Ladies Garment Workers (West Side Sportswear)

226 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD International Ladies' Garment Workers' Union; Dressmakers' Joint Council; New York Coat, Suit, Dress, Rainwear and Allied Workers Union, ILGWU; Northeast, Western Pennsylva- nia and Ohio Department , ILGWU; and Shamo- kin-Sunbury District Council, Locals 185-306- 351, ILGWU (West Side Sportswear, Inc.) and Charles McKelvey. Case 4-CB-5263 30 September 1987 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND STEPHENS On 31 March 1987 Administrative Law Judge William A. Pope II issued the attached decision. The Respondents filed exceptions and a supporting brief, to which the General Counsel and the Charging Party filed answering briefs. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, I and conclusions as modified, 2 and to adopt the recom- mended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent Unions, International Ladies' Garment Workers' Union; Dressmakers' Joint Council; New York Coat, Suit, Dress, Rainwear and Allied Workers Union, ILGWU; Northeast, Western Pennsylvania and Ohio Department, ILGWU; and Shamokin-Sun- bury District Council, Local 185-306-351, ILGWU, New York, New York, and Shamokin, Pennsylvania, their officers, agents, and representa- tives, shall take the action set forth in the Order. Joseph C. Kelly, Esq., for the General Counsel. Charles W. Johnston, Esq., of Harrisburg, Pennsylvania, for the Respondent. William R. Tait Jr., of Williamsport, Pennsylvania, for the Charging Party. DECISION WILLIAM A. POPE II, Administrative Law Judge. In a complaint, dated 8 July 1986, and an amended complaint, dated 14 November 1986, the Regional Director for Region 4 of the National Labor Relations Board alleged that the Respondent Unions have committed and are committing unfair labor practices, in violation of Section 8(b)(3) of the National Labor Relations Act (the Act), by failing and refusing to meet to bargain collectively with West Side Sportswear, Inc., an employer located in Sha- mokin, Pennsylvania, for the purpose of negotiating a collective-bargaining agreement. The original charge was filed on 24 June 1986, an amended charge was filed on 28 July 1986, and a second amended charge was filed on 14 November 1986. Trial took place on 4 and 5 Decem- ber 1986, in Shamokin, Pennsylvania. I. OVERVIEW West Side Sportswear, Inc., which until approximately 2 years ago operated under the name of Springfield of Pennsylvania, Inc., is a contractor engaged in the manu- facture of garments. ' Its shop is located in Shamokin, Pennsylvania. As the terms are used in the garment in- dustry, a contractor manufactures garments in its shop under contract with a jobber or manufacturer. The owner and president of West Side Sportswear, Inc. (and its predecessor, Springfield Sportswear of Pennsylvania, Inc.) is Kenneth Dorkoski. West Side Sportswear's non- supervisory production (excluding patternmakers), main- tenance, packing, and shipping workers are represented for collective-bargaining purposes by Local 185, Interna- tional Ladies Garment Workers' Union (ILGWU), an af- filiate of the Dressmakers' Joint Council of the ILGWU.2 Northeast Apparel Association, Inc. is an employers' organization whose membership is open to businesses op- erating plants employing labor in the manufacture of ap- parel anywhere in the State of Pennsylvania and firms in- directly involved in the apparel industry.3 Among the objects of the Association, as listed in article II, section 1, of its bylaws, are: i In the third sentence of the first par of sec III, the judge, in stating the holding of Walt's Broiler, 270 NLRB 556 (1984), inadvertently left out a word The sentence should conclude " . and does not negate a clear and unequivocal intent to withdraw from multiemployer bargaining " 2 We adopt the judge's conclusion that the Respondents violated Sec 8(b)(3) of the Act in failing to bargain collectively with the Employer, West Side Sportswear, Inc In doing so, we rely on his findings that the Employer's notice that it was withdrawing bargaining authority from Northeast Apparel Association was both timely and unequivocal and that the Employer's participation in the 9 July 1985 negotiations was insuffi- cient to nullify its timely and unequivocal withdrawal in the absence of record evidence that the Employer was in fact preserving for itself the option of either signing or rejecting the new multiemployer contract We therefore find it unnecessary to rely on the judge's additional finding that the Union acquiesced in the Employer's withdrawal of bargaining author- ity (d) to represent and engage in collective bargaining for and in behalf of its members and the labor unions representing the employees of its members and to execute collective-bargaining labor agree- i The parties stipulated that West Side Sportswear, Inc and Spring- field Sportswear of Pennsylvania , Inc are alter egos 2 The parties stipulated that Local 185 is an affiliate of the Dressmak- ers' Joint Council, ILGWU Dorkoski testified that the employees of Springfield Sportswear of Pennsylvania, Inc in the appropriate bargain- ing unit also were represented by Local 185 3 Northeast Apparel Association expanded its membership by an amendment to its constitution on May 9, 1978, which opened membership to all firms indirectly involved in the apparel industry 286 NLRB No. 19 LADIES GARMENT WORKERS (WEST SIDE SPORTSWEAR) 227 ments with other employee associations and the unions representing the employees of its members. But, the Association's constitution, as amended on 9 May 1978, limits its collective-bargaining rights on behalf of its members to only those members who furnish the As- sociation with a power of attorney to negotiate with the ILGWU. The 9 May 1978 amendment to its constitution not- withstanding, the collective-bargaining agreements be- tween the Dressmakers' Joint Council4 and Northeast Apparel Association covering the periods from 1 June 1982 until 31 May 1985 and 1 June 1985 until 31 May 1988, until the latter was modified in 1986, provide that the agreements are binding on all members of the Asso- ciation. Article 