NLRB v. Patent Trader, Inc., 432

• Citation: 415 F.2d 190
• Decision Date: 29 July 1969
• Docket Number: Docket 32743.,No. 432,432
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PATENT TRADER, INC., Respondent.
• Court: U.S. Court of Appeals — Second Circuit

415 F.2d 190 (1969)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PATENT TRADER, INC., Respondent.

No. 432, Docket 32743.

United States Court of Appeals Second Circuit.

Argued March 13, 1969.

Decided July 29, 1969.

COPYRIGHT MATERIAL OMITTED

Nancy M. Sherman, Washington, D. C. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Baruch A. Fellner, N.L.R.B., Washington, D. C., on the brief), for petitioner.

Hugh P. Husband, Jr., New York City, for respondent.

Before MOORE and FEINBERG, Circuit Judges and McLEAN,^* District Judge.

MOORE, Circuit Judge:

The National Labor Relations Board (the Board) has petitioned this court for enforcement of its Order issued against Patent Trader, Inc. (the Company), requiring the Company to cease and desist from unfair labor practices found to have occurred in Mount Kisco, New York, where the Company is engaged in commerce.¹ The trial examiner found that the Company violated § 8(a) (5) and (1) of the Act² by (1) refusing to bargain in good faith with the Westchester County Printing Pressmen and Assistants Union, Local 366, International Association of Printing Pressmen and Assistants Union of North America (the Union), (2) changing wages, working conditions or other terms of employment of its employees without notifying the Union and giving it an opportunity to bargain collectively concerning such proposed changes, and (3) inducing abandonment or withdrawal from the Union, undermining the Union's status as a bargaining representative, and conveying to the employees the futility of self-organization. Based upon these findings, the trial examiner recommended that the Board order the Company to bargain collectively with the Union, as well as cease and desist from continuing the unfair labor practices. The Board adopted the trial examiner's findings and recommendations in their entirety.

The Facts

The Company, a New York corporation with its office and place of business in Mount Kisco, New York, is engaged in the publishing, printing and distribution of a weekly ("The Advertiser") and semi-weekly ("Patent Trader") and other newspapers and in commercial printing. Of approximately 220 Company employees, only its 9 or 10 pressmen and reelmen are involved in this proceeding. In April, 1965 these pressmen and reelmen communicated with Louis Bramley, the vice-president of Local 366, and discussed with him the possibility of affiliating with that union, which served as the bargaining agent for printing pressmen of several establishments in Westchester County, New York. The Union obtained authorization cards from the pressmen and, on May 5, 1965, petitioned for an election. On July 12, prior to the election, the Company posted on its bulletin board a fact sheet explaining why it opposed unionization of the plant, and reviewing the benefits enjoyed by the pressmen. In a "memo to the pressroom" bearing the same date Company president Carll Tucker, in reciting what he believed to be the advantages and disadvantages of unionization, admitted that a union "could negotiate a higher pay scale" but warned that the Company had already lost a "large" customer after the latter had "learned there might be a union in our press room." Tucker warned that employees would have to be laid off if this business could not be replaced, and that the presence of a union meant the possibility of a strike and consequent damaging circumstances, such as permanent loss of customers. The "memo" also attacked the capacity of Local 366 to bargain, alleging that its officers were elderly and retired job pressmen who were unfamiliar with the needs of rotary pressmen such as those employed by the Company. Tucker also indicated that whereas he doubted that Local 366 "would intentionally put someone out of business just for the sake of securing higher wages," there was a "very good chance" that the International Typographical Union Local 6 of New York (ITU Local 6), led by the "arrogant and autocratic" Bertram Powers who was well-known for forcing newspapers out of business, would be "right behind them" and would organize the Company's composing room employees. Tucker concluded by saying "Quite frankly, I am tired of fighting unions," that he preferred fighting "our competitors" and that he would rather pass on savings of the cost of an election to the employees.

At about this time the Company's production manager, Richard Pollock, called an illiterate employee, Richard Lener, to his office and explained the mechanics of voting to Lener. While being so instructed, Lener was asked how he intended to vote and was reminded that he, Pollock, had given Lener a job at the plant notwithstanding his inability to read and write.

