Stein Printing Co.

National Labor Relations Board - Board Decisions

Jun 8, 1973

204 N.L.R.B. 17 (N.L.R.B. 1973)

STEIN PRINTING CO. 17
Stein Printing Company and Atlanta Typographical
Union No. 48 , affiliated with International Typo-
graphical Union, AFL-CIO.Case 10-CA-9282
June 8, 1973
DECISION AND ORDER
On October 25, 1972, Administrative Law Judge
Paul E . Weil issued the attached Decision in this pro-
ceeding . Thereafter , the General Counsel filed excep-
tions and a supporting brief , and the Respondent filed
cross-exceptions and an answering brief.'
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 2 and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be dismissed in its entirety.
MEMBERS FANNING AND JENKINS, dissenting:
For reasons set forth in his Decision we agree with
the Administrative Law Judge's findings that the Re-
spondent was a member of the multiemployer bar-
gaining unit and that Respondent's attempted
withdrawal from the bargaining unit was untimely.3
i Respondent 's request for oral argument is hereby denied since the record,
the exceptions, and the briefs adequately present the issues and positions of
the parties
2 In adopting the Administrative Law Judge's findings of fact and conclu-
sions of law , we confine this decision to the specific facts of this case, where
the state law would have subjected Respondent to criminal prosecution for
executing a contract containing the prohibited clause , and where the clause
was clearly on its face violative of the governing state law . We also take
official notice of a decision of the Superior Court of Fulton County, Georgia,
which , in a declaratory judgment action between Respondent and Charging
Party, has, since the hearing in the instant proceeding , specifically found the
clause in issue to be "in violation of Section 54-904 Ga. Code Ann., contrary
to the public policy of the State and absulutely void." That holding
would also make any disposition of this case other than dismissal an exercise
in futility, for we clearly would not now order Respondent either to violate
a criminal statute of the state by becoming signatory to the clause in issue,
or to agree to a clause which is "absolutely void "
3 In its cross-exceptions the Respondent strongly objected to the finding
that it was a member of the multiemployer association . It is well settled,
however , that fluctuation in membership , the lack of a formal organization,
and the incorporation of the results of joint negotiations in separate but
uniform contracts will not preclude a finding of a multiemployer unit. Wards
Cove Packing Company, Inc., 160 NLRB 232, Bill O'Grady Carpet Service,
Incorporated, 185 NLRB 587, Wm. T. Kirley Lumber Company, 189 NLRB
130 Moreover, and particularly in light of the 20-year history of negotiation
by the association of consecutive contracts uniformly signed by the associa-
tion members , including the Respondent, we believe the facts of this case
amply support a finding that the Respondent was bargaining on a multiem-
ployer basis. Dover Tavern Owners' Associaiion , 164 NLRB 933; Bagel Bakers
In light of these findings, however, and in accordance
with the exception of the General Counsel, we dis-
agree with the Administrative Law Judge's ultimate
conclusion that the Respondent did not violate Sec-
tion 8(a)(5) and (1) by refusing to sign the agreement
negotiated on its behalf by the multiemployer bar-
gaining unit.
In support of his dismissal of the 8(a)(5) complaint,
the Administrative Law Judge reasoned that the Re-
spondent was not obligated to sign the agreement
because of a "colorable concern" that the disputed
foreman's clause included in the agreement violated
a Georgia state law which also made the execution of
an agreement containing such a clause a misdemean-
or.4 The Administrative Law Judge also concluded
that the Union's insistence on the clause was unlawful
under Section 8(b)(1)(B). As noted above, we dis-
agree.
While an Employer, bargaining separately, may re-
fuse to discuss during negotiations a "permissive" as
opposed to a "mandatory" subject of bargaining, such
right is extinguished when the Employer voluntarily
becomes a member of a multiemployer bargaining
association since the Employer's rights are then
merged into those of the association which it desig-
nates as its sole and exclusive bargaining representa-
tive. This being the case herein, any rights that the
Respondent may have had with respect to the discus-
sion or inclusion of permissive subjects of bargaining,
such as the foreman's clause, were merged into those
of the association.
In these circumstances, and inasmuch as the associ-
ation did not see fit to refuse negotiations with respect
to the foreman's clause and in fact went so far as to
include a provision in the final contract concerning
the inclusion of foremen in the bargaining unit, it was
incumbent upon the Respondent to sign the contract
negotiated on its behalf by the multiemployer associa-
tion. Associated Building Contractors of Evansville,
Inc., 143 NLRB 678; Fairmont Foods Company, 196
NLRB 849. The fact that the final contract contains
a provision distasteful to the Respondent does not
alter this duty. General Sheet Metal Company, 144
NLRB 773. In view of the foregoing, we would further
find that the subsequent strike in support of the
Union's demands with respect to the signing of the
contract was an unfair labor practice strike.
