The National Labor Relations Board found that petitioner violated Sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1) and 158(a)(3). The Board issued a cease and desist order and a bargaining order. The Board's findings of violations are supported by substantial evidence; the cease and desist order is enforced, but the bargaining order is vacated.
Before Mulligan and Meskill, Circuit Judges, and Holden,*fn* District Judge.
The National Labor Relations Board, on February 21, 1980, entered an order (reported at 247 NLRB No. 163) finding that the petitioner, Grandee Beer Distributors, Inc., violated §§ 8(a)(1) and 8(a)(3) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1) and 158(a)(3) (1976). The order required the petitioner to cease and desist from its unfair labor practices, and to bargain with Local 1115, Joint Board of Employees Division (hereinafter referred to as the "Union"). The Board's order affirmed the rulings, findings and conclusions of the Administrative Law Judge, but enlarged his recommended order by imposing the bargaining directive. The petitioner seeks review of the Board decision and requests the court to vacate the bargaining order. The Board has filed a cross-application for enforcement. We affirm the Board's findings of violations, but vacate the bargaining order.
The findings of the Administrative Law Judge establish that Grandee Beer Distributors, Inc., is a small family owned corporation, held in equal shares by its four managers, Aaron Rosenberg, Charles Rosenberg, Sam Rosenberg, and Henry Brouton (also spelled "Broutman" in the record). The company operates two outlets in Brooklyn, New York, which sell beer and soda on a wholesale and retail basis. At the time of this dispute the Lexington Avenue store, operated by Aaron and Charles Rosenberg, employed two cashiers and six driver/warehousemen. The Grand Avenue store, operated by Sam Rosenberg and Henry Brouton, employed three cashiers and three driver/warehousemen. The two stores are situated two miles apart and are separately licensed. Each store hires its own employees, has its own small fleet of trucks, and purchases equipment and inventory separately. There is no interchange of personnel between the two stores and no common determination of labor relations policy. Except for a common payroll, the two outlets operate independently.
On May 9, 1978, Charles Diffenbach, an employee at the Lexington Avenue store, procured blank union authorization cards from a Union representative. On May 10, all six driver/warehousemen at the Lexington Avenue store signed authorization cards given to them by Diffenbach.
Diffenbach also asked a Lexington Avenue store employee, Howard Hill, to take some authorization cards to an employee at the Grand Avenue store. Hill did so, and one of the cards fell into the hands of Henry Brouton. Brouton sent this card in an envelope to Aaron Rosenberg at the Lexington Avenue store. Aaron opened this envelope in the presence of Hill and Diffenbach. He asked them if they knew anything about the union and both men feigned ignorance. No signed authorization cards were procured from the Grand Avenue employees.
On the morning of May 19, 1978, two representatives of the Union called on Aaron Rosenberg at the Lexington Avenue store. They displayed a folder purporting to contain authorization cards, told Aaron they represented a majority of the Company's employees, and requested recognition. Aaron said he would contact his attorney, but that he had no response at that time. The union representatives departed and later renewed their demand by telegram. The Administrative Law Judge reported:
The record does not contain the Union's telegram. The only indication of the scope of the unit sought by the Union, other than as reflected in the oral demand, is contained in the unfair labor practice charge, filed on May 30. That charge, listing both locations of the Respondent, alleged a refusal to bargain with the Union "for a unit of warehousemen, truck drivers and helpers excluding office clericals, cashiers, guards and supervisors as defined in the Act. ..." There have been no further contacts between Respondent and the Union, other than through the filing of the unfair labor practice charge, since May 19.
Immediately after the departure of the Union men on May 19, Aaron met with the six warehousemen. He asked them, as a group, whether they wanted a union. Some answered "yes" and the rest were silent. Aaron then asked why the employees wanted a union, and they told him they wanted greater benefits. Aaron then stated that he was working on health and sick leave plans for the employees, and that he intended to increase their wages in June. He also asked Charles Rosenberg, in the presence of the employees, to put two Rosenberg relatives and a third person on the payroll, and to call the Unemployment Compensation office to arrange for new employees. Aaron told the senior warehouseman, Lewis Dyson, that he had the most to lose. He told another employee, Howard Hill, that his duties would be changed, and told a third, Eddie Hood, that he could be required to sweep floors in place of his driving duties.
The action Aaron Rosenberg indicated he would take at the May 19 meeting to effect an increase in wages in June was not accomplished until early July. Hill's privilege of operating a large 10-bay Mack truck was changed. He was never again assigned to drive the company's large truck. The company's practice of lending money to employees, then deducting amounts owed from their paychecks, which existed before the meeting, was continued. The health insurance plan went into effect on November 1, 1978. Unknown to the employees until the May 19 meeting, the plan had been contemplated and had been underway since the fall of 1977.
The Union lodged unfair labor practice charges against Grandee on May 30, 1978. The charges alleged violations of §§ 8(a)(1), 8(a)(3), and 8(a)(5) of the Act.*fn1 The NLRB Regional Director issued a complaint on June 30, 1978. Administrative Law Judge Miller heard the case on January 18 and 19, 1979, and issued his decision on May 24, 1979. The Law Judge concluded that the defendant company had violated § 8(a)(1) of the Act in three ways. First, he found the questioning of the employees by Aaron Rosenberg on May 10 and 19 constituted coercive interrogation in violation of the employees' Section 7 rights. Second, he found that Aaron's May 19 statement concerning an increase in wages and the announcement of the health plan constituted an unlawful effort to discourage the employees from joining the union. Since the institution of the medical plan was undertaken prior to the beginning of the union activity, the Administrative Law Judge concluded the implementation of the plan was not violative of the Act. In July the wage increase went into effect. The promise and grant of a wage increase both served to dissuade employees from union membership. Third, he found that the directive from Aaron Rosenberg to Charles Rosenberg to hire new employees constituted a "thinly veiled threat of discharge." The statements to Hood and Hill that their duties would be altered, threatened to change their work conditions and the nature of their employment.
The Administrative Law Judge determined that the denial of Hill's occasional assignment to drive the Schaefer Mack truck constituted conduct that violated § 8(a)(3) of the Act.
The hearing judge rejected the Union's claim that the petitioner refused to bargain in violation of § 8(a)(5) on the ground that the Union did not have a majority of the signature cards for the requested unit. The Union's demand for recognition included all the employees at both stores, a total of 14. The Union held only six authorization cards from driver/warehousemen employed at the Lexington Avenue location; thus it fell short of majority status in the unit demanded. Furthermore, the hearing officer determined that a single store unit consisting of all the cashiers and driver/warehousemen at the Lexington Avenue store was the ...