Respondents Brief — Charles D. Bonanno Linen Service, Inc. v. NLRB

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No. 80-931

CLERK

| Office-Supreme Court, U.S.

Fiba VP

JUL 24 1981

Dl eT VAS,

)

Iu the Supreme Court of the United States

OCTOBER TERM, 1980

CHARLES D. BONANNO LINEN SERVICE, INC., PETITIONER

Vv,

NATIONAL LABOR RELATIONS BOARD and TEAMSTERS

LOCAL UNION No 25, INTERNATIONAL BROTHERHOOD

OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN

AND HELPERS OF AMERICA

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIRST CIRCUIT

BRIEF FOR

THE NATIONAL LABOR RELATIONS BOARD

LAWRENCE G. WALLACE

Acting Solicitor General

HARRIET S. SHAPIRO

Assistant to the Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

WILLIAM A. LUBBERS

General Counsel

JOHN E. HIGGINS, JR.

Deputy General Counsel

ROBERT E. ALLEN

Acting Associate General Counsel

NORTON J. COME

Deputy Associate General Counsel

LINDA SHER

Assistant General Counsel

JOHN H. FERGUSON

Attorney

National Labor Relations Board

Washington, D.C. 20570

QUESTION PRESENTED

Whether the National Labor Relations Board has rea-

sonably determined that it would not effectuate the

policies of the National Labor Relations Act to permit

employers unilaterally to withdraw from multiemployer

bargaining units solely because of an impasse in negotia-

tions with the bargaining representative of the unit

employees.

(1)

TABLE OF CONTENTS

Caples WANG cancccccncsessenssniccsssinrnciinnsanimianinnnscsencentniinas

II ecrccicrcsinscttietiiinintinniicininncntinmnninnsciasinnitiniis inisadnane

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Statement siehialsileiiiachcaiainasis

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Argument:

The Board has reasonably determined that it

would not effectuate the policies of the Act to

permit an employer unilaterally to withdraw from

a multiemployer bargaining unit solely because of

an impasse in negotiations with the bargaining

representative of the unit employees ......................

The Board’s Retail Associates rules reflect a

reasoned balance of the public and private in-

terests in multiemployer bargaining ................

. The Board has reasonably concluded that a

bargaining impasse is not an exceptional cir-

cumstance privileging a unilateral withdrawal

from multiemployer bargaining .......................

. The fact that a union might enter into

interim agreements with individual employers

during a strike does not warrant a rule per-

mitting employees unilaterally to withdraw at

impasse descijabicnadadiahabiainidiaigiacaiaaaamieminaadl

i ee

Cases:

TABLE OF AUTHORITIES

American Potash & Chemical Corp., 107 N.L.R.B.

1418

(111)

an we WN

Cases—Continued Page

Anderson Lithograph Co., 124 N.L.R.B. 920, en-

forced sub nom. NLRB v. Jeffries Banknote Co.,

Be IED atinccsithiniabiglicscnnsitnisendaneieleainadeibadusnsigvieniates 17

Associated Shower Door Co., 205 N.L.R.B. 677,

enforced on other grounds, 512 F.2d 230, cert.

GUNES TE. GD eeecnsnvisnncenosesiccscccsonsicnnesee ....18, 27, 33

Atlas Electrical Service Co., 176 N.L.R.B. 827...... 20

Bearing & Rim Supply Co., 107 N.L.R.B. 101......... 12

Beth Israel Hospital v. NLRB, 487 U.S. 488 .......... 35

Bi-Rite Foods, 147 N.L.R.B. 59 ..............----02--eceesceeee 23

Bill Cook Buick, 224 N.L.R.B. 1094 ......................-. 24

Brooks V. NLRB, SEB UB. BG ..20.....cccccecessesccesesesseee 26

Callier’s Custom Kitchens, 243 N.L.R.B. No. 148,

102 L.R.R.M. 1008, enforced, 630 F.2d 595 ........ 25, 29,

31, 32

Carvel Co. v. NLRB, 560 F.2d 1030, cert. denied,

RE SIE SUI tircctetcacclahinainabiaciacedaticeeecadimamenaecnasancechiien 12, 24

Connell Typesetting Co., 212 N.L.R.B. 918 ...... Seance 20, 30

Dallas General Drivers, Local Union No. 745 V.

ls SIS OP IE TITIES sch ccanscunstentntpdeanigbiambineicontninniieendianis 23

Dalton Brick & Tile Corp., 126 N.L.R.B. 478, en-

forcement denied on other grounds, 301 F.2d

SII chcaisieasiheendadisceidehei siesta i elalaiihigicnileda taasabac online 23

Darling & Co., 171 N.L.R.B. 801, aff’d sub nom.

Lane Vv. NLRB, gen ne 25

Douds v. Int'l Longshoremen’s Ass’n, 241 F.2d

Saisie bin’ ied cs coarse eetihediinbaaaaldaniatisdbiclinicinaabliniin 16, 25

Fairmont Foods Co. v. NLRB, 471 F.2d 1170 ...... 13

First National Maintenance Corp. v. NLRB, No.

SE IND: CIEE.” MUI cehccintietnienbsuceaventcuunabessaacbinnies 19

Florida Power & Light Co. v. Electrical Workers,

I I nena sata lcaetlicdeaainsdicittasetabnobedaesacmansinns 16

Ford Motor Co. v. Huffman, 345 U.S. 330 .............. 16, 19

Ford Motor Co. v. NLRB, 441 U.S. 488 .................. 35

General Drivers & Helpers Union, Local 554 v.

ey SE TEE TI saivsesdcntentinanersdeneadanwoessrseiiciniess 25

H & D, Inc. v. NLRB, 105 L.R.R.M. 3070, petition

for cert. pending, No. 80-1498 (filed Mar. 4,

Rae AP a OE ARN OE 18

Hess Oil & Chemical Corp. v. NLRB, 415 F.2d 440,

cert. denied, 397 U.S. 916 — >

Cases—Continued | Page

Hi-Way Billboards, Inc., 206 N.L.R.B. 22 on re-

mand, 473 F.2d 679, enforcement denied, 500

7 & eae aCe 6, 18, 21, 23, 27, 28, 34

Komatz Construction Inc. v. NLRB, 458 F.2d 317.. 6

Local 13, Detroit Newspaper Printer Union Vv.

8 OG fa emcee 25

Mallinckrodt Chemical Works, 162 N.L.R.B. 387.... 12

McAnary & Welter, Inc., 115 N.L.R.B. 1029 .......... 12

McAx Sign Co. v. NLRB, 576 F.2d 62, cert. de-

es MR Ns BRIE ceiscteshdeihteinicteiqnatabtiotiaetanizctyees 8, 24

Morand Bros. Beverage Co., 91 N.L.R.B. 409, en-

forced in part on other grounds, 190 F.2d 576 .... 12

NLRB vy. Beck Engraving Co., 522 F.2d 475 .....18, 25, 27,

28, 33

NLRB v. Brotherhood of Teamsters, Local No. 70,

470 F.2d 509, cert. denied, 414 U.S. 821 .............. 13, 19

NLRB V. Brown, 380 U.S. 278 ...........cccccccccccesseeccees 11

NLRB Vv. Central Plumbing Co., 492 F.2d 1252 ...... 13

NLRB v. Crompton-Highland Mills, Inc., 837 U.S.

SPIRES ARE AER aD sa yeh San ALINE EN 16

NLRB v. Custom Wood ‘Specialties, Inc., 622 F.2d

___ RGAE MRA iat chSe mS MeN ON Aa eed 18, 18

NLRB v. Dover Tavern Owners Ass’n, 412 F.2d

SUIT acterscoeeseasenesntnaieherccunesuiaibel oconcobcdtiaiieintaidsapiadbiahiitdaiaasonden 13

NLRB v. Hart, 453 F.2d 215, cert. denied, 409

SN II cacahsiica deidicis ncctelhcal ebitiesenaidaesasinieaneaenidicema tog sebinis 8

NLRB v. Independent Ass’n of Steel Fabricators,

582 F.2d 135, cert. denied, 489 U.S. 1180..18, 24, 27, 28

NLRB v. Insurance Agents’ Union, 361 U.S. 477.... 21, 25,

NLRB v. John J. Corbett Press, Inc., 401 F.2d

EN eS Cee ee a eee sO ee 12-13

NLRB v. Johnson Sheet Metal, Inc., 442 F.2d 1056.. 18, 24

NLRB v. Jones & Laughlin Steel Corp., 301 U.S.

5 UE eA ee ARAL Le Ne Oe Oe ne aa TE 21

NLRB Vv. Katz, 369 U.S. 736 siitaiicnaiaaeliadeiaMinalibioncoctaieie 14,17

NLRB v. Marine Machine Works, Inc., 635 F.2d

Is peiecacc tinsel tabi lcarcciouaibseiitahieiabinnladastccnaiias beta tanta 18, 34

NLRB v. Safeway Steel Scaffolds Co., 888 F.2d

EERE RES ere Sea ee NP ee eee 25

Cases—Continued Page

NLRB vy. Southwestern Colorado Contractors

Bnet, GET FE DED cccccssesereserccensessevscevessonsnessessnseves 20

NLRB V. Strong, 898 U.S. 887 ........2..cccscccccssseseeseees 14

NLRB v. Truck Drivers Local Union No. 449

(Buffalo Linen), 358 U.S. 87 ..................- 5, 9-10, 11, 12,

17, 31, 32, 34

NLRB v. Tulsa Sheet Metal Works, Inc., 367

IT TI cinsnsihecenlasitihiabeddshabiniiinhiadiemacanhillispabeisnieiineints 19

NLRB v. Webb Furniture Corp., 366 F.2d 314........ 23

NLRB v. Wooster Division of Borg-Warner Corp.,

EEE MEIN: SID \sicsiadiiieestinsiiiiatienidddoninaneniannadinamnnnnindineine 23

Neville Foundry Company, Inc., 122 N.L.R.B.

IIIT. sntinsbeiassuhcisniaisentenetiaininhtebtaiosinineiiliiaieeesaneneaalianieekaninsiten 20

Newport News Ship Building & Dry Dock Co. v.

es. TE rE GI ecensaciniindesieeniesietnatateeitinnsnen 25

Newspaper Printing Corp. v. NLRB, 625 F.2d

IIIT cosiesliats Assented aeaigedanilemanmeeiaaepatenieioncbetbaciines 24-25

Pacifie Coast Ass’n v. NLRB, 304 F.2d 760 .......... 15

Pacific Coast Ass’n of Pulp & Paper Mfrs., 163

SAREE a errs ne Oe 15

Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146.. 14

Plumbers & Steamfitters Union No. 323 (P.H.C.

Mechanical Contractors), 191 N.L.R.B. 592........ 27, 30,

32, 33

Retail Associates, Inc., 120 N.L.R.B. 384 ............. 5, 11, 12,

14, 18, 20

Retail Clerks Union, No. 1550 v. NLRB, 330 F.2d

RES Gooey ener ave ON ae CR sey ar 17

Sangamo Construction Co., 188 N.L.R.B. 159....27, 29, 30

Seattle Auto Glass, 246 N.L.R.B. No. 21, 102

L.R.R.M. 1007, petition for review pending, No.

79-7683 (9th Cir., argued Nov. 5, 1980) ............ 32

Sheridan Creations, Inc., 148 N.L.R.B. 1503, en-

forced, 357 F.2d 245, cert. denied, 385 U.S.

