Before WATERMAN, SMITH and KAUFMAN, Circuit Judges.
Petition by National Labor Relations Board to enforce an order requiring respondent to cease and desist from certain unfair labor practices and to bargain with a union. The Board's decision and order are reported at 170 NLRB No. 99. Enforcement fully granted, Judge Waterman dissenting from enforcement of that portion of the order requiring respondent to bargain prior to a Board-conducted representation election.
WATERMAN, C. J.: This is a petition by the National Labor Relations Board to enforce its order of March 29, 1968, against respondent Marsellus Vault & Sales, Inc. The Board, agreeing with its Trial Examiner, found that the Company violated Section 8(a)(1) of the National Labor Relations Act by coercively interrogating employees about their union activities; by threatening to close the plant if the Union came in; by inducing employees to withdraw their support of and membership in the Union; and by urging employees to form their own union rather than joining a local of the Teamsters. The Board also adopted the Examiner's finding that the Company violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the Union after it had been designated as the bargaining agent of the Company's employees in an appropriate unit.
The Board's order requires the Company to cease and desist from engaging in the unfair labor practices so found and from interfering with employee rights in any like or related manner. Affirmatively, the Company is required to bargain with the Union upon request and to post appropriate notices.
A majority of this court grants full enforcement of the Board's order. I, however, do not consider a bargaining order appropriate in the circumstances of this case and therefore I do not concur in that portion of our result in which we grant enforcement of the bargaining order.
Respondent is engaged in the manufacture and sale of funeral supplies. Its principal place of business is in Syracuse, New York, but the present dispute concerns its small plant in Mexico, New York. During the period in question, March 26, 1967 through April 13, 1967, there were seven employees in the Mexico Plant. One of these, William Roberts, acted as the plant manager, a position he had held for several years prior to this time. His immediate supervisor was respondent's personnel director, Richard Perschel, whose office was in Syracuse but who normally visited Mexico twice each week.
On March 27, 1967, a meeting was held in a neighborhood tavern between all the Mexico employees, excluding Roberts, and James Parry, vice president of the Dairy and Bakery Salesmen and Dairy Employees Union, Local 316, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (hereinafter the Union). At this meeting, Parry distributed "Application for Membership" cards in the union. See Appendix to this opinion [Appendix omitted. - CCH.]. These cards both designated the Union as the signer's collective bargaining representative and authorized the employed to deduct union dues from the employees' monthly wages. The last sentence on each card stated that the authorization and application were not to be applicable "until 30 days after the date hereof." The purpose and the meaning of the cards were carefully explained to the employees and each one of the six signed a card.
The next day the Union's president, Patrick F. Shanahan, sent a letter to John Marsellus, respondent's president, stating that the Union had possession of signed authorization cards from all of the employees in the Mexico plant, and that an inspection of the cards could be arranged. Marsellus was also requested to begin bargaining with the Union immediately. On April 3, a reply was sent to the Union stating that the Company was in favor of having the representation question settled by a Board election. No mention of a card check was made.
In the intervening period, Perschel had visited Mexico and had stated to Tony DeMarko, a senior employee, in the presence of co-workers, "How come you went for outside help?" He also said to Lester Wood, another employee, ". . . if you had any problems, why didn't you come to me with them?" At the same time that he made this latter remark, Perschel told Wood he wanted his and DeMarko's keys back since they were given to the employees by Roberts; and if anything happened "because of the union deal," Roberts would be responsible. A half hour later he himself reissued the returned keys to DeMarko and Wood.
On April 5th both Perschel and Marsellus visited Mexico. They told all employees that Roberts was retiring for health reasons and that Tony DeMarko was to be the "new boss," though Roberts was to stay on until April 14 to assist DeMarko in his new duties.
Later that same day DeMarko had a conversation with several employees. Exactly what he said and how he said it was in dispute before the Trial Examiner. Two employees, testifying for the General Counsel, stated that DeMarko quoted Marsellus as having said that he would close the plant before a union got in and that if the employees stuck behind him, DeMarko, they "would go places." DeMarko and another employee stated that the first remark was made in a friendly, non-threatening manner during one of many conversations the employees had about the Union; and that it came in response to a remark that the employees should demand $2.25 per hour and was not said in response to anything said by anybody about the Union. In addition to these remarks, it is undisputed that DeMarko was trying to convince the other employees to withdraw their applications to the Union at this time in order to save the price of the union dues, $6.00 per month. Indeed, on April 6, he posted on the plant bulletin board a withdrawal letter drawn up by his wife the night before and he urged several of the employees to sign the letter in order to save money. Eventually, all of the employees did sign up to withdraw their applications except DeMarko. See footnote 6, infra .
In rebuttal to the above, DeMarko testified that prior to April 5 he had taken part in discussions about withdrawal from the Union and that he favored doing so prior to his promotion. Two other employees stated that they, too, had favored withdrawal prior to April 5 and that the question was a topic of conversation in the plant throughout this period.
On April 12, the Union met with Marsellus to arrange for a consent election. The meeting was unsuccessful, however, and on the following day the instant ...