Acropolis Painting & Decorating

150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Harry T Kalargiros d/b/a Acropolis Painting & Decorating and District Council of Painters No 33, International Brotherhood of Painters and Allied Workers Armando Borges d/b/a Armando Borges Painting and District Council of Painters No 33, Inter- national Brotherhood of Painters and Allied Workers Alois Wurnitsch d/b/a Alois Wurnitsch Painting and Decorating Contractor and District Council of Painters No. 33, International Brotherhood of Painters and Allied Workers Meminger Paint Company, Inc and District Council of Painters No. 33, International Brotherhood of Painters and Allied Workers Cases 32-CA- 5551, 32-CA-5554, 32-CA-5568, and 32-CA- 5570 19 September 1984 DECISION AND ORDER BY MEMBERS ZIMMERMAN, HUNTER, AND DENNIS On 16 March 1984 Administrative Law Judge Jerrold H Shapiro issued the attached decision The General Counsel and the Charging Party filed exceptions and supporting briefs Respondents Ka- largiros, Borges, and Meininger submitted opposing 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,' and conclusions and to adopt the recommended Order For the reasons stated by the judge, we agree that the Respondents timely withdrew from the es- tablished multiemployer bargaining unit Article 25 of the 1980-1983 Joint Agreement provided an agreed-upon means for withdrawing not only from the Agreement itself but also from "any negotia- tions regarding this Agreement" During negotia- tions for the premature extension of the Joint Agreement the Union took the position that any withdrawals must be made prior to the time the parties reached final agreement, the provisions of article 25 notwithstanding The Association assert- ed that article 25 was controlling and refused to ac- quiesce in the Union's position We find that the I The General Counsel and the Charging Party have excepted to some of the judge s credibility findings The Board s established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are Incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Or 1951) We have carefully examined the record and find no basis for reversing the findings unannounced premature commencement of actual negotiations could not foreclose the Respondents from withdrawing in accord with the agreed-upon procedure set forth in article 25 As a result, we find it unnecessary to decide whether the Respond- ents were in fact part of the multiemployer unit ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed DECISION STATEMENT OF THE CASE JERROLD H SHAPIRO, Administrative Law Judge The hearing in this consolidated proceeding took place No- vember 28 and 29, 1983 It is based on separate unfair labor practice charges filed May 31, 1983 by District Council of Painters No 33, International Brotherhood of Painters and Allied Workers (the Union), in Case 32- CA-5551 against Harry T Kalargiros d/b/a Acropolis Painting and Decorating (Respondent Acropolis), in Case 32-CA-5554 against Armando Borges d/b/a Ar- mando Borges Painting (Respondent Borges), in Case 32-CA-5568 against Alois Wurnitsch d/b/a Alois Wur- nitsch Painting and Decorating Contractor (Respondent Wurnitsch), and in Case 32-CA-5570 against Meminger Paint Company, Inc (Respondent Meminger) On August 5, 1983, the General Counsel of the National Labor Relations Board (the Board), through the Board's Regional Director for Region 32, issued a consolidated complaint in these cases 1 The complaint in essence al- leges that during all times material herein Respondents were a part of a multiemployer bargaining unit encom- passed in the collective-bargaining contract between the Union and Painting and Decorating Contractors Associa- tion of Central Coast Counties, Inc (the Association), and that in January 1983 the Respondents, by withdraw- ing from this bargaining unit without the consent of the Union, violated Section 8(a)(5) and (1) of the National Labor Relations Act (the Act) Respondents filed an- swers to the complaint denying the commission of the al- leged unfair labor practice On the entire record, 2 including my observation of the demeanor of the witnesses, and having considered the posthearmg briefs, I make the following FINDINGS OF FACT I THE ALLEGED UNFAIR LABOR PRACTICES A The Evidence The Association is an association of employer-mem- bers who do business as painting contractors in the cen- ' The consolidated complaint Included other cases which were with drawn from the complaint by the Regional Director prior to the start of the hearing in these cases 2 The General Counsel s unopposed motion to correct transcript of hearing is granted 272 NLRB No 37 ACROPOLIS PAINTING 151 tral part of California The Association's executive secre- tary Ted Holmes is its principal official During the time pertinent to these cases, November 1982 through Decem- ber 1982, the Association had approximately 90 employ- er-members who were grouped into three categories active, honorary, and associate Active members are those "whose major activity is the service of painting, wood finishing, paper hanging and decorating Honorary members are retired contractors and associated members are manufacturers and/or suppliers who do business with contractors in the painting and decorating industry Prior to amending its bylaws in 1981 the Asso- ciation had two other categories of members, social and sustaining Social members were retirees and sustaining members were those who were "not signatory to a labor agreement" Respondents were regarded as active mem- bers by the Association's executive secretary, Holmes Article V of the Association's constitution and bylaws provides that lelach member relinquishes to the Asso- ciation the responsibility and right of negotiating with and entering into agreements with labor