NLRB v. Advanced Business Forms Corporation

• Decision Date: 03 January 1973
• Docket Number: No. 145,Docket 72-1332.,145
• Citation: 474 F.2d 457
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ADVANCED BUSINESS FORMS CORPORATION, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

474 F.2d 457 (1973)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ADVANCED BUSINESS FORMS CORPORATION, Respondent.

No. 145, Docket 72-1332.

United States Court of Appeals, Second Circuit.

Argued November 9, 1972.

Decided January 3, 1973.

COPYRIGHT MATERIAL OMITTED

Bertram T. Kupsinel, Atty., NLRB, Washington, D. C. (Peter G. Nash, Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Robert A. Giannasi and Alan D. Cirker, Attys., NLRB, Washington, D. C., on the brief), for petitioner.

Alfred T. DeMaria, New York City (Kirlin, Campbell & Keating, New York City, on the brief), for respondent.

Before FRIENDLY, Chief Judge, MANSFIELD and TIMBERS, Circuit Judges.

TIMBERS, Circuit Judge:

This petition to enforce an order of the National Labor Relations Board, 194 N.L.R.B. No. 52 (1971), is another instance where the Board's order in large measure is not challenged. Of the numerous provisions of the trial examiner's recommended order of August 17, 1971, adopted by the Board on November 24, 1971, less than 20% are challenged by the Company in the proceedings on the instant petition by the Board to enforce its order.¹

The petition before us presents only two essential issues by virtue of the Company's² limited challenge of the Board's order:

(1) Whether there was substantial evidence to support the Board\'s determination that the Company violated Section 8(a) (3) of the Act³ in discharging employee Barbara Fasano because of her union activities.

(2) Whether there was substantial evidence to support the Board\'s determination that the Company violated Section 8(a) (5) of the Act in failing to bargain collectively in good faith with the Union.⁴

For the reasons stated below, we hold that there was substantial evidence to support the Board's determination on issue (1), but not on issue (2). We enforce the Board's order in all respects, except that we deny enforcement as to those provisions of the order dependent upon the Board's finding of a violation of Section 8(a) (5).⁵

I.

The essential facts as found by the trial examiner may be summarized as follows.

The Company, a New York corporation, operates a small printing plant at Ronkonkoma, New York. It is engaged in the printing, sale and distribution of business forms and related products. Prior to early February 1971, its president was James Orrach. It is a wholly owned subsidiary of Retrieval Control Systems, the president of which is John Montague.

One department of the Company — the pressroom and preparatory department (referred to together as the prep department) — is at the center of this controversy. This department does the art work and photography for the Company, and makes the plates that are run on the presses. The size of the department fluctuates between 11 and 14 employees.

Prior to September 1970, the prep department did not have union representation. Two department employees, who apparently were angry with management, arranged for a meeting on September 12 with Julius Seide, a business representative of the Union. Nine prep department employees attended the meeting. Some of them signed union bargaining authorization cards.

On September 16, Seide filed with the Board's regional office a petition for certification as the bargaining representative of the employees of the Company's prep department. A copy of the petition was served on the Company on September 18. That same day, four pressmen — Walter Yarosz, Eugene Sannuto, Joseph Kirklewski, and Carl Piscani⁶ — were laid off.⁷ All four had attended the September 12 meeting and had signed union authorization cards. Arthur Kunzweiler, supervisor of the prep department, participated in the decision to lay off the men. At the hearing he admitted being aware at the time of the discharge that the four men were union sympathizers.

On October 13, Seide and President Orrach entered into an Agreement for Consent Election which provided that the Board's regional director would conduct an election on November 4 among the prep department employees. In the afternoon of October 13, Orrach called a meeting of all prep department employees. At the meeting, he stated that the Company did not really want the Union, "that he thought they had a pretty good company, they had pretty good benefits, and if anybody had any gripes they should have come to him and discussed them." Similar statements were made at another meeting called by Orrach on October 30, five days before the election.

