Bel-Window

National Labor Relations Board - Board Decisions

Mar 13, 1979

240 N.L.R.B. 1315 (N.L.R.B. 1979)

BEL-WINDOW 1315
Bel-Window, Division of Belknap Glass Company and
Iron Workers Shopmen Local Union No. 506, affili-
ated with Bridge, Structural & Ornamental Iron
Workers International Union, AFL-CIO
H & D, Inc. and Iron Workers Shopmen Local Union
No. 506, affiliated with Bridge, Structural & Orna-
mental Iron Workers International Union, AFL-
CIO. Cases 19-CA-9460 and 19-CA-9462
March 13, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
On October 3, 1978, Administrative Law Judge
Henry S. Sahm issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief; Respondent H & D,
Inc., filed a cross-exception, a supporting brief, and
an answering brief: and Respondent Bel-Window
filed an answering brief.
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, findings, and
conclusions of the Administrative Law Judge to the
extent consistent herewith.
The Administrative Law Judge concluded that Re-
spondents and another employer did not form a mul-
tiemployer bargaining unit. He also found that, as-
suming the existence of a multiemployer group,
Respondents' conduct did not violate Section 8(a)(5)
and (I) of the Act. We agree with the Administrative
Law Judge's finding that Respondent Bel-Window
never refused to bargain with the Union and there-
fore did not violate the Act as alleged.
We disagree, however, with his recommended dis-
missal of the complaint against Respondent H & D,
and find for reasons set forth below that H & D's
refusal to engage in joint negotiations violated Sec-
tion 8(a)(5) and (I) of the Act.
Contrary to the Administrative Law Judge, we
find that the evidence establishes the existence of a
multiemployer bargaining unit. During the past 10
years Bel-Window, H & D, and various other em-
ployers jointly negotiated several collective-bargain-
ing agreements with the Union. In practice, the
Union-Local 506--initiated negotiations by send-
ing a standard reopening letter to each of the em-
ployers. The employers also received identical con-
240 NLRB No. 161
tract proposals from the Union. Each employer in
the group was individually represented at the bar-
gaining sessions, but upon receiving a proposal from
the Union, the employers' representatives caucused
and jointly formulated one counterproposal. When
contract proposals were submitted to the employees
for ratification one vote was conducted, with em-
ployees of all employers in the group voting as a unit.
After ratification the employers signed separate con-
tracts that were identical except for the employer's
name. Consequently, we agree with the General
Counsel's contention that Respondents' past bar-
gaining practice indicated that each employer intend-
ed to be bound by the results of group negotiation
rather than by individual bargaining, and thus that
the multiemployer bargaining unit existed at times
relevant. We next consider the General Counsel's
allegation that Respondent H & D unlawfully re-
fused to bargain as part of that unit.
After multiemployer negotiations began in early
1977, H & D informed the Union on two occasions
that it would not bargain jointly with the other two
employers as part of the multiemployer unit. H & D
argues that its withdrawal from joint bargaining,
though it normally would be untimely under applica-
ble Board precedent.' was privileged due to the par-
ties' having reached a bargaining impasse and the
fact that a majority of its employees had resigned
from Local 506 and joined another union.
H & D excepts to the Administrative Law Judge's
analysis of the legal consequences of an impasse in
negotiations between a union and a multiemployer
unit. However, we find that the evidence does not
establish that an impasse existed and, therefore, the
consequences of such an impasse are immaterial.
With respect to the claim that H & D's employees
had resigned from Local 506, that would not relieve
H & D of its obligation to bargain with the Union as
to the appropriate unit-the multiemployer unit-or
justify an untimely withdrawal therefrom: the test of
the obligation in this case is whether the Union rep-
resents a majority of employees in the multiemployer
unit as a whole. Sheridan Creations, Inc., 148 NLRB
1503. 1505-06 (1964), and cases cited in fn. 9 thereof.
Consequently, as indicated above, we find, con-
trary to the Administrative Law Judge, that H & D,
by refusing on and after May 3, 1977, to bargain as
part of the established multiemployer unit, violated
Section 8(a)(5) and (1) of the Act. We agree with the
Administrative Law Judge that Bel-Window did not
withdraw from the multiemployer unit or refuse to
bargain with the Union. We affirm his dismissal of
the complaint as to Bel-Window.
i Retail 4ssociates. Inc.. 120 NLRB 388 (1958)
BEL-WIN DOW
1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
AMENDED CONCLUSIONS OF LAW
Substitute the following for paragraph 3 of the Ad-
ministrative Law Judge's Conclusions of Law:
"3. All production and maintenance employees
engaged in the fabrication of metal products em-
ployed by Bel-Window, Division of Belknap Glass
Company, Seattle, Washington; H & D, Inc., Ever-
ett, Washington; and Herzog Aluminum Company,
Inc., Woodinville, Washington, constitute a unit ap-
propriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
"4. By refusing to bargain with the Union on and
after May 3, 1977, with respect to the wages, hours,
and other terms and conditions of employment of the
employees in the above appropriate unit, Respon-
dent H & D, Inc., has violated Section 8(a)(5) and (1)
of the Act.
"5. The aforesaid unfair labor practice is an unfair
labor practice affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
"6. Respondent Bel-Window, Division of Belknap
Glass Company, did not engage in conduct in viola-
tion of the Act."
THE REMEDY
Having found that Respondent H & D, Inc., has
engaged in, and is engaging in, an unfair labor prac-
tice, we shall order it to cease and desist therefrom
and take certain affirmative action designed to effec-
tuate the policies of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent, H
& D, Inc., Everett, Washington, its officers, agents,
successors, and assigns, shall:
I. Cease and desist from:
(a) Refusing to bargain collectively with Iron
Workers Shopmen Local Union No. 506, affiliated
with Bridge, Structural & Ornamental Iron Workers
International Union, AFL-CIO, with respect to wag-
es, hours, and other terms and comditions of employ-
ment of the employees in the following appropriate
unit:
All production and maintenance employees en-
gaged in the fabrication of metal products em-
ployed by Bel-Window, Division of Belknap
Glass Company, Seattle, Washington; H & D,
Inc., Everett, Washington; and Herzog Alumi-
num Company, Inc., Woodinville, Washington.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of their rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Bargain collectively with Iron Workers Shop-
men and Local Union No. 506, affiliated with
Bridge, Structural & Ornamental Iron Workers Inter-
national Union, AFL-CIO, with respect to wages,
hours, and other terms and conditions of employ-
ment of the employees in the unit described above.
(b) Post at its Everett, Washington, plant copies of
the attached notice marked "Appendix." 2 Copies of
said notice, on forms provided by the Regional Di-
rector for Region 19, after being duly signed by a
representative of Respondent, shall be posted by Re-
spondent immediately upon receipt thereof, and be
maintained by Respondent for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for Region 19, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
IT IS ALSO ORDERED that the complaint be dismissed
as to Respondent Bel-Window, Division of Belknap
Glass Company.
2 In the event that this Order is enforced b ajudgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
with Iron Workers Shopmen Local Union No.