organizations or entities " Also in 1981 the Association's bylaws were amended to add, among other things, a provision which reads "Active members to be bound by the Peninsula Area Painters and Decorators Joint Agreement July 1, 1980 through June 30, 1983," hereinafter called the 1980- 1983 contract The Union represents employees employed by painting contractors doing business in the central part of Califor- nia 3 The Association, on behalf of its employer-mem- bers, and the Union, on behalf of the employees em- ployed by those employers, have been signatory to a series of collective-bargaining contracts known as the Pe- ninsula Area Painters and Decorators Joint Agreement In 1982 the contract in effect between the Union and the Association was effective by its terms from July 1, 1980, until June 30, 1983, herein called the 1980-1983 contract Article 25 of this contract reads as follows PERIOD OF AGREEMENT Section 1 During the month of January of the year of expiration of this Agreement or during the month of January of the expiration year of any sub- sequent Agreement, any party signatory thereto may give written notice to the Administration Office that said party wishes to withdraw from this Agreement Should such notice be given such party shall no longer be bound to this Agreement as of July 1 of the year this Agreement expires, or as of a subsequent July 1 of the expiration year of any sub- sequent Agreement The Agreement shall continue as to all parties not giving such notice Further, said notice of withdrawal eliminates said party from par- ticipation in any negotiations regarding this Agree- ment The failure of an employer to sign a Shop Card or the failure of an employer to pay Shop 3 The Union, which is comprised of five affiliated local unions, orga nizes employees, negotiates collective bargaining contracts for the em ployees it organizes, and administers those contracts The employees whom It represents participate in its affairs I therefore find that the Union is a labor organization within the meaning of Sec 2(5) of the Act Card Fees shall not release an employer from this Agreement The notice herein provided for is the sole means by which a party may withdraw from or cancel this Agreement , Section 2 This Agreement shall be in full force and effect for a period of three (3) years from July 1, 1980 through June 30, 1983, and remain in full force and effect from year to year thereafter, unless either party hereto shall give notice to the other party, in writing, of their desire to change or revise this Agreement Such written notice shall be presented to the other party not less than one hundred twenty (120) days prior to the renewal date stipulated here- inabove The mention of "Administration Office" in article 25, supra, refers to the Northern California Administration Fund (the Fund), which is an organization comprised of three directors selected by the Association and Union The Fund's function is to assist the Association and the Union in the administration of the 1980-1983 contract Bernadette Koss is the Fund's administrator The collective-bargaining contract currently in effect between the Association and the Union is effective, by its terms, from January 1, 1983, until June 30, 1987 (the 1983-1987 contract) This contract is the successor con- tract to the 1980-1983 contract which was scheduled to terminate June 30, 1983 Historically the Union and As- sociation negotiated their successor contract in the spring of the year in which a contract was scheduled to termi- nate However, the negotiations for the 1983-1987 con- tract began in November 1982 and, in early December 1982, after approximately five negotiation sessions, the parties reached agreement on the terms of the 1983-1987 contract, subject to its ratification by the Association's and Union's membership 4 On December 14, 1982, the Association's membership ratified the contract and on December 28, 1982, it was ratified by the Union's mem- bership During the negotiations resulting in the 1983-1987 contract, the Union's chief negotiator, Assistant Execu- tive Secretary Ken Lorentzen, told the Association's ne- gotiators that, if the parties reached final agreement before an employer-member of the Association exercised his right to withdraw from the contractual unit, the em- ployer would be bound by the agreement reached by the parties Jack Cook, the Association's chief negotiator, re- plied by stating that "Article 25 would be the operative way in which somebody could withdraw" from any agreement reached by the parties Lorentzen disagreed Also in early November 1982 Ken Lorentzen met with the Association's executive secretary Ted Holmes and told him that, prior to the parties reaching final agree- ment, the Union would have to know the names of, the employers who did not want to be bound by the current 4 The Association and Union agreed to these early contract negotia tions and to the resultant premature extension of the 1980-1983 contract because of their desire to grant the employers covered by the 1980-1983 contract economic relief from certain terms of that contract in particular the pay raise scheduled for January 1 1983 This relief was necessitated by the poor state of business in the painting and decorating industry 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD negotiations. Holmes replied by stating that article 25 of the 1980-1983 contract governed the right of an employ- er not to be bound by a contract resulting from the cur- rent negotiations and that if an employer-member of the Association withdrew in January 1983, as provided for in article 25, that the employer would not be bound by the agreement reached by the Association and Union. On December 7, 1982, at a meeting of the Associa- tion's employer-members, it was decided