Patent Trader, Inc.

National Labor Relations Board - Board Decisions

Oct 18, 1967

167 N.L.R.B. 842 (N.L.R.B. 1967)

842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Patent Trader , Inc. and Westchester County Print-
ing Pressmen and Assistants Union , Local 366, In-
ternational Association of Printing Pressmen and
Assistants Union of North America. Case
2-CA-11061
October 18, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
ber. 16, 1966. The complaint, as amended at the hearing,
alleged that Respondent violated Section 8(a)(1) and (5)
of the National Labor Relations Act, as amended,
by engaging in certain acts and conduct. Respondent in
its answer denied commission of the unfair labor prac-
tices charged. All parties appeared and were afforded
full opportunity to be heard and to examine and cross-
examine witnesses. Briefs were received from General
Counsel and Respondent.
Upon the entire record2 and from my observation of
the witness, I make the following:
FINDINGS AND CONCLUSIONS
On May 22, 1967, Trial Examiner Samuel M.
Singer issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged
in and was engaging in certain unfair labor practices
and recommendieg that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. He
also found that Respondent had not engaged in
other alleged unfair labor practices and recom-
mended dismissal of those allegations of the com-
plaint. Thereafter, the Respondent and the General
Counsel filed exceptions to the Trial Examiner's
Decision and briefs in support of their exceptions,
and the Respondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby or-
ders that the Respondent, Patent Trader, Inc.,
Mount Kisco, New York, its officers, agents, suc-
cessors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order.'
I Delete -from paragraph 2(b) of the Trial Examiner's Recommended
Order that part thereof which reads "to be furnished" and substitute
therefor "on forms provided
TRIAL EXAMINER'S DECISION
SAMUEL M. SINGER, Trial Examiner: This case was
heard before me in New York, New York, on various
dates between December 5 and 20, 1966,' pursuant to a
charge filed on July 27 and complaint issued on Septem-
I. THE BUSINESS OF THE RESPONDENT
Respondent, a New York corporation, with its office
and place of business in Mount Kisco, New York, is en-
gaged in the publishing, printing, and distribution of a
weekly and semiweekly newspaper and in commerical
punting. During the representative year preceding is-
suance of the complaint, Respondent performed services
valued in excess of $500,000, of which over $50,000
were for enterprises in States other than New York. I find
that at all material times Respondent has been and is en-
gaged in commerce within the meaning of the Act, and
that assertion ofjurisdiction in this case is proper.
II. THE LABOR ORGANIZATION INVOLVED
Westchester County Printing Pressmen and Assistants
Union, Local 366, International Association of Printing
Pressmen and Assistants Union of North America
(herein called the Union), at all material times has been a
labor organization within the meaning of Section 2(5) of
the Act.3
Iii. THE UNFAIR LABOR PRACTICES
A. Introduction; the Issues
After an election won by a vote of 8 to 2, the Union on
July 28, 1965, was certified bargaining representative of
Respondent's pressmen. The parties thereafter held 11
bargaining meetings between August 10, 1965, and June
29, 1966. On September 30, 1965, Respond; nt submitted
counterproposals to the Union's draft contract, but only
as to noneconomic matters. In the ensuing negotiations
Respondent took the position that it would not discuss or
submit counterproposals on wages until all noneconomic
issues were resolved. Also during the negotiations,
Respondent unilaterally granted wage increases without
prior notice to or consultation with the Union.
Around January and August 1966, Company President
Tucker and Production Manager Pollock met with em-
ployees and made antiunion statements. On August 12,
The hearing, originally opened before Trial Examiner Thomas A.
Ricci on October 17, was adjourned to December 5, 1966, without the
taking of any testimony
2 Transcript corrected by my Order, on notice, dated April 17, 1967
1 Respondent's denial in its answer and at the hearing that the Union is
a labor organization within the meaning of the Act is spurious The Union
fully satisfies the definition "labor organization" as set forth in Section
2(5) of the Act, it was certified as such in the representation proceeding
and Respondent met and negotiated with it as representative of its em-
ployees in an appropriate unit
167 NLRB No. 120
PATENT TRADER, INC. 843
1966, the pressmen voted to withdraw from the Union,
and shortly thereafter Respondent broke off the faltering
negotiations. On October 17, 1966, Company Attorney
Husband interviewed employees in preparation for trial
of this case.
The complaint, as amended at the hearing, alleges that
Respondent, in violation of Section 8(a)(5) and (1) of the
Act, refused to bargain in good faith and with no intention
to enter into a collective agreement; and that it further
violated Section 8(a)(1) of the Act by coercive state-
ments and conduct of Tucker, Pollock, and Husband
in meetings with employees.
B. Organization of the Plant; Respondent 's Election
Conduct
Respondent prints and publishes a semiweekly paper,
the "Patent Trader," and a weekly paper, "The Adver-
tiser," as well as three other newspapers (including the
"Amsterdam News" in New York City) for other
publishers. Carl Tucker is company president, William
Heron treasurer, and Richard Pollock production
manager and vice president. Respondent employs ap-
proximately 220 employees, but only its 9 or 11 pressmen
and reelmen are involved in this proceeding.'
In about April 1965, Respondent's pressmen contacted
Louis Bramley, Local 366's vice president, and discussed
with him the possibility of affiliating with that Union.
Local 366 is bargaining agent for printing pressmen of
several establishments in Westchester County, New
York. After obtaining authorization cards from Respond-
ent's pressmen, the Union on May 5, 1965, filed its peti-
tion for an election. (Case 2-RC-1 3976.)
Prior to the election held on July 20, 1965, Respondent
posted on its bulletin board literature explaining why it
opposed unionization of the plant.5 In a "Fact Sheet,"
dated July 12, 1965, it reviewed the benefits enjoyed by
the pressmen. In a "Memo to the Press Room" of the
same date, Company President Tucker recited what he
regarded to be "the advantages and disadvantages" of a
union. Although admitting that a union "could negotiate
a higher pay scale," he warned that Respondent had al-
ready lost a "large" customer after the latter had "learned
there might be a union in our press room." Tucker
warned that if Respondent could not replace this busi-
ness, it would have to lay off employees; that in case of
company refusal to grant union-demanded wage in-
creases, the Union could retaliate with a strike which
could have "exceedingly damaging consequences," in-
cluding permanent loss of business to competitors; and
that although "some" skilled and experienced union
representatives might obtain "better deals" in collective
(as opposed to individual employee) bargaining, this was
"not necessarily the case" with Local 366 which
represented only job pressmen in small shops and was un-
familiar with the needs of rotary pressmen employed by
Respondent. Tucker also indicated that although 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 if it won the
election, the ITU in New York (Local 6) led by an "arro-
gant" and "autocratic" leader (Powers) well known for
forcing newspapers out of business, "will be right behind
them" and will organize Respondent's composing room
employees. Tucker reminded the employees that the
composers had turned down Local 6 a year ago, voting
"to continue dealing directly" with him. He concluded by
saying, "Quite frankly, I am tired of fighting unions";
stated that he preferred "to fight our competitors"; and
indicated that he would rather pass on savings of the cost
of an election to the employees.
Around the same time (July 13), Production Manager
Pollock called Lener, an illiterate employee, into his of-
fice, explained to him the mechanics of voting, and asked
him how he would vote in the election. Pollock reminded
him that he had helped him get his job at the plant.
About a half hour after the Union's election victory,6
Production Manager Pollock went into the reelroom and
told Gaetanello, a pressman, "Here I gave you a raise . .
. and then you go do this to me." To employee Lener,
who also was there, Pollock stated, "I took you in here
because you didn't know how to read and write and give
you a job, a steady job, and you got to do this to me."
That or the following week, Lener's workweek was
reduced from 37-1/2 to 24 hours, but after intercession of
his foreman (Vandermeulen), Lener's hours were in-
creased to 25, which qualified him for welfare and other
benefits the Company accorded to full-time employees.7
C. The 1965 Negotiations
1. Introduction
On August 3, 1965, Vice President Bramley of Local
366, wrote Company President Tucker requesting a
meeting to negotiate a collective agreement. On the same
day Company Official Heron advised the Union that he
had been designated Respondent's representative in the
negotiations. In his letter to the Union, Heron agreed to
"observe [the Union's] earlier request that there be no
changes in working conditions, etc. of pressroom em-
ployees during bargaining."
As previously noted, the parties thereafter held II
meetings between August 10, 1965, and June 29,
19668-all at Respondent's premises in Mount Kisco.
Company Treasurer Heron and Company Attorney
Husband represented Respondent in the 1965 meetings,
and Heron alone in the 1966 meetings. The Union was
represented by Vice President Bramley and other officals
" Only the pressroom and reelroom have been organized . Local 6, In-
ternational Typographical Union (ITU), unsuccessfully attempted to or-
ganize the composing room in 1964
S This posting and other events hereafter referred to, which occurred
more than 6 months before the filing of the unfair labor practice charges
(i e , before January 28, 1966), are recited only for background purposes,
to shed light on the character of Respondent's conduct since January 28,
1966 See N L R B v Fitzgerald Mills Corporation, 313 F 2d 260, 264
(C A 2), N.L R B v National Shoes, Inc, 208 F 2d 688, 692 (C.A 2)
6 As previously noted, the Union won the election of July 20, 1965, by
a vote of 8 to 2. On July 28, it was certified as the collective- bargaining
representative of Respondent 's full-time pressmen (including reelmen),
pressmen assistants , and apprentices
' General Counsel adduced evidence that two employees (Kearney and
Kruell) were laid off around the time of the election. The substantial,
credible evidence does not support a finding that the layoffs were
motivated by union activity
8 August 10, September 16 and 30, October 14, 21, and 28, December
29, January 26, February 18, March 11, and June 29 Unless otherwise
specified, subsequent date references are to the period August 1965 July
1966
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at the first meeting and by Bramley and Union Attorney
Sheehan in succeeding meetings; some of the meetings
were also attended by employees. Sheehan was the chief
spokesman for the Union and Husband for the Company
in the meetings he attended.9
Heron testified that prior to the first meeting he met
with Husband and Company President Tucker to discuss
"the strategy that would be followed in the collective bar-
gaining negotiations ," it being agreed that the Company
would insist on refusing to bargain on economic matters
"until non-economic matters had been resolved."
