The Evening News Association

National Labor Relations Board - Board Decisions

Sep 24, 1965

154 N.L.R.B. 1482 (N.L.R.B. 1965)

1482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Evening News Association , Owner and Publisher of "The
Detroit News" and Paper Handlers and Plate Handlers Union
No. 10, International Printing Pressmen and Assistants Union
of North America, AFL-CIO
Knight Newspapers , Inc., Owner and Publisher of "The Detroit
Free Press" and Paper Handlers and Plate Handlers Union
No. 10, International Printing Pressmen and Assistants Union
of North America, AFL-CIO.' Cases Nos. 7-CA-1366 and 7-CA-
September 24,1965
DECISION AND ORDER
On April 21, 1964, Trial Examiner George J. Bott issued his Deci-
'sion in the above-entitled proceeding, finding that the Respondents had
not engaged in and were not engaging in certain unfair labor prac-
tices and recommending that the complaint be dismissed in its entirety,
as set forth in the attached Trial Examiner's Decision. Thereafter,
the General Counsel and the Charging Party filed exceptions to the
Trial Examiner's Decision and briefs in support thereof. The Re-
spondents and the Intervenor 2 filed a joint brief in support of the
Trial Examiner 's Decision. On October 22, 1964, the National Labor
Relations Board, pursuant to notice, heard oral argument at Wash-
ington, D.C., in which all parties participated 3
The Board has considered the Trial Examiner's Decision, the excep-
tions and briefs, the positions of the parties advanced at the oral argu-
ment, and the entire record in this case, and hereby adopts the find-
ings, conclusions , and recommendations of the Trial Examiner only
to the extent consistent herewith.
The Trial Examiner concluded that Respondents had not violated
Section 8 (a) (5) of the Act by refusing to bargain individually with
the Union upon request. The Trial Examiner reasoned that in view
of the history of bargaining on a multiemployer basis, a strong pre-
sumption of appropriateness of the larger unit existed, and that since
"good cause or compelling reason" for the Union's withdrawal from
multiemployer bargaining had not been shown, Respondents were
under no obligation to bargain individually. The Trial Examiner
rejected the General Counsel's view that the Union could withdraw
from the larger unit by simply meeting the standards which have been
established for employer withdrawal from multiemployer units. In
a companion case,4 we considered this issue and held that union with-
1 Hereinafter called the union.
2 The Respondents ' bargaining agent , Detroit Newspaper Publishers Association , herein
called the Association , was permitted to intervene in this proceeding
8 The Publishers Asseociation of New York City filed a brief as amicus curiae and
argued orally in support of the Respondents' position . Pacific Maritime Association also
,presented oral argument in support of the Respondents ' position.
* The Evening News Association, at at., 154 NLRB 1494, issued simultaneously.
154 NLRB No. 123.
t. . THE EVENING NEWS ASSOCIATION, ETC. 1483
.drawal from multiemployer bargaining-is subject only to the same
restriction as is employer withdrawal. Accordingly, we reject the
'Trial Examiner's application of more stringent standards for union
-withdrawal in this case.
Our rejection of the Trial Examiner's view of the law does not, how-
ever, dispose of this case, for the Trial Examiner suggests as an
"added reason" for dismissing the complaint, that the Union's with-
-drawal here was not on a sufficiently "permanent footing." The stand-
ards established for withdrawal from a multiemployer unit are, as the
Trial Examiner noted, that adequate written notice of an unequivocal
intent to withdraw be given prior to the date established by the con-
tract for modification.5 We construe the Trial Examiner's "added
reason" as a finding that the Union's withdrawal here was not suffi-
ciently "unequivocal." We disagree with this finding, as we are con-
vinced that the Union's withdrawal was unequivocal.
There is no question that by its letter of August 21, 1963, the Union
,gave timely written notice to Respondents of its unconditional with-
drawal from multiemployer bargaining. In the ensuing correspond-
ence Respondents stated their desire to continue group bargaining,
and the Union in its letters of September 21 and 30 again uncondition-
ally requested that Respondents bargain individually. Respondents
initiated a meeting with Union officials which took place on Novem-
ber 8, 1963, and it is the events of this meeting that the Trial Exam-
iner relies upon to find that the Union did not unequivocally withdraw.
