Kaufman, and Hays, Circuit Judges, and Timbers, District Judge.*fn* Timbers, D.j. (concurring in part and dissenting in part.
The National Labor Relations Board seeks enforcement of its order against respondent. The Board's decision and order are reported at 149 NLRB No. 80.
The Board found that respondent had violated Sections 8(a) (1) and 8(a) (5) of the National Labor Relations Act, 29 U.S.C. § 158(a) (1) and (a) (5).*fn1 The Board ordered respondent to cease and desist from the violations and to take certain affirmative action. We hold that the Board's findings are based upon substantial evidence in the record as a whole, see Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 95 L. Ed. 456, 71 S. Ct. 456 (1951), and enforce the order.
Respondent is engaged in the manufacture of shoes and related products. The unfair labor practices took place at its plant in Binghamton, New York.
During the summer of 1963, the United Shoe Workers of America, AFL-CIO, sought to organize respondent's employees. In a letter to respondent dated August 22, 1963, the union claimed that it represented a majority of respondent's employees and requested a meeting for the purpose of collective bargaining. On August 28, respondent wrote to the union stating that it did not believe that the union represented a majority of the employees, and refusing to recognize it as the employees' bargaining agent. The Board found that by August 28 the union had secured designation cards from a majority of employees in an appropriate unit.
On August 29, the union petitioned the Board for a representation election. The election was set for October 15.
The Board found that during the period preceding the date set for the election, respondent, in an attempt to discourage and defeat the union, engaged in a series of violations of Section 8(a) (1) which were designed to undermine the union majority. These activities included:
Threatening employees with reprisals for union activities;
Promising to grant the employees certain benefits if they did not join the union;
Threatening to close or move the plant if the employees joined the union;
Proposing to the employees that they deal directly with the employer;
Leading the employees to believe that the union meetings were held under employer surveillance;
Requesting employees to report what happened at union meetings and who attended them;
Enforcing an illegal no-solicitation rule.
It is unnecessary to go into the evidence that supports the Board's findings of these violations of Section 8(a) (1). It is sufficient to say that that evidence is clearly substantial. While much of the evidence is contradicted by sharply conflicting evidence, the question of credibility is to be answered by the Trial Examiner and the Board. We see no reason in the present case for quarreling with their answer. See National Labor Relations Board v. Warrensburg Board & Paper Corporation, 340 F.2d 920, 922 (2d Cir. 1965).
On October 14, 1963, the Board, because unfair labor practice charges were about to be filed, postponed the election of representatives which had been scheduled for October 15.
In addition to the finding of violations of Section 8(a) (1), the Board has found that respondent violated Section 8(a) (5) (and consequently Section 8(a) (1) also) by refusing to bargain with the union when requested. With respect to this aspect of the Board's decision, respondent contends (1) that there is insufficient proof of the union's majority status, (2) that the employer had a good faith doubt that the union represented a majority of the employees, and (3) that in any event the order of the Board should not have directed the respondent to bargain with the union.*fn2
It is conceded that at the time when the respondent refused to bargain the union had authorization cards from a majority of the employees. This would ordinarily be enough to establish the union's majority status and the employer, absent a good faith doubt, would violate Section 8(a) (5) upon refusal to bargain. National Labor Relations Board v. Philamon Laboratories, Inc., 298 F.2d 176, 179 (2d Cir.), cert. denied, 370 U.S. 919, 8 L. Ed. 2d 498, 82 S. Ct. 1555 (1962); National Labor Relations Board v. Sunrise Lumber & Trim Corp., 241 F.2d 620 (2d Cir.), cert. denied, 355 U.S. 818, 2 L. Ed. 2d 34, 78 S. Ct. 22 (1957). However, the respondent contends that the union obtained many cards by representing that they would be used to secure an election. See National Labor Relations Board v. Koehler, 328 F.2d 770 (7th Cir. 1964); cf. Happach v. National Labor Relations Board, 353 F.2d 629 (7th Cir. 1965) (explaining Koehler). It appears that in the case of a few of the cards the union told the employees that the cards would be used only for the purpose of securing an election. These cards were not counted by the Board. In soliciting a number of other cards the union stated, not that the cards were sought solely for the purpose of securing an election, but that "The cards are for a vote"; or, "Sign the cards so we can have a vote"; or, "You have to have a certain percentage of signed cards in order to have an election." The cards themselves, on the other hand, read:
"I hereby authorize the United Shoe Workers of America, AFL-CIO, to represent me in collective bargaining with my employer."