Husband testified to the same effect, explaining that the
"strategy" was designed to "avoid the problem of sur-
rendering something on an economic issue and then being
whipsawed on supposedly non-economic items that could
have economic consequences." 10 He also testified that in
order to obtain "the best possible contract in the indus-
try," the Company decided upon "forceful bargaining"
and taking "the lead in the bargaining."
because it required the waiving of other rights by the
parties and the exclusive dependence on arbitration." As
to seniority (§ 12), Heron stated that he "didn't agree with
the practice of layoff by seniority." When Sheehan re-
marked that according to his information employee Kear-
ney (who attended the bargaining meeting) was laid off in
July on the basis of seniority, Heron said he "didn't know
anything about that." Toward the end of the meeting,
Sheehan asked about the position the Company intended
to take concerning the various economic proposals con-
tained in the Union's standard contract; Husband replied
that Respondent was not then prepared to formulate a
position, stating it wanted time to study the Union's
proposals. The Union agreed to Husband's request for a
2-week recess to enable him to prepare company
proposals.
3. The September 30 and October 14 meetings;
Respondent's counterproposals
2. The initial bargaining conferences (August 10-
September 16); the Union's standard contract
At the first meeting, held on August 10, the parties had
a "general discussion" on the Union's standard contract
(covering other employees in Westchester County) which
the Union had previously mailed to Respondent. The
contract contained usual provisions - economic and
noneconomic - on matters such as wages, overtime pay,
hours of employment, union security, grievance-arbitra-
tion, shift differentials, vacations, holidays, seniority in
layoffs, and a pension and welfare plan. The Union
pointed out that one of the items it most desired was to
have seniority determine priority of employees for layoff,
and indicated that it might be willing to modify its union-
shop proposal for an agency shop so that employees
could pay the equivalent of dues without joining the
Union." Husband expressed the hope that the parties
would write a contract that "fitted the distinctive situa-
tion of the Patent Trader."
At the next meeting (September 16), Union Attorney
Sheehan went over various clauses in the Union's stan-
dard contract The parties discussed the Union's pension
proposals and compared the welfare plans of the Union
and Company. The Union pressed for its proposal (§
11-A) that the foreman be "the only recognized authori-
ty" in directing the work and hiring and firing, contending
that "from their experience with other employers [in the
industry] that was the most effective way to have orders
carried out ... in the pressroom", Respondent, on the
other hand, insisted that final control remain with Produc-
tion Manager Pollock. Also discussed as the Union's
proposal (§ 14) to limit the number of apprentices (one for
two journeymen and two for every seven journeymen),
but Respondent questioned the practicality of this
proposal. Respondent also questioned the desirability of
comprehensive arbitration (§ 18) as proposed by the
Union, since it "did not like the idea of [its] impact ...
0 The findings on bargaining are based largely on uncontradicted
testimony and documentary evidence in those instances involving a con-
flict of testimony , I resolved the conflict not only on the basis of the com-
parative demeanor of witnesses as observed by me , but also on the basis
of what appeared to me , considering the record as a whole , to be more
consistent with the inherent probabilities of the situation
10 At the hearing , Husband cited as an example the issue of complement
At the September 30 meeting, the Company presented
detailed counterproposals on noneconomic matters. The
subjects included employment of part-timers, nondis-
crimination, dues checkoff, management rights, super-
visory prerogatives, subcontracting and new equipment,
manning of presses, work assignments, grievance-arbitra-
tion, strikes and lockouts, layoffs and seniority, manner
of discharge , and employment of "beginners ." Respond-
'ent's draft contract covered no economic matters such
as wages, vacations, holidays, hours of work, overtime
pay, sick pay, and pensions
The following provisions - recurring items in ensuing
negotiations - were included in the company draft agree-
ment: exclusion from the bargaining unit employees
working under 16 hours a week, unless they worked 5
weeks in a 3-month period (§§ 1.2 and 8.2); an open-shop
provision (§ 2 1); a management clause reserving to
Respondent broad prerogatives over methods of opera-
tion, job retention, and layoffs (§ 6.1); a requirement that
the Union assist and cooperate with Respondent in in-
creasing production efficiency (§§ 6.2 and 6.3); a provi-
sion giving the Company the right, absent agreement after
4 weeks' notice and bargaining, to subcontract any unit
work (§ 8.3); a similar provision extending to Respondent
the privilege of introducing new equipment and setting
rates with respect thereto, absent agreement after Union
opportunity to bargain (§ 8 4), according Respondent the
right to assign employees to nonunit work (§ 8.6), limiting
the arbitrator's power to pass upon certain claimed con-
tract violations involving matters such as subcontracting,
complement of men to be employed on equipment, and
propriety of layoffs (§ 10.4); and a layoff clause under
which seniority was to be determined on a group rather
than on individual basis,12 with seniority to be computed
on length of companywide (not departmental) service (§§
12.2 and 12.4).
After examining the document, Sheehan complained
that it contained nothing on economic matters of im-
which the Company wanted settled before discussing wages since "we
wanted to know how many people that increase would be for "
11 Heron had taken the position that no person "should be forced to join
a union "
12 The work force was to be divided into two groups, employees in the
group with the most seniority not to be laid off until after all in the lower
half were laid off
PATENT TRADER, INC. 845
portance to the Union and requested an adjournment to
study the company draft.
At the next (October 14) session, the Union (through
Sheehan) reported its position on Respondent's Sep-
tember 30 proposals. It accepted in whole, or substantial
part, Respondent's no-discrimination proposal (§§ 2.2
and 2.3), dues-checkoff provision (§§ 3 1 and 3 2); Union
access and bulletin clause (§ 4.1); a portion of the
management clause (§ 6.1) dealing with management
direction of work force, discipline, and dismissal;
manning presses (§ 8.5), details to be worked out by a
joint committee; portions of the grievance procedure
proposal (§ 9); no-strike clause (§ 11.1); portion of the
discharge clause (§ 13.4) affording employees 1 week's
advance notice of impending discharge (unless discharge
is for "just cause").
The Union submitted counterproposals, inter alia, on:
the recognition clause (§ 1.1) - requesting use of the
Board's certification language; part-timers (§§ 1.2 and
8.2) - proposing they be permitted to work only on Wed-
nesdays, Respondent's busy press day, the management
clause (§ 6.3) - substituting language evidencing union
willingness to cooperate in increasing production and effi-
ciency; supervisory powers (§§ 7 and 13.2) - proposing
that only the foreman direct the work force and discipline
employees (as opposed to all persons with supervisory
authority as desired by Respondent), subcontracting (§
8 3) - providing that it be done only on joint agreement,
the Union not to be unreasonable in withholding ap-
proval, work on new equipment (§ 8 4) - offering to settle
differences as to new rates by arbitration; arbitration (§ 9)
- requesting the same privilege as Respondent was to
have in expediting grievances; and seniority (§ 12) -
proposing that layoffs be effected on the basis of seniority
in accord with past company practice and on a depart-
mental (not plantwide) basis.
The Union rejected Respondent's open-shop proposal
(§ 2 1), insisting on a union-shop clause; the portion of the
management clause (§ 6.2) imposing on the Union the
obligation to assist Respondent in operating productively
since this was considered a purely managemental respon-
sibility; the work assignment clause (§ 8.6) permitting
pressmen to work in other areas of the plant; the arbitra-
tion proposal (§ 10), restricting the arbitrators' powers in
certain areas since it tended to "unduly restrict the proper
operation of arbitration"; the no-strike clause (§ 11) - to
the extent it imposed certain obligations and penalties for
no-strike violations.
At the end of the meeting Union Attorney Sheehan re-
marked that now that the Union had made "substantial
concessions in the proposals by the Company" Respond-
ent "should be in a position to give the Union a counter-
proposal on all the open issues, including the economic is-
sues."
4. The October 21 and 28 sessions
At the next two meetings (October 21 and 28) Com-
pany Attorney Husband reviewed each of the Company's
September 30 proposals, noting the items accepted or re-
jected by the Union or as to which the Union made coun-
terproposals. The October 21 meeting was adjourned
after the parties went through about half of Respondent's
proposals because Company Official Heron claimed
other commitments. There was no significant change in
positions before adjournment. On union security, Heron
took the position that "management didn't believe that
under any circumstances should an employee be required
to be a member of a union as a condition of employment."
Husband (or Heron) pointed out that "the union is kept
more responsive to its members" without "forced union
membership." The Company also pointed out that it had
voluntarily proposed a dues checkoff. When Sheehan
asked if Respondent would consider a maintenance-of-
membership clause, the Company said, "no." There was
an extensive discussion on use of part-timers, Respond-
ent insisting on "complete flexibility" on the matter.
The subject of limiting direction of the work force to the
foreman was also discussed at length. Respondent "made
it clear that [it was] quite adamant" on the subject of sub-
contracting, stating, "we did not like the Union concept
of having a third party [an arbitrator] determining ...
what the Company could and couldn't do.... "13
At the October 28 meeting, Respondent insisted on
retaining restrictions on the arbitrator's powers, explain-
ing that Company President Tucker "felt very strongly
about that language." The Union objected to "language
that would handcuff and hamper arbitration" and sought
to convince Respondent that another provision in the ar-
bitration clause (§ 10.3) - to which the Union agreed -
providing that the arbitrator could not "add to, enlarge
upon, subtract from" or otherwise modify the contract -
afforded Respondent ample protection. Respondent
maintained its position "because it didn't want to have
anyone else interfering with the business." The Company
insisted on retention of its union responsibility proposals
(§ 11), pointing out that a similar clause is found in the
Lithographers union contract. Sheehan then asked
whether the Company would "give us everything else
that is in that [Lithographers] contract." When Husband
said "no," Sheehan remonstrated, "You want what's
good but you don't want what's a burden." As to the
provision in the company draft that the union and em-
ployee responsibility clauses "are to be interpreted in the
broadest manner possible," Husband explained that "the
Trader is a newspaper and we have responsibility to the
public and we wanted whatever additional protection we
could get."
The Company continued to insist on a "group" seniori-
ty clause (§ 12) while the Union insisted on a "straight
seniority layoff provision." Sheehan indicated that he
never heard of such provision in his 25 years' experience
in the industry and stated that the Company itself had fol-
lowed straight seniority in the past. Husband urged that
the Company wanted "maximum flexibility" in layoff
selections. Respondent agreed, however, to the Union's
counterproposal on seniority time computation (under §
12.3 seniority was lost after certain months of illness,
layoff, etc.). It also indicated willingness to permit the
Union to initiate grievances at any step of the grievance
procedure, just as it had proposed for itself (§ 9.2).
