Beaumont Graphics, Ltd.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Beaumont Graphics, Ltd. and Local 505, Graphic Arts International Union, AFL-CIO. Case 14- CA-13303 January 14, 1981 DECISION AND ORDER BY MEMBERS PENELLO, TRUESDALE, AND ZIMMERMAN On September 12, 1980, Administrative Law Judge Claude R. Wolfe issued the attached Deci- sion in this proceeding. Thereafter, both the Re- spondent and the Charging Party filed exceptions and supporting briefs. 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, find- ings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. DECISION STATEMENT OF THE CASE CLAUDE R. WOLFE, Administrative Law Judge: This case was heard before me in St. Louis, Missouri, on April 15 and 16, 1980, pursuant to charges timely filed and served and complaint duly issued. The complaint al- leges violations of Section 8(a)(1) and (5) of the Act con- sisting of a refusal by Respondent to give effect to or enter into a collective-bargaining agreement negotiated on its behalf by a multiemployer association, and a fail- ure and refusal to furnish information relevant and neces- sary to the processing of a grievance. Respondent denies that it had violated the Act. Upon the entire record, including my observations of the demeanor of the witnesses as they testified before me and with careful consideration of the able post-trial briefs submitted by all parties, I make the following findings: 1. JURISDICTION Respondent, a Missouri corporation, maintains its prin- cipal office and place of business in St. Louis, Missouri, where it is, and has been at all times material herein, en- gaged in providing printing services. During the 12- month period ending January 31, 1980, a representative period, Respondent in the course and conduct of its busi- 254 NLRB No. 44 ness operations purchased and caused to be transported and delivered at its St. Louis, Missouri, place of business, paper and printing supplies delivered to said place of business directly from points located outside the State of Missouri. During the same period, Respondent, in the course and conduct of its business operations, manufac- tured, sold, and distributed at its St. Louis, Missouri, place of business, products valued in excess of $50,000 which were shipped from said place of business directly to points located outside the State of Missouri. Printing Industries of St. Louis, Inc., herein sometimes called the Association or PISTL, is a bargaining associ- ation comprised of employers engaged in printing and the provision of printing services at their places of busi- ness in the State of Missouri. During the 12-month period ending January 31, 1979, a representative period, members of the Association, in the course and conduct of their business operations, pur- chased and caused to be transported and delivered at the Missouri places of business, paper, printing supplies, and other goods and materials valued in excess of $50,000 which were transported and delivered to their Missouri places of business directly from points located outside the State of Missouri. Respondent and Association are now, and have been at all times material herein, employers engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 11. LABOR ORGANIZATION The Charging Party is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Basic Findings of Fact The Union and the Association have maintained a bar- gaining relationship for a number of years, and have ne- gotiated and executed several collective-bargaining agreements. Within the Association there are two sec- tions, the Master Printers Section and the Union Em- ployers Section. The Lithographic Division with which we are here concerned is a group within the Union Em- ployers Section (UES). Some of the employer-members of the Lithographic Division have authorized the Associ- ation (PISTL) to represent their interests in collective bargaining, while other members have not. Respondent has been a member of the UES for about 10 years, continues this membership to date, and assigned its bargaining authority to the Lithographic Division of UES approximately 3 years ago. Respondent's lithogra- phic employees were covered by an agreement between the Association and the Union, which was effective July 1, 1977, to June 30, 1979. On April 30, 1979, Respondent, in writing, designated, appointed, and authorized the Association to be its "sole and exclusive" collective-bargaining representative to ne- gotiate with the Union for a new contract covering the lithograph unit. This authorization contains, inter alia, the following language: 394 BEAUMONT GRAPHICS, LTD. The undersigned does further agree to observe, abide by and faithfully adhere to: (1) the terms of such collective bargaining agreements as may be en- tered into on its behalf; (2) the terms of any agree- ment in conciliation or of any arbitration decision; and (3) any rules