Friendly, Hays and Anderson, Circuit Judges. Hays, C. J. (dissenting).
The NLRB seeks enforcement of an order relating to alleged unfair labor practices of Mechanicville Central, Inc., one of a chain of retail food stores which are wholly-owned subsidiaries of The Golub Corporation. The challenged practices stem from an organizing drive conducted by Amalgamated Meat Cutters, Butchers Workmen and Store Clerks of North America, District Union Local No. 1, AFL-CIO. On December 8, 1964, the union sent a telegram to the company claiming it held authorization cards signed by a majority of the 31 employees in the Mechanicville store, offering to submit these to a disinterested person, and requesting a meeting. On the same day it filed a petition for certification. On January 18, 1965, the Regional Director ordered an election for February 17. The company sent employees three letters, dated February 2, 8 and 12, arguing against the union. In another letter of February 11 it invited employees and their spouses to attend a dinner meeting on February 16, advising that they would be paid for their time. After dinner William Golub delivered a speech again arguing against the union.
The union lost the election 24-4 but the Regional Director set the vote aside because Golub's speech violated the 24 hour rule set forth in Peerless Plywood Co., 107 N.L.R.B. 427 (1953). Later he approved the union's request to withdraw its certification petition. Meanwhile unfair labor practice charges had been filed and a complaint issued. The Trial Examiner found that the union had received valid authorization cards from a majority of the employees and that the company had violated § 8(a)(5) by refusing to bargain. He also held certain passages in the letters of February 2 and 8 and the speech of February 16 to violate § 8(a)(1). The Board agreed.
The Trial Examiner's conclusion as to majority status rested on the legal premise which we have declined to adopt, NLRB v. S.E. Nichols Co., 380 F.2d 438, 444-45 (2d Cir. 1967), that even though a union has led signers of authorization cards to believe that it would obtain representative status only by winning an election, a card clear on its face is valid unless the employee was told that its sole purpose was to obtain an election -- words such as "sole," "merely," "just," or "only," being invested with a kind of talismanic quality. The union held 22 cards; 16 were needed for a majority. Even on the "sole purpose" test the Examiner invalidated the cards of Mary Rose Beniati*fn1 and Frank Marinello.*fn2 With respect to two others, John Pepe and Mary Petrignani, he conceded that their testimony, if credited, "might well furnish the basis for finding their cards to be invalid"*fn3 but did not resolve the issue raised by the rebuttal testimony of the solicitor of the cards since on the view he took as to other cards the validity of these two was immaterial. The Board has not asked us to enforce the order on the ground that Pepe's or Petrignani's cards were valid nor has it sought a remand for resolution of the credibility issue. Rather, conceding that the card of Marcella McCarthy also was invalid under the Nichols rule,*fn4 it seeks enforcement on the basis that there are still enough valid cards to constitute a majority. We disagree; the cards of Eleanor Carbone*fn5 and Vincent Zielnicki*fn6 were also obtained by misleading the signers into the belief that the union would not become their representative unless it won an election. Freddie Russom, the solicitor who approached Pepe, Petrignani and McCarthy, had also solicited the card of Louis Peluso, telling him, in Peluso's words, that by signing a card "I didn't have to obligate myself to the union just that I would sign the card and I didn't have to join if I didn't want to," and had obtained the cards of five other employees only one of whom testified. Question has been raised whether proof of a pattern of misrepresentation by a particular solicitor may not require the General Counsel to come forward with testimony by all signers. Lesnick, Establishment of Bargaining Rights Without an NLRB Election, 65 Mich. L. Rev. 851, 857-58 (1967). NLRB v. James Thompson & Co., 208 F.2d 743 (2 Cir. 1953). The Trial Examiner ruled against this on the basis that, under the "sole purpose" rule, only two of Russom's solicitations could be faulted and no pattern of misrepresentation had been shown; if the correct figure was four out of five, a different result might follow. We therefore decline to enforce so much of the Board's order as holds that the company's refusal to recognize the union violated § 8(a)(5) and turn to the alleged violations of § 8(a)(1).
In contrast to many § 8(a)(1) proceedings, the violations here found consisted solely of writings and a speech addressed to the employees as a group -- there was no finding of interrogation or surveillance, of discriminatory discharge, or of the grant of benefits. The case thus sharply raises the issue how far the Board may go in curbing speech consistently with § 8(c) and the First Amendment.
The Board had no criticism of the company's letters of February 11 and 12, and only faulted portions of the letters of February 2 and 8 and a rather small part of Golub's speech of February 16. To quote simply the contested passages would create a false impression; it is necessary to place them in their setting by summarizing the entire communications.