Later in the meeting, the parties discussed in extensio
Respondent's existing manning schedule, Heron claiming
the Company was operating 30 work shifts a week while
one of the Union's negotiators (employee White) asserted
that 37 work shifts were in operation. Respondent wanted
13 Heron testified that Respondent did not "generally" subcontract in
the past, but indicated it had farmed out printing or composition work
846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the schedule to remain as then constituted and the Union
urged an increase to 41 work shifts. Vandermeulen, the
working foreman, called in to clarify Respondent's
manning schedule, reported that 41 work shifts (counting
all full-time and part-time Wednesday work) were operat-
ing weekly in the pressroom. The question of manning
was not raised or discussed in subsequent negotiations. 14
5. The December 29 conference
The next meeting, originally scheduled for November
12, was held on December 29, after three postponements
(two at the Union's request and one at Respondent's). As
in prior meetings, Husband reviewed Respondent's Sep-
tember 30 proposals, section by section, stating the areas
of agreement and disagreement. The parties also con-
sidered several new company proposals relating to such
matters as "management rights," new equipment, and ar-
bitration. The new management-rights clause, similar to
the all-embracing September 30 proposal (§ 6.1) except
that it now provided that Respondent's prerogatives be
limited by the specific provisions of the collective agree
ment, was accepted by the Union. After the Union in-
dicated willingness to accept a new provision in the "new
equipment clause" (§ 8.4) incorporating a previous (Oc-
tober 12) union counterproposal that any dispute on
wage rates and working conditions on new equipment
work be settled by arbitration, Heron requested that "the
matter be held" for further discussion, stating he "was
inclined to prefer that the union have the right to strike if
it disapproved of the rate that the company set on a new
machine." The Union also accepted Respondent's re-
worded nonsubstantive preface (§ 8.1) to its "protection
of work done by unit employees" clause. Finally, the
Union accepted new proposed changes in the arbitration
clause (§ 10) which specifically excluded from arbitration
questions involving "changes in the terms and provisions
of the Agreement ... the scope of the bargaining unit
represented by the Union, and specific or general wage
increases for employees covered by [the] contract."
Respondent acceded to several of the Union's prior coun-
terproposals, including the Union's proposed language in
the recognition clause (§ 1.1)- "the exact certification
language contained in the NLRB certification order," and
the Union's wording of the discharge clause (§ 13.1),
authorizing company discharges for "just cause" without
detailing the specific infractions constituting cause.
The parties remained apart on major matters. As to
part-timers (§ 1.2), the Union proposed "excluding only
Wednesday part-time help while the Company would ex-
clude all employees working less than 16 hours per
week." As to seniority (§ 12), Respondent insisted on
layoff selections on a basis other than seniority and main-
tained the position that plantwide, not departmental,
seniority be utilized. It continued to insist on the right
(§ 8.6) to assign unit employees (pressmen) to other de-
partments. It continued to hold out for "maximum flexi-
bility" in subcontracting unit work (§ 8.3). It demanded a
union commitment to assist it in operating the plant in the
most efficient and productive way (§§ 6.2-6.3). It would
not yield on the Union and employee responsibility provi-
sions (§§ 11.2-11.3). It also insisted on limitations upon
the arbitrator's authority (§ 10.4) in areas such as
propriety of layoffs, right to subcontract, use of part-
timers, and employee complement.
Also on December 29, Union Attorney Sheehan
requested the Company to state after the lunch recess its
position on the union draft proposals, including the
economic clauses. The discussion became "rather in-
tense," Company Attorney Husband insisting that that
"was useless because ... the whole point" of Respond-
ent's drafting of contract proposals "was to bargain from
that," that the parties "had certainly covered a great
deal" of the Union's proposals in the negotiations, and
that "it was foolish to go back" to the Union's standard
contract. Husband stated that the Company would not
discuss economic matters until agreement was reached on
noneconomic ones. At Sheehan's persistence, Husband
agreed to go over the Union's draft after the lunch recess.
Husband went through the Union's draft agreement,
section by section, indicating the proposals already
covered in Respondent's draft, the ones he rejected
outright, and others that were "economic" as to which (in
Husband's words) "we would not at that time deal ...
consonant with our policy to settle other non-economic
matters ... before we tackle the economics." Thus,
Respondent declined to give a position on wages, report-
ing pay, hours of work, overtime pay, Sundays and
holidays, vacations, sick leave, welfare and pension,
severance pay, jury duty, and death leave. At the conclu-
sion of Husband's recitation, Sheehan heatedly com-
plained about Respondent's refusal to make "counter-
proposals on economics" and charged that the Company
had on two prior occasions promised to make such
proposals. Sheehan also stated that "the Company was
not dealing fairly with the Union." Husband reiterated
the company position that it will stick to "non-economic
proposals before we get to the economic and in particular
the non-economic ones with economic consequences."
Sheehan then said that the Union "wasn't going to move
on any of the present items until it had ... a Company
proposal on all the issues." Sheehan urged that "the
whole contract is an entity and that we would like to have
a proposal that touched all open issues so that we would
be in an intelligent position to conduct meaningful bar-
gaining by making amendments and modifications de-
pending upon the position of the parties.
Thereafter, Sheehan sought the assistance of the
Federal Conciliation and Mediation Service to help com-
pose the parties' differences. Heron rejected the Media-
tion Service's offer of assistance, telling its commissioner,
Palmer, "We still feel that the presence of a third party
would not further the negotiations nor promote better un-
derstanding between the parties."15
At the end of the December 29 meeting, Husband
withdrew as bargaining representative for Respondent
and Heron became its sole negotiator. Husband testified
14 There is a sharp dispute as to whether prior to lunchbreak at this
meeting Husband had requested a longer lunch recess than usual to
comply with Sheehan's request that the Company give its position on the
Union's economic demands (as stated in the union draft contract) Ac-
cording to Sheehan, when the meeting convened after lunch, Heron in-
sisted, over Sheehan's objections, on discussing Respondent's stock op-
tion plan, a subject not raised previously by either party. (There was no
discussion on the Union's economic demands) Husband could not recall
requesting a longer lunch period to formulate Respondent's position on
such demands . In view of the ultimate findings herein, it is unessential to
resolve the disputed evidence on this point
15 Sheehan attributed the delay between the December 29 and the next
(January 26 ) meeting to "the difficulty . encountered" in inducing the
Mediation Service to enter the negotiations
PATENT TRADER, INC. 847
that he had been under pressure from Company President
Tucker to withdraw because of the expense involved and
agreed to do so as soon as he became convinced that
Heron "had enough acquaintanceship with labor bargain-
ing" and familiarity with the issues to handle the negotia-
tions alone. Heron had no prior bargaining experience.
D. Respondent's A ntiunion Conduct A round January
1966
1. Production Manager Pollock
In early January 1966, Kenneth White, the then union-
shop steward, and his wife went into the Muscoot Inn in
Somers, New York, after working hours where they for-
tuitously ran into Production Manager Pollock and Tom
Kelly, one of the pressmen, drinking at the bar, and joined
them at Pollock's request. After a few drinks, the conver-
sation turned to the Union. Pollock told White that he and
Kearney (another pressman) "were management materi-
al," that they had "a fine future in the company," and that
if they remained in the Union, "it would hurt [their]
chances" for advancement at Respondent and other
places. Pollock explained that Respondent "was con-
sidering making a plan of rotating" its men from depart-
ment to department and giving them varied experience, in
contrast to union policy which would keep them press-
men "for the rest of [their] life," thereby limiting employ-
ment opportunities. He pointed out that although the
Union might obtain the men a $5 or $10 raise, "in the long
run we would be stuck with that . . . and there would be
no chance ... to elevate ourselves any higher than ajour-
neyman pressman ." Pollock cited as an opportunity for
advancement the fact that Gilbert Moore, the assistant
manager in charge of the linotype department, was no
longer a young man. Turning to White's wife, Pollock re-
marked that White was "a fine man and ... good worker
and he has a good future," that White "was making a
mistake" by encouraging the Union, and he asked Mrs.
White to talk it over with White. Pollock also recited his
own experience with unions, stating that he "had gained
more outside of a union shop than he did in a union shop."
When White and Kelly asked if there would be "any
reprisals" if they decided to get "rid of the Union," Pol-
lock assured them that there would be none since "Carl
Tucker didn't feel that way about it" and , further,
"because they would have learned their lesson ." Pollock
also stated that "there must be some way" to "vote the
union out ... or to get rid of it" and that they "should
speak to Mr. Tucker " Finally, he requested White not to
mention or repeat his conversation to anyone because he
"could get in trouble for it."16
2. Company President Tucker
About a week before the end of January 1966, em-
ployee Kearney spoke to White about a meeting with
Company President Tucker, explaining that Production
Manager Pollock had asked him (Kearney) "to see how
the men felt about" such meeting. The pressmen
thereafter met with Tucker at lunchtime, Monday, Janua-
ry 31 '17 at Nino's, "an exclusive restaurant" in Bedford
Hills, New York. Four of the then seven pressmen
(White, Weissgarber, Kelly, and Malkin) attended.18
After eating (Tucker paid for the food and drinks),
Tucker said, "Well let's get down to business." Tucker
mentioned that he heard that the men feared "reprisals"
if they decided to "get rid of the union," but assured them
this was not so and asked "what's the trouble in the press-
room." The employees then complained about the long
(16) working hours on Wednesdays, and that they were
making less wages than other pressmen (union and nonu-
nion) in the area. Tucker replied that the Company was
"young and growing" and could not at that time afford to
pay higher wages; assured them that "brighter days"
were ahead, pointing out that he was "looking for new
publications"; and asserted that "even with a union con-
tract [the employees] just couldn't get the money ...
because you can't get blood from a stone." When asked
about "job security" - more specifically "what would
happen if the Amsterdam News [one of the papers
printed by Respondent] was to fold up" - Tucker re-
marked that if there was less work, layoffs would be
"strickly by seniority." When told that an employee with
a union card had more security since he could be referred
to another shop by the Union, Tucker acknowledged that
this could be advantageous, but commented that both
union and nonunion shops had their "faults and disad-
vantages." Tucker further said that he was considering in-
stituting "a new program" of rotating pressmen on other
jobs "so they could get a better idea of how the paper is
run" and train future supervisors.
Tucker also touched on the current bargaining negotia-
tions. He stated that he "didn't have to sign a contract at
all" and "nobody could force him to sign" one; and that
if the men went out on strike, he could replace them in a
day or two with a new crew. Although admitting that
"maybe he could live with Local 366," he stated he "was
afraid that the Big Six [Local 6, I.T.U.] could get a
foothold" if Local 366 were established in the plant.
Tucker added that Bertram Powers, Local 6's president,
would not hesitate closing small business.
In the course of the meeting, the men also voiced dis-
appointment with their Union (Local 366). One com-
plaint was that the Union's representatives did not un-
derstand the pressmen's problems and "were not
qualified to represent" them. Another was that the Union
did not keep the men informed about the negotiations.