The purpose of the November 8 meeting was to enable Respondents
to ascertain why the Union sought individual bargaining. After
Respondents stated this purpose at the meeting, the Union's president
said that the present meeting was not a bargaining session. Respond-
ents then elicited from the various union officials their differing
views as to why individual bargaining was preferable to multiem-
ployer bargaining. After this general discussion, Respondents'
spokesman asked the Union to state its conditions for resuming multi-
,employer bargaining. The Union's president replied that withdrawal
from group bargaining was a serious matter, as the Union could not
seek to compel Respondents to engage in individual bargaining 2 or
even 4 years hence if it now resumed group bargaining. Then the
Union listed five points which Respondents would have to agree to
before the Union would consent to engage in multiemployer bargain-
ing. Respondents considered these proposals and then stated that
four of them were matters to be considered in bargaining. The Union
,restated its refusal to engage in multiemployer bargaining, and the
meeting ended. The Trial Examiner found that the parties had not
,engaged in multiemployer bargaining since the Union's letter of
August 21.
6 Retail Associates, Inc., 120 NLRB 388, 394-395.
1484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
To construe the Union's November 8 reply presenting five points
that would have to be accepted by Respondents before the Union
would engage in multiemployer bargaining as indicating that the
August 21 withdrawal was "employed only as a measure of momen-
tary expedience, or strategy in bargaining ..." 6 is to ignore the reali-
ties of the situation that confronted the Union. An unequivocal
withdrawal from a multiemployer unit may be made for a variety of
reasons. With sufficient prodding and enough pressure, a party will
understandably state the reasons for its decision to withdraw. The
legal consequences which the Trial Examiner would attach to a with-
drawn party's participation in a discussion of its reasons for with-
drawing would inhibit such a party from discussing its reason for its
action, and this in turn might prevent the other parties from attempt-
ing to persuade the withdrawn party to resume group bargaining on
a mutually acceptable basis. No reason suggests itself why we should
accept such undesirable effects, which neither favor full and frank
discussion in collective bargaining generally nor tend to promote the
continuation of multiemployer bargaining in particular.
Here the Union unequivocally withdrew. When Respondents
refused to bargain individually, a stalemate developed. Respondents
initiated the November 8 meeting for understandable and legitimate
reasons, and the Union participated because of its reasonable desire
to resolve the stalemate. Respondents requested the Union to state its
reason for withdrawal from, and its conditions for resuming, multi-
employer bargaining. The Union complied with the request; but at
no point did the Union even suggest that the demand for individual
bargaining was withdrawn. We can find nothing in the Union's con-
sent to discuss with Respondents, at their urging, the problem stale-
mating negotiations that casts doubt upon the genuineness of its prior
action. It is true that the November 8 meeting resolved nothing. But
we cannot discern even a technical reason for finding that the Union's
willingness to explore with Respondents its withdrawal from multi-
employer bargaining in some way negated the legal significance of its,
earlier withdrawal.
We find, therefore, that the Union's withdrawal was an effective.
one and, for the reasons set forth in the companion case, Respondents.
were obligated to bargain in separate employer units. By their refusal
to do so, each Respondent violated Section 8(a) (5) and (1) of the
Act.
THE EFFECTS OF THE 'UNFAIR LABOR PRACTICE UPON COMMERCE
The activities of the Respondents set forth above, occurring in con-
nection with their operations described in section I of the attached
Trial Examiner's Decision, infra, have a close, intimate, and substan-
0 Retail Associates, Inc., supra, at 394.
THE EVENING NEWS ASSOCIATION, ETC. 1485
tial relationship to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and obstructing
commerce and its free flow.
THE REMEDY
Having found that the Respondents have engaged in certain unfair
labor practices within the meaning of Section 8(a) (5) and (1) of the
Act, we shall order that they cease and desist therefrom and take cer-
tain affirmative action which will effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact and upon the entire
record in the case, we adopt the following :
CONCLUSIONS OF LAW
1. Each Respondent is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section
2(5) of the Act.
3. All paper handlers and plate handlers employed in the paper and
plate handling department of each Respondent, exclusive of all other
employees and supervisors as defined in the Act, constitute separate
appropriate units for purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
4. At all times material herein, the Union has been the exclusive
bargaining representative of the employees in each of the aforesaid
appropriate units within the meaning of Section 9 (a) of the Act.
5. By refusing to bargain collectively with the Union as the exclu-
sive representative of the employees in the aforesaid separate appro-
priate units since on or about August 21, 1963, each Respondent has
engaged in and is engaging in unfair labor practices in violation of
.Section 8(a) (5) of the Act.
