St. Louis Typographical Union No.8, ITU

National Labor Relations Board - Board Decisions

Nov 17, 1964

149 N.L.R.B. 750 (N.L.R.B. 1964)

750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER
I hereby recommend that the complaint in the instant matter be dismissed in its
entirety. 1
St. Louis Typographical Union No. 8, affiliated with Inter-
national Typographical Union , AFL-CIO and Union Employ-
ers' Section of the Graphic Arts Association of St. Louis, Inc..
Case No. 14-CB-1135. November 17, 1964
DECISION AND ORDER
On March 26, 1964, Trial Examiner Frederick U. Reel issued his,
Decision in the above-entitled proceeding, finding that the Respondent
had not engaged in any unfair labor practice and recommending that
the complaint herein be dismissed in its entirety, as set forth in the at-
tached Trial Examiner's Decision. Thereafter, the General Counsel
and the Charging Party filed exceptions to the Trial Examiner's Deci-
sion and supporting briefs, and the Respondent filed a brief in support
of the Trial Examiner's Decision.
The Board has reviewed the rulings made by the Trial Examiner 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, the briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner as modified herein.
The facts are essentially undisputed. In brief, they show that the
Association or its predecessor has bargained for many years with the
Respondent and four other printing trade unions. In September 1963,
the Association and the Respondent met to negotiate a modification of
their agreement. At this meeting the Association informed the Re-
spondent that at the next and successive meetings the Association would
have a court reporter present to make a verbatim transcript of the
bargaining. The Respondent offered to meet without the stenographer,
but the Association insisted on his presence. At a meeting between the
parties in November 1963, at which a stenographer was in attendance,
the Respondent offered to discuss the question of the reporter's pres-
ence "off the record" or in private, but the offer was refused and the
meeting terminated. The Respondent indicated that had its offer been
accepted, it would have explained its policy not to negotiate in the
presence of a reporter and that it would not deviate therefrom. The
Association field charges alleging that Respondent's refusal to meet in
the presence of the stenographer violated Section 8 (b) (3).
149 NLRB No. 71.
ST. LOUIS TYPOGRAPHICAL UNION NO. 8, ITU 751
The evidence showed that the Association's bargaining with the other
printing trade unions was conducted in the presence of a reporter. In
1952 or 1953, a verbatim transcript of bargaining between the Associa-
tion and the Respondent had also been made, but the practice was
thereafter discontinued at the Respondent's request because of its belief
that a commitment to keep the transcript confidential had been vio-
lated. In the decade following, collective bargaining had taken place
without a stenographer being present. Since 1951, the parties' con-
tracts have neither permitted nor prohibited the making of verbatim
transcripts of bargaining sessions.
The Trial Examiner evaluated the merits of the Association's rea-
sons for requiring the transcripts against those advanced by the Re-
spondent in opposition to such practice and found that both parties had
taken their positions in good faith. He noted that there was a diverg-
ence of opinion among respected. experts in the field of labor relations
on the desirability of such procedure, and suggested that the Board's
decision in Reed & Prince Manufacturing Company 1 may be distin-
guishable from the instant' proceeding on the ground that the use of the
reporter in that matter was considered in a framework of bad-faith
bargaining, whereas no element of bad faith could be found on the part
of either the Association or the' Respondent in the instant case. The
Trial Examiner nevertheless concluded that his decision was controlled
by what he interpreted as the Board's policy statement in Reed cC
Prince concerning the effect of a court reporter. He therefore found
that the complaint herein must be dismissed.
In finding the employer in Reed d Prince guilty of bargaining in bad
faith in violation of Section 8(a) (5), the Board noted that insistence
on the presence of a stenotypist was not usually the approach taken in
good faith by a participant in order to reach agreement but "was more
consistent with the building of a defense to anticipated refusal to bar-
gain charges." 2
As indicated by the Trial Examiner, the Board's language in Reed cC
Prince regarding the effect of the presence of a stenographer must be
read in the context of other evidence of bad faith which was present in
that case. In subsequent decisions, the legality of insisting upon a
stenographic transcript at bargaining sessions has been determined in
the light of the entire bargaining context rather than on a per se basis .3
1 96 NLRB 850, enfd 205 F. 2d 131 (C A 1), cert denied 346 U S 887.