1 of the 1982-1985 agreement defines "employer" as a "member of one if the Associations; or one who has withdrawn from an Association during the term of this agreement." Article 2 provides that the "As- sociations contract for themselves and all of their mem- bers." Article 38 of the same agreement provides: 2. All Employers, members of the Associations at the time of the execution of this agreement and per- sons, firms and corporations becoming members thereof subsequent to the date of the execution of this agreement, shall be and continue to remain per- sonally and individually liable under this agreement for and during the terms hereof, irrespective of whether said members shall cease to be members of the Association prior to the date set for the expira- tion of this agreement, and such liability shall be deemed to have survived the termination of such membership and remain in force for and during the full term thereof. The second and current agreement, covering the period from 1 June 1985 until 31 May 1988, contains similar provisions in articles 1, 2, and 38. That agree- ment, however, was amended by Northeast Apparel As- sociation and the Dressmakers' Joint Council on 22 April 1986, as follows: 7. Members of the Association who have not given the Association bargaining rights will not be bound by the actions of the Association in negotiating a contract. 8. The terms and conditions set forth in this memo- randum shall amend and supersede the terms of the collective bargaining agreement dated June 1, 1985 and in all respects shall be considered paramount to the terms and conditions of said June 1, 1985 agree- ment. If there be any conflict between the terms of this memorandum and the June 1, 1985 agreement, this memorandum shall be considered controlling. Kenneth Dorkoski testified that he was a member of the Northeast Apparel Association for 8 to 10 years, 4 Local 185 ILGWU, as one of the constituent local unions composing the Dressmakers' Joint Council, is a party to the collective-bargaining agreements negotiated by the Dressmakers ' Joint Council with the exception of a 2-to 3-year period not relevant to this case, until he resigned his membership on 30 May 1986. According to Dorkoski, he resigned because he had heard that he was bound by the 1985-1988 collec- tive-bargaining agreement between the Northeast Appar- el Association and the Dressmakers' Joint Council as long as he remained in the Association. For the 2 years preceding his resignation, Dorkoski was a member of the Association's board of directors. By letter dated 26 November 1984, Dorkoski informed Local 185 that Springfield Sportswear would not extend or renew the collective-bargaining agreement expiring on 31 May 1985, and that it had withdrawn the right of the Northeast Apparel Association to bargain on its behalf. By letter dated 11 April 1985, Charles J. McKelvey (the Charging Party), an attorney-at-law, informed Local 185 that he had been retained to represent Springfield Sports- wear in its 1985 labor negotiations with the Union, and he requested that Local 185 contact him for the purpose of arranging a time and place for negotiations. By letter of 17 July 1985, McKelvey informed Thomas Matthews, district manager of the Shamokin-Sunbury District Council, ILGWU, that Northeast Apparel Association had no authority to negotiate a collective-bargaining agreement on behalf of West Side Sportswear or Spring- field Sportswear. McKelvey stated that he represented West Side Sportswear for the purpose of negotiating a new labor agreement and was awaiting a mutually con- venient date to begin negotiations. By letter of 24 Febru- ary 1986, McKelvey again informed Thomas Matthews that he represented Springfield/West Side Sportswear and was ready to begin negotiations toward a new col- lective-bargaining agreement at Matthews' convenience. In a final letter dated 19 May 1986, McKelvey repeated his offer to Thomas Matthews. There is nothing in this record indicating that any official of Local 185 or any other ILGWU official responded to any of the letters de- scribed above. Negotiations between Northeast Apparel Association and the Dressmakers' Joint Council concerning a new collective-bargaining agreement began on 16 April 1985, in the New York City office of Samuel Byer, the general manager and secretary of the Joint Council. The chief negotiator for the Association was David E. Koff, an at- torney; his assistant was John Ferraro, field manager for the Association, both of whom were present. Also present, in addition to various union representatives, were Lawrence Hollander, president of the Association, and the Association's board of directors, including Ken- neth Dorkoski. Dorkoski's participation, it appears from the record, was limited to his presence At this negotiat- ing session, the Union presented its proposals, there was a brief discussion, in which Dorkoski did not participate, and the meeting was adjourned. The next session, which was also held in the New York City office of Samuel Byer, took place on 29 May 1985. Representing the Association at this session were Koff and Ferraro. Discussed at this session was a propos- al by the Association to delete from the collective-bar- gaining agreement the section that stated that all mem- bers of the Association were bound by the agreement. 