# Respondents Brief — Charles D. Bonanno Linen Service, Inc. v. NLRB > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1914%3A07 ## Record - **Collection:** Supreme Court brief - **Document type:** Respondents Brief - **Published:** January 1, 1982 - **Citation:** 454 U.S. 404 ## Text 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 Ge CIE scecccrctncerrnnnetinsyeemintecnsieritnninnininnisintcnnion Statement siehialsileiiiachcaiainasis TRAST CE DUGIIIIE scccecccctaccsccccinscntmevininiscscnnnasiansenenees 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 ...................... A. 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 14 20 85 la 12 IV 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, 33 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 VI 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) 2 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 3 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.) 4 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). 5 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 6 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. II 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 7 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. Il 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 8 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). 9 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 10 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 11 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). 12 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, 13 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). 14 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). 15 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). 16 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) ) ; 17 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). 18 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, 19 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. 20 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). 21 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). 22 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). 24 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 25 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). 26 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, 27 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). 28 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). 29 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. 30 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. 31 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 32 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). 33 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) ). 34 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). 35 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. la 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 2a 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: * * * 3a 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1914%3A07. Public record. Not legal advice.