Friendly, Chief Judge, and Moore and Anderson, Circuit Judges.
This proceeding, dealing with alleged unfair labor practices with respect to a five man unit in 1966, is back again.*fn1 In our previous opinion, 403 F.2d 408 (2 Cir. 1968), familiarity with which is assumed, we remanded for consideration whether the union with which World Carpets was directed to bargain had engaged in such misconduct as to disqualify it from being granted that relief under our decision in NLRB v. United Mineral & Chemical Corp., 391 F.2d 829, 838-41 (2 Cir. 1968), and, even if not, whether a bargaining order in this case would further the policies of the National Labor Relations Act. In the two and a quarter years between our remand and the Board's second decision, 188 NLRB No. 10 (Jan. 26, 1971), the criteria governing determination of the latter question -- indeed, of the whole issue of respondent's refusal to bargain -- were significantly altered by the Supreme Court's opinion in NLRB v. Gissel Packing Co., 395 U.S. 575, 23 L. Ed. 2d 547, 89 S. Ct. 1918 (1969), and the three other cases decided therewith.
A further hearing was held before Trial Examiner Ladwig in the late summer of 1969. His principal findings with respect to union misconduct are set forth in the margin.*fn2 The Examiner added:
The General Counsel's witnesses, who denied most of the testimony on which the above findings are based, did not impress me favorably. On the other hand, the Company's witnesses appeared to be endeavoring to give factual accounts of what had occurred (over 3 years earlier).
He concluded that "the violence which did occur was obviously the result of a campaign, planned by the union officials, to force the cessation of the business by threats and intimidation," rejected the General Counsel's contention that the evidence showed mere "sporadic picket line flashes over a two week period," and held the union's misconduct to have been so much graver than the company's as to disqualify the union from relief for the latter's refusal to bargain. Turning to Gissel, he concluded that the relatively minor misconduct alleged on the part of a company foreman would not preclude a fair election. He therefore recommended an order which would require the company to cease and desist from actions such as those of the foreman but did not include a bargaining requirement.
The Board, with Chairman Miller dissenting, disagreed with the Trial Examiner. The majority questioned his finding that the picketing employees were carrying baseball bats, pointing out that one witness had said only that the instruments "looked like a bat" but "wasn't sure" and another had characterized them as long mop sticks and a small baseball bat. From this it concluded that "what the pickets carried were the type of wooden sticks to which strike posters were attached" -- although no witness had expressly said so. Anyway, the instruments, whatever they were, had been used only to threaten a non-striking employee and not to hit him. The majority continued by saying that "while we do not discredit the fact that the warehouse manager, Charles P. Alvin, was chased in his car, we cannot accept the fact that speeds up to 80 miles an hour were attained at times through city streets" -- as if it would matter if the speed were only 60 miles an hour. It refused to "fully accept" the Trial Examiner's crediting of witness Dow's description of what had happened when he was chased by a union official and a picket, because another employee who was in the car had not gone into similar detail, although he had not been asked to do so. For these and other reasons, the majority thought the union misconduct less serious than did the Examiner.
If decision turned on the point, we would have serious question whether the Board's findings as to the lesser degree of the union's misconduct could survive scrutiny under the principles laid down in Universal Camera Corp. v. NLRB, 340 U.S. 474, 492-97, 95 L. Ed. 456, 71 S. Ct. 456 (1951), and FCC v. Allentown Broadcasting Corp., 349 U.S. 358, 364, 99 L. Ed. 1147, 75 S. Ct. 855 (1955), see 2 Davis, Administrative Law Treatise § 10.04 at 26 (1958), and id. at 411-12 (Supp. 1970), concerning the regard required to be given an examiner's findings on credibility. However, even accepting the Board's version of the facts, the decision to issue a bargaining order failed to take adequate account of Gissel.
According to the Court's opinion, 395 U.S. at 594, the Board represented on oral argument of Gissel that it had "virtually abandoned" the approach of issuing a bargaining order simply on the basis of an employer's lack of good faith doubt as to a union's majority and that "the key to the issuance of a bargaining order is the commission of serious unfair labor practices that interfere with the election processes and tend to preclude the holding of a fair election. Thus, an employer can insist that a union go to an election, regardless of his subjective motivation, so long as he is not guilty of misconduct. . . ."*fn3 The Court adopted the position that employer misconduct which has "the tendency to undermine majority strength and impede the election processes" would justify a bargaining order. 395 U.S. at 614.