to hold a meet- ing of the Association's membership on December 14, 1982, to ratify the agreement reached early in December 1982 between the Association's and the Union's negotia- tors. 5 During the December 7 meeting the Association's chief negotiator, Jack Cook, stated that the Union during the negotiations had taken the position that the employ- er-members of the Association who did not want to be bound by the terms of the agreement reached by the Union and Association had to submit letters of with- drawal in December 1982. Cook indicated that he, Cook, agreed with the Union's position (Tr. 415, 446). Holmes stated that he disagreed with the Union's position and that in his opinion if members of the Association fol- lowed article 25 of the 1980-1983 contract and sent in their withdrawal notices in January 1983 that the em- ployers would not be bound by the agreement reached by the parties. Immediately after the December 7, 1982 meeting the Association mailed a "Bulletin" to its members under Cook's signature. 6 The text of the bulletin was drafted by Holmes who signed Cook's name to it. It notified the Association's members that a meeting to ratify the memorandum of agreement reached by the Association and the Union would be held December 14, 1982, and that the agreement, if ratified, would be effective Janu- ary 1, 1983. It also informed the members: Any employer member not wishing to be bound by this agreement, if ratified, must notify the Chapter Office, District Council No. 33 and the Administra- tive Fund Office. If such notice is given, the em- ployer would remain bound to the current agree- ment through at least June 30, 1983. In order for such member of the Association to prevent the con- tract from rolling over for a year pursuant to Sec- tion 2 of Article 25, the employer must give a clear and timely withdrawal from the agreement in Janu- ary, 1983. As I have indicated supra, the Association and Union delegated the authority to the Fund to assist them in the administration of the 1980- 1983 and 1983-1987 contracts. In fact article 25 of these contracts, as described supra, provides that the Employers' withdrawal letters be sent to the Fund's office. The Fund's administrator, Berna- dette Koss, received inquiries from Association members about the proper time to send such withdrawal letters. In 5 None of the Respondents were present at either the December 7, 1982, or December 14, 1982 Association meetings. 6 Respondent Acropolis was not sent a copy of this bulletin, whereas Respondents Meminger and Wurnitsch were sent copies The Associa- tion's executive secretary Holmes was not sure whether or not Respond- ent Borges was sent a copy of the bulletin response, prior to December 8, 1982, Koss told them that the proper time to withdraw from the Associationwide unit was in January 1983 and instructed them to send their letters of withdrawal to the Fund's office in Janu- ary 1983 as called for by article 25. On December 8, 1982, two of these employers phoned Koss and told her that they had learned at the Association's meeting of De- cember 7, 1982, that someone stated that, if an employer wanted to withdraw from the Associationwide unit, the employer would have to send a letter of withdrawal to the Fund's office immediately. Koss stated that she would check into the matter. She went downstairs to the offices of the Union and spoke to the Union's executive secretary, Tim Kelly, and his assistant, Ken Lorentzen, and asked whether the Association was now agreeing with the Union's position that in order to withdraw from the Associationwide unit an employer had to submit a letter of withdrawal immediately, before the parties reached agreement on the new contract. Lorentzen stated that he did not know whether the Association had changed its position. At this point, according to Koss, she telephoned the Association's executive secretary, Ted Holmes, with Lorentzen listening on an extension telephone. Koss' account of the conversation is as fol- lows. Koss told Holmes about the two phone calls she had received that day and asked whether at the Associa- tion meeting the night before that it had been stated that in order to withdraw from the Associationwide unit and not be bound by any new agreement reached by the Union and Association that an employer, besides sending the January 1983 letter called for in article 25 in the 1980-1983 contract, would also have to send a letter of withdrawal to the Fund in December 1982. Holmes answered,"Yes." Koss then asked whether this was the information that she was supposed to give the Associa- tion's members. In response both Holmes and Lorentzen answered in the affirmative. I reject Koss' above-described testimony that on De- cember 8, 1982, Holmes agreed that she should tell the Association members that in order for them not to be bound by any new agreement reached by the parties that they would have to send in their letters of withdrawal immediately, prior to the negotiation of the new agree- ment. My reasons for rejecting this testimony are as fol- lows. Holmes denied having this conversation with Koss. Lorentzen, a witness for the General Counsel, failed to corroborated Koss' testimony. As a matter of fact Lor- entzen's testimony was that the Association never, as far as he knew, expressed agreement with the Union's posi- tion that the Employers had to send in withdrawal let- ters in December 1982 prior to the consummation of the new agreement if they wanted to avoid being bound by the terms of the new agreement. Lastly, Koss' testimony is inherently implausible because it is undisputed that at all times before and after Holmes' alleged December 8, 1982 conversation with Koss and Lorentzen, that Holmes adamantly expressed the view to the Union, to Koss, and to the Association's