Waterman, Moore and Friendly, Circuit Judges.
The National Labor Relations Board petitions to enforce an order ruling that the respondent, Majestic Weaving Co., Inc., rendered unlawful assistance to a union attempting to organize its plant, executed an invalid union security agreement, and unlawfully refused to bargain with the proper representative of its employees. National Labor Relations Act §§ 8(a)(1), (2), and (5). Most of the General Counsel's claims were rejected by the Board and are not here at issue. The Trial Examiner's findings, which the Board adopted although disagreeing with his conclusion, can be briefly stated.
Majestic, a corporation newly organized for the production and distribution of printed fabrics, began hiring employees for a plant under reconstruction at Cornwall, N.Y., in February 1963. The employees were told they would first perform tasks necessary to getting the plant in operation; thereafter most of them would be trained in a number of finishing and printing skills, although some craftsmen who were adept as welders, pipefitters or electricians might continue as such. On February 13, Sanderman and Friedman, representatives of Local 815, International Brotherhood of Teamsters, visited the plant and told the manager, Thomasis, that the Local represented some of the employees. Thomasis called in Majestic's labor relations consultant, Hardy, who met with the union representatives that afternoon. Sanderman repeated that Local 815 had signed up some employees, desired recognition and would like to negotiate a contract. Hardy, explaining that Majestic was just getting started and had engaged only a dozen of its work force, said he had no objection to beginning to negotiate and discuss a proposed contract provided Local 815 could show at the conclusion that it represented a majority of the employees. Sanderman and Friedman asked if they could make a tour of the plant; Hardy assented and offered to take them through. Shortly thereafter Sanderman detached himself to talk to three employees, rejoined Hardy and Friedman, and then, having "spotted a gentleman who was a little bit older" than the other employees, left the group and introduced himself. He asked whether the gentleman, Weyant Felter, had been a member of the union and, on receiving an affirmative response, explained his mission. With the aid of Friedman who had also separated from Hardy, Sanderman persuaded Felter to act as temporary shop steward and get the employees to sign cards applying for membership in Local 815. During late February, March and early April, Felter went about his solicitation on behalf of the local, with considerable success. Since people were continuously being hired and employees of contractors were also on the premises, Felter occasionally asked Thomson, the Company's personnel manager, to point out who were the new Majestic employees and introduce him. When Felter was talking to the employee, Thomson would walk away, or sometimes remain "in the vicinity," though not within hearing distance, in order to be available to point out someone else. Meanwhile four conferences were held between Sanderman, Friedman and Felter for the Union, and Hardy and, on some occasions, Thomasis for the Company. On April 26, a typical collective bargaining agreement, containing a union security clause as authorized by § 8(a)(3) of the National Labor Relations Act, was executed; it was effective as of February 14, 1963, and was to terminate on December 1, 1965. Prior to the signing of the agreement the Union presented authorization cards signed by 26 of the 37 persons then employed.
On May 22, a representative of the Textile Workers Union met with five Majestic employees and persuaded them to sign membership cards and undertake to get others signed. By May 28, their efforts produced some 34 signed cards out of a force of about 45, and the union filed a petition for election with the National Labor Relations Board. On the same day, stating that it now represented a majority of the employees, the Textile Workers requested that Majestic meet with them to negotiate a collective bargaining agreement. When this demand was rejected on the ground that the Company already had an exclusive agreement with Local 815, the union filed an unfair labor practice charge, alleging that Majestic had entered into a "collusive contract with the Teamsters Union . . . for the express purpose of preventing the workers from picking a bargaining agency of their own choice, " and that the agreement was executed "on February 14, 1963, at which time the Company employed approximately 4 people and there was not a single piece of equipment in operation." The complaint, issued by the General Counsel after the filing of a second charge, also alleged that the agreement with Local 815 was executed on or about February 14; it claimed, in addition to specific acts alleged to constitute unlawful assistance to Local 815, that at the time Majestic did not have a representative complement in its employ and that Local 815 was not duly designated by an uncoerced majority.
