Waterman, Smith and Kaufman, Circuit Judges.
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 emplyees 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; to bargain with the Union upon request; and to post appropriate notices.
The respondent timely answered the Board's petition and seeks to have the Board's order vacated and set aside.
The case was argued to the present panel of the court on May 14, 1969, and thereafter has had a history unlike that of any other case in the Second Circuit. The panel filed an opinion on October 1, 1969. Two judges granted enforcement of the Board's order in its entirety. One judge dissented in that opinion to the enforcement of the portion of the order that required the respondent to bargain with the Union.
The respondent requested that the full court consider the case in banc and on December 2, 1969 this request was granted. The Board then moved to have the case remanded to it for further consideration at the administrative level. This motion was denied, brief dates were fixed, and the case submitted to all nine judges. Pertinent exhibits not presented to the panel by the Board were requested and furnished by it to the in banc court. After receipt of these exhibits and examination thereof the in banc court decided, on April 8, 1970, that the earlier in banc order should be revoked and a panel opinion filed enforcing the Board's order in full. Pursuant thereto a unanimous panel files the within opinion.
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. The purpose and meaning of the cards were carefully explained to the employees and all six signed cards, signing them on each of two signature lines set forth thereon. The signed cards had been, of course, exhibits at the hearing the Board's Trial Examiner had conducted. However, they were not made available to the court by the Board until the court requested them after the judges had decided to consider the case in banc. A supposed facsimile of an unsigned card was incorporated into the Trial Examiner's written decision and the interpretation of the language of this presumed accurate facsimile by the original panel had brought about the petition requesting in banc treatment. The original cards disclose that they are divisible into two parts by tearing along a perforated line just above the legend "Check-Off Authorization And Assignment" and just below the signature line to the upper portion of the card headed by the legend "Application For Membership." The facsimile originally presented to the panel disclosed that there were two signature lines but did not disclose the existence of the perforation or the fact that the card could be separated into two independent parts by tearing along the perforation, which, when done, would result in two fully executed signed documents. See Appendix to this opinion.
By signing the upper half of the card the signer designated the Union as the signer's collective bargaining representative. By signing the lower half of the card the signer authorized his employer to deduct union dues each month from the signer's wages. However, just above the signature line on the lower half of the card is a two sentence paragraph reading:
"I have read the above authorization and application and understand it and have signed it of my own free will. This is not to be applicable until 30 days after the date hereof."
The six cards were received March 29 at the Regional Office of the Board in Buffalo, N.Y., accompanying the Union's petition for certification.
On March 28 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 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 ...