membership, that the Em- ployers would not be bound by any agreement reached by the parties if they submitted letters of withdrawal in ACROPOLIS PAINTING 153 January 1983, as called for in article 25 of the 1980-1983 contract During the Association's December 14, 1982 meeting where the 1983-1987 contract was ratified, 7 the chair- man of the Association's negotiating committee, Jack Cook, told the members that the Union had taken the position that if employers did not want to be bound by the terms of the contract they should withdraw as soon as possible The Association's executive secretary, Ted Holmes, indicated he disagreed with the Union's position and told the members that if they withdrew in January 1983 that they would not be obligated to abide by the terms of the 1983-1987 contract On December 28, 1982, as indicated supra, the Union's membership ratified the 1983-1987 contract The Union signed the contract and presented it to the Association for its signature When the Association failed to sign the contract the Union's executive secretary on January 18, 1983, wrote the Association's president requesting that the Association sign the 1983-1987 contract by the end of that week With respect to the right of the Associa- tion's member-employers to withdraw from the unit and therefore not be bound by the terms of the contract, the Union's January 18 letter stated Mr Jack Cook has informed the Administrative Office [not ours] that the Agreement will not be signed due to a dispute regarding withdrawals There can be no denying that the items contained in the agreement were negotiated and approved by your Association Any dispute of items not con- tained in the Agreement are separate issues and must be handled separately The Association's attorney, by letter dated January 24, 1983, responded to the Union's January 18, 1983 request that the Association sign the 1983-1987 contract, as fol- lows The [Association] through their authorized execu- tive committee has requested that I write to you confirming that they do intend and will sign the ne- gotiated Extension and Modification Agreement on February 1, 1983 The reason for the delay is the provisions of Article 25, Section 1 of their Joint Agreement I see no prejudice to the Union by this short delay but my clients may suffer considerable prejudice if they execute this Agreement prior to the time period set forth in Article 25, Section 1 for any members to withdraw In January 1983 approximately 20 employer-members of the Association, including the Respondents, sent let- ters of withdrawal to the Fund and/or the Union pursu- ant to article 25 of the 1980-1983 contract in an effort to avoid being bound by the terms of the recently negotiat- ed 1983-1987 contract Article 1 of the 1980-1983 and 1983-1987 contracts provide, in pertinent part, that "this agreement is made and entered into by and between the [Union] and the [Association] for and on behalf of its present and 7 None of the Respondents were present at this meeting future members, as well as firms who have executed written authorizations for the Association to represent them in labor relations matters of which a list is attached hereto as Exhibit 1 " Early in February 1983 when the Association executed the 1983-1987 contract its exec- utive secretary, Holmes, transmitted to the Union a signed copy of the contract with a letter signed by Holmes which listed 55 employers and which stated "Attached hereto as Exhibit 1 is a list of Employers for whom the [Association] negotiated the amendment to the Peninsula Area Painters and Decorators Joint Agreement January 1, 1983 through June 30, 1987 as provided for in Article 1 of the current Joint Agreement" Not included in this list of 55 employers were the approximately 20 employers, including the Respondents, who in January 1983 transmitted withdrawal letters to the Fund and/or the Union Thereafter, on February 3, 1983, the Union's executive secretary wrote each of these approximately 20 employers, including the Respondents, that their letters withdrawing from the multiemployer bargaining unit were untimely and that they were obligated to abide by the terms of the 1983-1987 contract The Association re- sponded by promptly issuing a "labor bulletin" notifying its membership that as far as the Association was con- cerned these approximately 20 employers were not obli- gated to abide by the terms of the 1983-1987 contract because they had submitted letters of withdrawal in Jan- uary 1983 pursuant to article 25 of the 1980-1983 con- tract Alois Wurnitsch owns and operates Respondent Wur- nitsch as a sole proprietorship Since Wurnitsch com- menced doing business as a painting contractor in 1978 he has not employed a single employee and does not intend to employ any in the future When Wurnitsch began his business in 1978 he applied for Association membership and the Association accepted his applica- tion In signing the Association's membership application Wurnitsch agreed that if accepted as a member he would conform to and abide by the Association's bylaws, rules, and agreements then in effect or those which might thereafter be adopted by the Association There is no evidence that Wurnitsch attempted to withdraw his membership from the Association prior to the events ma- terial to this case Respondent Meininger, a painting contractor which does business as a corporation, only rarely employs em- ployees Since 1976 it has only employed three employ- ees two in 1976 and one in the summer of 1981 for a short period of time Its sole employee is usually Peter Meininger, its president Respondent Meminger became a member of the Association in either 1973 or 1974 and since then until May 29, 1980, regularly paid its Associa- tion membership dues 8 There is no evidence that prior 8 On