1002, appeal dismissed on other grounds sub

nom. AFL v. NLRB, 103 F.2d 9338, aff’d, 308

STII iccnccoiicehssndsardsciditnistccianadiasraabubcel Abdconiechpesiceiiedisicinons 9

Spun-Jee Corp., 171 N.L.R.B. 657 .........2........2.--00--- 20

Stamford Wall Paper, 92 N.L.R.B. 1178 ................ 12

VII

Cases—Continued Page

Taft Broadcasting Co., 163 N.L.R.B. 475, aff’d

sub nom. American Fed’n of Television & Radio

Artists v. NLRB, 395 F.2d 622 ...............---...---0++ 23

Taylor Motors, Inc., 241 N.L.R.B. 711 .................. 18

Teamsters Local 378 (Olympia Automobile Deal-

ers Ass’n), 243 N.L.R.B. No. 138, 102 L.R.R.M.

1007, enforcement pending, No. 79-7683 (9th

Cir.. angel Beet. ©, TOD enceccssunctnnmamnnnnn 31

The Evening News Association, 154 N.L.R.B. 1494,

enforced sub nom. Detroit Newspaper Publish-

ers Ass’n V. NLRB, 372 F.2d 569 ...................... 15

Tobey Fine Papers of Kansas City, 245 N.L.R.B.

No. 181, 102 L.R.R.M. 1343, enforced on other

grounds, 107 L.R.R.M. 2221 ........................ 13, 18-19, 30

Transport Company of Texas, 175 N.L.R.B. 763,

emforced, 488 F.Ba BEG .......cccccccccccecccccccescsceccccccoses 23

Truck Drivers Local Union No. 449 v. NLRB,

GE PRG BID cccteivvicncnnnsstitevicisepieee 11

Typographic Service Co., 238 N.L.R.B. 1566 ........ 20, 30

United States Lingerie Corp., 170 N.L.R.B. 750 .... 20

Statutes:

National Labor Relations Act, 29 U.S.C. 151 et

GIN, .ccsssinsinsnssiiencmnainmisiniininasiaaa 2, la

Section 2(1), 29 U.S.C. 152(1) -0000. ee. 9, la

Section 2(2), 29 U.S.C. 152(2) ............0...00...... 9,la

Section 8(a) (1), 29 U.S.C. 158(a) (1) 000... 4, 35, la

Section 8(a) (5), 29 U.S.C. 158(a) (5) .....4, 9, 14, 32,

35, la

Section 8(b)(1)(B), 29 U.S.C. 158(b) (1)

CBD ccnsesscsintnsiniteaniaisisisndaniaaia aan 16, la-2a

Section 8(b) (3), 29 U.S.C. 158(b) (3) ....9, 14, 32, 2a

Section 8(b)(4)(A), 29 U.S.C. 158(b) (4)

SD -entsene ccnnsiiniiditesiiiaionmameaee 16, 2a

Section 8(d), 29 U.S.C. 158(d) .......... 9, 14, 21, 31, 2a

Section 9(a), 29 U.S.C. 159(a) 00000. 9, 3a

Section 9(b), 29 U.S.C. 159(b) oo... 14, 3a

Section 10(c), 29 U.S.C. 160(¢) 0000. 14, 3a

Multiemployer Pension Plan Amendments Act of

1980, Pub. L. No. 96-364, 94 Stat. 1208, to be

codified at 29 U.S.C. 1001 (a) 0.0.00... 10-11

61 Stat. 136 9

VIII

Miscellaneous: Page

K. Braun, Labor Disputes and Their Settlement

a ich ih hi cibalainas baanienaiunsedibheerin 21

J. Carpenter, Employers’ Associations and Collec-

tive Bargaining in New York City (1950)........ 24

93 Cong. Rec. (1947) :

alt hnactis ca deainiceibaenndenaniecenneens 10

arial ical eeaneaisieicelebanicebnnietnnes 10

II hides leita esta daliaeataiaahbnaiawers 10

General Subcomm. on Labor of the House Comm.

on Education and Labor, 88th Cong., 2d Sess.

Multi-Employer Association Bargaining and its

Impact on the Collective Bargaining Process

I dil eal ies een esiaapiedainiattiahaineannnaleeetienes 10, 11

H.R. Conf. Rep. No. 510, 80th Cong., 1st Sess.

aia eatedal ech oentiamnenniaienneneinnnianten 15, 16

H.R. Rep. No. 245, 80th Cong., Ist Sess. (1947).. 10

H.R. Rep. No. 96-869 (Pt. I), 96th Cong., 2d Sess.

IIIT 13sec sito osled mated sadanionisl elesiaatiiinilenbialdabeninenenneatiancences 11

W. Maggiolo, Techniques of Mediation in Labor

AES A a 21

Murphy, Impasse and the Duty to Bargain in

Good Faith, 39 U. Pitt. L. Rev. 1 (1977)............ 28

B. Morse, How To Negotiate the Labor Agreement

NES ae OS SE en 24

R. Randall, Labor Relations in the Pulp and Paper

Industry of the Pacific Northwest (1942) .......... 10

S. Rep. No. 105 (Pt. 2), 80th Cong., 1st Sess.

cll i li eclacdacemaammtagsowntanenven 10, 15, 16

W.E. Simkin, Mediation and the Dynamics of Col-

lective Bargaining (1971) ...............cc.ccccccceeeeceeeeee 21, 22

U.S. Bureau of Labor Statistics, Dep’t of Labor

Bull. No. 2065, Characteristics of Major Collec-

tive Bargaining Agreements—January 1, 1978

al ahaa edaueneneieniiibiiseni 9

U.S. Dep’t of Labor, Multi-Employer Pension

Plans Under Collective Bargaining (1971)...... 11

Iu the Supreme Court of the United States

OCTOBER TERM, 1980

No. 80-931

CHARLES D. BONANNO LINEN SERVICE, INC., PETITIONER

Vv.

NATIONAL LABOR RELATIONS BOARD and TEAMSTERS

LOCAL UNION NO 25, INTERNATIONAL BROTHERHOOD

OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN

AND HELPERS OF AMERICA

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIRST CIRCUIT

BRIEF FOR

THE NATIONAL LABOR RELATIONS BOARD

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 18-

37) is reported at 630 F.2d 25. The supplemental deci-

sion and order of the National Labor Relations Board

(Pet. App. 38-52) is reported at 243 N.L.R.B. No. 140.

The Board’s original decision and order (Pet. App. 53-

71) is reported at 229 N.L.R.B. 629.

JURISDICTION

The judgment of the court of appeals was entered on

September 12, 1980. The petition for a writ of certiorari

was filed on December 10, 1980, and granted on March 9,

1981. The jurisdiction of this Court is invoked under

28 U.S.C. 1254(1).

(1)

STATUTE INVOLVED

The relevant provisions of the National Labor Rela-

tions Act, 29 U.S.C. 151 et seq., are set forth in the

appendix, infra, pages la-3a.

STATEMENT

1. Petitioner, Charles D. Bonanno Linen Service, Inc.,

is a Massachusetts corporation engaged in the launder-

ing, rental, and distribution of linen products. The truck

drivers and helpers employed by petitioner, as well as by

other linen supply companies in the area, are represented

by Teamsters Local No. 25 (“the Union’). For the

purposes of negotiating with the Union concerning the

terms and conditions of employment of these workers,

petitioner for several years has joined with nine of its

competitors in a multiemployer unit called the New Eng-

land Linen Supply Association (“the Association’’).

Bonanno was a signatory to the contract negotiated be-

tween the Association and the Union to cover the period

from September 21, 1972 to April 18, 1975. (Pet. App.

54-55; A. 92-93.) On February 19, 1975, Bonanno au-

thorized the Association’s negotiating committee to rep-

resent it in the anticipated negotiations for a new con-

tract, and Bonanno’s president became a member of that

committee. (Pet. App. 56; A. 23, 52, 106, 108.)

The Union and the Association held ten bargaining

sessions in March and April of 1975. On April 30, a

proposed contract was agreed upon by the negotiators,

but was rejected by the Union members four days later.

By May 15, the parties had reached an impasse over

the issue of compensation: following the membership’s

rejection of the contract providing for payment of the

drivers on an hourly basis, the Union demanded that the

drivers be paid on a commission basis, while the As-

sociation insisted that they continue to receive payment

at an hourly rate. (Pet. App. 56; A. 93-94.) When sev-

eral subsequent meetings proved unsuccessful in breaking

the impasse, the Union, on June 23, initiated a selective

strike against Bonanno. In response, the remaining As-

sociation members locked out their drivers. The stale-

mate continued throughout the summer, with the

negotiators unable to agree upon a method of payment

in meetings held in July, August, and September. (Pet.

App. 56-57; A. 94.)

The Association’s agreed strategy during the negotia-

tions was both to resist the commission method of pay-

ment and to remain moderate in its hourly wage rate

proposals. After the dispute continued into the fall,

some members began to talk of changing this strategy

by offering the Union a large wage increase, and two

members met secretly with the Union.' The majority

of the Association, including Bonanno, however, remained

strongly opposed to any shift in strategy and were con-

cerned that the separate meetings created a credibility

problem for the Association. (A. 74-80.) Bonanno de-

manded and received from the Association members a

pledge that there would be no more separate meetings

with the Union. (A. 77-78).

On November 21, after it had hired permanent re-

placements for all of its striking drivers, Bonanno noti-

fied the Association by letter that it was “withdrawing

from the association with specific respect to negotiations

at this time because of an ongoing impasse with Team-

sters Local 25” (Pet. App. 58; A. 94-95, 106).° Shortly

thereafter, the Association terminated the lockout and

informed the Union that it wished to continue negotia-

1 No separate agreements were made, and there is no evidence

that these contacts even reached the level of attempted negotia-

tion (Pet. App. 51, 57-58).

20On the same day, Bonanno mailed a copy of its revocation

letter to the Union and read it by telephone to a Union representa-

tive. The Union representative made no comment other than to

state that he would await the letter and probably consult the

Union’s attorney. (Pet. App. 58, 61; A. 28-29, 95, 106.)

tions on a multiemployer basis (Pet. App. 59; A. 95,

108-109).

Following Bonanno’s attempted withdrawal, several

negotiating sessions were conducted between December

1975 and April 1976 (Pet. App. 59-60; A. 95). On

April 5, 1976, the Association submitted a substantially

revised wage offer, but no agreement was reached (A.

58). On April 9, the Union filed unfair labor practice

charges alleging that Bonanno unlawfully withdrew from

the multiemployer unit on November 21 (Pet. App. 54;

A. ii). On April 18, the Union abandoned its demand

for payment by commission and accepted the Association’s

offer of a revised hourly wage rate. With this develop-

ment, the parties quickly reached agreement on a new

contract, dated April 28, 1976, and given retroactive

effect to April 18, 1975. (Pet. App. 60; A. 95, 111-116.)

By letter dated April 29, 1976, the Union informed

Bonanno that the Union had never consented to its with-

drawal and therefore considered it to be bound by the

settlement just reached. Bonanno denied it was bound

by the contract in a reply letter dated May 3, 1976.

(Pet. App. 60; A. 95-96, 117-118.)