9 Reed & Pruzce Manufacturing Company, supra , at 854. The Trial Examiner herein
noted that , in directing enforcement of that decision , Judge Magruder stated that although
the court agreed with the ultimate conclusion that Respondent was guilty of bargaining
in bad faith , it did not concur in the Board ' s opinion regarding the effect of the
stenotypist.
3 See Allis - Chalmers Manazzfacturing Company, 106 NLRB 939 , 950, East Texas Steel
Castings Company, Inc., 108 NLRB 1078, 1084-1085
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Similarly, in cases dealing with charges of a refusal to bargain arising
from an adamant insistence on other conditions preliminary to actual
bargaining, such as the determination of the time 4 or place of bargain-
ing,5 the Board has avoided establishing rigid standards favoring any
particular proposal, but has, rather, attempted to examine each case in
terms of whether or not the positions were taken to avoid or frustrate
the legal obligation to bargain.6
In the instant case, as noted by the Trial Examiner, it is clear that
respected authorities differ in their opinion of the effect of making a
stenographic transcript in collective-bargaining sessions .7 It is not our
intention here either to endorse or condemn the practice of utilizing a
stenographer during bargaining negotiations. Rather, in this matter
we shall undertake to determine only whether, in assuming its position,
the Respondent acted in a manner consistent with the principles of
good-faith bargaining required by the Act.
The circumstances of this case, to wit, the long history of harmonious
relations between the parties, the practice of not recording bargaining
sessions for 10 years, the Respondent's apprehension that a record could
redound to its disadvantage based on what it regarded as a breach of
confidence by the Association when this procedure was used in the past,
the restraints Respondent felt would be imposed upon its representa-
tives by the presence of a stenographer, and Respondent's willingness
to discuss this issue with the Association, all demonstrate Respondent's
good faith. It is wholly consistent with the purposes of the Act that
the parties be allowed to arrive at a resolution of their differences on
preliminary matters by the same methods of compromise and accom-
modation as are used in resolving equally difficult differences relating
to substantive terms or conditions of employment. In neither case will
we presume to pass upon which is the preferable position or to dictate
terms of an agreement, but will, rather, concern ourselves only with
whether the parties are acting in good faith. As Respondent acted in
good faith, we,find that it did not refuse to bargain in violation of the
Act. Accordingly, we shall dismiss the complaint.
4 Kohler Co ., 128 NLRB 1062 , 1084; Exchange Parts Company , 139 NLRB 710, 715.
5 Mid-America Transportation Company, 141 NLRB 326, 335 ; McCulloch Corporation,
132 NLRB 201, 205.
6 As observed by Justice Frankfurter in his concurring opinion in N.L.R B. v. Insurance
Agents' International Union, AFL-CIO (Prudential Ins. Co ), 361 U.S. 477 , 508, it is for
the Board to weigh any inference as to a Respondent's good faith as part of the totality
of inferences which may appropriately be drawn from the entire conduct of the Respond-
ent. The state of mind with which the party charged with a refusal to bargain entered
into and participated in the bargaining process is the ultimate issue upon which we must
act in each case.
7In addition to the sources cited by the Trial Examiner in his footnote 2, see Common-
wealth of Massachusetts , "Report of the Governor's Labor Management Commission"
(H. Doe. 1875 , March 14, 1947 ) ; "Preparing for Collective Bargaining ," National In-
dustrial Conference , Inc. (1959 ), p. 40, et seq.; "The Impact of Collective Bargaining on
Management," Slichter , et al., The Brookings Institute ( 1960), p. 938.
ST. LOUIS TYPOGRAPHICAL UNION NO. 8, ITU 753
[The Board dismissed the complaint.]