July 1,1980, the Association discontinued its past system of mem bership dues payments whereby the payments were made directly to the Association by the respective members Instead as called for by art 4A of the 1980-1983 contract, the Association now required that its employ er members pay the Fund so much per hour for each employee and re quires that those employer members whose employees worked less than 150 hours a month pay a minimum monthly service fee of $30 to the Fund which in turn pays $20 of this to the Association Respondent Continued 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to January 1983 that Respondent Meininger attempted to withdraw from .membership in the Association. Armando Borges •owns and operates Respondent Borges as a sole proprietorship. Since Borges began doing business as a painting 'contractor in 1969 he has employed only four employees for short periods of time, three in 1974-1975 and one in 1979. He has no Intent of hiring employees in the future. Borges signed a collec- tive-bargaining contract with the Union in 1969 and ap- proximately every 3 years signed succeeding contracts with the Union. The last one he signed was in 1980.9 Borges applied for Association membership in June 1979 and the, Association accepted his application In signing the Association's membership application Borges agreed that if accepted that he would conform to and abide by the Association's bylaws, rules, and agreements then in effect or those which might thereafter be adopted by the Association. There is no evidence that Borges attempted to withdraw his membership from the Association prior to the events material to this case. However, in about May 1982 Borges ceased making the required member- ship payments, described supra, to ,the,Fund. Harry Kalargiros owns and operates Respondent Acropolis as a sole proprietorship Since Acropolis under Kalargiros' ownership began doing business as a painting contractor in 1971, he has only employed employees in 4 of the 12 years he has been in business and then only for short periods of time. The last time he employed em- ployees was in 1981, when in March he employed two painters for less than 1 month and in November when he employed one painter for 2-1/2 weeks. Kalargiros ap- plied for Association membership in August 1974 and his application was accepted. In signing the Association's membership application Kalargiros, on behalf of Re- spondent Acropolis, agreed that if, accepted into mem- bership Acropolis would conform to and abide by the Association's bylaws, rules, and agreements then in effect or those which might thereafter be adopted by the Asso- ciation. In May 1982 Kalargiros told the Association's executive secretary, Holmes, that because business was bad, Acropolis did not want to be an ,Association member any longer. As a matter of fact Acropolis earlier had ceased paying the required membership payments, described supra, to the Fund. B The Questions Presented The essential questions presented are whether at the time of the alleged unfair labor practices the Respond- ents were a part of the multiemployer bargaining unit represented by the Association and, if they were a part of that unit, whether their January 1983 letters of with- drawal effectively withdrew them from the unit so they were not bound by the 1983-1987 contract. C. Applicable Principles A multiemployer bargaining relationship is established when employers manifest an unequivocal intention to be Menunger subsequent to its May 29, 1980 dues payment, which covered the period from June 30, 1979, through June 30, 1980, did not make the aforesaid payments to the Fund 9 Based on the undemed testimony of Armando Borges bound by group bargaining and the union assents and enters into negotiations with the group as a unit. NLRB v. Hart, 45F.2d 215,217 (9th Cir. 1971); NLRB v. Beck- hdm, 564 F.2d 190,192 (5thc Cir. 1977). An employer in- dic'ates -the unequivocal intention to be bbund"by the re- suits of group bargaining if he gives a tnultiemployer as- sociation either actual or apparent authority to negotiate and execute on his behalf with the union -'as a part of the multiemployer unit. NLRB v. Beckham, 564 F.2i1 190, 194 (5th Cir. '1977); NLRB v.' Johnson Sheet Metal, 442 F.2d 1056, 1060 (10th Cir. 1971). Since 'multiemployer bargaining is consensual in nature it is settled that "the essential element warranting the establiihment of multi- emplOyer units is clear evidence that the emPloyers un- equivocally intend to be bound in collective-bargaining by 'group rather than by individual action" (Ruan Trans- port Corp., 234 NLRB 241, 242 (1978)), and in determin- ing whether there is such evidence "[t]he ultimate ques- tion . . . is the actu'al intent of the parties." Van Eerden Co., 154 NLRB 496, 499 (1965). An employer who has bound himself to honor the re- sults of multiemployer bargaining violates Section 8(a)(5) and (1) of the Act if his withdrawal from the multiem- ployer unit is untimely and there is no "unusual circum- stances" or mutual acquiescence. Teamsters Local 378 (Olympia Automo,bile), 243 NLRB 1086 fn. 1 (1979) 50 In Retail Associates, 126 NLRB 388 (1958), the Board sought to provide guidance to the participants in multi- employer bargaining and announced ground rules for withdrawal that it intended to apply to future cases. Under these rules, an employer or union is free to with- draw from the multiemployer unit if it gives "adequate written notice" . . prior to the date set by the con- tract for • modification, or to the agreed-upon date to begin the- multi-employer negotiations" and, in those cases where multiemployer negotiations have begun, the Board stated it "would not permit, except on mutual consent, an abandonment of the unit upon which each side-las committed itself