of the Union Employers Section of Printing Industries of St. Louis, Inc., as currently amended. The rules of UES' provide, in pertinent part: [N]o UES member who has currently authorized the Union Employers Section or any of its Divi- sions to represent it in collective bargaining shall be permitted to resign during any contract negotiation or strike for which such representation authoriza- tion was given except with approval of the three- fourths (3/4) of the members of the UES Board of Directors after affirmative recommendation of that Division's Negotiating Committee. The Association and the Union negotiated in May and June 1979 without reaching agreement on a new con- tract. They therefore agreed to a -month extension of the 1977-79 contract. No agreement was reached during this extended period. The Union rejected PISTL's final offer of August 1 and commenced a strike on August 3 which, by August 6, encompassed all employers, includ- ing Respondent, represented by the Association in these negotiations. Union President Frank Mead asserts that the parties to the bargaining were at impasse when the strike began. In August and September, during the strike, at least six Association members entered into an interim lithographic agreement 2 which provided therein that it would be replaced by the new contract between the As- sociation when it was reached. Five" of these interim agreements contain the language "an impasse has devel- oped in the negotiations." Four of the six were signed prior to September 24, and one after. 4 On or about August 16, 1979, the Association and 17 of its members, including Respondent, became plaintiffs in a suit filed in the Circuit Court of St. Louis County, Missouri, against 5 Association members and the Union and 5 of its officers because they had entered into inter- im agreements. The petition states in substance that the plaintiff and defendant companies had designated the As- sociation as their sole and exclusive collective-bargaining agent and had agreed not to negotiate or enter into any labor agreement except as authorized by the Association. The suit is still pending and Respondent remains named as a party plaintiff in that case. The Association and the Union resumed negotiations on August 29 and negotiated continuously from Septem- ber 18-24 when the Association made its "second final offer," which was conditioned on acceptance by the Union by September 27. The Union rejected this propos- I These revised rules were adopted in 1979, prior to Respondent's Oc- tober 12 withdrawal effort. 2 Stone Printing Co., Compton & Sons, Franz Lithography, A-C Lith- opiate, Hope Press, and Clark Sprague. All were signed by Union Presi- dent Mead and the representative of the signatory company. 3 All but Stone Printing Co. There is no date on the Clark Sprague agreement. al. The Association's attorney, Stephen Skrainka, asserts that the negotiating parties were at impasse at this point on several issues, both economic and noneconomic. No further negotiating meetings were held by the Union and the Association until mid-October. By letter dated October 5, Respondent advised the Union that it was contemplating opening a new plant doing different work than that being performed at its St. Louis facility. Respondent further advised that it did not believe it had any duty to bargain on this new operation, but would discuss its plans with the Union on request. The plant in question is located at Sullivan, Missouri, ap- proximately 60 miles from St. Louis. The Union agreed to such a meeting, and it was held on October I l. At this meeting Respondent and the Union discussed the Sullivan plant, and Respondent noti- fied the Union that if it wanted to represent the Sullivan employees it should go to Sullivan and secure authoriza- tion cards from them. It does not appear that the Associ- ation/Union negotiations or the strike were discussed. On October 12, Respondent, by its attorney, directed the following letter, with a copy to the Union, to the As- sociation: This is to advise you that Beaumont Graphics, Ltd., is, as of your receipt of this letter, withdrawing from Printing Industries of St. Louis, Inc., the au- thority of that organization to negotiate with and execute a contract with Local 505 of the Graphic Arts International Union. On the same day, Respondent wrote the Union, with copy to the Association: This is to advise you that Beaumont Graphics, Ltd., has withdrawn authority from Printing Industries of St. Louis, Inc., to negotiate with your organization. Henceforth, such negotiations should be conducted with Beaumont Graphics, Ltd. Still on October 12, Respondent's president, Weber, appeared before the Association's lithographic division and said he was withdrawing authority from the Associ- ation to bargain on his behalf. He assured the Associ- ation representatives present that he would not negotiate an