Detroit Window Cleaners Union, Local 139, etc.

National Labor Relations Board - Board Decisions

Jan 12, 1960

126 N.L.R.B. 63 (N.L.R.B. 1960)

DETROIT WINDOW CLEANERS UNION, LOCAL 139, ETC 63
of Port Arthur, Texas, and Lake Charles, Louisiana, including masters
and chief engineers,6 but excluding all supervisors As defined in the
Act
[Text of Direction of Election omitted from publication ]
6 The record does not show that the masters and chief engineers actually possess
supervisory authority as defined in the Act
Detroit Window Cleaners Union , Local 139 of the Building Serv-
ice Employees' International Union, AFL-CIO and Daelyte
Service Company. Case No 7-CB-384 January 12, 1960
DECISION AND ORDER
On March 13, 1959, Trial Exam ner Eugene F, Frey issued his
Intermediate Report in_ the above-entitled proceeding, finding that
the Respondent had not engaged in certain unfair labor practices as
alleged in the complaint and recommending that the complaint be
dismissed, as set forth in the copy of the Intermediate Report at-
tached hereto Thereafter, the General Counsel and the Respondent
.filed exceptions to the Intermediate Report and supporting briefs
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed The
rulings are hereby affirmed The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, to the extent consistent with our
decision set forth below
We agree with the Trial Examiner that the Respondent did not
refuse to bargain with Daelyte Service Company, the Charging Party
herein, in violation of Section 8(b) (3) and (1) (AY of the Act, by
insisting that Daelyte sign the agreement which the Respondent
negotiated with the Association
For many years, the Respondent has bargained on a multiemployer
basis with the Association which has represented its member-
employers, including Daelyte As a result of such negotiations, sepa-
rate successive contracts were executed by the Respondent and the
Association and its individual members. In November 1956, about 2
months before the expiration of the 1955 agreement, Daelyte resigned
from the Association However, neither Daelyte nor the Association
notified the Respondent of the resignation until June 15, 1957
In the meantime, pursuant to tunely notice to reopen the 1955
agreement given by the Respondent in February 1957, the Association
and the Respondent instituted negotiations for a new contract After
126 NLRB No. 18
64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a number of meetings, the parties reached agreement on May 14, 1957.
Although Daelyte did not participate in these negotiations, it kept
itself informed of their progress through members of the Association.
In addition, before the negotiated agreement was reduced to final
printed form, Daelyte requested the Respondent to furnish it with an
advance copy of the agreement which the Respondent did. There-
after, on June 15, 1957, in accordance with past practice, the Re-
spondent submitted to Daelyte printed copies of the agreement for
signature. Daelyte, however, declined to sign the contract because it
regarded the industry promotion fund and performance bond clauses
illegal, although the others terms of the contract were acceptable to it.
At this meeting, Daelyte informed the Respondent for the first time
that it had resigned from the Association and did not consider itself
bound by the Association-negotiated agreement. Thereafter, follow-
ing unsuccessful efforts to persuade Daelyte to sign the agreement,
the Respondent called a strike of the Company's employees on July 2.
Two weeks later the strike was settled with Daelyte signing the con-
tract, reserving, however, the right to submit to the Board the°ques-
tion of the legality of the two disputed clauses.
The complaint, in substance, alleges only that the Respondent un-
lawfully refused to bargain with Daelyte on an individual employer
basis. It does not allege, nor was evidence adduced to show, that the
industry promotion fund and performance bond clauses were unlaw-
ful; indeed, no such contention has ever been in this case. In these
circumstances, we find, as did the Trial Examiner, that the disputed
clauses were proper subjects for collective bargaining, which the
Respondent and the Association were privileged to negotiate into
their contract.'
The General Counsel, contends, however, that the Respondent, whose
good faith is not otherwise impugned, violated its statutory bargaining
obligation, by insisting that Daelyte execute the contract negotiated
with the Association because Daelyte had previously resigned from
that organization. Regardless of Daelyte's resignation as a member
of the Association, we find no merit in the General Counsel's
contention.
As indicated above, Daelyte never gave the Respondent notice that
it had withdrawn from the multiemployer collective-bargaining unit
or resigned from the Association until after contract negotiations had
been concluded. Instead, it stood by while negotiations were being
conducted, keeping informed of the progress of these negotiations,
without giving the Respondent the slightest reason to believe that the
Association was no longer bargaining on its behalf. Indeed, it was
only after negotiations were concluded and after it had received a
requested preliminary copy of the agreement and later a final printed
'Cf. NL.R.B. v. Wooster Division of Borg-Warner Corporation, 356 U.S 342.
DETROIT WINDOW CLEANERS UNION, LOCAL 139, ETC. 65
copy that Daelyte notified the Respondent that it had resigned from
the Association and was therefore not obligated to sign the agree-
ment. Significantly, it asserted this position only because it believed
that the industry promotion fund and performance bond clauses
were "illegal." As found above, however, these clauses are not
unlawful.
