Wheeler-Van Label Company v. NLRB

• Decision Date: 19 March 1969
• Docket Number: Dockets 32707,32855.,No. 344,345,344
• Citation: 408 F.2d 613
• Parties: WHEELER-VAN LABEL COMPANY, Subsidiary of Stecher-Traung-Schmidt Corporation, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

408 F.2d 613 (1969)

WHEELER-VAN LABEL COMPANY, Subsidiary of Stecher-Traung-Schmidt Corporation, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

Nos. 344, 345, Dockets 32707, 32855.

United States Court of Appeals Second Circuit.

Argued February 12, 1969.

Decided March 19, 1969.

COPYRIGHT MATERIAL OMITTED

A. Terry Van Houten, Rochester, N. Y. (Harris, Beach, Wilcox, Dale & Linowitz, Rochester, N. Y., on the brief), for petitioner.

Herman M. Levy, Atty., National Labor Relations Board (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, on the brief), for respondent.

Before ANDERSON and FEINBERG, Circuit Judges, and MANSFIELD, District Judge.^*

FEINBERG, Circuit Judge:

From an order of the National Labor Relations Board, 172 N.L.R.B. No. 186 (1968), finding that Wheeler-Van Label Company, subsidiary of Stecher-Traung-Schmidt Corporation ("the Company"), had refused to bargain with a union representing its composing area employees, both parties seek judicial review.¹ For reasons set forth below, we deny the Company's petition and enforce the Board's order.

The Company is in the commercial printing business in Grand Rapids, Michigan. In March 1967, the Board conducted a representation election, with three unions on the ballot, in two units of the Company's employees. Group (1) was composed of all journeymen pressmen, apprentice pressmen, assistants, and helpers in the pressroom and rotogravure department, but excluded composing area employees. In group (2) were the remaining production and maintenance employees with various exclusions not now relevant. The composing area employees voted in group (2). As a result of the election the Board certified Grand Rapids Printing Pressmen and Assistants' Union, Local No. 13, International Printing Pressmen and Assistants' Union of North America, AFL-CIO, as the bargaining representative of the employees in voting group (1);² the Board also certified that no labor organization had been selected as bargaining representative of the employees in voting group (2).

A few months later, the Company's five composing area employees signed authorization cards designating as their bargaining representative a fourth union, Grand Rapids Typographical Union, Local 39, International Typographical Union, AFL-CIO ("the Union"). Shortly thereafter, four of the composing area employees let it be known to various Company supervisors that they had signed authorization cards. By letter dated August 4, 1967, the Union advised the Company that it represented a majority of composing area employees and requested the Company to bargain with it. In reply, the Company declined to negotiate for the stated reason that:

The best and most reliable method of knowing how a majority of the men in the Composing Room feel about Union representation is a Board-Conducted secret ballot election.

This group of employees participated in such an election in March of 1967 and it is our understanding that a year from that date should go by before another is scheduled.

The Union renewed its demand for recognition and bargaining and offered to submit authorization cards to an impartial third party acceptable to both. The Company again refused to recognize or bargain with the Union. Early in September 1967, the Union filed an unfair labor practice charge against the Company. While this was pending, and in the same month, four of the five composing area employees tried to arrange a meeting with the Company president. Unsuccessful in this, they met with plant manager Bernard Kochanowski and told him that speaking for themselves and for the absent employee they wanted the Union to represent them; Kochanowski replied that he would inform the "proper authorities."

No meeting between the Company and the Union occurred, and in December 1967 the Regional Director issued a complaint against the Company charging it with having violated sections 8(a) (1) and (5) of the National Labor Relations Act, 29 U.S.C. §§ 158(a) (1), (5). In January 1968, a hearing was held, culminating in a trial examiner's decision in June 1968, adopted by the Board in August, which found that the Company had violated sections 8(a) (1) and (5) and ordered the Company to bargain with the Union. In seeking to set aside the Board's order, the Company argues in this court that the composing area employees did not comprise an appropriate bargaining unit and that the Board's finding of refusal to bargain was improper.