MEMBERS FANNING and BROWN, concurring:
We join in the dismissal of the complaint in this case but disagree
with the manner in which the majority opinion disposes of the issues
presented. In our view, it is a disservice, not only to the parties herein
but also to the very statutory principles we administer, to elevate to the
status of mandatory collective bargaining those disagreements involv-
ing preliminary arrangements for or the mechanics of bargaining. By
holding that these matters are to be solved by the same method used to
resolve differences relating to substantive contract terms, our colleagues
permit negotiations to flounder before they even begin. This holding
would also place another tool of avoidance into the hands of those who
would use all available means to thwart the collective-bargaining
process.
The Act imposes upon the parties the mutual obligation "to meet at
reasonable times and confer in good faith with respect to wages, hours,
and other terms and conditions of employment ...." Any difficulties
encountered in arranging the procedures and particulars under which
the parties meet and confer are completely subordintate to the obliga-
tion to bargain. The proposal to utilize a reporter in all bargaining
sessions which was advanced by the employer as a precondition to dis-
cussion of substantive matters certainly "settles no term or conditions
of employment" 8 and does not qualify under the Act as a subject which
a party is privileged to force to impasse. Nevertheless, these circum-
stances make it clear that our colleagues are holding, in effect, that a
party may insist upon dictating arrangements concerning preliminary
matters to the point of impasse. Since the Employer in the instant case
would not even consider the Union's reasons for opposing the proposed
method, insistence upon this arrangement effectively precluded any col-
lective bargaining and thereby left no solution available other than
complete capitulation.
To appreciate the immediate impact of the instant holding, one need
only observe that the first problem that will face the parties as a result
of this decision is whether a stenographer shall be present at the con-
ferences which must be held to resolve the preliminary question of
whether a stenographer will be used to record the regular bargaining
sessions.9
Equally as basic in our disagreement with the approach subscribed
to by our colleagues is the conviction that failure to define and proscribe
practices which are inimical to the purposes of the Act represents an
8 See N.L.R.B. v. Wooster Div. of Borg-Warner, 356 U.S. 342, 350.
9 For a similar sort of problem, see the issue of "Which came first, the chicken or the
egg?"
770-076-65-vol. 149-49
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
abdication of the Board's responsibility to encourage those procedures
fundamental to amicable adjustment of industrial disputes. If we are
to foster collective bargaining as a process by which industrial strife
may be minimized, we must demonstrate an awareness of the successful
practices of collective bargaining as they evolve. In our judgment, a
realistic discharge of this duty requires that we demand of the parties
an approach to their obligation which is conducive to successful and
fruitful bargaining.
Although, by mutual consent, parties have engaged reporters to
make verbatim records of collective-bargaining sessions, many author-
ities and practitioners in the field are of the opinion that the presence
of a stenographer at such meetings has an inhibiting effect. The use of
a stenographer or a mechanical recorder to create a verbatim transcript
does tend to encourage negotiators to concentrate upon and speak for
the purpose of making a record rather than directing their efforts
toward a solution of the issues before them. The existence of mutual
trust and confidence between the parties is basic to an effective and hard
monious collective-bargaining relationship.1° Yet, as in the instant
case, the very suggestion that a verbatim record be made may raise sus-
picions as to the ultimate use for which it is to be put and, thereby,
inject into the relationship an added basis for mistrust and conten-
tion." Imposing a stenographer upon a negotiator who, in good faith,
believes that the presence of the reporter will only inhibit his ability to
bargain effectively can only serve to undermine and seriously impair
the collective-bargaining process.12 Recent studies indicate that both
management and unions recognize these inhibiting factors and pre-
dominantly tend to avoid the use of a stenographer.13
The very nature of the proposal to make a stenographic transcript
of all bargaining sessions is such that the matter should be weighed
carefully before it is advanced and, if any opposition thereto is ex-
pressed, it should be withdrawn. An adamant insistence upon such a
demand in the context of present day bargaining is itself, in our
opinion, a rejection of the bargaining duty. We would, therefore, hold
that requiring a transcript, whether at the option of one of the parties,
as proposed by the Employer here, or by means of collective bargain-
ing, as suggested by the majority decision, constitutes an undermining
of the collective-bargaining relationship. Accordingly, we would find
10 "Causes of Industrial Peace," National Planning Association , 1953, at 93
n See Commonwealth of Massachusetts , "Report of the Governor 's Labor Management
Commission ," supra, at 14
13 Both the Federal Mediation and Conciliation Service and the National Mediation
Board have a practice of not utilizing the services of a stenographer unless both parties
request such procedure
13 See "Preparing for Collective Bargaining ," supra, at 40 , et seq., indicating that only
24 of 239 employers surveyed utilized some form of verbatim transcript . See also "The
Impact of Collective Bargaining on Management ," supra.