In view of all the facts and circumstances in this case, we find that
Daelyte was estopped from requiring the Respondent to bargain with
it on an individual basis concerning the terms of a new , contract and
that the Respondent, therefore, did not refuse to bargain with Daelyte
within the meaning of Section 8(b) (3) and (1) (A) of the Acts
Accordingly, in agreement with the Trial Examiner, we shall dismiss
the complaint in its entirety.
[The Board dismissed the complaint.] -
CHAIRMAN LEEDOM and MEMBER RODGERS took no part in the con-
sideration of the above Decision and Order.
2 In making our determination herein , we do not adopt the Trial Examiner ' s interpreta-
tion of Retail Associates , Inc, 120 NLRB 388 In that case a majority of the Board by
way of dicta set forth certain ground rules which it indicated it would consider in future
appropriate cases Member Jenkins there stated that he considered " it inappropriate to
express . . . a view with respect to ground rules which, in his opinion, are inapplicable
to this case " We also do not adopt the Trial Examiner's interpretation of earlier Board
decisions , regarding the requirement of notice for withdrawal from multiemployer units.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
The issue in this case is, whether Detroit Window Cleaners Union, Local 139 of
the Building Service Employees ' International Union, AFL-CIO, hereafter called
the Union, in the course of bargaining negotiations with Daelyte Service Company,
herein called Daelyte or the Employer, refused to bargain collectively with the
Employer in violation of Section 8(b)(3) of the National Labor Relations Act,
as amended , 61 Stat. 136, herein called the Act , by its insistence that the Employer
sign a collective-bargaining contract containing certain provisions described below.
The issue arises on a complaint issued against the Union on July 24, 1958, by the
General Counsel of the National Labor Relations Board , herein called General
Counsel and the Board , through the Board's Regional Director for the Seventh
Region , on the basis of a charge duly filed by the Employer, and the Union's
answer denying the commission of any unfair labor practices.
Pursuant to notice a hearing was held in Detroit, Michigan , on October 20 and 21,
1958, before the duly designated Trial Examiner, in which all parties except the
Employer participated and were represented by counsel. All parties were afforded
full opportunity to be heard, to examine and cross -examine witnesses , to introduce
evidence bearing on the issues , and to present oral argument and briefs. Oral
argument was waived, but all parties filed written briefs which have been carefully
considered by the Trial Examiner.
Upon the entire record in the case, and from my observation of the witnesses on
the stand, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
The Employer is a Michigan corporation , with its principal office and place of
business located in Detroit , Michigan , where it is engaged in the business of in-
554461=60-vol. 126-6
66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dustrial building maintenance , including window cleaning, painting , building clean-
ing, and janitor service . In the course of its operations , the Employer annually
performs services valued in excess of $ 100,000 for industrial concerns located in
the State of Michigan , each of whom , in turn , annually ships from its Michigan
plants products valued in excess of $50,000 directly to points outside the State of
Michigan . I find that the Employer is and has been engaged in commerce within
the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED , AND ITS AGENTS
The Union is a labor organization within the meaning of Section 2(5) of the Act
which admits to membership employees of the Employer . Bert Palmer and Loren
Hayes were at all times material herein president and business agent , respectively, of
the Union , and were agents of the Union.
III. THE UNFAIR LABOR PRACTICES
A. Sequence of events
All persons employed by the Employer who perform window cleaning work,
excluding office clerical , technical and professional employees , watchmen, and
supervisors , constitute a unit appropriate for purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
At all times material herein , the Union has been designated by a majority of
employees in the unit aforesaid as their representative for purposes of collective
bargaining , and by virtue of Section 9(a) of the Act it has been and now is the
exclusive representative of all employees in said unit for purposes of collective
bargaining with respect to rates of pay, wages, hours of employment, or other
conditions of employment.
For many years Window Cleaning Contractors Association of Detroit , herein
called the Association , has been a voluntary association of window cleaning firms
located in the Detroit area , which has been authorized by its members to negotiate
on their behalf collective -bargaining contracts with the Union and other labor
organizations . The Employer was a member of the Association from its inception
until November 14, 1956 , when it formally resigned from that body. Since that
date the Employer has taken no part in the activities of the Association, including
its negotiations of collective-bargaining contracts with the Union.
At the time of its resignation , the Employer was operating under the terms of
a collective-bargaining agreement executed by the Association for its members on
or about April 15, 1955 , which was due to expire April 15, 1957. After its resigna-
tion , the Employer continued to honor the terms of that agreement , in accordance
with a trade practice of operating under terms of an existing contract until a new
one is negotiated and executed.
On February 15, 1957 , the Union notified all window cleaning companies covered
by the 1955 contract (which included members of the Association and nonmembers
or "independent" employers , including the Employer ) in writing of the expiration
date of that contract , and requested a meeting for negotiation of a new contract.
Shortly thereafter , a bargaining committee of the Association and the Union began
negotiations . By May 9, 1957, they had agreed on most of the substantial terms
of a new contract, including wage rates and other financial provisions , and on that
date the Union sent a letter to the Employer and other "independents ," advising
them of the agreement with the Association on a new 2 -year contract which would
not be available in completed written form for several weeks, and reciting increased
wage rates and other financial provisions , with the effective date of each , contained
in it. The parties did not reach complete agreement on all terms and wording of
the new contract until about May 14. The membership of the Union ratified the
contract in final form on or about May 20, 1957.