interim agreement nor for proposals less favorable than those the Association was negotiating. Weber asked if the Association would accept the withdrawal of bar- gaining authority. The Association's response was to table the request rather than to accept or reject the with- drawal, and to assure Weber they would not sue him if he adhered to the bargaining position he had stated to them. The Association has neither sued nor taken any action pursuant to its rules against Respondent. Respon- dent has not attended any Association negotiation or rati- fication meetings since October 12, 1979. After Respondent's October 12 letters and Weber's October 12 personal appearance before the Association, the Union and Respondent met on October 23 and 25, and November 5 and 8, 1979. The following recitation of what went on at these meetings is a reconstruction from the testimony of Respondent's lawyer, Moller, the 395 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union's lawyer, Werner, 5 Union President Mead, Re- spondent's president, Weber, and Respondent's vice president, Hoch.6 All impressed me as honorable men at- tempting to accurately testify as best they recalled, but I consider the testimony of Moller to be, in most instances, the more complete, detailed, and convincing version. In those few instances where the testimony of any of the five appears contrary to the facts found, it is not cred- ited. The October 23 meeting commenced with Moller, Weber, Hoch, Joe Strasser, and Bill Lang present for the Company. The Union was represented by Werner, Presi- dent Mead, Vice President Kinamore, George O'Brien, and William Doughty. Moller stated that Respondent was not interested in reducing economic benefits already negotiated by the Association, but needed wording changes to avoid grievances at Sullivan and to protect strike replacements and returning strikers. He also men- tioned that the Union would not be recognized at the Sullivan location until it organized the employees there. Werner's response was that the Union was interested in an interim agreement because his research indicated that that was all the Union could enter into. Moller answered that Respondent was not interested in an interim agree- ment, wanted a final agreement, and would not sign an interim agreement which Respondent considered a "blank check." The Union then caucused. On their return, Werner stated that the Union would examine Re- spondent's contract proposals, but was not interested in making wholesale revisions of the 1977-79 contract. Nothing further of consequence transpired at this meet- ing. In response to the Union's agreement to examine Re- spondent's proposals, Moller prepared a 29-page draft agreement between the Union and Respondent, omitting references to the Association, and presented it, with a cover letter, to the Union on October 25. 7 The cover letter reads, in relevant part: As I stated at our meeting on Monday, Beaumont sincerely wants an agreement that it and the union can live with, but we will not sign an agreement binding ourselves to what others negotiate. The attached proposal of Beaumont Graphics, Ltd., seeks to attain the following objectives: 1. To adhere to any financial offers already made by the Printing Industries of St. Louis while Beaumont was still a member of that Asso- ciation's bargaining group. If it is shown that the attached departs from any economic offers or conditions of the Association, Beaumont will im- mediately correct its offer to reflect such. 2. To make such alterations in the wording of the contract as we believe are necessary to pro- tect us from grievances which could foreseeably arise from operation of the new plant at Sullivan. Werner was not present at the November meetings. 6 Other persons present at the meetings for Respondent or the Union did not testify to their content. The Union's attorney, Stanley Schuchat, died prior to the hearing in this case. ? Present on October 25 were the same persons plus the Union's attor- ney, Stanley Schuchat. 3. To protect the replacement employees who have been hired since the strike began as well as the old employees who have ceased striking and returned to work. 4. To increase the efficiency of our plant so that we can again become competitive. Only thus can we provide real job security. The elimination of seniority as the controlling factor in lay-off and recall is one important way this goal can be achieved. Werner presented Moller with the Union's interim agreement proposal, and again stated that the Union was interested in an interim agreement and that a recent Board decision8 appeared to affirm his belief that the Union could only enter into an interim agreement. The parties discussed the Union's proposal, and Moller made it clear that Respondent was not agreeable to an interim proposal by pointing out Respondent would not agree to a provision in the Union's