As for the Respondent's contention that its failure
to sign the agreement was excused by its conviction
Council, 174 NLRB 622, enfd . in part 434 F.2d 884 (C.A 2, 1970).
4 As noted in In 2, although the majority agrees with the Administrative
Law Judge 's conclusion that Respondent did not violate the Act by refusing
to sign the agreement so long as it contained the foreman 's clause, it confines
the decision to the specific facts of the case and relies on the subsequent
ruling of the Georgia state court . Thus the majority apparently would not
find mere "colorable concern" with the legality of the clause sufficient justifi-
cation for a refusal to execute the collective- bargaining agreement.
204 NLRB No. 2
18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the foreman's clause violated Georgia state law,
we note that the contract which the Respondent re-
fused to sign contained a severability clause and that,
in any event, there has been no final adjudication by
the Georgia state courts with respect to the legality of
the foreman's clause. To allow a party under these
circumstances to refuse to sign an agreement negotiat-
ed on its behalf by a multiemployer association be-
cause of a "colorable concern" with the legality of a
particular contractual clause would, in our opinion,
endanger the stability in labor relations which the Act
was meant to foster. Moreover, we note that the only
decision with respect to the legality of a foreman's
clause under Georgia state law is a lower court deci-
sion not binding on other Georgia courts and subject
to being overturned on appeal, thus leaving the stabil-
ity of labor relations to the vagaries of the local lower
courts. Furthermore, the decision of the lower court
is itself equivocal as evidenced by the fact that the
court declined to rule that the foreman's clause would
violate Georgia law should an arbitrator determine
that the parties intended the word "shall" as used in
the foreman 's clause in issue in this case in the permis-
sive sense as "may." The state court in fact expressly
reserved the right to review its position should the
arbitrator so interpret the clause..Stein Printing Co. v.
A TU No. 48, et al. (Cases B-66457 and B-67125).
We also disagree with the Administrative Law
Judge's conclusion that the Union by "insisting" on
the foreman's clause violated Section 8(b)(1)(B) of the
Act. Inasmuch as the record is devoid of any evidence
indicating that the Union during negotiations insisted
on the foreman's clause to the point of impasse and
since the association voluntarily entered into discus-
sions culminating in the inclusion of the provision in
the final contract, there is no basis for an 8(b)(1)(B)
finding . In these circumstances the Union was well
within its rights in demanding that the Respondent
sign the agreement. H. J. Heinz Co. v. N. L. R. R , ,311
U.S. 514 (1941).
DECISION
STATEMENT OF THE CASE
PAUL E. WEIL, Administrative Law Judge: On November
4, 1971, Atlanta Typographical Union No. 48, affiliated
with International Typographical Union, AFL-CIO, here-
inafter called the Union, filed a charge with the Regional
Director for Region 10 of the National Labor Relations
Board , hereinafter called the Board , alleging that Stein
Printing Company, hereinafter called Respondent, violated
Section 8(a)(1) and (5) of the National Labor Relations Act,
hereinafter called the Act, by refusing to execute a collec-
tive-bargaining agreement negotiated for Respondent by an
association to which it belongs , thereby causing an unfair
practice strike. On May 10, 1972 , the Regional Director for
Region 10 on behalf of the General Counsel issued a com-
plaint alleging that Respondent violated Section 8(a)(5) and
(1) of the Act by failing and refusing to execute and be
bound by a collective -bargaining agreement negotiated by
the Printing Industry of Atlanta, Inc., a trade association,
thereby causing and prolonging an unfair labor practice
strike by members of the Union. By its duly filed answer
Respondent admitted various facts , made various state-
ments, but denied that it was bound to sign the agreement
negotiated by the employers association, wherefore it was
not in violation of the Act.