Moreover, the union representatives explained to the employees that when a majority of cards had been signed, the union would request collective bargaining, but that there might have to be an election anyway.*fn3 The Board counted the cards in this second group.
It seems to us and we hold that the Board had the right under these circumstances to count the cards of the latter employees towards the establishment of a union majority. Happach v. National Labor Relations Board, supra; National Labor Relations Board v. Cumberland Shoe Corporation, 351 F.2d 917 (6th Cir. 1965); see National Labor Relations Board v. Winn-Dixie Stores, Inc., 341 F.2d 750, 754-55 (6th Cir. 1965); cf. Joy Silk Mills, Inc. v. National Labor Relations Board, 87 U.S. App. D.C. 360, 185 F.2d 732, 743 (1950), cert. denied, 341 U.S. 914, 95 L. Ed. 1350, 71 S. Ct. 734 (1951).
In view of respondent's conduct in seeking, during the whole period from the time of the demand for recognition until the time set for the election, to undermine the union, the Board could properly find that the employer's refusal to bargain was for the purpose of gaining time to destroy the union's majority and that it had no good faith doubt of that majority. See National Labor Relations Board v. Overnite Transportation Company, 308 F.2d 279, 283 (4th Cir. 1962); National Labor Relations Board v. Epstein, 203 F.2d 482 (3d Cir. 1953); Joy Silk Mills, Inc. v. National Labor Relations Board, supra at 741-2.
The propriety of the Board's order directing respondent to bargain collectively with the union remains to be considered. In National Labor Relations Board v. Flomatic Corporation, 347 F.2d 74 (2d Cir. 1965) this Court held that the proper remedy for a situation bearing some similarities to the situation with which we are faced in the present case, was an election. However, as we later pointed out in Irving Air Chute Co., Inc. v. National Labor Relations Board, 350 F.2d 176, 182 (2d Cir. 1965):
"In [Flomatic], however, there was only a minimal § 8(a) (1) violation and no demand and refusal to bargain. The appropriate remedy must be fashioned to meet the situation presented in each particular case and often depends on factual differences seemingly slight but sufficient to tip the scales in favor of the Board's conclusion. Here an election at this time would be manifestly unfair to the Union since it would allow the Company to reap the benefits of its anti-union acts and undoubtedly would result in additional costs to the Union of a new organizational drive. It would, therefore, be inappropriate for this Court to reverse the Board's decision and order a new election."
Since, then, respondent has by its own conduct made the holding of a free election impossible and since the Union's loss of majority support is the result of respondent's "aggressive or planned campaign aimed at dissipating union strength," National Labor Relations Board v. Flomatic Corporation, supra, at 78, the Board must be upheld in its choice of remedy.*fn4 It is a remedy which has been applied in many cases with the approval of the courts. See, e.g., Franks Bros. Co. v. National Labor Relations Board, 321 U.S. 702, 88 L. Ed. 1020, 64 S. Ct. 817 (1944); National Labor Relations Board v. P. Lorillard Co., 314 U.S. 512, 86 L. Ed. 380, 62 S. Ct. 397 (1942); National Labor Relations Board v. Philamon Laboratories, Inc., 298 F.2d 176, 182-3 (2d Cir. 1962); National Labor Relations Board v. Stow Manufacturing Co., 217 F.2d 900, 905 (2d Cir. 1954). And we approve its use once again.
TIMBERS, D. J. (concurring in part and dissenting in part)
I concur in the eminently sound opinion of the majority to the extent that it grants enforcement of the Board's order that respondent cease and desist from certain specified violations of Section 8(a) (1) and that respondent take certain affirmative action with respect thereto, except that I respectfully dissent from the majority's enforcing the Board's order regarding the alleged no-solicitation rule of respondent. I further respectfully dissent from the majority's enforcing the Board's order that respondent bargain collectively with the Union, based on alleged violations of Section 8(a) (5).