228 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Koff stated that he did not represent all the members of the Association , as he had authority to bargain only for certain of its members. According to Koff, Everett Lewis, an attorney representing the Union , expresed "su- prise and shock" and asked for a list of Association members whom Koff did and did not represent. Koff agreed to furnish the list, noting that he had been in- formed that the Association had amended its bylaws in 1978. With a letter dated 3 June 1985, Koff provided to Lewis the lists that the latter had requested . Listed under the category "Negotiate Own Contract " was West Side Sportswear. Conversely, the name of West Side Sports- wear was not listed under the categories entitled "Power of Attorneys Received" and "Did Not Return." The third bargaining session took place on 4 June 1985, once again in Samuel Byer 's New York City office. Representing the Association were Koff and Ferraro. Koff furnished to the union representatives a copy of the lists attached to his 3 June 1985 letter (as well as minutes of the Association meeting at which its bylaws were amended). Although the subject of the Association's au- thority to bind its members was discussed , the issue was not resolved. The fourth bargaining session took place at the Wood- lands, a restaurant-resort near Wilkes-Barre, Pennsylva- nia, on 26 June 1985. Koff and Ferraro again represented the Association, but, at the request of the Union, mem- bers of the Association's board of directors, including Kenneth Dorkoski, also were present. According to Koff, he had talked to the board of directors several times and had reached a tentative understanding with the Board concerning most of the issues, with the exception of the issue of bargaining rights. With the Board's con- sent, Koff and the union representatives executed a draft agreement that was to be held in escrow until the re- maining unresolved issues could be settled . A subcom- mittee of Association and union representatives was formed to look into one of those issues-that of sub- standard workers. One of the subcommittee members representing the Association was Dorkoski. There is no evidence in the record that Dorkoski said anything or took an active role in the 26 June bargaining session at the Woodlands. The substandard workers subcommittee met at the Woodlands on 9 July 1985 . Among the committee mem- bers present representing the Association was Kenneth Dorkoski. Although apparently not the chairman of the Association's delegation to the subcommittee , Dorkoski took an active role in subcommittee discussions that day. The subcommittee did not reach agreement on resolution of the issue. Negotiations between the Association and the Dress- makers' Joint Council continued and ultimately resulted in a new collective-bargaining agreement covering the period from 1 June 1985 until 31 May 1988. There is no evidence in the record, however, indicating that Kenneth Dorkoski attended any other bargaining sessions or had any other role in negotiating the agreement. While denying that he is bound by the 1985-1988 agreement, Dorkoski acknowledges that he continues to be bound by the expired 1982-1985 agreement. Dorkoski stated that from 26 November 1984 until his resignation from the Association on 30 May 1986 , he continued to make use of benefits and services offered by the Associa- tion to its members, including insurance , industry infor- mation, and labor relations services . Among other things, Dorkoski sent the Association copies of his correspond- ence with the ILGWU during that period and, on at least two occasions , the Association's president wrote letters to the district manager of the Shamokin-Sunbury District Council, ILGWU concerning disputes between the Union and Dorkoski. Also during that period, Dor- koski continued to obtain reimbursement from the Dress Industry holiday fund for holiday pay that he paid to his employees.5 It is not disputed that West Side Sportswear did not grant its employees the 6 -percent general increase in wages which, under article 15 of the 1985- 1988 collec- tive-bargaining agreement between Northeast Apparel Association and the Dressmakers' Joint Council, was to have been effective with the work week beginning 2 June 1986.6 Sometime after 2 June 1986 (but before 15 July 1986), the Union filed a complaint with the impar- tial chairman alleging that West Side Sportswear had violated the 1985-1988 collective -bargaining agreement by failing to pay the 6-percent increase when it was due.7 Under article 35 of the 1985-1988 collective-bar- gaining agreement, complaints against members of the Association who have resigned are to be submitted in writing to the impartial chairman (who is named in the same article) for arbitration. The impartial chairman has exclusive jurisdiction, after a hearing process, to decide all complaints, disputes, or grievances that arise from the agreement or involve questions of interpretation or appli- cation of any article of the agreement , including the va- lidity of any provision of the agreement. The impartial chairman is empowered to take proof of the complaint and render an award of decision, if the respondent, after notice, fails to appear . Decisions or awards of the impar- tial chairman are declared by article 35 to be final and binding on the parties and enforceable by judgment in any court of competent jurisdiction. The article further states that the procedure that it establishes is agreed to be the exclusive means for determining disputes and that none of the parties shall institute any court action, other than to compel arbitration or to enforce an award of the impartial chairman. A hearing was held on the Union 's complaint by the impartial chairman on 15 July 1986 . West Side Sports- wear was not represented at the hearing, although it is undisputed that it had notice of the hearing . 8 On 15 July 6 The 1982-1985 and the 1985-1988 collective-bargaining agreements contain identical provisions for holidays and operation of the Dress In- dustry holiday fund, which the employers pay into and from which they draw reimbursement for holiday pay that they pay to their employees 6 According to Dorkoski , he could not afford the 6-percent pay raise, which is the only difference between the old and new agreements 7 The complaint was entitled "Complaint No G 408A of New York Coat, Suit, Dress, Rainwear and Allied Workers' Union ILGWU against West Side Sports , Inc, a Member of Northeast Apparel Association " 8 Counsel for West Side Sportswear, the Charging Party in this pro- ceeding, stipulated that West Side Sportswear had notice of the hearing before the impartial chairman West Side Sportswear filed suit on 10 July 1985, in the Common Pleas Court of Pennsylvania to enjoin the hearing, but no injunction had been granted by the time of the hearing LADIES GARMENT WORKERS (WEST SIDE SPORTSWEAR) 229 1986 the impartial chairman issued a decision