proposal that he believed might be interpreted as an interim agreement, and by re- peating that under no circumstances would Respondent agree to an interim agreement. The Union's "interim agreement" proposal contained no language unambi- guously binding Respondent to the eventual Association contract. After the parties examined item by item, and Moller rejected the Union's proposal, they commenced discuss- ing Respondent's proposal item by item. Respondent's proposal supplanted references to the Association with language showing the contract was only with Beaumont Graphics, Ltd.; made significant changes to the existing union work jurisdiction; altered the union shop clause to permit members resigning during the strike to work with the right to join or not join the Union; and proposed other substantive changes in the old contract. The parties did not complete their review of Respondent's proposal and no agreements were reached on the proposed changes. Moller made it clear that Respondent was con- cerned with protecting replacements, the removal of se- niority for layoff and recall (apparently in connection with its desire to protect replacements and returning strikers), and the avoidance of problems at the Sullivan plant as a result of any agreement reached. The parties met again on November 5.9 Prior to this meeting, on October 31, Moller had forwarded a new proposal to the Union, cast in the form of a 35-page agreement between Respondent and the Union without reference therein to the Association and containing sub- stantially the same proposals as the October 25 proffer, with some modifications and additions. The November 5 meeting proceeded with the participants reviewing the items in Respondent's new proposal. There was agree- ment on those items that either had been in the previous contract or had to that point been negotiated between the Association and the Union. The Union agreed to give Respondent a side letter affirming that for the life of 8 Charles D. Bonanno Linen Service, Inc., 243 NLRB 1093 (1979). 9 Present for Respondent were Moller, Weber, Hoch, Strasser, and Lang. The Union group consisted of Schuchat, Mead, Executive Vice President Witt, Kinamore, O'Brien, and Doughty. 396 BEAUMONT GRAPHICS. LTD. the contract it would not use the trade practices section against Respondent at Sullivan. This agreement was con- ditioned on Respondent agreeing to the existing trade practices clause, which it had opposed for fear it would be applied to the Sullivan operation. In this connection, Schuchat advised that the clauses in the contract which Respondent protested because of possible application to Sullivan could be taken care of in a side letter. I find the Union agreed to delete references to any employer but Beaumont, said it had no objection to omitting any refer- ence to PISTL from the contractual grievance proce- dure, and further agreed to implement an employee birthday holiday in 1980, rather than 1981 as the Associ- ation agreement provides. Items not agreed on were left open for further discussion. No reference was made to the precise nature of the agreement, whether "interim" or "final" during this meeting. ' The parties recessed until November 8. On November 8, Respondent and the Union had their fourth and final meeting." The parties resumed going through Respondent's proposals. Moller suggested that with a continuing side letter exempting the Sullivan op- eration from the application of the contract as a basis for grievances some outstanding issues could be disposed of. Schuchat asked Moller to draft such a letter for the Union to consider. The letter was never delivered to the Union. After the noon recess, Moller insisted on the lan- guage in Respondent's proposal providing for no repri- sals against strike replacements or nonstrikers by the Union as well as no reprisals by Respondent against re- turning strikers. The Union would not agree and made other proposals on the subject including a requirement that all strikers be returned to work. No agreement was reached on this. Schuchat then asked what Respondent's economic proposals were. Moller replied that they were the same as those offered by the Association. Some member of the Union group commented they had not been on strike for nothing, and Schuchat said there was no point in negotiating further if that were Respondent's economic offer. The meeting then broke up with Schu- chat stating the Union would not call and it was up to Respondent to call if it desired to resume negotiations. An interim agreement was not specifically mentioned at this meeting. No further meetings between Respondent and the Union have been held. Prior to the first of the four meetings between the Union and Respondent, the Union and the Association held two "secret" meetings on October 15 and 17 with no agreement being reached. Negotiations between the Association and the Union resumed November 9 and continued until December 15 when an agreement was reached on the contract effective July 1, 1979, through June 30, 1982,'2 and a strike settlement. These agree- ments were ratified by the Union on December 16 and by the Association on December 17. O I do not credit Mead that Schuchat said on November 5 that the Union wanted an interim agreement. I credit Moller. Hoch, and Weber that an interim agreement was not mentioned on November 5 or 8. i The same Company people were present, and Schuchat,. Mead, Kin- amore, Witt, O'Brien, and Terry were present for the Union. 