no question that the parties had acceded to and become bound by such bargaining pat- tern . It was in such circumstances that the Board required, as it stated in Retail Associates, that one seeking to with- draw from such "an established multiemployer bargaining unit" is required to do so by timely and unequivocal con- duct in accord with "the fundamental purpose of the Act of fostering and maintaining stability in bargaining rela- tionships . . . multiemployer bargaining units can be ac- corded the sanction of the Board only insofar as they rest in principle on a relatively stable foundation." As to the timing of such withdrawal, the Board stated in Retail Asso- ciates, "Where actual bargaining negotiations based on the existing multiemployer unit have begun , we would not per- mit . . . an abandonment of the unit upon which each side has committed itself to the other... . In the present situation, however, where there was no history of multiemployer contracts , the question is whether there was such a commitment to a multiemployer unit that precluded withdrawal except in accord with Retail Associ- ates requirements. In such a situation , the Board policy is, as stated in The Evening News Association, Owner and Pub- lisher of "The Detroit News," 154 NLRB 1494, 1496 (1965): "The Board does not find a multiemployer unit appropri- ate except where all parties clearly agree to such a unit or where there has been a history of bargaining on a multiem- ployer basis and the employers and . . . union desire to continue bargaining on such a basis. In the absence of either of these two factors, the Board will not find appro- priate a unit covering employees of more than one em- ployer, regardless of the desirability of such a unit [citing Retail Associates] . . . because the multiemployer unit is rooted in consent . . . the basis of multiemployer bargain- ing unit is both original and continuing consent by both parties." And again in Steamship Trade Association of Balti- more, Inc., 155 NLRB 232 (1965), the Board held that "mutual consent is required to establish multiemployer bargaining . . . it is clear that the element of consent re- lates to the formation of the multiemployer unit." And in Council of Bagel and Bialy Bakeries and its Employer Mem- bers, 175 NLRB 902 ( 1969), the Board held: "[W]here the formal articles of association make no provision for the individual members to be bound by group action, where there is evidence that there was no such intention, and where the conduct of the Unions otherwise fails to estab- lish that they were dealing on a true multiemployer basis, we find it difficult to conclude that the employer Respon- dents may be said to have created with the consent of the Unions a multiemployer bargaining unit . It appears, rath- er, that the Association was formed merely for the sake of convenience in bargaining, and that it cannot be concluded that the members of the group indicated an unequivocal intention to be bound in collective bargaining by group rather than individual action." In conclusion, I find, in all the present circumstances, that the Respondents had not prior to the 1975 negotia- tions "indicated an unequivocal intention to be bound in collective bargaining by group rather than individual ac- tion"; that the Union could not, in the absence of a "sub- mission to be bound by group action" shown by an express commitment by the Respondents, imply such submission from the Respondents' course of conduct ; and that the Union did not negotiate a contract, for an undefined mul- tiemployer unit, to which the Respondents were bound.8 Accordingly, I find that the General Counsel has failed to establish by a preponderance of the evidence that the Re- spondents, by failing and refusing to sign or to abide by the terms of the 1975 contract, violated Section 8(a)(5) and (1) of the Act. I shall therefore recommend that the consoli- dated complaint be dismissed in its entirety. Upon the basis of the foregoing findings of fact, and upon the entire record in this proceeding, I make the fol- lowing: CONCLUSIONS OF LAW 1. Joseph McDaniel, an Individual Proprietorship d/b/a Custom Colors Contractors, and Beckham , Inc., are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Brotherhood of Painters & Allied Trades, AFL-CIO, Local Union No. 1010 , is a labor orga- nization within the meaning of Section 2(5) of the Act. 3. The General Counsel has failed to establish by a pre- ponderance of the evidence that the Respondents have failed and refused to sign, or to abide by the terms of, a contract for a multiemployer unit in violation of Section 8(a)(5) and (1) of the Act. [Recommended Order for dismissal omitted from publi- cation.] 8 Retail Clerks Union, No 1550, et al, Retail Clerks International Associa- tion, AFL-CIO [The Kroger Company] v N L R B, 330 F 2d 210 (C A D C, 1964), see also Oil Chemical and Atomic Workers International Union and its Local 7-507 (Capitol Packaging Company), 212 NLRB 98 (1974)