The men also indicated disappointment in the lack of
progress in the negotiations . After the men indicated that
they had nothing "to look forward to," Tucker noted that
he "had to continue bargaining and that ... although he
had prospects of future business or more business, he
could not guarantee anything at that time until some kind
18 The above findings are based on the uncontradicted and mutually
corroborative testimony of White and his wife, further corroborated by
that of Kelly Pollock did not testify . Mrs White testified that the incident
took place in January 1966 or December 1965 while her husband placed
it as "around January" 1966 or a month or two earlier . In view of the un-
certainty as to whether the episode fell within the statutory 6-month
period (the cutoff date being January 28, 1966 ), General Counsel adduced
the evidence in question only for background purposes See fn. 5,supra
1' White credibly testified that although he originally wanted the meet-
ing after work on Friday , Tucker indicated that that time was unsuitable
and he and Tucker then picked Monday, the employees ' day off. Although
some of the testimony as to the meeting date is vague (Kelly located it as
"somewhere about " the end of January 1966 and Weissgarber "sometime
in the wintertime"), I credit White's precise and positive testimony that
the meeting took place on January 31, White vividly recalled the date, fix-
ing it as the day he began working parttime for another company , although
still on Respondent 's payroll on that date and for several days thereafter
18 The other employees were unavailable , Kearney apparently because
it was "a very snowy day "
848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of settlement was reached between the workers and the
union or between the Company and the union." Tucker
invited the employees to present grievances directly to
him and suggested that the communications committee,
consisting of representatives from each department in ex-
istence before advent of the Union, be reactivated for the
purpose of communicating employee grievances to the
Company. 19
E. The 1966 Negotiations
1. The January 26 meeting
Heron, Respondent's sole bargaining representative,
opened the January 26 meeting with the statement that
the noneconomic issues "should be settled" before the
economic issues. When Sheehan remonstrated that "all
of the issues ... are on the table" and that "if there was
going to be a compromise [on] any outstanding issue,
that compromise would be induced by an offer on all out-
standing issues," Heron commented that he "wasn't ex-
perienced" in such matters. The parties then discussed
their outstanding differences on noneconomic matters.
The Union withdrew its objection to the Company's
proposal (§ 6 of its September 30 draft) giving Respond-
ent the right to assign unit employees to work outside
the pressroom. It abandoned its demand that the right to
discharge inhere only in the foreman, agreeing to the
Company's proposal (§ 13.2) that such authority be
retained by other company supervisors. It agreed to ac-
cept Respondent's proposal (§ 12.3) that seniority be
computed on a plantwide basis instead of on a departmen-
tal one. It withdrew its objections to company proposals
dealing with consequences placed upon the Union and
employees for violations of the no-strike clause (§ 11) in
return for Respondent's withdrawing its demand that the
responsibility clause be interpreted "in the broadest
manner possible." And it accepted the company
proposals (§§ 6.2, 6.3) stipulating that the Union
cooperate in supporting management attempts to improve
and promote productivity and efficient operation. The
parties remained apart on such questions as use of part-
timers (§ 1.2), Heron asserting that "under no condition
could the Company give in ... with respect to the right to
utilize without limitation part-time employees"; the open
shop (§ 2.1), Heron stating that the Company was "una-
ble to agree to force any employee to join the union,"
although in an earlier meeting Respondent in effect al-
ready agreed to a maintenance-of- membership provision;
the seniority provision (§§ 12.1-12.2), under which
19 The above findings are based on the composite and uncontradicted
testimony of employees White, Weissgarber , and Kelly . Tucker did not
testify due to illness . Although Respondent "expressly" waived the right
to call him as a witness , I draw no adverse inference from his failure to tes-
tify. In view of Tucker's inability to appear, I carefully scrutinized the em-
ployees' testimony in the light of the inherent probabilities as well as the
demeanor of the witnesses . There is no indication that White , who left
Respondent voluntarily , had anything to gain by statements possibly mju-
nous to the Company. And Kelly, although called by General Counsel,
was not unfriendly to Respondent's cause. Furthermore, the testimony of
all three witnesses , who testified outside each other's presence , is in es-
sential harmony and is mutually corroborative.
20 When Sheehan brought out in this meeting (as in others ) that Re-
spondent previously laid off employees on the basis of regular seniority,
Heron reiterated that he was unfamiliar with past company practice.
Heron took the position that the Company wanted discretion to retain the
more competent pressmen.
Respondent was not obliged to follow regular seniority in
layoffs, although Respondent had followed that practice
in the past;L° and subcontracting (§ 8.3), although as
Sheehan pointed out at the meeting, Respondent had
been maintaining in the negotiations that it was not mak-
ing full utilization of its pressroom equipment.
Prior to the end of the meeting Sheehan stated that in
view of the substantial concessions made by the Union,
Respondent "should be in a position to make a counter
proposal ... on all of the outstanding issues, including
economic issues." Heron replied that he needed addi-
tional time "to go into those things."21
2. The February 18 and March 1 1 conferences;
Respondent cancels its promise to submit a wage offer
At the next meeting (February 18),22 the parties
reviewed some of the open issues. Sheehan reminded
Heron that certain matters, which Heron thought were
still outstanding,23 already were resolved. The parties
again discussed the controversial issues, including part-
timers, union security, subcontracting, and seniority. As
to seniority, Heron conceded that his investigation of past
company practices disclosed that "layoffs had always
been accomplished in accordance with seniority," but as-
serted that Respondent still wanted "the maximum
amount of flexibility" in layoffs. He asserted that
although company policy "from the beginning" of the
negotiations was against "absolute seniority," he was
now willing to accept a seniority provision, provided it
retained the right "to exempt" three of its seven or eight
pressmen from its application. Heron noted that the
Union claimed the "right to exempt the shop steward
from seniority."
The Union again requested Respondent to take a posi-
tion on its economic demands as outlined in its original
draft contract. When Heron asked what those demands
were (explaining he did not have "much experience
negotiating contracts"), Sheehan went over each union
economic proposal. The parties then discussed the Com-
pany's stock option plan (to whose continuance the
Union expressed no objection) and compared the Com-
pany's welfare and pension benefits with union-spon-
sored benefits. Before the close of the meeting, Heron
agreed to Sheehan's request to give the Company's posi-
tion with respect to each of the Union's economic de-
mands at the next meeting and to furnish the Union with
information respecting Respondent's current practices on
such economic matters as vacations, holidays, sick leave,
overtime, severance pay, beginners' rates, jury leave,
death leave, and welfare and pensions.
21 When asked on cross-examination whether at this (December 29)
meeting he did not agree to discuss economic issues at the next meeting,
Heron said, "I may have . . my notes indicate that here was a discussion
about beginning economic discussions . Whether I said it or you
[Sheehan] said it , I don't know." Heron was basically an honest witness,
but he had considerable difficulty recalling events not recorded on notes
and he so stated repeatedly. As previously noted , the testimony on the
negotiations is largely uncontradicted. However, to the extent that there
is a conflict in details between Heron and Sheehan, I credit the latter. I
was particularly impressed by Sheehan's ability to recall details , much of
them consistent with written recordings in Heron's and Husband's notes
22 The meeting , originally set for February 3, was postponed at Union
Vice President Brantley's request because of illness.
23 E g., new equipment (§ 8.4), and manning of presses (§ 8.5).
PATENT TRADER, INC.
Most of the next meeting (March 11) was devoted to
explanation by Respondent of its prevailing practices in
economic areas (overtime, holidays, sick leave, etc.). As
to some, Respondent indicated it wanted no change. It
made no counterproposals to the Union's economic de-
mands, but did accept the Union's counterproposal on
foremen. 24 It also agreed to furnish the Union with cur-
rent information on unit employees, including wages.
Respondent's refusal to submit a counterpropsal on
wages evoked a heated exchange between Heron and the
Union's representatives. Sheehan complained that the
Union had been waiting for months and, indeed, that in
the last (February 18) meeting Heron expressly promised
a counterpropsal on economic issues. The Union's newly
elected president (Scanlon), who attended this session,
exclaimed, "You have had the Union's proposed contract
since last summer and it looks to me as if you 're merely
stalling."25 Heron answered , "don't threaten me" and ac-
cused the union men of "trying to gang on me." At the
close of the meeting, Heron did, however, promise to
present a company wage proposal at the next session.
On March 17 Heron sent Sheehan a letter
acknowledging his postponing a meeting scheduled for
March 16, enclosing a list of the unit employees and their
wages, and stating that he would be unable "to make a
wage offer at the next meeting, although [he] had in-
dicated at the close of [the] last negotiation that [he]
would plan on doing so." The letter further stated that
Respondent would not discuss the question of wages until
all unresolved economic issues were settled. On May 25,
Heron sent Sheehan another letter which stated, inter
alia, that he did not believe it helpful to go into purely
economic matters, such as wages, until agreement was
reached on other matters having a "decisive ...
economic impact," such as the complement requirements
and the pension and welfare programs.
In the meantime, Sheehan again communicated with
Conciliator Palmer of the Federal Mediation and Con-
ciliation Service to ask his assistance in settling the
dispute. Palmer advised him that Heron had turned down
his renewed offer of assistance giving as his (Heron's)
reason that it would be a "waste" of the time.26
3 The last (June 29) conference; the unresolved issues;
Respondent's refusal to meet further with the Union
The parties met for the last time on June 29.27 At this
meeting Heron explained company policy with respect to
jury duty service and shift differentials, about which he
24 The Union' s new counterproposal that the work-force direction and
discharge authority be lodged in a foreman and any other supervisor
designated by Respondent was only a slight modification of Respondent's
original proposal (§§ 7 1 and 13 2)
25 Heron also quoted Scanlon as insisting that Respondent sign the
Union's standard contract, a matter denied by Sheehan Heron conceded,
however , that Scanlon relented , indicating that changes would be per-
mitted , since he would "not want to now upset previous negotiations "
26 Heron testified that he asked the conciliator not to intervene because
"if we were going to start off on what was supposed to be a lifelong ar-
rangement and he had to have an outside referee to come in to bring us
together , it certainly didn't bode well for the future of our relationship "
According to Heron , Palmer advised him on bargaining procedure, stat-
ing, inter alia, "not make my best offer first , to take my time and not to
rush into anything", that this type of agreement should be based on "com-
promise ," and that if we offered to do too much at the beginning we would
wind up giving more than we intended or more than was practical or
proper for us to do "
849
had previously claimed lack of familiarity. He also stated
that on questions relating to welfare plans, pension plans,
holidays, vacations, severance pay, sick leave, overtime
pay, death leave, jury duty, shift differentials, the Com-
pany was unwilling to propose any departures from its
existing practices. Heron further stated that he was un-
prepared to comment on the question of wages. (Heron
testified that throughout the various negotiation sessions,
Respondent refused to discuss the question of wages or
make any wage proposals.)
Following a caucus, Sheehan stated that the Union
agreed to withdraw its proposals concerning a pension
plan, welfare plan, holidays, vacations, severance pay,
sick leave, death leave, jury duty, shift differentials, and
overtime pay and would accept the existing company
practice with respect to each of these items if the Com-
pany would agree to a 2-year contract and a wage
progression, under which journeymen would receive
$155 per week and apprentices would have their wages
progressively increased in 10 steps each 6 months apart,
from a rate of $75 per week. Heron stated he needed ad-
ditional time to study the Union's offer and promised to
call Sheehan not later than July 1 for the purpose of ar-
ranging another meeting.