12 1 appears the agreement was not put in final proofread and printed form until March 9Q80, but is clear a contract existed after December 17, 1979, at the latest. On December 14 or 15, Werner asked Association At- torney Skrainka whether the Association had accepted Respondent's withdrawal request. Skrainka answered that it had not been accepted. Werner asked that Re- spondent's name be included in the list of employers in the Association/union agreement. Skrainka agreed to do so, and Respondent's name was included in that agree- ment. I credit Skrainka that he also mentioned the Asso- ciation had no objection to Respondent being out of the contract. On December 20, 1979, Union President Mead wrote Respondent notifying it of the agreements and ratifica- tion thereof, and stating: Local 505 was informed by PISTL on May 22, 1979 that it was authorized by your Company, to- gether with other employers, to represent them in bargaining for a new Collective Bargaining Agree- ment with Local 505. Negotiations proceeded on this basis; and, as mentioned, above, finally culmi- nated in the new agreement. During the negotiations, PISTL representatives informed the Local 505 representatives that PISTL had not concurred in Beaumont's request to be re- leased from the multi employer negotiations. It is the position of Local 505 that Beaumont Graphics Ltd. is bound by the agreement reached between Local 505 and PISTL. The final language of the new agreement is being proofread at this time, and as soon as that is done I will send you a copy. If you desire to have a draft at this time, sub- ject to being proofread, I will forward such a copy to you. Enclosed is a copy of the strike settlement agree- ment between Local 505 and PISTL. As you know Local 505 has withdrawn its pick- ets from your premises as was done for the other struck employers. On behalf of the employees, Local 505 makes unconditional offer to return to work. On December 27, Respondent replied to the Union's De- cember 20 letter: I have your letter of December 20 addressed to me. Beaumont Graphics, position with respect to the statements made in your letter is set forth in the enclosed letter which we are forwarding to our striking employees. As set forth in the letter, we have withdrawn from the Association bargaining and your course of conduct in bargaining separately with us estops you from claiming that we are still part of the Association and bound by the contract you negotiated with them. Furthermore, we con- strue the conduct of the Association as demonstrat- ing that it had and has no objection to our with- drawal. This was just verified by Mr. Skrainka's letter to you of December 26. In any event, whether you and the Association did or did not agree to our withdrawal, it is our po- sition that we had a legal right to do so. We suggest that our employees have suffered enough and 397 DECISIONS OF NATIONAL LABOR RELATIONS BOARD should be allowed to work while we litigate our po- sitions before the NLRB. The basis upon which they will work will in no way erode the wages, hours and working conditions to which you have agreed in your new Association contract. They will receive the wages and other benefits last offered to you pending the conclusion of a new agreement with you. In the meantime, the Association, by Skrainka, had sent the following letter to Werner on December 26: This will acknowledge and confirm our tele- phone call to you Tuesday, December 18, 1979 ad- vising of the ratification by the Lithographic Divi- sion and the Bindery Division of the Union Em- ployers Section, Printing Industries of St. Louis, Inc. of their respective 1979-1982 Agreements (in- cluding Strike Settlement Agreements) with Local 505, Graphic Arts International Union At your insis- tence, we have included Beaumont Graphics, Limited in the Lithographic Contract and Lander Bookbind- ing Corporation in the Binder Contract. As you know, we indicated that Printing Industries of St. Louis, Inc. was agreeable to dropping these two companies from the respective contracts in view of their revocation of authorization to us to bargain further. In the negotiations on Friday, December 14, 1979 and Saturday, December 15, 1979, Local 505 insisted that their names be included in the PISTL collective bar- gaining agreements and was not willing to bargain with them on an individual basis following settlement of our agreements. 