Waterman, Moore, and Feinberg, Circuit Judges.
The National Labor Relations Board seeks enforcement of its order issued against Coletti Color Prints, Inc. (Company) on June 27, 1966, 159 NLRB No. 135. The Board found violations of § 8(a)(1) and § 8(a)(5) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1), (5) based upon the Company's discharge of an employee, inflammatory statements by Richard Coletti, and refusal by the Company to sign a contract with the union to the terms of which the Board found the Company had agreed. In addition to the usual orders to cease and desist and to post notices, the Board also ordered the Company to execute the contract if the union asked to have it executed. We think there is substantial evidence on the record as a whole to support the Board's conclusions and orders; therefore we grant enforcement.
On May 22, 1964, a majority of 9 lithographic employees, an appropriate unit, at the company's Baldwin, New York, plant designated Local 1, Amalgamated Lithographers of America, AFL-CIO (Union) as their collective bargaining representative. Thereafter, on May 26, the Union filed a representation petition with the Board. At subsequent conferences at the Board's regional offices concerning the petition the company was represented by Richard Coletti and at one of the conferences Coletti asked the union vice-president, one Glassman, to suggest a labor lawyer whom Coletti might retain. Glassman suggested Daniel Arvan, the counsel for an employer association with which the union had previously negotiated contracts. Coletti retained Arvan "to represent Coletti Color Prints, Inc., to negotiate a collective-bargaining agreement on behalf of that company with [the union]" on June 11, 1964. On the same day Arvan sent the union a stipulation, signed by Richard Coletti, recognizing the union as the employees' representative, and Glassman then withdrew the election petition.*fn1
Using as a starting point the union's standard contract, a contract with which both of them were familiar, Arvan and Glassman met to bargain formally on June 29 and August 7, 1964, for about 2 1/2 hours each time. Additionally, they bargained informally on many other occasions when they also were discussing other matters. They had little or no discussion about several of the relatively routine clauses of the standard contract (e.g., union recognition, union security without checkoff, no strike, wash-up time, bulletin board, apprentices, right to terminate, no transfer of equipment, foreign work, no change in area practices, international approval). Those were not changed in any way, but other provisions, mostly economic ones, were substantially modified, and, as so modified, were incorporated in November 1964 into a "supplementary agreement" which was annexed to the standard contract. It was intended that the "supplementary agreement" was to supersede the standard contract whenever its terms were in conflict with those of the standard contract. The bargaining was then concluded, the standard contract and "supplementary agreement" constituting the package Arvan and Glassman negotiated. Although these negotiations were completed in November 1964, Glassman agreed that execution of the contract by the employer could be delayed until February 1965.
At the hearing before the Board's Trial Examiner Arvan testified that he kept in touch with Richard Coletti all through the negotiation period and discussed with him in great detail the terms he was negotiating. Arvan further stated that "ultimately all matters were discussed and agreed upon between Coletti and the union -- between Coletti in behalf of the company and Glassman in behalf of the union." Furthermore, he said that "I say Glassman and Coletti both agreed to the terms incorporated in this document. I said this document is the contract that was drawn incorporating what both Coletti and Glassman had agreed to. Glassman on the part of the union and Coletti on behalf of his company. This document was sent to Glassman on February 19th, 1965 for his approval as to language and content before I sent it to the employer for his approval and signature." As Richard Coletti never testified at the hearing, Arvan's testimony as to the conversations he had with Coletti was unchallenged and undisputed.
Glassman approved the contract and it was then presented to Coletti. However, by the end of February Glassman had not yet received a signed contract. He contacted Arvan, who testified at the hearing that he in turn spoke to Coletti and Coletti told Arvan that he would send or deliver the signed contract to Arvan by March 16. Glassman testified that on March 16 he received a call from a lawyer named Rains, who claimed that he now represented Coletti. Glassman sought and obtained by telegram from Coletti confirmation of this change. Thereafter Glassman met with Rains and discussed the agreement, but he declined to renegotiate matters which he had supposed he had concluded with Arvan. Finally, however, he did agree to a modification of the previously agreed-upon arbitration clause. Rains said he would send the new provision to Coletti and Glassman could expect to receive signed copies on March 23. When he had not received word by mid-April Glassman attempted to contact Rains, but the latter was on vacation. At the end of April Rains called Glassman to inform him that he no longer represented Coletti.
Glassman immediately contacted Coletti and demanded a meeting with him. A few days later, when they met, Glassman inquired where things stood. Coletti stated he was not satisfied with the work performed by Arvan and Rains. On May 5 they met again, and this time Coletti submitted "proposals for negotiations" to Glassman, proposals which covered most of the items disposed of in the "supplementary agreement." Some of the proposals were more beneficial to the workers than were the related provisions in the earlier "agreement." Nevertheless, Glassman rejected the proposals, stating they were a "complete repudiation of everything that had gone before," and stormed out of the meeting. Coletti ran after him, voicing his willingness to negotiate. Glassman indicated a strike might occur, and a one-day strike did occur on May 6. In any discussions that may have occurred after May 6, Glassman adamantly refused to deviate from the Arvan -negotiated terms of the "supplementary agreement."