506, affiliated with Bridge, Structural & Orna-
mental Iron Workers International Union,
AFL-CIO, with respect to wages, hours, and
other terms and conditions of employment of
the employees in the following appropriate unit:
All production and maintenance employees
engaged in the fabrication of metal products
employed by Bel-Window, Division of Belk-
nap Glass Company, Seattle, Washington; H
BEL-WINDOW 1317
& D, Inc., Everett, Washington; and Herzog
Aluminum Company, Inc., Woodinville,
Washington.
WE WILL NOT withdraw from the multiem-
ployer 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
negotiations; or except at such other time we
may lawfully withdraw.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
their rights guaranteed them by Section 7 of
the Act.
H & D, INC
DECISION
STATEMENT OF THE CASE
Introduction
HENRY S. SAHM. Administrative Law Judge: This pro-
ceeding heard at Seattle, Washington. is based on charges
filed by Iron Workers Shopmen Local Union No. 506, affi-
liated with Bridge, Structural & Ornamental Iron Workers
International Union, AFL-CIO,2 herein called the Union,
and a complaint issued by the General Counsel. The com-
plaint alleges in relevant part that the Charging Party
Union has been the exclusive collective-bargaining repre-
sentative for the metal fabricating employees of the two
Respondents, Bel-Window Division of Belknap Glass
Company and H & D, Inc., for some years past until "the
last in a series of contracts expired on March 31, 1977." 3
Specifically, the complaint avers that Respondents at-
tempted to "withdraw" from an arrangement which the
General Counsel describes in his complaint as being one
whereby "Respondents have, with the assent of the Union,
expressed an intention to be bound in collective bargaining
with the Union by group action and thereby established a
multi-employer bargaining unit." 4 It follows, contends the
The charges allege in substance that Respondents "unilaterall with-
drew from its multiemployer bargaining unit during the course of a lawful
economic strike against the members of such multiemployer bargaining
unit."
2 On May 20. 1977. the Regional Director issued an order consolidating
cases and complaint, and the notice of hearing, which originally included. as
one of the three Respondents, Herzog Aluminum Company. Inc.. in the first
complaint dated May 20, 1977. Paragraph 7 of the first complaint originally
read: "The last is a series of collective-bargaining agreements between the
Union and Respondents covering employees in the unit described in para-
graph 6(a) [the alleged appropriate unit]." On May 23, 1977. an "Erratum"
was issued whereby the aforementioned paragraph 7 was corrected to read:
"The last in a series of collective-bargaining agreements between the Union
and Respondents covering employees in the unit described above in para-
graph 6. expired on March 31, 1972."
"All production and maintenance employees engaged in the fabrication
of metal products." Paragraph 6(a) of the complaint.
4The General Counsel cites no authority for this rationale and conclusion
that "by [this] group action Ithere was] thereby established a multi-employer
bargaining unit," nor has any such authority been found for this conclusion.
representative of the General Counsel, that when Respon-
dents Bel-Window and H & D, Inc., "attempted to unilat-
erally withdraw from the multiemployer group and thereaf-
ter refused to bargain with the Union as a member of the
multiemployer group," both Respondents violated Section
8(a)(5) of the National Labor Relations Act, as amended.
Although the Regional Director issued an order whereby
the allegations and charges against then Respondent Her-
zog Aluminum Company, Inc.,5 were withdrawn on June
24, 1977, its answer filed on June I should be mentioned in
the interests of a full and complete record, and to point out
the issues involved. Herzog's answer to the complaint
states that "in the past, [it] negotiated jointly" with the
other two Respondents, Bel-Window and H & D, Inc.,
"but signed separate contracts and was bound by that sep-
arate contract . . . . To this extent Herzog ... has been a
part of this group. When an impasse in negotiations was
reached by April 22, Herzog was willing to proceed to ne-
gotiate separately or in any way in which the Union or the
other parties would negotiate. To the extent that all three
employers were willing to sit down, Herzog was willing to
sit down with them. On the other hand, if the other two
Respondents were not willing to meet in negotiations, Her-
zog was still willing to meet and talk with the Union and
work out an agreement by which Herzog would be bound.
But, due to the activities at H & D, it was clear that Herzog
could not control the actions of H & D .... Prior to
April 22, 1977, Herzog did, in negotiations with Local 506,
meet with the other Respondents. By April 22, 1977, an
impasse in negotiations had been reached; a strike was ini-
tiated on April 25 or 26, 1977; H & D's Local 506 employ-
ees then returned to work, having repudiated membership
in Local 506 land joined another union shortly thereafter].
Prior to this there had been no reference to there having
been a multiemployer unit. Thus at all times Herzog was
willing to negotiate toward the end of reaching a collective-
bargaining agreement, whether or not there existed any
multiemployer unit. Herzog's position on meeting has been
clear, no matter what the situation was in regard to the
other two Respondents. There was no attempt to withdraw
from a multiemployer group because there was either no
multiemployer group or Herzog could not force the other
Respondents to meet."
Herzog's answer to the complaint also states that the
Union would not bargain with it without the participation
of H & D, Inc., and Bel-Window, taking the position that
the Union would not bargain with Herzog alone. More-
over, claims Herzog, it advised Local 506, the the Charging
Party Union, that it would hire replacements in order for it
to remain in operation, which it did, maintaining, however,
that after new employees were hired, it would continue to
negotiate for a collective-bargaining agreement with Local
506.
Bel-Window, one of the other two Respondents in this
On June 24. 1977. the Regional Director issued the following "Order":
Having duly considered this matter and deeming that the policies of
the National Labor Relations Act have been effectuated . . .
IT Is HelRYe O.DErED that the portions of the consolidated complaint
involving Herzog Aluminum Company. Inc.. Case No. 19 CA 9461, be
and hereby are withdrawn ....
BL-WINDOW
1318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
consolidated proceeding, alleges in its answer that "in the
past, it has negotiated jointly" with Herzog and H & D but
signed separate contracts and that each Respondent "was
bound by that separate contract and that each has been
individually represented at the time of collective bargain-
ing." Bel Window's answer continues that it has been a
part of this group of three Respondent Companies when an
impasse in negotiations was reached by April 22, 1977, at
which time Bel-Window was willing to proceed to negoti-
ate separately "or in any way" in which the Union or the
other parties would negotiate. To the extent that all three
employers were willing to sit down, states Bel, they were
willing to negotiate with them. On the other hand, if the
other two Respondents. reads Bel's answer, were not will-
ing to meet in negotiations, Bel-Window was still willing to
meet and talk with the Union and work out an agreement
by which Bel would be bound. "But, due to the activities at
H & D, continues Bel, it was clear that Bel could not con-
trol the actions of H & D." Furthermore, alleges Bel's an-
swer, "it had other employees doing the same work, but
belonging to two other unions; these other employees have
had their own collective-bargaining representatives them-
selves which include the Teamsters and Local No. 188."
Bel-Window's answer also states that it, along with the
other two Respondents, continued to negotiate with Local
506 of the Iron Workers Union until an impasse was
reached on April 22, followed by a strike on April 25 or 26.