The Trial Examiner found that the contract was in fact executed on April 26 and that on this date Majestic had employed at least 30% of its ultimate complement and had employees working within at least 50% of the ultimate job categories, thus satisfying the established test for determining the stage at which a binding contract may be signed on behalf of all present and future employees. See General Extrusion Co., 121 NLRB 1165 (1958). Concluding also that the other charges of unlawful assistance had not been established, he recommended that the complaint be dismissed. The Board, acting through a three-member panel, accepted the Examiner's report in largest part but reached a different ultimate conclusion. It held that the solicitation by Felter constituted unlawful assistance in violation of § 8(a)(2) since at the time Felter was working "in a lead capacity for the general laborers then being hired" and had received the cooperation of Thomson. It also found unlawful assistance in the very act of negotiating a contract with Local 815 as the exclusive representative of the employees before the union had achieved majority status, even though on the understanding that execution of any agreement depended on the union's having attained that goal. In arriving at this conclusion, which was thought to be a logical or even necessary corollary of International Ladies' Garment Workers' Union v. NLRB (Bernhard-Altmann), 366 U.S. 731, 81 S. Ct. 1603, 6 L. Ed. 2d 762 (1961), the panel was obligated to overrule the Board's long-standing decision permitting such conditional negotiation, Julius Resnick, Inc., 86 NLRB 38 (1949),*fn1 and to override the objection that no such issue had been posed by the complaint. Finally, the panel held that since the contract with Local 815 had thus resulted from violations of § 8(a)(2), execution of the agreement unlawfully interfered with employees' rights protected by § 8(a)(1), that it consequently afforded no justification for refusing to bargain with the Textile Workers, and that Majestic had thus violated § 8(a)(5). The order issued by the Board directed the Company, inter alia, to cease and desist from giving any effect to the agreement with Local 815 "or to any modification, extension, renewal or supplement thereto" and from refusing to bargain with the Textile Workers as the exclusive representative of the employees; to withdraw recognition from Local 815 unless and until the latter was certified by the Board; and to bargain with the Textile Workers. In a supplemental decision, the panel denied petitions for reconsideration by Majestic and Local 815, which, though not named as a respondent, was a party by virtue of the Board's Rules and Regulations, § 102.8, 29 C.F.R. § 102.8 (1965), see NLRB v. Majestic Weaving Co., 344 F.2d 116 (2 Cir. 1965), and ordered Majestic to reimburse all employees who by petition had protested the deduction of dues and initiation fees payable to Local 815.
The conclusion that the activities of Felter and Thomson constituted unlawful assistance to Local 815 is not supported by substantial evidence on the record as a whole.
Weyant Felter was a pipefitter and boileroperator receiving an hourly wage and punching a time clock. He would start the boiler and compressors on coming to work, watch them for an hour or two, and close them down at the end of the day. For the rest of the time he engaged in "pipe work" as directed by supervisors, being assigned such helpers, from one to three or four, as the particular job required. On a very few occasions, when a supervisor knew he would be late in getting to work, Felter would be told to show two or three of the employees what jobs were to be done. Felter was without authority, real or apparent, to hire or fire other employees or to act in any general supervisory capacity on behalf of the Company.
It is true, as counsel for the Board says, that § 8(a)(2) may be violated by organizing activities of an employee in a position of authority for which the employer may fairly be held responsible, even though it has not in fact authorized them and the employee did not have the power to hire or fire, see International Ass'n of Machinists v. NLRB, 311 U.S. 72, 79-81, 85 L. Ed. 50, 61 S. Ct. 83 (1940); H.J. Heinz Co. v. NLRB, 311 U.S. 514, 518-21, 85 L. Ed. 309, 61 S. Ct. 320 (1941); NLRB v. Link-Belt Co., 311 U.S. 584, 598-99, 85 L. Ed. 368, 61 S. Ct. 358 (1941). But the reason for this rule, namely, that the rank and file may have just cause to regard such activities as representing the employer's will or desire, NLRB v. Link-Belt Co., supra, also sets its limits. And, in practical application, due weight must also be given to competing values; if senior men "were not to be free to express their opinions and to urge fellow-workmen to organize in a certain way, the interest and activity of the most competent men in the appropriate bargaining group would be eliminated." NLRB v. Arma Corp., 122 F.2d 153, 156 (2 Cir. 1941).