ST. LOUIS TYPOGRAPHICAL UNION NO. 8, ITU 755
that by refusing to capitulate to the Employer's demands for a stenog-
rapher Respondent Union did not fail to meet its bargaining obliga-
tions under the Act.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This case , heard before Trial Examiner Frederick U. Reel at St. Louis, Missouri,
on February 24 and 26, 1964,1 presents the question whether a labor organization
violates Section 8 (b) (3 )"of the Act when it refuses to accede to an employer 's demand
that a court reporter be present and make a stenographic record of collective -bargain-
ing negotiations.
Upon the entire record in this proceeding , and after due consideration of the
helpful briefs filed by each of the parties, I make the following:
FINDINGS OF FACT
1. THE EMPLOYERS AND THE LABOR ORGANIZATION INVOLVED
The Charging Party in this case is an association of employers engaged in the
printing industry in and about St. Louis. The members of this association perform
services valued in excess of $50,000 for customers located outside the State of
Missouri, and purchase annually from outside that State goods and services valued
in excess of $50,000. The Charging Party, hereinafter referred to as "the Associa-
tion," has been authorized to engage on an associationwide basis in collective bargain-
ing with the various labor organizations that represent the employees of the association
members, and to enter into collective-bargaining agreements binding on association
members. On these facts, established by the pleadings, the parties agreed and I find,
that the Association is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act. Likewise established by the pleadings, and found herein, is the
status of the Respondent as a labor organization within the meaning of Section 2(5)
of the Act, and as the statutory bargaining representative of the composing room
employees of the association members.
II. THE ALLEGED UNFAIR LABOR PRACTICE
A. Background
For many years the Association or its predecessor associations have bargained for
their members on an associationwide basis with five printing trades unions. Among
these unions has been the Respondent.
For at least the last decade, the Association has kept a verbatim stenographic
transcript of its contract negotiating meetings with all of the labor organizations with
which it deals-with the sole exception of the Respondent. The Association has
used these transcripts to refresh recollection during the course of bargaining as to
what has transpired theretofore, to enable members of its bargaining committees who
happen to miss a bargaining session to make themselves current, for reference by
members of the Association who wish to know what their bargaining representatives
are doing for them, and to free the bargaining representatives themselves from the
chore of note taking.
The original transcripts themselves are physically kept by the Association in its
offices. In some instances, the cost of taking the transcript is shared between the
Association and the union, and in other instances the Association bears the entire
cost. The Association has a transcript kept whether or not there is agreement to
share the expense. Bargaining meetings are chaired, by custom, by the Association's
bargaining committee chairman, and the stenographer acts under his direction. The
transcripts are not signed, approved, or adopted by the unions; they are not, of course,
taken under oath; they do not become part of any contract achieved; and no union
has ever been asked to assume responsibility of any kind for the content or accuracy
of the transcripts.
Sometime in 1952 or 1953, a transcript was kept of the bargaining negotiations
between the Association and the Respondent, but the practice was discontinued-
apparently in response to an` objection made by Respondent predicated upon Re-
spondent's belief that the Association had violated an undertaking to keep these
'All other dates herein refer to the year 1963 unless otherwise noted.
