Fremont Newspapers, Inc. v. NLRB

• Decision Date: 22 December 1970
• Docket Number: No. 20016.,20016.
• Citation: 436 F.2d 665
• Parties: FREMONT NEWSPAPERS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

436 F.2d 665 (1970)

FREMONT NEWSPAPERS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 20016.

United States Court of Appeals, Eighth Circuit.

December 22, 1970.

William G. Line, Fremont, Neb., for petitioner.

Janet S. Morris, Atty., N.L.R.B., Washington, D. C., for respondent.

Before GIBSON and LAY, Circuit Judges, and HUNTER, District Judge.

ELMO B. HUNTER, District Judge.

On October 28, 1969, the National Labor Relations Board entered its decision and order finding that Fremont Newspapers, Inc., had violated Section 8(a) (1) and (5) of the National Labor Relations Act by engaging in "independent unfair labor practices aimed at causing disaffection" among its employees with regard to union membership and by refusing to bargain with the Omaha Typographical Union No. 190, AFL-CIO, and Stereotypers and Electrotypers Local No. 24, AFL-CIO. That decision and order is reported at 179 NLRB No. 63. Fremont Newspapers, Inc., has petitioned this court to review certain portions of the Board's decision and order. The Board has cross-petitioned for enforcement of its order. Jurisdiction is founded upon Section 10(e) and (f) of the Act.

Background

Fremont Newspapers, Inc. is a Nebraska corporation with its principal place of business in Fremont, Nebraska. It is engaged in the publication of a daily newspaper in that area and exceeds $200,000 in annual gross volume of business. On August 7, 1967, following an election in which Fremont's employees voted 16 to 1 in favor of Union representation, the Omaha Typographical Union No. 190, AFL-CIO, and the Stereotypers and Electrotypers Local No. 24, AFL-CIO, were jointly certified as the exclusive collective bargaining representatives (the Union) of the Company's mechanical employees. From October, 1967, through July 1968, the Company and the Union conducted approximately thirty bargaining sessions concerning a collective agreement between them. However, no such agreement was reached, and during the last bargaining session in July of 1968, the Company and the Union agreed to meet again on August 27, 1968 for further negotiations.

Prior to the scheduled bargaining session of August 27, 1968, Thomas Leckenby, a composing room employee of the Company and then "chapel chairman" or shop steward of the Union, had become disenchanted with the Union and spoke to several other employees about leaving the Union to form their own independent employee union to bargain with the Company. On August 20, 1968, three days after his preliminary conversations with the other employees, Leckenby gathered the Union members for a meeting in the conference room of the Fremont plant.

During the August 20th meeting, Leckenby suggested to the employees that they should file a decertification petition and "form our own union." Although the details of the meeting are not entirely clear, it is apparent that Leckenby's suggestions were received by the employees with mixed feelings. Some disagreement arose among the participants at the meeting which resulted in Leckenby's resignation as "chapel chairman" and the election of Duane Nielson, an employee who supported the Union, in Leckenby's place. Immediately after the meeting and his resignation as shop steward, Leckenby continued to speak to employees about decertification of the Union and he mentioned that he would prepare a decertification petition for signature by employees for submission to the regional office of the National Labor Relations Board. The next day, August 21, 1968, Leckenby sent a letter (later termed an "informal decertification petition"), signed by nine out of seventeen members of the bargaining unit, to the regional director of the National Labor Relations Board. That letter, or informal decertification petition, stated that the employees who had signed the document no longer desired representation by the Union and that they therefore desired a decertification of the Union. On behalf of himself and certain other employees, Leckenby sent telegrams on the same day to the regional director of the National Labor Relations Board and to the Union, stating the desire of the employees to leave the Union.

Shortly after the mailing of the letter and the transmission of the telegrams, Leckenby was called into the publisher's office by mechanical superintendent Arlen R. Sollenberger. Leckenby then showed Richard Schuster, president and publisher of Fremont, an unsigned copy of the informal decertification petition. Upon Schuster's suggestion that the document be endorsed, Leckenby made the following notation:

"Presented to Pub. Schuster August 21, 1968, 4:00 P.M. This is to certify that the original of this letter has been sent to the National Labor Relations Board in Kansas City, signed by a majority of the Bargaining Unit members."