In addition to unresolved economic matters, the follow-
ing noneconomic items remained open to any significant
degree at the conclusion of the June 29 meeting: part-
timers (§ 1.2), the Company insisting on excluding from
coverage all employees working less than 16 hours and
the Union on excluding only those working on Respond-
ent's peak day, Wednesday; union security (§ 2.1), the
Union holding out for the conventional clause and
Respondent for an "open shop" (although at one point
Respondent was willing to settle for a maintenance-of-
membership clause); layoff by seniority (§ 12.2), the
Company demanding exemption of three (of its seven or
eight) pressmen from the provision and the Union insist-
ing on strict seniority application; arbitration (§ 10), the
Company still insisting on comprehensive limitations on
the arbitrator's authority; and subcontracting (§ 8.3),
the Company insisting on a broad subcontracting
prerogative.28
On July 1, Respondent (through Heron) wrote Union
Attorney Sheehan that it could not accept the Union's
package proposal of June 29, since certain noneconomic
issues, such as union security, part-timers, subcontracting,
and manning, were still unresolved. Heron requested that
Sheehan contact him to arrange another meeting. On July
8, Sheehan wrote Heron that he was "disappointed" in
" The Company requested and received two meeting postponements
between March 11 and June 28 (March 16 and June 14) and the Union
five (March 23, April 28, May 5 and 19, and June 7 ) Sheehan testified
that two postponements were due to Union Vice President Bramley's ill-
ness, one as a result of a blinding rainstorm , and others because of his per-
sonal engagements An additional 1-day postponement (June 28 ) was oc-
casioned by the unavailability of the Union 's International representative
28 Heron cited several other noneconomic subjects as still in dispute
"beginner employees " (§ 14), 1 e , the ratio of beginners (or apprentices)
to journeymen to be retained-but the parties had previously agreed to in-
corporate this matter in a supplement to the contract dealing with wages,
manning or employee complement (§ 8.5) - but the parties previously
agreed to work out this matter through a subcommittee and the subject
was not raised in any post -January 26 meetings; and new equipment (§
8 4), 1 e , the Company 's right to set rates unilaterally - but Respondent
appears to have accepted the Union ' s compromise proposal thereon
on December 29, and February 18
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's stand, and requested a meeting within a
week to continue negotiations. On July 15, Heron ad-
vised Sheehan that he would be unable to meet the fol-
lowing week and requested Sheehan to contact him dur-
ing the week thereafter. On July 29, the Union filed the
instant unfair labor practice charges.
Advised by a Board representative that Heron had ex-
pressed the desire to continue negotiations during the
pendency of the charges, Sheehan requested another
meeting of Heron. The parties agreed to meet on August
22, 1966. On August 19, 1966, Heron's secretary in-
formed Sheehan by telephone that the scheduled August
22, 1966, meeting had been canceled and that an explana-
tory letter would follow. On August 30, 1966, Company
Attorney Husband wrote Sheehan that the August 22
meeting had been canceled "because subsequent to the
letters between you and Mr. Heron establishing the time
of the meeting, it was made clear to Mr. Heron and
myself that Local 366 did not represent a majority of the
employees in the pressmen's unit." Husband further
stated that because of "this doubt," he had directed
Respondent to file a "RM Petition" with the Regional Of-
fice.
F. Production Manager Pollock's August 1966 Meeting
with Employees
Around the first week of August 1966 employee Kear-
ney notified pressmen that a meeting would be held with
Production Manager Pollock at the Muscoot Inn.29
Pollock bought the six or seven attending employees beer
and pizza and a "free-for-all" discussion on unionism
followed.30 Pollock related his own experience with
unions, including "the strikes and different things" he
lived through in the industry over the years; stated that
although he had had "very good days" as a union
member, he "also hated and dreaded the days when he
had to walk and carr a placard"; and asked the men to
"think twice before they] commit" themselves. Refer-
ring to Company President Tucker, Pollock stated that he
"didn't know if [Tucker] would approve" the employees'
"forming their own union," but he "didn't think [Tucker]
wanted any one," specifically mentioning Typographers
Local 6. Finally, Pollock told the men that "if the air was
clear there was a possibility of a very big contract" and
"more work." When asked (by employee Kelly) what
prompted him to make that remark, Pollock said, "I know
what it's like to walk a picket line."
However, Pollock also told the men that he spoke to
them "strictly on his own initiative"; stated that they
would have to make "their own decision" on unionism
and do "what they thought was right"; explained that it
was "possible" to "leave the Union and keep their card,"
as, indeed, he had done; and suggested that they hold on
to their cards, pointing out "the advantages" of such card
in searching for "jobs in different places" and areas.
On August 12, 1966, the pressmen voted to disas-
sociate themselves from Local 366. Prior to the vote the
men had " a number of informal discussions" on the
matter. The men voted "for another [NLRB] election
and ... to try and form [their] own local." Employee
Kearney, who with employee Weissgarber conducted the
29 The findings in this section are based on the uncontradicted
testimony of employees Kelly and Weissgarber ; as previously noted, Pol-
lock did not testify. While Weissgarber fixed the date of the meeting as
early August , Kelly was not too clear as to the time , indicating it was "in
the summertime ." I credit Weissgarber on this point.
secret balloting , reported the results to Company Official
Heron.31
G. Company Attorney Husband's October l7, 1966, In-
terviews
On August 23, 1966, Respondent filed with the Re-
gional Director an RM petition , and in connection
therewith Company Attorney Husband interviewed and
obtained statements from employees Kearney and Weiss-
garber, indicating , among other things, their dissatisfac-
tion with Local 366. Husband had assured them that they
did not have to talk to him, that "anything ... said one
way or another would not affect [their] position at the
Trader, beneficially or harmfully," that their union views
were their "business and not the Company's," that the
Company was not entitled to see any statements they
might supply to NLRB or the Union, and that they would
be furnished copies of their statements to Husband.
Prior to the opening of the original hearing in this case
(October 17, 1966), Company Official Heron advised
Husband that employee Kearney had contacted him and
mentioned that he and other employees were "desirous"
of talking to Husband about their recent interviews with
a Board agent. Husband then telephoned Kearney and
asked him to tell employees "willing to talk" to him to
meet him at Respondent's office on the evening of Oc-
tober 17. Having learned from Kearney that the Board in-
vestigator had also interviewed White, who already left
the Company, Husband also telephoned White, explain-
ing that he would like to see him, along with others, in
connection with preparing his case, to bring out "the
men's gripes with the union and their discontentness with
it." White agreed, stating that he, too, "would like ...
both sides of the story heard."
Three pressmen - White, Kearney, and Weissgarber -
were interviewed as a group on October 17. Husband re-
minded Kearney and Weissgarber of the assurances
previously given them about their right to speak or not to
speak, etc., when he took their earlier statements. He
similarly told White that if he "didn't want to say
anything," he "didn't have to" and, particularly since he
no longer worked for the Company, his giving a state-
ment could under no circumstances affect him. Husband
then again explained that he was preparing his case and
stated he wanted to know the "type of questions" or the
"areas that the Labor Board [was ] interested in," as well
as why the employees became "disenchanted" with the
Union. Addressing himself to White, Husband asked
what he knew of the luncheon at Nino's (supra, section
D,2). White asked, "Well, will this help the Company?"
When Husband indicated that it would help, White stated
that he could not in "good conscience" provide him with
the information. Husband then "dropped" the subject,
stating "it would have been ... just as well if he didn't
come" to the interview. White commented that he was
willing , however, to "talk" to Husband about the Union.
All three employees then related their experiences with
the Union, including the origin of the union movement
and their disappointments with the Union. Among other
things, the employees complained that the Union "wasn't
living up to what it said it would do," that it failed to call
so Although it was not unusual for Pollock to treat employees he met at
the Inn , such meeting "has never been arranged " in advance.
31 The findings in the above paragraph are based on the uncontradicted
testimony of Weissgarber and Kearney.
PATENT TRADER, INC. 851
sufficient meetings, that it did not keep the membership
posted on bargaining developments, that stewards were
not paid for time spent in negotiation meetings, and that
the Union's leadership was unacquainted with the em-
ployees' needs and problems. One of the chief reasons as-
signed for the employees' "disenchantment" with the
Union was lack of progress in the negotiations. White
testified, "We talked about . the negotiations .
dragging out and nothing was being accomplished by
either side and ... it just wasn't getting anywhere."
Weissgarber testified that the employees decided to "vote
out" the Union because "we felt that the negotiations
came to . . . a halt ... we were going nowhere ... it was
getting absolutely nowhere."32 Employee dissatisfaction
with company practices was also voiced. Shortcomings,
some of which assertedly led to the union movement, in-
cluded: short notice on overtime, low starting wages,
"faster and better" wages in the composing room, fear of
layoffs, dissatisfaction with Production Manager Pollock,
and resentment of the Company's printing a New York
newspaper in a previous New York strike.
Having learned from Kearney before the interview that
the Board's attorney, who took Kearney's prehearing af-
fidavit, had advised Kearney that "it would be better if he
didn't tell the Company that he had talked to the Labor
Board representative," Husband told White that he "cer-
tainly would appreciate it if you would not tell [the Board
agent] that you talked to me." White replied that he
would disclose this information if asked. Husband ex-
plained that disclosure would "lose whatever value of
surprise [it] might have otherwise [have] had."
At the end of the interview, Husband asked the men if
they wished to join him at a restaurant where he was
stopping on his way to the train, offering to treat them to
sandwiches and drinks; all three employees accepted the
offer and went to the White Horse Inn, where they con-
versed about personal matters as well as the union move-
ment in the industry. Husband reiterated his request that
White not mention their meeting to the Board representa-
tive. When White indicated that he would do so if
questioned, Husband remarked "Well, I respect you for
it. At least you're honest."33
H. The Unilateral Wage Increases
It is not disputed that since the date of the Union's cer-
tification, July 28, 1965 (including the period of the
negotiations to the date of the hearing), Respondent re-
peatedly granted wage increases to unit (pressroom) em-
ployees. The increase varied in time intervals and in
amounts from individual to individual . 34 The record
further shows that although in some instances (including
the period before the Union 's certification ) employees
were given increases approximately every 6 months, in
others the time intervals , as well as amounts, varied.35
Whether an employee was given a wage raise turned on
his performance , none being given if work was
unsatisfactory.