On the issues thus joined, the matter-came on for hearing
before me at Atlanta, Georgia, on August 1 and 2, 1972. All
parties were represented by counsel and had an opportunity
to call and examine witnesses , introduce relevant and mate-
rial evidence, to argue on the record , and to file briefs. Oral
argument was waived by all parties . Briefs have been re-
ceived from the Charging Party, the General Counsel and
.the Respondent . On the entire record in this matter and in
contemplation of the briefs , I make the following:
FINDINGS OF FACT
I JURISDICTION
Respondent is a partnership doing business in Atlanta,
Georgia , as a commercial printing establishment . Respon-
dent annually sells and ships its products valued in excess
of $50,000 directly to customers located in States other than
the State of Georgia. Respondent is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
For at least 20 years, Respondent has been a member of
the Printing Industry, of Atlanta, hereinafter called PIA, a
trade association of printers in the city of Atlanta, and of
a subdivision thereof called the Union Employers Section,
hereinafter called UES, comprised of the employer-mem-
bers of the PIA any of whose employees are covered by a
collective-bargaining agreement with a labor organization.
For all that time , Respondent has annually signed a con-
tract negotiated by a committee of members of PIA.
Since 1952 Respondent has been a party to successive
collective-bargaining agreements negotiated by PIA com-
mittees with the Union for its composing room operations.
The unit in which the Union has been recognized is in issue
herein, Respondent contending that it is a single employer
unit embracing all of its composing room employees and the
General Counsel and the Union contending that it is a
multiemployer unit embracing the composing room em-
STEIN PRINTING CO.
ployees of all members of PIA.' A contract between Re-
spondent and the Union , effective August 16, 1969 , through
August 15, 1971, contained a provision that "the operation,
authority , and control of each composing room shall be
vested exclusively in the office through its representative,
the foreman , who shall be a member of the Union ." In May
1971 a dispute arose between Respondent and the Union
with regard to the above -quoted section , and on June 21,
1971, the Union went on strike in support of its demand that
Respondent comply with its terms . The strike ended on July
19, as a result of an order of a United States district court
requiring the parties to submit the issues to arbitration and
the Union to cease striking.
On June 2 , the Union sent to PIA a notice to open the
contract for negotiation . This was followed with an identical
notice sent to Respondent on June 8 . On June 14 a commit-
tee of the association which included Joe Segal , a partner in
Respondent , met with the Union for purposes of negotiating
a new agreement . The association committee gave the
Union a list of 17 employers , including Stein , for whom they
would be negotiating.
On June 21 Joe Segal told his fellow committee members
that Respondent would not sign any contract which con-
tained the "Foreman 's Clause" and on July 15 , during a
negotiation session, Segal stated that Respondent would not
agree to a renewal of the foreman 's clause in the new con-
tract . Subsequently the managing partner of Stein in a letter
to the chairman of the PIA bargaining committee , and one
to Jack Hollingsworth , the chairman of the Union's bar-
gaining committee , stated that the foreman 's clause was
illegal in Respondent 's opinion and that "The Stein Printing
Company hereby withdraws any authority of the Union
Employers Section of the Printing Industry of Atlanta, Inc.,
to negotiate a contract containing such a Union Foreman's
Clause."
The response of UES was a letter by the committee chair-
man, Hugh Imman, stating that the UES , through its negoti-
ation committee , notifies the Union "that its members
disclaim any responsibility or legal liability for the incorpo-
ration or insertion of any illegal provisions in the agreement
under negotiation with ATU No. 48." In spite of its dis-
claimer, however, the UES continued negotiating with the
Union and in August reached agreement with the Union on
a new contract which contained the foreman clause in the
same terminology as the preceding contract . Although
Respondent's representatives continued to meet at the nego-
tiation sessions with the Union they announced that they
would not accept the contract agreed to by the employer
negotiating committee . When the contracts were ultimately
printed and distributed the Respondent refused to sign a
copy of the contract and accordingly the Union sought and
obtained from its International authorization to strike Re-
spondent in protest of its failure to sign the agreement, Prior
to that time Respondent notified the Union that it was
prepared to sign the agreement in every respect except with
regard to the foreman 's clause and suggested that the clause
be excised for the purposes of agreement with the Respon-
i The complaint is ambiguous in its unit allegation , stating "all employees
of each member of PIA including Respondent...... The General Counsel
in his brief contends that the appropriate unit is a multiemployer unit.
19
dent. This the Union declined to do. On October 18, the
strike commenced, protesting Respondent's refusal to sign
the contract without striking therefrom the foreman's
clause.
B. The Issues
The General Counsel contends that Repondent, as a
member of a multiemployer bargaining unit, was bound to
accept and sign the agreement negotiated on its behalf by
the association. Having failed to do so Respondent is guilty
of refusing to bargain with the Union. Further General
Counsel contends that the strike that ensued from
Respondent's refusal to sign the contract and to agree to be
bound thereby is an unfair labor practice strike.
