Custom Colors Contractors

National Labor Relations Board - Board Decisions

Nov 9, 1976

226 N.L.R.B. 851 (N.L.R.B. 1976)

CUSTOM COLORS CONTRACTORS 851
Joseph McDaniel , an Individual Proprietorship d/b/a
Custom Colors Contractors and International
Brotherhood of Painters & Allied Trades, AFL-
CIO, Local Union No. 1010
Beckham, Inc. and International Brotherhood of
Painters & Allied Trades, AFL-CIO, Local Union
No. 1010. Cases 12-CA-7010 and 12-CA-7013
November 9, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND WALTHER
On June 3, 1976, Administrative Law Judge Anne
F. Schlezinger issued the attached Decision in this
proceeding. Thereafter, General Counsel and the
Union filed exceptions and supporting briefs. Re-
spondent Beckham filed a brief in answer thereto.
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 only to
the extent consistent herewith.
Central Florida Chapter, Painting and Decorating
Contractors of America, Union Division, hereinafter
referred to as the Association, is an association of
employers whose members are painting and decorat-
ing contractors in the central Florida area. Prior to
1975 the contractor members of the Association bar-
gained with the Union as a group but with an eye to
the negotiation of separate contracts binding individ-
ually upon the respective members of the Associa-
tion. The question before us is whether in 1975 this
bargaining arrangement changed to one in which the
Association members, including Respondents Beck-
ham and McDaniel, consented to have the Associa-
tion bargain in their behalf and to be bound by the
product of this joint bargaining.
Sometime before the 1975 negotiations (possibly in
1973 but in any event before the commencement of
negotiations), the Association bylaws were changed
to set up a union division and a nonunion division.
Turner, the secretary of the Association, testified that
the purpose of the change was to enable the Union
Division members to negotiate for a single multiem-
ployer unit contract.'
i It is not clear whether Respondent Beckham participated in amending
the bylaws or was notified of the change Nor is it clear whether Respondent
In April 1975, the Union sent the normal contract
reopener notices to the Association members, includ-
ing Respondents Beckham and McDaniel. All the
contractor members were notified individually of the
contract reopening because the bargaining format-
whether it was to be on an individual or group ba-
sis-had not at that time been worked out.
Shortly thereafter, in May, the Association held a
meeting of its membership to discuss the upcoming
negotiations. Beckham was present. The Associa-
tion's president, William Pass, stated at this meeting
that the Association members would negotiate as the
Union Division, not as individual contractors as they
had in the past, and this was discussed and agreed
upon by all the members in attendance. The Associa-
tion elected to include on the negotiating committee
all those who at that time belonged to the Union
Division or had contracts with the Union. Respon-
dent McDaniel, who did not attend the May meet-
ings, was subsequently notified that he was on the
negotiating committee. In mid-June, the Association
sent the Union a letter listing the names of the mem-
bers of the negotiating committee. Beckham and Mc-
Daniel were on the list.
The first negotiating session was held on June 24,
1975. At the very outset of this session, President
Pass stated that the Association was bargaining on
behalf of all the union contractors and that bargain-
ing would not be on an individual basis as before.'
Both McDaniel and Beckham were present at this
meeting and neither demurred from or in any way
objected to Pass' statement.' Some five or six negoti-
ation meetings were thereafter held, with McDaniel
being present at the first two or three meetings and
Beckham present at nearly all. Throughout the nego-
tiations, neither McDaniel nor Beckham indicated
that he did not intend to be bound by the contract
McDaniel was a member of the Association at the time of the change
2 Pass did not tell the Union what specific contractors the Association
was negotiating for, other than that the Association was bargaining for all
Union Division members He did, however, tell the Union that all Associa-
tion Union Division members were also on the negotiating team
7 Unbeknown to the Union, the Association sent all the Association
members and all the employers who had a prior contract with the Union an
assignment of bargaining rights form , in order that the Association might
acquire their bargaining rights for the new negotiations At different points
during the negotiations , Beckham and McDaniel , again without the Union's
knowledge , were solicited to sign the assignment of bargaining rights form
McDaniel declined to sign the form, stating to Turner that he wasn't going
to give his bargaining rights to someone else Nevertheless , McDaniel on
another occasion told Pass that although he would not be able to attend all
the negotiating sessions, and was not even sure whether he was going to
remain union or not, whatever the negotiating committee decided upon was
fine with him McDaniel also told Turner that it looked as if the negotia-
tions would be drawn out and that whatever the negotiating committee did
would be okay with him
Beckham, like McDaniel , failed to execute a completed assignment of
bargaining rights form , but there is no evidence that he ever expressly de-
clined to do so As it turned out , only two members of the negotiating
committee , Pass and Turner, actually executed bargaining rights assignment
forms
226 NLRB No. 120
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
negotiated by the Association negotiating committee.
At the final negotiating session held on July 28,
1975, the contractors returned from a private caucus
and stated to the Union that they were in agreement
as to a contract except that Beckham had to be given
relief on the retroactive pay provisions for current
jobs. The Union in response refused to put into writ-
ing a more favorable clause for Beckham but agreed
that it would not interfere if Beckham could get his
employees to waive retroactive pay. Beckham said
that he could take care of his employees and then
everyone present, including Beckham, announced
that they had an agreement.4
Expressly left open for future action by the negoti-
ating parties was the formation of a joint trade board
and an agreement on residential rates. The agree-
ment on residential rates was held up pending forma-
tion of the joint trade board and was to be included
as an addendum to the contract.
A document reflecting the parties' agreement was
thereafter drawn up for signature. The completed
contract's recognition clause stated as follows:
The Union recognizes the Association as agent
for and on behalf of the companies listed under
Appendix A, hereinafter referred to as the "Em-
ployer," as the primary bargaining representa-
tive for all contractors operating within the geo-
graphic jurisdiction of the Union, as more
particularly set forth herein.'
1. This Agreement is negotiated by the Asso-
ciation acting as agent only for the aforemen-
tioned Employers. For any breach of this con-
tract, the liability of the Employer shall be
several, not joint, and the liability of the Associ-
ation shall be only that of negotiating agent
without liability for any acts of the aforemen-
tioned Employers.
In late September or early October, following rati-
fication of the contract by the union membership,
Pass and Turner signed the contract on behalf of the
Association 6 Approximately a week later, Beckham,
who had not secured retroactive pay waivers from his
employees, called both Pass and Turner and objected
to the fact that they had signed the contract before
agreement was reached as to retroactive pay and resi-
dential rate matters.
Three weeks later, Pass and Turner discussed the
format of Appendix A and agreed that it should have
4 Beckham stated during the private caucus that this or any other agree-
ment, if he did not get relief (presumably as to retroactive pay), would not
do any good because he would be out of business
5 The desirability of having an appendix which listed the names of the
contractors bound by the agreement was brought up at the negotiations and
was agreed to by everyone
6 The contract execution date was backdated to July 31, 1975
signature lines for the various contractors and that
each contractor's signature should be obtained. They
felt that the signatures were needed to clarify and
give support to the fact that the contractors whose
names were listed were definitely assigning their bar-
gaining rights to the Association and agreeing to the
contract as negotiated.
Turner was, as he himself readily admitted, delin-
quent in preparing Appendix A and submitting it to
the Association members. It was not until early De-
cember (and then only in response to pressure from
both the NLRB, which was investigating various
8(a)(5) charges filed in conjunction with the Associa-
tion members' failure to sign the contract, and the
Union, which had individually approached the vari-
ous employers involved in the negotiations in an at-
tempt to get the contract signed)' that Turner pre-
sented the appendix to the Association members for
their signatures.
Beckham refused to sign, stating that he wanted to
take the agreement back to his attorney before affix-
ing his signature. He added, "I have nothing against
signing this document. We have some other things
that we had discussed during the negotiations that I
have to get completed with the Union, at which time
I'll sign the document."
Beckham told Pass and Turner he had heard that
McDaniel did not intend to go union or sign the con-
tract. Consequently, Pass and Turner inked out Mc-
Daniel's name on the appendix. All of the other ne-
gotiating committee members signed the appendix,
either at the meeting or subsequently thereto.
Upon a close review of the above facts, we are
persuaded, contrary to the Administrative Law
Judge, that Respondents are bound by the collective-
bargaining contract negotiated by the Association.
Although we agree in part with the Administrative
Law Judge's statement of the applicable law, we
think that she has taken an unnecessarily restrictive
view of the conditions under which one becomes le-
gally obligated to accept as one's own (and to sign)
the contractual product of joint bargaining negotia-
tions.
It is well established that the test to be applied in
determining such obligation is whether the members
of the group have indicated from the outset an un-
equivocal intention to be bound in collective bar-
gaining by group rather than individual action.' If
this unequivocal intention is appropriately manifest-
ed, the individual employer must accept the results of
the multiemployer negotiations, and cannot at his
' The Union, in October, solicited signatures from both McDaniel and
Beckham Neither signed
8 Fairbanks Dairy, Division ofCooperdale Dairy Company, Inc, 146 NLRB
893 (1964), Korner Kafe, Inc, 156 NLRB 1157 (1966); Bill O'Grady Carpet
Service, Inc, 185 NLRB 587 (1970)
CUSTOM COLORS CONTRACTORS
pleasure renounce his commitment to be bound by
the group action. The Board has repeatedly held that
once commitment to group bargaining is made the
employer can extricate himself from the multiem-
ployer relationship only by making a timely and un-
ambiguous withdrawal from that arrangement (a
withdrawal which, to be timely, must, absent unusual
circumstances, be made before the actual commence-
ment of contract negotiations).9
The manifestation of an "unequivocal intention"
to be bound requires something less, however, than a
solemnly executed document signed and sealed with
hot wax. A commitment to bargaining on a multiem-
ployer basis will not be made to depend on the pres-
ence of a formal associational structure among the
bargaining participants or on the formal delegation
of authority from the individual employer to the mul-
tiemployer group.1° Nor will the Board, faced with
outward manifestations of intent to engage in group
bargaining, consider as controlling an employer's pri-
vate manifestations of dissent. An employer who,
through a course of conduct or otherwise, signifies
that it has authorized the group to act in its behalf
will be bound by that apparent creation of authori-
ty.]]