The Employer took no part in the negotiations between the Association and
Union , but learned of their progress through informal reports from Association
members.
About the end of May 1957 , all non-Association window cleaning contractors,
including the Employer, received invitations by telephone from the Union to attend
a meeting of Association members with the Union on June 4 , to review and discuss
the final draft of the new contract . The Employer did not attend the meeting. At
that session , the contract was explained in detail to all employers present, and
arrangements were made for printing copies for distribution to all concerns in the
industry , so that absent employers could examine the contract , in preparation for
a later meeting of all employers for formal execution of the contract.
DETROIT WINDOW CLEANERS UNION, LOCAL 139, ETC. 67
On or about June 15, 1957, at the prior request of Horace Boutell, vice president
of the Employer, Hayes brought an advance copy of the contract to the Employer's
office. President Harry Teegarden of the Employer looked it over casually and
told Hayes that he had some doubts about some provisions, but said he would ex-
amine it fully and give Hayes his opinion about it later, after he had discussed it
with his attorney. Teegarden and Boutell then reviewed the contract, and found
no objection to its financial and other provisions, except two new provisions, clause
(5) "Industry Promotion and Improvement Fund," and clause (15) "Guaranty of
Contract Liability."' They consulted counsel who expressed the opinion that these
clauses were illegal, and advised the Employer not to sign any contract containing
them.
A day or so after his first visit, Hayes brought additional printed copies of the
contract to Teegarden, and asked him to sign them. After some discussion of the
contract terms, Teegarden told Hayes that the Employer found all provisions of the
contract acceptable except the clauses quoted above, and that the Employer, on
advice of counsel, would not sign the contract if it contained those clauses, as it
considered them illegal, and that counsel had suggested the Employer take the
question of their legality to the National Labor Relations Board for decision. Hayes
replied that the two clauses would have to remain in the contract, as they had been
negotiated between the contractors' Association and the Union. Teegarden told
Hayes that the Employer was no longer a member of the Association.
On June 19, 1957, Boutell attended a meeting of Association members with Union
Agents Palmer and Hayes, to which nonmember employers had been invited by the
Association. At the meeting, Association members and some nonmember em-
ployers signed the contract, but Boutell and representatives of several other non-
member employers refused to sign it at the time because it contained the two clauses
mentioned above. When Boutell voiced his objection to the union agents, they
stated that they felt the two provisions would not stand in the way of a working
arrangement between the Union and the Employer, but Hayes said both clauses
would have to remain in any contract with the Employer because they were the
result of negotiation with the Association. Boutell told the union agents he knew
the contract had been negotiated with the Association, but the Employer was ob-
jecting to these clauses, not as an Association member, but as a nonmember. He
also told them that, until a new contract was consummated between the Union and
the Employer, the latter would continue to operate under the terms of the expired
contract.
After the June 19 meeting , Rolland O'Hare, counsel for the Union, was authorized
by the Union to discuss the problem further with counsel for the objecting
employers , in an effort to work out a solution. A meeting was held on June 26,
1957, between O'Hare, Guy Bratton, attorney for the Employer, and Harry Davidow,
attorney for Michigan Window Cleaning Company, another "independent" em-
ployer. Davidow and Bratton contended that clauses 5 and 15 were illegal for
several reasons: They argued clause 5 was an illegal invasion of managerial pre-
rogative, and questioned why the clause made no provision for union representation
on the board of trustees managing the fund. O'Hare replied that he had concluded
that "under Section 302 of the Taft-Hartley Act it was perhaps illegal, as we all
know," and he was fearful that direct union participation in management of the
fund might conceivably be considered a violation of Section 302, the antikickback
provision, of the Act, hence he had insisted that the fund be set up under the
sole management of employer trustees. As justification for the Union's insistence
on the clause, O'Hare recited the experience of other unions with similar funds,
which he said had been used by employers in other industries to publicize the use
of their products, resulting in increase in their business and employment of union
labor; he felt that use of a similar fund to publicize the employment of skilled
journeymen window cleaners, as against unskilled labor pulled off the street, would
benefit both the window-cleaning companies and their employees in like manner.
To this argument, Davidow said his client had its own advertising program and
did not need any "industry fund." Bratton took the same position on behalf of
the Employer.2 As to the performance bond requirements of clause 15, both em-
ployer representatives argued it was against public policy, and that their clients had
never been delinquent in meeting their obligations under prior contracts, that both
were financially responsible, hence the bond provisions were an unwarranted burden
1 Copies of these clauses are set forth in Appendix A hereto.
During the discussion, Davidow was the main spokesman for both employers ; Bratton
said little other than to agree with Davidow 's statements , and O 'Hare understood that
Bratton's views coincided with those of Davidow throughout.
68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on them and should be eliminated from their contracts. During the meeting there
was no proposal by either side for changes in the form or wording of either clause.
The meeting ended without any agreement, but with opposing counsel exchanging
threats to file charges with the Board. The parties made no arrangement for future
meetings.
O'Hare reported at once to Hayes on the failure of the above meeting, and the
union executive board on June 26, 1957, ordered that the employees of the Em-
ployer and other contractors who had refused to sign the Association contract, be
called out on strike.