Bel tried at this point to enlist the assistance of the Federal
Mediation and Conciliation Service, according to Bel, but
"the Union refused to proceed," resulting in an unfair la-
bor practice charge being filed against Bel by the Union on
May 5. H & D's employees who were members of Local
506 returned to work concurrently with the Union having
called a strike and with H & D's employees "having repu-
diated membership" in Local 506. Bel thereupon wrote L.o-
cal 506's attorneys, expressing the thought that there was
no longer any viable group with whom they could negoti-
ate together. Bel adds that, prior to this, there had been no
reference to there having been a multiemployer unit.
At the same time and in order to try to reach some reso-
lution, declares Bel's answer, it remained willing to bar-
gain, which it again stated in a May I letter to the Union
in which Bel wrote it desired to continue bargaining. In this
letter, Bel "referred to the unique problem of the H & D
situation [its employees resigning from Local 5061 which
prevented Bel-Window from assuring Local 506 that H &
D would attend further meetings and negotiate" as it ap-
peared that, after the impasse, the Union insisted it would
not bargain with Bel unless the other two Respondents sat
down also on the employees' side of the table with Bel, as
they refused to bargain unless all three employers, compris-
ing what the Union referred to as "the multiemplover
group" who, it is alleged, "expressed an intention to be
bound in collective bargaining with the Union by group
action."
On July 29, H & D, Inc., filed its answer denying any
unfair labor practices, stating it employed no members of
Local 506 after March 31, 1977, when the aforementioned
collective-bargaining agreement expired. H & D declares
that the expired contract covered no employees other than
those of H & D. Its answer admits that on May 3 it notified
the Union of its refusal to participate in a joint proposal to
the Union, inasmuch as an impasse existed on April 21,
and the Union commenced a strike and established a pick-
et line on April 27. Accordingly, contends H & D, when its
employees, members of Local 506, resigned from that
Union on March 31, the expiration date of the collective-
bargaining agreement and after the commencement of the
union strike, when "substantially all of H & D's employees
crossed the Union's picket line" and returned to work. its
employees were no longer represented by the Union so that
it was "justified in not continuing to bargain." H & D also
contends that its bargaining with the Union in the past,
together with Bel and Herzog does "not constitute said
Respondents as a multiemployer bargaining group." More-
over, contends H & D, when the three Respondents made
a joint offer to the Union following meetings presided over
by the Federal Mediation and Conciliation Service. which
was rejected by the Union. concludes H & D, the Union no
longer represented H & D's employees who had resigned
from the Union prior to this time.
Upon the entire record in the case, from my observation
of the demeanor of the witnesses while testifying, and after
due consideration of the briefs filed by the parties, there
are hereby made the following:
FiN)INOc;s o- FAC.
Respondents Bel-Window and H & D are engaged at
Seattle and Everett, respectively, both in the State of
Washington. in the manufacturing and sale of aluminum
windows and doors. The two Respondents annually have
combined sales of goods and services in excess of $500,000
and combined purchases of goods and materials in excess
of $50,000 which originate from points directly outside the
State of Washington and are shipped directly into the State
of Washington. Respondents admit the foregoing allega-
tions. Accordingly, it is found that Respondents are em-
ployers engaged in commerce within the meaning of Sec-
tion 2(2). (6) and (7) of the Act.
The Charging Party, Iron Workers Shopmen Local
Union No. 506, affiliated with Bridge, Structural & Orna-
mental Iron Workers International Union, AFL--CIO, is a
labor organization within the meaning of Section 2(5) of
the Act.
The Background
The Union has never been certified by the Board as the
exclusive bargaining representative of Respondents' unit
employees described above. The complaint alleges that
"Respondents at all times have, with the assent of the
Union expressed an intention to be bound in collective
bargaining with the Union by group action and thereby
established a multiemployer bargaining unit." Thus, it is
the General Counsel's theory that a multiemployer unit has
existed at all times relevant to this proceeding.
Both Respondent Employers, on the contrary, deny the
validity of this assertion, contending that the record fails to
show by a preponderance of the evidence that the Em-
ployers ever evidenced any intention to be bound as a
group in executing identical but separate collective-bar-
BEL-WINDOW 1319
gaining agreements with the Union. The testimony shows,
contends Bel and H & D, that they had not only never
assigned their individual bargaining rights to any multiem-
ployer group but, equally important, it had never, as stated
in Section 3(a) of the complaint. "with the assent of the
Union, expressed an intention to be bound in collective
bargaining with the Union by group action and thereby
established a multiemployer bargaining unit ... ."
The evidence with respect to the history of bargaining is
weak, vague, insubstantial, and disputable. The General
Counsel's principal witness, a union official, only partici-
pated in negotiations with Respondents in 1975 and 1977,
whereas the vice president of Respondent H & D. Inc.,
testified on his cross-examination that he did not recall
when the Union first represented his employees, but it
would have to be after 1954. He then opined that the pre-
cise date should be known by the Union "when they signed
us up .... " After further questioning, he apathetically
acquiesced with the General Counsel's suggestion that his
company had been bargaining with the Union "for some-
where between fifteen and twenty years."
In the 1977 bargaining negotiations, the Union sent to
each of the Respondent Companies' negotiators identical
proposed collective-bargaining agreements for their con-
sideration. The parties, both Union and Employers, mutu-
ally agreed to schedule the first meeting for February 22.
1977. Present were employer representatives of H & D,
Inc., Bel-Window, and Herzog Aluminum. By order of the
Regional Director, the individual charges filed by the
Union against Herzog were dismissed on June 24. See foot-
note 3, supra.
Subsequent to this February 22 meeting. there were 11
additional negotiation sessions between union and compa-
ny representatives. The last one was held 5 months later on
August 16, 2 days before the trial began. Some of these
bargaining meetings were held at the offices of the Federal
Mediation and Conciliation Service.
The Union informed its members, on April 2, 14, and 25,
of the contents of the Company's three proposals which the
Employers had submitted to the Union on April 2. 14. and
25 during the course of the 12 bargaining sessions. The
Respondents' proposed collective-bargaining agreement
dated April 2 was rejected by a vote of 68 to 4. The Union
then took a strike authorization vote of its members, which
was approved 40 to 29. Ratification votes of both Employ-
ers' subsequently revised proposals of April 14 and 25 were
also taken by the Union of its members. The ratification
vote on April 14 was likewise rejected by the employees. 38
to 18. Glidden, the union official, estimated there were
only four or five H & D employees present at this Apnl 14
ratification meeting.7 The last ratification vote held on
April 25 of the Employers' additionally revised offer was
also defeated by a vote of 28 to 14. No H & D employees
were present at this last meeting.
Just as soon as the defeat of the Employers' April 25
proposal was announced to the members, a motion was
- All dates hereinafter refer to the ear 1977 unless otherwise indicated
The record appears to indicate that none of 11 & 1)'s emplo'ees ap-
peared after the first ratiflcation ',ote of April 2. as all of them ssoon thereaf
ter resigned from Local 506. the Union herein. andl oined another inlon
made and seconded to go on strike immediately. The vote,
according to Glidden, the union official, was "unanimous."
