Kaufman, Anderson and Feinberg, Circuit Judges. Anderson, C. J., concurring.
This labor dispute is not a stranger to this court, having received our attention in 1968. Bausch & Lomb, Inc. v. NLRB, 404 F.2d 1222 (2d Cir. 1968). Bausch & Lomb now asks us to review an order of the National Labor Relations Board requiring the Company to bargain collectively with United Optical Workers Union, Local 408, International Union of Electrical, Radio and Machine Workers, AFL-CIO.*fn1 The Board has cross-petitioned for enforcement of its order, and the Union has intervened. We grant enforcement and deny the petition for review.
The Company operates 155 ophthalmic branch laboratories throughout the United States for the manufacture and wholesale distribution of optical products. On May 26, 1966, the Board conducted a secret ballot representation election among the twelve laboratory employees at the Company's New York City Branch located on West 52nd Street. This resulted in eight employees voting against representation by the Union and four in favor. The Union filed timely objections with the Board's Regional Director, contending that the Company's election-eve letter, mailed to the employees on May 23 and received by them on May 24, contained misstatements which influenced the employees and prevented a fair election.
In particular, the Union objected to two sentences in the letter:
The Local in Minneapolis of the same union trying to represent you agreed last November that the four B & L employees represented by them will not receive a Christmas Bonus. The Union also agreed they will not get the new pension plan.
The Board, reversing the decision of the Regional Director,*fn2 determined that the omission from the letter of the critical factors which led the Minneapolis Local to give up the bonus rendered the statements misleading and ordered a second election. At the same time, the Board denied the Company's request for a hearing on the ground that the Company had not substantially controverted the facts set forth in the Regional Director's report.
In the second election, conducted nearly twelve months after the first, seven of the twelve votes were cast in favor of the Union. The Board overruled the Company's objections to the second election and certified the Union as the exclusive bargaining representative of the New York unit. When the Company refused to bargain with the Union, maintaining that the Board had improperly set aside the first election and ordered the second election, the Board found that the Company had committed an unfair labor practice in contravention of Sections 8(a) (1) and (5) of the National Labor Relations Act. In its first petition to this Court, we refused to enforce the Board's order requiring the Company to bargain on the ground that the Board should have afforded the Company a hearing before it overturned the first election. Accordingly, we remanded the case to the Board. After a hearing dealing extensively with the Minneapolis negotiations, the Board reaffirmed its position and issued the order reviewed here.*fn3 185 NLRB No. 62 (1970).
The Company urges three grounds for denying enforcement of the Board's order and for reinstating the first election: (1) that the Board's conclusion that the letter contained a material misstatement is not supported by substantial evidence; (2) that the Board abused its discretion in overturning the first election; and (3) that the Board, in overturning the election, violated Section 8(c) of the Act and unconstitutionally abridged the Company's freedom of speech.
As we have indicated, the Board specified that the statement "the Local in Minneapolis of the same union trying to represent you agreed last November that the four B & L employees represented by them will not receive a Christmas bonus" "created the false impression that the Minneapolis Local gave up the valuable right of the Minneapolis employees to receive the Christmas bonus without receiving anything in return . . . ." The Company contends that although the Minneapolis employees were granted five days extra extended illness pay, this benefit was not obtained by the union negotiators in exchange for the Christmas bonus exclusion clause. Rather, it maintains, the Company and the Minneapolis Local engaged in "item" bargaining and that agreement on any one item was divorced from agreement on any other item in the new contract. The Board and the Union respond that the record establishes that the parties engaged in so-called "package" bargaining.
The great weight which the company places upon the significance of the distinction between "item" and "package" bargaining escapes us. Good faith collective bargaining ordinarily entails a process of give-and-take. Cf. NLRB v. General Electric Company, 418 F.2d 736 (2d Cir. 1969), cert. denied, 397 U.S. 965, 25 L. Ed. 2d 257, 90 S. Ct. 995 (1970). In any event, in the instant case we do not have to rely upon any theoretical basis of the collective bargaining process to sustain the Board's finding, since there is substantial evidence in the record to support the Board's position that the parties engaged in "package" bargaining.
As we focus on the 1965 Minneapolis negotiations, we observe that the Minneapolis Local submitted a proposal, which, among other requests, sought an increase in wages, added sick leave, a ten-minute rest period in the morning and afternoon, a bonus equal to that in the Company's other plants and a contract which would endure for thirty months. At the first give-and-take session, the Company presented a counter-proposal which rejected all union demands and called for a smaller increase in wages, a one-year contract period and a bonus exclusion clause. After some discussion, the parties agreed to the ten-minute rest periods and to a five-day extension of the Company's extended illness provision. The Union then lowered its demands for a wage increase and shortened the proposed contract period to a two-year term, offering in return to accept a bonus exclusion clause. When the Company opened the next bargaining session with a somewhat smaller wage offer but was ready also to agree to a two-year contract, the Minneapolis Local accepted. The two-year contract, as finally adopted, contained a bonus exclusion clause, five extra days of extended illness pay, ten-minute rest periods and a wage increase.
Although it is true that the parties had agreed to the bonus exclusion clause at the second session, whereas they had come to an understanding on the rest period and extended illness provisions at the first session more than a month earlier, agreement on items was contingent upon the parties arriving at a total package acceptable to each side. In light of this give-and-take method of bargaining so commonly encountered, it is clear to us from the record that the Minneapolis ...