The record here amply demonstrates that Respon-
dents acted in a manner which unambiguously com-
municated to the Union their desire to abide by the
results of the group negotiations. Thus, the record
shows that prior to 1975 the Association officers con-
templated a changeover to multiemployer bargaining
and changed the bylaws to accomplish this result;
that in May 1975 Beckham and other Association
members agreed to bargaining on a group basis; that,
at the first negotiating session in June, Association
President Pass specifically told the Union that the
Association was bargaining on behalf of its mem-
bers; 'Z that neither Beckham nor McDaniel demur-
red from this announcement; and that Beckham and
McDaniel continued to participate in the bargaining
sessions. Only when it came time to sign a contract
incorporating the terms of the agreement reached on
June 28, did McDaniel and Beckham publicly an-
9 Retail Associates, Inc, 120 NLRB 388 (1958).
10Rayonier Incorporated, Grays Harbor Division, 52 NLRB 1269 (1943),
Korner Kafe, Inc, supra, Bill O'Grady Carpet Service, Inc, supra, Field and
Sons, Inc, 189 NLRB 406 (1971)
11 Intercity Petroleum Marketers, Inc, d/b/a Red Triangle Oil Company,
and Red Triangle Supply Company, Inc, 173 NLRB 1420 (1968), Homer Gale
and Howard Gale, Co-Partners, d/b/a American Sign & Neon Company, 176
NLRB 1049 (1969), Bill O'Grady Carpet Service, Inc, supra, N L R B v
Southwestern Colorado Contractors Association, et al , 379 F 2d 360 (C A 10,
1967)
12
Our reading of the record convinces us that the Association president's
remarks at the first negotiating session concretely and specifically commu-
nicated to the Union the Association 's change in bargaining posture and
were not vague or inexplicit as the Administrative Law Judge found
853
nounce to the Union that they did not intend to be
conclusively bound by the negotiations.
Since both before and during the negotiations Re-
spondents created the appearance of having ac-
quiesced wholeheartedly in the multiemployer ar-
rangement, they are bound by the unequivocal
manifestations of this public acquiescence."
The fact that Respondents McDaniel and Beck-
ham failed to execute bargaining rights assignment
forms does not detract from this result. First, as we
have mentioned above, a commitment to be bound
by group bargaining does not depend upon such a
formal delegation of authority, and, in fact, only two
of the six negotiating committee members signed
such forms. Second, and most important, the exis-
tence of the bargaining rights assignment forms was
not communicated to the Union.
Nor do we find that Respondent's private declara-
tions of intent show such an overwhelming lack of
commitment to group bargaining as might cast doubt
on their public commitment to joint negotiations. Al-
though McDaniel reportedly told Turner that he
wasn't going to assign his bargaining rights to some-
one else, he on two other occasions stated that what-
ever the negotiating committee decided would be sat-
isfactory to him. And although Beckham admittedly
objected to Pass' and Turner's signing the contract
on the Association's behalf, Beckham did not ques-
tion the Association's authority ultimately to bind
him to a contract-he simply questioned the Associa-
tion's right to bind him to what he perceived to be an
incomplete agreement. Moreover, Beckham agreed
at the May Association meeting that the 1975 negoti-
ations be conducted on a group basis.
We also reject the suggestion that the format of
Appendix A negates any inference of a commitment
to multiemployer bargaining. Contrary to the Ad-
ministrative Law Judge's implication, the Union and
the Association did not agree that an employer
would be bound by the contract only if he signed
Appendix A. According to Pass, the necessity for
signing Appendix A was not brought up during the
negotiations. Rather, it was after the negotiations
were completed that Pass and Turner discussed the
desirability of obtaining the employers' signatures on
Appendix A in order to reinforce the individual em-
ployer's commitment to the agreement. The language
of the contract's recognition clause, which makes no
13 Intercity Petroleum Marketers, Inc, d/b/a Red Triangle Oil Company,
supra, American Sign & Neon Company, supra We do not think a different
result is called for by the fact that the Union was not specifically told which
contractors the Association negotiating committee was negotiating for The
Union was told that the negotiating committee was bargaining for all the
Union Division members of the Association and that all the Union Division
members were on the negotiating team From this the Union could easily
deduce the fact that the negotiating committee was bargaining on behalf of
all the employers who were on the negotiating committee
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reference to signatures, supports the conclusion that
the requirement of employer signatures was an after-
thought imposed upon the agreement by Pass and
Turner.
In any event, the fact that individual employers
execute separate but identical contracts rather than
delegating the right of execution to a representative
authorized to act for all is not inconsistent with mul-
tiemployer bargaining and appears, in fact, to be a
common practice.14 The record supports the conclu-
sion that Appendix A was designed to be nothing
more than a substitute for this sort of arrangement.
That signing Appendix A subsequently became for
some parties a sine qua non to agreement on the con-
tract cannot properly be made to reflect on the par-
ties ' original intention.
We are also not persuaded that the Union's at-
tempt in October to get some of the Association
members to sign individual contracts justifies a dif-
ferent conclusion. Faced with an unnecessary and
burdensome delay in the employers' execution of Ap-
pendix A, a delay which Turner admits was caused
by his own negligence, the Union had a perfect and
understandable right to depart from the appointed
procedure and solicit individual signatures.15
Finally, we reject as without merit the Administra-
tive Law Judge's assertion that Respondents are not
bound by the jointly negotiated contract because no
agreement was reached regarding the residential
rates and the waiver of retroactive pay for Beckham.
The record conclusively shows that the Union re-
fused during last-minute negotiations to put into
writing a more favorable clause for Beckham on the
retroactive pay question. It was instead agreed that,
although Beckham would be nominally bound by the
regular contract terms, the Union would take no ac-
tion if Beckham got his employees to waive retroac-
tive pay. Thus, as far as the contract itself was con-
cerned, agreement had been reached. Beckham
agreed to let the present retroactive pay agreement
stand but gambled on being able to secure waivers
from his employees. Further negotiations on the ret-
roactive pay question were neither contemplated nor
called for, since Beckham's ability to secure waivers
from his employees was manifestly not within the
purview of the Union's control."
14 The Evening News Association, d/b/a Detroit News, Knight Newspaper,
Incorporated, d/b/a Detroit Free Press, Detroit Times, Division of Hearst
Publishing Company, Inc, 119 NLRB 345 (1957), Korner Kafe, supra
15 Cf N L R B v Joseph T Strong d/b/a Strong Roofing and Insulating
Co, 386 F.2d 929 (CA. 9, 1967)
16 The fact that Beckham was in some sense given separate treatment
from the rest of the Association members on the retroactive pay question is
of no import Separate agreement between union and individual employers
as to limited matters is not inconsistent with multiemployer bargaining See
The Kroger Co, 141 NLRB 564 (1963), enfd sub nom Retail Clerks Union
No 1550, et al, Retail Clerks International Association, AFL-CIO [The Kro-
ger Company] v NLRB, 330 F 2d 210 (C A D C , 1964)
With regard to the residential rate agreement, the
record shows that the parties agreed to finalize terms
on residential rates once the joint trade board was set
up and that the rates would be incorporated in an
addendum to the contract as they had been in 1972.
Additionally, although not mentioned by the Admin-
istrative Law Judge, Turner testified that the major
stumbling block to agreement on the residential
rates-i.e., the actual percentage of the rates them-
selves-had been agreed to by the Union at the July
28 negotiating session and set at 75 percent.
It is clear therefore that the July 28 terms of agree-
ment were intended by the parties to be final and
binding. The decision to put off for later discussion
the terms of the residential rates effectively disposed
of this last unresolved issue. By this decision, the par-
ties signified that agreement on the whole contract
did not hinge on agreement as to residential rates
and that the contract could become effective without
such an agreement. Contracting parties often table
otherwise negotiable matters by agreeing to renegoti-
ate these at some future appointed time or by agree-
ing to modify the contract upon mutual consent.
Such understandings reflect the presence rather than
the absence of agreement and in no way preclude
enforcement of the completed contract."
Accordingly, since we have found that Respon-
dents Beckham and McDaniel manifested an un-
equivocal intention to be bound by the Association's
bargained-for contract and since neither Respondent
McDaniel nor Respondent Beckham effected a time-
ly withdrawal from this arrangement, we find that by
refusing to honor and adhere to the terms of the con-
tract negotiated in their behalf Respondents violated
Section 8(a)(5) and (1) of the Act.18
REMEDY
Having found that Respondents have engaged in
unfair labor practices within the meaning of Section
8(a)(1) and (5) of the Act, Respondents will be or-
dered to cease and desist therefrom and to take ap-
propriate affirmative action. In recognition of the
fact that the contract negotiated in Respondents' be-
half expires by its terms on June 30, 1976, Respon-
dents will be directed to sign the contract upon the
Union's request and to bargain with the Union as the
exclusive bargaining representative of the employees
in the unit described below, until such time as Re-
spondents timely and unequivocally withdraw from
such unit.