2. The Board, adhering to its view that an impasse

in bargaining negotiations is not an “unusual circum-

stance” that would permit unilateral withdrawal from

a multiemployer bargaining unit after negotiations had

commenced, concluded that Bonanno’s attempt to with-

draw from the multiemployer unit was untimely and

thus ineffective. It therefore held that Bonanno violated

Section 8(a)(5) and (1) of the National Labor Rela-

tions Act (29 U.S.C. 158(a) (5) and (1)) by refusing

to honor the collective bargaining agreement negotiated

by the Association with the Union. (Pet. App. 38-51.)

The Board ordered Bonanno, inter alia, to sign and im-

plement the contract between the Association and the

Union, and to give it retroactive effect to its effective

date, making Bonanno’s employees whole for any loss

of pay or other employment benefits that they had suf-

fered since that date (Pet. App. 52, 66).

8. The court of appeals held that “the Board has

struck a reasonable balance in concluding that impasse

alone does not justify unilateral withdrawal” from a

multiemployer bargaining unit, for the contrary rule

“unnecessarily increases the opportunities for the dis-

solution of such bargaining units and thereby under-

mines an effective tool of labor relations” (Pet. App. 36).

The court therefore enforced the Board’s order (Pet.

App. 37).

SUMMARY OF ARGUMENT

In NLRB v. Truck Drivers Local Union No. 449

(Buffalo Linen), 358 U.S. 87 (1957), this Court held

that Congress, in enacting the 1947 Taft-Hartley amend-

ments to the Act, recognized that multiemployer bar-

gaining “was a vital factor in the effectuation of the

national policy of promoting labor peace through

strengthened collective bargaining,” and “ ‘intended to

leave to the Board’s specialized judgment the inevitable

questions concerning multi-employer bargaining bound

to arise in the future’” (id. at 95-96). In Retail As-

sociates, Inc., 120 N.L.R.B. 384 (1958), the Board

announced new rules governing withdrawal from a multi-

employer bargaining unit. Under these rules, an

employer or a union is free to withdraw from the

multiemployer unit for any reason before the date on

which negotiations actually commence, provided adequate

notice is given. Once negotiations for a contract have

begun, however, a party may withdraw only if “mutual

consent” is given or if “unusual circumstances” exist.

By allowing unlimited withdrawals from the unit

prior to the start of negotiations, the Retail Associates

rules accommodate the legitimate interest of both in-

dividual employers and their represented employees in

retaining (or reclaiming) direct control over their own

labor relations. At the same time, they avoid the im-

pairment of the public and private objectives of multi-

employer bargaining that would occur if the parties

were free to withdraw from the unit at will once bar-

gaining has begun.

A reasonable stability in the employer complement is

essential since “ ‘(t]he parties cannot bargain meaning-

fully about wages or hours or conditions of employment

unless they know the unit of bargaining.’” Hess Oil &

Chemical Corp. v. NLRB, 415 F.2d 440, 444 (5th Cir.

1969), cert. denied, 397 U.S. 916 (1970). Moreover,

“la] shift in membership after negotiations have begun

has lively possibilities for disrupting the bargaining

process.” NLRB v. Sheridan Creations, Inc., 357 F.2d

245, 248 (2d Cir. 1966), cert. denied, 385 U.S. 1005

(1967). Finally, permitting withdrawal at will during

bargaining would deprive employers, unions, and em-

ployees of any fair and predictable means for determin-

ing the continued legitimacy of the employees’ bargaining

representative.

The Board has reasonably concluded that a bargain-

ing impasse is not an “unusual circumstance” that

justifies an untimely withdrawal from a multiemployer

bargaining unit.

An impasse in negotiations “cannot be said to be an

unexpected, unforeseen, or unusual event in the process

of negotiations.” Hi-Wey Billboards, Inc., 206 N.L.R.B.

22, 23 (1973). It is “only a temporary ‘deadlock’ or

‘hiatus’ in negotiations which in almost all cases is

eventually broken either through a change of mind or

the application of economic force” (Pet. App. 41).

Furthermore, the problem of deciding whether the

parties have reached impasse “is often difficult for the

bargainers and is necessarily so for the Board.” Dallas

General Drivers, Local Union No, 745 v. NLRB, 355 F.2d

842, 844 (D.C. Cir. 1966). Moreover, if withdrawal

were permitted at impasse, the parties would bargain

under the threat of withdrawals by those who were not

completely satisfied with the results of the negotiations.

This would permit the scope of the unit to be used as

a “bargaining lever”—a result that is contrary to sound

principles consistently approved in the multiemployer

context.

Finally, it is precisely at and during impasse—when

bargaining is temporarily replaced by economic war-

fare—that the parties’ need for a stable, predictable

bargaining unit is most acute. The partial or complete

destruction of the multiemployer unit by unlimited uni-

lateral withdrawals at or during impasse would tend to

unsettle any tentative agreements or mutually dependent

compromises that may have been reached in prior bar-

gaining, and also would be unfair to the other parties

who had applied or withstood economic pressure in

support of the unit-wide bargaining demands.

The possibility that a union might enter into interim

agreements with individual employers during a strike

does not warrant a rule permitting employers unilaterally

to withdraw from a multiemployer unit at impasse.

Initially, even if some right of withdrawal were nec-

essary to counter-baiance the union’s ability to negotiate

interim agreements, there would be little reason to link

it to the existence of an impasse. Because employers may

lock out employees and employees may strike prior to

impasse, interim settlement of these economic conflicts are

often reached prior to impasse.

In any event, interim agreements of the kind the

Board has approved are not the equivalent of unilateral

withdrawal from a multiemployer unit. The Board has

approved interim agreements only in situations where

employees work during the strike either under the terms

of the expired contract, or under the terms that the

union had previously offered to the employers’ association

and the association had rejected. In either case, the

parties mutually recognize that these terms are tem-

porary, pending the outcome of the group bargaining,

and that any contract reached in the multiemployer unit

will ultimately govern all employer-employee relationships

in that unit. Such agreements are in sharp contrast to

final separate agreements with members of the multi-

employer unit.

To be sure, interim agreements, like the selective

strike—of which they are an integral part—may create

a whipsaw pressure on the remaining employers to agree

to the union’s demands within the unit. However, “the

uneven application of economic pressure per se is not in-

consistent with multiemployer bargaining” (Pet. App. 33).

The whipsaw pressure on the remaining members of an

employer association from interim agreements is analyti-

cally no different from the pressure that results when

some members refuse to join in a lockout in response to

a selective strike.

ARGUMENT

THE BOARD HAS REASONABLY DETERMINED

THAT IT WOULD NOT EFFECTUATE THE POLI-

CIES OF THE ACT TO PERMIT AN EMPLOYER

UNILATERALLY TO WITHDRAW FROM A MULTI-

EMPLOYER BARGAINING UNIT SOLELY BECAUSE

OF AN IMPASSE IN NEGOTIATIONS WITH THE

BARGAINING REPRESENTATIVE OF THE UNIT

EMPLOYEES

Multiemployer bargaining is a consensual arrange-

ment in which a group of employers agrees unequivocally

to be bound by group action in collective bargaining ne-

gotiations, and a union (or group of unions) agrees to

bargain with the employers’ designated representative

for a bargaining unit composed of employees of all the

employers.’ The practice of multiemployer bargaining

was approved by the Board early in its administration

3 NLRB Vv. Hart, 453 F.2d 215, 217-218 (9th Cir. 1971), cert. de-

nied, 409 U.S. 844 (1972); Komatz Construction, Inc. v. NLRB,

458 F.2d 317, 321 (8th Cir. 1972); McAz Sign Co. v. NLRB, 576

F.2d 62, 66 (5th Cir. 1978), cert. denied, 439 U.S. 1116 (1979).

of the National Labor Relations Act,‘ and a large num-

ber of employers and unions currently elect to use this

procedure ® as the means of satisfying their mutual obli-

gations to bargain in good faith.°

4 Shipowners’ Ass’n of the Pacific Coast, 7 N.L.R.B. 1002, 1024-

1025 (1938), appeal dismissed on other grounds sub nom. AFL v.

NLRB, 103 F.2d 933 (D.C. Cir. 1939), aff’d, 308 U.S. 401 (1940) ;

Waterfront Employers Ass’n of the Pacific Coast, 71 N.L.R.B. 80,

109-111 (1946).

5A recent survey of major collective bargaining agreements—

those covering 1,000 or more employees—found that of 1,536 major

agreements, 648 (42%) were multiemployer agreements and that

3,238,400 employees ‘vere covered by these agreements. U.S. Bu-

reau of Labor Statistics, Dept. of Labor, Bull. No. 2065, Charac-

teristics of Major Collective Bargaining Agreements—January 1,

1978, at 12, table 1.8 (1980).

* Section 8(d) of the Act, 29 U.S.C. 158(d) states, in relevant

part:

[T]o bargain collectively is the performance of the mutual

obligation of the employer and the representative of the em-

ployees to meet at reasonable times and confer in good faith

with respect to wages, hours, and other terms and conditions

of employment, or the negotiation of an agreement, * * * and

the execution of a written contract incorporating any agree-

ment reached if requested by either party, but such obligation

does not compel either party to agree to a proposal or require

the making of a concession * * *.

Section 8(a)(5) of the Act, 29 U.S.C. 158(a) (5), declares it an

unfair labor practice for an employer “to refuse to bargain collec-

tively with the representatives of his employees, subject to the

provisions of section 9(a).” Section 8(b) (3), 29 U.S.C. 158(b) (3),

likewise declares it an unfair labor practice for a labor organi-

zation “to refuse to bargain collectively with an employer, pro-

vided it is the representative of his employees subject to the pro-

visions of section 9(a).” Section 9(a), 29 U.S.C. 159(a), in

turn, specifies that “[r]Jepresentatives designated or selected for

the purposes of collective bargaining by the majority of the em-

ployees in a unit appropriate for such purposes, shall be the exclu-

sive representatives of all the employees in such unit for the pur-

poses of collective bargaining * * *.” Finally, under Section 2(2),

29 U.S.C. 152(2), the term “employer” includes “any person acting

as an agent of an employer, directly or indirectly,” and the term

Prior to the passage of the Taft-Hartley amendments

in 1947 (61 Stat. 186), Congress carefully reviewed the

practice of multiemployer bargaining. It declined to en-

act legislation that would have limited or outlawed this

practice, because it concluded that in many industries

the practice is “a vital factor in the effectuation of the

national policy of promoting labor peace through

strengthened collective bargaining’ (NLRB v. Truck

Drivers Local Union No. 449 (Buffalo Linen), 353 U.S.

87, 95-96 (1957)).7 Congress evidently intended “ ‘that

the Board should continue its established administrative

“person” is defined in Section 2(1), 29 U.S.C. 152(1), to include

“associations.”

7 By joining multiemployer bargaining units, smaller employers

are able to bargain on an equal basis with a large union, and to

avoid “the competitive disadvantages resulting from nonuniform

contractual terms.” Buffalo Linen, supra, 353 U.S. at 96. In such

bargaining, employers can make concessions without fear that other

employers will refuse to make similar concessions and thus achieve

a competitive advantage; likewise, a union can make concessions

without fear that the employees will be dissatisfied with not

receiving the same benefits which the union might win from

other employers. Thus, multiemployer bargaining encourages both

employers and unions to offer reasonable concessions and to reach

agreement without industrial strife. See R. Randall, Labor Rela-

tions in the Pulp and Paper Industry of the Pacific Northwest 102-

103 (1942); S. Rep. No. 105 (Pt. 2), 80th Cong., 1st Sess. 7

(1947); H.R. Rep. No. 245, 80th Cong., Ist Sess. 86-88 (1947);

93 Cong. Rec. 4674 (Sen. Knowland), 4574-4575 (Sen. Kilgore),

1834-1844 (Sen. Morse) (1947); General Subcomm. on Labor, of

the House Comm. on Education and Labor, 88th Cong., 2d Sess.