The document was then shown to Schuster for a second time.

After Schuster had been shown the informal decertification petition, he sent a telegram to the Union stating that the Company had been informed by a majority of the members of the bargaining unit that decertification of the Union had been requested by them and that, under the circumstances, further meetings between Company representatives and Union representatives should be suspended until the situation had been clarified. That telegraphic communication was immediately followed on the same date with another telegram from Schuster which stated the Company's willingness to meet with Union representatives.

On August 27, 1968, representatives of the Company and of the Union attended the scheduled meeting. However, at that meeting, Company representatives presented to the Union a letter which declared that the Company would continue to meet with Union representatives, but that it would not enter into a final and binding agreement while decertification proceedings were pending. Both parties then agreed that further meetings between them would be futile. Since that date there have been no negotiations between the Company and the Union regarding a final agreement, nor has either party subsequently requested such negotiations.

On August 27, 1968, the day of the last bargaining session between the Company and the Union, a formal decertification petition signed by Thomas Leckenby was filed at the regional office of the National Labor Relations Board in Kansas City, Missouri. The petition was later dismissed in light of the pending unfair labor practice charge proceedings brought by the Union which are now before this Court on review. The dismissal of the petition was affirmed by the Board on November 21, 1968.

The Unfair Labor Practice Charges

Two days after the meeting between Union and Company representatives, the Union filed an unfair labor practice charge against the Company, alleging violations of Section 8(a) (1), (2) and (5) of the Act. Later, on October 8, 1968, an amended charge was filed, abandoning the allegation of a Section 8(a) (2) violation and charging the Company with violations of Section 8(a) (1) and (5). In that charge, the Union alleged the following grounds, among others:

"On or about August 15, 1968 officers, agents and representatives of the employer conducted a meeting on the company premises and informed employees in the bargaining unit, without representatives of the Union being present, that if they didn\'t have a union representative then the employer would grant certain wage increases higher and better than those offered to date to representatives of the Union; that the employer, by its officers, agents and representatives, has offered to employees and not to the certified bargaining agent additional benefits and wages for the purpose of discouraging representation by and membership in the Union by employees within the bargaining unit."

* * * * * *

"That the employer, by the above acts and by other acts, has failed and refused to bargain collectively in good faith with the Union as certified bargaining agent for employees within the bargaining unit and has deliberately engaged in stalling tactics in negotiations for the purpose of discouraging membership in the Union of employees in the bargaining unit."

A complaint was thereafter issued by the regional director of the National Labor Relations Board, charging that the Company, through a supervisor, had impliedly promised members of the bargaining unit increased wages and additional economic benefits if they would repudiate the Union; that the Company, through its supervisor, had encouraged the employees to form an independent Union; and that the Company refused to bargain collectively in good faith with the Union. In response to the complaint, the Company denied that it had encouraged employees to repudiate the Union and alleged that it had discontinued bargaining negotiations with the Union in a good faith belief that the Union had lost its majority membership following the expiration of the certification year.

Facts of the Charge

As reliably found by the trial examiner,¹ the facts underlying the unfair labor charge are as follows: On August 15, 1968, approximately one week before the filing of the informal decertification petition, Arlen Sollenberger, the Company's mechanical superintendent, whose supervisory status is not disputed,² conversed with one Loren Sass, an employee of the Company and a member of the Union. During the course of this conversation, Sollenberger told Sass that the Company president had stated that the Union had taken a year to negotiate without results and "now the Company president would like a year to show what he could do." Sollenberger also informed Sass that if the employees "backed out of the Union" anyone "who was a competent journeyman * * * would get three thirty an hour."³ Sass was further informed that the Company "would be easier to deal with and go (sic) further if it was dealing with the employees."

Eight days later, on August 23, 1968, Sollenberger spoke to another member of the bargaining unit, Duane...