Respondents will also be directed to give retroac-
n See Central Plumbing Company, 198 NLRB 925 (1972)
18 Anderson Lithograph Company, Inc, 124 NLRB 920 (1959), enfd sub
nom N L R B v Jeffries Banknote Company, 281 F 2d 893 (C A 9, 1960)
CUSTOM COLORS CONTRACTORS
tive effect to the contract and make whole any em-
ployees covered by the contract for any financial
losses sustained by them as a result of Respondents'
unlawful refusal to sign the contract, with backpay to
be computed on a quarterly basis in the manner set
forth in F. W. Woolworth Company, 90 NLRB 289
(1950), with interest thereon at the rate of 6 percent
per annum, as set forth in Isis Plumbing & Heating
Co., 138 NLRB 716 (1962).
AMENDED CONCLUSIONS OF LAW
Substitute the following for the Administrative
Law Judge's Conclusion of Law 3:
"3. All journeyman and apprentice painters, dry-
wall finishers, paperhangers, and sandblasters em-
ployed by members of the Association, excluding all
other employees, guards, and supervisors as defined
in the Act, constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of
Section 9(b) of the Act.
"4. At all times material herein the Union has
been the recognized representative of the employees
in the above appropriate unit for purposes of collec-
tive bargaining within the meaning of Section 9(a) of
the Act.
"5. By refusing to honor and abide by the contract
agreed to by the Association and the Union on July
28, 1975, and executed by them effective on July 31,
1975, Respondents Beckham and McDaniel have en-
gaged in unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act.
"6. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and (7)
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 Respondent Joseph
McDaniel, an Individual Proprietorship d/b/a Cus-
tom Colors Contractors, Orlando, Florida, and Re-
spondent Beckham, Inc., Orlando, Florida, their offi-
cers, agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Refusing to honor and abide by the collective-
bargaining agreement executed by the Association
and the Union effective on July 31, 1975, and refus-
ing to comply with the agreement's terms.
(b) Refusing to bargain on an Association basis
with the Union until such time as Respondents shall
timely and unequivocally withdraw from such a bar-
gaining arrangement.
(c) In any like or related manner interfering with,
855
restraining, or coercing employees in the exercise of
their rights under Section 7 of the Act.
2. Take the following affirmative action:
(a) Upon request of the Union, sign and give ret-
roactive effect to the contract executed by the Asso-
ciation and the Union effective on July 31, 1975, and
make whole any employees covered by the contract
for any monetary losses they may have suffered as a
consequence of Respondents' refusal to sign the con-
tract in the manner set forth in the remedy section of
this Decision and Order.
(b) Upon request, bargain with the Union as the
exclusive representative of all employees in the fol-
lowing appropriate unit:
All journeyman and apprentice painters, dry-
wall finishers, paperhangers, and sandblasters
employed by members of the Association, ex-
cluding all other employees, guards, and super-
visors as defined in the Act,
until such time as Respondents shall timely and equi-
vocally withdraw from the above bargaining unit.
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(d) Post at their Orlando, Florida, places of busi-
ness copies of the attached notices marked "Appen-
dix A" and "Appendix B," respectively.19 Copies of
said notices, on forms provided by the Regional Di-
rector for Region 12, after being duly signed by Re-
spondents' representatives, shall be posted by Re-
spondents immediately upon receipt thereof, and be
maintained by them for 60 consecutive days thereaf-
ter, in conspicuous places, including all places where
notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondents to in-
sure that said notices are not altered, defaced, or cov-
ered by any other material.
(e) Notify the Regional Director for Region 12, in
writing, within 20 days from the date of this Order,
what steps Respondent have taken to comply here-
with.
MEMBER WALTHER , dissenting:
I cannot agree with my colleagues' conclusion that
Respondents Beckham and McDaniel manifested an
unequivocal intention to participate in multiemploy-
er bargaining and are therefore required to abide by
19 In the event this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
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
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the contract purportedly negotiated in their behalf.
My colleagues have, I am afraid, overstepped the
bounds of descriptive lexicography and have wres-
tled unexpected new meaning from the word "un-
equivocal." What they find to be unequivocal I find
to be fraught with ambiguity, uncertainty, and dis-
guise.
The record shows that prior to 1975 the members
of the Association bargained as a group but with the
intention that each employer would sign a separate
contract with the Union and be bound individually
to the terms of that contract. Although the record
reveals that some efforts were made before the com-
mencement of the 1975 negotiations to convert this
method of bargaining into a multiemployer bargain-
ing arrangement, the record does not indicate that
this purpose was effectively communicated either to
the Association members themselves or to the Union.
Rather, we are confronted, in a significantly large
number of instances, with behavior on both the
Union's and Respondents' part which suggests that
no departure from the old bargaining scheme was
envisioned by the bargaining participants. While the
record does contain evidence that group bargaining
was contemplated, this evidence is not of the con-
vincing unambiguous variety required by the Board
to prove consent to a multiemployer bargaining ar-
rangement.
Thus, although Turner testified that the Associa-
tion bylaws were amended to prepare the way for
multiemployer bargaining, there is no reference in
the bylaws to such bargaining, nor is it shown that
the Respondents were made aware of the change.
Similarly, while it is established that at the May
meeting a changeover to group bargaining was dis-
cussed, there is no evidence that Respondent Beck-
ham specifically participated in this discussion or
that Respondent McDaniel, who was absent from
the meeting, was notified as to what had been agreed.
Additionally, there is no evidence that at the first
negotiating session Respondents Beckham and Mc-
Daniel heard or understood Pass' remarks indicating
that bargaining would be on a multiemployer basis.
The record is populated with incidents and facts
which contradict my colleagues' conclusion that mul-
tiemployer bargaining was clearly intended. As the
Administrative Law Judge observed, the Union was
not told which specific contractors the Association
was bargaining for nor does it appear that the Union
deduced the names of these contractors, as my col-
leagues suggest.20 When, during the negotiations, Re-
20 This fact is borne out by Johnson's testimony that he sought the signa-
ture of individual contractors to the agreement because "I didn't have no
names I didn 't know who was members, who wasn't members , or anything
spondents Beckham and McDaniel were solicited to
assign their bargaining rights to the Association, both
declined, McDaniel stating expressly that he was not
going to give his rights to somebody else. Later, after
the July 28 final negotiating session, Beckham chal-
lenged the right of Turner and Pass to sign a contract
without reaching agreement on the retroactive pay
and residential rate questions.
Furthermore, Pass and Turner, the instigators of
the group bargaining plan, demonstrated that even
they were uncertain as to whether the Association
members had consented to multiemployer bargain-
ing. Both testified that Appendix A was designed to
provide for individual signatures in order to bolster
each member's consent to be bound by the contract,
consent which Pass admitted was at that time only
implied.
Finally, the Union itself acted in a manner which
suggests that it had no firm understanding that mul-
tiemployer bargaining was intended, when after the
contract was drafted it sought to obtain signatures to
the contract individually from the various contrac-
tors involved.
My colleagues make much of the fact that Respon-
dents Beckham and McDaniel never communicated
to the Union a desire not to be bound by the Associ-
ation's bargaining and thus created the appearance
of having acquiesced in a multiemployer bargaining
arrangement. But upon close examination it appears
that Respondents' only contributions to this creation
of apparent authority were their silence at the first
negotiating session and their continued appearance
at the negotiating sessions." I would not base the
manifestation of an unequivocal intention to be
bound on so slim a reed, especially considering the
parties' past bargaining history.
Bargaining on a multiemployer basis is "rooted in
consent." 22 It is for that reason that the Board re-
quires that contracting parties unequivocally mani-
fest an intention to participate in group bargaining,
before it finds a multiemployer unit to be appropri-
ate?' Where there is no prior history of multiemploy-
er bargaining, as is the case here, the Board must
insist on affirmative clear evidence of parties' con-
sent to engage in joint bargaining in establishing this
unequivocal intention. For the reasons given above, I
do not find such evidence to be present.
As an additional reason for not requiring Respon-
dents to abide by the agreement negotiated in 1975, I
21 McDaniel, of course, only participated in two or three bargaining ses-
sions
22 The Evening News Association, Owner and Publisher of "The Detroit
News," 154 NLRB 1494 (1965)
23 Council of Bagel and Bialy Bakeries and its Employer Members, 175
NLRB 902 (1969)
CUSTOM COLORS CONTRACTORS
would find that no agreement had in fact been
reached. The matter of residential rates was, contrary
to what my colleagues' suggest, an intrinsic and nec-
essary part of the contract-not something without
which the contract could "float on its own." It was
clearly contemplated-and Beckham's protest to
Pass and Turner bears this out-that until a residen-
tial rate agreement was reached the contract would
not be final. Since negotiations on the residential
rates were still going on at the time of the hearing, I
would not require Respondents to sign what is at best
an interim agreement.
In conclusion, I would adopt the Decision of the
Administrative Law Judge and would dismiss the
complaint in its entirety.
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL, upon request of the Union, honor
and give retroactive effect to the contract execu-
ted, effective on July 31, 1975, and WE WILL
compensate any employees covered by the con-
tract for any monetary losses they may have suf-
fered as a result of our refusal to sign the con-
tract.
WE WILL, upon request of the Union, bargain
with the Union as the exclusive representative of
the employees in the following unit:
All journeyman and apprentice painters, dry-
wall finishers, paperhangers, and sandblasters
employed by members of the Central Florida
Chapter, Painting and Decorating Contrac-
tors of America, Union Division
until such time as we shall timely withdraw from
the above unit.
WE WILL not in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed in Sec-
tion 7 of the Act.