On Friday, June 28, 1957, about 4 p.m., Hayes called the Employer's office in an
effort to get a contract executed before the following Monday, as the union
executive board had insisted that he get a contract signed or call a strike. Neither
Teegarden nor Boutell was available, so Hayes left a message for Teegarden that
the Employer had until 4:30 p.m. to sign the contract at the union office, "or else."
Shortly after, Hayes' secretary called the Employer's office and advised Teegarden's
secretary that the men would strike if the Employer did not come to the union
office and sign the contract. Shortly after 4:30 p.m., Hayes himself called again
and told Teegarden's secretary she had better contact some officer to sign the
contract.
Hayes called the strike at the Employer's plant on July 2. Some employees
stopped work that day, and others followed suit on succeeding days until all were
on strike by July 8 and remained out until July 16. When Teegarden talked to the
union steward, Trink Wells, the day the strike started, the latter replied that the
men would not work unless the Employer signed the contract, as it was against
union rules for them to work in a shop without a signed contract
During the first week of the strike, Teegarden .asked the president of the Associa-
tion to intercede with the Union in an effort to get the employees back to work
while the Employer and the Union negotiated over the disputed clauses. That
official reported back, after talking to union officials , that there was nothing "we"
could do until the Employer signed the contract. During the strike Hayes applied-
further economic pressure on the Employer by warning its employees against per-
forming work other than window cleaning for the Employer. On July 11 or 12,
1957, Hayes advised the Employer that it had better not have any men working,
as they were all on strike. Teegarden at once called Hayes and said he wanted to
discuss the contract and figure out a way to get his men back to work.
On July 15, 1957, Teegarden and Hayes met at the Employer's office. Teegarden
told Hayes that, in order to get the men back to work, and on advice of counsel,
he would sign the contract containing the two disputed clauses under protest, and
would then abide by all terms of the contract except those clauses, but would take
the issue regarding them to the National Labor Relations Board, and would abide
by its decision . Hayes agreed to this procedure, while maintaining both clauses
were legal. Both men then signed the contract, and at the same time signed a
separate document reading as follows:
JULY 15, 1957.
It is expressly understood and agreed that this contract is signed under protest
with specific reference to Paragraphs #5 and # 15, it being our contention that
these provisions are illegal. It is further understood and agreed that the
employer reserves the right to contest the validity of said provisions in the
proper form.
DAELYTE SERVICE COMPANY,
Witness MARY Lou LOHR (Signed) HARRY TEEGARDEN,
President.
Witness ----------------- (Signed) L. HAYES,3
Local 139 Business Agent.
The employees returned to work July 16, with the exception of two or three who
had been out of town and could not be reached by the Union.
Since the execution of the contract, the Employer has complied with all its terms
and provisions retroactively to April 15, 1957, except the two disputed clauses.
B. Contentions of the parties, and concluding findings
It is clear from the above facts, and I find, that in its few discussions with the
Employer before the strike, the Union always insisted that the Employer execute
' Hayes affixed his signature merely as a witness to the signature of Teegarden, and
the latter admits that he did not consider Hayes' signature as an admission of the
illegality of the two clauses
DETROIT WINDOW CLEANERS UNION, LOCAL 139, ETC. 69
only the Association contract containing the disputed clauses, and would not agree
to accept a contract without them, and that it called the strike on July 15, 1957, to
enforce that demand, and maintained it until the Employer capitulated by signing
the contract with those clauses. During its discussions with the Employer, there
was no attempt by the Union to bargain on the subject of those clauses by inviting
or suggesting, or even leaving the door open for suggestions of, substitute provisions
or proposals. At the hearing, Agent Hayes took the position that, once a majority
of the employers had signed the Association contract, the Union would never favor
the Employer as against other contractors by giving it a contract omitting the
disputed clauses; he testified that, at most, the Union might be willing now to let
the Employer change the wording of clauses 5 and 15, "as long as it amounted to
the same thing," but would never agree to let the Employer omit payment of money
into a fund, whatever it is called, or forego the procurement of some type of per-
formance band? Hence, the Union has been at all times adamant in its insistence
on the Employer's acceptance of these clauses, and nothing else. This poses the
basic question whether the Union's adamant insistence on them constituted a refusal
to bargain within the meaning of Section 8(b) (3) of the Act. However, the Union's
brief raises a preliminary question which should be considered first.
1. The effect of the Employer's resignation from the Association
The Union argues that the Employer's resignation from the Association in
November 1956 was not an effective withdrawal from multiemployer bargaining
because of the Employer's failure to give the Union timely and effective notice
thereof, hence the Employer was bound by the 1957 bargaining negotiations between
the Association and the Union, and the contract, which resulted therefrom, and the
Union did not violate the Act by exerting economic pressure to compel the
Employer to sign that contract.
The record shows that although the Employer resigned from the Association on
November 14, 1956, about 3 months before the Union opened negotiations with the
Association for a new contract, the Union never received specific notice of the
resignation from the Employer, either directly or through the Association, until
about June 15, 1957, which was a little over a month after the Association and
Union had reached a meeting of the minds, and about 4 days before they met to
sign the completed contract. General Counsel argues that the withdrawal at this
late date was sincere, unequivocal, permanent, and timely, and hence effective to
withdraw the Employer completely from the multiemployer bargaining unit.