Respondent contends that it was at no time a member of
a multiemployer bargaining unit, but rather that its employ-
ees constituted a single-employer unit. Respondent con-
tends that the Union has at no relevant time represented a
majority of the employees in the single-employer unit of its
employees. Respondent further contends that even were it
found to be a member of a multiemployer bargaining unit
its withdrawal of its authorization to the association to bar-
gain on its behalf with regard to the foreman's clause was
timely because it took place at a time when the Union was
committing an unfair labor practice against Respondent,
thereby vitiating Respondent's duty to bargain. Respondent
also contends that the foreman's clause is a permissive rath-
er than a mandatory bargaining subject and, reasoning from
the decision of the United States Supreme Court in Allied
Chemical and Alkali Workers, Local 1 v. Pittsburgh Plate
Glass Co., 404 U.S. 157 (1971), the Board has no authority
to base a violation of Section 8(a)(5) on Respondent's fail-
ure to bargain in good faith with regard thereto. Respon-
dent additionally argues that it affected a valid withdrawal
from multiemployer bargaining because its withdrawal was
limited to a permissive subject and affected before agree-
ment on all open items was reached.
Next the Respondent argues that the proposed Foreman's
Clause is prohibited by the laws of the State of Georgia, and
that accordingly it had not only a right but a duty o refuse
to enter into a contract containing such a clause, and further
that the clause is unlawful under Sections 8(b)(1)(A) and (B)
and 8(a)(1) with the same results. Finally Respondent con-
tends that the October 18 strike was unlawful since its pur-
pose was to compel Respondent to execute an unlawful
agreement.
Respondent argues, in the alternative to all the arguments
set forth above, that assuming that it was bound to negotiate
through the association and common negotiations having
commenced, unusual circumstances such as were men-
tioned by the Board in Retail Associates 2 vitiated its duty
to bargain further.
C. Discussion and Conclusions
The Multiemployer Bargaining Unit
Since at least 1952, the members of UES have negotiated
2 Retail Associates, Inc, 120 NLRB 388 (1958)
20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
together with each of the Unions representing employees of
any of the employers in that section. Each such negotiation
ended in agreement on a contract which, at least with re-
spect to the Union herein, was signed by all the individual
employer-members of the UES and by the Union. All of the
agreements so signed resulting from each negotiation were
identical and, until 1971, each employer involved in the
negotiation signed an agreement.
Before the commencement of each negotiation UES,
through the PIA staff representatives, contacted each em-
ployer-member to ascertain whether it would be involved in
the forthcoming contract negotiation. In 1971, 17 employers
agreed that they would be involved in the negotiation and
a list was prepared of the 17 firms and was submitted to the
Union at the first negotiation session.
Also prior to the commencement of negotiations the em-
ployer-members of UES who were involved in the forth-
coming negotiations would elect representatives of their
firms to comprise the negotiating team, which, together with
staff representatives of PIA, would conduct the actual nego-
tiations.
Prior to February 16, 1972, UES operated under bylaws
which contained no specific provisions with regard to the
machinery for negotiating but provides that the object of the
association shall be to promote unity of effort toward ob-
taining sound labor relations between the members of UES
and the various Unions with which they are associated and
provides for the appointment of all committees by the presi-
dent with the exception of the negotiating committee which
shall be elected by the membership at its annual meeting.
No provision was made in the bylaws for a signed authoriza-
tion by employer-members of UES to the Association to
bind the individual employers by the association collective
bargaining.
The last contract preceding the 1971 negotiations de-
scribed the "employer" as the signatory employer and the
unit as all employees covered by the agreement, which is to
say the employees of the composing room of the respective
employer. There is no evidence that until 1971 any employer
who had been a member of UES negotiated separately with
the Union either for an entire contract or for separate provi-
sions . In the only example of separate negotiations brought
out at the hearing another employer-member sought relief
from a cause that he deemed uneconomical and attempted
to negotiate with the Union to change the clause. Ultimately
he signed the contract as it existed.
At the conclusion of negotiations the union representa-
tives submit the contract to the membership for ratification,
and the association committee submits the contract to the
employers who had agreed to negotiate through the com-
mittee for a ratification vote among them. There is no evi-
dence whether ratification must be or has been unanimous
or whether a simple majority carries. In any event, until
1971, all employers have signed the contract that ensued
from the group negotiations.