6. By engaging in such refusal to bargain, each Respondent has
interfered with, restrained, and coerced its employees in the exercise
of their statutory rights in violation of Section 8(a) (1) of the Act.
7. 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 Relations Board hereby orders that:
A. The Respondent, The Evening News Association, owner and
publisher of "The Detroit News," Detroit, Michigan, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with Paper Handlers and
-Plate Handlers Union No. 10, International Printing Pressmen and
1486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Assistants Union of North America, AFL-CIO, as the exclusive rep-
resentative of all paper handlers and plate handlers employed in the
plate and paper handling department in its Detroit, Michigan, plant,
excluding all other employees and supervisors as defined in the Act,
concerning rates of pay , wages, hours , and other terms and conditions
of employment.
(b) In any like or related manner interfering with the efforts of the
above-named Union to bargain collectively for the employees in the
said unit.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act.
(a) Upon request, bargain collectively with the above-named
Union, as the exclusive representative of all employees in the appro-
priate unit described above, concerning rates of pay , wages, hours, and
other terms and conditions of employment and, if an understanding
is reached , embody such understanding in a signed agreement.
(b) Post at its plant in Detroit , Michigan, copies of the attached
notice marked "Appendix A."' Copies of said notice , to be fur-
nished by the Regional Director for Region 7, shall, after being duly
signed by the Respondent 's representative , be posted by the Respond-
ent immediately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter , in conspicuous places, including all
places where notices to employees are customarily posted. Reason-
able steps shall be taken to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 7, in writing , within
10 days from the date of this Order, what steps have been taken to
comply herewith.
B. The Respondent , Knight Newspapers , Inc., owner and publisher
of "The Detroit Free Press," Detroit , Michigan , its officers , agents,
successors , and assigns , shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with Paper Handlers and
Plate Handlers Union No. 10, International Printing Pressmen and
Assistants Union of North America, AFL-CIO, as the exclusive rep-
resentative of all paper handlers and plate handlers employed in the
paper and plate handling department at its Detroit, Michigan, plant,
excluding all other employees and supervisors as defined in the Act,
concerning rates of pay , wages, hours, and other terms and conditions
of employment.
(b) In any like or related manner interfering with the efforts of
the above -named Union to bargain collectively for the employees in
the said unit.
' In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "a Decision and Order," the words "a
Decree of the United States Court of Appeals , Enforcing an Order".
THE EVENING NEWS ASSOCIATION, ETC. 1487-
2. Take the following affirmative action which the Board finds will'
effectuate the policies of the Act:
(a) Upon request, bargain collectively with the above-named'
Union, as the exclusive representative of all the employees in the
appropriate unit described above, concerning rates of pay, wages,,
hours, and other terms and conditions of employment and, if an
understanding is reached, embody such understanding in a signed-
agreement.
(b) Post at its plant in Detroit, Michigan, copies of the attached
notice marked "Appendix B." B Copies of said notice, to be furnished
by the Regional Director for Region 7, shall, after being duly signed
by the Respondent's representative, be posted by the Respondent
immediately upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps
shall be taken to insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for Region 7, in writing, within
10 days from the date of this Order, what steps have been taken to,
comply herewith.
MEMBER BROWN, dissenting :
For the reasons stated by the Trial Examiner and as more fully set
forth in my dissenting opinion in the companion case issued today,"
I would affirm the Trial Examiner's recommended dismissal of the
complaint on the ground that only the long established multi-employ-
er-bargaining unit is appropriate in the circumstances of this case.
Accordingly, I find it unnecessary to determine whether the Union's
purported withdrawal from the unit was unequivocal.
MEMBER ZAGORIA took no part in the consideration of the above:
Decision and Order.
8 See footnote 7, supra.
9 The Evening News Association , et al., 154 NLRB 1494.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations:
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby i1otify our employees that:
WE WILL bargain collectively, upon request, with Paper Han-
dlers and Plate Handlers Union No. 10, International Printing
Pressmen and Assistant Union of North America, AFL-CIO, as
the exclusive representative of all our employees described below
1488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with respect to rates of pay, wages, hours, and other terms and
conditions of employment, and, if an understanding is reached,
embody such understanding in a signed agreement . The bargain-
ing unit is :
All paper handlers and plate handlers employed in the
paper and plate handling department in our Detroit, Michi-
gan, plant, excluding all other employees and supervisors as
defined in the Act.