The Board has repeatedly held that withdrawal of a party from a multiemployer
bargaining unit is effective to change the bargaining unit only if the party "unequivo-
cally manifests its intention to withdraw from multiemployer bargaining and to
pursue an individual course of action after proper notice at an appropriate time."
The decision to withdraw must contemplate a sincere abandonment, with relative
permanency, of the multiemployer unit and the embracement of a different course
of bargaining on an individual employer basis .-9
I find from the record, and the Union does not dispute the fact, that , so far as
the Association was concerned, the Employer's withdrawal in 1956 was unequivocal,
in good faith, timely, and permanent.6 The Union argues, however, that the Em-
ployer never gave it timely notice of its intention to withdraw from multiemployer
bargaining, hence the Employer is bound by the Association contract. I find merit
in this contention.
The Employer's withdrawal from the Association was never communicated to
the Union until June 15, 1957, after the 1957 negotiations with the Association were
concluded and only the final step of execution of the contract remained. Prior to
that date, the Union had every reason to believe that the Employer was still in the
multiemployer unit for purposes of collective bargaining. The Employer was one
of the largest companies in the industry, had been a charter member of the Associa-
tion and represented by it throughout its life in collective bargaining with the Union,
and representatives of the Employer had been on the bargaining committee of the
Association during every negotiation up to the 1957 meetings. While a Daelyte
41 do not credit equivocal testimony of the Union's counsel regarding his discussions
with Daelyte counsel during the strike which intimates that the Union was willing to
"go back into negotiations and negotiate from the beginning with you," but was not
willing to consider the Association contract as a "group of proposals," for this testimony
conflicts with Hayes' clear admissions above
5 McAnary & Welter, Inc., 115 NLRB 1029, 1031 ; Retail Associates, Inc., 120 NLRB 388.
6 The Employer's reason for withdrawal is immaterial . See Bearing & Rim Supply
Co, 107 NLRB 101, 103.
70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative was not on that committee during the 1957 negotiations, this wis not
unusual , for not all members of the Association had a representative on the com-
mittee, the composition of which fluctuated from year to year. Hence, mere absence
of a Daelyte representative in 1957 was not a circumstance which of itself could be
expected to warn the Union that the Employer was no longer in the Association.
The Association maintained no written list of its members which was available to,
the public or the Union at any time, so that the Union had no ready way of checking
on the precise employers involved in the multiemployer unit during bargaining
sessions, even if it wanted to do so. In fact, it had no reason to do so in 1957,
for in past negotiations the Association bargaining committee had always contacted
the "independent" employers in an effort to bring them into negotiations personally
or by proxy, and when negotiations were concluded by a contract, that document
had always been presented to the "independents" for their consideration, and they
usually "fell in line" by signing the same contract as the Association; and the record
discloses no unusual circumstances attending the 1957 negotiations, so far as the
Employer's apparent vicarious participation in them is concerned, which would
indicate to the Union that past practices would not prevail. The normalcy of the
negotiations in this respect is highlighted by the contrasting situation involving
Michigan Window Cleaning Company, another "independent." The Union had had
trouble with Michigan in the past, hence it made specific inquiry during the 1957
negotiations about its participation therein, and learned that Michigan had given
the Association written power of attorney to represent it during the negotiations.
In contrast, the Union's relations with the Employer after its withdrawal from the
Association were normal: the Employer continued to honor the Association contract
of 1955, and dealt amicably with the Union on grievances right up to the 1957
negotiations; and during those negotiations Business Agent Hayes visited the Em-
ployer's plant weekly to collect union dues, but was never advised even informally
by employer officials that it was no longer in the Association. Hence, the Union
had no reason to make the same inquiry about the Employer's status vis-a-vis the
long-standing multiemployer unit as it made regarding Michigan.
I am therefore of the opinion that in the circumstances disclosed in this case,
it was the clear duty of the Employer to notify the Union in clear and unequivocal
terms, before the start of the 1957 negotiations, of its prior withdrawal from the
Association nand multiemployer bargaining, and of its intent to divest itself of any
connection with or responsibility for the existing multiemployer bargaining, and to
engage thereafter in individual bargaining with the Union.
The Board has held that withdrawal of an employer from a multiemployer bar-
gaining unit is timely and effective where it occurred substantially before actual
joint negotiation and consummation of a contract involving that unit (Pacific Metals
Company, Ltd., et al., 91 NLRB 696, 699, 700), and even where it took place after
due notice of termination or modification of an existing agreement, or after its
expiration date, or before or during joint negotiation of a new contract. Sullivan
Mining Company, 101 NLRB 1366, 1369; 20th Century Press, 107 NLRB 292, 293;
Stamford Wall Paper, Inc., 92 NLRB 1173, 1175, 1176; Jones & Anderson Logging
Company, Inc., 114 NLRB 1203, 1205; Milk and Ice Cream Dealers of the Greater
Cincinnati , Ohio, Area, etc., 94 NLRB 23, 25; York Transfer & Storage Co., 107
NLRB 139, 141, 142; W. A. Swanson Logging Co., et al., 111 NLRB 495, 496, 497.