While all of this was taking place, Coletti had hired, on December 2, 1964, one Sidney Resnick, an acknowledged member of the union, who testified at the hearing. According to Resnick, Coletti and Resnick had several conversations, some of which occurred in January and February 1965, and during which Coletti made such statements as: He "wasn't going to sign the union contract unless it was on his terms only;" he "would rather go back to a three or four man operation rather than sign a union contract other than on his own terms;" "the distinctiveness of his shop required him to have a contract on his own terms;" and he had an "attorney drawing up a contract to suit his plans and turning it over, trying to get the union to sign this contract." Later on, when Coletti's difficulty with the union reached its peak (around May 7, 1965) Coletti discharged Resnick, saying he had to let him go because he "was the only full-fledged union member in his shop and he was having trouble negotiating with the union." However, despite the discharge, Resnick testified at the hearing that he was not seeking reinstatement or any back pay.
On these facts the trial examiner determined that: Richard Coletti was a supervisor of the Company because he hired and fired Resnick and the statements made by him to Resnick constituted restraint, coercion and interference and therefore constituted a violation of § 8(a)(1), as did also the discharge of Resnick. However, he also determined that the General Counsel did not carry his burden of showing that Richard Coletti was an officer, director or agent of the company who had power to bind the company to a collective bargaining agreement, and because neither the acts of Coletti nor those of the lawyers he retained could bind the company, the company had not refused to bargain and was not in violation of § 8(a)(5).Nevertheless, the trial examiner, in the event the Board were to disagree with him and with his conclusion as to Coletti's power to bind the company, made additional findings. He found that Coletti, by retaining Arvan to negotiate a collective bargaining contract, clothed Arvan with authority to bind the company and also that Coletti assented to the terms of the agreement when they were presented to him by Arvan. Based upon either or both of these findings he concluded that the company was obligated to sign the contract. He also found that the company refused to sign, that its refusal constituted a § 8(a)(5) refusal to bargain, and that this refusal to bargain was not only evidenced thereby but was also evidenced by Coletti's statements to Resnick. The Board adopted the trial examiner's decision except that it determined, contrary to the examiner's conclusions, that Richard Coletti did have power to bind the company to a labor contract and therefore the company had unlawfully refused to bargain. Thus adopting the trial examiner's alternate findings, the Board added, to the trial examiner's recommended order to cease and desist and to post appropriate notices, a direction that the company sign the Arvan-Glassman agreement if the union should request it to do so.
Perhaps the most difficult question herein to resolve is whether there is substantial evidence on the record as a whole to support the Board's finding that Richard Coletti had authority to bind the company to a collective bargaining agreement. In a situation such as the one before us, where the Board and the trial examiner differ on a question of fact, we must be guided by the Supreme Court's language in Universal Camera Corp. v. NLRB, 340 U.S. 474, 496-97, 95 L. Ed. 456, 71 S. Ct. 456, 469 (1951):
We do not require that the examiner's findings be given more weight than in reason and in the light of judicial experience they deserve. The "substantial evidence" standard is not modified in any way when the Board and its examiner disagree. . . . The findings of the examiner are to be considered along with the consistency and inherent probability of testimony. The significance of his report, of course, depends largely on the importance of credibility in the particular case. To give it this significance does not seem to us materially more difficult than to heed the other factors which in sum determine whether evidence is "substantial."
It should be noted at once that, in disagreeing with the examiner here, the Board did not disturb any of his rulings on credibility, as it did those of the examiner in Rocky Mountain Natural Gas Co. v. NLRB, 326 F.2d 949 (10 Cir. 1964); NLRB v. Dal-Tex Optical Co., 325 F.2d 78 (5 Cir. 1963); and NLRB v. Porter County Farm Bureau Coop. Ass'n, 314 F.2d 133 (7 Cir. 1963). Thus these cases are inapposite. The Board chose merely to draw a different inference from that drawn by the examiner from the same testimony that both Board and examiner accepted as credible. In such a case, the decision of the examiner is but one more factor, albeit a factor detracting from the Board's decision, in the whole record which is to be weighed in determining substantiality. See Universal Camera Corp., supra; NLRB v. Gala-Mo Arts, Inc., 232 F.2d 102 (8 Cir. 1956); Local No. 3, United Packinghouse Workers of America, CIO v. NLRB, 210 F.2d 325 (8 Cir. 1954).
In finding that the General Counsel had carried his burden of proving that Coletti could bind the company to a labor contract the Board set forth succinctly the reasons for its own viewpoint.*fn2 In so doing, we believe the Board touched all of the ...