Lumbard, Chief Judge, and Smith and Feinberg, Circuit Judges.
This is a petition of the National Labor Relations Board for enforcement of the Board's order requiring respondent, M.H. Brown Company to bargain with Mechanics Educational Society, AFL-CIO, to offer reinstatement and back pay to six discharged employees, and to cease and desist from various unfair labor practices. Enforcement of the order is denied.
The chronology of events from which the Board found unfair labor practices is as follows: On January 9, 1969, the union began organizing the plant. On January 10, the union sent a telegram to President Brown advising him of this organization drive. That afternoon, he called three successive groups of employees into his office and asked what their complaints and problems were. On January 14, the union organizer and an employee met with Brown and requested recognition, offering to show him authorization cards signed by a majority of the unit's employees. Brown said he did not have the authority to respond to these requests and would have to check with the parent company in Boston. He declined to inspect the cards.
The three employees who met with Brown took the rest of the afternoon off. The next morning, they received notices requiring that they state the reason for this absence. On January 17, the second shift with seven employees was discontinued. On January 20, the union again unsuccessfully sought recognition. On January 21, Brown filed with the Board a representation petition seeking an election under section 9(c)(1) (B) of the Act. On February 13, all full time employees were granted pay raises retroactive to January 3, and vacation and sick leave benefits were extended.
The trial examiner found that (1) the January 10 questioning was coercive interrogation in violation of section 8(a)(1) of the National Labor Relations Act; (2) Brown's promising and granting wage increases and fringe benefits was aimed at discouraging union activities in violation of section 8(a)(1); (3) requiring the three union men to state why they were absent violated section 8(a)(1); (4) eliminating the second shift and laying off seven employees violated sections 8(a)(3) and (1); and (5) refusing to bargain with the union violated sections 8(a)(5) and (1). The Board adopted these findings.
In at least two principal respects, which must have had major influence on the bargaining determination, the Board's findings are quite plainly wrong. In holding that the pay raise determination came after the union activity became apparent, not only was Brown disbelieved, but also the uncontradicted testimony of the people to whom he had revealed the plans at the Christmas party.*fn1 Likewise, the uncontradicted evidence of the business decline prior to the layoffs was ignored or misconstrued. The other findings are also lacking in substantial support.
Determination of credibility is, of course, for the examiner and the Board, but unless plain errors such as these are held to require correction the reviewing function of the courts is a mere pretense.
I. January 10 Interrogations
There is no real dispute as to what happened at each of these three meetings. Brown told the employees that he was surprised to hear of the union campaign, and asked them what their complaints were. Almost all said money, and Brown replied he was going to give them raises as he had previously mentioned to several of them. Once or twice, he suggested a wage benefit package was in the offing which was better than what the employees were asking for, but that he didn't know if he could immediately put the increases into effect as he had planned because of the union's appearance. However, Brown did not ask which or how many employees joined the union. Several of the respondent's witnesses also testified that Brown stressed he was not asking them personally about their feelings toward the union.
The trial examiner found that this constituted coercive interrogation. This conclusion is not supported by the record. In NLRB v. Dorn's Transportation Co., 405 F.2d 706 (2d Cir. 1969) this court held that an employer can interrogate employees with respect to union organization purely for informational purposes. There is nothing in the record to suggest any other motivation. This circuit has laid down several tests to attempt to determine whether coercion is implicit in the questioning: (1) background; (2) nature of information sought; (3) identity of questioner; (4) place and method; (5) truthfulness of reply (Bourne v. NLRB, 332 F.2d 47 (2d Cir. 1964). Here there was no history of hostility to unionism and Brown was not seeking information as to the union sentiments of individual employees. While the questioner was the president and the questioning took place in his office, this is a small company and no one disputes his assertion that there was no other satisfactory place to hold these meetings. Finally, the replies given by the employees were truthful.
The petitioner cites NLRB v. Milco, Inc., 388 F.2d 133 (2d Cir. 1968). But there, the questions found to be coercive were directed at each employee's own position and sympathies, and the replies were evasive. NLRB v. Consolidated Rendering Co., 386 F.2d 699 (2d Cir. 1967) is cited by the Board for the proposition that in a small plant workers are especially sensitive to their employer's anti-union attitude. Yet here the employees' replies were truthful. Finally, Bryant Chucking Grinder Co. v. NLRB, 389 F.2d 565 (2d Cir. 1967), cert. denied, 392 U.S. 908, 20 L. Ed. 2d 1366, 88 S. Ct. 2055 (1968) is noted for the proposition that the promise of increased benefits further shows the unlawful nature of the questioning. But there the employees were interrogated by supervisory officials as to their union attitudes against a background of active employer opposition with no indication of the purpose of questioning, and no assurance against reprisals, none of which is true in the present case. The Board seizes on the opinion's statement that some of these interrogations were particularly threatening in that they were "in connection with interviews concerning eligibility for merit increases" -- obviously, a different matter.
II. Written Notice From Three Employees
After the three members of the in-plant employees committee finished their January 14 meeting with President Brown, they took the rest of the afternoon off. The next morning, they received written notice requiring them to forward their excuse in ...