Petition by the National Labor Relations Board for enforcement of an order holding that Jamaica Towing, Inc. violated §§ 8(a)(1) and (a)(5) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1) and (5), in the course of a representation election campaign, and directing respondent to bargain with the union without a rerun election. The findings of illegality are affirmed but the case is remanded for further consideration of the remedy.
Before Mansfield, Mulligan, and Timbers, Circuit Judges.
The National Labor Relations Board seeks enforcement of an order entered by it on July 19, 1978 finding that respondent, Jamaica Towing, Inc. committed multiple violations of §§ 8(a)(1) and (a)(5) of the National Labor Relations Act (the Act), 29 U.S.C. §§ 158(a)(1) and (a)(5),*fn1 in the course of a union representation election and directing respondent to bargain with Local 917 of the International Brotherhood of Teamsters (the Union). We affirm the findings of illegality but set aside the bargaining order and remand the case to the Board for further consideration of the appropriate remedy.
Jamaica Towing is a small corporation, wholly-owned by its president and manager, Mr. Anthony Giorgianni, which provides automobile towing and body repair services from facilities located in Jamaica, New York. At the time of the events which are the subject of this lawsuit, January-February 1976, it employed eight licensed tow-truck operators, in addition to an unspecified number of mechanics, servicemen, and clerical employees who are not involved in this action.
On January 17, 1976 two business agents of the Union met with seven of the eight drivers, distributed single purpose cards authorizing the Union to represent the signatories for collective bargaining purposes and informed the drivers that the cards would first be used to obtain recognition from the employer and, if that were unsuccessful, to petition the Board to conduct an election. All seven employees present signed and returned the cards, whose authenticity is not disputed.
A few days later the Union sent Giorgianni a telegram demanding recognition on the basis of the card vote. When this demand was rejected, the Union filed on January 21, 1976 a petition with the Board seeking an election in a unit consisting of the licensed tow-truck operators. On February 2 Jamaica Towing and the Union entered into an agreement for a consent election, scheduled for February 24, 1976.
In the meantime, shortly after receiving the Union's demand for recognition, Giorgianni in late January summoned his drivers to a meeting at the change of shifts and asked them who had signed or joined the Union. Receiving no response, he walked out. About a week later he held a second meeting with the drivers. On this occasion he assured them that their jobs were safe and that no one would be fired or released because of the "situation with the Union" but advised the drivers that the advent of a Union would change the congenial working relationship he had maintained with them, requiring all to abide by the terms of the Union contract. He commented that adherence to such a contract would necessitate working "strictly by the book," meaning, for example, that the drivers' wages would be docked if they arrived late for work, something Giorgianni had not done in the past. Giorgianni also stated that a collective bargaining agreement would "probably" provide for a 40-hour work week, without the opportunity for overtime which the drivers had been enjoying, requiring him to hire a third shift,*fn2 which would reduce the current drivers' work opportunities and preclude continuation of his practice of assigning each driver to his own truck, which the driver could take home after work.
At this second meeting, Giorgianni also inquired of the workers what the Union had promised them. The employees mentioned various issues, including medical benefits, work uniforms, wage increases, and increased vacation leave. Giorgianni responded that in view of the likelihood of an election he could not make any promises, but he said he would "consider and think about" these concerns.
About two weeks before the February 24 election Giorgianni met with a delegation of four of the drivers at the latter's request. These employees informed Giorgianni that the drivers had discussed matters among themselves and had concluded that their request for Union certification was a mistake. They told Giorgianni that if he would meet certain demands for guaranteed paid sick days, hospitalization benefits, a wage increase, and uniforms, they would vote against the Union. Giorgianni again responded that in view of the impending election he could make no promises or guarantee anything, since he would then be accused of attempting to bribe his employees, but that he would continue his policy of paying for sick days at his discretion, that he would look into the possibility of a hospitalization plan, that he thought the idea of providing uniforms was a good one, and that the employees had been due a wage review for some months, which he would conduct with each driver individually.
In addition to these meetings with all or several of the drivers, during the course of the election campaign Giorgianni on three occasions met in his office privately at his instance with a different individual driver on each occasion. Two of the meetings were held at the end of January and the third a few days before the election. On all three occasions Giorgianni expressed his loathing for a union and stated that if the workers were unwilling to resolve their differences with him directly, he could use "muscle" if necessary to deal with the Union.
The Union lost the election by 6 votes to 2. The Union lodged unfair labor practice charges against Jamaica Towing, alleging that the foregoing conduct violated the Act and prevented a fair rerun of the election, and the General Counsel, through the Regional Director, issued a complaint embodying these charges. After conducting hearings with testimony on several days Administrative Law Judge Irwin H. Socoloff issued his decision on December 8, 1977, concluding that Giorgianni violated § 8(a)(1) when he interrogated the employees at the first meeting with all the drivers and when he interrogated and threatened at private meetings with each of three drivers to "use muscle." The ALJ determined, however, that Giorgianni's statements at the second meeting attended by all of the drivers and at the third meeting, attended by four of them, did not constitute offers, or promises to offer benefits to the drivers if they rejected the Union or threats to withdraw benefits if they accepted it.*fn3 Finally, the ALJ concluded that the instances of interrogation and the three "non-specific" threats to resort to "muscle" did not preclude the running of a fair second election. Accordingly, he issued a cease and desist order, with directions that Jamaica Towing post notices declaring that it would not interfere with the employees' exercise of their right to decide whether to join Local 917 or any other union.
The Union and the General Counsel took exception to the ALJ's failure to find that Giorgianni made unlawful promises or threats or that he unlawfully engaged in direct bargaining with the drivers at the two group meetings cleared by the ALJ. The exceptions also took issue with the ALJ's failure to issue a bargaining order certifying the Union as the drivers' exclusive bargaining representative without a second election. Respondent did not take exception to any of the ALJ's findings adverse to it, rendering these findings, which include a finding that the licensed tow-truck operators are an appropriate bargaining unit, conclusive for purposes of this proceeding. 29 U.S.C. § 160(e).
In a decision issued July 19, 1978 a three-member panel of the Board affirmed the decision of the ALJ insofar as it held that respondent's pre-election conduct violated § 8(a)(1) and that its post-election conduct was lawful. It reversed, however, insofar as the ALJ's decision had stated the Giorgianni's conduct at the second and third group meetings did not violate §§ 8(a)(1) and (a)(5). The Board also concluded that Giorgianni's conduct had so thoroughly and indelibly prejudiced the employees' right to determine whether to unionize that a fair rerun of the election was impossible. Accordingly, the Board issued a ...