Beaumont Graphics, Ltd.

National Labor Relations Board - Board Decisions

Jan 14, 1981

254 N.L.R.B. 394 (N.L.R.B. 1981)

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