JOSEPH MCDANIEL, AN INDIVIDUAL
PROPRIETORSHIP d/b/a CUSTOM COLORS
CONTRACTORS
APPENDIX B
857
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL, upon request of the Union, honor
and give retroactive effect to the contract execu-
ted, effective on July 31, 1975, and WE WILL
compensate any employees covered by the con-
tract for any monetary losses they may have suf-
fered as a result of our refusal to sign the con-
tract.
WE WILL, upon request of the Union, bargain
with the Union as the exclusive representative of
the employees in the following unit:
All journeyman and apprentice painters, dry-
wall finishers, paperhangers, and sandblasters
employed by members of the Central Florida
Chapter, Painting and Decorating Contrac-
tors of America, Union Division
until such time as we shall timely withdraw from
the above unit.
WE WILL not in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed in Sec-
tion 7 of the Act.
BECKHAM, INC.
DECISION
STATEMENT OF THE CASE
ANNE F. SCHLEZINGER, Administrative Law Judge: Upon
charges filed on November 17, 1975,1 by International
Brotherhood of Painters & Allied Trades, AFL-CIO, Local
Union No. 1010, herein referred to as the Charging Party
or the Union, the General Counsel of the National Labor
Relations Board, by the Regional Director for Region 12,
issued an order consolidating cases, consolidated com-
plaint, and notice of hearing on January 9, 1976. The con-
solidated complaint alleges, in substance, that Joseph Mc-
Daniel, an Individual Proprietorship d/b/a Custom Colors
Contractors, and Beckham, Inc., herein referred to individ-
ually as Respondent McDaniel and Respondent Beckham
and jointly as the Respondents, who are members of Cen-
tral Florida Chapter, Painting and Decorating Contractors
of America, Union Division, referred to herein respectively
as the Contractors Association and the Union Division, an
association of employers which negotiates contracts on be-
half of members who have recognized the Union as the
collective-bargaining representative of their employees, re-
fused to sign and to comply with the terms of a collective-
1 All dates hereinafter refer to 1975 unless otherwise indicated
858 DECISIONS OF NATIONAL
bargaining contract , effective July 15 , 1975, to June 30,
1976, which the Association negotiated on behalf of mem-
bers including the Respondents , and thereby violated Sec-
tion 8 (a)(5) and ( 1) of the National Labor Relations Act.
The Respondents in their answers duly filed , and amended
by Respondent McDaniel at the hearing , admit some of
the factual allegations of the complaint , but deny that their
conduct was violative of the Act.
Pursuant to notice , a hearing was held before me in Or-
lando, Florida, on March 29, 30, and 31, 1976. All the
parties appeared at the hearing and were afforded full op-
portunity to be heard , to examine and cross -examine wit-
nesses, and to introduce relevant evidence . At the opening
of the hearing , the General Counsel made an opening
statement, and at the close of the hearing all counsel pre-
sented closing arguments . Only Respondent McDaniel
filed a brief, on or about May 3, 1976, which has been duly
considered.
Upon the entire record in these cases and from my ob-
servation of the witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
Joseph McDaniel, an Individual Proprietorship d/b/a
Custom Colors Contractors , is engaged in performing
painting work on construction sites in the State of Florida.
Beckham, Inc., is a Florida corporation engaged in indus-
trial , commercial , and institutional painting and decorat-
ing. Central Florida Chapter , Painting and Decorating
Contractors of America , Union Division , is an association
of employers whose members are painting and decorating
contractors in the central Florida area , which negotiates
collective -bargaining contracts with the Union on behalf of
its members who have recognized the Union as the collec-
tive -bargaining representative of theirjourneymen and ap-
prentices engaged in painting , drywall finishing , paper-
hanging, and sandblasting . Respondent McDaniel has
been a member of the Association since on or before June
1972. Respondent Beckham has been a member of the As-
sociation since on or about June 1975.
Employer members of the Association , during the 12
months preceding the issuance of the consolidated com-
plaint, collectively purchased and received goods, supplies,
and materials valued in excess of $50,000 directly from
points outside the State of Florida , and performed services
valued in excess of $50 ,000 for concerns which meet a di-
rect standard of the Board for assertion of jurisdiction. The
complaint alleges, the Respondents admit, and I find that
all employer members of the Association are, and at all
times material herein have been, employers engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the Respondents admit, and I
find that International Brotherhood of Painters & Allied
Trades, AFL-CIO, Local Union No. 1010, is, and at all
LABOR RELATIONS BOARD
times material herein has been , a labor organization within
the meaning of Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The issues are whether certain contractors who prior to
1975 negotiated with the Union as a group but for separate
employer agreements , in 1975, through the Union Division
of the Contractors Association , negotiated and entered
into a contract with the Union for a multiemployer unit
which was binding upon the Respondents , and whether the
Respondents , by failing to make a timely and unequivocal
withdrawal from the multiemployer unit , and by failing
and refusing to sign or to abide by the terms of the con-
tract, violated Section 8(a)(5) and (1) of the Act.
The General Counsel called as witnesses certain union
representatives and employer members of the Union Divi-
sion. Respondent Beckham recalled some of these witness-
es and called other witnesses on its behalf . Respondent
McDaniel called no witnesses . Both McDaniel and Beck-
ham were present during much of the hearing but neither
was called to testify . The testimony as to what occurred is
in large part undisputed , but the parties dispute the legal
effect of what occurred
B. Bargaining History
The parties are in agreement that a number of contractor
members of the Association had, prior to 1975 , bargained
with the Union as a group , but that each contractor signed
a separate contract with the Union and was bound individ-
ually to the terms of that contract . The contract prior to
the one here in issue was negotiated in 1972 for a 3-year
period , July 1, 1972 , to June 30 , 1975. A copy of that con-
tract , placed in evidence by Respondent Beckham , is enti-
tled "Agreement" of the Union , provides that it shall be
between the Union and the signatory painting contractor
or employer , contains signature lines for the Union and for
"FIRM NAME OF EMPLOYER," and has a blank execution date.
The General Counsel and the Charging Party maintain
that this pattern of bargaining changed in 1975, and that a
number of contractors including the Respondents became
bound to a single 1-year Association-union contract. The
parties are in agreement as to the appropriateness of a unit
composed of employees engaged as journeyman and ap-
prentice painters , drywall finishers, paperhangers, and
sandblasters.
C. Formation of the Union Division
Pass, president of Pass Painting Company and president
of the Contractors Association , and Turner , vice president
of Boyd E. Hart, Inc., and secretary of the Association,
testified that the Association bylaws were changed to set
up a union division and a nonunion division . Pass testi-
fied that this was begun shortly after the 1972 contract
negotiations, that the procedures for such amendment took
about a year and were completed in 1973, before he be-
came president and while , he thought , Turner was presi-
dent ; and that this was done "so that the union could offi-
CUSTOM COLORS CONTRACTORS
cially recognize the PDCA as the bargaining agent for
union painting contractors in this jurisdiction." Turner tes-
tified that the bylaws were amended a few months before
the 1975 negotiations began, and that the purpose was to
provide for the employer members who recognized the
Union to negotiate for a single-unit contract.
The bylaws, placed in evidence by the Charging Party,
are headed "Proposed new bylaws," but Turner testified,
on cross-examination by Respondent McDaniel, that they
were carried in this form, that he did not recall when and
the document in evidence is undated, that he did not know
but thought it took a quorum to do this, that he did not
recall who was present and did not know if there was a
quorum, that he doubted if absent members were notified
of this action, and that this was the only bylaw relating to
setting up the two divisions, a "Union division composed
of Painting and Decorating Contractors holding agree-
ments with local Painters and Decorating Unions," and a
"Non Union division" composed of contractors who do
not. There is, as Pass and Turner admitted, no reference in
the bylaws to the purpose of the two divisions or to collec-
tive-bargaining negotiations. Pass testified that he did not
recall if McDaniel was a member of the Association when
the bylaws were changed.
D. The 1975 Negotiations
1. The Union's request
Johnson, business manager of the Union for about 10
years, sent a telegram dated April 14 to Beckham as "Secy-
Treas., Union Affiliate, Central Florida Chapter, PDC of
A," which stated: "Please be notified that Painters Local
Union #10 10 wishes to re-open the Working Agreement
for negotiations. Notification of meeting dates will be sub-
mitted later " z Johnson testified, on cross-examination by
Respondent McDaniel, that "first of all, we notified the
contractors by nightletter, by mailgram-whatever it
was-that we wished to negotiate. That was prior to the
30th of March, 1975. Then we sent a letter to I believe Mr.
Pass, stating that we wished to start negotiating on a partic-
ular date and we'd meet at the union's hall on that date";
that these communications were sent, not only to Pass and
Turner, but "to all of them, because at that time we hadn't
laid down the rules for the negotiating committee "
2. The Association 's response
Pass and Turner testified that there was a Union Divi-
sion meeting around May , after the Union 's telegram was
received , about the upcoming negotiations , at which they,
Wohl, and Beckham were present , and McDaniel and
Knuth were not, that Pass stated at this meeting they
would negotiate as the Union Division, not as individual
contractors as they did in the past , and that this was dis-
cussed and agreed on by all of them . Pass also testified that
2 This telegram , which was placed in evidence by Respondent Beckham,
was also sent to Turner at Boyd Hart, Pass at Pass Painting Vickery, Cather
Drywall, Orange Drywall, Florida Adywall, Craddock Drywall Custom
Colors, and Miller Painting
859
there was no discussion prior to the May meeting as to the
scope of the bargaining unit, but that it was decided at that
meeting the Association would represent the Union Divi-
sion members in the negotiations, and there would not be
individual companies acting in a group as prior contracts
were negotiated. Turner testified that agreement was
reached "pending some telephone calls" that the Union
Division "was going to be the bargaining unit for the con-
tractors, and . . . we elected to have all of the members
that belonged to the Union Division or at that time had
contracts with the union sit on the negotiating team"; that
he telephoned McDaniel and Knuth who were not "at that
meeting in May-if it was in May"; and that "at the meet-
ing or sometime subsequent thereto all of the people on
this list were aware that they were on the negotiating com-
mittee." Turner also testified, on cross-examination by Re-
spondent McDaniel, that he telephoned McDaniel and
told him, "we're starting negotiations over again and at a
regular PDCA meeting we decided that the negotiating
team would consist of all the Union Division members.