finding that West Side Sportswear was bound by the 1985-1988 col- lective-bargaining agreement by virtue of its membership in the Association and that it had violated the agreement by failing to pay the 6-percent increase when due. The impartial chairman ordered West Side Sportswear to pay the wage increase retroactively to 2 June 1986. bers of the Association who have not given the Associa- tion bargaining rights will not be bound by the actions of the Association in negotiating a contract . Thus, the Union consented to, or acquiesced in, West side 's aban- donment of multiemployer bargaining . Considering all this, argues the General Counsel , deferral to the decision of the impartial chairman is inappropriate. II. ISSUES The amended complaint alleges that the Respondent committed unfair labor practices , in violation of Section 8(b)(3) of the Act, by failing and refusing, and continuing to fail and refuse, to bargain collectively with West Side Sportswear, Inc., for the purpose of negotiating a collec- tive-bargaining agreement. A. The General Counsel 's Theory of Case The General Counsel contends that West Side Sports- wear made a timely, unequivocal withdrawal from Northeast Apparel Association, a m ultiemployer bargain- ing association . The withdrawal was timely because Ken- neth Dorkoski, West Side's president and owner , notified Lcoal 185, ILGWU, of his withdrawal of bargaining rights from the Association by letter of 26 November 1984, approximately 6 months before the expiration of the 1982-1985 collective-bargaining agreement to which Dorkoski admits he was bound . Dorkoski's letter was un- equivocal, says the General Counsel, and it was followed by four letters from Dorkoski's attorney to the union re- questing individual bargaining . The General Counsel argues that Dorkoski's limited role as a member of the Association's board of directors in negotiations over a new collective-bargaining agreement between the Asso- ciation and the Dressmakers' Joint Council was not equivocal conduct . He was not a designated negotiator for the Association , and his participation at the first and fourth bargaining sessions was limited to his presence as a member of the Association's board of directors. Al- though he attended a joint Association-Union committee meeting on 9 July 1985, which considered the issue of substandard workers, he did not seek the advantage of multiemployer bargaining, asserts the General Counsel, because substandard workers were not a problem at his shop . He spoke in terms of the expired collective-bar- gaining agreement, which he was legally obligated to abide by, and he had the right, if not the duty, as a member of the Association's board of directors, to be present. Further the General Counsel finds nothing equivocal in Dorkoski's continued use of the Association 's service in resolving labor disputes after he had withheld bargain- ing rights from the Association , or the fact that he con- tinued to pay into the Dress Industry holiday fund and draw benefits from it . One of the objects of the Associa- tion is to assist its members in labor disputes , and West Side had a duty under the expired collective -bargaining agreement to pay into the Dress Industry holiday fund. Finally, contends the General Counsel, there is no basis for the Union to hold West Side to the current bargain- ing agreement in light of the 22 April 1986 amendment to the 1985-1988 agreement, which provided that mem- B. Charging Party 's Theory of Case The Charging Party (West Side Sportswear's attorney) also contends that West Side Sportswear 's withdrawal of bargaining rights on its behalf from Northeast Apparel Association was timely and unequivocal and was com- municated to the Union 5 months before the first con- tract negotiation session. The Union never responded to West Side's request for individual bargaining, despite the fact that West Side 's attorney requested negotiations four times between 11 April 1985 and 19 May 1986. More- over, says the Charging Party, the Union was informed during the course of bargaining between Northeast Ap- parel Association and the Dressmakers ' Joint Council that the Association did not have authority to bargain for a number of its members , including West Side Sports- wear. Furthermore, asserts the Charging Party , there was nothing inconsistent with withdrawal in West Side's sub- sequent conduct . The advantages of the Association, says the Charging Party, were not limited to collective bar- gaining. While Kenneth Dorkoski attended negotiating sessions as a member of the Association's board of direc- tors, he was not a negotiator for the Association and did not speak out or sign anything . The committee meeting at the Woodlands on 9 July 1985 was not attended by the negotiators for either the Association or the Union. It was simply a short meeting, says the Charging Party, to review the language on substandard workers, and no changes were negotiated . Finally, concludes the Charg- ing Party, no adverse inference can properly be drawn from the fact that West Side continued to utilize the As- sociation to deal with the Union, or the fact that it sub- mitted reports to the Dress Industry holiday fund. West Side was still bound by the 1982-1985 collective -bargain- ing agreement, asserts the Charging Party, and it was doing nothing more than abiding by the terms of that agreement. C. Respondent Unions' Theory of Case The Respondent Unions argue, first, that the Board should defer to the arbitration award of 15 July 1986, which held that West Side Sportswear , by virtue of being a member of Northeast Apparel Association, is bound by the terms of the collective-bargaining agree- ment covering the 1 June 1985 through 31 May 1988 period . According to Respondents, there is no evidence that the arbitration proceedings were not fair and regu- lar. They were conducted with due notice to West Side, and the fact that West Side voluntarily chose not to par- ticipate, says the Respondent, in no way affects the fair- ness and regularity of the proceedings . Further, argue the Respondents, all the parties agreed to be bound by arbitration under the terms of the