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National Labor Relations Board v. Advanced Business Forms Corp.

decided: January 3, 1973.

NATIONAL LABOR RELATIONS BOARD, PETITIONER,
v.
ADVANCED BUSINESS FORMS CORPORATION, RESPONDENT



Friendly, Chief Judge and Mansfield and Timbers, Circuit Judges.

Author: Timbers

TIMBERS, Circuit Judge.

This petition to enforce an order of the National Labor Relations Board, 194 N.L.R.B. No. 52 (1971), is another instance where the Board's order in large measure is not challenged. Of the numerous provisions of the trial examiner's recommended order of August 17, 1971, adopted by the Board on November 24, 1971, less than 20% are challenged by the Company in the proceedings on the instant petition by the Board to enforce its order.*fn1

The petition before us presents only two essential issues by virtue of the Company's*fn2 limited challenge of the Board's order:

(1) Whether there was substantial evidence to support the Board's determination that the Company violated Section 8(a) (3) of the Act*fn3 in discharging employee Barbara Fasano because of her union activities.

(2) Whether there was substantial evidence to support the Board's determination that the Company violated Section 8(a) (5) of the Act in failing to bargain collectively in good faith with the Union.*fn4

For the reasons stated below, we hold that there was substantial evidence to support the Board's determination on issue (1), but not on issue (2). We enforce the Board's order in all respects, except that we deny enforcement as to those provisions of the order dependent upon the Board's finding of a violation of Section 8(a) (5).*fn5

I.

The essential facts as found by the trial examiner may be summarized as follows.

The Company, a New York corporation, operates a small printing plant at Ronkonkoma, New York. It is engaged in the printing, sale and distribution of business forms and related products. Prior to early February 1971, its president was James Orrach. It is a wholly owned subsidiary of Retrieval Control Systems, the president of which is John Montague.

One department of the Company -- the pressroom and preparatory department (referred to together as the prep department) -- is at the center of this controversy. This department does the art work and photography for the Company, and makes the plates that are run on the presses. The size of the department fluctuates between 11 and 14 employees.

Prior to September 1970, the prep department did not have union representation. Two department employees, who apparently were angry with management, arranged for a meeting on September 12 with Julius Seide, a business representative of the Union. Nine prep department employees attended the meeting. Some of them signed union bargaining authorization cards.

On September 16, Seide filed with the Board's regional office a petition for certification as the bargaining representative of the employees of the Company's prep department. A copy of the petition was served on the Company on September 18. That same day, four pressmen -- Walter Yarosz, Eugene Sannuto, Joseph Kirklewski, and Carl Piscani*fn6 -- were laid off.*fn7 All four had attended the September 12 meeting and had signed union authorization cards. Arthur Kunzweiler, supervisor of the prep department, participated in the decision to lay off the men. At the hearing he admitted being aware at the time of the discharge that the four men were union sympathizers.

On October 13, Seide and President Orrach entered into an Agreement for Consent Election which provided that the Board's regional director would conduct an election on November 4 among the prep department employees. In the afternoon of October 13, Orrach called a meeting of all prep department employees. At the meeting, he stated that the Company did not really want the Union, "that he thought they had a pretty good company, they had pretty good benefits, and if anybody had any gripes they should have come to him ...


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