When asked on cross-examination the date picketing
started, Glidden answered: "On the twenty-seventh of
April] with the exception of H & D [employees] .... " He
added that at no time during the strike did H & D employ-
ees man the picket lines at the various Respondents' plants,
including H & D's plant, because these employees had re-
turned to work directly after the Employers' proposal of
April 2 was rejected.
On April 1., H & D employees filed a decertification peti-
tion with the Board which was withdrawn on April 15.
Shortly after the union officials were authorized by the
members to call a strike on April 2. 34 of the 44 H & D
employees resigned from the Union, and another employee
did so on April 15. By letter dated April 18, 1977. H & D,
Inc.. by Dalberg, general manager, notified the Union that
it understood that all of its employees had resigned from
the Union and, accordingly. "it is our desire to discontinue
multiemployer negotiations at this time," and requested the
Union, if it was in agreement. to notify Dalberg to that
effect.
On May 3, the owner of H & D. Inc.. notified the Union
he wished to bargain separately thereafter, writing:
I feel that an impasse has been reached in the bar-
gaining and when you have suggested that the Union
vote on one of our prior proposals that has already
been voted down by the membership. The situation
that exists in our plant at the present time leads me to
believe that Local #506 has lost most of the member-
ship from H & D. Inc. Our people want to work, and
do not want to participate in the strikes you have had
in the past. I would like to negotiate separately for H
& D. Inc. and am ready when you can set up a con-
venient date for the parties concerned (H & D, Inc.
and Local #506). Signed] Harold I. Dalberg.
Later, the Union wrote to H & D to notify Dalberg that it
desired to terminate, at the end of the current contract
year, its existing collective-bargaining agreement with H &
D, Inc., and asked him when the Company would be pre-
pared to commence negotiations for a new collective-bar-
gaining agreement.
The Union filed charges on May 5 against Bel and Her-
zog and against H & D on May 9.
On May 4 and 11. Respondent Bel-Window wrote the
Union stating that it desired to begin negotiations with the
Union, but the Union refused, insisting that all the Em-
ployers negotiate as a multiemployer bargaining unit. The
letter continues that Herzog and Bel-Window will meet
with the Union, but as for H & D, Inc., it "cannot be
forced by us to negotiate."
During the course of his cross-examination, Glidden ac-
knowledged that Bel-Window never refused to meet with
the Union for the purpose of conducting contract negotia-
tions.,
' It appears Ih.lt counsel for Bel-Window contends that its letters of Mao
4 and I 1. lpra. are the Regirnall )irector's hases for filing Its complaint
;Iainst Bel I he eidence rescls. he argues. that the record partlcularl? (i
( -:xh 12, sh,.s Bel at no illne aitter pted to withdraw from the multlem-
('ontinucd
BEL-WIN DOW
1320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Harold Dalberg, vice president and gener
H & D, Inc., testified that "in prior years" a:
pat[ion]" with Bel-Window, Herzog Alumir
tron Industries, contract negotiations were c,
the Union. In 1977, Fentron withdrew from
ment, so that same year Bel, Herzog, and -
pated, but, testified Dalberg, there was n
agreement" among the three companies to t
tively on a multiemployer basis. On the conti
tified Dalberg, bargained and union corres
addressed to each employer individually
group. Moreover, he continued, when collect
agreements were executed in the past, e
signed identical but individual contracts.
On cross-examination, Dalberg testified t
became H & D's employees' representative
1954 and he has had a "bargaining relation
Union for 15 to 20 years. In later years, D
pated in bargaining with the Union and was
ous intervals by additional employers, nan
dow, Darell Window, Fentron Industries, a
Aluminum Company, which was bought by I
num Company.
Glen Wilbur, a maintenance mechanic em
spondent H & D, Inc., since 1957, testified
unit employees met at various times in 1977
their resigning from the Charging Party Uni
Wilbur went to the National Labor Relatic
gional Office in late March and inquired of
the proper procedure to withdraw from the I
tified that it was explained to him at the R
that it was necessary for 51 percent of the u
to sign a petition. He also testified that he
that withdrawing from the Union could n4
until the current contract expired on March
Shortly thereafter, on April 1, 88 percen
employees voted to resign from the Union, b
that the signed withdrawal forms were not t,
the union members' ratification vote was to
union hall. When the Employers' proposed
rejected by the members and the Union aut
a strike, the H & D employees handed their
the following signed withdrawal forms:
TO: MY EMPLOYER H & D, INC.
Having withdrawn from Shopmen's
of April 1, 1977, I hereby revoke my at
deduct monthly union dues from my e'
Employ
Shortly thereafter, Wilbur went to the 1s
ployer unit. Moreover, he contends, "there [could] be n
what does not exist." Furthermore. he states, "asunin
unit does exist, there is no evidence Bel ever attempted I
Insofar as an impasse having occurred. Bel alleges it
Mediator [sic] Service to intervene hut it declined about
week of August." Bel's counsel emphasizes the testimo
union official, who stated that Bel's representatives atten
tion meeting, including those of May 16. June I and 7.
al manager of Relations Board Regional Office again, where an attorney
nd in "partici- advised him to have the unit employees of not only H & D,
tum and Fen- Inc., who wished to sign a decertification petition which
onducted with she gave him, but also the other members of Local 506 who
n this arrange- were employed by Herzog Aluminum and Bel-Window
I & D partici- also sign this petition if they so desired.
tot a "formal He later filed the signed petition with the National La-
)argain collec- bor Relations Board Regional Office, but it appears Wil-
rary, each, tes- bur did not request the employees of Herzog and Bel-Win-
pondence was dow to sign the RD petition, which precluded the Regional
and not as a Office from accepting it; whereupon Wilbur withdrew the
ive-bargaining decertification petition. He testified that "at that time [he]
ach employer had [obtained] 100 percent of the signatures from the men
at H & D." Wilbur explained that he then went to the
hat the Union Regional Office again and saw the same attorney whom he
e sometime in had consulted on a prior visit and told him: "She thought
ship" with the that would hold up in any court or anything and she said it
alberg partici- was up to me whether I should file another petition after I
joined at van- withdrew mine and I didn't file. I talked to all the fellows
nely, Bel-Win- down at the shop, and they said, 'Well, we resigned from
nd Greenway the Union, we're going to start joining [Local] 188 as soon
Herzog Alumi- as they'll take us.' I belong to [Local] 188 right now, along
with 20 other fellows down there."