current agreement, 230 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD which explicitly states that it binds all members of Northeast Apparel Association. According to the Re- spondents, West Side's attempt to withdraw bargaining authority from Northeast Apparel Association in No- vember 1984, was negated by the subsequent conduct. Moreover there is nothing clearly repugnant to the Act in the arbitrator's award, argue the Respondents, and the unfair labor practice issue before the Board is factually parallel to the issue before the arbitrator. In this instance, say the Respondents, the issues are identical. Finally, the Respondents contend, the General Counsel has presented no evidence showing that the facts relevant to the unfair labor practice proceeding were not presented to the arbi- trator. Second, the Respondents argue that West Side failed to follow the agreed-on means of withdrawing from the multiemployer bargaining unit and, therefore, is bound by the terms of the 1985-1988 collective-bargaining agreement. To effectively withdraw from a multiemploy- er bargaining unit, the Board has held, an employer must give timely, adequate written notice. To be timely, the notice must be given before negotiations begin and, to be adequate, the notice must be unequivocal. In order to withdraw from the multiemployer bargaining unit (Northeast Apparel Association) to which it belonged, it was necessary for West Side Sportswear to cease being a member of the Association. Thus, says Respondents, as West Side continued its membership in the Association until 1 June 1986, it did not withdraw from the multiem- ployer bargaining unit prior to the 1985-1988 collective- bargaining agreement and is bound by the agreement Moreover, argues the Respondents, even if West Side's letter of 26 November 1984, constituted timely and un- equivocal withdrawal from the multiemployer bargaining unit, its subsequent conduct nullified its withdrawal. Kenneth Dorkoski remained a member of Northeast Ap- parel Association and its board of directors, and attended three of five of the bargaining sessions. At none of these bargaining sessions did Dorkoski explain that he was bar- gaining as an independent. The Board has repeatedly held, contend the Respondents, that when an employer attends multiemployer bargaining sessions subsequent to withdrawal, without any disclaimer of notice of nonauth- orization on the part of the association, the withdrawal is ineffective. Finally, argue the Respondents, West Side's conduct after 1 June 1985 constituted not only a retraction of its withdrawal, but also acquiescence in being bound by the 1 June 1985 through 31 May 1988 agreement. After 1 June 1985, West Side manifested an intent to adopt the agreement, contend the Respondents, by continuing to utilize Northeast Apparel Association as its collective- bargaining representative in the administration of the agreement and by seeking on at least seven occasions re- imbursement of holiday pay from the Dress Industry hol- iday fund. equivocal in order to be effective." See, e.g., Watson- Rummell Electric Co., 277 NLRB 1401 (1985). But, the Board also said in Walt's Broiler, supra, that the fact that an employer does not resign from the multiemployer as- sociation is not inconsistent with withdrawal and does negate a clear and unequivocal intent to withdraw from multiemployer bargaining.9 All that is required is that the employer's conduct show an unconditional and un- equivocal intent to abandon multiemployer bargaining. I. C. Refrigeration Service, 200 NLRB 687 (1972). The rule concerning withdrawal from multiemloyer bargaining is designed to prevent disruption of the multi- employer group by a race for bargaining leverage. Carvel Co., 226 NLRB 111, 112 (1976). The Board has often held that an employer's withdrawal from multiemployer bargaining is nullified when its subsequent actions are in- consistent with its stated intent to abandon group bar- gaining, when for example, it seeks the "best of both worlds" by actively participating in group negotiations for a new multiemployer agreement after it has with- drawn from group bargaining. Dependable Tile Co., supra; Associated Shower Door Co., 205 NLRB 677 (1973); Michael J. Bollinger Co., 252 NLRB 406 (1980). The pro- hibited conduct in such circumstances is the attempt by the employer to secure satisfactory terms in a multiem- ployer agreement while at the same time attempting to reserve its right to reject any agreement not to its liking. Dependable Tile Co., supra at 1147. An employer's withdrawal is timely if it is "given prior to the date set by the contract for modification, or to the agreed upon date to begin the multiemployer ne- gotiations." Retail Associates, supra at 395. As stated by the Board in Carvel Co., supra at 112: An employer may withdraw without the union's consent prior to the start of bargaining by giving unequivocal notice of the intent to abandon the multiemployer unit and to pursue negotiations on an individual employer basis. However, once negotia- tions have actually begun, withdrawal can only be effectuated on the basis of "mutual consent" or "un- usual circumstances." Speaking on the subject of union consent to an employ- er's untimely withdrawal from multiemployer bargaining, the Board said in I. C. Refrigeration Service, supra at 689: In addition, once negotiations have commenced, withdrawal will not be permitted absent either "un- usual circumstances" or consent by the union. And, although consent may be implied from the union's conduct, such conduct usually must involve a course of affirmative action "clearly antithetical" to the union's claim that the employer has not with- drawn from multiemployer bargaining. In this regard, the Board will examine the totality of the III. FINDINGS AND CONCLUSIONS In Walt's Broiler, 270 NLRB 556, 557 (1984), the Board, citing Retail Associates, 120 NLRB 388 (1958), said that "[i]t is well established that a party's withdraw- al from multiemployer bargaining must be timely and un- 9 Merely continuing membership in a multiemployer association is dis- tinguishable from the situation in Dependable Tile Co, 268 