to the other, absent unusual cir- cumstances." Retail Associates, 120 NLRB 388, 395 (19585. The Board limits the "unusual circumstances" ex- ception to situations in which withdrawals of parties from the unit have "substantially fragmented" the unit, leaving it no longer viable, or to situations involving ex- treme financial pressures, such as an individual's impend- ing bankruptcy. Bonanno Linen Service v. NLRB, 454 U.S. 404, 411 (1982). D. Discussion and Ultimate Findings The consolidated complaint alleges that Respondents were represented by the ikssociation as a part of the mul- tiemployer bargaining unit encompassed by the 1980- 1983 contract between the Association and the Union 10 Respondents Borges and Meminger argue that the act of untimely withdrawal from a multiemployer bargaining unit should not by itself, as alleged in the complaint herein, be a violation of Sec 8(a)(5) and (I) of the Act and urge that the Board overrule its Olympia Automobile deci- sion I have not considered this argument because, as an administrative law judge, I must follow the Board's decisions " An employer's notice is considered "adequate" only if the employer gives the union clear unconditional and unequivocal notice of the with- drawal NLRB v Collier, 630 F 2d 595, 598 (8th Cir. 1980) ACROPOLIS PAINTING 155 and that they violated Section 8(a)(5) and (1) of the Act by withdrawing from the unit in January 1983 without the Union's consent I am of the opinion that the com- plaint must be dismissed in its entirety because the Gen- eral Counsel has failed to establish that Respondents were a part of the multiemployer bargaining unit at the time they committed the alleged unfair labor practices, and because, even if they were a part of that unit, the Respondents' January 1983 withdrawals were effective My reasons for this opinion are as follows If the Respondents at the time of the alleged unfair labor practices were not a part of the multiemployer bar- gaining unit represented by the Association, the Board has no jurisdiction over their alleged unfair labor prac- tices because it is undisputed that Respondents' business operations do not satisfy the Board's standards for the as- sertion of jurisdiction However, the record reveals that at least one of the employers represented by the Associa- tion as a part of the multiemployer unit is an employer engaged in commerce and meets the Board's applicable discretionary jurisdictional standards 12 Accordingly, if the Respondents were a part of the multiemployer bar- gaining unit, the Board has jurisdiction over their alleged unfair labor practices See B ci M Excavating, 155 NLRB 1153-1154 (1965), and Electrical Workers IBEW Local 3 (Ladd Electric Corp), 158 NLRB 410,411 (1966) The General Counsel contends that each Respondent was a part of the multiemployer bargaining unit encom- passed by the 1980-1983 contract between the Associa- tion and the Union because each Respondent was a member of the Association and the Association's consti- tution and bylaws provide that "each member relin- quishes to the Association the responsibility and right of negotiating with or entering into agreements with labor organizations" and that "active members" are bound by the 1980-1983 contract, Respondents Wurnitsch, Borges, and Acropolis, when they applied for Association mem- bership, agreed in writing that, if accepted, they would conform to and abide by the Association's bylaws and rules, by submitting their January 1983 letters of with- drawal, pursuant to article 25 of the 1980-1983 contract, the Respondents acknowledged that they were bound by that contract, and, by stating in his withdrawal letter that he was revoking the Association's authorization to nego- tiate on his behalf, Respondent Men-linger acknowledged that he had previously delegated to the Association the authority to negotiate on his behalf as a part of the multi- employer bargaining unit I am not persuaded, for the reasons set forth herein- after, that the above-described factors relied on by the General Counsel constitute "clear evidence that the [Re- spondents] unequivocally intended to be bound in collec- tive bargaining by group rather than by individual action" Ruan Transport Corp, 234 NLRB 241, 242 (1978) There is no evidence that the Respondents knew that because of a provision or provisions in the Associa- tion's constitution and bylaws that, by virtue of their 12 During its fiscal year ending June 30, 1983, A & B Painting & Drywall, a member of the Association, received gross revenues totaling over $7 million and purchased and received $100,000 worth of goods and materials directly from outside the State of California membership in the Association, they had relinquished to the Association the right to engage and enter into collec- tive-bargaining contracts with the Union or were a part of the Associationwide multiemployer bargaining unit herein 13 Nor does the record establish that, after joining the Association, Respondents engaged in conduct which would warrant an inference that in joining the Associa- tion they intended to become a part of the multiemploy- er bargaining unit represented by the Association or that the Union had reason to believe that this was the case 14 As a matter of fact Respondent Borges' conduct of personally executing his individual contract with the Union even after he joined the Association is evidence that Borges did not intend to be bound by group bar- gaining The fact that in January 1983, pursuant to arti- cle 25 of the 1980-1983 contract, Respondent Borges and the other Respondents submitted withdrawal letters does not constitute an admission that they were a part of the multiemployer bargaining unit It is just as reasonable to infer from this conduct that Respondents thought they were bound to the 