Multi-Employer Association Bargaining and its Impact on the Col-

lective Bargaining Process 12-13 (1964). Moreover, multiemployer

bargaining facilitates the development of industry-wide programs

benefiting employees, such as pension funds, health insurance plans,

apprenticeship or retraining course, and hiring halls. Absent multi-

employer bargaining, many employers would be unable to offer

such benefits, either because the employer employs too few em-

ployees or because employees are too transient to allow efficient

operation of such programs. See Multiemployer Pension Plan

practice of certifying multi-employer units, and intended

to leave to the Board’s specialized judgment the inevi-

table questions concerning multi-employer bargaining

bound to arise in the future.’” 353 at 96, quoting Truck

Drivers Local Union No. 449 v. NLRB, 2381 F.2d 110,

121 (2d Cir. 1956) (dissenting opinion) .*

One of the recurring questions in multiemployer bar-

gaining concerns the respective rights and obligations of

the parties when some but not all of the parties wish to

end their consensual relationship. Following this Court’s

recognition in Buffalo Linen that it is a policy of the

Act to preserve the integrity of multiermployer bargain-

ing units, the Board, in Retail Associates, Inc., 120

N.L.R.B. 384 (1958), sought to provide guidance to the

participants in multiemployer bargaining and announced

new ground rules for withdrawal that it intended to

apply in future cases. Under these rules, an employer

or union is free to withdraw from the multiemployer

unit for any reason before the date set for renegotiation

of an existing contract or the date on which negotiations

actually commence, provided adequate notice is given.

Once negotiations for a new contract have begun, how-

ever, a party may withdraw only if “mutual consent”

Amendments Act of 1980, Pub. L. No. 96-364, 94 Stat. 1208, to be

codified at 29 U.S.C. 1001a; H.R. Rep. No. 96-869 (Pt. I), 96th

Cong., 2d Sess. 51-54, 65 (1980); Multi-Employer Association Bar-

gaining and its Impact on the Collective Bargaining Process, supra,

at 15; U.S. Dep’t of Labor, Multi-Employer Pension Plans Under

Collective Bargaining 1 (1960).

8In Buffalo Linen, the Court upheld the Board’s conclusion that

“a temporary lockout may lawfully be used as a defense to a union

strike tactic which threatens the destruction of the employers’

interest in bargaining on a group basis” (353 U.S. at 93). See

also NLRB v. Brown, 380 U.S. 278 (1965) (employers who locked

out to defend the multiemployer unit against a whipsaw strike may

lawfully resume operations. with temporary replacements when the

struck employer has also done so).

is given or if “unusual circumstances” exist. Jd. at

395.° j

Although the Retail Associates rules are now well

accepted,’ the courts of appeals have divided over the

® Prior to the development of its Retail Associates rules, the

Board permitted employers to abandon a multiemployer unit in the

midst of bargaining (e.g., Bearing & Rim Supply Co., 107 N.L.R.B.

101, 102-103 (1953); Stamford Wall Paper, 92 N.L.R.B. 1173

(1951) ). And in Morand Bros. Beverage Co., 91 N.L.R.B. 409, 413,

416-418 (1950), enforced in part on other grounds, 190 F.2d 576,

581-582 (7th Cir. 1951), the Board, in an effort to reduce “the

existing disparity between the treatment accorded employers and

unions,” held that a union could withdraw from a multiemployer

unit at impasse (id. at 418). On review of Morand Bros. Beverage,

the Seventh Circuit specifically declined to “indorse the Board’s

reasoning to the effect that, once negotiations have been stalemated,

a union may utterly disregard the employer unit with which it has

theretofore bargained and proceed to fashion a new unit for bar-

gaining purposes * * *.” 190 F.2d at 582. Thereafter, through other

cases raising the issue of the legitimacy of the lockout in multiem-

ployer bargaining (see Buffalo Linen, supra, 353 U.S. at 89 n.5), the

Board came to recognize the need for greater stability in multiem-

ployer bargaining. It concluded that the attempted abandonment of

a multiemployer unit by an employer and his employees because of

dissatisfaction with the results of group bargaining was incon-

sistent with the commitment to be bound by the results of such

bargaining (McAnary & Welter, Inc., 115 N.L.R.B. 1029, 1031-

1032 (1956)), and, in Retail Associates, it refused to approve a

union’s mid-negotiation withdrawal from a multiemployer unit in

an effort to defeat the Association’s petition for an election in that

unit, reasoning that “the stability requirement of the Act dictates

that reasonable controls limit the parties as to the time and

manner that withdrawal will be permitted from an established

multiemployer bargaining unit” (120 N.L.R.B. at 393).

The Board’s increasing emphasis on the stability of multiemployer

units was paralleled by its development of « new policy favoring

stability in industrial units and restricting the right of craft em-

ployees to withdraw from such units. See Mallinckrodt Chemical

Works, 162 N.L.R.B. 387, 391-398 (1966), overruling American

Potash & Chemical Corp., 107 N.L.R.B. 1418, 1420-1424 (1954).

10 See, e.g., Carvel Co. v. NLRB, 560 F.2d 1030 (1st Cir. 1977),

cert. denied, 434 U.S. 1065 (1978) ; NLRB v. John J. Corbett Press,

question whether a bargaining impasse is an “unusual

circumstance” that justifies an employer or a union in

unilaterally withdrawing from a multiemployer bargain-

ing unit." In light of the considerations that underlie

Inc., 401 F.2d 673 (2d Cir. 1968); NLRB v. Dover Tavern Owners

Ass’n, 412 F.2d 725 (3d Cir. 1969); NLRB v. Marine Machine

Works, Inc., 635 F.2d 522 (5th Cir. 1981) ; NLRB v. Central Plumb-

ing Co., 492 F.2d 1252 (6th Cir. 1974); NLRB v. Custom Wood

Specialties, Inc., 622 F.2d 381 (8th Cir. 1980); NLRB v. Brother-

hood of Teamsters, Local No. 70, 470 F.2d 509 (9th Cir. 1972), cert.

denied, 414 U.S. 821 (1973); NLRB v. Johnson Sheet Metal, Inc.,

442 F.2d 1056 (10th Cir. 1971).

11 Since the Board first decided the issue in Hi-Way Billboards,

Inc., 206 N.L.R.B. 22 (1973), enforcement denied, 500 F.2d 181

(5th Cir. 1974), four circuit courts of appeals have rejected the

Board’s position that a bargaining impasse is not an unusual

circumstance under the Retail Associates rules: NLRB v. Hi-Way

Billboards, Inc., 500 F.2d 181 (5th Cir. 1974); NLRB v. Associated

Shower Door Co., 512 F.2d 230 (9th Cir.), cert. denied, 423

U.S. 898 (1975) (dictum); NLRB v. Beck Engraving Co., 522

F.2d 475 (3d Cir. 1975); NLRB v. Independent Ass’n of Steel

Fabricators, 582 F.2d 1385 (2d Cir. 1978), cert. denied, 439 U.S.

1130 (1979).

Following the Board’s reconsideration and clarification of its

position in the present case (Pet. App. 38-51), however, its posi-

tion has been approved not only by the First Circuit (Pet. App.

18-37), but also by the Fifth Circuit (NLRB v. Marine Machine

Works, Inc., supra, 635 F.2d at 524-526), which has now recon-

sidered its decision in Hi-Way Billboards, supra. The Ninth

Circuit, by contrast, adheres to Associated Shower Door, supra, and

to the Third Circuit’s decision in Beck Engraving, supra. See

H & D, Inc. v. NLRB, 105 L.R.R.M. 3070 (9th Cir. 1980), petition

for cert. pending, No. 80-1498 (filed Mar. 4, 1981).

Contrary to petitioner, Fairmont Foods Co. v. NLRB, 471 F.2d

1170, 1172 (8th Cir. 1972), was decided before Hi-Way Billboards,

Inc., supra, and, accordingly, did not pass upon “the Board’s rejec-

tion of impasse as an ‘unusual circumstance’” (Pet. Br. 16). The

language quoted by petitioner (Br. 16-17) is “dicta * * * [that]

relied primarily on what this court perceived to be the Board’s

policy and in view of the change of this policy, Fairmont can no

longer be considered controlling in this circuit.” Tobey Fine Papers

of Kansas City v. NLRB, 107 L.R.R.M. 2221, 2222 n.3 (8th Cir.

1981).

the Retail Associates rules, we submit that the Board

reasonably has concluded that a bargaining impasse is

not such a circumstance.

A. The Board’s Retail Associates Rules Reflect a Rea-

soned Balance of the Public and Private Interests

in Multiemployer Bargaining

The Board’s Retail Associates rules allow unlimited

withdrawals from multiemployer bargaining units prior

to the commencement of negotiations, but prohibit with-

drawals from the unit once bargaining has begun in the

absence of mutual consent or unusual circumstances.

They reflect a reasoned exercise of the Board’s authority

under Section 9 of the Act to define appropriate bargain-

ing units, and its authority under Section 8 of the Act

to enforce the duty to bargain, because they help to ef-

fectuate the statutory policy of promoting industrial

peace through collective bargaining.’ Those rules fairly

promote the public and private interests in multiemployer

bargaining and are consistent with the objectives of Con-

gress in sanctioning the continued practice of multiem-

ployer bargaining.

Thus, by allowing unlimited withdrawals from the

unit prior to the start of negotiations, the Retail Asso-

12 Section 9(b) of the Act, 29 U.S.C. 159(b), directs the Board

to decide “in each case * * * the unit appropriate for the purposes

of collective bargaining” and obliges the Board to consider, among

other factors, “the anticipated effectiveness of the unit in maintain-

ing industrial peace through collective bargaining” and whether the

unit implements the Act’s “policy of efficient collective bargaining.”

Pittsburgh Plate Glass Co. v. NLRB, 318 U.S. 146, 156, 165 (1941).

Sections 8(a)(5) and 8(b)(3) authorize the Board “to order the

cessation of behavior which is in effect a refusal to negotiate, or

which directly obstructs or inhibits the actual process of discus-

sion, or which reflects a cast of mind against reaching agreement.”

NLRB v. Katz, 369 U.S. 736, 747 (1962). The Board is likewise

authorized, pursuant to Section 8(d) and Section 10(c), 29 U.S.C.

158(d) and 160(c), to order employers or unions to sign and honor

collective agreements that have been negotiated on their behalf.

NLRB Vv. Strong, 393 U.S. 357 (1969).

ciates rules accommodate the legitimate interest of both

individual employers and their represented employees in

retaining (or reclaiming) direct control over their own

labor relations. History has demonstrated that, even in

longstanding multiemployer relationships, parties may

come and go in response to changed industrial circum-

stances," and that the desire for individual control over

vital issues in the employment relationship may be

strongly felt.’* As a practical matter, the failure to pro-

vide an outlet for the dissatisfactions that may arise in a

multiemployer bargaining relationship would very likely

retard the practice of bargaining on this basis, since em-

ployers and unions alike “would understandably be re-

luctant to initiate multiemployer bargaining if the deci-

sion to do so were virtually irrevocable.” The Evening

News Association, 154 N.L.R.B. 1494, 1499 (1965), en-

forced sub nom. Detroit Newspaper Publishers Ass’n v.

