Friendly, Smith and Feinberg, Circuit Judges.
Westchester Rockland Newspapers, Inc. petitions to set aside an order of the National Labor Relations Board, which requires petitioner to bargain in good faith with Newspaper Guild of New York, Local 3, American Newspaper Guild, AFL-CIO, and to embody any understanding reached in a signed contract. 174 N.L.R.B. No. 62 (1969). This is a case where the Board's key finding on the extremely narrow issue before it was not supported by substantial evidence on the record considered as a whole. Accordingly, we grant the employer's petition and set aside the order.
Petitioner, hereinafter called "the Company," publishes and sells various newspapers, including the Herald Statesman in Yonkers, New York. After an election in May 1967, the Guild was certified as the representative of various employees in the Herald Statesman circulation department. Collective bargaining followed soon thereafter, but after 22 bargaining sessions full agreement had not yet been reached. In January 1968, the Guild filed an unfair labor practice charge with the Board, alleging that the Company had engaged in surface bargaining, without a good faith intention of concluding an agreement, and by "these and other acts" had violated its duty to bargain in good faith.
The response of the Acting Regional Director to this charge created most of the problems in this case and makes it a highly unusual one. In May 1968, the Regional Director dismissed the charge insofar as it alleged a refusal to negotiate in good faith on wages and conditions of employment.*fn1 At the same time he issued a complaint, charging the Company with negotiating in bad faith, and more particularly:
11. On or about August 23, August 29, September 20 and November 20, 1967, when the Union requested Respondent to discuss and negotiate respecting the subjects of pensions, hospital and medical benefits, maternity leave, military leave, sick leave, severance pay, dismissal notice pay and related matters, Respondent, by Thomas G. Dignan, its Labor Relations Manager and agent, stated that it would not include in any agreement to be reached with the Union any provision respecting the subjects described herein above and thereby foreclosed any bargaining with respect thereto.
This was apparently inconsistent with the Regional Director's dismissal letter, which had found a willingness to bargain in good faith on terms and conditions of employment.
In July 1968, a hearing was held before a Trial Examiner, who, with commendable speed, issued his decision in August. The Examiner, faced with the inconsistent position of the Regional Director, bravely attempted to make some sense out of the situation instead of simply dismissing the complaint. He determined that the only issue left open to him was:
Did the Respondent refuse to incorporate into the contract being negotiated -- or in any contract -- whatever agreement might be reached concerning certain conditions of employment, those enumerated in the complaint?
There is such inconsistency between the Regional Director's dismissal letter and the complaint, as to preclude consideration now of any other theory of illegality or factual allegation of wrongdoing, however phrased, either in the complaint or in the briefs of the Union and General Counsel.
Both parties before us appear to accept this as a correct statement of the issue before the Examiner and the Board.
The Examiner concluded that the Company negotiator did say on "a number of occasions" that he did not want "to include some . .. matters in a written agreement." The issues before the Examiner were thus very limited: What did the Company's words mean in the context of negotiations in which it was already established that the Company was negotiating in good faith on the issues before it, and did the Company's statements constitute a refusal to reduce agreed-on terms to writing? Instead of answering these questions, the Examiner went off on a tangent and never did explicitly resolve the issue as he originally saw it. Thus, he went on to say:
But the real problem in this case is to distinguish between a company's request that the union agree to leave certain matters to the employer's discretion, as against what can be characterized as adamant insistence that come what may, no matter what else might be agreed, never would the company yield its absolute freedom for independent action, contract or no contract.
This formulation apparently reframed the issues as follows: By stating that it would not put some matters into the contract, (1) was the Company merely refusing to concede on a particular term or (2) was it in effect refusing to discuss mandatory terms meaningfully by stating in advance that no agreement would be reached or (3) was it stating that certain agreements, even if reached, would not be written down? The Examiner evidently assumed that the first interpretation of the Company's statements would not evidence an unfair labor practice,*fn2 while either of the other two would.*fn3 However, interpretation (2) (refusal to discuss meaningfully by stating in advance that no agreement would be reached) had, in effect, been foreclosed by the Regional Director's letter. Although he apparently would not have accepted interpretation (3), as ...