National Labor Relations Board v. Clark-Sprague, Inc.

440 F.2d 1099, 76 L.R.R.M. (BNA) 3028, 1971 U.S. App. LEXIS 10868

• Court: Court of Appeals for the Eighth Circuit
• Decided: April 8, 1971
• Docket: 20532_1
• Status: Published

Opinions

VAN OOSTERHOUT, Circuit Judge.

This case is before us upon the application of the National Labor Relations Board pursuant to § 10(e) of the National Labor Relations Act as amended (29 U.S.C.A. § 151 et seq.) for enforcement of its order against Clark-Sprague, Inc., (the Company) on March 10, 1970, and reported at 181 NLRB No. 91.

The Board found (1) the Company had violated § 8(a) (1) by coercively interrogating its employee Menke and offering him benefits if he would desert the Union,¹ and (2) the Company had recognized the Union as the collective bargaining agent of its letterpress men and compositors and in violation of § 8(a) (5) and (1) had withdrawn recognition before giving the bargaining relationship a reasonable time to function.

The Board’s order required the Company to cease and desist from the unfair labor practices found and to bargain upon request with the Union and to post appropriate notices.

The Board is entitled to enforcement of its § 8(a) (1) order, described as (1) above, based on interrogation and coercion of employee Menke. Substantial evidence supports the finding of such violation. The validity of the finding is not here attacked.

The principal controversy in this appeal is the validity of the Board’s bargaining order. The threshold question on this issue is whether the Company agreed to recognize the Union as the bargaining agent of its sole letterpressman Wisniewski and its two compositors, Menke and Kelsey. The Trial Examiner found the parties had not reached an understanding or meeting of minds on the recognition issue. The two member Board majority determined on the basis of inferences drawn from the evidence that the Company had accepted the Union as bargaining agent. Chairman Mc-Culloch in his dissent agreed with the Examiner’s finding that there had been no agreement to recognize the Union and hence no withdrawal of recognition occurred. We deny enforcement of the bargaining order.

The evidence is quite fully discussed in the Trial Examiner’s reported decision and we will not set it out in detail here. We will briefly state the basic facts.

The Company operated a printing plant in St. Louis. Most of its printing is by the lithographic process. The Union has represented the Company’s six lithographers for over six years. The relations were friendly.

The Company also employed one letter-pressman, two or three composing room employees and two shipping room employees. On May 5, 1969, letterpressman Wisniewski and compositor Menke signed Union authorization cards.

On May 13, President Fishman had lunch with Union President Creel and Vice President Mantei. At such luncheon, the two Union authorization cards were produced. This came as a surprise to Fishman. He advised the Union officials he thought the plan had some merit but that he saw a lot of problems involved and that he would have to talk to plant manager Bruno. All went to the plant and after a tour of the plant, Bruno was invited to the conference. Various problems were discussed, such as the Union’s inability to furnish replacements, that other unions had jurisdiction over the craftsmen, and special problems with respect to a physically disabled employee and a part-time employee.

Fishman’s testimony includes:

“The entire situation at that time is not what we see here now. It was a matter of them asking if they could represent these two men and they left it entirely up to us to decide if it would be all right with us if they represented them. So, the question was if we decided it was convenient for us to permit the Lithographers to represent them. We left them on the best of terms and with the idea we would let them know if we decided pro or con. That was the way we understood it. There was no question about a majority or minority. It was just a matter of these two men being represented.”

As pointed out by the Trial Examiner, Mantei was the only one of the four participants in the conference who testified positively that Fishman accepted the recognition demand. Union President Creel on rebuttal did not corroborate Mantei’s testimony that Fishman responded to the bargaining demand by saying “O. K.” The Examiner on the basis of the credited testimony of the other participants found no recognition agreement had been arrived at.

As pointed out in Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456, the evidence supporting the Board’s conclusion may be less substantial when the Trial Examiner who heard the case has reached a different conclusion.

Under the Universal Camera standard, we find the Board’s decision is not supported by substantial evidence on the record as a whole.

The General Counsel here had the burden of proving in the posture of this case that the Company agreed to recognize the Union majority status. This he has failed to do. A company has a reasonable time to determine whether it will grant recognition. In the interval, the Company learned that one of the card signers, Wisniewski, did not want the Union to represent him. Such decision the Examiner properly found was not induced by Company coercion. Neither party requested an election.²

Under our determination there was no recognition agreement. It follows that there was no withdrawal of recognition in violation of § 8(a) (5) and (1).

The Board’s order is enforced as to the § 8(a) (1) violation. In all other respects, enforcement is denied.

1 . Local 252, Lithographers and Photoengravers International Union, AFL-CIO.

2 . The General Counsel before the Examiner raised the alternate issue that even if recognition was not granted, the Company violated § 8(a) (5) by refusing the May 13 bargaining request and by engaging in unfair labor practice undermining the Union majority and precluding a fair election. Such contention was rejected by the Examiner on the ground that a bargaining order is not necessary to remedy the limited unfair labor practice found. The Board did not reach such issue and it is not raised in its petition for enforcement.