Friendly, Chief Judge, Waterman and Hays, Circuit Judges. Hays, C.j. (dissenting).
In January, 1971, in NLRB v. General Stencils, Inc., 438 F.2d 894 (2 Cir. 1971), we remanded to the National Labor Relations Board the portion of its order of August 15, 1969, 178 NLRB 108, requiring a small Brooklyn manufacturer to bargain with a union which had obtained authorization cards from a majority of its production and maintenance workers in 1967. We did this in light of two factors: One was our holding that the Board's findings of unlawful interrogation of two workers were unwarranted under our decision in Bourne v. NLRB, 332 F.2d 47 (2 Cir. 1964); the other was a question whether the surviving findings met the requirements laid down in NLRB v. Gissel Packing Co., 395 U.S. 575, 613-15, 23 L. Ed. 2d 547, 89 S. Ct. 1918 (1969), for dispensing with a Board-supervised election and our inability to understand the seeming disparity between the Board's issuance of a bargaining order in this case and its failure to do so in others where the employer's conduct appeared to pose a graver threat to the conduct of an election. We presented the Board with three possible courses for applying its " Gissel -given authority" to issue a bargaining order on the basis of cards alone. These were, in descending order of desirability: (1) use of the Board's rule-making power; (2) an illuminating opinion by the full Board; and (3) an explanation in each case "just what it [the Board or a panel] considers to have precluded a fair election and why, and in what respects the case differs from others where it has reached an opposite conclusion." 438 F.2d at 901-02.
More than fourteen months after our remand, on a further review of the record, two members of a three-man panel adhered to the initial determination. 195 NLRB No. 173 (1972). Chairman Miller dissented. In an opinion of the sort envisaged by the second possibility we had suggested, he analyzed a broad range of types of employer misconduct and sought to develop standards that would bring consistency and intelligibility into the Board's decisions.*fn1 The majority, however, opted for the third course.
The majority regarded as "the most salient violation" a threat of plant closure allegedly made by Joseph Klugman, the Company's general manager, to a single employee, Robert Kretschmer, who had already advised the employer of his intention to leave. It is worthwhile to state just what the evidence of this "threat" was. Kretschmer testified that after making unfavorable remarks about unions, Klugman "also said that he didn't have to give us, anything that -- well, what I am going to say now was said before the union came in and during --", and then, after an objection by counsel,
Yes, this was all in the same conversation, but this was something that he had said before. I mean it is not something he just said at this one specific time, that he could always close, close the business.
Further, in response to the General Counsel's question on redirect "whether on more than one occasion Mr. Klugman said that if the union came in, he would close down or might close down," Kretschmer responded in the affirmative.
Kretschmer gave no testimony that he took this threat seriously or that he had ever communicated Klugman's remarks to any other employee in the two-month period before he left. Seventeen other employees were called by the General Counsel, but none testified to having heard such a threat, either directly or indirectly. The majority sought to avoid the absence of any such testimony by saying:
A threat of such serious consequences for all employees for selecting the Union will, all but inevitably, be discussed among employees.
Chairman Miller thought it made "no sense whatever to permit the only witness who heard a threat to testify that the threat was made but to remain silent on the question whether he disclosed the threat to any other employee," since "[a] chain of dissemination is a relatively easy matter to establish" but "nondissemination is virtually impossible to prove . . . ."*fn2
While we agree that the General Counsel should not be relieved of this exceedingly slight burden before the Board can rely on such a threat to support a bargaining order, there are further circumstances invalidating the majority's conclusion in this case. As indicated, Kretschmer was about to leave; common sense dictates that the case for such an "inevitable" inference as the majority made is at its weakest when a "threat" to such an employee is involved. Indeed, Klugman's "threat" made so little impression on Kretschmer that at first he could not recall this part of their conversation. To bring Klugman's alleged remarks to Kretschmer under the same rubric as the repeated and detailed threats of plant closure which were the subject of the Court's rulings in Sinclair Co. v. NLRB, decided with Gissel, 395 U.S. at 618-19, is an example of the "fallacy of the lonely fact" and the further fallacy of using the same word to cover wholly unlike situations. The Supreme Court detailed at great length the extent, reality, and immediacy of Sinclair's threats of plant closure. 395 U.S. at 587-89. See also NLRB v. Sinclair Co., 397 F.2d 157, 159 (especially note 5), 160 (1 Cir. 1968). In contrast, Klugman's remarks, if made, went little beyond the truism that an employer can shut a plant at any time. American working men are bright and sturdy enough to know this, and also to know how unlikely it is that a small local employer will in fact close down a flourishing operation simply in a fit of pique. It is thus easy to understand why what has now become "the most salient violation" by respondent received no mention in the Board's original decision as a ground for a bargaining order.
The other ground advanced by the majority for finding § 8(a) (1) violations of such magnitude as to justify dispensing with an election was this court's "inexplicable" failure to ascribe proper importance to "two specific violations of comparable gravity to the threat of closure; namely, the threat to lay off and the threat to discharge employees in the event the Union won an election." If we had done anything so truly inexplicable, we would have been in good company. Although the Board's previous decision noted these threats of layoff and discharge, 178 NLRB at 108 nn. 2 & 3, it supported its bargaining order by referring only to the employer's "intention to revoke many existing privileges if they elected the Union." In its brief in this court the Board argued that the bargaining order was justified in light of the employer's threatening the employees "with loss of benefits, disciplinary sanctions and the possibility of plant closure;" it said nothing of threats of layoff or discharge. Following these leads, after discussing the plant closure issue, we referred to "threats to a few employees to withdraw benefits of a relatively minor nature." 438 F.2d at 902-03.
We find the Board's newly found reliance on the "threats" to lay off and discharge as a ground for a bargaining order to be unwarranted. The bases for the claimed "threat to discharge employees in the event the Union won an ...