NLRB 1147 (1984), in which the majority of the Board found that renewal of mem- bership in the association and active participation in group negotiations for a new multiemployer agreement is clearly inconsistent with a stated intent to abandon group bargaining and negotiate separately LADIES GARMENT WORKERS (WEST SIDE SPORTSWEAR) 231 union's conduct to determine whether, by the con- duct, the union has consented to, or acquiesced in, the employer's attempted withdrawal. There is no question in this case that absent subsequent inconsistent conduct leading to nullification, Kenneth Dorkoski's letter of 26 November 1984, to Local 185 ILGWU, informing the Union that Springfield Sports- wear would not renew or extend the collective-bargain- ing agreement expiring on 31 May 1985, and had with- drawn the right of the Northeast Apparel Association to bargain on its behalf, constituted timely and unequivocal notice of Springfield Sportswear's (and its successor and alter ego, West Side Sportswear's) withdrawal from mul- tiemployer bargaining. The language of the letter clearly informed the Union of Springfield Sportswear's intent not to be bound to a multiemployer agreement negotiat- ed by Northeast Apparel Association; there was nothing equivocal about it. And, as notice of withdrawal, the letter was clearly timely, because it was delivered to the Union10 6 months before the expiration of the existing collective-bargaining agreement and approximately 4-1/2 months before the Dressmakers' Joint Council and Northeast Apparel Association began negotiations on 16 April 1985, over a new multiemployer collective-bargain- ing agreement. The issue of nullification arises in this case because of the subsequent activities of Kenneth Dorkoski, the owner and president of both Springfield Sportswear and its suc- cessor and alter ego, West Side Sportswear. Following his 26 November 1984 withdrawal from multiemployer bargaining, Dorkoski retained his Company's member- ship in Northeast Apparel Association, continued to use the Association's labor relations services, collected reim- bursement for holiday pay from the Dress Industry holi- day fund, and personally continued to serve as a member of the Association's board of directors, in which capacity he eventually became involved in negotiations between the Association and the Dressmakers' Joint Council over a new multiemployer collective-bargaining agreement. In his capacity as a member of the board of directors of the Association, Dorkoski attended two of the first four bargaining sessions between the Association and the Dressmakers' Joint Council."' But, although he was present, Dorkoski was not a negol iator for the Associa- tion, and there is no evidence that he took any role in the negotiations on those occasions. In addition, Dor- koski was a member of a joint Union-Association sub- committee and attended a meeting of the subcommittee on 9 July 1985, at which the problem of how to treat substandard workers in the collective-bargaining agree- ment was discussed. The evidence is clear that Dorkoski took an active role in discussions at the particular meet- ing, but while the subcommittee discussed the problem, it did not resolve it. There is no evidence of any further involvement by Dorkoski in multiemployer bargaining. I do not find that Dorkoski's limited participation in the multiemployer bargaining process until 9 July 1985 10 There is no dispute that the Union received the letter 11 The Union requested that the members of Northeast Apparel Asso- ciation's board of directors attend the bargaining sessions on 16 April 1985 and 26 June 1985 was inconsistent with his stated intention in his 26 No- vember 1984 letter not to participate in multiemployer bargaining. Dorkoski was not a spokesman or negotiator for the Association and he did not actively participate in negotiations for a new collective-bargaining agreement during the Association-Dressmakers' Joint Council bar- gaining sessions that he attended. His active participation in subcommittee discussions on 9 July 1985, was appar- ently limited to that one day and in any event was not central to negotiation of a new agreement, as the sub- committee did not resolve the problem that it met to dis- cuss. Thus, so far as this record indicates, Dorkoski's contribution as a member of the subcommittee to the new collective-bargaining agreement between the Asso- ciation and the Dressmakers' Joint Council was negligi- ble. Under these circumstrances, I find no evidence that Dorkoski tried to have the "best of both worlds" by at- tempting to secure favorable terms in the new multiem- ployer collective-bargaining agreement, while reserving his right to reject any agreement he did not like.12 Neither is it inconsistent with his withdrawal from multiemployer bargaining that Dorkoski did not resign from the Association, that he continued to use its good office in resolving labor disputes, or that he may have derived other benefits from belonging to the Association. Negotiation of multiemployer collective-bargaining agreements was not the sole objective of the Association; among other things, the Association served as a clearing- house for information of interest to companies engaged in the apparel industry, it offered reduced rate insurance policies to its members, and it represented its members in resolving labor disputes. As noted by the Board in Walt's Broiler, supra, the fact that an employer does not resign from a multiemployer association is not, of itself, incon- sistent with withdrawal from multiemployer bargaining. Moreover, in this particular case, not only did Dorkoski have reasons unrelated to multiemployer bargaining for belonging to the Association, he still regarded himself as being bound by the collective-bargaining agreement be- tween the Association and the Dressmakers' Joint Coun- cil, which expired on 31 May 1985 and, under the agree- ment, he was entitled to the Association's labor relations services and such benefit under the 1982-1985 contract as reimbursement for holiday pay from the Dress Indus- try holiday fund.13 Moreover, any possible ambiguity concerning West Side Sportswear's intention to withdrawal from multiem- ployer bargaining was dispelled by repeated requests to the Union by Dorkoski's attorney for separate negotia- tions and by notice given to the Union by the Associa- tion that it did not have bargaining rights on behalf of West Side Sportswear. There is no factual dispute con- cerning to the events that took place. 