Appeal, No. 4, Jan. T., 1962, from order of Court of Common Pleas of Montgomery County, April T., 1960, No. 12, in case of Pennsylvania Labor Relations Board v. Merion Memorial Park. Order affirmed.
Raymond Kleiman, Assistant Attorney General, with him James F. Wildeman, Assistant Attorney General, and David Stahl, Attorney General, for Pennsylvania Labor Relations Board, appellant.
Jacob Kalish, with him Dilworth, Paxson, Kalish, Kohn & Dilks, for appellee.
Before Bell, C. J., Musmanno, Jones, Cohen, Eagen and O'brien, JJ.
OPINION BY MR. JUSTICE EAGEN
This is an appeal from an order of the Court of Common Pleas of Montgomery County, which set aside a final order of the Pennsylvania Labor Relations Board and denied its petition for enforcement.
A charge of unfair labor practices was filed with the board by Local No. 57, Laborers District Council of Philadelphia, alleging that Merion Memorial Park (hereinafter referred to as employer) had engaged in unfair labor practices within the meaning of Section 6, subsection 1, clauses (a) and (e) of the Pennsylvania Labor Relations Act of June 1, 1937, P.L. 1168, as amended, 43 P.S. § 211.6 (1), (a) and (e). After hearing and in due course, the board entered a final order directing, inter alia, the employer to cease and desist from interfering with its employees in the exercise of their rights of self-organization and collective bargaining and to take affirmative action in bargaining with the representative of the employees. On appeal, the lower court ruled that the board's conclusions were not supported by the evidence or its own findings of fact, and that the employer was not guilty of unfair labor practices as charged. The board appealed here.
The board specifically concluded that the employer did not bargain in good faith in violation of Section 6, subsection 1, clause (e) of the act. Bad faith is a desire or an intention not to reach an agreement: N.L.R.B. v. Reed & Prince Manufacturing Co., 205 F.2d 131 (1953). Under Section 9(b), the findings
of the board are conclusive if supported by substantial and legally credible evidence. Such evidence has been defined as that which to a reasonable mind is adequate to support a conclusion. Conjecture is no substitute therefor and a mere scintilla is insufficient: P.L.R.B. v. Kaufmann Dept. Stores, Inc., 345 Pa. 398, 29 A.2d 90 (1942). Our review involves a determination of whether or not the board's findings were supported by substantial and legally credible evidence, and whether the conclusions deduced therefor were reasonable and not capricious: P.L.R.B. v. Elk Motor Sales Co., 388 Pa. 173, 130 A.2d 501 (1957).
The legal and credible evidence discloses the following facts: The employer is engaged in operating a cemetery. On March 22, 1959, Local No. 57, Laborers District Council of Philadelphia, was certified as the collective bargaining representative of its employees. Up to and including July 2, 1959, six meetings between the parties were held. During these meetings, a draft of an agreement submitted by Marcus Manoff, Esquire, counsel for the employer was used as a basis for the negotiations. During these negotiations, agreement was had as to a checkoff clause, the status of Sunday work, the retroactive date for any increase in wage and holiday pensions. Important questions of supervisory employees, holidays, union security and wages remained unresolved. The question of a welfare program had been omitted from the draft and was still open. On July 2, 1959, the employer offered a $5 increase crease "across the board" to resolve the wage issue. The union rejected this proposal, declared that it would recommend to the employees that they ...