Are you gonna come with us and negotiate?" Turner also
testified that neither of the Respondents objected to being
on the negotiating team.
A letter to the Union dated June 18, signed by Turner as
secretary, states under the heading "Negotiation of agree-
ment between Central Florida Chapter P.D.C.A." and the
Union
We respectfully submit the following names to serve
as the negotiating committee of P D.C.A.,
1. William Pass-Chairman
2. Robert Wohl-Co. Chairman
3. Frank Turner-Member
4. Harry Beham-Member
5. Joe McDaniel-Member
6. Richard Knuth-Member
Per prior agreement to the P.D C A committee pro-
poses to meet with the negotiating committee of Local
Union June 24, 1975.
We respectfully request a roster of Local Union
1010's negotiating committee . . . [sic].
Turner testified that he could not recall why this letter
was prepared or whether the Union requested it, and that,
while it was standard procedure for each side to name its
negotiating team, he did not know if it was previously done
in writing.
3 Assignments of bargaining rights
Pass and Turner had copies of a form entitled "Assign-
ment of Bargaining Rights and Designation of Collective
Bargaining Agency." 3 None were signed prior to opening
of the contract negotiations on June 24. Pass testified that
he "was one of the ones that initiated the assignment",
that, after getting the Union's telegram, the Association
asked the Union for a list of people who had a prior agree-
ment with the Union; that the list of about 20 included
nonmembers of the Association; and that he directed that
a
The form, which was placed in evidence by Respondent Beckham, has a
blank signature line but is signed by Turner acknowledging acceptance as
secretary of the Contractors Association
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the assignment forms be hand -delivered or mailed to all
those on the list "that we already had or were in the pro-
cess of getting from the union , in order that we might ac-
quire their bargaining rights for the-in negotiations for
the new agreement," and, in addition , "if we had any rea-
son to believe that they might be performing work in the
area during the term of the next agreement , then we sent
them an assignment of bargaining rights form."
Pass testified at different points that dunng the negotia-
tions the Association tried to get these forms signed by all
the Union Division members; that he personally solicited
Turner , Beckham , McDaniel , and Knuth , to sign them;
that he asked some in a group and may have asked some
by telephone; that each one was given a copy by him or
Turner and he "explained that the purpose of the form was
to assign bargaining rights to the association , speaking of
the Union Division , giving up power to negotiate for them,
as an association , and not as individuals , in the collective
bargaining agreement"; that no one in the group signed a
copy and handed it back at the meeting , some saying they
wanted time to read it as it was "a very legal-sounding
format"; that while he had several copies for at least a
month , he delayed getting his own in , but did sign one,
early in the negotiations but after the first session on June
24, and gave it to Turner at a negotiating session; that he
has seen others signed only by Turner and one company
whose name he could not recall and who may have been a
construction or an out -of-town company ; that he has not
seen one signed by Beckham , and did not recall any partic-
ular conversation about it with McDaniel; that he did not
recall if McDaniel was present when the assignment forms
were presented to a group , or if he ever personally pre-
sented one to McDaniel or discussed it with McDaniel;
that sometime before June 24 he spoke to all the Union
Division members about the assignment and about negoti-
ating as a group , not as individual contractors; and that he
arranged that all in the Union Division and others, about
20 in all, would receive copies, that anyone who had a prior
union contract was to get a copy by hand or mailed from
the Association secretary.
Turner testified that he sent some of these forms, that he
thought perhaps Pass sent some , and that to the best of his
recollection they were sent to "all of the union members of
the PDCA. . . . Six-five"; that he did not recall sending
any "out of the jurisdiction"; and that he received executed
assignments from his company , from Pass , and from a
company whose name he did not recognize, and that he did
not receive any from McDaniel or Beckham . Turner testi-
fied , on cross-examination by Respondent McDaniel, that
he did not recall if he mailed an assignment to McDaniel
but that, after they were tendered, he discussed it with Mc-
Daniel at a meeting of the employer negotiators at which
Beckham also was present ; that McDaniel said "he wasn't
assigning his bargaining rights to PDCA" and, when he
asked why , McDaniel "said, `I'm not gonna give my right
to somebody else,' something to this effect "; and that Mc-
Daniel continued to be on the negotiating team although
he attended only about the first two or three negotiating
sessions . Turner testified that he had a conversation with
Beckham at the same time as with McDaniel but did not
recall what was said.
4. The negotiations
The Union presented a written proposal that was a com-
pletely new agreement , not an amendment of the prior
contract . It had no wage schedule but one was presented
later. No other written proposal was submitted , and the
one presented by the Union served as the basis for the
negotiations . No one took minutes of the negotiations, and
no one had a clear recollection of when and where each
negotiating session was held, who was present , or what
transpired.
Johnson , who testified that he was present as the princi-
pal union negotiator at all the bargaining sessions, also
testified that the first session was on June 24 and "I don't
know definitely , but I 'd say there must have been four or
five or probably six meetings" prior to the last one on July
28; he thought those present at the first session were
Turner , Pass, Beckham "and I believe there was Joe Mc-
Daniel, Dick Knuth-and, the-I don't remember"; and
that , as to those present at the later sessions , "I believe it
was pretty close to the first meeting , because we wanted to
determine who we were negotiating with ." Johnson also
testified that "I believe it was the chairman , Mr. Pass, who
said that the association Union Division would represent
all of the contractors , all the union contractors , for the
painting and contracting association. . . . Well, I can't re-
member distinctly who said it; but, I know that I said, well,
that was fine , and I agreed, and we wanted to make it clear
that we were representing-that the association was repre-
senting all the union contractors at that time ." He admitted
that at no time dunng the negotiations did anyone give him
a list , or even state the number , of these contractors.
Johnson further testified:
A. Well, after the first meeting we were assured that
the PDC of A was representing all the union contrac-
tors of that particular chapter, the Central Florida
Chapter.
Q. And, did you know who those members were?
A. Yes, the chairman of the PDC of A negotiating
committee sent me a letter with all the names of their
committeemen on the negotiating committee . I did the
same for them.
Q . . .. I was asking you if you knew who the mem-
bership was of the PDCA, the people for whom the
PDCA was supposedly negotiating?
A. No, I didn' t. I knew of the list that they sent me;
that's all.
Q. And, the list was only of the members-
A. On the negotiating team.
Asked again about the statement by Pass at the first session
about the contractors for whom he was negotiating, John-
son testified that, in addition , "I believe he sent us a letter
to that effect.... It must have been sometime prior to
June 24th"; that that letter was the one that named the
negotiating team ; and that Johnson did not recall that any-
thing further was said, when they sat down to negotiate,
about "who was being represented and who the contract
CUSTOM COLORS CONTRACTORS 861
was being negotiated between." Johnson also testified that
McDaniel was at only the first one or two sessions but he
did not recall seeing McDaniel after that; that he thought
Wohl and Vickery were not at the first session, and no
nonmembers were at the first couple of sessions, but, at
about the third or fourth session , Vickery was introduced
as a union contractor who was not a member of the Con-
tractors Association, "and they wished him to be a part of
the negotiating team" and he "was admitted as a part of
the team, the negotiating team"; that he did not believe
any other nonmembers did so; and that as a result of these
negotiations the Union entered into an individual contract
with Vickery.
West, a special representative of the Union, was also at
all the negotiating sessions. He testified that Pass at the
first session said the contractors were going to negotiate as
an association for their members, that Johnson responded
that the Union preferred to negotiate with an association
for all members of the Association, and that he did not
recall what anyone else said in the matter. On cross-exami-
nation by Respondent McDaniel, West testified that the
contractors present were introduced as the negotiating
committee and members of the Association, that he did not
know who the other members were, and that McDaniel
never indicated an intent to be bound by the agreement
"other than being present" at the first couple of sessions.
Pass testified that he was at all the negotiating sessions;
that they were held, he thought, on June 24, and July 16,
17, 24, and 28; that there were "several meetings in be-
tween that weren't official"; and that there may have been
other meetings during June and July but he could not re-
call the dates or the places Pass also testified that, "as
chairman of the team," he stated as one of the first points
brought up "the fact that we were bargaining as the associ-
ation, and not as individual members. And, we had at that
time also a week previous to that submitted our letter giv-
ing the names of our negotiating team." Pass admitted,
however, on cross-examination by Respondent McDaniel,
that "We never told them what specific contractors we
were negotiating for. We did tell them that all the Union
Division members of PDCA were also on the negotiating
team, and they understood that point, as far as I know";
that the authority to bargain as a group "was implied from
all of the people that were in the Union Division, PDCA,
that were also all on the negotiating committee, that we
were bargaining as an association to reach a contract. And,
as that, I felt that the association had the implied accep-
tance from these people that we were bargaining for their
companies. . . . This was implied by me personally from
all the general discussion that we, as Union Division mem-
bers, had in meetings and informal gatherings prior to ne-
gotiations . We didn't have express implied consent of any
one particular contractor, directed to the association, that
the association was bargaining for them"; and that Mc-
Daniel was present at one such gathering, the only one
Pass could specifically remember which was "just prior to
walking into the negotiating room on the first day of nego-
tiations," but he could not recall anything that he and Mc-
Daniel said. Pass also testified that, during a break at the
second session, McDaniel "mentioned to me as we were
walking down the hall that he wasn't gonna be able to
attend all the negotiating sessions, that he had other busi-
ness that he was trying to perform at the time, and he
wouldn ' t be able to make all the sessions . And, he wasn't
even sure at the time if he was gonna remain union or not,
and whatever we decided upon , if he did , was fine with
him." He also testified that they had no further discussion
of this thereafter ; that he telephoned and visited McDaniel
on many occasions , but reached him only once or twice, to
let him know the time and place of meetings "and if he was
available to come , he could , because he was part of our
negotiating team", and that McDaniel replied he would
come if he could , but was at only one or two sessions after
the first one.