The General Counsel contends that the above factors
reveal that the UES negotiates on behalf of all of its mem-
bers with the Union in a multiemployer unit. Respondent
on the other hand contends that the same factors reveal that
Respondent bargains as a single employer with the associa-
tion committee as its spokesman . In support of its conten-
tion Respondent points out that the unit spelled out in the
contract is a single employer unit, that no specific authoriza-
tion has ever been given to the association to bargain for
Respondent or any other employer prior to the 1971 negoti-
ations, that the association signs no contract, that there was
no provision in the bylaws of the association for bargaining
in a multiemployer unit and indeed prior to the last preced-
ing negotiation the employer members had specifically re-
jected a proposal that they sign authorizations binding them
to accept the agreed upon unit, and finally that the fluctua-
tion in the bargaining group was such that it negates any
inference that the employer members considered them-
selves bound by the association's negotiations.
In the Supplemental Decision in the Weyerhaueser case3
the Board spelled out the test for a multiemployer unit as
"whether the members of the group have indicated from the
outset unequivocal intention to be bound in collective bar-
gaining by group rather than individual action and whether
the union representing the employers has been notified of
the formation of the group and the delegation of bargaining
authority of it, and has assented and entered upon negotia-
tions with the group's representative." In 'the same case in
its original decision at 155 NLRB 921, the Board found that
the exclusion of certain issues or the exclusion of certain
plants owned by some of the employers involved in the
multiemployer bargaining did not affect the existence of the
multiemployer unit. In Counsel of Bagel and Bialy Bakeries,
175 NLRB 902, the Board found it immaterial that employ-
ers did not sign formal authorizations or that individual
employers reserved a right to determine whether they would
sign the negotiated contracts. In spite of these factors the
Board found a multiemployer association therein.
Generally speaking the Board requires a controlling his-
tory of collective bargaining on a multiemployer basis or an
unequivocal agreement of the parties to bind themselves to
a course of group bargaining in the future, to establish a
multiemployer unit .4 I find that the evidence that a commit-
tee of the association's membership negotiated at least five
consecutive contracts with the Union, which were uniform-
ly signed by all of the employers for whom they were negoti-
ating, sufficiently establishes an inference that the employ-
ers agreed to be bound by such joint action and that the
Union concurred in such agreement .5
I reject Respondent's argument that the fluctuation in the
number of employers in the group reveals the absence of a
multiemployer unit. While the record reveals that the num-
ber of employers for whom the committee bargained on
each succeeding contract negotiation varied considerably,
there is no evidence that this number comprised less than
all of the employer members of UES who had employees
within the jurisdiction of the Union or that any employer
member of UES at any time negotiated with the Union
other than through the joint bargaining committee.
I Weyerhaueser Company, 166 NLRB 299.
4 Electric Theater, 156 NLRB 1351.
s Dover Tavern Owners'Association, 164 NLRB 1933, Bagel Bakers Council
of Greater N.Y. 174 NLRB 622
STEIN PRINTING CO.
The Attempted Withdrawal of Bargaining Authority
The negotiations started on June 14, Joseph Segal was
present representing Respondent with the other members of
the committee. At the first meeting the committee gave a list
of 17 employers to the union representatives stating that
these were the employers for whom the committee was neg-
otiating. No specific discussion of issues took place at this
meeting . At subsequent meetings which were held approxi-
mately once a week, Segal informed his fellow negotiators
that Respondent was not prepared to sign a contract con-
taining the disputed foreman's clause, however, it was not
until July 15 that Segal told the union scale committee that
in view of the problems Stein had been having with the
foreman's clause Stein concluded that the clause is illegal
under the Georgia right-to-work law and that its enforce-
ment is in violation of the National Labor Relations Act
and Stein would not sign a contract that included the
Foreman's Clause in it .6
On July 21 Respondent wrote a letter to the chairman of
the union negotiating committee stating that it would not
agree to any renewal of its contract with the Union which
included the foreman's clause and stating that Respondent
"hereby withdraws any authority of the union employers
section of the Printing Industry of Atlanta to negotiate a
contract containing such a union foreman's clause." The
letter further states "if the union employers section of PIA
should attempt to bind the Stein Printing Company to such
a clause, we will have no alternative but to file suit or take
other legal action against the Union and the members of the
Union Employers Section of Printing Industry of Atlanta to
settle this issue."
The General Counsel contends that under the rule in
Retail Associates Inc., supra, 397, Respondent's attempt to
withdraw from a multiemployer bargaining unit was in vio-
lation of Section 8(a)(5) and (1) of the Act. In that case the
Board stated:
We would . . . refuse to permit the withdrawal of an
employer or a union from a duly established multiem-
ployer bargaining unit except upon adequate written
notice given prior to the date set by the contract for
modification or the agreed upon date to begin the mul-
tiemployer negotiations. Where actual bargaining neg-
otiations based on the existing multiemployer unit have
begun we would not permit, except on mutual consent,
an abandonment of the unit upon which each side has
committed itself to the other, absent unusual circum-
stances.
