Friendly, Hays, and Anderson, Circuit Judges. Hays, C. J. (concurring in the result). Friendly, C. J. (dissenting and concurring).
The sole question presented on the Board's petition is whether findings that respondents engaged in unfair labor practices in the course of a union organization drive at their plant in 1965 are supported by "substantial evidence," Universal Camera Corp. v. NLRB, 340 U.S. 474, 95 L. Ed. 456, 71 S. Ct. 456 (1951), and are therefore conclusive under § 10(e) of the Act.
Eugene and Bernard Yokell are partners, doing business as Crescent Art Linen Company, in the manufacture and sale of decorative linen products in New York City.*fn1 During the first week of April, 1965, the Retail, Wholesale and Department Store Union, AFL-CIO, Local 29 started a campaign to organize Crescent's employees. This was the first effort at unionization at respondents' place of business in twenty-five years. Shortly after the Union had launched its drive by distributing handbills to employees outside the building, Eugene spoke to the employees while they were gathered by their machines for lunch. He told them that he was aware that there were Union organizers around who were trying to get them to sign cards and he asked them "not to do anything, not to sign any cards, to have patience for a couple of days . . . until we find out something about this Union, and we will . . . have a meeting and talk things over." Eugene testified that several of the older employees had stated to him their opposition to the Union, and had suggested that he talk to them about what was happening.
On Friday, April 9, Eugene advised the employees that there would be a meeting right after work on the following Monday, and that he would supply sandwiches. When that time came the employees gathered near the center of the eighth floor work area where they were treated to sandwiches and liquid refreshment at respondents' expense. Except for a few who could not stay for the meeting, all of the workers were in attendance and, in addition, the group included the two Yokells, Eugene's daughter Joan, a clerical employee, Harold Binder, a supervisor, Al Azar, a salesman, and Yetta Siegal, a bookkeeper. Eugene explained to the employees that the purpose of the meeting was to conduct a poll to determine whether or not a majority of them wanted Union representation. "If they did," he later testified, "then we had nothing to talk about, because we would have to talk to the Union. If they didn't, we could go on with the meeting and see what our problems were, if any." Eugene then presented each employee with a paper ballot with instructions to mark one of the two choices.*fn2 He explained that the poll was "not official," but only "for us to determine whether or not you want the Union to talk for you, or whether you want to talk for yourselves." Someone asked if the ballots should be signed and Eugene answered, "No." Those who were not voting then withdrew about twenty yards while each employee marked his ballot, and dropped it into a corrugated box which had been provided for the purpose. Eugene then returned and asked that someone count the ballots and two of the employees volunteered. There were thirteen votes cast for the Union, and twenty-three votes against.
For almost an hour thereafter Eugene discussed employment conditions with the group. He read and commented upon each of the benefits advertised in the Union's handbill, and tried to explain that it "wasn't as rosy as it sounded on paper." While some of the employees voiced their grievances, and made known their demands, Eugene noted requests and suggestions on a piece of paper.*fn3 He told them that he could not promise anything, but that he would listen, give it some thought, and see what could be done. When one employee inquired why no extra vacation had been granted the year before, Eugene explained that since he and Bernard had been willed the business by their father, they had been hard pressed to pay out certain cash shares to a sister and two brothers, but that the last payment had been made in February, 1965 and they could now afford to be "more liberal."
Friday, April 16, was Good Friday and, although the shop was open for those who wanted to work, only about eight employees chose to do so. That year, for the first time, respondents decided to grant Good Friday as a paid holiday and, although no announcement was made to that effect, the ensuing payroll included pay for that holiday. As the plant would be closed on Yom Kippur, it was also decided that that day should be a paid holiday for the Jewish employees.*fn4 On July 1, respondents announced that employees with five years of service with the company would receive an extra week of paid vacation, effective July 4, 1965; and about the middle of August, a general wage increase was granted which affected all employees.
We think the Board was justified in finding violations of § 8(a)(1) implicit in respondents' course of conduct. Although it appears that participation in the secret ballot was obtained on a voluntary basis, and that the polling procedure was fair,*fn5 the result, which was against the Union, could not be used as a justification for direct bargaining with the employees. We agree with the Board that the balloting here was not conducted for a proper purpose, but existed merely as a prelude to the illegal bargaining session which was to follow. Respondents do not claim that the poll was conducted in order to establish grounds for testing the validity of the Union's demand for recognition, although earlier that morning the Union had claimed a majority, and requested of Eugene that a contract be negotiated. Such a poll conducted by a neutral third party might well afford a useful test of grounds for a claimed good faith doubt concerning an asserted card-majority. In this case, we conclude there was sufficient in the record to support the Board's finding that the primary purpose of the meeting was to bargain with the employees as a means of warding off the Union, a violation of § 8(a)(1), NLRB v. Flomatic Corp., 347 F.2d 74, 76-77 (2 Cir. 1965); Edward Fields, Inc. v. NLRB, 325 F.2d 754, 760 (2 Cir. 1963); NLRB v. Philamon Labs., Inc., 298 F.2d 176, 180-181 (2 Cir.), cert. denied 370 U.S. 919, 82 S. Ct. 1555, 8 L. Ed. 2d 498 (1962), and that the polling was rightly condemned as an integral part of that unlawful course of conduct, NLRB v. Charles R. Krimm Lumber Co., 203 F.2d 194, 195 (2 Cir. 1953).