Turning to the unit question first, we are told that composing room work has traditionally consisted of setting of type either by hand or in "hot metal" and assembling the type in forms. However, the Company has virtually eliminated the type-setting phase of the work. Only one of the five employees in question does such work; for the most part, the Company uses pre-set plates obtained from outside sources. Thus, these employees are engaged mainly in assembling the plates onto a form or base for use in the printing operation. According to the hearing testimony: this work requires a distinct skill, which takes from "over a year" to five years to attain; the composing area employees work in a specific location as a separate composing department within the Company structure, are supervised by a separate foreman, and do not transfer to or from other departments;³ and the Union has approximately 2,000 collective bargaining agreements with other employers, the bulk of which cover solely composing room employees.

In light of these facts, the Company undertakes a sizeable burden in arguing that the unit found was not an appropriate one; there can be no dispute that the Board has considerable leeway in exercising its judgment under section 9(b) of the Act, 29 U.S.C. § 159(b), as to the appropriateness of a given unit. A unit finding by the Board "involves of necessity a large measure of informed discretion," Packard Motor Car Co. v. NLRB, 330 U.S. 485, 491, 67 S.Ct. 789, 793, 91 L.Ed. 1040 (1947), and, where it is supported by substantial evidence, will not be reversed "in the absence of an `arbitrary or capricious exercise of administrative discretion,'" Empire State Sugar Co. v. NLRB, 401 F.2d 559, 562 (2d Cir. 1968). The Company argues that the Board's decision was, in fact, arbitrary and capricious, principally because the cases the Board relied on all involved employees who set type or did equivalent work,⁴ a function not performed by four of the Company's five composing area employees. The Company claims that by ignoring this factor the Board arbitrarily disregarded the substance of its prior decisions. As further evidence of inconsistency the Company points to the March 1967 election, when the Board placed these five employees in the group (2) voting unit, which included other production and maintenance employees. Finally, the Company argues that its composing area employees should not be separated as a unit from the pressroom employees, with whom they are in close contact and have much in common.

We think that the Board's unit determination must be upheld. Whether these five employees perform all the work traditionally associated with composing rooms is not controlling. The key question is whether the composing area employees have a sufficient community of interest to be an appropriate unit. See United Aircraft Corp. v. NLRB, 333 F.2d 819, 822 (2d Cir. 1964), cert. denied, 380 U.S. 910, 85 S.Ct. 893, 13 L.Ed.2d 796 (1965). As to that, the evidence supporting the Board's affirmative finding is persuasive, and the cases it relied on do not suggest a contrary view. Indeed, the facts here seem at least as strong as those found sufficient in Empire State Sugar Co. v. NLRB, supra. The alleged inconsistency with the Board's determination for the March 1967 election is not imposing. The question before us is not whether the composing area unit is the only appropriate unit for these employees. The Board's duty is to choose an appropriate unit, and it may select among several appropriate ones. See, e. g., NLRB v. Western & Southern Life Ins. Co., 391 F.2d 119, 122 (3d Cir.), cert. denied, 393 U.S. 978, 89 S.Ct. 445, 21 L.Ed.2d 439 (1968); NLRB v. Local 19, Int'l Bhd of Longshoremen, 286 F.2d 661, 664 (7th Cir.), cert. denied, 368 U.S. 820, 82 S.Ct. 36, 7 L.Ed.2d 25 (1961). On the record before us, the Board's unit determination cannot in any sense accurately be called arbitrary or capricious.

The Company's second point is that the Board was not justified in finding that the Company refused to bargain. Under the present state of the law and on this record, the argument is not persuasive. At no time did the Company express any doubt — much less a good faith one — as to the Union's majority status. Its August 9, 1967 letter stated only its preference for an election and its subsequent letter ignored the Union's suggestion that an impartial third party check the authorization cards. Cf. Irving Air Chute Co. v. NLRB, 350 F.2d 176, 182 (2d Cir. 1965); Bryant Chucking Grinder Co. v. NLRB, 389 F.2d 565, 568 (2d Cir. 1967), cert. denied, 392 U.S. 908, 88 S.Ct. 2055, 20 L.Ed.2d 1366 (1968). In addition, there was abundant evidence that the Company had actual knowledge of the Union's majority status. Before the Union's first written demand for recognition, conversations between four of the five composing area employees and supervisors indicated that status; it was made crystal-clear, after the Union's demand, at the meeting of September 29 with Kochanowski. In support of its "good faith," the Company now appears to contend that it originally regarded the unit sought as inappropriate. The hearing examiner pointed out that the Company never objected to the unit until after the General Counsel served a complaint. We agree that this weakens the Company's claim as to its state of mind four months earlier. In any event, we have held that sincere belief that a claimed unit is inappropriate is...