As the election approached, the Company's tactics in opposition to the Union became more questionable. On November 2, Orrach and Kunzweiler threatened employee George Najdek as he was operating one of the presses. While checking the operation of Najdek's press, which apparently was not functioning properly, Orrach told Najdek that "if the Union gets in, I will have to lay you off." Orrach also reminded Najdek to attend a Union meeting scheduled for that evening. Seide conducted the scheduled Union meeting that evening at a local tavern. While it was in progress, Orrach entered and sat at the bar. After a short while, Seide approached Orrach and spoke to him briefly. Shortly thereafter Orrach left the premises. The next day, Orrach talked with Kunzweiler on the plant floor in the prep department within the hearing of Najdek and another employee, Barbara Fasano. In the course of the conversation, Orrach stated that "anyone seen at the meeting last night won't be here for long." After making the statement, Orrach turned and grinned in Fasano's direction, indicating that the remark applied to her.

The election was held as scheduled on November 4. It resulted in 7 votes for the Union, 3 against, and 1 challenged ballot.⁸ That evening after work several employees celebrated the Union victory at a local bar. Orrach entered the bar and insulted the celebrants.⁹ He then approached Fasano and asked her why she had voted for the Union. When Fasano replied that she believed that it was right, Orrach argued with her, asking, "What did you think you would benefit out of it?" and, "If you want more pay, why didn't you ask me? How much do you want? Fifty dollars?" At a later date, November 16, Orrach remarked to two other employees that he would "get rid of the people one by one, all the people that try to hurt him and all the people that voted for the Union."

On November 6, the Company instituted several changes which adversely affected the working conditions of the employees.¹⁰ These changes were made without notification to or bargaining with the Union. On the same day, Najdek was laid off. On November 11, eight employees, including Fasano, called in sick to protest Najdek's discharge. When Fasano returned to work the next day, Kunzweiler made sarcastic comments about her absence. On November 20, Fasano was discharged. The circumstances surrounding her discharge will be discussed more fully below.

On November 19, the Company and the Union began negotiations for a collective bargaining agreement. At the outset, Company negotiators Orrach and Ralph Bartell¹¹ informed Union negotiator Seide that any agreements reached would have to be ratified by John Montague, president of the parent company. A form of association contract used by Printing Industries of Metropolitan New York, Inc. served as the basic framework from which the parties negotiated. At bargaining sessions held on December 2, 22 and 28, and January 28, 1971, the parties discussed and reached tentative agreement on most of the economic terms such as wage increases. At the December 28 meeting, the Company requested a maintenance-of-membership clause in lieu of the union security clause contained in the standard association contract.¹² This became the main point in dispute between the parties; the Union insisted on the union security clause and the Company was firmly opposed to it.

Prior to the next bargaining session on March 12, 1971, Orrach was relieved of his duties as president of the Company. Montague replaced him in the negotiations. Montague apparently had been kept informed of the progress of the negotiations. The parties met again on April 8 and 16. At the April 16 meeting, Seide proposed a compromise union security plan. Montague wanted to reject the compromise immediately. At Bartell's suggestion, however, they requested time to consider the compromise plan.

On April 21, Bartell called Seide and told him, "We have a contract. We got to get together and work out all of the details." Seide and Bartell met on April 23 and drew up a handwritten document setting forth all the tentative agreements theretofore reached, as well as the compromise union security provision as proposed by the Union. They arranged to meet with Montague on April 27 to review and to sign the contract. When Seide arrived at Bartell's office on April 27 for the scheduled meeting, Bartell informed him that he had just received a telephone call from Montague who had stated that he would not sign "any contract".¹³

On April 30, Seide informed several employees that Montague had refused to sign a contract. Seide concluded that they had no alternative but to strike. On May 3, an undisclosed number of employees did go on strike. On May 14, while the strike was in progress, the parties, at the request of the Suffolk County Labor Commissioner, met at the Commissioner's office for further negotiations. After some persuading by the Commissioner, Seide renewed the compromise union security proposal in order to get a signed contract. Montague consulted with his employees and informed the Union that he would not agree to the compromise proposal. For aught that appears in the record before us, no collective bargaining agreement was ever signed.

An evidentiary hearing was held before a trial examiner at Brooklyn, New York, on May 17 and 18, 1971. The hearing resulted from various charges filed by the Union and certain employees against the Company during the period from November 23, 1970 to February 22, 1971,...