Respondent contends that the instant case displays "spe-
cial circumstances" sufficient to bring it within the caveat
in the above-quoted passage from Retail Associates..
Before we reach this issue consideration must be given to
other language of the Board in the same case. The Board in
its discussion of the rule as applied in that case stated:
while mutual consent of the Union and employers in-
volved is a basic ingredient supporting the appropriate-
ness of multiemployer bargaining unit, the stability
requirement of the Act dictates that reasonable con-
6 The union employees of Stein were on strike from June 21 to July 19,
1971, until enjoined by a United States district court
21
trols limit the parties as the time and manner that with-
drawal would be permitted from an established mul-
tiemployer unit. Thus the Board has repeatedly held
over the years that the intention by a party to withdraw
must be unequivocal, and exercised at an approprirte
time . (Notes) The decision to withdraw must conte n-
plate a sincere abandonment, with relative permanen-
cy, of the multiemployer unit and the embracement of
a different course of bargaining on an individual em-
ployer basis.
The instant case is, I believe, ruled by that language which
has never been overruled by the Board. Here the employer
never embraced a course of bargaining on an individual
employer basis. On the contrary, the whole thrust of
Respondent's communication both with the association and
with the Union was that it was withdrawing only that part
of its authorization to the association that related to the
foreman's clause. Respondent then and now is prepared to
sign a contract negotiated by the Association without the
foreman's clause and has taken no move inconsistent with
its status as a member of a multiemployer unit.
Respondent in its brief argued that the Retail Associates
formula is inapplicable because the withdrawal was limited,
citing Sheet Metal Workers' containing the language "what
the employer did was to issue a blank check to the negotia-
tors. He who signs a blank check must be prepared to honor
it," and argues that by notifying both the association and
the Union prior to their reaching agreement that it would
not agree to one specific permissive subject, it "effectively
stopped payment and cannot be required to honor the
check."
The General Counsel does not appear to contend that the
disputed clause is a mandatory subject of collective-bar-
gaining but agrees that it is a permissive subject of bargain-
ing concerning which the employer and the Union may
bargain by mutual consent but need not bargain if either
party declines to do so. The General Counsel however ar-
gues that Respondent, as a member of a multiemployer unit,
is essentially not a party to the negotiations and that Re-
spondents' rights are merged into those exercised by the
multiemployer unit, the negotiating entity in this case, at
least during the period after the commencement of bargain-
ing until the completion of the contract that ensues there-
from or an impasse is reached. Accordingly, while the
association as a spokesman for the multiemployer unit
might have declined at any time during the negotiations to
bargain further with regard to the foreman's clause, it did
not do so but rather agreed with the Union for the continu-
ance of that provision and ultimately negotiated on behalf
of its members a contract that included the provision. I
agree . To all intents and purposes the employer in the nego-
tiation is the multiemployer unit and thus the requisite
agreement to bargain on a disputed clause was present and
consummated in the form of a contractual provision.
Respondent contends that under the Board's decision in
Industrial Engineering Co., Inc., 173 NLRB 77, it had a right
to refuse to execute the association agreement because its
past conduct had been such as to put the Union on notice
'Sheet Metal Workers' International Association , Local Union No 270 (Gen-
era! Sheet Metal Co), 144 NLRB 773
22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that it would never agree to the disputed provision. That
case must be distinguished from the instant case on its facts.
There the Respondent was not a member of the association
but had specifically agreed to sign whatever contract an
employer association in the same geographical area as that
in which Respondent worked entered into . Respondent in
that case had never agreed to a subcontracting clause; the
association contracts to which Respondent had agreed in
the past had not contained a subcontracting clause and
Respondent was under no notice that for the first time the
association was negotiating a subcontractors clause. Ac-
cordingly when the Respondent was faced with the contract
containing a subcontractors clause Respondent declined to
sign it . The Trial Examiner found that there was no meeting
of the minds between the Union and the Respondent in that
case on the subcontracting issue at the time the interim
agreement was signed and found a lack of good faith on the
part of the Union in attempting to use the interim agree-
ment as a means of obtaining the one provision which the
Union knew the Respondent had steadfastly refused to
grant in collective-bargaining in the past . Under the unusual
facts of that case , accordingly , the Trial Examiner , with the
approval of the Board , concluded that the Respondent
therein was not guilty of an unfair labor practice . The in-
stant case must be distinguished both on the basis of the fact
that Respondent here was a member of the multiemployer
association and on the fact that Respondent here knew full
well at all times that the foreman 's clause was in the contract
and that the Union contemplated continuing it in the con-
tract . That the Union had never struck Respondent in the
past in enforcement of the contract is not dispositive nor
even supportive of Respondent 's position.