.ployed by Re- Ken Smith was manager of Bel-Window until June 15,
that H & D's when he retired after being manager of Bel for 14 years. He
and discussed also represented Bel in the 1977 negotiations with the
on, Local 506. Union. He testified that neither H & D nor Herzog was
ons Board Re- authorized to bind Bel-Window in any way during the 6
a staff member months of negotiations with the Union in an attempt to
Union. He tes- reach agreement. He also stated that as of May 4, when the
egional Office Board served the Union's charge on Bel, none of Bel's unit
nit employees employees had resigned from the Union. It was also elicit-
was informed ed that as of the same time, Bel requested the Federal
ot be initiated Mediation and Conciliation Service to intervene in the
31, 1977. matter involving the Union, but the commissioner de-
it of H & D's dined. Later, on May 16, the Federal Mediation and Con-
tut they agreed ciliation Service reversed its prior refusal and agreed to
o be filed until attempt to settle the labor dispute. Present when the parties
be held at the reconvened were representatives of Bel-Window, Herzog
I contract was Aluminum, Coleman, the Union's International official,
horized to call and Dalberg "as an observer" who did not participate in
union officials the negotiations. The parties discussed, on June 1 and 7,
and August 16, the remaining issue on which agreement
had not been reached but to no avail, as Herzog Aluminum
refused to agree to rehiring the striking employees with the
Local #506 as retroactive pay. Bel-Window, however, was willing to re-
uithorization to hire all its striking employees.
arnings. On cross-examination, counsel for H & D elicited from
Date signed Smith, Bel-Window's manager, that its employees had re-
signed from Local 506 on April 1, and, consequently, it
fee signature "did not have anybody to rehire." Smith also added that
lational Labor the only item on which agreement was not reached was
with respect to rehiring the striking employees.
o withdrawal from
g a multiemplover Discussion and Conclusions 4
, withdraw from it.
asked the Federal
the first or second Multiemployer bargaining is collective bargaining in
ny of Glidden. the which more than one employer or an association of em-
nded every negotia- ployers participate in common negotiations with a group or
..,.I ....... * I,,
dllU UIU1t lE
Most ,of the testimony is uncontradicted
BEL-WINDOW 1321
groups of unions as distinct from single-employer bargain-
ing. Both multiunion and multiemployer bargaining, as the
Supreme Court has observed, have been widely recognized
as an effective way to create stability in collective-bargain-
ing relationships and "a vital factor in the effectuation of
the national policy of promoting labor peace through
strengthened collective bargaining."
The practice first came to the Board's attention in 1938
in representation cases as a problem of defining the unit
appropriate for purposes of collective bargaining, and the
Board held that it had the authority to find a unit com-
posed of the employees of several competing employers
bargaining as a group with the union to be an appropriate
one." Recognizing that the foundation of a multiemployer
bargaining group is consensual, it follows that once the
employer evidences an intention to no longer remain in a
collective-bargaining group, he will not be considered a
part of the unit.' 2 The same rules concerning the right to
withdraw apply to both employers and unions alike. 3
However, an employer's withdrawal must be done at an
appropriate time, namely, before bargaining negotiations
commence.' 4 A caveat to this principle is that it is permissi-
ble for the entity withdrawing to do so, provided "unusual
circumstances" exist. 5
In 1958, in the case of Retail Associates, Inc.,16 the Board
enunciated its approach to the matter of withdrawal of
either a union or an employer from a multiemployer unit as
follows:
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 exercis-
able 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 bargaining relationships.
Necessarily under the Act, multiemployer 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 es-
10 N.L.R.B. v. Truck Drivers Local U'nion No 449. International Brother
hood of Teamsters. Chauffeurs. Warehousemen and Helpers of America. FI
353 U.S. 87.95 (1957). See also N.L.R.B v. Brown. 380 U.S. 278. 284 (1965).
H Shipowners Association of the Pacific Coast., e al.. 7 NI.RB 1002. 1024
25 10938).
' George F. Carlton & Company. Inc., 5
4
NLRB 222. 228 (1943): Canada
Dr, Ginger Ale, 73 NLRB 460, 463 (1947): The Wilk and Ice Cream Dealers,
er al., 94 NLRB 23. 24 (1951).
13 Detroit Newspaper Publishers Association. etc. v . L. R.B.. 372 F.2d 569.
570 (6th Cir. 1967): Publishers' Association of New ork Cim. 364 F.2d 293
(2d Cir. 1966), enforcing 156 NLRB 210(1965), cert. denied 385 UIS 971
(1966).
14 Brotherhood of Teamsters and Auto Truck Drivers I.ocal Vo 70. tc
(Grann Goose Foods Inc.). 195 NLRB 454 (1972).
jt N.L.R.B. v. State Electric Service, Inc. 477 F2d 749. 751 (5th Cir
1973). cert. denied 414 U.S. 911.
16 120 NL.RH 388. 393. 394. 395 (1958)
tablished multiemployer bargaining unit. Thus, the
Board has repeatedly held over the years that the in-
tention by a party to withdraw must be unequivocal.
and exercised 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 bargain-
ing on an individual-employer basis. The element of
good faith is a necessary requirement in any such deci-
sion to withdraw, because of the unstabilizing and dis-
rupting effect on multiemployer collective bargaining
which would result if such withdrawal were permitted
to be lightly made.
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 con-
tract for modification, or to the agreed-upon date to
begin the multiemployer negotiations. Where actual
bargaining negotiations based on the existing mul-
tiemployer unit have begun, we would not permit, ex-
cept on mutual consent, an abandonment of the unit
upon which each side has committed itself to the
other, absent unusual circumstances.
Trimmed to its essentials, the Retail Associates case hold-
ing may be briefly stated as follows: Prior to negotiations,
either the union or an employer in a multiemployer bar-
gaining unit may unilaterally withdraw if unequivocal writ-
ten notice is given which evidences an unambiguous intent
to withdraw. During negotiations, however, withdrawal is
permissible only upon "mutual consent" or may occur uni-
laterally in the event of "unusual circumstances."
Respondents in the instant proceeding emphasize their
having withdrawn from the negotiations at a time when an
"impasse" in bargaining occurred between the Union and
both Companies' negotiators. Thus, they argue, such an
impasse excused the two Employers from further bargain-
ing, adding that union consent was not a factor to be con-
sidered. Thus, when a genuine impasse is reached, they
contend, each of them should be allowed, as a right, to
withdraw from such bargaining, and thereafter bargain
with the Union on an individual basis.
The Board rule for employer withdrawal from multiem-
ployer bargaining units during negotiations is enunciated
in Hi-Way Billboards, Inc., 206 NLRB 22 (1973). In that
case the Board reaffirmed the "unusual circumstances" re-
quirement of Retail Associates, supra, and then stated that
even a genuine impasse did not meet this requirement. The
Board listed a number of "dire economic consequences"
that would meet the "unusual circumstance" requirement
but then emphasized that it could not permit the impasse
situation to be so used without undermining the stability of
multiemployer units. To do so, it was held, would permit
an employer to use an impasse as a pretext for avoiding an
impending agreement. In rejecting the argument that an
impasse is an unusual circumstance, the Board stated that
an impasse is "akin to a hiatus in negotiations" and that its
occurrence "cannot be said to be an unexpected, unfore-
seen, or unusual event in the process of negotiations
.... " The Board continued:
BEL-WINDOW 321
1322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Were we to hold otherwise, we would be denying the
practical reality of collective-bargaining negotiations,
we would herald the demise of multiemployer bargain-
ing, we would effectively negate the benefits of such
bargaining to all parties and to employees, and we
would allow an employer to seize upon such an occur-
rence and use it as a ground for withdrawal merely
because it was dissatisfied with the impending agree-
ment .... Consequently, we hold that it would not
effectuate the purpose or policies of the Act to allow
an employer member of such an association to with-
draw solely on the ground that an impasse in negotia-
tions had been reached.
