Before KAUFMAN, HAYS and ANDERSON, Circuit Judges.
ANDERSON, C.J.: This is a petition by the National Labor Relations Board to enforce its order of June 30, 1964 against respondent Flomatic Corporation. The order directs Flomatic to cease and desist from violating Section 8(a)(1) of the National Labor Relations Act, as amended, 29 U.S.C. § 151 et seq. and, upon request by the union, to bargain collectively with Lodge No. 1588, International Association of Machinists, AFL-CIO as the exclusive representative of the production and maintenance employees at respondent's Hoosick Falls, New York plant. In addition, the order requires the posting of appropriate notices.
Respondent is a New York corporation engaged in the manufacture, sale and distribution of valves and related products. On March 25, 1963 it had twenty-eight production and maintenance employees, of whom twenty had signed cards authorizing Lodge No. 1588 of the IAM to negotiate and conclude agreements on their behalf relating to wages, hours and other conditions of employment. On March 26 Flomatic received a letter from William H. Bradt, Lodge No. 1588 representative, which stated that the union had obtained a card majority of the production and maintenance employees which authorized it to represent them in all matters pertaining to collective bargaining. The letter demanded recognition of the union as the exclusive bargaining representative and requested an appointment with company officials. Before any meeting could be held, the union filed a petition with the Board to be certified as the exclusive bargaining representative.
On April 1, Bradt met with Wilbur C. Rice, president and plant manager of Flomatic. Bradt did not request that Flomatic recognize Lodge No. 1588 and did not offer the designation cards for count or verification. Their discussion went primarily to representation election procedures. Rice told Bradt that if the employees wanted a union he would be glad to work with one, although he did not feel that a union was necessary at Flomatic. As evidence of his personal willingness to cooperate with unions, he showed Bradt a copy of a letter from the United Steelworkers Union commending him for his labor relations work at another company where he had been employed.
Rice met with his employees individually and collectively on several occasions during the month of April. On May 1, the day before the election, the union distributed a leaflet to the employees urging them to vote for the union and listing various subjects about which the union would require the company to bargain if it won the election. The leaflet went on to say that it was fair to infer not only that pay rates and substandard conditions would not be improved, but would be lowered even further unless the union won. On the afternoon of that day and up to a minute before the polls opened, Rice distributed a letter in reply to this leaflet, and covered a variety of subjects of interest to the employees. He concluded his letter by urging the employees to vote against the union.
The union lost the election 19 to 7. On May 8 the union filed objections to the election, alleging inter alia that Rice's letter had destroyed the employees' right to a free election. A few days later the company and the union stipulated that the election be set aside. On May 21 the Regional Director set aside the election and directed a new election at a time to be fixed by him. However, on May 23 the union requested permission to withdraw its petition for a new election, on the ground that the company's unfair labor practices had dissipated the union's majority. Permission was granted, and on June 10, the union filed its unfair labor practice charges.
The Board held that Respondent did not violate § 8(a)(5), which makes it an unfair labor practice to refuse to bargain collectively with the employees' representatives, because the union's letter demanding recognition did not include a clear and unequivocal demand for bargaining but rather was asking only for an election, as a means of establishing its status as the bargaining representative of the employees. Under the circumstances, the Board held that Respondent was justified in not regarding the union's letter as a specific request to bargain such as to call for a response, and that Rice's April pre-election conduct did not violate that provision of the Act. It reversed the Trial Examiner, however, by finding that Rice's letter of May 1 contained promises of benefits and invitations to employees to bypass the union and to deal directly with Respondent, which interfered with the employees' exercise of § 7 rights, in violation of § 8(a)(1), and which destroyed the conditions for a fair election in which the union could demonstrate its majority. As an appropriate remedy, the Board entered a bargaining order. The Board's decision is reported at 147 NLRB No. 143 (1964).
Two questions are, therefore, presented: (1) whether there is substantial evidence to support the Board's finding that the company violated § 8(a)(1) by interfering with, restraining or coercing its employees in the exercise of their rights to self-organization, and, if this is so, then (2) whether a bargaining order is an appropriate remedy for the unfair labor practice found.
