Before DUFFY, FINNEGAN and LINDLEY, Circuit Judges.
DUFFY, C.J.: The National Labor Relations Board (hereinafter called Board) petitions for enforcement of its order of October 18, 1951, against The Jackson Press, Inc. (hereinafter called respondent). The Board found that respondent interfered with, restrained, and coerced its employees in the exercise of their rights under the Act,*fn1 refused to bargain with representatives of its employees, and unlawfully refused to reinstate its employees who had gone out on strike.
Respondent is a job printing company located in Chicago, employing 50 to 60 people, and has an integrated plant operating typesetting and binding machines, as well as printing presses. The press, bindery and shipping sections are situated in a large room of the approximate dimensions of 100 feet by 100 feet. The printing presses occupy about 60% to 70% of the space in this room, the balance being devoted to the bindery and shipping operations. The presses, and the cutting and folding machines are not intermingled, but neither partitions nor walls separate these departments.*fn2 John R. Thornton was the president of respondent. Bernard I. Stecki was vice president and general manager, and supervised the firm's production activities. Respondent employed a supervisor or foreman named Bart Aiani, who supervised not only the press employees but also other production departments.
The unions involved are locals of the International Printing Pressmen and Assistants Union of North America. In the Chicago area Local 3 asserts jurisdiction over pressmen and apprentice pressmen; Local 4 asserts jurisdiction over press assistants and apprentice press assistants. Local 4 has also asserted jurisdiction over and bargained for cutters and folders in at least six other printing plants in the Chicago area. Local 3 and Local 4 often conducted organizing campaigns jointly. One Finkel was organizer for Local 3, and Hetzer and Doyle were organizer and president respectively of Local 4.
On September 18, 1949, a substantial number of the pressroom employees attended an organization meeting called by Finkel and Hetzer. The following day these two men, in addition to Doyle, called on Thornton and stated that the employees of "The Jackson Press Room" had designated them as their bargaining agents. This was the first knowledge that the officers of respondent received concerning union organizational activities in the plant. Thornton suggested he desired an opportunity to consult his attorney, and a meeting was arranged for the following day, in downtown Chicago, between the three union officials and Thornton, Stecki, and Attorney Doesburg.
At the meeting on September 20 Hetzer advised Thornton that the unions represented a majority of the pressroom employees. After some discussion either Attorney Doesburg, representing respondent, or a union official suggested that the representation question go to the Board for resolution. As the trial examiner found, "At least by tacit understanding, the parties agreed that the recognition question would be deferred until the unions established their claim of representation by use of the Board's procedures." At this meeting Thornton asked Hetzer for proof of majority representation, and Hetzer handed him a list of employees designated, "Day Shift," and asked whether the individuals listed were respondent's pressroom employees. The name of Foreman Aiani was included. Thornton, recognizing only a few names on the list, turned it over to Stecki who agreed that the persons listed "were employed in the pressroom." On the same day the unions wrote a letter to respondent stating that they represented "a substantial majority of the employees in the pressroom," and requested recognition as "the sole and exclusive bargaining agency for the above named unit."
On the afternoon of September 20 the unions filed with the Regional Office of the Board a representation petition describing the appropriate unit as "all journeymen and apprentice pressmen, and all press assistants and apprentice press assistants." It was not until the Regional Office notified the respondent of the filing of this petition, which notice was received on September 23, that respondent had any notice that the unit claimed excluded the cutters and folders who worked in the pressroom, as well as the maintenance man who usually worked in that room.
On October 12, the Regional Office of the Board held a conference with the parties to discuss the procedure for handling the union petition. Attorney Doesburg questioned both the propriety of a single unit being represented jointly by two locals, and also the composition of the unit claimed in the petition. The possibility of a consent election being held was discussed, but Doesburg informed the group that he was going to be absent from the city during November and that the election could not be held before December. A field examiner was called in, and he explained to the group that under the schedule of the Regional Office then existing a hearing could not be held for five or six weeks, which meant that an election could not be conducted before December or January. Union officials claimed that they were being pushed around and threatened respondent with "a sidewalk fight." On October 15, three days after the conference, the union held a meeting of the employees who had signed up and the employees there passed a resolution for a strike. On October 18 the union withdrew its petition for an election and without further notice fifteen employees went out on strike. Although the operations of the pressroom were considerably curtailed, it continued to function and replacements were made from time to time for those employees who had gone on strike. By November 2, 1949, all such vacancies had been filled. On March 31, 1950, the strikers unconditionally applied for reinstatement. Respondent replied on May 1 stating that the strikers would be given preference, in order of their application, only as jobs became available.
In the period prior to the strike, Thornton twice sent letters to each pressroom employee. In his letter of September 22 he pointed out that employees had the right to belong or not to belong to a union, and expressed hope that they would not join a union and thus preserve the right of each individual to deal directly with management. On September 29 he wrote another letter, pointing out that union shops operated under rigid apprentice and seniority rules and contrasting conditions in respondent's plant with those in plants operated under union rule. The tone of the letters being temperate, the trial examiner found that their contents were protected by the provisions of Sec. 8(c) of the Act. The Board adopted this finding.
The critical issue in this case is whether there is any substantial evidence to support the Board's conclusion (contrary to the finding of the trial examiner) that respondent's refusal to bargain with the unions was unlawful, and was caused not by a good faith doubt of the union's majority but rather by a desire to gain time within which to dissipate the union's majority, or as sometimes stated, to gain time within which to undermine the union. This case was decided by a panel of three members of the Labor Board. On this critical question, Member Reynolds agreed with the trial examiner. The other two Board members reached a contrary conclusion. They found that not only did the respondent unlawfully refuse to bargain with the unions on September 20 and September 22, but also "at all times thereafter."
Considering first the period prior to the strike, we think that the Board's finding that the respondent unlawfully refused to bargain collectively with the union on September 20 and September 22 is not only unsupported by substantial evidence on the record as a whole, but that it is contradicted by all of the evidence in the record.
When an employer is faced with a demand for recognition by a union, it may in good faith withhold recognition until the union's representation claims are established by a Board conducted election. N.L.R.B. v. Chicago Apparatus Co., 7 Cir., 116 F.2d 753, 758; North Electric Mfg. Co. v. N.L.R.B., 6 Cir., 123 F.2d 887, 889; Joy Silk Mills, Inc. v. N.L.R.B., D. Col., 185 F.2d 732. However, such refusal of, or delay in, recognition may not be for the purpose of gaining time in which to undermine the union or to dissipate its claimed majority. N.L.R.B. v. Federbush Co., Inc., 2 Cir., 121 F.2d 954. A refusal to bargain inspired by such a purpose is not in good faith and is a violation of Sec. 8(a)(5) of the Act.
On both September 20 and September 22, as hereinbefore pointed out, the unions had asked respondent to bargain with them as representatives of the pressroom employees. Just what the term included when applied to respondent's employees is ambiguous. The trial examiner suggested that the term might have meant one thing to the unions and another to respondent. However, it is certain that it was not until September 23, when respondent received the notice from the Regional Office of the Labor Board, that it was advised as to the more restricted occupational boundaries among the pressroom employees which the unions claimed to represent.
In several cases, the Board has considered situations where there was ambiguity as to the unit of employees which was covered in a representation petition. Applicable here is the statement of the Board in ...