On the facts of this case no reasonable basis can be found for inferring that the workers would have considered or had just cause to consider Felter's organizing activities to be at the instance of management. The only thing that set Felter apart in any way was that he was older than many of the employees and more experienced in pipe work, so that he was the senior man or straw boss when a pipe job had to be done. On the basis of this alone, the employees could not reasonably have thought that Felter was acting for Majestic, see NLRB v. Arma Corp., supra at 156; NLRB v. Newton Co., 236 F.2d 438, 442 (5 Cir. 1956); cf. NLRB v. Griggs Equipment, Inc., 307 F.2d 275, 279 (5 Cir. 1962), or that the Company would then have interfered with an employee of similar status soliciting on behalf of another union or arguing against any union at all. See Ballston-Stillwater Knitting Co. v. NLRB, 98 F.2d 758, 762 (2 Cir. 1938); NLRB v. Newton Co., supra, at 442. The employees could hardly have considered it unusual that Local 815 in its effort to organize the plant should have enlisted the help of a senior employee rather than that of a younger man. And once it is recognized that Felter's organizing activities of themselves cannot fairly be attributed to Majestic, the minor help rendered by Thomson, the personnel manager, is not enough to tip the scale and satisfy the General Counsel's burden of proof. His identification of the new employees was a normal courtesy, especially appropriate under circumstances where they were mingled with the employees of contractors; an employer is hardly to be faulted for failure to make life difficult for an employee endeavoring to organize his fellows.
The case for enforcement of the Board's order on this ground is further weakened by the Trial Examiner's conflicting conclusion that Felter, even with Thomson's insignificant assistance, could not be considered to have been acting on behalf of the Company. To be sure, the issue here did not turn on credibility, as to which the weight to be given such a finding by a hearing officer attains its maximum, Universal Camera Corp. v. NLRB, 340 U.S. 474, 496-497, 95 L. Ed. 456, 71 S. Ct. 456 (1951), but on the inference reasonably to be drawn from conduct not in serious dispute. Yet, on such an issue also, observation of the witnesses is likely to give a more accurate feel than reading a cold record; something would depend on what manner of man Felter was, and whether the testimony as to Thomson's activities carried true conviction. The Trial Examiner had "lived with the case" - an opportunity not vouchsafed to the Board, and his conflicting report carries some weight against the existence of substantial evidence to support the Board's conclusion. See Universal Camera Corp. v. NLRB, supra at 492-97.
Having rejected the finding that Felter's organizing activities constituted unlawful assistance, we turn to the other basis for decision - that negotiation with a minority union of an agreement purporting to bind all employees, although conditioned on the union's achieving majority status before execution, was itself a violation of §§ 8(a)(1) and (2). We can begin by narrowing the area of debate. The Board no longer maintains that its overruling of the long-standing Resnick decision permitting such conditional negotiation, see fn. 1, was compelled by the Supreme Court's holding that the execution of an agreement recognizing as exclusive bargaining representative a minority union, mistakenly believed to represent a majority, is an unfair labor practice under §§ 8(a)(1) and (2). International Ladies' Garment Workers' Union v. NLRB (Bernhard-Altmann), 366 U.S. 731, 81 S. Ct. 1603, 6 L. Ed. 2d 762 (1961). Its position is rather, as it has stated elsewhere, that "the premature ...