However, some Federal courts of appeals have held to
the contrary in those situations where an impasse has oc-
curred. N.L.R.B. v. Hi-Way Billboards, Inc., 500 F.2d 181
(5th Cir. 1974). Such was the case in N.L.R.B. v. Beck En-
graving Co., Inc., 522 F.2d 475 (3d Cir. 1975), where the
court held, even though the Employer's withdrawal oc-
curred following an impasse, it was justified by "unusual
circumstances," as the withdrawal was obviated by the em-
ployer's good-faith doubt of the union's majority status
among its employees, all of whom had resigned their mem-
bership prior to withdrawal. The "impasse" in itself, held
the court, constituted an "unusual circumstance" justifying
the employer's withdrawal from a multiemployer unit. The
court did not consider whether the mass resignation of the
employees was also an "unusual circumstance." The court
did comment, however, that a situation which could result
in an employer being ordered to bargain at a time when
none of its employees was a member of the charging union
would effectively deny the employees the option of being
represented by a union or by no union.17
An employer violated the Taft-Hartley Act's prohibition
against refusing to bargain when it refused to sign a new
collective-bargaining contract negotiated by a union and a
multiemployer association of which the employer had been
a member for many years, the U.S. Court of Appeals ruled,
affirming the Board. The employer's withdrawal from the
association, the court notes, occurred after the contract ne-
gotiations had commenced and, therefore, was untimely.
The court rejects the employer's contentions that the Board
misinterpreted and misapplied the rule limiting the em-
ployer's power to withdraw from the multiemployer bar-
gaining association and that, even if its withdrawal was
untimely, a later impasse in the multiemployer bargaining,
and the union's condonation of the withdrawal, relieved
the employer of the consequences of its untimely with-
drawal from the multiemployer association. (Carvel Co. v.
N.L.R.B., 560 F.2d 1030 (st Cir. 1977)
However, the Board has had occasion, subsequent to the
time Retail Associates issued, to interpret the phrase "un-
usual circumstances" in the context of the employer being
confronted with a situation of "dire economic circumstanc-
es," which the Board defines as circumstances that threat-
en the very existence of an employer threatened with being
forced out of business and closing his plant.l8
17 Id at 478, In. 18.
In U.S. Lingerie Corporation, 170 NLRB 750 (1968), the
respondent had been declared a "Debtor in Possession"
under the state bankruptcy laws, whereupon it had with-
drawn with the intent to relocate and thus avoid a de-
pressed economic area, and had sought help from the
union which had been refused. The combination of these
factors, with emphasis on respondent's bankrupt situation,
led the Board to conclude that unusual circumstances suf-
ficient to excuse the untimely withdrawal existed.
In Atlas Electrical Service Co., 176 NLRB 825 827
(1969), the employer was the only electrical contractor in
an employer association comprised entirely of construction
contractors in other trades. A jurisdictional dispute ensued,
in which the employees of respondent informed him that
they would quit unless he signed with the International
Brotherhood of Electrical Workers, instead of another elec-
tricians union with which the Employer's association in-
volved was then dealing. The employer requested that the
other union furnish him with replacements for his disgrun-
tled employees, but that union refused his request. In these
unusual circumstances, the Board held that the employer
was entitled to withdraw.
With respect to Respondent's impasse argument being a
valid ground for withdrawal from the bargaining unit, it is
true that various courts of appeal have so held,'9 but the
Board has decided otherwise. I am bound by Board law.
This diversity of opinion can only be decided by the Su-
preme Court.
No case has been found which is clearly dispositive of
the "unusual circumstances" present in this proceeding
here, but a composite overview of all the cases cited herein
leads the trier of these facts to believe and conclude that no
unfair labor practice was committed in the case at bar as
hereinafter explicated. Some aspects here, it appears, are
sui generis and indeed bizarre. H & D's peculiar situation,
it would appear, not only requires a severing of the Gordi-
an knot as it would still be faced with a Hobson's
choice a state of choicelessness. In the eyes of the law,
this might be considered a novation. Damnum absque inju-
ria.
The factual pattern of the "unusual circumstances" facet
of this singular case presents an unusual, complex factual
pattern and a unique, if not unprecedented legal issue with
respect to H & D's employees filing a decertification peti-
tion on April 1, and their mass resignation on April 2 from
the Union herein, which was followed shortly thereafter by
their joining another union. Added to this posture is Re-
spondent H & D being confronted with an "impasse," al-
though this is debatable, even though the parties had been
"deadlocked" on monetary proposals since shortly after
negotiations for a new contract had begun and still contin-
ued as of the date this trial commenced on August 18. See
infra.
The Union began to picket H & D on April 27. On May
3, the Respondent H & D notified the Union by letter that,
inasmuch as negotiations had reached an "impasse," in ad-
s Spun-Jee Corp. and The James Corp., 171 NLRB 557 (1968).
19 .L.R.B. v. Associated Sho'er Door C'o, In., et al., 512 F.2d 230 (4th
Cir. 1975): N.L.RB. v. Beck Engraving ('o, Inc.. supra. N.L.R.B. v. Hi-Way
Billhboards, Inm., upra, and Fairmont, oods (onmpanm v. N.L.R.B., 471 F.2d
1170 (8th ('ir 1972).
BEL-WINDOW 1323
dition to its employees having resigned from the Union, "it
is our desire to discontinue multiemployer negotiations at
this time."
So, too, under the unusual circumstances present in this
proceeding, it would be a curious paradox to compel H &
D to continue bargaining with a union after its employees
had not only resigned from said union but had already
joined another union, so that if and when a collective-bar-
gaining agreement were executed, it would result in viola-
tions of Sections 7 and 9(a) of the Act, which guarantee
employees freedom of choice as to whether they wish to be
represented by a particular union or not represented by
any labor organization. Not only would this result be an
egregiously anomalous consequence, but it would have the
aftereffect of not only nullifying their already consummat-
ed resignations from the Charging Union, but also rescind
their choice to remain members of the union which they
had already selected to represent them. Such a mechanistic
and academic approach to a real dilemma faced by H &
D-not entirely due to its own doing-should not and can-
not, in the context of the industrial realities present here, as
well as the Act itself, be permitted to override the statutory
mandates of Sections 7 and 9(a). To hold otherwise would
emphasize form and disregard substance. Nor does legalis-
tic hypothesis justify such an attenuated result.