On the other hand, the Board has rejected a withdrawal by an employer as untimely
and ineffective when it was attempted at the conclusion of joint negotiations in which
the employer had participated, and only when the completed contract was presented
to him by the union for signature. McAnary & Welter, Inc., supra, at 1032.
Applying the same principle to a labor organization, the Board in Sheet Metal
Workers Union, Local 65, etc. (Inland Steel Products Company), 120 NLRB 1678,
found a union guilty of a refusal to bargain in violation of Section 8(b)(3) of the
Act, where its agent refused to sign an agreement, terms of which had previously
been negotiated and agreed upon by representatives of both employer and union,
and rejected as ineffective the union 's disclaimer of representation of employees in
the unit which was communicated to the employer long after its refusal to sign
the agreement. Although the Board in these cases did not specifically state that
effectiveness of the withdrawal depended on notice thereof to the labor organization
involved , the fact of such notice appears in each, and the Board specifically found
or adverted to that fact, hence it is clear that actual notice to the labor organization
at an appropriate time was an essential element of the Board 's conclusion . See also
Canada Dry Ginger Ale, IncorpoPated, 73 NLRB 460, 463.
The Board has recently restated the principles governing withdrawals from multi-
employer bargaining , and the rationale thereof, in Retail Associates, Inc., supra, as
follows:
DETROIT WINDOW CLEANERS UNION, LOCAL 139, ETC. 71
The right of withdrawal by either a union or employer from a multiemployer
unit has never been held , for Board purposes , to be free and uninhibited, or
exercisable at will or whim . For the Board to tolerate such inconstancy and
uncertainty in the scope of collective -bargaining units would be to neglect its
function in delineating appropriate units under Section 9 , and to ignore the
fundamental purpose of the Act of fostering and maintaining stability in bar-
gaining relationships . Necessarily under the Act , mutiemployer bargaining
units can be accorded the sanction of the Board only insofar as they rest in
principle on a relatively stable foundation . While mutual consent of the union
and employers involved is a basic ingredient supporting the appropriateness
of a multiemployer bargaining unit , the stability requirement of the Act
dictates that reasonable controls limit the parties as to the time and manner
that withdrawal will be permitted from an established multiemployer bargaining
unit. Thus, the Board has repeatedly held over the years that the intention by
a party to withdraw must be unequivocal , and exercised at an appropriate time.
The decision to withdraw must contemplate a sincere abandonment , with rela-
tive permanency , of the multiemployer unit and the embracement of a different
course of bargaining on an individual employer basis. . . .
The Board took occasion in this case to set forth the following "ground rules" for
the future as to withdrawal by any party from multiemployer bargaining to govern
questions of representation in multiemployer units:
Among other things, the timing of an attempted withdrawal from a multi-
employer bargaining unit , as Board cases show, is an important lever of control
in the sound discretion of the Board to ensure stability of such bargaining
relationships . We would accordingly refuse to permit the withdrawal of an
employer or a union from a duly established multiemployer bargaining unit,
except upon adequate written notice given prior to the date set by the contract
for modification , or to the agreed -upon date to begin the multiemployer negotia-
tions. Where actual bargaining negotiations based on the existing multiemployer
unit have begun, we would not permit , except on mutual consent , an abandon-
ment of the unit upon which each side has committed itself to the other, absent
unusual circumstances... .
While I agree with General Counsel that these "ground rules," promulgated in
May 1958, cannot govern the appraisal of the conduct of the Employer during
1956 and 1957 , it is clear that, as the Board states, they rest "upon existing principles
and policies under the Act." In this respect they appear to be a condensation of
the principles stated in the cases cited above. Recognizing this fact, General Counsel
claims that the wording of the "rules" indicate that the Board intended that notice
be given only to the multiemployer association from which an employer sought to
withdraw, and that there is no mandate upon it to give notice of withdrawal to the
labor organization . The argument is, that the Board distinguishes between an
attempted withdrawal prior to the date set for negotiations , where the requirement
is merely one of "adequate written notice" of the withdrawal, without specifying
the exact recipient of the notice, and a withdrawal after joint negotiations have
begun, where withdrawal is not allowed "except on mutual consent "; in the latter
case, "mutual consent" implies notice to the labor organization followed by its
express consent to the withdrawal , but lack of that requirement in the prior instance
indicates that no such notice is required before joint negotiations start . The argu-
ment is fallacious for several reasons. First , it conflicts with the Board decisions
cited above, which appear to be the basis for the new "ground rules." Second,
it improperly equates the obvious necessity for affirmative consent by one party to
a change in the composition of the multiemployer unit , after both parties have
started active negotiations on the basis of that unit and thereby adopted it, with
the clear right of the employer group to change its own composition by unilateral
action before negotiations with the union begin . It ignores the obvious corollary
to that unilateral action , notice thereof to the other party in the coming negotiations,
which both on principle and under the authorities cited above , appears to be a
prerequisite to an effective change in the multiemployer unit . If the "ground rules,"
and the principles on which they are based , are to be construed to permit an employer
at will to withdraw silently from a long-standing multiemployer bargaining unit,
without any notice to the union , the other necessary party to multiemployer bargain-
ing, that party would be compelled during negotiations to deal with an employer
group whose outlines and composition would always be shadowy and fluctuating
due to possible constant changes in its membership "behind the scenes," so to speak.
