Waterman, Kaufman and Hays, Circuit Judges. Waterman, Circuit Judge (concurring in part and dissenting in part). Hays, Circuit Judge (concurring in part, dissenting in part).
IRVING R. KAUFMAN, Circuit Judge:
A petition for review and cross-application for enforcement of an order of the National Relations Board are before us. The order rests in the main upon the Board's finding that petitioner Luxuray of New York Division of Beaunit Corporation committed three unfair labor practices in connection with an organizing campaign at Luxuray's Fort Plain, New York plant. The campaign, undertaken by the International Ladies Garment Workers' Union in the early months of 1969, resulted in the union's defeat in a representation election held September 19, 1969. Subsequently, as we will discuss in more detail, this election was set aside and a new election has been ordered. The discord between the parties here over each facet of the Board's order requires that we refer to several basic policies of labor relations law for a principle of resolution, since the facts are not in dispute.
As the first stage of its organizing effort, the union named several employees to an organizing committee. This committee met several times during February and early March, 1969. One of these meetings was held at the home of a Fort Plain employee and committee member, Mrs. Catherine Coppernoll. In their testimony before the trial examiner, two representatives of the company, Ernest Eely, a supervisor, and Donald Shults, Plant Manager at Fort Plain, admitted that they conducted surveillance of this meeting. At the instance of Shults, who wanted "to find out how many people were going to attend the meeting," Shults and Eely drove to Mrs. Coppernoll's home in a borrowed car, to avoid being recognized, and parked nearby at a convenient vantage point for about forty-five minutes. After identifying at least two employees arriving for the meeting, Shults and Eely drove past the Coppernoll house in an apparent fruitless attempt to identify other employees' cars, and then returned to Fort Plain. No employee ever learned of the surveillance. The little information garnered by the expedition was never used, and indeed soon became superfluous when in early March the union volunteered to management the names of the eleven members of the organizing committee. Shults testified that he subsequently learned that the surveillance was improper and was not to be repeated, and in fact it was not. Admittedly, the surveillance had no effect whatever on the union's organizing efforts and played no part in the union's eventual election defeat.
Luxuray does not seek to overturn the conclusion of both the Trial Examiner and the Board (nor did it make such effort before the Board) that the surveillance constituted an unfair labor practice in contravention of Section 8(a) (1) of the National Labor Relations Act, see, e. g., N. L. R. B. v. Standard Forge & Axle Co., 420 F.2d 508, 510 (5th Cir. 1969), cert. denied, 400 U.S. 903, 91 S. Ct. 140, 27 L. Ed. 2d 140 (1970); N. L. R. B. v. Comfort Inc., 365 F.2d 867, 870 (8th Cir. 1966). Rather, the company calls upon us to exercise our narrow power to review the Board's expert choice of an appropriate remedy, see N. L. R. B. v. Gissel Packing Co., 395 U.S. 575, 612 n. 32, 89 S. Ct. 1918, 1939, 23 L. Ed. 2d 547 (1969),*fn1 and hold that the single episode of surveillance proved will not as a matter of law support a cease-and-desist order.
In enforcing this aspect of the Board's order, we do not pass judgment on the propriety of decisions of two Circuits, International Union, United Auto, Aerospace and Agr. Implement Workers of America v. N. L. R. B., 427 F.2d 1330 (6th Cir. 1970); International Woodworkers of America, AFL-CIO, Local 3-10 v. N. L. R. B., 127 U.S.App.D.C. 81, 380 F.2d 628, 630, 631 (D.C. Cir. 1967), holding that the mandatory language of Section 10(c) of the Act means just what it appears to say, namely that whenever the Board finds an unfair labor practice it "shall issue" an appropriate cease-and-desist order. The efficacy of a remedial order is not measured only by the specific gravity of the offense that is its progenitor. We may assume, without deciding, that the Board in an appropriate case can balance the detrimental effects of an order if issued on labor-management relations, and refuse to issue one. The Board here informs us that the order is appropriate to protect against the resumption of previous unlawful activity. Since, following the union's election defeat, the election was set aside (for reasons which will appear below), the Board cannot be faulted for attempting to ensure that the reelection is not also infected with the unfair labor practices which occurred during the first campaign. By its order the Board guarantees to the union that it will not have to start all over again at a new hearing before a Trial Examiner to secure a remedy should the employer repeat its unlawful surveillance. We cannot say that the Board's evaluation is without legal justification.