Respondent additionally contends that the foreman's
clause violates Section 8 (b)(1)(B) of the Act as well as Geor-
gia Code Chapter 54, Section 902, 904 , and 905 , a so-called
"right-to -work" statute , and that this factor together with
the fact that the Union did not act to enforce the clause in
the prior contract until after negotiations commenced con-
stitute such unusual circumstances as to give the Respon-
dent a right to withdraw during the pendency of
negotiations.
In Portland Stereotypers' and Electrotypers ' Union No. 48
(Journal Publishing Co.), 137 NLRB 782, the Board found
that by insisting upon and striking for a foreman 's clause
similar to that contained herein , the Union violated Section
8(b)(1)(B) of the Act, because the clause limited the freedom
of an employer to choose its representatives for collective
bargaining and that the Union violated Section 8 (L)(3) of
the Act by insisting upon and striking for the foreman's
clause . The General Counsel argues that under the decision
of the United States Supreme Court in N. L.R.B. v. News
Syndicate Company, Inc., 365 U.S. 695 ( 1961), that the
foreman 's clause was not violative of the Act. However the
Supreme Court in that decision dealt with the foreman's
clause only as to its effect under Section 8(b)(2) under the
then current Brown-Olds and Mountain Pacific doctrines of
the Board , which have since become inoperative , and that
decision is not dispositive of the legality of the clause under
8(b)(I)(B).8
8 General Counsel's reliance on the Board's decision in John J Corbett
With regard Respondent's contention that the foreman's
clause is violative of the Georgia statutes, the relevant provi-
sions are as follows:
54-902. Membership in labor organization as condition
of employment. No individual shall be required as a
condition of employment, or of continuance of em-
ployment, to be or remain a member of an affiliate of
a labor organization, or to resign from or to refrain
from membership in or affiliation with a labor organi-
zation (Acts 1947, pp. 616, 618).
54-904. Contractors requiring membership in, or pay-
ments to, labor organizations as contrary to public policy.
Any provision in a contract between an employer and
a labor organization which requires as a condition of
employment, or of continuance of employment, that
any individual be or remain a member or an affiliate
of a labor organization, or that any individual pay any
fee, assessment , or other sum of money whatsoever, to
a labor organization, is hereby declared to be contrary
to the public policy of this State, and any such provi-
sion in any such contract heretofore or hereafter made
shall be absolutely void. (Acts 1947, pp. 616, 618).
54-905. Unlawfulness of contracts requiring member-
ship in, or payments .to, labor organizations as condi-
tion of employment. It shall be unlawful for any
employer to contract with any labor organization, and
for any labor organization to contract with any em-
ployer, so as to make it a condition of employment of
any individual, or of continuance of such employment,
that such individual be or remain a member of a labor
organization, or that such individual pay any fee, as-
sessment , or other sum of money whatsoever, to a labor
organization. (Acts 1947, pp. 616, 618).
Under Georgia law (Georgia Code Annotated Section
54-9922) any person who violates Section 54-905, shall be
guilty of a misdemeanor.
The General Counsel argues:
that if the state court does not invalidate the clause, the
Respondent's objections based on the Georgia law are
groundless. If the state court should hold the clause
violates the state right-to-work law and thus sustains
the Respondent's objections, nevertheless it appears
clear that, even though possibly illegal under state law,
the clause does not permeate the entire contract in view
of the savings clause so as to justify a refusal to execute
the agreed-upon contract. Thus, while Respondent
might sue after it has executed the contract to have the
clause declared unlawful under existing state law, it
could not refuse to execute the agreement reached by
the association and the Union without violating Sec-
tion 8(a)(5) of the Act.
What the General Counsel appears to contend is that
Press, Inc, 163 NLRB 155, enfd 401 F 2d 673 (C A. 2, 1968), is misplaced
The issue decided therein was whether the foreman's clause was illegal as a
closed-shop contract, not, as here, whether it inhibits the employer in the
selection of its representatives for collective bargaining
STEIN PRINTING CO.
Respondent must be required to sign the contract, including
the disputed clause , and then again move the state court to
declare it unlawful to test its legal position. This procedure,
however, would require that Respondent do that which Re-
spondent contends it is expressly prohibited by Section 54-
905 from doing, that is to say, signing the contract.