Turner testified that he thought there were five or six
employers in the Union Division and four or five members
of the Association who were nonunion; that the composi-
tion of the employer negotiating panel was the same in
1975 as in prior negotiations; that neither McDaniel nor
Beckham objected to being on the negotiating team; that
McDaniel was named on "a list of the negotiating commit-
tee" that was sent to the Union, but that nothing was ever
expressed at these sessions as far as the committee repre-
senting McDaniel individually in a contract . Turner also
testified that his letter of June 18 was "a list of the people
who were sitting as the negotiating team for the Union
Division , PDCA , and that , "As I recall, Bill Pass, the chair-
man of the contractors ' bargaining unit , stated . . to the
union negotiators-at one of the very first meetings that we
were bargaining as an association , Union Division of
PDCA"; that the first two or three or possibly four meet-
ings were held at the union hall; that he could not recall
who was at each meeting ; that he thought he , Pass, Wohl,
and McDaniel were at the first session but he could not
recall if Beckham was; that "all the members that we've
talked about before on the negotiating committee , except
Mr. Vickery , at one time or another attended some of those
meetings at the union hall"; that he telephoned McDaniel
once , or Pass did, he did not recall when , for one of the
sessions , and McDaniel said if he was not too busy he
would come ; and that McDaniel attended "Two, three,
four at the very, very most," and Beckham "attended most
all of the meetings ." Turner also testified that , in addition
to the call he or Pass made , "I had one more conversation
with Mr . McDaniel. That was held out on the porchway of
the union hall , which was during the first or second or third
meeting-I can't recall exactly which one-in which Mr.
McDaniel said that-yeah, he didn ' t necessarily have-
let's-Mr . McDaniel said that it didn 't look like he was
gonna have time for this , it was gonna be a long , drawn-out
situation , whatever we'd do, let him know , it'd he okay
with him, or something to that effect . I cannot exactly re-
member his words."
5. The July 28 session
At the July 28 session , when the contractors present
came back to the conference room at the union hall after a
caucus, Pass stated that they were in agreement except that
Beckham had to be given relief on the retroactive pay pro-
visions for current jobs, and they could negotiate whether
it would be for 90 or 120 days. In the discussion of this
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
matter , which had been raised at prior sessions , the union
negotiators stated , as Johnson testified , that the Union
would not sign or put in writing a more favorable clause
for Beckham ; Turner or Pass said "We're not asking for
more favorable situations . . . We dust have to find some
relief , to get this contract squared away , because Mr. Beck-
ham needs it"; Johnson said the Union would take no ac-
tion if Beckham could get his men to waive the retroactive
pay; Turner "made it specific that we weren ' t gonna have
any problems , if the men said okay"; Beckham said he
could take care of his men; and they agreed the waiver
period should be 90 days, until October 1 . The negotiators
present then shook hands and said they thought they had
an agreement . When the General Counsel asked whether
either Respondent , at any time prior to the end of that
meeting, ever indicated "to the association , either orally or
in writing, that they didn ' t intend to abide by or be bound
by the contract," Turner answered that "Beckham made a
comment during caucus that-his comment was that this
agreement or any other agreement , if he didn't get any
relief , wasn't gonna do any good , because he'd be out of
business."
6. The contract
The contract which is in evidence states that it is effec-
tive as of July 15,4 and that it was executed on July 31.
Johnson testified that the parties consummated the con-
tract on July 28. It is signed by Johnson, designated as the
Union "REPRESENTATIVE ," and by Pass, president, and
Turner, secretary, of the Union Division under "FIRM NAME
OF EMPLOYER " Pass testified that he has not signed the con-
tract for his company . Turner testified that the contract
was signed for Boyd Hart , his company, as well as by him-
self as Association secretary.5 It was signed by all three
signatories in late September or early October. None of
them could place the date of execution more definitely
than that.
Article XXI of the contract, entitled "NO SUB CONTRACTING
AND WORK PRESERVATION ,' is inked out and marked "Delete"
with the initials W.P. and A.A.J. Johnson testified this de-
letion was made on the day of signing , after the contract
had been ratified by the membership.
A letter from Pass to Johnson dated July 16, placed in
evidence by Respondent Beckham, is headed "Re: Wage
Proposal," makes certain wage proposals "for the ensuing
contract year (thru 30 June 1976)" including proposals that
"Residential , repaint and small commercial as defined in
present contract to be 70% of Base Journeyman rate. Other
conditions same as present contract ," and concludes:
"This proposal is an emergency measure. At any time that
it is determined by the Joint Trade Board that the volume
of work being controlled by contractors employing Union
members is increased sufficiently , negotiations for a new
wage proposal will be instituted."
Turner testified that no agreement was reached in July
as to the rates on residential work or the line to be drawn
4 As discussed below, the Union called a strike on July 15
5 Charges filed by the Union alleging unlawful refusal to sign the contract
by Pass Painting , Boyd Hart , and Cather Industries were withdrawn
between the rates for small commercial and other work;
that "The union 's position was, `Well , when we get a joint
trade board formed , we'll give you a residential rate' "; that
when the Association requested incorporation in a written
addendum to the contract of provisions on rates for resi-
dential and small commercial work , the Union stated that
its International would not ratify them and that "as we get
the joint trade board set up , we'll get it discussed and get it
worked out", and that he could not recall if other provi-
sions were omitted from the printed contract . Turner testi-
fied further, as to the two matters that were incomplete
when the contract was executed , that "Some of the con-
tracts in the area are using the 75 percent residential rate,
based on the contract before's writings , plus the fact that
the joint trade board has been in three , four-two or three
meetings-we're discussing the residential rate, and it's
being prepared for written form , as well as the formation of
the exact wordage of the point trade board , which is part of
the contract ." He also testified that the joint trade board is
made up of management and labor members and handles
disputes of various kinds prior to a strike or litigation.
These provisions were still under discussion at the time of
the hearing herein , when more than half of the I-year con-
tract term had run.
The signed document provides that it is entered into with
the Union by the Union Division on behalf of all its mem-
bers, severally and collectively referred to as the Employer,
and contains the following:
ARTICLE I
RECOGNITION CLAUSE
A. The Employer agrees to recognize the Union as the
sole bargaining agent for all of its employees in those
classifications which are set forth in the wage scale
contained in Article XII, including any other work
claimed to be within the jurisdiction of the Interna-
tional Brotherhood of Painters and Allied Trades.
B. The Union recognizes the Association as agent for
and on behalf of the companies listed under Appendix
A, hereinafter referred to as the "Employer," as the
primary bargaining representative for all contractors
operating within the geographic jurisdiction of the
Union, as more particularly set forth herein.
1. This Agreement is negotiated by the Association
acting as agent only for the aforementioned Em-
ployers. For any breach of this contract, the liability
of the Employer shall be several, not point, and the
liability of the Association shall be only that of negoti-
ating agent without liability for any acts of the afore-
mentioned Employers.
2. In the event that the membership of any member
of the Association shall terminate , this Agreement
shall remain in full force and effect during its current
term as to the withdrawing member Employer.
Turner testified that Beckham told him, sometime be-
tween July 28 and October 1, that he was preparing waivers
for his employees releasing him from retroactivity and
wage increase provisions until October 1 Pass testified that
he did not recall any discussion with Beckham about em-
ployee waivers after July 28, and that he has discussed the
CUSTOM COLORS CONTRACTORS 863
Beckham problem with Johnson but did not recall when
these telephone conversations took place or what was said.
Pass also testified that, a few days after signing the con-
tract, he left a copy at Beckham's office, and that, about a
week after the contract was signed , Beckham telephoned
and wanted to know why the contract was signed without
the provisions as to residential rates and the trade board.
Turner testified that Beckham also telephoned him in
early October, on the same day he signed the contract or a
day or two after that, and they had the following conversa-
tion: "He wanted to know what in the world Bill [Pass] and
I were doing down there, signing the contract. And, I asked
him-I said, `Well, down there signing the contract. It was
ratified and agreed on, the whole nine yards.' And, Mr.
Beckham mentioned to me that it certainly wasn't a con-
tract until certain other circumstances, situations , regard-
ing pay and retroactivity, and at that particular time, if I
remember correctly, the mention of the residential rate was
also mentioned, that these things needed to be taken care
of before we had a contract, and that as far as he was
concerned, Bill Pass and I had no right to sign it until the
situation was squared away."