Another legal incidence of this awkward predicament
would be to place Respondent H & D in the vulnerable
position of being found guity of committing an unfair la-
bor practice by bargaining with a union, the Charging Par-
ty, which no longer represents H & D's employees.2
Respondents Bel-Window and H & H & D, Inc., also
urge that the General Counsel's primary premise that they
constitute a multiemployer unit is unsound and contrary to
the evidence. They argue that neither of them indicated an
intention to be bound as a group in collective-bargaining
negotiations but rather to bargain individually.
The burden of proving the commission of unfair labor
practices rests at all times upon the General Counsel. The
evidence produced by him does not meet the dual require-
ments of the burden and quantum of proof necessary to
establish by a preponderance of the substantial evidence
that there existed a multiemployer bargaining unit, as here-
inafter delineated.
The Board in N.L.R.B. v. Hi-Wayv Billboards, Inc., supra,
defines a multiemployer bargaining unit as follows:
As opposed to other units, a multiemployer unit is a
unit based on the consent of the parties, and it is es-
tablished by an unequivocal agreement by the parties
to be bound by group action or by a controlling his-
tory of bargaining on such a basis. Once the multiem-
ployer unit is established, the employer members are
subject to the rules the Board set forth in Retail Asso-
ciates, Inc.2 '
In applying the teachings of the various Board decisions
cited and discussed above to the facts of this proceeding
which are detailed in extenso, as well as the Board's hold-
International Ladies' (Garmen t Workers' ntn. 4 fL ( 0 v.: 1. R B
366 U.S. 731 (1961).
21 120 NlRB 388. 393 395
ings in cases cited below, it is concluded and found that the
Board's definition of a multiemployer bargaining unit is
not the same relationship which was established by the Re-
spondents and Union here. It should also be borne in mind
that Local 506, the Charging Party Union here, had never
been certified by the Board as the representative of the unit
employees. Nor is there anything in the record to suggest
that the employees of H & D, Inc., who subsequently re-
signed from Local 506, were afforded the opportunity to
express whether it was or was not their choice to join a unit
comprised of employees of Bel-Window and Herzog Alu-
minum Company. On the contrary, there is sufficient proof
that they did not wish to be included in such a unit, as
evidenced by their resigning from Local 506, in order to be
represented by another union which they joined shortly
after resigning from Local 506.
Here, the facts detailed above reveal that neither Re-
spondent designated or authorized anyone to be its agent
to act on its behalf with the Union. Moreover, multiem-
ployer bargaining is consensual in nature. Neither party
here gave its assent to such a relationship. Consequently, in
the absence of such assent no such relationship can exist.
There is no substantial evidence that either Respondent
unequivocally intended to be bound by group rather than
individual bargaining at any material time herein. Further-
more, the testimony of Smith, manager of Bel-Window,
that his company or H & D had no authority to bind each
other, stands uncontroverted in the record.
Unlike an orthodox multiemployer unit, here there ex-
isted no formal written agreement establishing a multiem-
ployer bargaining group. Nor was there a group name or
office or a paid professional who acted as a joint agent in
representing the Employers as their representative in bar-
gaining meetings with the Union. Also, unlike a typical
multiemployer bargaining association where negotiations
with a union are carried on by the association's negotiating
committee comprised of elected individual employers to
represent the employer association members, here each
employer bargained on an individual basis.
Unlike the two Respondents here, the typical multiem-
ployer bargaining association or group is generally com-
prised of individual employers located in a defined geo-
graphical area who formally grant their bargaining rights
to their association officers who, in turn, select or elect the
members of their bargaining committee to negotiate with
the union. The members normally obligate themselves to
abide by the decisions of their negotiating committee rela-
tive to the terms of a new labor collective-bargaining agree-
ment. The Association's working function is to serve as the
legal entity in negotiating one contract for their employer-
members in the same industry located in a specific geo-
graphical area with its members "bound by irretrievable
pledges of solidarity."22
The fact that contracts may have been executed prior to
1977 is not an overriding factor to the conclusions reached
here, as Glidden, the union official, had no personal
knowledge of what negotiations transpired prior to 1977.
Nor did any testimony of Dalberg, the owner of H & D,
Rtad ( erA.s non. No 155I). el al. er . .R B.. 330 F.2d 210
(DC. ( r. 1964).
BEL-WN DOW
1324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
weaken the finding that a multiemployer unit ever existed
before, during or after the 1977 negotiating meetings.23
Bel-Window, in conjunction with H & D, Inc., and Her-
zog Aluminum Company, the latter by order of the Re-
gional Director dated June 24, 1978, dismissed all charges
against Herzog and permitted it to withdraw as a party
respondent. Bel-Window alleges that "in the past, it had
negotiated jointly" with the other two Respondents "but
signed separate contracts" and that each Respondent "was
bound by that separate contract and that each has been
individually represented at the time of collective bargain-
ing." Also alleged by Bel-Window is an "impasse" was
reached on April 22, at which time Bel-Window was will-
ing to negotiate separately "or in any way" in which the
Union or the other parties would negotiate. All three em-
ployers were prepared to negotiate with the Union, but if
any one of them should change its mind, Bel-Window in-
formed the Union it was willing to continue negotiations
on its own behalf.
Twelve negotiating meetings were held between Febru-
ary 27 and August 16. During the course of these negotia-
tions, the employers submitted three different proposed
collective-bargaining agreements to the union negotiators
on April 2, 14, and 25, all three of which were defeated
when presented to the union members for a ratification
vote. After the defeat of the Employers' proposals on April
2, H & D employees resigned from the Union, and on
April 27 the employees of Bel-Window and Herzog Alumi-
num voted to strike, and picketing of all three Employers'
plants began on April 27.
On April 18, about a week before picketing commenced,
H & D, Inc., notified the Union that it wished to bargain
separately. The Company also advised the Union that its
employees had not only resigned from the Union, but they
did not wish to participate in the strike or to picket, but
added that H & D ". .. would like to negotiate separately
and am ready when [the Union] can set up a separate date,
[H & D] would like to negotiate separately."
By return mail, the Union advised H & D that it desired
to terminate its contract on March 31, at the end of the
contract year and then begin negotiations for a new collec-
tive-bargaining agreement. On May 4 and 11, Bel-Window
wrote the Union agreeing to continue negotiations, which
it did on May 16, June I and 7, and August 16.
The General Counsel alleges, however, that on May 4,
Bel-Window attempted to unilaterally withdraw from the
multiemployer group in violation of Section 8(a)(5) of the
Act. Bel counters by contending that there never existed a
multiemployer bargaining unit of the Respondents; that
assuming arguendo one did exist, Bel never withdrew and
even if it did attempt to withdraw on May 4, it not only
rescinded its attempted withdrawal but evidenced, by all of
its subsequent acts, that it was unequivocally willing to
work within the unit.