WE WILL NOT in any like or related manner interfere with the
efforts of the above-named Union to bargain collectively for the
employees in the said unit.
THE EVENING NEWS AssOCIATION , OWNER AND
PUBLISHER of "THE DETROIT NEWS,"
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, 500 Book Building, 1249 Washington Boulevard, Detroit,
Michigan, Telephone No. 963-9330, if they have any questions con-
cerning this notice or compliance with its provisions.
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL bargain collectively, upon request, with Paper Han-
dlers and Plate Handlers Union No. 10, International Printing
Pressmen and Assistant Union of North America, AFL-CIO, as
the exclusive representatives of all our employees described below
with respect to rates of pay, wages, hours, and other terms and
conditions of employment, and, if an understanding is reached,
embody such understanding in a signed agreement. The bargain-
ing unit is :
All paper handlers and plate handlers employed in the
paper and plate handling department in our Detroit, Michi-
gan, plant, excluding all other employees and supervisors as
defined in the Act.
I ; , THE ,EVENING- NEWS ASSOCIATION, ETC. '1489
WE WILL NOT in any like or related manner interfere with the
efforts of the,above-named Union to bargajn,collectiveLy for the
employees in the said unit.
KNIGHT NEWSPAPERS, INC., OWNER AND PUB-
LISHER OF "THE DETROIT FREE PRESS,"
Employer.
Dated---------------- By---------------
-(Representative) ' (Title)
This notice must remain posted for, 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, 500 Book Building, 1249 Washington Boulevard, Detroit, Mich-
igan, Telephone No. 963-9330, if they have any questions concerning
this notice or compliance with its provisions.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge of unfair labor practices filed on September 11, 1963, by Paper
Handlers and Plate Handlers Union No. 10, International Printing Pressmen and
Assistants Union of North America, AFL-CIO, herein sometimes called Union,
against the Evening News Association, Owner and Publisher of the "The Detroit
News," herein sometimes called Respondent-News, and a charge filed by the Union
on the same day against Knight Newspapers, Inc., Owner and Publisher of "The
Detroit Free Press," herein sometimes called Respondent-Free Press, the General
Counsel of the National Labor Relations Board issued a consolidated complaint and
notice of hearing dated October 30, 1963, alleging that Respondents had engaged in
unfair labor practices in violation of Section 8(a) (1) and (5) of the National Labor
Relations Act, herein called the Act. Respondents filed a joint answer admitting
certain allegations of the complaint but denying the commission of unfair labor prac-
tices. Detroit Newspaper Publishers Association, the Association in which Respond-
ents are joined for collective-bargaining purposes, was, on motion, allowed to inter-
vene. A motion for judgment on the pleadings and Respondents' and Intervenor's
joint response thereto were filed on December 24, 1963 and January 6, 1964, respec-
tively. General Counsel's motion was denied by the Trial Examiner originally
assigned to hear the case, and the matter was heard before Trial Examiner George
J. Bott on January 20, 1964. All parties were represented at the hearing. Subsequent
to the hearing General Counsel and Respondents filed briefs which I have considered.
Upon the entire record and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent-News, a Michigan corporation, maintains its principal office and place
of business in Detroit, Michigan, where it publishes a daily and Sunday newspaper.
Respondent-Free Press is an Ohio corporation maintaining its principal office and
place of business in Detroit, Michigan, where it publishes a daily and Sunday
newspaper.
Respondents concede, and I find, that they are employers engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.'
1 For a more elaborate description of the operations of Respondents and the functions
of their agent, the Intervenor, see Trial Examiner's Decision in The Evening Newa As-
sociation, etc., 145 NLRB 996, of which I hereby take administrative notice.
206-446-66-vol. 154-95
1490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of Section 2(5) of the Act 2
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The' alleged refusal to bargain
1. The facts
Respondents have engaged in joint bargaining with the unions which represent their
employees for many years and have executed joint contracts with the Union for almost
25 years. In addition to Respondents' method of bargaining for many years on a
multiemployer basis, most of the other facts in the case are not in dispute and, indeed,
are admitted in Respondents' answer.