3 Werner replied to Skrainka on December 27 as fol- lows: I am in receipt of your letter dated December 26, 1979 in which you advised me of the ratification by the Lithographic Division and the Bindery Division of the Union Employers Section, Printing Industries of St. Louis, Inc. (hereinafter referred to as "PISTL") of their respective 1979-1982 agreements (including Strike Settlement Agreements) with Local 505, Graphic Arts International Union. In your letter you referred to the fact that Beaumont Graphics, Limited and Lander Bookbinding Corpo- ration have been included in the Lithographic Con- tract and Bindery Contract respectively. This position is correct and reflects the understanding of the Union negotiators. One additional point should be mentioned for fur- ther clarification of your comments in the second paragraph of your letter. During the negotiating ses- sions of December 14th and December 15, 1979, PISTL's representatives informed the Union represen- tatives that Beaumont Graphics, Limited and Lander Bookbinding Corporation had requested (of PISTL) revocation of their authorization to PISTL to represent them in Multi-Employer negotiations with the Union. The Union was informed that as of December 15th, ' Emphasis supplied. 1979, immediately prior to the agreement reached by the parties, that PISTL had not accented or agreed to the requested revocations from either Beaumont or Lander. 4 On January 9, 1980, the Union wrote Respondent: In furtherance of its obligation as collective bargain- ing representative, Local 505 requests the following information be returned to this office within ten days: Name of employee, classification and hourly wage, including night shift premium. Include on list any new employees or anyone not on the enclosed list. On January 16, 1980, Respondent replied: This letter is in response to your letter dated Janu- ary 9, 1980. Enclosed please find the information that you re- quested. This information is being supplied to the Union in recognition of our obligation to Local 505 as the collective bargaining representative of our employees on a single employer basis. It remains our position that the company is not bound by the terms and conditions of the collective bargaining agreement negotiations between the Union and the Union Employers Section of the Printing Industries of St. Louis Inc., effective July 1, 1979 to June 30, 1982. We are furnishing the enclosed information in good faith based on the assumption that the Union repre- sents an uncoerced majority of our employees, but that we are not under any contractual obligation arising out of the recently concluded negotiations between the Association and the Union. As always, the company is ready and willing to meet with the representatives of the Union to nego- tiate a new collective bargaining agreement cover- ing our employees. Hopefully the information en- closed is responsive to your request. While this exchange of January 9 and 16 was going on between company and union, they were involved in an- other. On January 11, 1980, the Union filed a grievance against Respondent complaining of violations of the As- sociation/Union contract and strike settlement agreement consisting of a refusal to share work among employees and a failure to follow seniority in scheduling and work- ing employees. On January 15, the Union made the fol- lowing written request of Respondent for information relative to the grievance: 1. A list of all employees who were employed as of August 3, 1979, showing: a) their names; '4 Emphasis supplied. 398 BEAUMONT GRAPHICS, LTD. b) classification as of that date; c) classification seniority; d) seniority with the Company. 2. A list of changes, if any, in the list furnished in response to question No. I from August 3, 1979 through Monday, January 7, 1980; including name, classification or classifications; classification senior- ity, and seniority with the Company. 3. For the period, Tuesday, January 8, 1980 through Sunday, January 13, 1980, furnish a daily list of: a) employees who worked; b) the classification of the employees; c) the hours worked; d) classifications worked in if different than their classifications. I would appreciate this information by Thursday, January 17, 1980, so that we can expedite the pro- cessing of this grievance. I will also send you shortly a similar request for the following periods: Monday, January 14, 1980 through Sunday, January 20, 1980 Monday, January 21, 1980 through Sunday, January 27, 1980 Monday, January 28, 1980 through Sunday, February 3, 1980 By letter of January 16, Respondent answered: This letter is in response to your letter dated Janu- ary 15, 1980 concerning the recently filed grievance against the company. It remains the position of the company that we are not bound