The majority's supplemental decision does not comply with Gissel. To begin, the decision is in plain error when it characterizes our previous opinion as holding that a union majority had been demonstrated "at the time of the Union's demand for recognition;" our holding was just the opposite, 403 F.2d at 411.*fn4 This error undermined the majority's basic conclusion that "Respondent's unlawful conduct in derogation of its employees' Section 7 rights was clearly a contributing cause of the strike" and that ordinary strike-connected violence should therefore not be held against the union. The employer had not derogated from any of the employees' § 7 rights when the union called a strike only a few hours after its unexpected demand on a warehouse manager for recognition, without even displaying the authorization cards.
Proceeding from this erroneous foundation, the Board found serious employer misconduct vitiating the possibility of a fair election in the remark of warehouse foreman Pollack, more than two weeks after the strike had begun, mentioned in our previous opinion, 403 F.2d at 410-11. The majority greatly exaggerated the effect of this statement. By the time of the employer misconduct, only two of the four strikers, Granado and Reid, were still picketing, the two other strikers having taken other employment. Pollack asked Alvin, the plant manager, whether the two men could be rehired. Alvin called the company attorney, who said this would be all right if they were rehired at their former salary. Pollack met them and explained the terms on which they would be rehired, but added that "after everything was settled I would try to get them more money," to wit, "the same as anyone else [other warehouse employees] was making." When Granado expressed fear about what might befall him and his family from the union if he returned to work, Pollack said he would attempt to get some document that would protect the returning workers. He procured a letter from counsel stating that the employees could feel free, in the event of threatened violence, to call an NLRB examiner, whose telephone number counsel furnished, and that the Racket Bureau of the District Attorney's office had warned the union officials against violence. The letter added that "the Company may not make any inducement, such as increased pay or better working conditions, to employees out on strike to secure their return to work." Pollack gave a copy of this to Granado and Reid. Counsel's authoritative letter effectively negated any tentative "offer" of higher wages made by this minor supervisor, which he manifestly had no ability to execute.*fn5
The other remark of Pollack's on which the majority relied was that he "had heard that [President] Shaheen had said he would close the warehouse down and ship directly from Georgia or open a new warehouse up in Jersey before he would let the Union in." The majority sought, quite unsuccessfully, to equate this hearsay scuttlebutt related by a minor supervisor, not shown to have been authorized in any way, with the many communications of the employer's president in Sinclair Co. v. NLRB, detailed in 395 U.S. at 587-89. We cannot accept the conclusion that this remark, even when coupled with that previously analyzed, would have made a fair election impossible. Although we realize that Gissel placed great discretion in the Board to decide when the employer's misconduct so jeopardizes the chances of a free election that a bargaining order must issue, we will not automatically defer to the Board's decision when, as here, the employer's misconduct is minimal and the Board's opinion not only is based on faulty premises but is devoid of any analysis as to why, in this particular case, a fair election was no longer possible.*fn6 See NLRB v. General Stencils, Inc., 438 F.2d 894, 901-05 (2 Cir. 1971).
Furthermore, even if we agreed that the employer's conduct might have prejudiced the chances of a free election, that conduct would have to be weighed against the union's. If the violence had been mainly practiced by the striking employees, it might be contended that, however reprehensible even on the Board's watered-down version, this showed the enthusiasm entertained for the union by a majority and hence would not interfere with a fair election since the votes of the intimidated minority could not affect the result. While we doubt that we would accept that argument, since our concept of an election includes an opportunity for full and free discussion, uninfluenced by fear of unfair tactics by either side, we need not decide that point. Here most of the violence was the work of union officials who were not employees, and its effect was to intimidate the latter, as witnessed by Granado's fears over the consequences of a return to work, recited above. The prospect of a fair election had thus vanished for the time being, as a result of the union's activities, prior to the foreman's remarks.
An order will be entered directing enforcement with respect to enjoining further § 8(a)(1) violations, as recommended by the Trial Examiner. The Board's request for ...