On July 20, 1965, the Union won the election by a vote of 8 to 2. About a half-hour later, Pollock told one Gaetanello, a pressman, "Here I gave you a raise * * * and then you go do this to me." And to Lener, Pollock said, "I took you in here because you didn't know how to read and write and gave you a job, a steady job, and you got to do this to me." Shortly thereafter, Lener's hours were reduced from 37½ to 24 hours per week (then later increased to 25 hours per week, to enable Lener to qualify for welfare and other benefits which the Company accorded to full-time employees).

The Union was certified as the collective bargaining representative for the employees on July 28. On August 3 the Union, through vice-president Louis Bramley, wrote Company president Tucker and requested a meeting to negotiate a collective bargaining agreement. On the same day Company vice-president and treasurer William Heron advised the Union by letter that he would negotiate for the Company, and agreed to observe the Union's earlier request "that there be no changes in working conditions, etc. of pressroom employees during bargaining." Thereafter, between August 10, 1965 and June 29, 1966 the parties held 11 meetings — all at the Company's premises in Mount Kisco. On July 27, 1966, the Union filed the instant unfair labor practice charge. Union attorney John Sheehan was the chief spokesman for the Union at these meetings while Company attorney Hugh Husband and treasurer Heron shared the negotiating task for the Company. Heron testified that prior to the first meeting he met with Tucker and Husband and adopted "the strategy that would be followed in the collective bargaining negotiations," namely, refusing to bargain on economic matters "until noneconomic matters had been resolved."

The first meeting was held on August 10, with discussion centering around the Union's standard contract. At the second meeting, held on September 16, the parties discussed welfare and pension plans and disagreed on several substantive provisions of the standard contract including exclusivity of foreman authority, scope of arbitration and seniority. When the Union asked for the Company's response to certain economic proposals Husband, the Company's spokesman, replied that he was not then prepared to formulate a Company position. The Union granted his request for a two-week recess to enable him to prepare Company proposals.

The third meeting was held on September 30, with the Company presenting detailed counter-proposals on the non-economic portions of the Union's standard contract. Upon the Union's complaint concerning the Company's omission of economic proposals, Husband replied, in Sheehan's words, that "he had been working so hard getting the other things together that he didn't have time to examine the Company's proposal on economic issues." At the fourth meeting, on October 14, discussion still centered around the Company's non-economic counter-proposals which, for the duration of the bargaining sessions, became the negotiating text. The Union agreed to 10 Company clauses, submitted counter-proposals on 10 others and rejected 5 Company proposals. Sheehan, viewing the Union as having made "substantial concessions," noted that the Company, at the next meeting, "should be in a position to give the Union a counter-proposal on all the open issues, including the economic issues." But at the next (fifth) meeting, negotiations proceeded "very slowly" and the Union repeated its complaint that the Company had not as yet commented on the economics of the contract. The sixth meeting was similarly unproductive. After three postponements, the seventh meeting was held on December 29. At this meeting, termed a "conference" by the trial examiner, the Union and the Company each made concessions but remained apart on other issues. The meeting became "rather intense" upon the Union's request that the Company, following lunch, state its position on the open Union draft proposals, including the economic clauses. Husband insisted that such a course was "useless" because "the whole point" of the Company's preparation of the counter-proposals was to bargain from those and that it would be "foolish to go back" to the Union's standard contract. Husband, although noting that the Company would not discuss economic matters until agreement was reached on all non-economic matters agreed to review the Union's draft proposals after the lunch recess. When the conference re-convened, Husband went through the Union draft agreement section by section, noting those sections already agreed upon, those which the Company rejected outright and those which — since they dealt with economic matters — would not be dealt with at that time "consonant with the Company's policy to settle other non-economic matters * * * before we tackle the economics." Sheehan reacted sharply to this position, asserting that the Company had promised to make economic proposals on "two occasions, including today," that the Company was not dealing fairly with the Union and that "the negotiations could not go on like this." Husband, however, reiterated his position, and an impasse was reached. Sheehan thereafter sought the assistance of...