The Unfair Labor Practice
Although the trial examiner reached a contrary conclusion, we cannot say on the record as a whole that there was not substantial evidence to support the Board's decision that Flomatic violated § 8(a)(1). Universal Camera Corp. v. NLRB, 340 U.S. 474, 95 L. Ed. 456, 71 S. Ct. 456 (1951). While Rice, in his letter of May 1, 1963, stated that with an NLRB election in the offing it would not be legal for him to make any guarantees of what improvements he would offer, the letter did contain promises of benefit as well as invitations to the employees to deal directly with the company. Included in the employer's promises were a wage raise ("I have previously said I would consider pay raises as soon as we were making money . . . We did make money in the past quarter of this year, so if my word is any good you can draw your own conclusions."), seniority ("I will guarantee to respect seniority."), vacation with pay ("I would hope that we could look for some improvement in the vacation benefits for employees with many years of seniority."), arbitration ("If many of you think it would be desirable to establish such a procedure, I would be very glad to work on it with you."), lay-off and recall ("I will be glad to guarantee that lay-offs and recall will be based on seniority."), paid holidays ("If more than six paid holidays becomes more or less standard throughout industry, we shall certainly join the crowd."), profit sharing ("I will work towards instituting such a plan."), pensions ("At the moment, of course, Flomatic Corporation cannot afford a pension plan and you can be sure that I am doing my best to alter this situation."), leave of absence ("You may assume the policy of granting a leave is now in effect at Flomatic."), grievance procedure ("I will do my best to see that any grievance is resolved to your satisfaction as quickly as possible."). And at the outset of the letter Rice stated his case for dealing with the company directly:
"In a company of this size it hardly seems necessary to pay dues to a union for the privilege of talking to me . . . An exchange of views through a third party is never satisfactory and is often distorted and misunderstood. A direct communication between two people is almost always the best way to solve a problem. If you don't want to come to me I shall be glad to come to you at your convenience to discuss any matter which you think we should look into."
The letter was more than a statement of pre-existing policy or reply to the union's circular. It went beyond a statement of current labor policy, because it carried thinly-veiled promises of benefit that even the most naive employee could easily read as contingent upon the defeat of the union, and it was only partially justified as a response to the union's campaign promises and the charge that, without a union, wages would be lowered. Such an argument must take into consideration the fundamental difference between a union's election promises and those of an employer. A union can effectively promise only that it will try to gain certain benefits in bargaining sessions. In contrast, an employer appears as one who can fulfill any pledges he makes which seem to be reasonably within his means. The differing nature of these promises is not likely to be overlooked by the employees in deciding how to cast their ballots. To treat Rice's letter on the same footing with the union circular would run counter to the broad purpose of § 8(a)(1), which is to establish the right of employees to organize for their mutual aid without employer interference. Republic Aviation Corp. v. NLRB, 324 U.S. 793, 798, 89 L. Ed. 1372, 65 S. Ct. 982 (1945). No question of free speech is involved. Section 8(c), by which Congress in 1947 embodied in the Act its understanding of the First Amendment's requirements, specifically denies protection to speech containing a "promise of benefit," such as the Board found here.
Thus there was sufficient evidence on which the Board could find that Flomatic committed an unfair labor practice within the meaning of § 8(a)(1), and its finding is, therefore, conclusive. NLRB v. Exchange Parts Co., 375 U.S. 405, 11 L. Ed. 2d 435, 84 S. Ct. 457 (1964); NLRB v. Philamon Laboratories, Inc., 298 F.2d 176, 180-81 (2d Cir.), cert. denied 370 U.S. 919, 8 L. Ed. 2d 498, 82 S. Ct. 1555 (1962); NLRB v. Pyne Molding Co., 226 F.2d 818, 820 (2d Cir. 1955); Indiana Metal Products Corp. v. NLRB, 2 ...