It appears from the pleadings that on or about March 23, 1963, Respondents
entered into a labor contract with the Union converging all paper handlers and plate
handlers employed by both Respondents in their paper and plate handling depart-
ments. The agreements provided, in part, that it would terminate on Novem-
ber 30, 1963, if either party gave notice to the other, not less than 60 days prior to
the termination date, of a desire to modify the agreement.
On August 21, 1963, prior to the last date for termination under the contract, and
prior to any date agreed upon by Respondents and the Union to begin negotiations
for a new agreement, the Union wrote to Respondents and notified them that it
thereby withdrew ". . . from any multiemployer bargaining unit of The Detroit News
and The Detroit Free Press which may have been established in the past." The Union
asked that ". bargaining for a new contract take place between it (and Respondents)
separately and on an individual basis and that individual bargaining continue on a
permanent basis."
Lawrence A. Wallace, executive secretary, Detroit Newspapers Publishers Associa-
tion, acknowledged the Union's letter on September 6, 1963. He pointed out that
". . . all negotiations with craft unions, including your own, have, since 1945, been
conducted on behalf of The Detroit News and The Detroit Free Press by a committee
composed of this Association's Executive Secretary as Chairman, and a representative
of each of these employers, and such negotiations have resulted in a joint contract
with your Union." He added that he had been asked by the Respondents to tell the
Union that they wanted to continue as they had in the past so that negotiations would
result in a joint contract.
On September 21 and 30, 1963, the Union again wrote Respondents asking for
individual bargaining. Executive Secretary Wallace answered these letters on Sep-
tember 26 and October 4, 1963, and reiterated that it was their intention and wish
to continue joint negotiations and joint contracts. In the October 4 letter, Wallace
submitted a Publishers Association proposal for a new contract and suggested a date
for a meeting on a joint basis.
Despite the correspondence set forth and the various demands, refusals and sug-
gestions set forth therein, the parties have not met to bargain on an individual basis
for separate contracts. The Respondents still stand willing to meeet, as they suggested
in their letters to the Union, on a joint basis looking to a joint contract, as they had
in the past.
The record also shows that representatives of the Publishers Association and each
of the two Respondents, and representatives of the Union held a meeting on Novem-
ber 8, 1963. What was said at, as well as the meaning of this meeting, unlike the
facts found above, is somewhat in dispute. Wallace testified that he, Dorris and
Hildebrand of the News, and Prescott of the Free Press, met with Piscitello, president
of the Union, Dobbs, vice president, and three other union officials. Wallace said
he told Piscitello that the purpose of the meeting was to find out from the officers
of the Union why they were insistent on discontinuing joint bargaining and why they
wanted separate negotiations and separate agreements. He stated that Piscitello
opened the meeting by insisting that it was not a bargaining session. Piscitello added,
however, that "We will have to have something tangible to take back to our mem-
bership. We have a lot of influence with our membership and if we have something
tangible to take back I think we can get them to accept it."
2 Respondents deal with 14 labor organizations representing their employees. See sec-
tion II of Trial Examiner Summers' Decision , adopted by the Board in The Evening News
Association, supra, footnote 1.
THE EVENING NEWS ASSOCIATION, ETC . 1491
Wallace repeated that the real purpose of the meeting was to find out why the
officers were insisting on separate negotiations and Piscitello said that "peace could
be achieved better with separate contracts . . ." and that the Respondents would have
.,more respect" for the Union . The union president gave examples of grievances at
the News indicating a lack of "respect" for the Union . During the discussion that
followed, Union Representaive Dobbs indicated that the News was harassing the
Union and that the Union might have to strike it at the expiration of the contract.
He asked why the Union should have to, in those circumstances , "affect the Free
Press."
Crokett, another union representative present at the meeting, surmised that the
problem was that the Free Press members thought that they could do better under
separate contracts because the News membership was large and outvoted them when
a vote was taken on contract ratification.
McAnally, from the union side, thought the question was one "of the balance of
power" and that the Union would be stronger against the individual publishers. Vice
President Dobbs, according to Wallace, supplied the phrase "whipsaw strikes" to
the discussion.