1980-1983 contract as individual em- ployers as it is to infer that they thought they were bound as members of the multiemployer unit Likewise equivocal is Respondent Meminger's statement in his letter of withdrawal that he was withdrawing the Asso- ciation's authority to negotiate on his behalf It is just as reasonable to infer that the basis for this statement was Meminger's belief that the Association had the authority to negotiate for him as an individual employer rather than as a part of a multiemployer bargaining unit It is for the foregoing reasons that I have concluded that the General Counsel has failed to establish by a pre- ponderance of the evidence that the Respondents un- equivocally intended to be represented by the Associa- tion as a part of the multiemployer bargaining unit en- compassed by the 1980-1983 contract I therefore find that the General Counsel has failed to establish that when the alleged unfair labor practices occurred that the " Union de Tronquistas de Puerto Rico Local 901, 240 NLRB 925 (1971) cited by the General Counsel is distinguishable from the instant case in significant respects There the respondent employer when It joined the employer association signed an oath which specifically author ized the association to discuss and sign collective bargaining agreements binding on the membership with' labor unions Here Respondents simply promised to abide by the Association s constitution and bylaws There is no evidence that Respondents were ever presented with a copy of the constitution and bylaws or were otherwise informed of its contents 14 Crane Sheet Metal, 248 NLRB 75 (1980), is distinguishable from the instant case in significant respects There the Board held that the re spondent employers were bound by the results of group bargaining be cause they had given an association the apparent authority to negotiate on their behalf as a part of the multiemployer unit and the union was entitled to rely on this apparent grant of authority Essential to this find mg was the fact that the association informed the union that the respond ent employers were association members and that the association was ne gotiating on their behalf in the multiemployer negotiations Here there is no evidence that the Union was ever informed that Respondents were members of the Association or that the Association was negotiating for them in the multiemployer negotiations Quite the opposite the record shows that in the negotiations for the 1983-1987 contract the Association did not give the Union the names of the employer members for whom it was negotiating and who would be bound by that contract, but Instead took the position that it would furnish this information to the Union only after its employer members had been afforded an opportunity under the 1980-1983 contract to withdraw in January 1983 from the multiemployer bargaining unit 156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondents were a part of the multiemployer ,bargain- ing unit Assuming I have erred and that some or all of the Re- spondents were a part of the multiemployer bargaining unit represented; by the Association, I am still of the opinion that the complaint must be dismissed in its en- tirety because Respondents' January 1983 withdrawals effectively terminated their bargaining obligation as members of the multiemployer unit My reasons for this opinion are as follows As I have found supra, in January 1983 the Union re- ceived letters of withdrawal from each of the Respond- ents Respondent Borges wrote "Pursuant to Article 25, Section 1 of the [1980-1983 contract] this letter consti- tutes notice of withdrawal from, and cancellation of, the Joint Agreement upon its expiration on June 30, 1983" and "notice that [Respondent Borges] does not intend to be a signatory or otherwise bound to any subsequent Joint agreement " 15 Respondent Acropolis wrote "[I]n accordance with Article 25 of the Agreement currently enforced, this letter will serve as notice that I wish to withdraw from the Agreement," and "as stipulated there- in, I understand that I am bound by the terms of the Agreement until its expiration on July 1, 1983 " Re- spondent Meininger's president, Peter Meimnger, wrote "I have revoked authorization of the [Association] to ne- gotiate on my behalf" and "this letter is to serve as my notice of withdrawal from the [1980-1983 contract] and from any extensions, modifications, or renewals there- to "16 Respondent Wurnitsch wrote "I notify you that I wish to withdraw my membership from the Paint- ing & Decorating Contractors as of June 30, 1983 "17 On February 3, 1983, as indicated supra, the Union re- sponded to the Respondents' January 1983 letters of withdrawal by sending them separate but identical letters which, in pertinent part, read as follows The letter that you sent to [the Union] in January of 1983 was untimely and did not serve to remove you from the negotiations which took place in Decem- ber of 1982 These negotiations were entered into on your behalf prior to your pulling out of these ne- gotiations or attempt to pull out of these negotia- tions Therefore, it is our position that you are bound to the results of a multi-employer bargaining between [the Union] and your representative, [the Associa- tion] It is clear from the Union's February 3, 1983 reply that the Union understood that in sending their January 1983 letters of withdrawal, that it was the Respondents' intent 15 The letter also states that it does not constitute an admission that Respondent Borges was obligated to abide by the terms of the 1980-1983 contract " Late in October 1982 Peter Meminger spoke to Bernadette Koss, the Fund's administrator, and explained that he had been informed that if he wanted to withdraw from the Union" that he had better do It in a