Friendly and Hays, Circuit Judges, and Jameson,*fn* District Judge.
Petitioner, MPC Restaurant Corp. and Hardwicke's Plum Ltd., a joint venture, doing business as "Maxwell's Plum," a restaurant in New York City, has filed a petition to review and set aside a decision and order of the National Labor Relations Board. The order directs the employer to cease and desist from certain unfair labor practices, to reinstate four discharged employees and to reimburse them for any loss of pay suffered by them as a result of what the Board determined to be their unlawful discharge, to post appropriate notices and to bargain with Union Local 89 upon request. The Board has filed a cross-application for enforcement of its order. We grant the Board's cross-application for enforcement of its order and deny the employer's petition for review.
"Maxwell's Plum" is a restaurant located in New York City. It employs approximately 100 to 120 kitchen and dining room employees. In September of 1970, the Chefs, Cooks, Pastry Cooks and Assistants Union, Local 89, Hotel and Restaurant Employees and Bartenders International Union of America, AFL-CIO, began organizational efforts among the kitchen employees of Maxwell's Plum. At the same time Dining Room Employees Local 1, affiliated with the Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, undertook to organize Maxwell's Plum's dining room employees.
On October 22, 1970, a petition for election was filed with the National Labor Relations Board by Local 89. The petition stated that a demand for recognition and bargaining had been made upon the employer the previous day and that the employer had not acceded to the demand. At the time of the Union's demand for recognition, it claimed that it had authorization cards from almost two-thirds of the kitchen employees.
Meanwhile, Local 1 had continued its organizing campaign among the restaurant's waiters and, as the Board found, the employer had responded to those efforts by discharging several employees active in the union, by threatening the waiters with reprisals if they persisted in the organization campaign, and by promising them benefits if they ceased.
In its representation petition Local 89 sought to represent a unit limited to "kitchen" employees. The employer argued that a unit confined to kitchen employees was an inappropriate bargaining unit in that it covered less than one-third of its total work force. A representation hearing was stayed when Local 89 filed charges alleging violations of Sections 8(a) (1), (3) and (5) of the National Labor Relations Act.
Local 1 had already filed charges against the company alleging violations of Sections 8(a) (1) and (3) of the Act. However, Local 1 did not at that time seek recognition as the bargaining agent for any of Maxwell's Plum's employees.
The complaints of the two unions were consolidated for trial. The allegation that the employer had violated Section 8(a) (5) with respect to Local 89 again gave rise to the issue of the appropriateness of the bargaining unit for which Local 89 had made a bargaining demand. The trial examiner found that a unit limited to kitchen employees was appropriate for bargaining purposes and that the employer had violated Sections 8(a) (1), (3) and (5) of the Act.
The Board affirmed the trial examiner's findings of fact and conclusions of law with minor modifications. The Board found that the employer had violated Section 8(a) (1) of the Act by coercively interrogating its employees about their union activities, by threatening employees with discharge if they persisted in their union activities, and by promising and granting pay increases and hospitalization and health benefits to its employees as inducements to persuade them to reject the union's organizing efforts. The Board held that the company had violated Section 8(a) (3) and (1) by discharging certain employees because of their union activities and that it had violated Section 8(a) (5) and (2) by refusing to recognize and bargain with Local 89 as the exclusive representative of the company's kitchen employees who, the Board found in agreement with the trial examiner, constituted an appropriate bargaining unit. The Board determined that a bargaining order was an appropriate remedy for the company's unfair labor practices.
A. The Unfair Labor Practices.
There is ample evidence in the record to support the Board's finding that the company interfered with, restrained, and coerced its employees in violation of Section 8(a) (1) of the Act. In addition to surveillance and interrogation, see Bourne v. NLRB, 332 F.2d 47 (2d Cir. 1964), there were inducements in the form of increases in pay and other changes in working conditions which were all part of the company's effort to cripple the union's organization drive. See NLRB v. Exchange Parts Co., 375 U.S. 405, 409, 11 L. Ed. 2d 435, 84 S. Ct. 457 (1964). Although there was some evidence that the grant of improved hospitalization and medical care insurance might not have been aimed at stifling union ...