7. The strike
The contract, as noted above, has an effective date of
July 15. Johnson testified that the Union called a strike
that began on July 15 and lasted about 10 days to 2 weeks;
that "We had already given the contractors two weeks
without any-without coming to an agreement. Our con-
tract expired-July 31st." This was followed by the Gener-
al Counsel's question, "The old contract, you say, had ex-
pired June 30, so it was two weeks later, July 15?" Johnson
answered, "And, one of the negotiating deals was that they
wanted it to extend to September 1st. We brought the pro-
posal back to the membership, and they voted it down;
they voted to go on strike. So, on the 15th we went out on
strike." 6 As to the reasons, Johnson testified, "One was the
retroactive pay, and the other was the-I believe they had
tendered us a wage increase the 1st of January, which the
membership voted down." Johnson testified that the strike
in July during negotiations was against all employers em-
ploying members of the Union, not only those employers
on the negotiating team.
Beckham wrote a letter to the Union dated July 15 stat-
ing that, as discussed on July 11, the meeting to negotiate
wages only between the Union and the Association negoti-
ating committees was "still set" for the afternoon of July
16, and that, as "was discussed, retroactive pay is a negoti-
able item." The Union received an identical letter from
Pass as president of the Contractors Association. It also
received the one dated July 16 about wage proposals, and
one dated July 21 offering retroactive wages on jobs begin-
ning on a certain date, signed by Pass as chairman of the
Contractors Association Negotiations Committee.
In a letter to the Union dated July 15, Beckham stated:
"It is the intent of Beckham, Incorporated to abide by the
decision of the Negotiating Committees of Local 1010 and
P.D.C.A., Central Florida Chapter, in whatever retroactive
stance is finally agreed upon by the respective commit-
tees." Johnson testified, on cross-examination by Respon-
dent Beckham, as follows:
Q. Didn't Mr. Beckham write that to you after you
told him that if he wrote a letter similar to that, that
you would call off the strike?
A. (Examining document.) I didn't tell him that
personally
Q. Did you cause somebody else in your organiza-
tion to communicate that to him?
A. Probably could be so. Somebody-some of the
contractors had signed up at that time. . . To go
back to work. And, they agreed to pay all their retro-
active pay . . whenever the date was set, or however
much it amounted to, they were willing to pay it.
Q. . . . Now, didn't you cause someone to tell
Beckham that if he signed a letter in that form, that
you would call off the strike with respect to his peo-
ple?
A. I can't recall it. If anybody said anything to
Harry Beckham, or if it was said to Bill Pass , or if it
was said to Frank Turner, I can't recall.
Johnson admitted that a strike was voted, that he had
asked other locals in adjoining areas to refuse to work for
the contractors involved and the locals had pulled their
men from the jobs of those contractors including Beckham,
and that he received several letters from contractors "all
written just about the same way."
8. Appendix A signatures
As noted above, the Association gave the Union a list of
the contractors on the Union Division negotiating team,
but no list of the contractors on whose behalf they were
negotiating. Pass and Turner testified that they could not
recall which individual or which side suggested during the
negotiations having an appendix for signatures, but it was
discussed and everyone thought it a good idea; that they
agreed it was to have the company names on one side and
the signatures on the other; and that, as Turner testified,
the discussion showed "the purpose of it was to alleviate
having to go around and have individual contracts signed,"
and the appendix "would become part of the contract. If
you signed that, then you signed the contract." Pass testi-
fied that "It was raised from both sides, both from myself
and Mr. Johnson, that the appendix was to list the names
of the contractors who would be bound by the agreement
... that we would be submitting one so that they would
know of course the names of the companies that were
bound by the contract"; that in discussing the format he
and Turner agreed it should have signature lines and they
should get signatures thereon; that he asked to have the
signatures appended "to show additional support that the
persons or companies whose names were listed definitely
were assigning their bargaining rights and agreeing to the
contract as it was negotiated." He testified further that in
the discussions as to Appendix A
6 A letter from Johnson to Pass, dated July 16, states that the membership
voted to refuse any extension of the prior contract beyond July 15 A. I told Mr. Turner that I didn 't know if the
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
PDCA would have some kind of liability for listing a
contractor on the appendix , if that particular contrac-
tor hadn ' t given us an assignment form.
Therefore, to clarify it, the-the whole thing to
me-of course , as president of the PDCA at the time
and was very concerned about it.
I just didn't have any idea whether we had any lia-
bilities or not. So, to clarify the whole thing to me,
since we had some that had assignment forms and
some didn ' t have assignment forms-to clarify the
whole thing , I said that we should list the names of the
companies , with the signature attached , because if
you've got the company 's name and the signature at-
tached , there 's no question.
And, we were reluctant to-dust as the statement
says, we were very reluctant to list a company's name
in Appendix A and bind them if we hadn't received an
assignment form . . . . Mr. Turner generally agreed
with me and said some of the same ideas in a different
format.
Johnson testified that he made frequent requests of Pass
and Turner for this list in telephone calls and visits "in
person. And, they stated at the next PDC of A meeting
they were going to have the-a list of the names , that the
only one that could give them the names-now, I was talk-
ing with Mr . Pass-was Mr. Turner , that he was the secre-
tary, and he was the only one that could definitely state
whether they were in good standing or not in the PDC of A
chapter."
The testimony of Pass and Turner shows that they dis-
cussed the format of Appendix A about a month after the
ratification and their signing of the contract, and agreed to
provide lines for company signatures. Turner also testified
that the delay in preparing Appendix A was due to his own
neglect ; that he prepared the list and had it typed in his
office ; that he meant to take it to the Association meeting
in October "to have it signed" but forgot it and apologized
to the meeting for this; that he explained to the Board
agent investigating the charges that were filed by the
Union alleging 8(a)(5) refusals by certain employers, in-
cluding Turner's company, to sign the contract, that "it
was strictly my own personal neglect as secretary, not
going out and getting it signed ," and he would at the next
meeting "present it for signatures "; and that at the Novem-
ber meeting, which was held on December 3, "I brought
the document in and again apologized for not having it at
the prior PDCA meeting for signatures, and I asked the
members that were listed on the list to sign the document,
because I had promised the union, as well as the lady . . .
from the NLRB, that this thing would be to the Union by
Wednesday, the 3rd." Pass also testified that Turner, at the
December 2 meeting of the Union Division held immedi-
ately after the Association meeting, "had the appendix
drawn up , with the lines for signatures and asked that we
all signed it," and that he signed for his company, Turner
for his company, but Beckham "said that he wanted to
take the agreement back to his attorney before he put his
signature on it ." Pass also testified that Beckham raised the
retroactive pay question at the December 2 meeting but he
could not recall what was said about it. Turner testified
that , as to those members present at this meeting, " I asked
them to sign the document ," that he asked if Beckham was
going to sign , if he was or was not "gonna be union," and
that "Beckham said, `I have nothing against signing the
document . We have some other things that we had dis-
cussed during the negotiations that I have to get completed
with the union , at which time I'll sign the document.' "
Pass testified that Beckham "also said that he didn't
know if Custom Colors was still in business or if they even
were going to be a union contractor , and as such, he didn't
feel right that his name should be listed on the document to
be handed to the union"; that this discussion was princi-
pally between Beckham and Turner, but that "I do remem-
ber saying myself that if he wasn 't gonna be a union con-
tractor, then we couldn't submit his name on the list. . . . I
do remember saying myself that if Custom didn 't have in-
tentions of signing the contract , which I didn 't know if he
did or didn't, then we-then we shouldn 't have his name
on the list , on the appendix"; and that he had no informa-
tion about it other than what Beckham said at this meeting.
Turner testified that at this meeting "Beckham me.- -
tioned , in looking over the list of names here , that it was-
he had heard it was-it was his impression-he stated that
he wasn't absolutely sure that Joe McDaniel was gonna
sign the list , he had heard something to the effect that
maybe Joe wasn't gonna sign the list. . . . I asked did any-
body else know anything about this, and Mr. Pass vaguely
recalled that he had heard something about the fact that
Joe had mentioned that he wasn ' t gonna sign the list. At
that particular point I says, `Well, gentlemen, we have a
list, and if Mr. McDaniel isn't gonna sign it, his name
shouldn't be on It.' And, with the concurrence of Mr. Beck-
ham and Mr . Pass, I scratched his name out." He also
testified that he did not recall talking to McDaniel about
this removal of the name from Appendix A, that Appendix
A had a complete list of Union Division contractors except
for Vickery and McDaniel's name that he inked out, and
that McDaniel had paid the annual Association dues but
he did not know whether Beckham had.
The typewritten document which is in evidence lists on
the left-hand side under "COMPANY NAME" Hart , Beckham,
Custom Colors, Pass, Cather, and Vickery Co., with Cus-
tom Colors inked out, and on the right-hand side under
"AUTHORIZED SIGNATURE" a series of signature lines contain-
ing Turner 's signature on behalf of Boyd E . Hart Co ., Pass'
signature on behalf of Pass Painting , and, on the line oppo-
site Vickery Co., the typewritten notation, "Has signed in-
davidual contract [sic]." Turner testified that he signed the
contract as secretary of the Association and, after July 28,
signed Appendix A as an officer of Boyd Hart. He had the
document hand-delivered to the Union. Johnson was in the
hospital at the time . As shown by an inked notation, it was
received at 2.30 p.m. on December 3 by Diorio, Johnson's
assistant.