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
transcripts confidential, and had considered using them in a proceeding before the
Board. In the decade preceding the 1963 negotiations, the subject of taking tran-
scripts had never been pressed in bargaining between Respondent and the Association,
although the latter's representatives had made occasional references to the subject
in the intervening years, particularly when the notes taken by the respective parties
did not "jibe." The chairman of the employer committee that bargains with Re-
spondent, Bernard Meyer, testified that at one time Respondent's president, Harry
Russell, had stated that never so long as he continued to be president would the
Respondent meet with the Association in the presence of a court reporter.
Since 1951 no collective-bargaining agreement between the Association and Re-
spondent has either permitted or prohibited the taking of stenographic transcripts of
bargaining sessions or dealt with the subject in any other way. No evidence was
offered that there has been any other agreement touching on the subject; on the
contrary, witnesses for Respondent testified affirmatively that there has been none.
B. Negotiations for a contract in 1963
On September 3, 1963, Respondent and the Association met to commence negotia-
tion of modifications of the collective-bargaining agreement between them that was
due to terminate at the end of that month. The meeting was largely devoted to a
reading and explanation of Respondent's contract demands by John O'Donnell,
chairman of Respondent's bargaining committee. Harry Russell was not present.
None of the union proposals were at that time accepted or rejected by the Associa-
tion; the proceedings at the September 3 meeting were preliminary and expository in
nature, with no substantive issue being joined between the parties.
At the conclusion of this meeting, Chairman Meyer advised his opposite number,
O'Donnell, that at their next and all succeeding meetings the Association would have
a court reporter present to keep a verbatim stenographic transcript of the bargaining.
About a week later Meyer telephoned O'Donnell to set a further meeting date.
O'Donnell said, "Well, we are going to be unable to meet with you due to the fact
that the Union had voted if we would have a court reporter, we would not meet with
you." Meyer said they should try to get together, but that the Association would
insist upon keeping the transcript, and the conversation terminated inconclusively
A day or so later, Harry Russell returned a telephone call from Meyer. Russell
told Meyer that he had "heard the news" from John O'Donnell and that he "guessed
we would be pounding the bricks." Russell stated that he was not threatening strike
at that time, as Respondent did not then have a strike sanction from its International.
Russell said that Respondent would be glad to meet with the Assocaition provided
no stenographer was present, and Meyer said the Association would meet with Re-
spondent's committee, but intended to have a stenographer present.
The following morning Meyer telephoned Russell and proposed that the parties
meet on Thursday, September 19, 1963, stating, however, that a stenographer would
be present. Russell said that his committee would be glad to meet without a stenogra-
pher, but not with one, and the conversation terminated.
On September 19, 1963, at 10 a.m., members of the Association's bargaining
committee gathered at the Association's meeting room. About quarter past the hour,
Meyer telephoned Russell and asked where Russell's committee was. Russell in-
quired if a stenographer was present. Upon receiving an affirmative answer, Russell
said that he could not (or would not) bring his committee, but he offered to come
alone. After consulting with his committee members, Meyer refused this offer,
telling Russell that Meyer's committee believed Russell would not be authorized to
bargain in the absence of his committee, and that the Association's committee was
there in order to bargain for a contract.
Later that day, Meyer wrote Russell a letter recounting that the Association's
committee had been present to negotiate a contract that morning and Respondent's
committee had not appeared; that Meyer had thereupon telephoned Russell, and that:
Your reason for the committee's absence, was due to the Employer's indicating
that a court reporter would be present at the meeting to take the meeting minutes.
Our committee is anxious to meet with your committee at the earliest possible
time to negotiate a contract; thus we would appreciate your immediate reply for
an agreeable meeting date and time.
To this, by letter of September 24, 1963, Russell replied, in pertinent part:
I am in receipt of your letter of September 19, 1963....