by the Articles of Agreement or the Strike Settlement Agreement ex- ecuted by the Union and the Union employers sec- tion of Printing Industries of St. Louis, Inc., as Beaumont Graphics withdrew its collective bargain- ing authority from the Association on October 12, 1979. Accordingly, since we are not bound by either the Articles of Agreement or the Strike Set- tlement Agreement, your request dated January 15, 1980 is hereby denied. And thus the situation rests. B. Further Findings, Discussions, and Conclusions The basic ground rules applicable to the instant case were succinctly set forth by the Board in Dickmont Plas- tics Corporation. Employer-Petitioner, 208 NLRB 382, 383 (1974), as follows: [O]nce contract negotiations have commenced, withdrawal from an established multiemployer unit is untimely and therefore ineffective, unless it is by mutual consent of the parties, or justified by unusual circumstances. The parties are in agreement and I find that an estab- lished multiemployer unit existed from which Respon- dent sought to withdraw on October 12, 1979. Actual multiemployer bargaining had begun, and Respondent had participated therein to the time its clear and un- equivocal withdrawal notice was tendered. The with- drawal was clearly untimely and did not become privi- leged by virtue of impasse in the bargaining. Both Mead of the Union and Skrainka of the Association aver that they were at impasse, and interim agreements prepared by the Union relate that impasse had indeed been reached. It would seem, therefore, that there was a bar- gaining impasse on August 3 or September 24, or at both times.'5 Resolution of the date is unnecessary because any impasse in the bargaining occurred prior to Respon- dent's withdrawal efforts of October 12. There is, more- over, no need to dwell further on the matter of impasse because the Board has held that impasse is not, of itself, an "unusual circumstance" warranting unilateral with- drawal from an existing multiemployer bargaining rela- tionship, but amounts to no more than a temporary dead- lock or hiatus, which is usually resolved by actions of the parties. 6 The controlling issue in this case is whether or not the "mutual consent" proviso of the rules has been met. It is settled that consent of both the Union and the Associ- ation must be present if the withdrawal from multiem- ployer bargaining and ultimate refusal to be bound by the agreement negotiated by the Union and Association are not to be found unlawful. 17 The Association's reaction to Respondent's withdrawal of October 12 may appropriately be characterized as avuncular. Although its rules explicitly forbid such a withdrawal absent recommendation of the Lithographic Division and approval of three-fourths of the UES Board of Directors, the Association chose not to invoke these provisions or take any internal or court action against Respondent. Instead, it elected to table rather than accept or reject the withdrawal, and advised Respon- dent's president, Weber, he would not be sued so long as he neither negotiated an interim agreement with the Union nor negotiated for proposals less favorable than those sought by the Association. In short, the Associ- ation did not object to Respondent's withdrawal but wished to insure that any bargaining it might engage in did not operate to undercut the Association's bargaining stance. Skrainka's comments to Werner on December 14 or 15, 1979, as well as his letter of December 26, further show that the Association had no objection to Respon- dent's withdrawal from multiemployer bargaining. The inclusion of Respondent's name in the contract negotiat- ed by the Association was at the Union's insistence and, although it may reflect the malleability of the Associ- ation in the wake of its agreement with the Union, it does not alter the plain fact that the Association cared not if Respondent withdrew under the conditions voiced by Weber. Similarly, the inclusion of Respondent as a :~ The fact of the strike lends some support to this conclusion. 16 Charles D. Bonanno Linen Service. Inc.. supra Marine Machine Works. Inc., 243 NLRB 1098 (1979): Birkenwald. Inc. d/h/a BirAenwald Distributing Company, 243 NLRB 1151 (1979). '' Teamnsters Union Local No. 378 affiliated with Inernational Brother- hood of Teamsters. Chauffeurs. Warehousemen and Helpers of America (Capitol Chevrolet Co.), 243 NLRB 1086 (1979). 