12 This case, therefore, is distinguishable from Dependable Tile C0, supra; Associated Shower Door Co, supra, and Michael Bollinger Co., supra, in each of which the employer, after withdrawing from multiem- ployer bargaining, actively participated in bargaining for a new multiem- ployer collective-bargaining agreement 13 There is nothing in the record to indicate that West Side Sports- wear failed to continue making the payments to the Dress Industry holi- day fund that it was required to make under the 1982-1985 agreement. 232 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Charles J. McKelvey, the Charging Party, wrote let- ters on 11 April 1985, 5 days prior to the first negotiat- ing session between the Association and the Dressmak- ers' Joint Council), 17 July 1985, 24 February 1986, and 19 May 1986, variously addressed to Local 185 or Thomas Matthews, an official of the ILGWU's Shamo- kin-Sunbury District Council, stating that he was an at- torney representing Springfield/West Side Sportswear for the purpose of negotiating a new labor agreement, that Northeast Apparel Association had no authority to negotiate on behalf of his client and requesting a mutual- ly agreeable time and place to begin negotiations on behalf of his client with the Union. It is undisputed that McKelvey's letters were received by the addressees. It is also undisputed that the Union did not reply to any of them. Apart from McKelvey's letters, at the second bargain- ing session (held on 29 May 1985) the Association's ne- gotiator told the Union's representatives that the Asso- ciation did not have bargaining rights from all of its members, and asked for deletion from the new collec- tive-bargaining agreement of the section in the old agree- ment stating that all members of the Association are bound by the agreement. This was followed by a letter from the Association, dated 3 June 1985, listing the mem- bers of the Association that it did and did not represent for collective-bargaining purposes, copies of which were both mailed to the Union and hand-delivered to its repre- sentatives at the third bargaining sessions, held on 4 June 1985. West Side Sportswear was listed in an attachment to the letter under the heading "Negotiate Own Con- tract." While the issue of whether all members of the As- sociation would be bound by the new collective-bargain- ing agreement was not finally resolved by the Associa- tion and the Dressmakers' Joint Council until 22 April 1986 (when the new agreement was amended retroac- tively to provide that it was binding only on those mem- bers of the Association who had given the Association bargaining rights), the Union was not under any misap- prehension while the 1985-1988 agreement was being ne- gotiated concerning where West Side Sportswear stood on the issue. In the final analysis, however, resolution of this case turns on the fact that the Union consented to or acqui- esced in the withdrawal of West Side Sportswear from multiemployer bargaining . Even if Springfield/West Side Sportswear's November 1984 withdrawal from multiem- ployer bargaining was nullified by inconsistent actions of its owner and president after negotiations over a new agreement began, its subsequent untimely withdrawal will still be permitted if consented to or acquiesced in by the Union. Reliable Roofing Co., 246 NLRB 916 (1979), 250 NLRB 456 (1980). I. C. Refrigeration Service, supra. I find that in this case the Union engaged in affirmative conduct that was clearly antithetical to its claim that West Side Sportswear did not withdraw from multiem- ployer bargaining and, therefore, the Union did consent to or acquiesce in the withdrawal, even if it was other- wise untimely. The determinative conduct here is the Union's agree- ment on 22 April 1986 to an amendment retroactive to the effective date of the new collective-bargaining agree- ment on 1 June 1985, providing, among other things, that members of the Association who had not given the Asso- ciation bargaining rights were not bound by the agree- ment negotiated by the Association. West Side Sports- wear, as the Union knew from November 1984 on, did not grant bargaining rights to Northeast Apparel Asso- ciation. Therefore, by operation of the amendment agreed to on 22 April 1986 by Northeast Apparel Asso- ciation and the Dressmakers' Joint Council (the Union), West Side Sportswear is not bound to the 1985-1988 col- lective-bargaining agreement that the Association negoti- ated with the Dressmakers' Joint Council. As West Side Sportswear is not bound by the multiemployer collec- tive-bargaining agreement, the Union must negotiate with it separately over a new collective-bargaining agreement to supersede the one that expired on 31 May 1985.14 In view of my finding that West Side Sportswear is not bound by the multiemployer collective-bargaining agreement covering the period from 1 June 1985 through 31 May 1988, the issue of deferral to arbitration under the terms of that agreement does not arise. The wage in- crease, which was the subject of the complaint filed by the Union sometime between 2 June 1986 and 15 July 1986, was required by the 1985-1988 agreement. The Union's complaint that West Side Sportswear had re- fused to pay its employees the wage increase was filed with an impartial chairman under the terms of the 1985- 1988 agreement, and the impartial chairman's authority to arbitrate the complaint was derived from the 1985- 1988 agreement. In Olin Corp., 268 NLRB 573 (1984), the Board 15 held, among other requirements, that it will defer to an arbitration award only where "all parties have agreed to be bound." As West Side Sportswear did not agree to be bound by the agreement that provided for the arbitration proceeding for which the Union seeks deferral, the arbi- tration award fails the