NLRB, 372 F.2d 569 (6th Cir. 1967).

Moreover, providing such an outlet gives due recogni-

tion to the fact that, in approving the practice of multi-

employer bargaining, Congress indicated its approval of

the Board’s view that multiemployer bargaining rests on

a foundation of mutual consent.’ Further, Congress

13 See, e.g., Pacific Coast Ass’n of Pulp & Paper Mfrs., 163

N.L.R.B. 892, 893, 895-896 (1967) (reviewing the 30-vear history

of a multiemployer bargaining relationship, and, in view of the

history of employer withdrawals, permitting a union to withdraw,

prior to the commencement of negotiations, with respect to some

but not all of the unit employers, subject to the reciprocal right

of any or all of the remaining employers to effect a timely with-

drawal).

14 See, e.g., Pacific Coast Ass’n of Pulp & Paper Mfrs. v. NLRB,

804 F.2d 760, 762-763 (9th Cir. 1962) (employer refusal to bargain

about pension issues on a multiemployer basis) ; Pacific Coast Ass’n

of Pulp & Paper Mfrs., supra, 163 N.L.R.B. at 894 (several local

unions sought a timely withdrawal because of “special problems

* * * that have not been given proper attention in the multiem-

ployer unit’).

15 H.R. Conf. Rep. No. 510, 80th Cong., Ist Sess. 31-32 (1947) ;

S. Rep. No. 105 (Pt. 1), 80th Cong., lst Sess. 18 (1947).

affirmatively sought to strengthen the voluntary nature

of multiemployer bargaining by enacting new measures

proscribing union tactics designed to coerce employers to

enter into or withdraw from multiemployer bargaining.”

On the other hand, the objectives of multiemployer

bargaining would be frustrated if the parties were free

to withdraw from the unit at will once bargaining has

begun. A number of considerations support this conclu-

sion.

First, a reasonable stability in the employer comple-

ment is essential since “[t]he parties cannot bargain

meaningfully about wages or hours or conditions of em-

ployment unless they know the unit of bargaining.” *’

Bargaining issues typically present a range of choices

that may be differently assessed depending on the par-

ticular interests of the employers and employees in the

bargaining unit.’* Who is in the bargaining unit shapes

16 Section 8(b)(1)(B) of the Act, 29 U.S.C. 158(b)(1)(B),

declared it an unfair labor practice for a labor organization

“to restrain or coerce * * * an employer in the selection of his

representatives for the purposes of collective bargaining or the ad-

justment of grievances.” In enacting this measure, “(t]he specific

concern of Congress was to prevent unions from trying to force

employers into or out of multi-employer bargaining units” Florida

Power & Light Co. v. Electrical Workers, 417 U.S. 790, 803 (1974).

See S. Rep. No. 105 (Pt. 1), 80th Cong., Ist Sess. 21 (1947). Fur-

ther, the secondary boycott provisions proscribe strikes and other

coercive conduct by unions where “an object thereof is: (A) forcing

or requiring any employer * * * to join any * * * employer organi-

zation * * *.” Section 8(b)(4)(A) of the Act, 29 U.S.C. 158(b)

(4) (A); H.R. Conf. Rep. No. 510, 80th Cong., Ist Sess. 44-45

(1947).

17 Hess Oil & Chemical Corp. v. NLRB, 415 F.2d 440, 449 (5th

Cir. 1969), cert. denied, 397 U.S. 916 (1970), quoting from Douds

v. Int’l Longshoremen’s Ass’n, 241 F.2d 278, 282 (2d Cir. 1957).

18 F.g., whether economic gains should be received in the form

of higher wages, shorter hours or increased fringe benefits (NLRB

v. Crompton-Highland Mills, Inc., 387 U.S. 217, 224 (1949)); how

seniority should be computed and to what privileges it should

attach (Ford Motor Co. v. Huffman, 345 U.S. 330, 338-339 (1953) ) ;

not only the issues that are brought to the bargaining

table,’® but also the nature of the concessions or compro-

mises that each side feels obligated to make in order to

secure an agreement.*® The process of bargaining—

weighing the advantages and disadvantages of differing

proposals, determining (and redetermining) priorities,

and ultimately fashioning a contract package that is

acceptable to the principals on both sides—is complex.

In multiemployer bargaining that process could become

unduly complex, if not futile, unless both sides have

assurance that the unit will remain relatively stable

during bargaining.

Second, if parties could withdraw from multiemployer

units at will after bargaining has commenced, multi-

employer bargaining could not serve the objective that

Congress intended to achieve—namely, “promoting in-

dustrial peace through strengthened collective bargain-

ing.” Buffalo Linen, supra, 353 U.S. at 95. Negating the

reasons which prompt multiemployer bargaining (see note

7, supra), such withdrawals would tend to revive fears

of competitive disadvantage resulting from differences in

wages and working conditions; to imperil tentative agree-

ments already reached in the unit and to impede further

bargaining within the unit; to multiply the number of

whether an increased right to accumulate unused sick leave counter-

balances a reduction in the amount of new leave earned each year

(NLRB Vv. Katz, supra, 369 U.S. at 744).

19 F.g., Anderson Lithograph Co., 124 N.L.R.B. 920, 928 (1959),

enforced sub nom. NLRB v. Jeffries Banknote Co., 281 F.2d 893

(9th Cir. 1960) (union’s demand for a profit sharing plan was

prompted by a particular employer’s joining the multiemployer

unit).

2° For example, if some members of an employers’ association

oppose a concession on an issue of importance to the union, while

other members are relatively indifferent, and the association makes

this fact known, the union may be encouraged to weaken or trade

off some of its other demands in the hope of securing a favorable

agreement on this issue. Cf. Retail Clerks Union, No. 1550 v. NLRB,

330 F.2d 210, 215 (D.C. Cir. 1964).

disputes and to retard their peaceful resolution; and,

without fair warning, to remove the shelter of multi-

employer bargaining from small vulnerable employers

who may have been lulled into believing they could rely

on each others’ strength. In short, “[a] shift in mem-

bership after negotiations have begun has lively possi-

bilities for disrupting the bargaining process,” and “the

potential for disruption is sufficient to justify the Board

in adopting a uniform rule for all cases that withdrawal

is not timely once bargaining has begun.” NLRB v.

Sheridan Creations, Inc., 357 F.2d 245, 248 (2d Cir.

1966), cert. denied, 385 U.S. 1005 (1967).

Third, permitting withdrawal at will during bargain-

ing would deprive employers, unions, and employees of

any fair and certain means for determining the con-

tinued legitimacy of the employees’ bargaining repre-

sentative. Under the Board’s Retail Associates rules,

unions, employers, and employees all know with certainty

that, once multiemployer bargaining has commenced, the

relevant unit for testing the union’s majority status,

absent unusual circumstances, is the multiemployer unit.**

By contrast, if employers and unions could withdraw

from a multiemployer unit at will during contract nego-

tiations, the boundaries of the multiemployer unit could

change from day to day, and neither side would know

in advance whether the relevant measure of employee

support was an employer unit or the multiemployer

unit.”

21 See Sheridan Creations, Inc., 148 N.L.R.B. 1508, 1505, 1506

(1964), enforced, 357 F.2d 245 (2d Cir. 1966), cert. denied, 385

U.S. 1005 (1967).

22 Both unions and employers engaged in multiemployer bar-

gaining sometimes seek a momentary tactical advantage by having

employee support measured in other than the multiemployer unit.

Compare Retail Associates, supra, 120 N.L.R.B. at 390-394; Taylor

Motors, Inc., 241 N.L.R.B. 711 (1979) (unions bargaining for a

multiemployer contract opposed decertification election in the multi-

employer unit), with NLRB v. Custom Wood Specialties, Inc., supra,

622 F.2d at 384-885; Tobey Fine Papers of Kansas City v. NLRB,

Finally, restricting the withdrawal rights of employers

and unions is necessary in order that both sides can be

assured of receiving the benefits of the consensual ar-

rangement they freely elected. Neither employers nor

unions may insist that the other commence bargaining on

a multiemployer basis, and each side has an unlimited

right to withdraw from a multiemployer unit before bar-

gaining begins (supra, pages 14-16). This freedom af-

forded the parties supports a rule that, once an unequiv-

ocal commitment to be bound by group bargaining is

made, it should ordinarily be honored. Otherwise, the

legitimate expectations on both sides may be frustrated

as one side or the other reneges on its pledge because of

disenchantment with the results of bargaining. Collective

bargaining is inherently a process where “(t]he complete

satisfaction of all who are represented is hardly to be

expected” (Ford Motor Co. v. Huffman, supra, 345 U.S.

at 338), and parties who voluntarily seek the advantages

of group bargaining are reasonably held to assume the

ordinary responsibilities and limitations that go with it.

NLRB v. Tulsa Sheet Metal Works, Inc., 367 F.2d 55,

58 (10th Cir. 1966).

supra, 107 L.R.R.M. at 2225 (employers bargaining for a multi-

employer contract attempted untimely withdrawal in response to

decertification activity by the employees of an individual employer

in the unit). The Act, however, “is not intended to serve either

party’s individual interest, but to foster in a neutral manner a

system in which the conflict between these interests may be re-

solved” (First National Maintenance Corp. v. NLRB, No. 80-544

(June 22, 1981), slip op. 14), and the Board measures both sides’

representation claims by the same neutral standard—that of the

multiemployer unit. Such a rule is fair to the employees as well,

since they receive the benefits of stable labor relations and effective

collective bargaining that Congress believed flowed from multi-

employer units, and these benefits would be imperiled for all if

dissatisfied subgroups within a unit were free to withdraw uni-

laterally in the midst of bargaining. See, e.g., NLRB v. Brother-

hood of Teamsters Local 70, supra, 470 F.2d at 509-510.

B. The Board Has Reasonably Concluded That a Bar-

gaining Impasse Is Not an Exceptional Circumstance

Privileging a Unilateral Withdrawal From Multi-

employer Bargaining

The Board’s Retail Associates rules are not inflexible.

The rules expressly contemplate that otherwise untimely

withdrawals from a multiemployer unit may be excused

by “mutual consent” (120 N.L.R.B. at 395).* Further,

the rules indicate that, even in the absence of the requi-

site consent, a unilateral withdrawal may be excused if

there are “unusual circumstances” (ibid.). The Board

has found “unusual circumstances” excusing withdrawal

where extreme financial pressures, such as impending

bankruptcy, threatened an employer’s survival. Uni-

lateral employer withdrawal has also been permitted—on

the grounds of “unit fragmentation”—in circumstances

where the size of the bargaining unit has been drastic-

ally reduced as the result of untimely withdrawals to

which the union consented ** or where a union has en-

gaged in a course of conduct that manifested either a

clear purpose to destroy the multiemployer unit or an

abandonment of multiemployer bargaining.** The Board,

however, has refused to find that a bargaining impasse

is in itself a circumstance that justifies an untimely with-

drawal from bargaining; the Board has reasonably con-

23 The Administrative Law Judge (Pet. App. 60-62), the Board

(Pet. App. 40, 51, 70-71), and the court below (Pet. App. 36-37)

found that there was no such consent here, and petitioner does not

dispute that finding in this Court.

24 United States Lingerie Corp., 170 N.L.R.B. 750, 751 (1968);

Spun-Jee Corp., 171 N.L.R.B. 557, 558 (1968); Atlas Electrical

Service Co., 176 N.L.R.B. 827, 830 (1969).

