N.L.R.B. v. Pearl Bookbinding Co., Inc.
| Decision Date | 13 June 1975 |
| Docket Number | No. 75-1002,75-1002 |
| Parties | 89 L.R.R.M. (BNA) 2614, 77 Lab.Cas. P 10,927 NATIONAL LABOR RELATIONS BOARD, Petitioner. v. PEARL BOOKBINDING COMPANY, INC., Respondent. |
| Court | U.S. Court of Appeals — First Circuit |
Corina Lothar Metcalf, Atty., Washington, D. C., with whom Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Assoc. Gen. Counsel, and Elliott Moore, Deputy Associate Gen. Counsel, Washington, D. C., were on brief for petitioner.
Julius Kirle, Boston, Mass., for respondent.
The National Labor Relations Board, pursuant to section 10(e) of the National Labor Relations Act, 29 U.S.C. § 160(e), petitions for enforcement of two Board decisions and orders issued against Pearl Bookbinding Company for violations of sections 8(a)(5) and (1) of the Act. The Company urges that enforcement be denied on the merits of the Board's decisions and on the ground that the company has complied with the Board orders.
The company is engaged in the binding of pamphlets for the printing trade at its plant in South Boston, Massachusetts. Following a Board-conducted election on January 21, 1972, the Board on January 31 certified Local 16 of the International Brotherhood of Bookbinders as the bargaining agent for the company's maintenance and production employees. The subsequent bargaining sessions resulted in an impasse, and on April 25, 1972, the union went on strike. Negotiations during the next month failed. The strike continued for several months without further bargaining sessions, and during that time there was an active picket line. Sporadic incidents of violence occurred. A company foreman, accompanied by the company lawyer, filed criminal charges against a union functionary (not an employee at the company) for pointing a gun at several persons on the company's shipping dock from his car in an outside parking lot. Also the company filed an unfair labor practice charge against the union for strike misconduct under section 8(b)(1)(A) of the Act. There were a number of contacts between the company and union concerning these matters, as well as the question of reinstating certain employees still on strike. These matters were largely resolved by the end of August, 1972. The criminal charges were dropped on August 22, the unfair labor practice charge was dropped on August 25, the union called off the strike on August 25, and the question of reinstatement remained unresolved.
In a letter dated September 10, 1972, but not mailed until October 10, 1972, the union requested that the company resume negotiations. The company received the letter and made no response. The union filed an unfair labor practice charge against the company for refusing to bargain. At the hearing the company took the position that although an employer normally must bargain with a Board-certified union for a year in the absence of unusual circumstances, Brooks v. NLRB, 348 U.S. 96, 98, 75 S.Ct. 176, 99 L.Ed. 125 (1954), two circumstances here relieved it of that duty: first, the Bookbinders had merged with the Lithographers and Photoengravers International Union with the result that Local 16 became Graphic Arts Local 16B; and, second, during the strike the union had abandoned and disclaimed its status as bargaining representative for the company employees. Rejecting both defenses, the administrative law judge found the company to be in violation of sections 8(a)(5) and (1) and recommended that the Board order the company to bargain. The Board adopted the administrative judge's findings and conclusions and issued the recommended order on October 31, 1973. 1 206 N.L.R.B. No. 192.
On December 5, 1973, the union received notice from the Board regional office of the company's compliance with the order. On December 7, 1973, union president Carlsen phoned and then wrote a request that the company provide the names, addresses, rates of pay, and classification of all employees (numbering about 32) prior to the first negotiating session. The company took no position on the union's request then, nor at the first bargaining session on December 21, 1973. Carlsen inquired as to which employees on the pre-strike list (the union had this list) were still employees, and company lawyer Kirle thereafter gave the names of 16 on the pre-strike list who were no longer employees. On December 30, Kirle phoned Carlsen and stated the company would not provide the current list of employees because the company did not wish them harassed. Carlsen responded that he would keep the information in confidence. Kirle later provided the classifications and rates of pay of each employee, but not the names and addresses. The company did not offer to assist the union in communicating with bargaining unit employees, such as by posting notices, permitting handbilling on its property, or giving the names and addresses to an independent mailing service. The union filed an unfair labor practice charge.
The administrative law judge found that the company did not have any good-faith fear of violence or harassment and did not offer a feasible alternative to names and addresses, that the information was relevant and necessary to the union in performing its duties as bargaining agent, and that alternative means of communicating with the employees were not available. The Board, affirming the administrative judge's findings, held the company to be in violation of sections 8(a)(5) and (1) and ordered the company to provide the information presently and on a continuing basis and to bargain with the union. 2 213 N.L.R.B. No. 87 (Sept. 25, 1974).
Since the issuance of the order, the company has furnished the list, and negotiations have resumed. The Board has sought enforcement of this order and the earlier one, on the ground that without a judicial decree and the threat of contempt, the company might repeat its past misconduct. The company contests this argument, as well as the merits. Thus, we are called upon to review the Board's findings of unfair labor practices in the two proceedings, and then to determine whether under the circumstances court enforcement of the Board's orders is appropriate.
With respect to the first proceeding, the company contends that it had no duty to bargain for two reasons. First, it argues that after the merger the local lost its identity as the representative of the employees. The company points out that at the time of the merger referendum vote in February, 1972, employees at the company were not yet members of the local and thus did not have an opportunity to vote on the merger. This fact, in the company's view, is significant because the local after merger was subordinate to a new international with a new president and constitution.
We believe the company must fail on this issue. Although the employees did not actually vote on the change of affiliation to a merged international, they were informed in English and Spanish of the possibility of the merger and its consequences prior to the time of the representation vote. On the basis of undisputed evidence, the Board found that 21 of the 27 unit employees signed authorization cards reflecting sponsorship by the Lithographers (the other union in the merger) in case the merger antedated certification of the Bookbinders Local 16. Cf. NLRB v. Franks Bros. Co.,137 F.2d 989, 992 (1st Cir. 1943), aff'd, 321 U.S. 702, 64 S.Ct. 817,88 L.Ed. 435 (1944). But see Dickey v. NLRB, 217 F.2d 652, 655 (6th Cir. 1954). More significantly, the company has failed to show that the successor union is substantially different other than in name and affiliation from the prior union. See NLRB v. Commercial Letter, Inc., 496 F.2d 35 (8th Cir. 1974); Retail Clerks Int'l Assn. v. NLRB, 125 U.S.App.D.C. 389, 373 F.2d 655 (1967); Carpenteria Lemon Assn. v. NLRB, 240 F.2d 554, 557 (9th Cir. 1956); Franks Bros., supra. To the contrary, the Board found, and its finding is supported by substantial evidence from the record as a whole, 29 U.S.C. § 160(e), that Local 16 underwent no change. It did not merge with another local; its structure, administration, officers, assets, membership, autonomy, by-laws, size, and territorial jurisdiction remained the same; and the local continued to negotiate contracts with employers on behalf of employees it represented, and to administer collective-bargaining agreements to which it was a party. In similar circumstances, where the new local was found to be basically a continuation of the old bargaining representative, but involved a merger of two locals as well as of two internationals, one court recently has held that there is no requirement that prospective members be allowed to vote on the changes, at least in the absence of a showing that the votes of those employees could have changed the result of the election. 3 Commercial Letter, supra, 496 F.2d at 40-41.
We conclude that the merger of the two internationals was not attended by any...
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