timely manner and asked Koss for the agreement's rules governing with drawal Koss answered by telling him that he should submit his letter of withdrawal in January 1983 ' 7 Respondent Wurnitsch testified in effect that in writing this letter that he relied on art 25, sec 1 of the 1980-1983 contract to withdraw from the Association multiemployer bar- gaining unit so that they would not be bound by the terms of the 1983-1987 contract, and that the Union treated the Respondents' letters of withdrawal as if this was what they said Under these circumstances, despite the ambiguity of some of the Respondents' letters of withdrawal, I am persuaded that each of these letters gave the Union clear and unequivocal notice of the Re- spondents' intent to withdraw from the multiemployer bargaining unit so as not to be bound by the terms of the 1983-1987 contract See S Freedman Electric, 256 NLRB 432, 435 (1981) I am also persuaded for the reasons set forth herein- after that assuming Respondents were a part of a multi- employer unit when they submitted their January 1983 letters of withdrawal that these letters of withdrawal ef- fectively withdrew them from that unit This is so be- cause article 25 of the 1980-1983 contract, described in detail supra, provided that if in January 1983 an employ- er submitted written notice to the Fund , thatit wished to withdraw from the contract that this notice not only pre- vented the contract from rolling over for another year but "eliminate[d] said [employer] from participation in any negotiations regarding this Agreement" In other words by virtue of this provision the Association and Union agreed that an employer would no longer be a part of the Associationwide multiemployer bargaining unit for purposes of the negotiations for a successor con- tract to the 1980-1983 contract if the employer in Janu- ary 1983 submitted a written notice to the Fund that it wished to withdraw from the 1980-1983 contract And during the negotiations which resulted in the premature extension of a 1980-1983 contract, the 1983-1987 con- tract, the Association, as described in detail supra, took the position that the employers, who as members of the Association were bound to the 1980-1983 contract, could withdraw from the Associationwide multiemployer unit by submitting a withdrawal letter in January 1983, as called for by article 25 of the 1980-1983 contract, and that if they submitted this withdrawal letter they would not be bound by the parties premature extension of the 1980-1983 contract 18 Indeed contrary to its past prac- tice the Association during the negotiations of the 1983- 1987 contract did not furnish to the Union the names of the employer members for whom it was negotiating a premature extension of the 1980-1983 contract and who 18 In so concluding I have taken into account the fact that the Asso elation s chief negotiator, Jack Cook, told several members of the Asso elation at the December 7 1982 membership meeting that he agreed with the Union s position that those employers who did not want to be bound by the terms of the 1983-1987 contract would have to submit their with drawal letters in December 1982, rather than in January 1983 It is clear however that Cook s personal opinion on this subject differed from the Association s position This is established by Cook s statement made to the Union s negotiators during the negotiations the several statements made by the Association s executive secretary, Holmes, to the Union and to the members of the Association, and the January 24, 1983 statement of position on the subject sent on behalf of the Association to the Union by the Association s lawyer Lastly I note that the Union s principal negotia- tor, Ken Lorentzen, testified that the Association never agreed with the Union s position that employers had to submit their withdrawal letters in December 1982, rather than in January 1983, if they wanted to avoid being bound by the terms of the premature extension of the 1980-1983 contract ACROPOLIS PAINTING 157 would be bound by the terms of that extension, but in- stead took the position that it would furnish this informa- tion to the Union only after the Association's member- ship was afforded the opportunity under the 1980-1983 contract to withdraw in January 1983 from the multiem- ployer unit All of the foregoing circumstances persuade me that the Respondents by virtue of their January 1983 letters of withdrawal effectively withdrew from the mul- tiemployer unit and were therefore not bound by the terms of the 1983-1987 contract, the premature extension of the 1980-1983 contract For me to hold otherwise would not effectuate the policies of the Act because the Union and Association by their conduct of including arti- cle 25 in the 1980-1983 contract consented to the Re- spondents' January 1983 withdrawals and led them to be- lieve they could withdraw from the unit at that time, and the Association in negotiating the premature extension of the 1980-1983 contract refused to agree to the Union's proposal that article 25 of the contract be abrogated in- sofar as it permitted withdrawals from the multiemployer unit in January 1983 Based on the foregoing, I find that at the time of the alleged unfair labor practices the Respondents were not a part of the multiemployer unit represented by the Asso- ciation and, assuming they were a part of that unit, that their January 1983 letters of withdrawal effectively with- drew them from the unit so that they were not obligated to abide by the terms of the 1983-1987 contract I there- fore shall recommend that the complaint be dismissed in its entirety On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed" ORDER The consolidated complaint is dismissed in its entirety 15 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