Wallace testified that Dorris asked the group what were the "conditions precedent
to joint negotiations and joint contracts ." According to him , Piscitello said that they
had to have something "tangible" to take back to the membership. Piscitello stated
that the union group realized that the subject was a serious matter and that ". . , if we
go back into . . . joint negotiations, we cannot come back to the NLRB two or four
years from now; that if we reenter joint negotiations now this will be a permanent
arrangement, and if we try to go back to NLRB two or four years from now we would
make ourselves look silly." Piscitello then listed five subjects as "things ... we have
in mind ." These items were: "Employment security" in the form of guaranteed
shift arrangements at both papers; some resolution of a problem of "past practices"
(a well known problem in arbitration); settlement of all outstanding grievances; the
failure of three assistant foremen at the News to become members of the Union;
premium pay for Saturday work at the Free Press. Piscitello stated that the above
were "... the points that we would have to have agreement upon before we would
agree to negotiate jointly, aiming for a joint contract ." He commented that he
would agree that ". . . the price might be a little high."
After a caucus the Respondents took the position with the Union that four of the
five items were an integral part of contract negotiations and that they would not
agree to them as a condition precedent to joint bargaining . The parties retreated to
their previously prepared positions and the meeting dissolved.
Piscitello and Dobbs testified in rebuttal, but did not deny Wallace's account of
the meeting in any substantial way. Piscitello said that the Union was not asked if
it would give up separate bargaining and that he never said that the Union no longer
wanted separate contracts. Nevertheless, Wallace's testimony about what the Union
needed to take back to the membership as a "condition precedent " to joint bargaining,
Piscitello 's statement that the Union could not go running back to the Board again
if it commenced joint bargaining and his itemization of important demands are uncon-
tradicted. I credit Wallace generally in his account of the meeting, and I find that
the union representatives were exploring the possibility of resuming joint bargaining
and the price the Respondents would pay for it.
2. The issue and the contentions of the parties
Simply stated, the issue is whether a union may withdraw from multiemployer or
association bargaining by giving timely and appropriate notice of its wish to do so.
General Counsel's position is also basically simple. He contends that the appropriate-
ness of multiemployer units is dependent on the mutual consent of the parties, that
the consent may be withdrawn, and that a long line of cases show that, when employ-
ers seek to withdraw from multiemployer bargaining in an appropriate manner and
time the Board permits the withdrawal and the unit reverts to single-employer units.
He concludes that what employers may do unions may do, for the Board must, in
fairness and equality, treat both alike. Respondents' position is more elaborate.
They argue, for example, that there are "inherent" differences in union withdrawal
from multiemployer bargaining as opposed to an employer withdrawal, and that
differences in treatment of the two, therefore, are not arbitrary and frivolous; that
if the employee members of a union which bargains on a multiemployer basis are
dissatisfied with results their proper remedy is a Section 9 decertification proceeding;
that even if the "inherent" differences are ignored a union should not be permitted
to end joint bargaining at its "will or whim," but should be required to show a com-
pelling reason why Board approval of such withdrawal will effectuate the purposes
1492 DECISION S'-.OF I NATIONAL LABOR RELATIONS BOARD
of the Act; that, on balance; considering many factors, including the nature of the
industry and the complexity of its bargaining pattern, the Union has failed to show
a good and sufficient reason for disrupting the existing bargaining arrangements; and
that, in any event, withdrawal should not be permitted here :because the Union has
not met the minimum requirements which the Board applies to employer withdrawals.
Although General Counsel relies on a long line of employer withdrawal cases to
support his argument of equality, both he and Respondents contend they find strength
in the same cases, namely, Retail Association, Inc., 120 NLRB 38$, and Local 128,
Retail Clerks International Association, AFL-CIO v. Leedom, 42 LRRM 2031
(D.C.D.C.), April 29, 1958.
3. Analysis and conclusions
I think it is generally conceded that multiemployer or association bargaining has
certain good labor relations features. In any case, it is clear that, once established,
its disruption is disapproved of and legally discouraged. This much, at least, the
Supreme Court's decision in Buffalo Linen 3 teaches us, for there the Court held that
the nonstruck members of an association did not violate the Act when they locked
out their employees as a defense to the Union's "whipsaw" strike against one of their
members. In this case, the Union, by its purported abandonment of joint bargaining
and charges of Respondents' bad faith, is attempting to enlist the Board's aid in pre-
paring the ground for sanctioned strike action against a single member of an asso-
ciation prior to bargaining which strike action would be vulnerable to defensive
reaction by the employers if it occurred after bargaining had commenced. The
Union would argue, of course, that there are legal differences between taking strike
action against a single member of an association because of disenchantment with the
results of group negotiations for a new contract after they have commenced, and
destroying joint bargaining completely before negotiations begin because of unhappi-
ness about the results of past bargaining. I take a dim view of the distinction from
a labor relations point of view, whatever technical legal merit it may have.