The Trial Examiner found that benefits granted to the employees in the form of an added holiday, extra vacation, and increased wages related to and substantially fulfilled, promises implicit in Eugene's conduct at the April 12 meeting. It is true that Eugene made no overt promises of benefit on that occasion, and that he in fact disclaimed the ability to do so. But this does not obscure the fact that his willingness to receive and consider employee requests at a time which coincided with the first union organization campaign at his plant in twenty-five years might well have indicated to the average employee that better conditions would be forthcoming, as in fact they were. Viewed in isolation the granting of an additional holiday on Good Friday might seem a de minimis violation of § 8(a)(1) and the same might be said for the extra vacation which was granted more than two months after the April meeting. But the Good Friday concession matched the holiday schedule advertised by the Union. It was discussed by Eugene at the meeting, and may have been designed to tempt employees with visions of what was to come in the future. Although Eugene testified that he had been talking with the employees about extra vacation on and off for the past two years, the Trial Examiner was not without justification in finding that his sudden generosity at election time was motivated by other considerations than the welfare of the employees.
Although the Board's case for enforcement regarding the August wage increases is borderline,*fn6 we grant enforcement in light of the Trial Examiner's finding that the purpose of the increases was to undermine the Union's support among the employees. See NLRB v. Exchange Parts Co., 375 U.S. 405, 409, 11 L. Ed. 2d 435, 84 S. Ct. 457 (1964). In so doing, however, we are aware that, as a practical matter, union campaigns are often carried on over a period of weeks, sometimes months, and we emphasize that the granting of normal and regular increases in employee benefits are not to be held to be an unfair labor practice merely because a union drive is in progress, a result which would work to the detriment of the very people whom the Act seeks to protect.
This leaves only that portion of the Board's order which relates to threats of "plant removal or other reprisals." The record shows that during the meeting (or directly thereafter), Eugene told a group of employees that the lease on their building, which would expire on February 1, 1966, had not been renewed, and that it was possible that they might move. His subsequent testimony to the effect that there was a space problem at the plant during the busy season when extra workers had to be taken on, and that at such times there had been talk of moving to another location, does not explain why the prospect of moving was brought up in April, during the slack season, and in the context of a Union organizing campaign.
Under the circumstances we think that the Trial Examiner was justified in treating these statements as implied threats of reprisal, and therefore outside the protection of § 8(c) of the Act. See NLRB v. Cousins Associates, Inc., 283 F.2d 242, 243 (2 Cir. 1960). Statements likely to produce fear of retaliation are often hard to distinguish from innocuous prophecy regarding the economic effects of unionization and, in classifying a particular utterance, proper weight must be accorded to the First Amendment principles which underlie § 8(c) of the Act. But one relevant factor in such a determination is whether the employer has the power to control the occurrence of the untoward events which are the subject of his communications. NLRB v. River Togs, 382 F.2d 198 (2 Cir. 1967). Clearly that was the case here. And since, in addition, there is no apparent economic cause-and-effect relationship between entry of the Union and the relocation of respondents' place of business, we think these statements might properly be interpreted, both in purpose and effect, as likely to instill fear in the employees that dire steps of retaliation would result from an authorization of the Union as their bargaining representative. See Irving Air Chute Co. v. NLRB, 350 F.2d 176, 178-179 (2 Cir. 1965); Edward Fields, Inc. v. NLRB, supra, 325 F.2d at 760; NLRB v. Cousins Associates, Inc., supra 283 F.2d at 243; NLRB v. Somerset Classics, Inc., 193 F.2d 613, 614-15 (2 Cir.), cert. denied 344 U.S. 816, 73 S. Ct. 10, 97 L. Ed. 635 (1952).
While we therefore grant enforcement to that part of the order which refers to threats of plant removal, we are unwilling to go the further step of approving the additional words "or other reprisals."*fn7 There is danger that such a catch-all phrase might be interpreted as having reference to other statements found objectionable by the Trial Examiner, but not specifically mentioned in the order, which we view as protected by § 8(c) of the Act. These statements include Eugene's opinion that if the Union got in and its demands were too high, he would have to raise prices and cut back production, as well as his reference to several firms which had been forced to go out of business after becoming involved with a particular union. Standing alone, these statements are clearly entitled to protection under § 8(c) and the First Amendment. See our recent opinion in NLRB v. Golub Corp., 388 F.2d 921 (2d Cir. 1967). We do not think the fact that they were uttered in conjunction with the few, minor § 8(a)(1) violations which we have here sustained is sufficient reason to strip them of the protection which that section was intended to provide, cf., NLRB v. Virginia Electric & Power Co., 314 U.S. 469, 86 L. Ed. 348, 62 S. Ct. 344 (1941). The fact that such predictions of dire events are unwarranted, or less than fully substantiated when made, is not, in our opinion, itself enough for this purpose, so long as they are not advanced without any reasonable basis in fact. NLRB v. Golub Corp., supra.
Regarding Eugene Yokell's statement to the employees shortly after the beginning of the organizing campaign by the Union that the workers should not do anything and not sign any cards and have patience for a couple of days until they found out something about the Union and could meet and talk things over, we conclude that there was sufficient in the accompanying circumstances, particularly in connection with the meeting which followed, to call for enforcement. If a spectrum of varying conditions is considered, running from those quite clearly calculated to interfere with the employees' right to free choice to those expressions by the employer of "views, argument or opinion" within § 8(c), we would hold that a simple direction by an employer to his employees not to sign a card would fall within the former as one designed to interfere with the employees' free choice. If, however, the employer asked the employees not to make a decision for a couple of days so that he could tell them his views and so that they could think the matter over, and he thereafter did talk to them but confined himself entirely to what was clearly permissible under § 8(c) and without any violation of § 8(a)(1), then his initial request that they make no decision for a short time, including the signing of cards, should be held to be legitimate so long as its only purpose was to secure the opportunity to be heard. The evidence showed that the facts of the present case place it somewhere in ...