25 NLRB v. Southwestern Colorado Contractors Ass'n, 447 F.2d

968, 969-970 (10th Cir. 1971); Connell Typesetting Co., 212

N.L.R.B. 918, 921 (1974).

%6 Typographic Service Co., 288 N.L.R.B. 1565 (1978); Neville

Foundry Company, Inc., 122 N.L.R.B. 1187, 1189-1190 (1959).

cluded that the balance of the considerations discussed

above does not shift at the time of impasse.

1. An impasse in negotiations occurs when parties

reach “deadlock” with “neither party willing to move

from its respective position” (Hi-Way Billboard, Inc.,

supra, 206 N.L.R.B. at 23). This occurrence “cannot be

said to be an unexpected, unforeseen, or unusual event

in the process of negotiations” (ibid.). “The parties—

even granting the modification of views that may come

from a realization of economic interdependence—still pro-

ceed from contrary and to an extent antagonistic view-

points and concepts of self-interest” (NLRB v. Insurance

Agents’ Union, 361 U.S. 477, 488 (1960)). The Act is

predicated on the theory that “free opportunity for nego-

tiation * * * is likely to promote industrial peace and

may bring about * * * agreements” (NLRB v. Jones &

Laughlin Steel Corp., 301 U.S. 1, 45 (1937)), but it re-

quires only that the parties bargain in good faith about

terms and conditions of employment (29 U.S.C. 158(d)).

Employers and unions who agree to bargain in a multi-

employer unit may reasonably be held to assume the risk

of a bargaining impasse, which is part of the normal

process of attempting to reach an agreement in collective

bargaining. Indeed, many mediators have contended that

it is only at the point of impasse—when the parties have

exhausted their own efforts to reach agreement—that the

intervention of outside mediators is appropriate.*’ De-

spite the existence of an impasse, a sense of the in-

evitability of eventual settlement underlies almost all

27 See W. Maggiolo, Techniques of Mediation in Labor Disputes

14-15 (1971); K. Braun, Labor Disputes and Their Settlement

110-111 (1973). Even mediators who would intervene earlier

recognize that the suspension of negotiations at impasse is often

necessary in order to permit the parties to cool off, and they will

themselves suggest that the parties recess. See W. E. Simkin,

Mediation and the Dynamics of Collective Bargaining 79 (1971).

collective bargaining negotiations.** As the Board stated

here (Pet. App. 41) :

An impasse is only a temporary “deadlock” or “hia-

tus” in negotiations which in almost all cases is

eventually broken, either through a change of mind

or the application of economic force. * * * Suspen-

sion of the process as a result of an impasse may

provide time for reflection and a cooling of tempers;

it may be used to demonstrate the depth of a party’s

commitment to a position taken in the bargaining; or

it may increase economic pressure on one or both

sides, and thus increase the desire for agreement.

For example, impasse permits the employer to place

into effect those wage increases or benefits it has

heretofore offered [see note 30, infra], an action (or

the possibility of it) which may substantially shift

the bargaining positions of the parties. In these and

other possible uses of impasse as a bargaining tactic,

the emphasis is toward achieving agreement rather

than causing a permanent disruption of the relation.

The occurrence of an impasse can thus scarcely be con-

sidered an “unusual circumstance” similar to those the

Board has found sufficient to excuse an untimely with-

drawal from the multiemployer unit.”®

28 Simkin, supra, at 158-159. “Even when negotiations are in the

doldrums and no progress is being made, everybody is aware

that this must be temporary. After an unusually frustrating

day, a frequent mediator observation is: ‘Oh, well, at least we’re

one day closer to a settlement’” (id. at 159).

2° For this reason, petitioner is incorrect in asserting that the

refusal to recognize a right of withdrawal on impasse requires

“adherence to a multiemployer unit long after meaningful collective

bargaining within that framework has become nothing more than

an exercise in futility” (Br. 35). See also Amicus Curiae Graphic

Arts Union Employers of America Br. 11-15. Moreover, fragmenta-

tion of a unit merely because of frustration over the conduct of

particular negotiations disserves other interests furthered by multi-

employer bargaining (see note 7, supra).

2. Indeed, the practicalities of bargaining show that

impasse should not be held to justify such withdrawal.”

a. The problem of deciding whether the parties have

reached impasse “is often difficult for the bargainers and

is necessarily so for the Board.” Dallas General Drivers,

Local Union No. 745 v. NLRB, 355 F. 2d 842, 844 (D.C.

Cir. 1966) ; see Amicus Curiae United Mine Workers of

America Brief at 11-13. Impasse may be reached quickly

or after extended negotiations." It may persist for a

*In the context of single-employer bargaining, neither the

Board nor the courts have ever held that impasse was a circum-

stance justifying similar fundamental changes in the bargaining

relationship, although it does signal certain changes in the parties’

bargaining obligation. When such a deadlock is reached, the duty

to meet and bargain about the subject matter of the impasse is

suspended until such time as there is a reasonable basis to believe

that an agreement might be possible. See, e.g., NLRB v. Webb

Furniture Corp., 366 F.2d 314, 315-316 (4th Cir. 1966); Trans-

port Company of Texas, 175 N.L.R.B. 763, 767-768 (1969), en-

forced, 438 F.2d 258 (5th Cir. 1971). Further, once impasse

results, the employer, having satisfied its bargaining obligation

with respect to the subjects of the impasse, is free unilaterally

to implement the terms and conditions it previously proposed to the

union. See, e.g., American Fed’n of Television & Radio Artists Vv.

NLRB, 395 F.2d 622, 624 (D.C. Cir. 1968); Bi-Rite Foods, 147

N.L.R.B. 59, 64-65 (1964). Impasse also defines the limits to which

either side may press discussion of nonmandatory subjects of

bargaining. See NLRB v. Wooster Division of Borg-Warner Corp.,

356 U.S. 342 (1958).

31 F.9g., Dalton Brick & Tile Corp., 126 N.L.R.B. 473, 478-480

(1960), enforcement denied on other grounds, 301 F.2d 886 (5th

Cir. 1962) (impasse after two meetings; agreement reached two

months later, following a lockout by the employer); Taft Broad-

casting Co., 168 N.L.R.B. 475 (1967), aff'd sub nom. American

Fed’n of Television & Radio Artists v. NLRB, 395 F.2d 622

(D.C. Cir. 1968) (impasse reached after some 25 negotiating

sessions held over a six-month period; employee strike settled

some six months later); NLRB v. Hi-Way Billboards, Inc., 473

F.2d 649, 651-652, 655 (5th Cir. 1973) (impasse reached after

18 meetings in a two-month period; following an employee strike,

agreement reached within two weeks).

considerable period and then break suddenly, surprising

even the participants.”

b. Moreover, if withdrawal were permitted at impasse,

the parties would bargain under the threat of withdraw-

als by those who were not completely satisfied with the

results of the negotiations.** Such a rule would thus

invite the parties to use the scope of the unit as a “bar-

gaining lever’”—a result that is contrary to sound prin-

ciples consistently approved in the multiemployer context.

82 See, e.g., Bill Cook Buick, 224 N.L.R.B. 1094, 1095 (1976)

(after five months without movement on the major issues, not-

withstanding a three-month strike, both sides made concessions and

quickly reached agreement). See also J. Carpenter, Employers’

Associations and Collective Bargaining in New York City 208-209

(1950):

Major strikes * * * become a battle of resources for the union

as well as the associations. * * * More than one association

* * * has discovered to its surprise [after yielding] that if its

members had held together a few days longer, the associa-

tion would have broken the back of union resistance.

Similar experience underlies the admonition (B. Morse, How to

Negotiate the Labor Agreement 63 (1974)) that a negotiator

should never make a concession without first checking whether

the other side has not itself decided to yield the issue.

38 Cf. NLRB v. Independent Ass'n of Steel Fabricators, supra,

582 F.2d at 146-147, where the court found that, because the union

refused to yield the advantages it had gained in previous bargain-

ing, thereby disappointing the expectations of the employers in the

multiemployer unit, “the Association was useless as a bargaining

device.” The court accordingly permitted untimely withdrawal

from the unit.

%4 NLRB vy. Sheridan Creations, Inc., supra, 857 F.2d at 248;

NLRB vy. Johnson Sheet Metal, Inc., supra, 442 F.2d at 1059; McAz

Sign Co. v. NLRB, supra, 576 F.2d at 67-68; Carvel Co. v. NLRB,

supra, 560 F.2d at 1033. The bargaining unit is the framework for

mandatory bargaining; normally, it is not itself a subject of man-

datory bargaining, and a threat unilaterally to alter the boundaries

of a multiemployer unit during bargaining (and thereby to in-

hibit or obstruct the process of bargaining) is an impermissible

tactic. See Newspaper Printing Corp. v. NLRB, 625 F.2d 956, 963

Indeed, given the typical pattern of bargaining, such a

rule would provide a device whereby the parties could

realistically hope to get the best of both worlds: an agree-

ment in the multiemployer unit if satisfied with its terms,

and an opportunity to escape the unit entirely if it ap-

peared that the agreement would be less favorable than

expected. Experienced negotiators typically take firm

positions at the outset in order to test the limits of their

opponent’s position, and “[t]o this end, compromises are

usually made cautiously and late in the process.” * Sim-

ply by refraining from making a concession, either side

could precipitate an impasse and escape from the unit.**

c. It is precisely at and during impasse—when bar-

gaining is temporarily replaced by economic warfare—

that the parties’ need for a stable, predictable bargaining

unit is most acute. Before impasse, parties involved in

multiemployer bargaining ordinarily will have made con-

cessions, reached some tentative agreements, and possibly

resorted to various economic weapons or weathered the

other parties’ use of such weapons.*” In taking such ac-

(10th Cir. 1980); Newport News Shipbuilding & Dry Dock Co. v.

NLRB, 602 F.2d 73, 76 (4th Cir. 1979) ; General Drivers & Helpers

Union Local No. 554 Vv. NLRB, 522 F.2d 562, 565-567 (8th Cir.

1975) ; Douds v. Int’l Longshoremen’s Ass’n, supra, 241 F.2d at

281-283.

%5 Local 18, Detroit Newspaper Printing Union v. NLRB, 598

F.2d 267, 273 (D.C. Cir. 1979).

%6 Accordingly, the Board in this case (Pet. App. 47) respect-

fully disagreed with the view, stated by the Third Circuit in

NLRB v. Beck Engraving Co., supra, 522 F.2d at 483, that impasse

is “an event which neither [side] can manipulate * * *.”

37 There is nothing inconsistent in applying economic pressure

at the same time the parties are engaged in bargaining. See

NLRB v. Insurance Agents’ Union, supra, 361 U.S. at 479, 489, 490.

Thus, employers may lock out and employees may strike before

impasse is reached. See Darling & Co., 171 N.L.R.B. 801, 802-

803 (1968), aff’d sub nom. Lane v. NLRB, 418 F.2d 1208 (D.C.

Cir. 1969); NLRB v. Safeway Steel Scaffolds Co., 383 F.2d

273, 280 (5th Cir. 1967); Callier’s Custom Kitchens, 243 N.L.R.B.