But General Counsel insists that what employers may do, unions may do under
the same rules of the Board; and the cases clearly bear him out that an employer may
withdraw from association or multiemployer bargaining by clearly indicating a firm
intention to do so before negotiations begin? At first glance, therefore, it would
seem that considerations of equality might compel the Board to give identical rights
to unions. The Board has never actually decided this question, however, or told us
definitively under what circumstances a union will be permitted to abandon multi-
employer bargaining. The closest the Board has come to doing so is in the Retail
Associates case, supra. In that case the Board directed an election on an association
basis on the Association's petition. The union involved contended, among other
things, that only single-employer units were appropriate because it had withdiawn
from association bargaining. The Board held that, under the circumstances existing
in the case, it appeared that the union's withdrawal was not in good faith because it
was employed ... only as a measure of momentary expediency, or strategy in
bargaining, and to avoid a Board election to test the union majority." The union
had also contended that the entire representation proceeding ". . . must turn on the
central issue of whether a union under the Act has the same right as an employer to
withdraw from a multiemployer bargaining- unit . . ." but the Board decided that
such "broad" question need not be reached in that case. While much of what the
Board said thereafter about withdrawal from multiemployer units was dicta, certain
language used is important in attempting to discern the Board's thinking in this field.
The Board pointed out that the right of withdrawal by either a union or an employer
has never been held by the Board "to be free and uninhibited, or exercisable at will
or whim." Mutual consent is a basic factor in supporting the appropriateness of
such units, the Board said, but added that the stability requirements of the Act
dictate reasonable controls over the time and manner of withdrawal. The intention
must be "unequivocal, and exercised at an appropriate time." The Board continued
that the decision to withdraw must ". . contemplate a sincere abandonment, with
relative permanency, of the multiemployer unit ..." and that ". . . the element of
good faith is a necessary requirement in such decision to withdraw . . ." because of
the disrupting effect on collective bargaining which would result if the withdrawal
were permitted to be "lightly" made.
S N.L.R.B. v. Truck Drivers Local Union No. 449, Teamsters (Buffalo Linen Supply Co.),
353 U.S. 87.
'Twenty-third Annual Report (1958), p. 37; Twenty-sixth Annual Report (1961),
p. 58; Twenty-seventh Annual Report (1962), p. 65-67.
THE- EVENING NEWS ASSOCIATION,' ETC.-r'. 1493
With respect to the Union's contention in.Retail Associates that under the Board's
rules it "may never be given the, opportunity to withdraw from multiemployer bar-
gaining although such a right-is accorded employers," the Board said that, although
that "extreme question" did not arise in the case, it would "... establish in appropriate
future cases, where such issues are squarely presented, specific ground rules, resting
upon existing principles and policies under the Act, to govern questions of represen-
tation in multiemployer bargaining units." The Board mentioned certain factors,
such as timing, which it would consider in "... the ground rules to be promulgated."
The Board's Direction of Election was enjoined by a preliminary injunction in
Local 128, Retail Clerks v. Leedom, supra, the court stating that ". . . it appears that
it has been the settled policy of the National Labor Relations Board to permit the
employer, at appropriate times, to withdraw from multiemployer bargaining for any
reason whatever, but that in the instant case the Board has not accorded the same
right of withdrawal to plaintiff unions. In these circumstances, the Board's decision
would appear to be arbitrary ..." The court noted that it was not deciding the case
on the merits. Since that time, the Board has not promulgated "the ground rules"
governing the withdrawal from association bargaining of employers and unions
referred to in Retail Associates. This is actually a case of first impression, therefore.
As stated earlier, the General Counsel contends that the Union's withdrawal is
permissible if it meets the standards for employer withdrawal. The Union did make
its request in writing at an appropriate time, but all that the Union has shown, and
no more, is that it merely wishes to change the long accepted method of bargaining.
General Counsel urges that this is enough if the notice requirements have been met.