The Union is anxious and willing to meet with your group at your earliest
convenience. However, we do not agree that a court reporter should be present
to take the minutes of the meeting. I am sure this matter can be resolved to the
satisfaction of both groups.
ST. LOUIS TYPOGRAPHICAL UNION NO. 8, ITU 757
On November 13, 1963 , at the suggestion of Russell , the parties met. On this
occasion a stenographer employed by the Association took a verbatim transcript, and
the transcript is in evidence . Respondent 's committee was augmented by the pres-
ence of Respondent 's International representative , Robert F. Ameln . The transcript
shows that the meeting was abortive. At the outset, Ameln demanded to go "off the
record," or in the alternative, to step outside the room and discuss the situation
privately with Meyer. He testified that if either of these requests had been granted,
he would have discussed with Meyer whether a reporter should be present, and
would have tried "to talk him out of this." Both requests were refused and nothing
further was accomplished, as the Union refused to discuss the proposed contract if
the conference was to be transcribed and the Association refused to negotiate if it
was not. Ameln stated at the conclusion of the abortive conference that it was his
policy not to negotiate in the presence of a court reporter and he was not ready to
deviate therefrom.
C. Analysis and conclusions
The bargaining impasse in this case arises because the Association adamantly in-
sists on a stenographic transcript of the bargaining sessions , and Respondent has
adamantly refused. Although Respondent has suggested, in the coure of this litiga-
tion , that it regards the making of a transcript as "bargainable," the record discloses
no occasion upon which any representative of Respondent stated to any representative
of the Association the conditions under which Respondent would consent to the
making of a transcript . In terms of strict logic, it would seem that any of three
results is possible : either one party violates the law by insisting on a transcript as a
condition to bargaining, or one party violates the law by insisting on "no transcript"
as a condition to bargaining , or neither party violates the law by insisting (in good
faith ) on its position , and the matter is "bargainable-" i.e., each party may law-
fully insist on its position to and beyond impasse. The posture of this case , however,
requires us to reach only one issue: does a party violate the law by insisting on "no
transcript" as a condition to bargaining?
The issue is presented on a record which might fairly be termed "antiseptic" or
"sterilized" if not "sterile." No possible finding of "bad faith" can be made against
the Association which regularly makes transcripts of its negotiations with other
unions, and no such finding can be made against Respondent which has a long history
of a harmonious bargaining relationship with the Association and urges only that
that relationship be perpetuated, as in the past, without benefit of transcripts. Yet,
apparently in the best of faith, each party adheres stubbornly to its insistence on
what is, at best, a collateral or procedural matter, and each party impliedly threatens
that a longstanding industrial peace may be ruptured over a matter whose relation-
ship to terms and conditions of employment is tangential at most.
In support of the argument that a party to the negotiations may properly insist
on a transcript, General Counsel and the Association advance a number of appealing
reasons. They point out that such transcripts can be of great utility in the course of
bargaining, facilitating reference to points agreed on or positions taken at earlier
sessions , freeing the actual bargainers from laborious note taking , and enabling
persons who are absent from a session to "catch up" on what transpired. Such
transcripts, moreover, can be of great value even after the bargaining has been con-
cluded. If a contract is reached, the question whether a particular subject matter
was discussed in the course of negotiations may be of great importance in issues
arising after execution of the contract. See, e.g., The Jacobs Manufacturing Com-
pany, 94 NLRB 1214, enfd. 196 F. 2d 680 (C.A. 2). If a contract is not reached,
the question whether a particular party was negotiating in good faith may turn, in
part at least, on statements made in the course of bargaining Cf. Cummer-Graham
Company, 122 NLRB 1044, 1048-1049, 1071, set aside 279 F. 2d 757, 760-761
(C.A. 5). In either event a stenographic transcript of the negotiations can be of
marked assistance to the parties, the Board, and the courts in determining what
was said.