No. 143, 102 L.R.R.M. 1008, 1009 (1979), enforced, 630 F.2d 595

(8th Cir. 1980).

tions—and in refraining from other actiotis—the parties

rely upon the existence of the established multiemployer

unit in weighing the costs and possible benefits of their

conduct. The partial or complete destruction of that unit

by unlimited unilateral withdrawals at or during impasse

would not only tend to unsettle any tentative agreements

or mutually dependent compromises that may have been

reached in prior bargaining, but also would be unfair to

the other parties who had applied or withstood economic

pressure in support of the unit-wide bargaining de-

mands.** Further, since both employers and unions plan

their bargaining strategy on the basis of their estimates

of the sources and extent of employee support in the unit,

allowing unlimited unilateral withdrawals at or during

impasse would unfairly deny the parties a predictable

basis for calculating the union’s continued majority sup-

port in the unit.*®

38 For example, here the other members of the Association re-

sponded to the Union’s strike against petitioner by a lockout (Pet.

App. 57; A. 94).

389 Amicus Curiae Graphic Arts Union Employers of America

notes (Br. 12-13) that the Board will permit a union’s representa-

tive status to be challenged after a contract has expired and, if such

challenge is made, will permit a unilateral suspension of bargaining

negotiations until the matter is resolved. It contends that this is

more destructive of collective bargaining than is a rule which

would permit an employer to withdraw from a multiemployer unit

after an impasse has been reached in the negotiations, for the

latter rule merely seeks an alternative method of bargaining (i.e.,

in a single employer, rather than a multiemployer, unit), not its

total suspension. “This is to make situations that are different

appear the same” (Brooks v. NLRB, 348 U.S. 96, 104 (1954)).

Where the union’s status as the representative of the bargaining

unit employees is properly called into question, it effectuates the

policies of the Act to defer negotiations until that issue is re-

solved, because there would be no duty to bargain if the union in

fact has lost the support of a majority of unit employees. On the

other hand, where there is no valid reason to doubt that the union

continues to represent a majority of the employees in a multi-

employer unit, the only justification for permitting withdrawal is

to afford an employer who wishes to leave the multiemployer unit,

For all these reasons, the Board is amply warranted in

concluding that a bargaining impasse is not an unusual

circumstance which would justify withdrawal from a

multiemployer bargaining unit. It “is but one thread in

the complex tapestry of collective bargaining rather than

a bolt of a different hue.” Hi-Way Billboards, Inc., supra,

206 N.L.R.B. at 23.

C. The Fact That a Union May Enter Into Interim

Agreements With Individual Employers During a

Strike Does Not Warrant a Rule Permitting Em-

ployers Unilaterally to Withdraw at Impasse

Although petitioner urges acceptance of the “impasse

doctrine” to justify its unilateral withdrawal from the

multiemployer unit, petitioner’s arguments (Br. 14-15,

26-35), like those in the judicial decisions on which it

relies,” focus not on the nature of impasse or its place in

the collective bargaining process but on the alleged un-

fairness of the Board’s rules. That is, petitioner contends

that, since the Board permits the union to enter into

separate “interim agreements” with some of the employer

members of a multiemployer unit, which allow them to

resume operations while a strike continues against the

other members and pending the negotiation of a final

agreement covering the multiemployer unit,“ it is unfair

and bargain on an individual basis, full freedom to do so. The

Board could reasonably conclude that to afford the individual

employer this freedom after negotiations have commenced and

merely because they have reached an impasse, would be unduly

destructive of the congressional objective of fostering collective

bargaining through multiemployer units.

40 NLRB v. Hi-Way Billboards, Inc., 500 F.2d 181 (5th Cir.

1974); NLRB v. Associated Shower Door Co., 512 F.2d 230 (9th

Cir.), cert. denied, 423 U.S. 893 (1975); NLRB v. Independ-

ent Ass’n of Steel Fabricators, 582 F.2d 135 (2d Cir. 1978), cert.

denied, 439 U.S. 1130 (1979); NLRB v. Beck Engraving Co., 522

F.2d 475 (3d Cir. 1975).

41See Sangamo Construction Co., 188 N.L.R.B. 159 (1971);

Plumbers & Steamfitters Union No. 323 (P.H.C. Mechanical Con-

tractors), 191 N.L.R.B. 592, 596 (1971).

not to permit an employer unilaterally to withdraw from

the unit after an impasse in the negotiations is reached.

In the present case, the Board found (Pet. App. 51),

and the court below agreed (Pet. App. 33), that “no

interim agreements were made or even attempted.” But,

in Beck, supra, the Third Circuit was of the view that

the mere possibility that a union might enter into interim

agreements would give it “a tremendous bargaining ad-

vantage and leverage” (522 F.2d at 483) that should be

equalized by a rule permitting employers to withdraw

from a multiemployer unit at any time during a bar-

gaining impasse.‘ In light of Beck, the court below

found it necessary to address the interim agreements

question (Pet. App. 33-36; but cf. Pet. App. 37 (concur-

ring opinion) ). Having done so, it correctly concluded

that interim agreements of the sort the Board has ap-

proved are a legitimate form of economic pressure, and

that the Board therefore properly declines to disapprove

them, either directly by finding them to be unfair labor

practices or indirectly by withholding otherwise available

unfair labor practice remedies against employers who

untimely withdraw from multiemployer bargaining.

The Beck court found interim agreements objectionable

on the ground that they enabled the union to “whipsaw

the remaining employers of the bargaining unit,” thereby

“strengthen[ing] the union’s hand vis-a-vis those employ-

ers who continue to bargain within the unit” (522 F.2d

at 482-483). The court further stated that negotiating

such agreements “is tantamount to a rejection of the

42 As the court below correctly observed (Pet. App. 27-29, 33),

the absence of any interim agreements here serves to distinguish

the other cases relied on by petitioner—Hi-Way Billboards, Associ-

ated Shower Door, and Independent Ass’n of Steel Fabricators—

since in al] of those cases the courts relied in whole or significant

part on the fact that the union objecting to the untimely with-

drawal of certain employers had itself entered into separate agree-

ments with individual members of the employer association. See

also Murphy, Impasse and the Duty to Bargain in Good Faith,

39 U. Pitt. L. Rev. 1, 55, 60 (1977).

existence of the multi-employer bargaining unit” and that

the Board’s approval of this additional weapon in the

union’s arsenal required that the employer be granted

“an equivalent right” of unilateral withdrawal from the

unit (id. at 488). Accordingly, the court held that “[t]he

rights of the parties should accrue simultaneously based

upon the occurrence of an event which neither can manip-

ulate (e.g., impasse)” (ibid.). This reasoning does not

withstand analysis.

Initially, as the court below held (Pet. App. 34), even

if some right of withdrawal were necessary to counter-

balance the union’s ability to negotiate interim agree-

ments, there would be little reason to link it to the exist-

ence of an impasse. As shown (supra, pages 24-25), it is

not true, as Beck assumed, that impasse is an event

neither side can manipulate. Moreover, because employ-

ers may lock employees out and employees may strike

prior to impasse (supra, note 37), interim settlements

of these economic conflicts are often reached prior to im-

passe. The Board’s approval of interim agreements has

accordingly not been limited to situations where those

agreements were entered into after impasse.** For the

reasons discussed above, neither party’s right to with-

draw from the unit should be based on the existence of

an impasse.

In any event, interim agreements of the kind the Board

has approved are not the equivalent of unilateral with-

drawal from a multiemployer unit. As the Board em-

phasized here (Pet. App. 47-48), it has approved interim

agreements only in situations where employees work dur-

43 Callier’s Custom Kitchens, supra, 248 N.L.R.B. No. 143, 102

L.R.R.M. at 1010 n.6, 1011-1012, noting that interim agreements of

the sort executed by the union “serve the necessary and useful

purpose of encouraging movement and compromise and, thus, avoid-

ing deadlocks in negotiations”; Sangamo Construction Co., supra,

188 N.L.R.B. at 160, dismissing unfair labor practice charges

directed at an interim agreement, when bargaining continued

throughout the period that the agreement was in operation.

ing the strike either under the terms of the expired con-

tract (Sangamo Construction Co., supra), or under

the terms that the union had previously offered to the

employers’ association and the association had rejected

(P.H.C. Mechanical Contractors, supra). In either case,

the parties mutually recognize that these terms are tem-

porary, pending the outcome of the group bargaining,

and that any contract reached in the multiemployer unit

will ultimately govern all employer-employee relationships

in that unit.“4 Such agreements are in sharp contrast to

final separate agreements with members of the multi-

employer unit. Indeed, where union efforts to negotiate

such separate agreements have resulted in the fragmen-

tation of the unit, the Board has excused untimely with-

drawals from multiemployer groups. See Connell Type-

setting Co., supra, 212 N.L.R.B. at 921; Typograhic Serv-

ice Co., supra, 2388 N.L.R.B. at 1565-1566. Compare

Tobey Fine Papers of Kansas City, 245 N.L.R.B. No. 181,

102 L.R.R.M. 1348, 1844-13845 (1979), enforced on other

grounds, 107 L.R.R.M. 2221 ‘8th Cir. 1981) (refusing

to find fragmentation where the employers did not object

to the separate agreements by filing unfair labor practice

charges and did not rely on them in later withdrawing

from the unit).

The Board has thus approved only interim agreements

that respect the superior authority of the multiemployer

association to negotiate a final contract controlling the

relations of the unit employers and employees for the

contract term. Because such agreements are avowedly

subordinate to the unit-wide contract, they are not incon-

sistent with the commitment to be bound by group action

44 Petitioner inaccurately states that the conclusion of a separate

interim agreement shows “an employer is breaking away from

the group to bargain individually with the union” (Br. 33). See

also Graphic Arts Br. 15-19. These agreements do not contain

any special provisions worked out between the union and the indi-

vidual employer, nor do they offer the agreeing employer any long

term benefits not available to the other association members.

in bargaining. Moreover, unlike unilateral withdrawals

or separate final agreements, such interim agreements do

not change the boundaries of the unit, and, since the

signers thereof know they will be bound by the results

of group bargaining, they retain a vested interest in the

outcome of the multiemployer negotiations.*® Finally,

“5 By contrast, separate final agreements breach the commitment

to be bound by group action in bargaining upon which the multi-

employer unit is founded and deny the authority of the employer

association to bind each employer member to the final contract.

If such separate final agreements were deemed lawful, then, under

Section 8(d) of the Act, 29 U.S.C. 158(d), neither the union nor

the individual employer would have a right to require the other to

“terminate or modify such contract” during its term. Accordingly,

to the extent that the separate contract was different from the one

governing the multiemployer unit, that difference could endure for

the contract’s term, and a central purpose of multiemployer bar-

gaining—“avoiding the competitive disadvantages resulting from

nonuniform contractual terms” (Buffalo Linen, supra, 353 U.S. at

96)—would be frustrated.

Since separate final agreements do tend to undermine the multi-

employer unit, the Board has held that an employer and a union vio-

late, respectively, Sections 8(a)(5) and 8(b)(3) of the Act, 29

U.S.C. 158(a)(5) and 158(b) (8), if, without the consent of the

multiemployer group, they enter into a separate final contract that

is not intended to be superseded by the contract worked out in the

multiemployer unit. Teamsters Local 378 (Olympia Automobile

Dealers Ass'n), 243 N.L.R.B. No. 138, 102 L.R.R.M. 1007 (1979),

enforcement pending, No. 79-7683 (9th Cir., argued Nov. 5, 1980).