I do not agree. It seems to me, on the other hand, that by their many years of bar-
gaining on a multiemployer basis the parties have created a strong presumption in
favor of the appropriateness of joint bargaining-technically speaking, in favor of a
multiemployer unit-which must be rebutted with evidence justifying the necessity
of different units. I get the impression from the language and rationale of the Board
in Retail Associates and other cases involving lockout and other defensive actions in
multiemployer cases 5 that the Board will resist casual disruption of multiemployer
bargaining by either side. If the treatment of unions is not to be exactly the same as
employers this may be because of differences in the status of each or because of
practical problems in treating them identically, but the variations can be legally
rationalized, it seems to me, if the situation warrants it when it arises. In any event,
I would prefer to see the Board tighten the rules about employer withdrawal rather
than let a union withdraw at will.
I have stated that the history of bargaining has created a strong presumption in
favor of its continuance and this even regardless of the integration or production in
this industry, the perishability of the product and the fact that the many other unions
with which the publishers bargain also deal on a joint basis. In Continental Baking
Company,6 the Board said in dismissing a petition for a unit different from that
existing as a foundation for bargaining, "At the present time, other unions and several
locals of the (Union) find the traditional method of bargaining an adequate means
for achieving the normal objects of collective bargaining. So far as it lies within the
Board's power, we should not upset traditional methods of bargaining except for
very cogent reasons. For `collective bargaining is facilitated by adhering to. the
methods of the past, in the absence of any indication that,a change in these methods
has become necessary.' " -
I, find that the General Counsel- and the Union have not shown good cause or
compelling reason for withdrawal from' the existing method of bargaining. The
strong presumption' of appropriateness, therefore, has not been rebutted. In addition,
I also find that the Respondents' evidence shows that the Union's purported withdrawal
is not on such a permanent footing that the adjustment of certain conditions of
employment (the five items) could not change it. This is an added reason for not
lightly permitting the withdrawal and not finding the refusal to bargain, as I read
the Retail Associates case.
Although I confess that the issue is difficult and although my reading of the
employer withdrawal cases cited from the sacred writings by General Counsel shakes
me, in legal rubric-I find, and conclude, that the General Counsel has not established
N.L.R.B v. Truck Drivers Local (Buffalo Linen), supra, footnote 3 ; General Team-
sters Local Union No. 324, Teamsters, 127 NLRB 488; New York.Mailers' Union Num-
ber Six ITU, AFL-CIO (Publtsliers' Association of New York City, It'al ) -130 NL1tB
1092, 1098, affd 327 F. 2d 292 (C.A. 2).
6 09 NLRB 777, 785.
1494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by a preponderance of the evidence that the single-employer units sought by the
Union are appropriate and, as a consequence , Respondents did not refuse to bargain
in violation of Section 8(a) (1) and (5) by not acceding to the Union 's requests.
CONCLUSIONS OF LAW
1. Respondents did not violate Section 8(a)(1) and (5) of the Act as alleged in
the complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I recommend that the complaint be dismissed in its entirety.
The Evening News Association , Owner and Publisher of "The
Detroit News" and Detroit Newspaper Printing Pressmen's
Union Local No. 13, International Printing Pressmen and As-
sistants' Union of North America, AFL-CIO
Knight Newspapers, Inc., Owner and Publisher of "The Detroit
Free Press" and Detroit Newspaper Printing Pressmen's Union
Local No. 13, International Printing Pressmen and Assistants'
Union of North America , AFL-CIO.1 Cases Nos. 7-CA-4595 and
7-CA-¢596. September 24,1965
DECISION AND ORDER
On May 25, 1964, Trial Examiner Paul Bisgyer issued his Decision
in the above-entitled proceeding, finding that Respondents had
engaged in and were engaging in certain unfair labor practices and
recommending that they cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, Respondents and Intervenor22 filed joint excep-
tions to the Trial Examiner's Decision and a joint brief in support
thereof. On October 22, 1964, the National Labor Relations Board,
pursuant to notice, heard oral argument at Washington, D.C., in
which all parties participated.3
The Board has considered the Trial Examiner's Decision, the excep-
tions, the briefs, the positions of the parties advanced at the oral argu-
ment, and the entire record in this case, and hereby adopts the find-
ings, conclusions , and recommendations of the Trial Examiner, with
the additional comments.
' Hereinafter called the Union.
2 Respondents' bargaining agent , Detroit Newspaper Publishers Association , hereinafter
called the Association , was permitted to intervene in this proceeding.
8 Publishers Association of New York City filed a brief as a4nicu8 curiae and argued
orally in support of Respondents' position . Pacific Maritime Association also presented
oral argument in support of Respondents ' position.
154 NLRB No. 121.