Friendly, Hays and Anderson, Circuit Judges. Hays, C. J. (concurring and dissenting).
Frank and Joseph Gallaro are partners in a retail food store, doing business under the name G & G Foods Co., in Brooklyn, New York. The Retail Food Clerks Union, Local 1500, Retail Clerks International Association, AFL-CIO, was certified as the exclusive bargaining agent for the Gallaro employees on November 29, 1965, following a consent election held on October 25 which the Union had won by an eight to seven vote. A collective bargaining agreement, effective as of February 1, 1966, was subsequently entered into by the Gallaros and the Union. The contract, which contained no reopening or automatic renewal clause, was to terminate by its own terms on January 31, 1967.
On January 24, 1967, Arthur Wolfson, the Union vice president, called Carmine Gallaro*fn1 by telephone to arrange for negotiations for a new agreement. Carmine responded that he had not realized that the existing contract expired so soon, but that he would, in any event, need to discuss the matter with his brothers. When Wolfson called again on January 26 or 27, Carmine stated that he had not, as yet, had an opportunity to discuss the matter with them.
Meanwhile, one of the employees, Michael Ferrara, had been circulating among the employees a petition indicating that they no longer desired union representation.*fn2 On January 27, when he showed the petition to Carmine Gallaro, Ferrara had obtained four signatures. Carmine expressed neither approval nor disapproval of the petition, but did state, ". . . if you people want to be represented among yourselves, or whatever you are trying to do, you have to have a majority of the employees."
By January 30th Ferrara had secured the signatures of seven of the ten employees in the bargaining unit and, after dating the petition, delivered it to Carmine. Later that day Wolfson again contacted Carmine relative to a date for negotiations but Carmine once more demurred, and indicated that he was not sure that the Union still had the support of the employees.
That same evening*fn3 the employees held a meeting*fn4 at the store after working hours. They asked to meet with the Gallaros and requested a 25-cent an hour pay increase. It had been the long-standing practice at the store to give an annual wage increase, and the employees were concerned that none had been granted since the previous February when the Union contract was executed. The request was rejected by Carmine, who indicated that even though he was willing to listen, he could not promise anything because the meeting might not be legal. The employees then stated that they would settle for a 15-cent an hour increase for the first year with an additional ten cents for the second year. Carmine again expressed doubts as to the legality of the meeting, but stated that the increases would be granted "if it is perfectly legal." No date was set for the determination of the question of the increases. Although the trial examiner found that Ferrara at one point threatened to "stick with the union" if the requests were not granted, this was not the primary emphasis of the meeting.
The following day, January 31, Wolfson again contacted Carmine and asked if the Gallaros were ready to negotiate. Carmine told him that the employees had decided to reject the Union; and, therefore, no negotiations were commenced. The employees' petition had been given to the company's attorney and on February 3, 1967, an RM-representation petition was filed by him with the NLRB on behalf of the Gallaros. On February 7, the Union filed the unfair labor practice charges upon which the petition in this case is based. The RM-representation petition was then dismissed by the Board because of the pendency of the unfair labor practice charges.
On February 25th the Gallaros granted the employees a 15-cent an hour wage increase, retroactive to January 30, 1967. They also continued the health benefits which had been in effect prior to the Union contract.
On this evidence Trial Examiner Lightner found that the Gallaros had violated §§ 8(a)(1) and (5) of the Act, 29 U.S.C. § 158(a)(1) and (5), based upon Carmine's conduct when contacted by Wolfson on January 24th, the January 30th meeting between the Gallaros and the employees, and the February 25th wage increase. The Board, without discussion, adopted the Trial Examiner's findings, conclusions and recommendations,*fn5 and issued a cease and desist order together with orders to post the standard notice for sixty days, to bargain with Local 1500, and to make certain back payments to the Union's welfare fund.
The Board's contention that Carmine's response to Wolfson's January 24th telephone call, particularly when viewed in light of Gallaros' subsequent actions, constituted a refusal to bargain within the meaning of § 8(a)(5) is untenable. Wolfson's call was the first contact made by the Union concerning negotiations for a new contract. It has not been shown that Carmine had any authority to answer other than as he did, and he was not acting arbitrarily when he stated that he would have to take the matter up with his brothers, the co-owners of the business, before he could agree to a specific date for such negotiations. Cf. NLRB v. River Togs, Inc., 382 F.2d 198, 206-207 (2 Cir. 1967).
The Union's certification year had expired in November of 1966, but there remained the rebuttable presumption that the union continued to represent a majority of the employees, Brooks v. NLRB, 348 U.S. 96, 99 L. Ed. 125, 75 S. Ct. 176 (1954). After the expiration of the certification year, an employer is free to refuse to bargain with a union if there is a good faith doubt as to the union's continuing majority status, though otherwise he has a duty to negotiate about a new contract. The presumption here concerning the Union's continuing majority status was weak at best. The Union won the first election by a margin of only one vote. During the certification year the number of employees was reduced by five, which factor taken together with the fact that the petition had been instituted and circulated by the employees themselves, without employer encouragement or intervention, makes it clear that the presentation of a petition signed by 70 per cent of the members of the unit adequately dispelled any supposition that the union still maintained the allegiance of a majority of the workers.*fn6 This was sufficient to create a good faith doubt and justify the subsequent refusal to bargain.
The charge that the January 30th meeting constituted an unfair labor practice poses a somewhat more difficult problem, because even though an employer is free to refuse to bargain with a union once the certification year is over, if there is a good faith doubt as to the union's continuing majority status, Brooks v. NLRB, supra ; see also NLRB v. Master Touch Dental Laboratories, Inc., 405 F.2d 80, 82-83 (2 Cir. 1968); NLRB v. Rish Equipment Co., 407 F.2d 1098, 1100-1101 (4 Cir. 1969); NLRB v. Gulfmont Hotel Co., 362 F.2d 588, 589 (5 Cir. 1966), it does not necessarily follow that the employer is also free to negotiate with someone else. The difficulty, of course, arises in determining what evidence is sufficient so to rebut the presumption as to permit the employer to bargain with someone other than the union whose certification had terminated.
Where, as here, the meeting was made up of all of the employees, with the possible exception of one, and was held solely at the instigation of the employees, without there being evidence of any suggestion or encouragement by the employer, who was present only when called in from time to time by the employees to hear and consider their demands, we conclude that the employer needed no additional evidence, other than the petition described above, to support the existence of a good faith belief that the union no longer represented the employees. There was, therefore, here sufficient proof, not only to create a good faith doubt, but to justify the employer in the belief that more than a majority of the employees no longer wanted the union to ...