The considerations urged by Respondent appear to me far less compelling. That
such a transcript may be used in subsequent Board or court proceedings seems to
me an argument for, not against , keeping a record . If what is said at the bargaining
conferences becomes relevant in a subsequent proceeding , an impartial court re-
porter's transcript taken at the time would seem preferable to the recollection of
interested parties. By the same token , the argument that the statements of relatively
untutored or unprofessional representatives of labor do not "look good" on a record
when contrasted with the polished speech of management representatives carries
little force . Even if we assume its premise , we return to the proposition that if
future attention is to be paid to what was said in the negotiations , the witnesses will
be asked to repeat , as nearly as possible, what was said , without rephrasing it to
.758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
elevate the tone or diction of the speaker. Respondent also urges that a stenographic
transcript may not be perfect, but this obvious truth is of little avail, for in subsequent
use of the transcript the way will be open for correction or for express reservation
as to its accuracy at particular points.
Of somewhat more appeal are two additional arguments of Respondent: that the
Association would control the stenographic report and its contents because the
chairman of the meeting, an Association representative, would direct when discus-
sions were to be "off the record," and that the representatives of each party would
be talking "for the record" and weighing their words so carefully as to inhibit the
progress of the bargaining. The first of these reasons, however, boils down to a
recognition that the transcripts would not be complete recitals of everything that was
said : if anything of importance was not "on the record" it could be supplied by
testimony at the time of any subsequent use of the transcript. And I am far from
persuaded that a careful weighing of words and a consideration of how they may
strike others later reviewing the negotiations would hinder bargaining; it might rather
in the long run advance it.2
In short, as an original proposition, I would be inclined to sustain the complaint
and find that one party to the negotiations cannot lawfully condition its readiness to
negotiate on the absence of a court reporter It would seem to me, as an original
proposition, that an employer or a union may take notes at negotiations, may include
in its entourage of "bargainers" one whose sole function is taking notes, may have an
expert stenographer in its employ for that purpose, and hence may, if it chooses,
retain an independent stenographer to the same end.
But the matter at hand is not "an original proposition." On the contrary, it re-
ceived the express attention of the Board in Reed & Prince Manufacturing Company,
96 NLRB 850, 854, enfd. 205 F. 2d 131 (C.A. 1) cert. denied 346 U.S. 887. In that
case, the Board, in the course of finding that an employer was guilty of bad-faith
bargaining , said in part:
3. At each of the bargaining sessions with the Union the Respondent insisted,
over the Union's strenuous objection, on having a stenotypist take down a
verbatim transcript of the proceedings. This is not the approach usually taken
by a participant in collective bargaining ... in good faith to reach an agreement;
it is more consistent with the building of a defense to anticipated refusal to
bargain charges. The presence of a stenographer at such negotiations is not
conducive to the friendly atmosphere so necessary for the successful termination
of the negotiations, and it is a practice condemned by experienced persons in the
industrial relations field. Indeed, the business world itself frowns upon the
practice in any delicate negotiations where it is so necessary for the parties to
express themselves freely. The insistence by the Respondent in this case upon
the presence of a stenotypist at the bargaining meetings is, in our opinion, further
evidence of its bad faith. [Emphasis supplied.]
To be sure, Reed & Prince can be distinguished on the ground that the insistence on a
transcript there was part of a general aura of bad faith. It may also be noted that
in enforcing the Board's Order in that case, the First Circuit, speaking through its
eminent chief judge, expressly disclaimed agreement with the passage quoted above.
See 205 F. 2d at 139. But, as the Board has forcefully observed, the law, so far as
Trial Examiners are concerned, is to be found in Board pronouncements, even where
disapproved by courts of appeals. See Insurance Agents' International Union AFL-
CIO (The Prudential Insurance Company of America), 119 NLRB 768, reversed on
other grounds 260 F. 2d 736 (C.A.D.C.), and 361 U.S. 477; Iowa Beef Packers,
Inc., 144 NLRB 615.