Attorney Sheehan , the Union ' s chief negotiator,
credibly testified that the Union was neither consulted
prior to announcemeet or effectuation of wage increases,
nor authorized or acquiesced in any of Respondent's
wage actions .36
1. Conclusions Respecting Respondent's Failure to Bar-
gain in Good Faith
1. It is settled that an employer does not satisfy the
good-faith bargaining requirements of the Act merely by
holding meetings with a union, listening to its demands,
and making counteroffers, unless the employer at the
same time manifests a good-faith intent to come to agree-
ment. See N.L.R.B. v. American National Insurance
Co., 343 U.S. 395, 402. The "performance of the duty to
bargain requires more than a willingness to enter upon a
sterile discussion of union-management differences." Id.
at 402. And a "determinat(on of good faith or want of
good faith normally can rest only on an inference based
upon more or less persuasive manifestations of another's
state of mind. The previous relations of the parties, an-
tecedent events explaining behavior at the bargaining ta-
ble, and the course of negotiations constitute the raw
facts for reaching such a determination." Local 833,
UAW v. N.L.R.B., 300 F.2d 699, 706 (C.A.D.C.), citing
Frankfurter, J., concurring in N.L.R.B. v. Truitt Mfg.
Co., 351 U.S. 149, 155. See also N.L.R.B. v. Fitzgerald
Mills Corporation, 313 F.2d 260, 266 (C.A. 2).
Applying these principles to the instant case, I find that
the record as a whole establishes that Respondent's
overall course of conduct falls short of compliance with
its statutory obligation to bargain in good faith. This is not
to say, as is often the situation in cases of this type, that
this record is devoid of facts tending to indicate good-
faith bargaining on the part of Respondent. Thus, on the
surface, the record shows that Respondent manifested
willingness to meet and met with the Union over a 10-
32 Husband indicated that he attempted to steer the discussion away
from this matter, stating "I did not focus on this point" because he was
primarily interested in "how they felt about the union "
33 The findings in this section are based on the composite testimony of
Husband, White, Weissgarber, and Kearney I do not credit White's
testimony to the extent it purports to convey that Husband questioned
him about the contents of his affidavit to the Board agent, nor Weiss-
garber's testimony to the extent it appears to attribute to Husband
questions concerning identity of employees attending union meetings
Although both employees were essentially honest witnesses, I am per-
suaded that they misconstrued the questions put to them Furthermore,
Weissgarber's testimony indicates that most of the information concerning
the Union was volunteered and not the result of questioning. Thus, he
testified, "We were mostly doing all the talking. He [Husband] was just
doing the listening." On cross-examination, White admitted that Husband
was "interested" in "the areas" and "occurrences" as to which the Board
agent had questioned him, and his testimony suggests that he simply
equated Husband's interest in areas covered with contents covered in the
affidavit Nor did any other employee testify that Husband put such
question, Weissgarber specifically denying (on direct examination) that
Husband did so Under all the circumstances, I find the employees'
testimony on the October 17 interview less reliable than that of Husband
who testified with the aid of notes.
34 Thus, Hamilton received an 18-cent-per-hour increase on July 30,
1965, 12 cents on January 28, and 10 cents on October 28, 1966 Weiss-
garber received 10-cent increases on January 7, July 8, and October 28,
1966, and Kelly received 27, 26, and 10 cents on September 13, 1965,
and March 18 and September 16, 1966, respectively
ss Thus, Hamilton received four wage increases (varying from 12 to 18
cents per hour) approximately every 6 months between July 1964 and
January 1966, and a fifth increase (10 cents) 10 months later (October
1966) On the other hand, Gaetanello received only 3 increases (12, 20,
and 10 cents)- once each year- between June 1964 and July 1966
36 The original complaint alleged Respondent's unilateral wage actions
only as violations of Section 8(a)(5) of the Act At the hearing, I granted
General Counsel's motion to amend the complaint to allege such actions
as also constituting independent violations of Section 8(a)(1) of the Act.
310-541 0 - 70 - 55
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
month period, presented contract proposals, made some
compromises, and furnished the Union requested bar-
gaining information. Furthermore, as hereafter noted, the
Union was less than diligent in scheduling conferences.
Nevertheless, after carefully weighing the factors militat-
ing for and against a finding of good-faith bargaining, I am
convinced from the totality of Respondent's conduct that
it entertained no sincere desire and made no genuine ef-
fort to conclude an agreement with the Union. On the
record as a whole, and particularly in view of the con-
siderations outlined below, I am persuaded that Respond-
ent merely went through the motions of negotiation, to
cloak its objective of undermining the Union and avoiding
meaningful bargaining.
(a) Respondent manifested resentment to unionization
of its business even before the Union's election as statu-
rory representative. Thus, in a company election leaflet
President Tucker stressed the dire consequences of or-
ganization, referring, among other things, to the loss of
one large customer who, he said, left after learning that
the pressroom might be unionized; Tucker warned that
employees might be let go unless this business was
replaced. Plant Manager Pollock appealed to an em-
ployee (Lener), whom he helped obtain employment, to
vote against the Union; and after the election criticized
that employee and another (Gaetanello) for voting pro-
union. In midpoint of the bargaining negotiations (January
1966), Pollock sought to induce the Union's steward
(White) to abandon the Union by attempting to convince
him and his wife that the steward was jeopardizing his op-
portunities for advancement in aligning himself with the
Union. Shortly thereafter (January 31), Tucker, although
conceding advantages in unionism and expressing ability
to "live with" Local 366, deplored the possibility that
another more aggressive and less desirable union (Typog-
raphers Local 6) "could get a foothold" in the plant if
Local 366 were successful Furthermore, Tucker
declared that he "didn't have to sign a contract at all" and
invited the employees to present their grievances directly
to management through a reactivated committee. In addi-
tion, just prior to Respondent's formal termination of the
negotiations (August 1966), Pollock reminded the em-
ployees of Tucker's distaste for unionism, encouraged
them to repudiate the Union by highlighting his un-
pleasant union experience, and held out to them the
"possibility of a very big contract" and "more work"
after "the air was clear." 37 Such demonstrations of
hostility to the Union and interference with employees'
rights appear to be at odds with a sincere desire to recog-
39 In its brief (pp 26 and 29 ), Respondent attempts to minimize the im-
pact of Pollock 's remarks by relying on Company Official Heron's con-
clusory testimony that Pollock had nothing to do with labor relations pol-
icy Respondent ignores Heron's further testimony that Pollock was the
Company's "production manager" and vice president " in charge of
production ," with power to oversee all production supervisors and to
direct the work of 100 to 125 production employees, including the p.-ess-
men here involved Pollock also had the power to discipline and his
recommendations on wage raises "naturally carry weight " It is clear
that even if "it does not affirmatively appear that his utterances reflected
the policy of the respondent , yet the employees may well have understood
that he was speaking with authority " N L R B v Globe Wireless, Ltd,
193 F.2d 748 , 751 (C A. 9) Nor, contrary to Respondent , were Pollock's
remarks neutralized by the fact that he told the employees that he spoke
to them "as an individual" or "as a friend " Those words "were not suffi-
ciently magic to dispel in the minds of the employees the conviction that
it was the representative of their employer to whom they were listening "
NLRB v Geigy Co, Inc, 211 F 2d 553, 557 (C.A 9), enfg 99 NLRB
nize and deal with it and to find some mutually satisfacto-
ry basis for an accord. Rather, such conduct tends to
show that the Company was more bent on destroying the
Union than on reaching agreement at the bargaining table.
See N.L.R.B. v. Denton, d/b/a Marden Mfg. Co., 217
F.2d 567, 570 (C.A. 5), cert. denied 348 U.S. 981;
Furr's, Inc. v. N.L.R.B., 381 F.2d 562, 569-570.
(b) The positions taken by Respondent on substantive
contract terms are another factor in the totality of circum-
stances reflecting on Respondent's lack of good faith in
the negotiations. While Respondent made concessions on
minor matters'38 voluntarily proposed a dues checkoff,
and agreed to several more important noneconomic items
(e.g., aspects of arbitration and seniority), it refused to
make significant concessions in fundamental areas of the
employer-employee relationship. It insisted on an open-
shop clause, equating a union shop with "forced union
membership." It fought for "maximum flexibility" in
layoff selections'39 subcontracting, employment of part-
timers, and assignment of employees to nonunit work.
Although it agreed to arbitration in principle, it sought to
narrow the scope of arbitrable matters and to restrict the
arbitrator's decision-making authority because it opposed
dependency upon or interference by "a third party." At
the same time, it insisted on clauses requiring the Union
to promote maximum production efficiency and to accept
broad union responsibility and employee penalty provi-
sions for noncompliance with the no-strike clause. In
some areas, it insisted on even greater freedom of action
than it formerly exercised.40 Respondent's uncompromis-
ing attitude is reflected in its unwillingness to move from
its position in the face of the Union's ultimate acceptance
of all but a few of Respondent's basic noneconomic
proposals 41
The Act does not, of course, require an employer "to
agree to a proposal or require the making of a conces-
sion" (Section 8(d) of the Act) and Respondent's failure
to make concessions was not per se a refusal to bargain;
it was, however, "a material factor" in the total circum-
stances for assessing good faith. N.L.R.B. v. Denton,
d/b/a Marden Mfg. Co., 217 F.2d 567, 570 (C.A 5). A
party's "approach and attitude toward negotiations as
well as [its ] specific treatment of items for negotiations"
are relevant. N.L.R.B. v. George P. Pilling & Son Co.,
119 F.2d 32, 37 (C.A. 3). While, as Respondent urges
(Br., p. 11), there was nothing illegal in its "aiming for the
best possible contract," its "failure to do little more than
then reject [the Union's demands] was indicative of a
822, 827, 828 See also Caster Mold & Machine Company, Inc, 148
NLRB 1614, 1621.
38 For example, Respondent accepted union proposals on using Board
certification language in the recognition clause, granting the Union the
same right as the Respondent to expedite grievances, eliminating the list
of specific infractions constituting "just cause" for discharge , and time
computations in seniority determinations
31 When Respondent ultimately relented somewhat it insisted on ex-
empting almost half (three of seven or eight) of the unit employees in
return for accepting the Union's proposal for exempting its steward
90 Thus, Respondent consistently rejected the Union's proposal for ap-
plication of seniority in layoffs, although it had used that criterion in the
past, and it insisted on wide latitude in subcontracting, although it had not
formerly done much subcontracting
41 The only basic and major noneconomic items still outstanding on
June 29 were issues relating to union seniority , exclusion of employees
working under 16 hours from the bargaining unit , subcontracting, and
specific restrictions on arbitration
PATENT TRADER, INC. 853
failure to comply with its statutory requirement to bargain
in good faith ." N.L.R.B. v. Century Cement Mfg. Co.,
Inc., 208 F.2d 84, 86 (C.A. 2). See also N.L.R.B. v. Reed
& Prince Manufacturing Company, 205 F.2d 131,
134-135 (C.A. 1), cert. denied 346 U.S. 887.