Violations Other Than No-Solicitation Rule
With the exception of the alleged no-solicitation rule violation, the Board's order, which adopted the trial examiner's recommendations with respect to Section 8(a) (1) violations set forth in paragraphs 1(a) through 1(g) of the trial examiner's recommended order, is based on findings which are supported by substantial evidence on the record considered as a whole and should be enforced. National Labor Relations Act, § 10(e), as amended, 61 Stat. 136, 73 Stat. 519, 29 U.S.C. § 160(e) (1958 ed.); Universal Camera Corp. v. NLRB, 340 U.S. 474, 491, 95 L. Ed. 456, 71 S. Ct. 456 (1951); see NLRB v. Brown, 380 U.S. 278, 290, 13 L. Ed. 2d 839, 85 S. Ct. 980 (1965); American Ship Building Co. v. NLRB, 380 U.S. 300, 335-336, 13 L. Ed. 2d 855, 85 S. Ct. 955 (1965) (concurring opinion of Justice Goldberg); cf. O'Keeffe v. Smith Associates, 380 U.S. 359, 371-372, 13 L. Ed. 2d 895, 85 S. Ct. 1012 (1965) (dubitante by Justice Douglas). There was sharply conflicting evidence before the trial examiner upon the issue of the Section 8(a) (1) violations; but, as we recently noted in NLRB v. Warrensburg Board & Paper Corp., 340 F.2d 920, 922 (2 Cir. 1965), "Although there was conflicting testimony on this issue, we have held in the past that questions of credibility are for the trier of fact and that we will not upset the decision of the Board 'when it accepts a finding of an Examiner which is grounded upon (a) his disbelief in an orally testifying witness' testimony because of the witness' demeanor or (b) the Examiner's evaluation of oral testimony as reliable, unless on its face it is hopelessly incredible or flatly contradicts either a so-called "law of nature" or undisputed documentary testimony'," quoting from NLRB v. Dinion Coil Co., 201 F.2d 484, 490 (2 Cir. 1952); see Mak-All Mfg., Inc. v. NLRB, 331 F.2d 404, 405 (2 Cir. 1964); NLRB v. Marcus Trucking Co., 286 F.2d 583, 590 (2 Cir. 1961).
In short, to the extent that the Board adopted recommendations of the trial examiner who heard and evaluated the witnesses and resolved the sharply conflicting evidence, and to the extent that the Board's findings are thus grounded upon substantial evidence on the record considered as a whole, the Board's order should be enforced. I concur in that portion of the majority's decision.
Alleged No-Solicitation Rule Violation
The Board's finding that respondent "promulgated a broad and presumptively unlawful no-solicitation rule which it discriminatorily applied" is, in my view, quite a different matter. The Board's finding on this issue is squarely contrary to that of the trial examiner who made the following finding:
"I find no evidence to support paragraph 6(g) of the complaint that Respondent instructed employees not to discuss the Union on their own time. I find that employees were admonished not to discuss the Union during working hours, and I find that there was no Company 'rule' on this matter; however, I find that Testani's admonitions to employees not to discuss the Union during working hours did not constitute a violation of the Act, as alleged in paragraph 6(h) of the complaint."
The entire evidence in the record before us on the so-called "no-solicitation rule" may be briefly summarized as follows:
(1) General Counsel's witness Anna Balanda testified that some time between July 1963 and October 15, 1963, plant superintendent Testani called her into the stock room and in the presence of Rose Boezi, a floor lady, told Balanda that "we were not supposed to talk Union during working hours, and that if I was caught talking Union during working hours, I would be fired, and not even the Labor Board would help me." Balanda also testified that "We were told we were not to talk about the Union during working hours. . . we did not talk during working hours. We talked before 7 o'clock and the lunch hour."
(2) General Counsel's witness Raymond Heatherman testified that on October 2, 1963, "just before we punched in at noon on our way back from lunch," Testani said to Heatherman and his brother-in-law, Robert Douglas, that "we couldn't talk Union on Company time, that the wrong people would catch it and we'd get fired." General Counsel's witness Douglas testified, regarding the same conversation, that "Testani came over and told us not to discuss Union on Company time or we could get fired."
(3) General Counsel's witness Clarence Young, a union committeeman, testified that during the latter part of September 1963, in response to Testani's request that employees Ralph Farnham and Nancy Morabito be told to keep quiet, Young told Testani that he would talk to the two employees and tell them not to talk about joining the Union any more except at noon hour or before or after work. Specifically, Young's complete testimony on this issue, and in context, was that "He [Testani] come in there and told me I'd have to tell Ralph Farnham to -- He said I'd have to go and have a talk with him and tell him to keep quiet; that everytime he went upstairs he was talking to the ladies about joining the Union and stuff. He wanted it stopped. He said, 'You'll have to go down and have a talk with him.' I said, ' I'll see that he doesn't do it any more unless it's noon hours or before or after work ', that I'd stop him during the other times. We came out of the men's room. Nancy [Morabito] was working there as we came out; so he pointed to her; he said, 'Here's another one here. Tell ...