Judge Frank's frequent characterization of the role of a court of appeals judge
vis-a-vis the Supreme Court is equally applicable to that of a Trial Examiner vis-a-vis
the Board; he is "merely a reflector serving as a judicial moon," and it is his "function
[in cases of this nature] to interpret not the statute directly but the [Board's] inter-
2 Opinions on this matter differ widely. Senator Morse, a recognized authority In the
field of labor relations, once stated: "I cannot think of anything that would discourage
good faith bargaining more than to think that every word that was being spoken was
being taken down as you maneuvered for position." Hearings before the Senate Sub-
committee on Labor and Labor-Management Relations on the Reed & Prince Mfg. Co Labor
Dispute, 82d Cong, 1st sess, July 31 and August 1, 1951 (G.P.O. 1951), p 101. The
existence of divergent views on this matter is noted in Chamberlain, "Collective Bargain-
ing," pp. 85-86 (McGraw=Hill, 1951), and in Smyth and Murphy, "Bargaining With
Organized Labor," pp. 45-48 (Funk & Wagnalls, 1948).
UNITED ASSOCIATION, PLUMBERS LOCAL 449 759
pretation of the statute." McComb v. Utica Knitting Co., 164 F. 2d 670, 673 (C.A. 2),
and cases cited in footnote 5. The Board has said that the presence of a stenographer
at bargaining negotiations is not conducive to the successive termination thereof and
is a practice condemned by experienced persons. In the light of this language, I
cannot find that Respondent violated its bargaining obligation by refusing to nego-
tiate under such a self-defeating and condemned practice.3
In view of the Board's language in Reed & Prince, I feel compelled to dismiss the
complaint. It may be, of course, that "the matter [will] not appear to [the Board]
now as it appears to have appeared to [the Board] then." Andrews v. Styrap, 26
L.T.R. (N.S.) 704, 706, as quoted by Justice Jackson concurring in McGrath v.
Kristensen, 340 U.S. 162, 178. It may also be that other courts will join the First
Circuit in rejecting the Board's view in Reed & Prince. Such a rejection would not
conclusively settle the issue here, for a holding that it is permissible to insist on a
stenographic transcription does not require a holding that it is impermissible to insist
that none be made. As to that I can only say that if free of the Reed & Prince rule,
I should find the violation here, for if an employer (or a union) insists on making a
verbatim record of the negotiations, it would seem to me that this should be within
its prerogative and a contrary insistence should not be permitted to prevent the bar-
gaining from going forward. But these are matters which must await higher authority,
as "uniform and orderly administration" (Iowa Beef, supra) requires me to follow
the Board in Reed & Prince.
CONCLUSION OF LAW
Respondent's refusal to participate in bargaining negotiations which were to be
stenographically transcribed was not an unfair labor practice.
RECOMMENDED ORDER
The complaint herein should be, and hereby is, dismissed.
"The court's decision In N.L.R.B. v. Corsicana Cotton Mills, 178 F. 2d 344, 347 (C.A. 5),
Is distinguishable in that the court, in directing that a transcript of bargaining negotia-
tions be kept, was merely directing the negotiators to continue a practice they had thereto-
fore observed.
United Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United States
and Canada, Local 449, AFL-CIO [Joseph B. Fay Company]
and Constructors ' Association of Western Pennsylvania and
International Hod Carriers ', Building and Common Laborers'
Union of America , Local 1058, AFL-CIO. Case No. 6-CD-160.
November 17, 1964
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding under Section 10(k) of the Act following a
charge filed by Constructors' Association of Western Pennsylvania,
herein called the Association, alleging that United Association of Jour-
neymen and Apprentices of the Plumbing and Pipe Fitting Industry
of the United States and Canada, Local 449, AFL-CIO, herein called
the Steamfitters, had violated Section 8(b) (4) (D), by threatening,
coercing, or restraining Joseph B. Fay Company, herein called the
Employer, for the purpose of compelling it to assign certain work to
employees represented by the Steamfitters, rather than to employees
represented by International Hod Carriers', Building and Common
149 NLRB No. 47.