Olin Corp./Spielberg test, and de- ferral by the Board is inappropriate. CONCLUSIONS OF LAW 1. West Side Sportswear, Inc. (and its predecessor and alter ego, Springfield Sportswear of Pennsylvania, Inc.) are employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Respondent Unions (International Ladies' Gar- ment Workers' Union; Dressmakers' Joint Council; New York Coat, Suit, Dress, Rainwear and Allied Workers Union, ILGWU; Northeast, Western Pennsylvania and Ohio Department, ILGWU; and, Shamokin-Sunbury District Council, Locals 185-306-351, ILGWU) are labor organizations within the meaning of Section 2(5) of the Act. 14 Even if Dorkoski's actions during the negotiation of the new multi- employer agreement are deemed inconsistent with his Company's an- nounced withdrawal from multiemployer bargaining, the Union was well aware that he continued to demand separate negotiations and had with- held bargaining rights from the Association Thus, the Union cannot claim that it was falsely lulled into believing that West Side Sportswear had abandoned its intent to withdraw from multiemployer bargaining and seek separate negotiations is Citing Spielberg Mfg. Co, 112 NLRB 1080 (1955) LADIES GARMENT WORKERS (WEST SIDE SPORTSWEAR) 233 3. At all times material to this proceeding, the Re- spondent Unions have been, and continue to be, the ex- clusive representatives for the purpose of collective bar- gaining, within the meaning of Section 9(a) of the Act, of West Side Sportswear's nonsupervisory production (excluding patternmakers), maintenance, packing, and shipping workers, who constitute a separate unit appro- priate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 4. The Respondent Unions have violated Section 8(b)(3) of the Act by failing and refusing to bargain col- lectively, as the exclusive bargaining representative of West Side Sportswear, on wages, hours, and all other terms and conditions of employment of its employees. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that Respondent Unions en gaged in cer- tain unfair labor practices, I find it appropriate to order Respondent Unions to cease and desist therefrom and to take certain affirmative action to effectuate the policies of the Act. Specifically, Respondent Unions shall cease and desist from refusing to bargain collectively with West Side Sportswear, Inc., on wages, hours, and all other terms and conditions of employment of West Side Sportswear's employees in the appropriate bargaining unit, and, if an understanding is reached, shall embody the understanding in a signed agreement. On the foregoing findings of fact and conclusions of law and on the entire record, and pursuant to Section 10(c) of the Act, I issue the following recommended" ORDER Respondent Unions, International Ladies' Garment Workers' Union; Dressmakers' Joint Council; New York Coat, Suit, Dress, Rainwear and Allied Workers Union, ILGWU; Northeast, Western Pennsylvania and Ohio Department, ILGWU; and Shamokin-Sunbury District Council, Locals 185-306-351, ILGWU, their officers, agents, and representatives, shall 1. Cease and desist from (a) Refusing to bargain collectively with West Side Sportswear, Inc., on wages, hours, and all other terms and conditions of employment of West Side Sportswear's employees in the appropriate bargaining unit. (b) In any like or related manner engaging in conduct in derogation of their statutory duty to bargain in good faith. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request bargain collectively with West Side Sportswear, Inc., on wages, hours, and all other terms and conditions of employment of 'West Side Sportswear's employees in the appropriate bargaining unit and, if an 16 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. understanding is reached, embody the understanding in a signed agreement. (b) Post at the offices and meetings places of the Re- spondent Unions copies of the attached notice marked "Appendix."17 Copies of the notice, on forms provided by the Regional Director for Region 4, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspic- uous places including all places where notices to mem- bers are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Forward to West Side Sportswear, Inc., for posting at its facility, if the Employer is willing, copies of the notice signed by Respondent Unions' representative. (d) Notify the Regional Director for in writing within 20 days from the date of this Order what steps Respond- ent Unions have taken to comply. For the purpose of de- termining or securing compliance with this Order, the Board, or any of its duly authorized representatives, may obtain discovery from the Respondent Unions, their offi- cers, agents, and representatives, or any other person having knowledge concerning any compliance matter, in the manner provided by the Federal Rules of Civil Pro- cedure. Such discovery shall be conducted under the su- pervision of the United States court of appeals enforcing this Order and may be had upon any matter reasonably related to compliance with this Order, as enforced by the court. 17 If 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICES To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT refuse to bargain collectively with West Side Sportswear, Inc, on all issues involving wages, hours, and other terms and conditions of employment af- fecting the employees of West Side Sportswear, Inc., in the appropriate bargaining unit that we represent as ex- clusive bargaining representative. WE WILL, on request by West Side Sportswear, Inc., as the exclusive bargaining representative of all West Side Sportswear's employees in the appropriate bargain- ing unit, bargain collectively on all issues involving wages, hours, and other terms and conditions of employ- 234 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ment, and, if an agreement is reached, embody it in a signed contract. INTERNATIONAL LADIES' GARMENT WORKERS' UNION DRESSMAKERS' JOINT COUNCIL NEW YORK COAT, SUIT, DRESS, RAIN- WEAR AND ALLIED WORKERS UNION, ILGWU NORTHEAST, WESTERN PENNSYLVANIA AND OHIO DEPARTMENT, ILGWU SHAMOKIN-SUNBURY DISTRICT COUNCIL, LOCALS 185-306-351, ILGWU