The union might never know , during or at the conclusion of negotiations , how many
or which of the employees that it represents are covered by the agreement which it
72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
signs, nor which employers it must thereafter approach for individual bargaining.
This would make for uncertainty in the scope of collective-bargaining units which
would tend to create increased and perhaps repetitious negotiations between unions
and employers, with attendant industrial strife and all its unfortunate economic
consequences, which multiemployer bargaining has helped to minimize or elimi-
nate.7 In the Retail Associates case, the Board recognized that employers have a
right to have the integrity of associationwide bargaining preserved against union
disclaimers of representation made for ulterior motives and designed to upset tradi-
tional multiemployer bargaining. By the same token a labor organization which
engages in good faith in multiemployer bargaining has a correlative right to have
the composition of the multiemployer unit with which it deals preserved against
silent and perhaps whimsical changes in its composition by members of that unit.
This can only be done, and the fundamental objective of the Act achieved, if an
employer who desires to withdraw from a traditional multiemployer bargaining
unit is required to give "adequate written notice" of his withdrawal, either directly
or through the employer group, to the union at the time or times stated by the Board
in its "ground rules."
On all of the above facts and authorities, I conclude and find that: (1) The
Employer's withdrawal from the Association in November 1956 was not an effective
abandonment of multiemployer bargaining, such as to relieve it of responsibility
for the results of the 1957 multiemployer bargaining with the Union; (2) it was
therefore bound by the result of that bargaining, so far as its relationships with the
Union were concerned; and (3) its notice of withdrawal to the Union on June 15,
1957, was too late and ineffective. It follows that the Union did not fail or refuse
to bargain in good faith by its insistence that the Employer sign the contract
which resulted from multiemployer bargaining, or by its institution of a strike of
the Employer's employees thereafter to enforce that demand. I therefore conclude
that the Union did not violate Section 8(b),(1) (A) and 8(b)(3) of the Act by its
conduct.
The record shows that both Association and Union bargained over the subject
matter of clauses 5 and 15 which were proposed by the Union 8 and such bargaining
resulted in their inclusion in the contract of June 19, 1957. Both parties thus treated
the union demands embodied in those clauses as a bargainable issue, and as the
Employer has not effectively relieved itself from responsibility for the results
of the negotiations, it follows that General Counsel's claim that both clauses fall
outside the scope of mandatory bargaining must be rejected. Cf. Economy Stores,
Incorporated, 120 NLRB 1.
On the entire record in the case, and for the above reasons, I shall recommend
that the complaint herein be dismissed:
Upon the basis of the foregoing findings of fact, and on the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. The operations of the Employer described herein affect commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of
the Act.
3. The Union has not engaged in any unfair labor practices as alleged in the
complaint within the meaning of Section 8(b)(1)(A) and 8(b)(3) of the Act.
[Recommendations omitted from publication ]
7 See remarks of the United States Supreme Court in N L R B. v. Truck Drivers Local
Union No 449 (Buffalo Linen Supply Co.), 353 U S. 87, 94-96
9 The Union proposed the performance bond clause on the basis of past experience with
some window-cleaning companies which had defaulted on their obligations under prior
Association contracts, and the promotional fund provision on the basis of alleged use of
similar funds in other industries which had proven beneficial to both employers and
employees.
APPENDIX A
(5) INDUSTRY PROMOTION AND IMPROVEMENT FUND
The parties to this Agreement agree that the window cleaning industry can do
much to promote and better itself. Considerable work is'being done in the Detroit
and Wayne County area by persons and firms that do not have professional window
cleaning training and experience.' The inferior work'done by these firms reflects on
the entire window cleaning industry and has in the past prevented the industry from
DETROIT WINDOW CLEANERS UNION, LOCAL 139, ETC. 73
taking its place as a user of skilled workers and producer of professional window
cleaning. To further the legitimate aims of promoting and improving the window
cleaning industry, the Employers signatory to this Agreement have agreed, effective
June 1st, 1957, to contribute two cents ($0 02) per hour for each man hour worked
by window cleaners in their employment into an Industry Promotion and Improve-
ment Fund. This Fund shall be administered by three Employer Trustees under a
written declaration of trust. The Association shall have the authority to appoint
three Trustees to administer the above Fund. This Fund shall be used for the fol-
lowing general purposes-
1. To promote and improve the window cleaning industry through a system of
public and customer education and information that will publicize the important
benefits of regular and periodic window cleaning.
2 To point out, through a system of public education and advertising, the
hazards and disadvantages of infrequent and haphazard window cleaning by un-
skilled and untrained persons
3. To strive for a better understanding between Employers and their employees,
between contractors and their customers and between contractors and the general
public.
