Moore and Feinberg, Circuit Judges, and McLean,*fn* District Judge. Feinberg, C. J., concurring and dissenting.
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.*fn1 The trial examiner found that the Company violated § 8(a)(5) and (1) of the Act*fn2 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 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 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 "learn[ed] 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 37 1/2 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 the Federal Conciliation and Mediation Service to help compose the parties' differences but such intervention was impossible because of Company opposition. At the termination of the December 29th conference, Husband withdrew as bargaining representative for the Company "because of the expense involved." Heron, who had a "familiarity with the issues" but no prior bargaining experience, became the Company's sole negotiator.
With the New Year and the attempt to bring the Mediation Service into the negotiations came a month-long delay in the bargaining. During the month of January, 1966, two incidents occurred which were found by the trial examiner to constitute violations of the Act. The first was a fortuitous meeting of Kenneth White, the then Union shop steward, and production manager Pollock at a restaurant early that month. After a few drinks the conversation turned to Union matters and Pollock told White that he and another pressman were "management material" with a "fine future in the Company" and that if they remained in the Union they would damage their chances for advancement at the Company. Pollock said that White "was making a mistake" by encouraging the Union and that "there must be some way" to "vote the Union out." White was assured that there would be no reprisals if there was a decision to get "rid of the Union." Finally, Pollock asked White not to mention or repeat the conversation to anyone because he "could get in trouble for it."
The second incident occurred on January 31 when, at the invitation of president Tucker, four of the pressmen lunched with him at an "exclusive restaurant." Following food and drinks, Tucker inquired about the "trouble in the pressroom." The employees complained about long hours and low wages, to which Tucker replied that the Company was "young and growing," that profits were plowed back into the Company and that there were "brighter days ahead." Tucker suggested that even with a union they couldn't get more money because "you can't get blood from a stone." With regard to the pending contract negotiations Tucker stated that "he didn't have to sign a contract at all" and that if there were a strike he could replace the men with a whole crew of "trained people." He added that while he could probably tolerate Local 366, he was concerned that the ITU Local 6, led by Powers, would try to get a foothold and put the Company out of business. When confronted with the lack of progress in the negotiations and with complaints by the employees that they had "nothing to look forward to," Tucker indicated that he "had to continue bargaining" and that, although he had prospects of future business, nothing could be done until some settlement was reached between the workers and the Union or between the Company and the Union. Tucker encouraged the revival of the "Communications Committee," through which employee grievances had once been transmitted to the management, and further invited the employees to present grievances directly to him.
Five days before this meeting, on January 26, 1966, the bargaining sessions had resumed. Heron, speaking for the Company, began this eighth session by reiterating the Company's refusal to speak to any economic issues until the non-economic issues were disposed of. Sheehan, for the Union, objected, stating that an offer on all the issues should be used towards inducing a compromise. Heron responded that he "wasn't experienced in those things," and the parties then proceeded to review their outstanding differences on non-economic issues. During the course of the meeting the Union made a number of concessions on many of the non-economic issues. Prior to the end of the meeting Sheehan said that, in view of these concessions, the Company "should be in a position to make a counter proposal * * * on all the outstanding issues, including the economic issues." Heron replied that he needed additional time "to go into those things."
At the ninth meeting (February 18) the remaining divisive non-economic issues were reviewed and the Company agreed to respond in detail to each of the Union's economic demands at the next meeting. But at the tenth meeting (March 11) the Company merely explained its prevailing practices in economic areas such as overtime, holidays and sick leave. Upon the Company's refusal to submit a counterproposal on wages, the climate of the negotiations became quite heated. Sheehan complained that the Union had been waiting for months and the Union's newly-elected president, Scanlon, accused the Company of stalling. Heron warned the Union not to "threaten" him, but promised a wage proposal at the next meeting.
By letters of March 17 and May 25, however, the Company withdrew its promise to discuss a wage offer at the next meeting. These letters stated that the Company would not discuss the question of wages until all unresolved economic issues were settled, since the Company did not believe it would be helpful to go into purely economic matters until agreement was reached on other matters having a "decisive * * * economic impact," such as pension and welfare programs. A second attempt to bring in the Federal Mediation and Conciliation Service proved futile, since Heron, on behalf of the Company, stated that such intervention would be a waste of time.
The final bargaining session took place on June 29, 1966. Heron stated the Company's current practices regarding subsidiary economic issues such as welfare plans, pension plans, holidays, vacations, severance pay, overtime pay and sick leave, noting that the Company was unwilling to depart from its position on these matters. He stated that he was "unprepared" to comment on wages. Sheehan then agreed to withdraw the Union proposals on the subsidiary economic issues and accept the existing Company practice with respect to each of those items if the Company would agree to a Union ...