(c) Respondent 's determination to avoid agreement is
further manifested by its adamant insistence throughout
the negotiations not to discuss or "tackle" any economic
matters before all noneconomic issues were resolved.
Heron admitted that it was "basically [ Respondent's]
position that there had to be agreement on every single
non-economic issue before the Company would make any
economic proposals ." 42 Respondent denied the Union's
repeated requests , at all stages of the negotiations , to bar-
gain on economic matters even when the area of his
agreement on noneconomic issues was narrowed down to
only a handful of subjects . It refused to heed the Union's
plea that "the whole contract is an entity and that [it]
would like to have a proposal that touched all open issues
so that [it ] would be in an intelligent position to conduct
meaningful bargaining by making amendments and
modifications depending upon the position of the
parties." Respondent took the position it did from the
very outset of the negotiations "as part of [its ] strategy."
While it "is certainly true that there is no hard and fast
rule concerning the order in which contract terms will or
should be discussed ,"43 it is clear that Respondent's in-
sistence on refusing to discuss and submit counter-
proposals on economic matters until all noneconomic
items were resolved , constitutes persuasive evidence of
intent not to reach agreement . Good-faith bargaining en-
tails exchange of views on all mandatory bargaining sub-
jects . It contemplates "common willingness among the
parties to discuss freely and fully their respective claims
. to justify-them on reason" and if "resistance to the
claim remains , it is then that compromise comes into
play." N.L.R.B. v. George P. Pilling & Son Co., 119
F.2d 32, 37 (C.A. 3). Experience shows that even in-
transigence in one area will frequently thaw in the face of
concessions in another . By postponing or removing from
the area of bargaining - to the very end of negotiations -
most fundamental terms and conditions of employment
(wages, hours of work, overtime , severance pay, report-
ing pay , holidays, vacations , sick leave , welfare and pen-
sions, etc.), Respondent reduced the flexibility of collec-
tive bargaining, narrowed the range of possible com-
promises , and "cut off" the "infinite opportunities for
bargaining." (N.L R.B. v. Crompton-Highland Mills,
Inc., 337 U.S. 217, 225.) By insisting on completely
separating the economic from the noneconomic, Re-
spondent was rigidly and unreasonably fragmenting
the negotiation S.44
(d) Respondent 's unilateral wage increases during the
negotiations provides still further proof of its failure to
comply with the statutory requirement of good-faith bar-
gaining. As found, these wage increases varied in inter-
vals and in amounts from one individual to another and
"were in no sense automatic ." Cf. N.L.R.B. v. Benne
Katz, etc., d/b/a Williamsburg Steel Products Co., 369
U.S. 736, 746. Respondent's conduct, particularly in the
light of its adamant refusal to discuss wages and present
counterproposals, "naturally tended to undermine the
authority of [the] certified bargaining representative"
and thus prejudiced the negotiations. Armstrong Cork
Co. v. N.L.R.B., 211 F.2d 843, 847 (C.A. 5). See also,
N.L.R.B. v. Crompton-Highland Mills, Inc., 337 U.S.
217, 224; N.L.R.B. v. Fitzgerald Mills Corporation, 313
F.2d 260, 268 (C.A. 2). Furthermore, Respondent's uni-
lateral changes, without prior consultation with the em-
ployees' bargaining representative, were violative of Sec-
tion 8(a)(5) of the Act, even "without also finding the em-
ployer guilty of overall subjective bad faith." Katz, supra,
369 U.S. at 747.
2. In finding that Respondent breached its statutory
duty to bargain in good faith, I do not rely on General
Counsel's position that Heron, Respondent's sole
negotiator in 1966, lacked authority to bargain. Heron
was Respondent's treasurer and chief financial officer -
its second highest official - during the negotiations.45
Heron credibly testified that Tucker had entrusted him
with full authority to represent and present Respondent's
position in the negotiations. He had no previous bargain-
ing experience and Respondent's attorney, Husband,
acted as company chief spokesman in the 1965 negotia-
tions until Heron gained some experience and familiarity
with negotiation techniques.
Although it is quite clear that Heron was far from a
knowledgeable and skilled negotiator, this does not prove
that he was unauthorized and powerless to act for
Respondent. Nor does the fact that Heron was insuffi-
ciently familiar with company policy on various matters
(e.g., seniority and layoff, manning schedules, and jury
duty) -so as to enable him to respond readily to union
inquiries at the bargaining table-compel the inference
that he lacked authority to negotiate . Though not always
diligently, Heron checked into and reported back on
union inquiries. Finally, the fact that Heron could not
bind Respondent on significant matters such as wages
without first consulting with his superior (President
Tucker) is not determinative. Contrary to General Coun-
92 At the Union ' s insistence, however , Respondent did explain or clan-
fy its prevailing practices in several economic areas , such as overtimes
holidays, and sick leave; but it expressed unwillingness to depart from
those practices Respondent admittedly made no counterproposals on any
economic matters.
43Rhodes-Holland Chevrolet Co, 146 NLRB 1304, 1316 See also
International Powder Metallurgy Co., Inc, 134 NLRB 1605, 1607,
Vanderbilt Products, Inc., 129 NLRB 1323, 1329-30, enfd 297 F 2d 833
(C.A 2), Western Equipment Co, 149 NLRB 248, 249, enfd sub nom
N L R B v J A Tertehng & Sons, inc , 357 F.2d 661 (C A. 9)
94 The language of Trial Examiner Blake, adopted by the Board, in
Rhodes-Holland Chevrolet Co, 146 NLRB 1304, 1316-17, is equally ap-
plicable in this case "By insisting that nonmoney matters be settled be-
fore cost items were even discussed , the Company put the Union in the
position of being unable to make significant concessions in these areas as
a quid pro quo (consciously or subconciously) for a wage increase , for ex-
ample Collective bargaining is not a series of discussions on isolated and
related subjects On the contrary, there is often an interrelation , as a prac-
tical matter , between clauses which, on their face , deal with entirely dif-
ferent subjects and agreement is often reached because one party gives
something in one area and the other is'therefore willing to modify or
withdraw its demand with respect to an apparently unrelated subject
Although wages and other economic benefits are not the only important
terms in a modern collective-bargaining contract, they are among the im-
portant subjects discussed in most if not all contract negotiations This
being the case , it is reasonable to infer that Respondent 's refusal to make
any offer on wages . and its position that cost items should not be
discussed until agreement was reached on all other issues, prolonged
negotiations and contributed to some degree to the failure of the negotia-
tions to produce agreement "
45 Company President Tucker was top officer When Tucker became ill
in July 1966, Heron took over many of his duties and became Respond-
ent's top official
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sel, such not unusual limitations on a bargaining rep-
resentative do not reduce the representative to a mere
conduit for conveying company positions to the bargain-
ing table. See Midwestern Instruments, Inc., 133 NLRB
1132, 1139-40; Paul Robey, d/bla Crown Drug Com-
pany, 136 NLRB 865, 869-870; Rice Lake Creamery
Company, 131 NLRB 1270, 1293, enfd. 302 F.2d
908 (C.A.D.C.).
3. In its brief (pp. 15-18) Respondent appears to con-
tend that it was relieved of its bargaining obligation
because of the Union's "bad faith" in bargaining. The
contention lacks substance.
I cannot accept Respondent's characterization of the
Union as "hostile" in attitude and "intransigent" in
proposals- the former because it accused Respondent of
"stalling" and acting in bad faith and the latter because it
took an allegedly fixed position. To the contrary, for
reasons already found, it was Respondent that demon-
strated hostility to the Union by acts of interference,
restraint, and coercion; disparaged and undermined the
Union's position by discouraging employee union ad-
herence; adamantly insisted on its bargaining proposals;
frustrated the bargaining processes by narrowing the area
of bargaining; and dealt directly with employees in
complete disregard of their bargaining representative by
unilaterally granting wages. While the Union did urge its
standard area contract upon Respondent, the numerous
deviations it proposed therefrom (on June 29, the Union
was willing to accede to almost all of Respondent's exist-
ing economic practices) completely refutes any conten-
tion that it stood pat
Respondent's contention that the Union's "inex-
perience" with newspapers "hampered the bargaining,"
is likewise unsupported by the record. In any event, even
if the Union was inexperienced, this certainly impeded
bargaining no more than Heron's inexperience in bargain-
ing.
Respondent's further contention that the Union's can-
cellation of scheduled meetings46 contributed to the
failure of the negotiations is an appealing one, but the
Union's negligence in this regard did not justify Respond-
ent's own refusal to negotiate in good faith. This is not
a case where the Union's behavior precluded a test of
validity of Respondent's conduct. (Times Publishing Co.,
72 NLRB 676, 682-683; Phelps Dodge Copper Products
Corp., 101 NLRB 360, 368.) For reasons already stated,
Respondent's refusal to bargain was motivated by opposi-
tion to the principle of collective bargaining rather than
by derelictions or bad-faith bargaining on the part of the
Union. In any event, the Union's last postponement of a
meeting (June 28) was followed by a series of postpone-
ments until after expiration of the certification year for
which Respondent, not the Union was responsible. The
parties did not again meet after June 29, despite several
union attempts to arrange meetings in July and August.
4. Respondent's attempt to justify its refusal to meet
with the Union after the employees' August 12, 1966,
poll is likewise without avail. Respondent's position is
predicated on the claim that the employees voluntarily
withdrew from the Union because of the union "inep-
titude" and employee "disenchantment " with union
leadership.
As Respondent points out , there is evidence of em-
ployee dissatisfaction with the Union as far back as
January 1966 when in their meeting with Tucker em-
ployees expressed misgivings concerning the Union's
familiarity with their special problems . The employees
also criticized the Union 's failure to keep them posted on
the negotiations and complained about "faulty" or
"valueless" union cards issued them . The record also
shows that employees reiterated their dissatisfaction in
the October 17, 1966, interview with Company Attorney
Husband . However , Respondent ignores the fact that the
Tucker interview followed on the heels of Production
Manager Pollock 's January 1966 meeting with employees
where Pollock coercively sought to dissuade the Union's
steward (White), one of the "disappointed" employees, to
abandon the Union by warning him that his continued
union adherence "hurt" his chances for advancement;"
that the Tucker interview was tainted with coercive con-
notations , including an outright statement that Respond-
ent "didn 't have to sign a contract at all" and "nobody
could force him to sign one"; and that the poll in which
the employees disavowed the Union came within a week
after Pollock ' s August 1966 meeting with six or seven
pressmen in which Pollock again coercively induced em-
ployees to abandon the Union . Significantly , the em-
ployees cited lack of progress in negotiations as one of
their complaints to Tucker in January 1966. They
stressed that same complaint and cited it as a major
reason for turning down the Union in the October 17,
1966, interview with Husband.
