Petition to enforce an order of the National Labor Relations Board which found that respondent had violated sections 8(a)(1), 8(a)(3), and 8(a)(5) of the National Labor Relations Act, and which ordered, inter alia, (1) that respondent offer reinstatement with backpay to the discriminatees, and (2) that respondent must bargain collectively with the union upon request. Order enforced as modified.
MOORE and GURFEIN, Circuit Judges, BONSAL, District Judge.*fn*
Respondent Solboro Knitting Mills, Inc. ("Solboro") is a small company in Oakdale, New York, which engages in manufacturing knitted sweaters. The company's operations are, for the most part, seasonal, and its day-to-day business is supervised by Murray Harkavy, the president of the company, and his wife, Rita, the secretary-treasurer of the outfit, who often performs production work on the floor. During the summer of 1974, against the backdrop of a depressed market (with dwindling sales), several of Solboro's thirteen employees, all of whom work in production, decided to look into the merits of union membership. They were apparently spurred on by long-time union member Grace Rugolo, who was first employed by the company for its 1974 season. Rugolo suggested to her co-workers that their complaints of poor working conditions might be remedied by concerted action. When the workers indicated an interest, Rugolo contacted the International Ladies' Garment Workers' Union Local 107.
By October 4, 1974, nine of the thirteen employees had signed cards authorizing the union to represent them for collective bargaining. That morning, two union representatives visited the company office and demanded recognition for Local 107, claiming that it represented a majority of the employees. Mr. Harkavy told the union agents to either make an appointment to see him later, or to send a letter. The union did so the same day, confirming, by telegram, the earlier visit and offering to prove the union's majority status. The Harkavys never replied. Rather, they resisted the unionization by means which resulted in the instant case.
After Local 107 complained to the National Labor Relations Board ("the Board"), charges were filed against Solboro. Administrative Law Judge Irving M. Herman ("the ALJ"), after conducting hearings in February and again in October 1975, issued a thorough and detailed decision on December 30, 1975, finding that Solboro had violated section 8(a)(1) of the National Labor Relations Act ("the Act"), 29 U.S.C. § 158(a)(1), by having coercively interrogated and threatened various employees and having offered promises of benefits to induce them to repudiate their union commitments. Further, the ALJ found that Solboro had prematurely terminated four of its employees because of their union activities, and had refused to rehire them when the 1975 season was under way, all in violation of section 8(a)(3) of the Act, 29 U.S.C. § 158(a)(3). To remedy the unfair labor practices, the ALJ recommended that Solboro be ordered to offer reinstatement to the four employees so wronged, and to compensate them by means of backpay for earnings they would have received had they worked through the 1974 season and had they been rehired on the date they requested to be re-employed for the 1975 season. The latter computation was determined in recognition of the company policy to re-employ satisfactory workers who, at the beginning of a new season, actively indicate a readiness to be rehired. Additionally, the ALJ recommended that Solboro be ordered to bargain collectively with the union upon request, in accordance with NLRB v. Gissel Packing Co., 395 U.S. 575, 23 L. Ed. 2d 547, 89 S. Ct. 1918 (1969).
The Board adopted the findings and conclusions of the ALJ with two modifications: first, with respect to the propriety of the bargaining order, the Board agreed that the conduct violative of sections 8(a)(1) and 8(a)(3) of the Act supported such a remedy; however, as additional justification, the Board unanimously held that, although there had been no allegation in the complaint of a violation of section 8(a)(5), which prohibits refusals to bargain with a majority union, the conduct of the Harkavys found to have violated other provisions of the Act constituted a violation of the uncharged provision as well. The second modification related to the backpay remedy: although two Board members agreed with the ALJ that no backpay was due for the period before the discriminatees themselves initiated a request for re-employment for the new season, a majority of the Board found that the violation actually occurred when Solboro first opened its 1975 season, during the week of May 17, 1975. At that time, according to the majority, Solboro, which had wrongfully discharged the discriminatees, was under a duty to offer reinstatement. Thus, backpay was to be awarded from May 17, 1975 until valid offers of reinstatement were made.
The Board now seeks to enforce the order as modified. Insofar as the Board's order affirmed the ALJ's findings that Solboro violated the Act, we agree that substantial evidence supports those findings; issues of credibility, on which the employer's motivations had to be determined, were explicitly resolved on the record, and supportable inferences were drawn. We thus briefly summarize the violations before turning to what we consider to be the more difficult issue, i.e., the calculation of the backpay award.
THE SECTION 8(a)(1) VIOLATIONS
The Harkavys' campaign against the unionization started immediately after the union representatives visited the Solboro plant on October 4, 1974. Within minutes after the agents were sent away, Mrs. Harkavy called employee Anna Nemec into her office to ask what she knew about the unionization efforts. Nemec, who apparently had been on friendly terms with Mrs. Harkavy, as were many of the workers in the informal setting of Solboro, admitted to Mrs. Harkavy that she had not said anything about the matter earlier because she supported the union. According to Nemec's credited testimony, Mrs. Harkavy concluded the questioning session by advising Nemec not to "mention this to anyone".
Shortly thereafter, Mrs. Harkavy reportedly approached a group of employees and inquired whether "you girls want the Union?" When no one responded, Mrs. Harkavy stated: "I see you girls don't want your jobs".
These two incidents of questioning were found to constitute coercive interrogation. It followed closely on the heels of the visit to the plant by the union agents; it was not accompanied by an explanation of its purpose nor by any assurance against retaliation. We think that the ALJ properly found that the questioning thus constituted an unfair labor practice within the requirements of Struksnes Construction Co., 165 N.L.R.B. 1062 (1967) and Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir. 1964).
Similarly coercive was the next action taken by management to quash the unionization sentiment. That same day - the day of the union demand for recognition - Mr. Harkavy assembled all of the workers to inform them of the union agents' visit and to discuss the financial condition of the company. Mr. Harkavy had recently received a telegram cancelling a complicated order for which materials had already been purchased. To make matters worse, the company's accountant had just informed the Harkavys that Solboro had lost some $15,000 during the preceding year. Obviously, the threat of union demands compounded Mr. Harkavy's fears, and precipitated the speech that he was then to make.He told the workers that he did not see how the company could survive if economic conditions persisted or if there were additional economic expense. Although there was conflicting evidence as to whether the remarks were limited to predictions of financial condition or whether the remarks were directed to threatening plant closure in the event of a union victory, we think that the ALJ was on firm ground when he found that Mr. Harkavy's speech was violative of the Act in that the workers could reasonably have inferred that the threats were directed toward their decision to join the union. See NLRB v. Kaiser Agricultural Chemicals, 473 F.2d 374, 381 (5th Cir. 1973). As the ALJ noted, "[an] employer who goes so close to the brink takes the risk that employees may honestly misunderstand him". NLRB v. Rollins Telecasting, Inc., 494 F.2d 80, 82 (2d Cir.), cert. denied, 419 U.S. 964, 42 L. Ed. 2d 178, 95 S. Ct. 224 (1974). Mr. Harkavy ...