As the Board explained in Callier’s Custom Kitchens, supra, 243

N.L.R.B. No. 148, 102 L.R.R.M. at 1011 n.8:

The essence of multiemployer bargaining is a consensual, tri-

partite relationship between the union, the multiemployer

bargaining association, and the individual employer-members

of the association. * * * Each essential party to multiemployer

bargaining * * * has a stake not only in the results of multi-

employer bargaining, but in the multiemployer unit’s member-

ship composition as well. Recognition of the nature of

multiemployer bargaining and the relationship between the

parties has prompted the Board to find that, once multi-

employer bargaining has begun, the multiemployer association

has the right to restrain an individual employer-member from

because interim agreements are a means whereby partic-

ularly vulnerable employers may avoid exceptional hard-

ship during a strike,** they provide useful flexibility in

multiemployer bargaining, and indeed may forestall situ-

ations where employers are forced to withdraw from the

unit in order to survive economically (supra, page 20,

note 24).

To be sure, interim agreements may create a whipsaw

pressure on the remaining employers to agree to the

union’s demands within the unit. In this respect, they

closely resemble a selective strike.’ However, as the

court below correctly observed, “the uneven application

of economic pressure per se is not inconsistent with

multiemployer bargaining (Pet. App. 33). Cf. Buffalo

Linen, supra, 353 U.S. at 89-90, 94 n. 22. The whipsaw

pressure on the remaining members of an employer asso-

ciation from interim agreements by some members is

analytically no different from the pressure that results

defecting from the multiemployer fold and proceeding to negoti-

ate and enter into a separate, final agreement with the union.

On the basis of this analysis, the separate agreement repro-

duced at SA 4-6 of the Graphic Arts Brief might well be found

to be a violation of Sections 8(a) (5) and 8(b)(3) to the extent

that it preserves special benefits to the individual employer after

the conclusion of the multiemployer agreements (see Graphic

Arts Brief 15-16, 19-20).

46 F.g., P.H.C. Mechanical Contractors, supra, 191 N.L.R.B. at

593 (employer performing a contract with a time penalty clause

for nonperformance at the time of the strike).

47 They are indeed typically a means of implementing a selec-

tive strike. For example, the union may announce that it will

strike all the employers in the unit who do not sign interim

agreements embodying the terms of the union’s final offer to the

association, or it may announce its willingness to abandon an

ongoing strike with respect to all employers who will sign such an

interim agreement. See, e.g., Callier’s Custom Kitchens, supra, 243

N.L.R.B. No. 148, 102 L.R.R.M. at 1009; Seattle Auto Glass, 246

N.L.R.B. No. 21, 102 L.R.R.M. 1376, 1877 (1979), petition for

review pending, No. 79-7603 (9th Cir., argued Nov. 5, 1980).

when some members refuse to join in a lockout in re-

sponse to a selective strike.**

Finally, contrary to the Third Circuit’s position in

Beck, it is not invariably true that the individual agree-

ment gives the union a forceful weapon against the

employers who continue to bargain within the unit (522

F.2d at 483).*° In any event, under a system of collec-

tive bargaining where the substantive terms of the em-

ployment relationship are resolved in accordance with

the relative economic strength of the participants, NLRB

v. Insurance Agents’ Union, supra, 361 U.S. at 488-

490, 495, both sides, absent proof of unlawful motivation,

have great leeway in exerting concurrent economic pres-

sures on each other. The “Board’s statutory mandate is

to balance, not economic weapons, but ‘conflicting legiti-

48 As the court below added (Pet. App. 33 n.18), just as these

employers who refuse to join a lockout and thereby remain in

operation “could prevent any whipsaw by engaging in the lockout,”

employers who sign interim agreements could avoid a whipsaw

“by refusing to negotiate such agreements.” Petitioner’s assump-

tion that the interim agreement is a weapon solely within the con-

trol of the union is therefore incorrect (Br. 26-27; cf. Graphic

Arts Br. 15).

4° The potency of the interim agreement, like that of any other

economic weapon, will vary with the circumstances. Doubtless a

union will often hope that the uneven economic pressure on the

association that can result from such agreements will lead to a

quick capitulation to its demands, and, when the association is

divided and unwilling to lock out or endure a strike, this may be the

result. On the other hand, when the employer association is

strongly united, the signing of an interim agreement may have

no impact whatsoever on the association’s determination to resist

the union’s demands (see P.H.C. Mechanical Contractors, supra,

191 N.L.R.B. at 592-594), and the eventual contract settlement may

be on terms more favorable to the employers than the interim

agreements, requiring the union to give up its temporary gains

(see Associated Shower Door Co., 205 N.L.R.B. 677, 679-680

(1978), enforced on other grounds, 512 F.2d 230 (9th Cir.),

cert. denied, 423 U.S. 893 (1975) ).

mate interests’” (Pet. App. 50).%° The Board has rea-

sonably balanced those interests in distinguishing be-

tween separate interim agreements and separate final

agreements. As the Fifth Circuit concluded, after re-

considering its Hi-Way Billboards decision (NLRB v.

Marine Machine Works, Inc., supra, 635 F.2d at 525-

526 (footnote omitted) ) :

[T]he Board has wisely weighed the competing pol-

icy concerns. The Board’s rules balance an indi-

vidual party’s legitimate interest in striking its own

separate bargain against the parties’ and the pub-

lie’s legitimate interest in achieving the benefits

afforded by continued multiemployer bargaining, in-

cluding avoiding the industrial strife likely to result

from frustration of the bargaining process. In

reaching this balance, the Board is treating both

unions and employers equally and fairly. The Board

permits each to use all available economic weapons

in aid of reaching an overall settlement. On the

other hand, the Board prohibits each from taking

action that is destructive of the multiemployer unit:

unions may not seek to negotiate separate perma-

nent agreements with employers, and employers may

not withdraw from the unit and seek separate per-

manent negotiations with the union. This result is

well within the Board’s broad discretion to resolve

the inevitable questions arising in the multiemployer

bargaining context.

In sum, the Board’s conclusion that an employer may

not unilaterally withdraw from a multiemployer unit

solely because of an impasse in negotiations with the

bargaining representative of the unit employees is a

reasoned application of the policies of the Act (see Beth

5% For these reasons, the Board (Pet. App. 50-51), in assessing

the propriety of interim agreements, correctly dissociated itself

from the weapon-counting approach of the Beck court (“[t)he

union * * * should not have been given two weapons for its eco-

nomic arsenal (i.e., the selective strike and individual negotiations)

while the employers are given only one (viz., the lockout),” 522

F.2d at 483).

Israel Hospital v. NLRB, 487 U.S. 4838, 499 (1978) ;

Ford Motor Co. v. NLRB, 441 U.S. 488, 497 (1979) )

in an area that Congress “intended to leave to the

Board’s specialized judgment” (Buffalo Linen, supra, 353

U.S. at 96), and therefore is entitled to acceptance.™

The court below thus properly sustained the Board’s

finding that petitioner violated Section 8(a) (5) and (1)

of the Act, 29 U.S.C. 158(a) (5) and (1), by refusing

to execute the collective bargaining agreement reached

between the U:\'on and the Association.

CONCLUSION

For the foregoing reasons, the judgment of the court

below enforcing the Board’s order should be affirmed.

Respectfully submitted.

LAWRENCE G. WALLACE

Acting Solicitor General

WILLIAM A. LUBBERS HARRIET S. SHAPIRO

General Counsel Assistant to the Solicitor General

JOHN E. HIGGINS, JR.

Deputy General Counsel

RoBERT E. ALLEN

Acting Associate General Counsel

NORTON J. COME

Deputy Associate General Counsel

LINDA SHER

Assistant General Counsel

JOHN H. FERGUSON

Attorney

National Labor Pelations Board

JULY 1981

51 The need for expert judgment in this area is emphasized by

the fact that both petitioner and the unions claim that the adoption

of the particular position they espouse is necessary to preserve

the viability of multiemployer bargaining. Compare Pet. Br. 9, 15,

26 with Teamsters Br. 6-7, 10-12 and United Mine Workers Br.

11-13.

APPENDIX

The relevant provisions of the National Labor Rela-

tions Act, 29 U.S.C. 151 et seq., are as follows:

SEc. 2. When used in this Act—

(1) The term “person” includes one or more indi-

viduals, labor organizations, partnerships, associa-

tions, corporations, legal representatives, trustees,

trustees in bankruptcy, or receivers.

(2) The term “employer” includes any person

acting as an agent of an employer, directly or in-

directly, but shall not include the United States or

any wholly owned Government corporation, or any

Federal Reserve Bank, or any State or political sub-

division thereof, or any person subject to the Rail-

way Labor Act, as amended from time to time, or

any labor organization (other than when acting as

an employer), or anyone acting in the capacity of

officer or agent of such labor organization.

aa * * . 7

Sec. 8. (a) It shall be an unfair labor practice

for an employer—

(1) to interfere with, restrain, or coerce em-

ployees in the exercise of the rights guaranteed

in section 7;

* * * _ *

(5) to refuse to bargain collectively with the

representatives of his employees, subject to the

provisions of section 9(a).

* * _ * *

(b) It shall be an unfair labor practice for a

labor organization or its agents—

(1) to restrain or coerce * * * (B) an em-

ployer in the selection of his representatives for

the purposes of collective bargaining or the ad-

justment of grievances;

* * * * *

(3) to refuse to bargain collectively with an

employer, provided it is the representative of

his employees subject to the provisions of sec-

tion 9(a) ;

_ * * * *

(4) (i) to engage in, or to induce or encour-

age any individual employed by any person en-

gaged in commerce or in an industry affecting

commerce to engage in, a strike or a refusal

in the course of his employment to use, manu-

facture, process, transport, or otherwise handle

or work on any goods, articles, materials, or

commodities or to perform any services; or (ii)

to threaten, coerce, or restrain any person en-

gaged in commerce or in an industry affecting

commerce, where in either case an object thereof

is:

(A) forcing or requiring any employer

or selfemployed person to join any labor

or employer organization * * *

(d) For the purposes of this section, to bargain

collectively is the performance of the mutual obliga-

tion of the employer and the representative of the

employees to meet at reasonable times and confer in

good faith with respect to wages, hours, and other

terms and conditions of employment, or the negotia-

tion of an agreement, or any question arising there-

under, and the execution of a written contract in-

corporating any agreement reached if requested by

either party, but such obligation does not compel

either party to agree to a proposal or require the

making of a concession: * * *

Sec. 9. (a) Representatives designated or select-

ed for the purposes of collective bargaining by the

majority of the employees in a unit appropriate for

such purposes, shall be the exclusive representatives

of all the employees in such unit for the purposes

of collective bargaining in respect to rates of pay,

wages, hours of employment, or other conditions of

employment: * * *

(b) The Board shall decide in each case whether,

in order to assure to employees the fullest freedom

in exercising the rights guaranteed by this Act, the

unit appropriate for the purposes of collective bar-

gaining shall be the employer unit, craft unit, plant

unit, or subdivision thereof: * * *

* * * * *

Sec. 10. (c) * * * If upon the preponderance of

the testimony taken the Board shall be of the opin-

ion that any person named in the complaint has

engaged in or is engaging in any such unfair labor

practice, then the Board shall state its findings of

fact and shall issue and cause to be served on such

person an order requiring such person to cease and

desist from such unfair labor practice, and to take

such affirmative action including reinstatement of

employees with or without back pay, as will effectu-

ate the policies of this Act: * * *

WK ov. 8, covennment printing orrica; 1961 351306 554

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.