Following receipt of the employees' names who were members of the union's organizing committee, the management at Fort Plain held several meetings during working hours. At some of these, the management made known its general anti-union attitude, and it appears that the members of the organizing committee as well as other employees thought to be pro-union were excluded from meetings at which the union's organizing drive was discussed. In addition, company officials distributed or mailed to employees, or attached in their paychecks, a number of anti-union propaganda leaflets with the often repeated refrain that unions cause employees more trouble, primarily because of strikes, than they are worth.
The only issue before us is whether Luxuray violated Section 8(a) (1) of the Act by showing to employees at one of the anti-union meetings from which pro-union employees were excluded, a film, which might appropriately be characterized as propaganda, entitled "And Women Must Weep." Prior to showing the film, Sidney Foreman, Director of Manufacturing of the Consumer Product Division of Beaunit Corporation read to the employees a prepared written statement to the effect that the events depicted were true although the film was a dramatization by professional actors. Foreman also observed that the setting of the strike portrayed in the film was a small town like Fort Plain and warned that similar events "could happen to us people, our community, our friends."
The film itself has apparently become something of a standard tool in anti- union campaigns. The Fifth Circuit has accurately described its contents:
It is in color. It tells the story of a strike in Princeton, Indiana. The actors and actresses are professionals. The film is narrated by one of the actresses who plays the part of the wife of a minister whose parishioners are involuntarily involved in the strike as members of the union. They are among the union members who are dictatorily mistreated by the majority of the union members. The majority provoked the strike to serve the wrongful ends of one union officer. The minority of the members who oppose the strike are deprived of their rights by the majority. The strike was called without consulting the International.
Among other baneful events, the film shows picket line violence, the minister being jeered, smashed windshields, slashed tires, and upturned automobiles, all caused by the majority members of the union. The minister's wife is threatened by an anonymous caller who announces that her home will be the next to be bombed. The minister is shown with a rifle, sitting through the night, in an effort to protect his family. The climax of the fray is reached when the strikers fire into the trailer home of a dissenting union member and a bullet strikes his baby in the head. The film closes with the end of the strike and with the announcement that the baby will live. The closing words of the narrator are: "All you have to do is ask yourself, could my town be next? And if you think that the answer of what happened to us couldn't happen to you, remember that is what we thought in the beginning. Must you wait to come face to face with tyranny as we did."
Southwire Co. v. N. L. R. B., 383 F.2d 235, 239-240 (5th Cir. 1967).
By a vote of two to one, the three -member Board panel agreed with the Trial Examiner that by showing the film, the company violated Section 8(a) (1) of the Act, which prohibits an employer "to interfere with, restrain, or coerce employees in the exercise" of their Section 7 rights. As a corollary, the Board found the film unprotected by the "free speech" amendment of the Labor Management Relations Act of 1947, Section 8(c) of the N.L.R.A., which provides that speech "shall not constitute or be evidence of an unfair labor practice * * * if such expression contains no threat of reprisal or force or promise of benefit." Relying primarily on N. L. R. B. v. Gissel Packing Co., 395 U.S. 575, 89 S. Ct. 1918, 23 L. Ed. 2d 547 (1969), the Board appears to advance two theories under which showing the film might be found unlawful under the Act: (1) That, especially in light of Foreman's introductory remarks, the film impliedly made "representations as to the dire results of unionization which are both factually unsupportable and coercively misleading." (2) That the violence and misconduct depicted in the movie is unlikely to occur absent ...