APPENDIX B
(15) GUARANTY OF CONTRACT LIABILITY
(a) The Employer, if not a member of the Window Cleaning Contractors As-
sociation, agrees to post a $1,500.00 cash bond to insure and guarantee the faithful
performance of this Agreement. The Association agrees to act as surety for each
Employer who is a member thereof, but in no event shall the liability of the As-
sociation for any one of its members exceed the amount which could have been
assessed against the cash bond of a non-member.
`b) A Joint Committee of representatives from both the employees and the Em-
ployers shall be empowered to hear claims against the bond or against the surety
obligation of the Association. The signatories to this Agreement agree that the
Association shall have the authority to designate the three (3) Employer representa-
tives and the Union shall have the authority to designate the three (3) employee
representatives to the Joint Committee. The Employer, if not a member of the
Association, agrees to post the required bond with such depository and under such
conditions as the Joint Committee shall from time to time designate. The account
established for this purpose shall be known as the Window Cleaning Contractors
Guaranty Account.
(c) The above bond or the suretyship obligation of the Association shall be liable
if, at any time, the Joint Committee shall find that the Employer is not faithfully
and fully performing any of the conditions of this Agreement, and the bond or
suretyship obligation may be levied against for the payment of back wages, de-
linquent wages, past due wages, delinquent payment to the Window Cleaning Con-
tractors' Insurance Fund, or for any fine or penalty assessed by the Joint Committee
because of the Employer's failure to perform any other obligations under this
Agreement. Decisions of the Joint Committee shall be by majority vote.
(d) In the event of deadlock of the Joint Committee, the question at issue shall
be submitted to -arbitration at the written request of'any three (3) of the representa-
tives on the Joint Committee, provided that such request is made within seven (7),
days of such deadlock. The representatives to the Joint Committee shall agree upon
an arbitrator. Should they be unable to do so within seven (7) days of the request
for arbitration having been made, an arbitrator shall be selected in accordance with
the procedures of the American Arbitration Association. The decision of the
'arbitrator shall have no authority to add to or subtract from any provision of this
Agreement. Any award by an arbitrator acting under the provisions of this Agree-
ment shall 'be entitled to be entered as a judgment in a court of competent jurisdic-
tion, according to the statutes in such case made and provided. The expense of the
arbitrator shall be borne equally by the Association and the Union.
(e) The Employer agrees that, upon request of the Joint Committee, the books,
records and other documents of the Employer evidencing compliance or non-
compliance with the terms of this Agreement shall be subject to be produced before
and scrutinized by the Joint Committee.
(f) It is agreed that checks drawn on the Window Cleaning Contractors Guaranty
Account, under the authority of the Joint Committee, shall be paid directly to The
Fund or person entitled to same and at least one (1) representative of the em-
ployees and at least one (1) representative of the Employer, to be designated by the
Joint Committee, shall be required to sign for any withdrawal of Funds. In the
event a member of the Association is found to be delinquent under any term or
74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
condition of this Agreement , or any fine or penalty is assessed against a member of
the Association by the Joint Committee or by any arbitrator appointed pursuant
to this Agreement, the Association agrees to pay any sums assessed thereby from its
own treasury within three (3) days of the final decision of the Joint Committee or
the arbitrator.
(g) The liability of the Employers under a bond posted pursuant to this Agree-
ment shall be several and not joint . When the obligation of this Agreement shall
cease for any reason, the Employer may request the return of his cash bond and the
Association may request the cancellation of its obligation as surety.
(h) The Union agrees to release the Association as surety for any Employer, a
member of the Association, covered hereunder who withdraws from the Association
during the term of this Agreement, two (2) weeks after receipt of written notice from
the Association that said Employer has withdrawn from the Association. The re-
lease of the Association as surety shall not be construed as a release of the Em-
ployer involved from the terms of this Agreement by the Union, and such Employer
shall post within the aforementioned two (2 ) week period a $1,500 .00 cash bond
with the Window Cleaning Contractors' Guaranty Account. Failure of an Em-
ployer withdrawing from the Association to post such bond within the stipulated
period shall be sufficient reason for the Union to cancel its agreement with such
Employer, notwithstanding any other provisions of this Agreement.
Vapor Blast Manufacturing Company and Vapor Blast Inde-
pendent Shop Worker 's Association and Erwin Strobel , John G.
Westphal , Frederick Kaleya, Edwin Griffa and International
Union, United Automobile , Aircraft and Agricultural Imple-
ment Workers of America , AFL-CIO, and Its Locals 575 and
1092, Parties to the Contract . Cases Nos. 13-CA-3006,13-CA-
3043, 13-CA-3044, 13-CA-3045, and 13-CA-3046. January 12,
1960
DECISION AND ORDER
On August 7, 1959, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. He also found that the Respondent
had not engaged in certain other unfair labor practices alleged in the
complaint. Thereafter, the Respondent, the General Counsel, and
the UAW filed exceptions to the Intermediate Report, and support-
ing briefs.
The Board 1 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
these cases,2 and hereby adopts the findings, conclusions, and recom-
'Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its
powers in connection with these cases to a three-member panel [Members Rodgers,
Jenkins, and Fanning].
2 As the record and the exceptions and briefs adequately present the issues and the
positions of the parties , the Respondent 's request for oral argument is denied.
126 NLRB No. 6.