399 DECISIONS OF NATIONAL LABOR RELATIONS BOARD party plaintiff in the Association's suit against those em- ployers who signed interim agreements does not, in my view, operate to negate any Association consent to the withdrawal because the suit was filed in August, almost 2 full months before Respondent's notice of withdrawal. Why Respondent's name remains on the suit as a plantiff is not explained, but I am not persuaded that this fact is of more than minimal weight. Consideration of the Asso- ciation's entire course of conduct vis-a-vis Respondent's withdrawal convinces me that the Association did not oppose it and acquiesced thereto. The Union never protested Respondent's withdrawal nor insisted that Respondent was bound by the Associ- ation contract until Union President Mead's December 20, 1979, letter. Instead it met with Respondent and re- quested, on October 23 and 25, that Respondent execute an interim agreement. The Union's two-page proposed agreement, proffered October 25, does not, on its face, require Respondent to be party to the Association agree- ment but, rather, would require Respondent to accept terms like those the Association had to that point agreed on, as well as some to which the Association had not yet agreed. After Respondent's rejection of the Union's proposal on October 25, it was never again mentioned. Instead, the Union and Respondent thereafter spent their time on October 25 and November 5 and 8, on an item-by-item discussion of Respondent's successive proposals, in the form of complete collective-bargaining agreements, of 29 and 35 pages respectively. This was consistent with the Union's agreement on October 23 to "examine" Respon- dent's proposals, and with Mead's testimony that the Union went into the November 5 meeting "with the full intent of looking at whatever you [Respondent] pro- posed." Neither of Respondent's draft proposals can be construed as proposals for an interim agreement nor does either contain any concession by Respondent that it is or will be bound by any multiemployer negotiations. I do not believe that either the evidence or reason will sup- port a conclusion that the Union was actually bargaining for, or had any reason to believe it was bargaining for, an interim agreement during the meetings after Respon- dent conclusively rejected any interim agreement on Oc- tober 25. All that was thereafter discussed were Respon- dent's proposals. The Union was not misled by Respon- dent and well knew that Respondent took the position it had withdrawn from multiemployer bargaining and was directing its contract proposals solely toward an individ- ual contract. That two meetings in their entirety and a large part of a third were devoted exclusively to Respon- dent's proposals is a clear indication that the Union was considering and negotiating on something other than the Association agreement, and I am persuaded that the Union knew it was negotiating individually with Respon- dent. The failure of those negotiations was immediately precipitated by the Union's failure to secure a better eco- nomic offer from Respondent than it had been able to wrest from the Association, an effort itself inconsistent with the concept of multiemployer bargaining. I find that the totality of the Union's conduct after Re- spondent's withdrawal from the Association bargaining, including the facts that it never, during the four meetings with Respondent, demanded it be bound by the Associ- ation/Union agreement, willingly discussed Respondent's contract proposals item by item over two entire meetings and part of a third, with what appears to have been ne- gotiating teams of both parties present, considered and agreed to terms different from those settled upon with the Association, including Respondent's proposed omis- sion of any reference to the Association in the contract, and sought better economic terms from Respondent than the Association had offered, requires a finding that the Union consented to Respondent's withdrawal of bargain- ing authority from the Association and acquiesced in Re- spondent's efforts to bargain an individual employer con- tract with the Union.'s8 Inasmuch as I have found that Respondent withdrew from multiemployer bargaining with the consent of the Union and the Association, the complaint allegation that Respondent unlawfully failed and refused to execute or abide by the contract negotiated by the Association has not been sustained. I further find Respondent is not bound by the strike settlement between the Association and the Union. It follows that Respondent was not re- quired to furnish information relevant to the grievance brought by the Union alleging violations of the Associ- ation contract and strike agreement to which Respondent was not a party and had not consented to be bound. I conclude that Respondent did not violate Section 8(a)(5) and (1) of the Act as alleged. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent has not violated Section 8(a)(l)and (5) of the Act as alleged in the complaint. [Recommended Order for dismissal omitted from pub- lication.] '8 IHotel and Restaurant Employees and Bartenders Union. Local 2. Hotel and Restaurant Employees and Bartenders International Union. AFL-CIO (Zim's Restaurants. Inc.)., 240 NLRB 757 (1979); I. C. Refrigeration Ser- vice. Inc, 200 NLRB 687 (1972); Joseph C Collins & Co., Inc.. 184 NLRB 940 (1970). 400