Under all the circumstances, I find that the employees'
defection and the Union ' s majority loss is, at least in sub-
stantial part , attributable to Respondent ' s unfair labor
practices, including its refusal to bargain in good faith
which led to the break in negotiations ; and, therefore, that
Respondent is under a continuing legal obligation to
recognize and bargain with the Union . See Franks Bros.
Company v. N.L.R.B., 321 U.S 702; N.L.R.B. v. Piezo
Manufacturing Corporation, 290 F 2d 455, 456 (C. A. 2).
In view of all of the foregoing , I find on the basis of the
totality and overall course of Respondent ' s conduct, that
Respondent failed and refused to bargain in good faith
with the Union as the duly certified bargaining represen-
tative of its employees , thereby violating Section 8(a)(5)
and (1) of the Act.
J. Conclusions Respecting Respondent's Interference,
Restraint, and Coercion
1 I find and conclude that the following conduct
referred to in the preceding section I and described more
fully supra (sections D and F), constituted independent
violations of Section 8(a)(1) of the Act:
(a) Company President Tucker's January 31 state-
ments to employees at the Nino Restaurant that he "didn't
have to sign a contract at all" and "nobody could force
him to sign one," which, in context of his other state-
48 Respondent relies heavily on five "in a row" union cancellations
between March 1 1 and June 28 (Br, p 18 ) Respondent canceled two
meetings within the same period
41 Pollock made a like observation regarding advancement opportuni-
ties of another employee (Kearney), also described as "management
material " Pollock's remarks were made in the presence of a third em-
ployee (Kelly)
PATENT TRADER, INC. 855
ments and Respondent's total conduct, operated to con-
vey to employees the futility of self-organization.
(b) Tucker's statement at the same meeting, inviting
employees to present grievances to him directly or
through the reactivation of the defunct communications
committee, thereby undermining the position of the em-
ployees' chosen bargaining representative.
(c) Production Manager Pollock's August 1966 state-
ments in a meeting with pressmen in the Muscoot Inn that
he did not believe that Tucker wanted any union and that
"if the air was clear" (referring to ouster of the Union)
there was "a possibility of a very big contract" and "more
work," thereby indicating that unionization of the plant
had an inhibitory effect upon the employees' future work
opportunities, and inducing them to abandon the Union .411
(d) Respondent's unilateral wage increases since
January 28, 1966 (the statutory cutoff date), without
prior notice to and consultation with the Union, con-
stitute independent violations of Section 8(a)(1), as well
as evidence of Respondent's bad faith at the bargaining
table
2. 1 find that Company Attorney Husband's question-
ing of employees on October 17, 1966, was not violative
of Section 8(a)(1).
As found, Husband met with three employees as a
group at Respondent's office. The meeting was informal,
unattended by any management officials. Husband told
the group that the purpose of the interview was to prepare
his case for trial in the pending unfair labor practice
proceeding. All were advised (or reminded of previously
given advice) that they had the right to remain silent. All
were assured that their answers would not affect their em-
ployment at the Company or elsewhere. None was asked
for copies of statements given to the Board investigator
and none was questioned concerning the contents of such
statements, Husband inquiring only as to the "types of
questions" or "areas" in which the Board agent displayed
interest. One employee's (White's) disinclination to speak
on one aspect of the inquiry was respected. The em-
ployees voluntarily related the developments leading to
their "disenchantment" with the Union and to the August
12, 1966, vote to withdraw from it. They also catalogued
their "gripes" against management.
Under all the circumstances, I find that Husband's
questioning of the employees was conducted under
proper safeguards.49 Nor did the questioning reasonably
exceed the necessities of legitimate preparation for trial.
Although the propriety of Husband's request to em-
ployees not to divulge to the Board agent the fact that
they had been interviewed by the Company might have
been questionable in other circumstances, I find that such
request was not unlawfully inhibitory and coercive in this
case, particularly in view of the Board investigator's in-
dicated preference that the interviewees similarly refrain
from telling Respondent that they saw him, the fact that
two of the three employees voluntarily sought out
Husband for the October 17 interview, and the fact that
the third employee (White), who did not so seek out
Husband, was neither criticized nor in any way in-
timidated for persisting in making disclosure.
Accordingly, I conclude that in the circumstances of
this case Husband's questioning of employees for trial
preparation purposes was not a violation of Section
8(a)(l) of the Act.
CONCLUSIONS OF LAW
1. Patent Trader, Inc., is an employer engaged in com-
merce within the meaning of the Act.
2 Westchester County ' Printing Pressmen and
Assistants Union, Local 366, International Association
of Printing Pressmen and Assistants Union of North
America, is a labor organization within the meaning of
the Act.
3. All regular full-time pressmen, pressmen assistants
and apprentices, including curved sterotypers and reel-
men, employed by Respondent at its plant, exclusive of
all office clerical employees, casual part-time employees
in the reelroom, compositors, photoengravers,
proofreaders, linotype operators, mailing room em-
ployees, building maintenance employees, guards,
watchmen and all supervisors as defined in the Act, con-
stitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
4. At all times on and after July 28, 1965, the Union
has been and still is the exclusive representative of all the
employees within said appropriate unit for the purposes
of collective bargaining in respect to rates of pay, wages,
hours of employment, or other conditions of employment,
within the meaning of Section 9(a) of the Act.
5. By refusing on and after January 28, 1966, to bar-
gain with the Union as the exclusive representative of the
employees in the above-described appropriate unit,
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) of the Act.
6. By the foregoing conduct, by coercively inducing
employees to abandon the Union, by undermining the
Union's status as bargaining representative, by conveying
to employees the futility of self-organization, and by uni-
laterally granting wage increases, Respondent has inter-
fered with, restrained, and coerced its employees in the
exercise of rights guaranteed by Section 7 of the Act and
thereby has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I will recommend that it cease and
desist therefrom and take certain affirmative action to ef-
fectuate the policies of the Act. Such affirmative action
will include a requirement that, upon request, Respond-
ent recognize and bargain collectively with the Union as
the exclusive representative of all its employees in the ap-
propriate unit with respect to rates of pay, wages, hours,
and other terms and conditions of employment, and, if an
understanding is reached, embody such understanding in
a signed agreement.
SN Pollock's January 1966 statements (supra, section D) and his and
Tucker's preelection statements and conduct (supra, section B) occurred
beyond the 6-month limitation period and, therefore, are not found viola-
tions
"See Blue Flash Express, Inc, 109 NLRB 591, 592-593, Johnnie's
Poultry Co , 146 NLRB 770, 775, reversed on other grounds 344 F 2d
617 (C A 8), Madison Brass Works , Inc, 161 NLRB 1206, Huttig Sash
& Door Co , Inc, 154 NLRB 1567, 1577-79, Alton Box Board Co Con-
tainerDivision, 155 NLRB 1025,1040-4 1,Joy Silk Mills, Inc , 85 NLRB
1263,enfd 185 F 2d 732 (C A D.C )
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER
Upon the basis of the foregoing findings and conclu-
sions of law, and upon the entire record in the case, I
recommend that Respondent, Patent Trader, Inc., of
Mount Kisco, New York, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Refusing to recognize and bargain collectively in
good faith with Westchester County Printing Pressmen
and Assistants Union, Local 366, International Associa-
tion of Printing Pressmen and Assistants Union of North
America, as the exclusive representative of its employees
in the following appropriate unit with respect to rates of
pay, wages, hours of employment, and other terms and
conditions of employment: All regular full-time press-
men, pressmen assistants and apprentices, including
curved sterotypers and reelmen, employed by Respond-
ent at its plant, exclusive of all office clerical employees,
casual part-time employees in the reelroom, compositors,
photoengravers, proofreaders, linotype operators, mailing
room employees, building maintenance employees,
guards, watchmen and all supervisors as defined in the
Act.
(b) Changing wages, working conditions, or other
terms of employment of its employees in the appropriate
unit without notifying the Union and giving it an opportu-
nity to bargain collectively about such proposed changes;
provided, however, that nothing herein shall be construed
as requiring Respondent to rescind, abandon, or vary any
economic benefit or any term or condition of employment
heretofore established.
(c) Inducing employees to abandon or withdraw from
the Union, undermining the Union's status as bargaining
representative, conveying to employees the futility of
self-organization, and in any like or related manner inter-
fering with, restraining, or coercing employees in the ex-
ercise of rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request, recognize and bargain collectively
in good faith with the above-named labor organization as
the exclusive representative of the employees in the
above-described unit with respect to rates of pay, wages,
hours of employment, and other terms and conditions of
employment, and embody in a signed agreement any un-
derstanding reached
(b) Post at its plant and office in Mount Kisco, New
York, copies of the attached notice marked "Appen-
dix." i0 Copies of said notice, to be furnished by the Re-
gional Director for Region 2, after being signed by Re-
spondent's representative, shall be posted by Respondent
immediately upon receipt thereof and be maintained by
it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 2, in writ-
ing, within 20 days after receipt of this Decision, what
steps have been taken to comply herewith.'
IT IS FURTHER RECOMMENDED that the complaint be
dismissed in all other respects.
50 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
51 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director,
in writing, within 10 days from the date of this Order, what steps Re-
spondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our em-
ployees that:
WE WILL, upon request, recognize and bargain col-
lectively with Westchester County Printing Press-
men and Assistants Union, Local 366, International
Association of Printing Pressmen and Assistants
Union of North America, as the exclusive represen-
tative of the employees in the following appropriate
unit, with respect to rates of pay, wages, hours of em-
ployment, and other conditions of employment, and
embody in a signed agreement any understanding
reached. The bargaining unit is:
All regular full-time pressmen, pressmen assist-
ants and apprentices, including curved stereo-
typers and reelmen, employed by Respond-
ent at its plant, exclusive of all office clerical
employees, casual part-time employees in the
reelroom, compositors, photoengravers,
proofreaders, linotype operators, mailing room
employees, building maintenance employees,
guards, watchmen and all supervisors as defined
in the Act.
WE WILL NOT change wages, working conditions,
or other terms of employment of our employees in
the above-described unit without notifying the
above-named Union, and giving it an opportunity to
bargain collectively about such proposed changes;
provided, however, that nothing herein shall be con-
strued as requiring us to rescind, abandon, or vary
any term or condition of employment heretofore
established.
WE WILL NOT induce employees to abandon or
withdraw from the Union, undermine the Union's
status as bargaining representative, convey to em-
ployees the futility of self-organization, or in any like
or related manner interfere with, restrain, or coerce
employees in the exercise of rights guaranteed in
Section 7 of the National Labor Relations Act.
PATENT TRADER, INC.
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 5th Floor,
Squibb Building, 745 Fifth Avenue, New York, New
York 10022, Telephone 751-5500.