The Union also attempted to obtain signatures to the
contract by various employers who had been involved in
the negotiations . Johnson testified that neither Respondent
has since July 15 made any payments to the Union for
pension, health, and welfare funds, or for dues checkoff;
that he had dinner with McDaniel in early October after
the contract had been signed; that he had called McDaniel
CUSTOM COLORS CONTRACTORS
several times about back payments on pensions but could
not recall who requested this meeting; and that he tendered
to McDaniel a copy of the contract and told him "this is
the way it was finalized. . . . And, for him to look it over
and see what was in it . . . he was gonna take it back with
him and look it over. And, at that time he did say that he
wasn't sure whether he wanted to sign the agreement at this
time, that he might want to be nonunion for a little while,
till he could make some money and pay up some retroac-
tive payments, and then he wanted to sign up again af-
terwards." Johnson testified that he did not say anything
about that.
Johnson testified that he also tendered a copy of the
agreement to Beckham, he thought on October 16, at a
breakfast meeting about apprentice training; that "I asked
him if he wanted to sign this agreement, because so far I
didn't have any Exhibit A. I didn't have no names, I didn't
know who was members, who wasn't members, or any-
thing, so I thought, well, I'd have these people probably
sign individually. He said that he wanted to take it back to
the office and look it over, and see if it was the same as the
one that we had agreed upon." Johnson further testified
that he could not recall if he tendered a copy of the con-
tract to Wohl or certain other contractors, that he had giv-
en Pass at an Association meeting several signed copies of
the contract to distribute to individual contractors, and
that he heard nothing further from either McDaniel or
Beckham regarding the contract since the conversations in
October set forth above.
Concluding Findings
The General Counsel and the Charging Party contend
that the Association, representing a number of employers
including the two Respondents, negotiated a contract on
behalf of these employers, and that the Respondents, by
failure to make a timely and unequivocal withdrawal from
the multiemployer unit, and by failing and refusing to sign
and to abide by the contract,7 have violated Section 8(a)(5)
and (1) of the Act.
The Respondents assert that they had not indicated an
intent to become part of a multiemployer unit, and, there-
fore, that there was no obligation on their part to make a
timely and unequivocal withdrawal from such unit. Re-
spondent Beckham further argues that there was never a
complete contract as agreement on certain provisions had
not yet been reached at the time of the hearing.
I find, on the record as a whole, that there was not a
clear determination or announcement by the Union Divi-
sion that it would bargain for certain employers as a single
multiemployer unit. The amended bylaws that set up the
Union Division make no reference to such bargaining,
some members were absent from the May meeting of the
Association when this was discussed and the absent mem-
bers were not notified of this discussion, the Association at
no time gave the Union a list of the employers on whose
behalf the employer panel was bargaining or even the num-
7 The General Counsel at the hearing urged that an order should be is-
sued requiring the Respondents , not to sign the contract , but to honor and
abide by all its terms and conditions
865
ber of employers, and one nonmember of the Union Divi-
sion participated in the negotiations and signed a separate
contract.
Furthermore, the Union in 1975 separately notified the
contractors with whom it had entered Tito individual con-
tracts in 1972 of the desire to renegotiate the contract. The
Union presented the only written proposal considered dur-
ing the 1975 negotiations which provided that it was to be
signed by "FIRM NAME OF EMPLOYER" The Association' s letter
to the Union named those on the negotiating panel, but
said nothing about the unit for which they were negotiat-
ing. The same panel system of bargaining had been the
practice when the contractors signed individual contracts
in 1972, and the same individuals were on the Association
bargaining panel. While there is testimony that remarks
were made at the first negotiating session indicating a
change in bargaining from single employer to a multiem-
ployer basis, the remarks were not explicit and the testi-
mony was based on admittedly vague recollections.
The employer-members of the Union Division of the As-
sociation, as well as other employers in the area who had
union contracts, were solicited by the Association officials
to sign the printed assignment of bargaining rights forms.
Neither of the Respondents signed an assignment. It was
also agreed at negotiating sessions that the employers who
were to be parties to the contract would execute Appendix
A. The Union Division officials prepared Appendix A to
contain signatures, and solicited signatures of the contrac-
tors. Neither of the Respondents executed Appendix A.
The Union also sought to obtain signatures by the vari-
ous contractors. As Johnson testified, even after agreement
was reached, "I didn't have no names." The Union also
filed charges alleging unlawful refusal to sign, and with-
drew the charges when the contractors in question agreed
to sign. The charges filed against each of the Respondents
which gave rise to this proceeding assert that: "This con-
tractor did negotiate and reach an agreement with Local
Union on July 31, 1975, which was ratified by a majority of
employees. From that date to now, repeated efforts have
been made to have this contractor become signatory to the
contract that was reached. He has refused to sign up until
this date." The consolidated complaint asserts that on July
31 "The Association and the Union agreed to all the terms
of a new collective bargaining contract," and that xach of
the Respondents since July 30 "has refused to sign the col-
lective bargaining contract . . . and has failed and refused
and continues to fail and refuse to comply with the terms
of that contract... .
The General Counsel urges that the recognition clause of
the contract shows that the bargaining and the contract
were between the Union and the Union Division of the
Association on behalf of its members. There are references
in the contract, however, indicating that it is between the
Union and the signatory employers. Moreover, various
provisions to be included in the contract had not been
agreed to when the contract by its terms became effective
in July.
The General Counsel relies on Retail Associates, Inc., 120
NLRB 388 (1958), and Edward E. Schultz d/b/a Schultz
Painting & Decorating Co., 202 NLRB 111 (1973). In both
cases, however, there was a lengthy history of bargaining
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on a multiemployer basis , with no question that the parties
had acceded to and become bound by such bargaining pat-
tern . It was in such circumstances that the Board required,
as it stated in Retail Associates, that one seeking to with-
draw from such "an established multiemployer bargaining
unit" is required to do so by timely and unequivocal con-
duct in accord with "the fundamental purpose of the Act
of fostering and maintaining stability in bargaining rela-
tionships . . . multiemployer bargaining units can be ac-
corded the sanction of the Board only insofar as they rest
in principle on a relatively stable foundation ." As to the
timing of such withdrawal , the Board stated in Retail Asso-
ciates, "Where actual bargaining negotiations based on the
existing multiemployer unit have begun , we would not per-
mit . . . an abandonment of the unit upon which each side
has committed itself to the other... .
In the present situation , however , where there was no
history of multiemployer contracts , the question is whether
there was such a commitment to a multiemployer unit that
precluded withdrawal except in accord with Retail Associ-
ates requirements . In such a situation , the Board policy is,
as stated in The Evening News Association, Owner and Pub-
lisher of "The Detroit News," 154 NLRB 1494, 1496 (1965):
"The Board does not find a multiemployer unit appropri-
ate except where all parties clearly agree to such a unit or
where there has been a history of bargaining on a multiem-
ployer basis and the employers and . . . union desire to
continue bargaining on such a basis. In the absence of
either of these two factors, the Board will not find appro-
priate a unit covering employees of more than one em-
ployer , regardless of the desirability of such a unit [citing
Retail Associates] . . . because the multiemployer unit is
rooted in consent . . . the basis of multiemployer bargain-
ing unit is both original and continuing consent by both
parties." And again in Steamship Trade Association of Balti-
more, Inc., 155 NLRB 232 (1965 ), the Board held that
"mutual consent is required to establish multiemployer
bargaining . . . it is clear that the element of consent re-
lates to the formation of the multiemployer unit." And in
Council of Bagel and Bialy Bakeries and its Employer Mem-
bers, 175 NLRB 902 ( 1969), the Board held: "[W ]here the
formal articles of association make no provision for the
individual members to be bound by group action, where
there is evidence that there was no such intention, and
where the conduct of the Unions otherwise fails to estab-
lish that they were dealing on a true multiemployer basis,
we find it difficult to conclude that the employer Respon-
dents may be said to have created with the consent of the
Unions a multiemployer bargaining unit . It appears, rath-
er, that the Association was formed merely for the sake of
convenience in bargaining , and that it cannot be concluded
that the members of the group indicated an unequivocal
intention to be bound in collective bargaining by group
rather than individual action."
In conclusion , I find , in all the present circumstances,
that the Respondents had not prior to the 1975 negotia-
tions "indicated an unequivocal intention to be bound in
collective bargaining by group rather than individual ac-
tion"; that the Union could not, in the absence of a "sub-
mission to be bound by group action" shown by an express
commitment by the Respondents , imply such submission
from the Respondents ' course of conduct ; and that the
Union did not negotiate a contract , for an undefined mul-
tiemployer unit , to which the Respondents were bound.8
Accordingly, I find that the General Counsel has failed to
establish by a preponderance of the evidence that the Re-
spondents , by failing and refusing to sign or to abide by the
terms of the 1975 contract, violated Section 8(a)(5) and (1)
of the Act. I shall therefore recommend that the consoli-
dated complaint be dismissed in its entirety.
Upon the basis of the foregoing findings of fact, and
upon the entire record in this proceeding , I make the fol-
lowing:
CONCLUSIONS OF LAW
1. Joseph McDaniel , an Individual Proprietorship
d/b/a Custom Colors Contractors, and Beckham , Inc., are
employers engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. International Brotherhood of Painters & Allied
Trades, AFL-CIO, Local Union No. 1010 , is a labor orga-
nization within the meaning of Section 2(5) of the Act.
3. The General Counsel has failed to establish by a pre-
ponderance of the evidence that the Respondents have
failed and refused to sign, or to abide by the terms of, a
contract for a multiemployer unit in violation of Section
8(a)(5) and (1) of the Act.
[Recommended Order for dismissal omitted from publi-
cation.]
8 Retail Clerks Union, No 1550, et al, Retail Clerks International Associa-
tion, AFL-CIO [The Kroger Company] v N L R B, 330 F 2d 210 (C A D C,
1964), see also Oil Chemical and Atomic Workers International Union and its
Local 7-507 (Capitol Packaging Company), 212 NLRB 98 (1974)