As discussed above, it is concluded for the reasons there
stated that no multiemployer bargaining unit existed, as,
. Glidden, Local 506's official. testifying on direct examination. does not
corroborate this definition of a multiemployer group, as he stated the Em-
ployers "caucusled " on each proposal individually at the bargaining ses-
sions as to whether each union proposal was agreeable to all the employers.
inter alia, there is no probative evidence proving by a pre-
ponderance of the substantial testimony and the exhibits
herein that any one entity, person, or group3 had authority
to speak for or to bind the other employers. Corroborative
of this finding is the parties' bargaining history, which fails
to reveal an "established course of conduct." 24 The 1975
collective-bargaining agreements may have been identical,
but belying the contention that these were multiemployer
bargaining documents is the credited testimony of both
Respondents' witnesses that they neither intended to be
bound as a group nor considered themselves at any time to
be bargaining as a group.2 5
To recapitulate, there was neither an unequivocal mani-
festation and clear intent to participate and to be bound in
the future on the part of H & D, Inc., and Bel-Window nor
an express or implied authority conferred on a joint agent
with the requisite power to bind each member of the
group. 26
It will be recalled that the Union filed charges against
Respondents on May 5 and 9. The Employers were entitled
to a reasonable time in which to further explore the possi-
bility of settling the disputed monetary issues, the only
items not resolved as of May 5 and 9, when the Union
precipitately filed its charge. This was not a sufficiently
reasonable length of time to accord Respondents the op-
portunity to reach agreement and not be accused in the
Union's charge of "refusing to bargain in good faith." It
follows that there could be no refusal to bargain if there
was no refusal within the meaning of Section 8(d). which
defines the good-faith indicia as follows:
[T]o bargain collectively is the performance of the mu-
tual obligation of the employer and the representative
of the employees to meet at reasonable times and con-
fer in good faith with respect to wages, hours, and
other terms and conditions of employment . . . or any
question arising thereunder . . . . [Emphasis supplied.]
Indeed, based upon what transpired here, it was incum-
bent on the Union to continue negotiations, which it elect-
ed not to do, instead of filing an unfair labor practice
charge. Filing the charge does not appear to foster the
good-faith indicia defined in Section 8(d) of the Act. More-
over, the bonafides of the Union, under the circumstances
presented here, could best have been tested at that juncture
by further affirmative steps by the Union looking toward
additional meetings by the parties before the charge was
filed, thus precluding and aborting prematurely further ne-
gotiations. In the absence of any possibilities to continue
negotiations, the onus of which is on the Union, there
could be no unfair labor practices committed by Respon-
dents. To hold that Respondents violated Section 8(a)(5)
would be, in effect, to not only ignore the Union's conduct
(as well as the pardon granted to Herzog Aluminum) but
also the Union's conduct in peremptorily causing the pre-
mature demise of any possibilities of agreement by choos-
ing to opt for lengthy and costly litigation. To hold that
Respondents violated Section 8(a)(5) would be inequitable
24 A,,mtar ( omruction. In. I .. I.R B., 458 F2d 317 8th (r. 1972).
E/l ctric Theatre. et al., 156 NLRB 1351 (10th ('ir. 1971. Cf. N.L.R.B.
Johnson Sheet 1lratl Inc. 442 F2d 1056 (1966).
Ilr lmpi R Br (Glazing (ontraoit,r A.4 oiuatlon Inc.. 228 NL.RB 360 (1977).
BEL-WINDOW 1325
in view of Section 8(d) and would penalize Bel-Window
and H & D for conduct over which they had no control
and which was induced by the Union. "The employer
[charged with a Section 8(a)(5) violation] cannot be
charged with refusal of that which is not proffered."
N.L.R.B. v. Columbian Enameling & Stamping Co., 306 U.S.
292, 298 (1939). So too, in this case, the Respondents can-
not be charged with refusal of that which was caused by
the Union prematurely filing a charge and thus denying
them the opportunity to continue to bargain to a probable,
if not possible, successful outcome resulting in the execu-
tion of a new collective-bargaining agreement.
Based on these indicia and the discussion supra, as well
as consideration of the Union never having received the
imprimatur of Board certification, it is concluded that the
General Counsel has failed to establish by a preponder-
ance of the substantial evidence that the relationship of the
Respondents was that of a multiemployer bargaining
group as defined by Board decisions cited herein.
Noteworthy also is the cogent fact that Bel-Window had
requested the Union to agree to enlisting the aid and ser-
vices of the Federal Mediation and Conciliation Service
but the Union declined to do so, which denied Bel-Win-
dow the very thing which the General Counsel now alleges
to be a violation of Section 8(a)(5). 27
' Odd. indeed. s the issuance of an order bh the Regional Director on
June 24. 1977. dismissing the charges against and directing that Herzog
Aluminum he dismissed as a parts Respondent in this proceeding. although
it was alleged to have committed the same unfair labor practices as H & D
and Bel. In fact, the evidence as to Bel and Herzog is practically the same.
but H & D's situation is quite different. Moreover, if the Union had waived
its right to object to withdrawing its charge. on the basis of the facts alleged
to be unfair labor practices. to any election ordered by the Regional Direc-
tor, the fact that the charge was filed would not have prohibited such further
action and could very well have decided the issues involved in a short period
of time rather than resorting to the cumbersome and lengthy litigation of a
complaint proceeding. This is perplexing when it is considered that Bel-
Window at various times never refused to negotiate but. on the contrary.
initiated action requesting the Union to renew negotiations (abohrted b) the
Union filing a charge) in an effort to reach agreement. Herzog. in contrast
to H & D and Bel-Window. took no such action looking toward renewed
negotiations; yet it was dismissed and ordered that those portions of the
complaint involving Herzog hbe and herebv are withdrawn
The burden of proving the commission of unfair labor
practices rests at all times upon the General Counsel. Gen-
eral Counsel's burden of proof in these cases requires more
than raising mere doubts or suspicions as to the Employers'
motives and actions. Here General Counsel is unaided by
independent evidence of hostility on the part of the Re-
spondents to the Union, or unreasonable proposals that
were illegal in their very nature or so indefensible or lack-
ing in rationality as to warrant inferring bad faith. Accord-
ingly, there is found to be both a lack of substantial evi-
dence by the General Counsel's representative and a
failure of proof on his part requiring dismissal of the com-
plaint in its entirety.
Based upon the circumstances detailed above (it should
be noted that the record herein contains no evidence of
animus by Respondents and it was not charged that they
otherwise violated the Act), I am convinced that it would
not effectuate the policies of the Act to issue an order re-
quiring both Respondents to bargain with the Union.28 In
view of the foregoing conclusions and upon the entire rec-
ord and totality of events herein, it is found that the evi-
dence warrants no finding that Respondents Bel-Window
and H & D, Inc., committed unfair labor practices within
the meaning of Section 8(aK5) of the Act. It will, therefore,
be recommended that an order issue dismissing the com-
plaint in its entirety.
CONCLUSIONS OF LAW
1. Respondents are employers within the meaning of
Section 2(6) and (7) of the Act.
2. The Union named in the caption is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. Respondents have not engaged in any unfair labor
practices in violation of Section 8(a)(5) of the Act inas-
much as the General Counsel has failed to establish by a
preponderance of the evidence that Respondents have vio-
lated the Act as alleged in the complaint.
[Recommended Order for dismissal omitted from publi-
cation.]
2S Aentile. In(.. 145 NLRB 135 11964).
BEL-W N DOW