The February 2 letter began by telling the employees of the forthcoming election. It accused the union of making false promises which "you can easily find out about . . . from others" and of picking on a single store to avoid a vote for all the chain's employees. It assured employees that the ballot would be absolutely secret, that they were "protected by law from anyone who attempts to interfere with your making a free choice," and that they were not bound by having signed a union card. It then went on to say "To get you to vote for them, the Union has been making many promises -- promises to make demands which could be excessive. Companies that have been forced to meet excessive Union demands have been known to be forced out of business. The employees at the other local chain (Saveway) were not fooled by Union promises and flatly rejected them just a short time ago."*fn7 After arguing that union membership would mean dues, assessments, other financial burdens, and possibly sympathy strikes, the letter continued:
"The retail food business is the most competitive business in the world. Customers, not Unions, help pay your wages. We bring customers into our stores if we attract them with competitive prices. Even the large chains cannot meet these Union demands without making drastic adjustments because they also have to remain competitive. Large chains which have been forced to sign up with the Unions have been known to increase the work load of all their individual employees by reducing the number of employees in order to offset the higher costs. They find that they have to get the same amount of work done by fewer people to remain competitive."*fn8
In conclusion the company promised to write again and asked the employees to keep an open mind.
The February 8 letter began by asking the employees to "look at the true facts of what outside interference would mean to you." The first set of facts consisted of the payment of dues and other union obligations, much as the earlier letter had depicted. Then came a paragraph found to have violated § 8(a)(1) which we quote in the margin.*fn9 The letter went on to challenge "two false arguments" -- that employees who did not sign up or vote for the union would be fired if the union won and that Central's owners really wanted a union. It urged employees not to put their future in the hands of union representatives with little interest in their needs or problems, and warned that a union might cook up a dispute "just to 'keep the pot boiling' or perhaps to help one of their favorites in your store," and that choice of a union "possibly could mean long drawn out strikes." It told the employees who planned to make their careers with the company that they did not need a union "to get the greatest benefits which this company can give and which it gives without unions" and appealed to those employees who were working their way through school or college not to foist a burden on their fellows. The letter concluded by asking how a union can "truthfully promise job security," arguing that "their exorbitant, excessive and outlandish demands often result in layoffs and even force companies out of business," and that job security really rested in sales and service to customers. Golub promised to write again, and requested the employees to "keep an open mind until the election."
Golub's February 16 speech was a long one, stretching over 10 1/2 printed pages of the joint appendix. Only two excerpts were found to have violated § 8(a)(1). The first we quote in the margin.*fn10 In the second Golub dealt with the small 1% profit margin characteristic of grocery chains and the correspondingly narrow leeway for "many additional unrealistic demands which add to your overhead and expenses." He then told of a large chain which had raised prices after negotiating a union contract and as a result had been required to discharge around 25% of its help and make the remaining staff "do a tougher job because they have got to do the work those who were let out have to do," and of another market, and also a discount store, that were being forced out of business due to a union contract.
While we have considered it necessary to set out the communications at some length, the basic issue is whether an employer coerces his employees in the exercise of § 7 rights, as forbidden by § 8(a)(1), when he prophesies that unionization will decrease or wholly eliminate work opportunities, increase work loads, or create greater rigidity in personnel relationships, or whether such predictions come within the protection § 8 (c) affords to the expression "of any view, argument or opinion, or the dissemination thereof . . . if such expression contains no threat of reprisal or force or promise of benefit." While the answer would seem easy enough, the trend of Board decisions toward ever increasing restrictions on employer speech*fn11 makes it desirable to attain perspective by a brief historical survey.
Under the Wagner Act, 49 Stat. 449 (1935), which contained § 8(a)(1) but nothing like § 8(c), the Board condemned almost any anti-union expression by an employer. It was sustained against First Amendment attack by some courts including this one, on the basis that employer arguments have "an ambivalent character." Since "what to an outsider will be no more than the vigorous presentation of a conviction, to an employee may be the manifestation of a determination which it is not safe to thwart," we held that "the Board must decide how far the second aspect obliterates the first," with the substantial evidence rule available to support its decision. NLRB v. Federbush Co., 121 F.2d 954, 957 (2d Cir. 1941). The Supreme Court evidently thought otherwise. NLRB v. Virginia Electric & Power Co., 314 U.S. 469, 86 L. Ed. 348, 62 S. Ct. 344 (1941), dealt with employer notices pointing out that in the fifteen years since an organization strike had failed, confidence and understanding had reigned without the existence of a labor organization in any department. It went on to state that the company would freely entertain employee grievances and that it believed the mutual interest of all could "best be promoted through confidence and cooperation." The Board found the communications a violation of § 8(1). The Court interpreted the words of the Wagner Act to avoid constitutional doubts arising from the First Amendment. It held that speech, which by its own terms was not coercive, did not violate the Act unless part of a course of conduct that was coercive.*fn12 As the Board appeared to have ...