The foreman's clause requires that the foreman be a
union member and it is clear from the attempted invocation
of the foreman's clause by the Union that the Union thereby
contends that the clause requires either that the foreman
maintain his membership or that he be relieved of his posi-
tion as foreman. This appears to be directly violative of
Section 54-902 and the entering into of an agreement con-
taining such a clause would appear to be directly violative
of Section 54-905 of the Georgia statutes as Respondent
argues . Additionally as the Board pointed out in Portland
Stereotypers, supra, by insisting upon and striking for the
foreman's clause the Union would violate Section 8(b)(1)(B)
of the Act.
Considering the factual situation before us, I find that the
Union's strike against Stein Printing Company has as its
objective the requirement that Stein accept the foreman's
clause . Stein has at all times offered to sign the multiem-
ployer contract intact with the exception of the disputed
clause and the Union has refused to accept this limitation.
Stein has been unsuccessful in its attempt to ascertain
whether in fact the clause violates Georgia law; it filed a suit
with the state court seeking a declaratory judgment to that
effect, but this action was removed to the United States
District Court for the Northern District of Georgia before
any determination of the issue was filed, and the United
States district court enjoined the strike, ordered the parties
to arbitrate the then existing issues concerning the
foreman's clause in the preceding contract and made no
finding with regard to the legality, in futuro, of Respondent
entering into the contract containing the disputed clause. It
appears, therefore, that Respondent's attempt to seek a
declaratory judgment was rendered ineffectual and there is
no evidence that Respondent has tried again .' I find no
authorities supporting General Counsel's position with re-
gard any duty upon Respondent to sign the contract, even
though the disputed clause may render such action unlaw-
ful.
In The Fort Industry Company, 77 NLRB 1287, Trial Ex-
aminer Lindner stated, with the approval of the Board, "it
is not incapatible with good faith in bargaining to refuse
agreement . . . to a contract providing for a closed shop
which the Respondent felt might have brought it into con-
9 Stein Printing Co v Atlanta Typographical Union No. 48, 329 F. Supp
754 (D.C.Ga, 1971).
23
flict with the state legal authorities." More recently in a
series of cases before the Board employers have argued that
they had no duty to bargain concerning a mandatory hiring
hall provision because they believed that the hiring hall
provision ran afoul of the right-to-work laws of the States
in which the issues arose. The Board uniformally in these
cases construed the hiring hall provision as embodying no
requirement of union membership and found the
employer's conduct violative of the Act without inquiring
into the bona fides of the employer in so contending.1° It
therefore appears that the rule laid down in the Fort Indus-
tries case must be amended at least by the addition of the
concept that the concern of the employer that the disputed
provision conflicts with state law must be at least colorable.
In the instant case I find this to be so. Indeed I find that the
disputed clause not only gives rise to a colorable concern in
the mind of Respondent that it would violate state law by
accepting the provision, but that the Union' s insistance on
the clause is unlawful under Section 8(b)(1)(B) of the stat-
ute. Accordingly I find that Respondent herein had no duty
to accept the disputed clause.
The General Counsel argues that inasmuch as the clause
is severable, and no one seriously disputes that fact, Re-
spondent must be required to sign a contract negotiated by
the association. Respondent does not appear to seriously
contest this position and indeed had at all times offered to
sign a contract without the disputed clause. Since this ap-
pears to be all that the Union has a right to expect of
Respondent, Respondent does not commit an unfair labor
practice of refusing to bargain or failing to bargain in good
faith. I 1 Accordingly, I shall recommend that the complaint
be dismissed.
The General Counsel contends that the strike which com-
menced on October 18 was an unfair labor practice strike.
This contention is, of course, predicated on a finding that
the Respondent was guilty of a refusal to bargain in failing
and refusing to sign the contract with the disputed clause.
Since I found that this Respondent did not violate the Act
thereby, it follows that the strike is not an unfair labor
practice strike.
I find in accordance with the discussions and conclusions
reached above that no unfair labor practice has been shown
to have been committed by Respondent. Accordingly I rec-
ommend that the complaint be dismissed in its entirety.`
10 Tom Joyce Floors, Inc, 149 NLRB 896, Houston Chapter, Associated
General Contractors of America, 143 NLRB 409
11 Cf Intercity Petroleum Marketers, Inc, d/b/a/ Red Triangle Oil Compa-
ny, 173 NLRB 1420
12 In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations , be adopted by the Board and become its
findings, conclusions , and order, and all objections thereto shall be deemed
waived for all purposes