The National Labor Relations Board, pursuant to section 10(e) of the National Labor Relations Act, petitions for enforcement of two of its orders issued against Knogo Corporation, including a bargaining order.
Lumbard, Oakes and Kearse, Circuit Judges.
In this consolidated proceeding, the National Labor Relations Board, pursuant to section 10(e) of the National Labor Relations Act, 29 U.S.C. § 160(e) (1976), petitions for enforcement of two of its orders issued against Knogo Corporation. The orders, issued on July 27, 1982 (Knogo I) and December 14, 1982 (Knogo II) require Knogo to cease and desist from certain unlawful practices, to offer to reinstate an employee with back pay, to rescind disciplinary warnings against two other employees, and to recognize and bargain collectively with Local 810 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America ("the Union"). For the reasons set forth below, we grant enforcement except for the Board's order which requires Knogo to bargain with the Union.
Knogo manufactures electronic anti-shoplifting devices at its plant in Hicksville, New York. In mid-June, 1978, the Union began an organizing campaign among Knogo's employees, conducted by Field Representative David Sapenoff. During lunch and other breaks, Sapenoff approached employees and distributed literature in the employee parking lot in the rear of Knogo's plant, and in the driveway leading to the rear lot. Although management asked him to leave company property at least twice in the early months of the campaign, Sapenoff continued to hand out literature and cards without interruption.
On June 16, 1978, during lunch hour, Sapenoff approached Patrick Bellucci and Paul Vigliotti. Bellucci had been an employee for nine months, and had been promoted and given two raises. The men talked for fifteen minutes, and were observed by Foreman Michael DiPietro. Upon re-entering the building, Bellucci volunteered that he had talked with a union representative, and was impressed with his ideas. DiPietro responded that the Union had good points and bad points, and asked Bellucci if he had signed a union authorization card. Bellucci truthfully responded that he had not. Within three days though, Bellucci did sign a card, and he started distributing leaflets and soliciting signatures on authorization cards.
On June 21, Bellucci bought lunch from a food truck that came to the plant daily. After lunch, he felt sick, and asked Vigliotti to punch his time card out and tell Foreman DiPietro that he had gone home. Vigliotti did punch Bellucci's time card at 12:29 P.M. Upon his arrival at work the next day Bellucci was informed by DiPietro that he was fired because he had gone home without permission.
On June 26, 1978, Sapenoff distributed literature calling for an organizing meeting at a nearby bar two days later. Fifteen employees attended the meeting. Shortly after it began, however, Plant Manager Paul Montalbano entered and sat down among the employees. When he was told that the meeting was for employees only, and asked to leave, Montalbano moved to the bar area. Sapenoff tried to restart the meeting, but the employees were uneasy and the meeting broke up. A second meeting was called several weeks later; this time only two employees attended.
The organizing campaign continued at a slow pace during the fall of 1978, but picked up in December. That month, Director of Operations Michael Trentacosti directed Knogo's labor relations consultants to design a benefits package for Knogo employees. Although this was not a regularly scheduled revision of benefits, work continued on the package despite advice from the labor relations consulting firm and Knogo's attorneys that the Company should not change policies during the organizing campaign.*fn1 On March 7th, a handbook was issued to all employees listing the new benefits.
On May 1, Sapenoff, believing that the Union had secured majority status among the employees, met with the Director of Operations Trentacosti in Knogo's office concerning recognition and bargaining. When Sapenoff arrived the next day to continue his organizing activities, he saw workmen building a fence at the rear of the parking lot. By May 10, a six foot high fence topped with barbed wire surrounded the parking lot. Sapenoff was prevented from entering the lot by guards who told him they were instructed to keep him out. Thus, Sapenoff and other organizers could only speak to employees who stopped their cars as they approached or left the lot. Entry to the lot by others, such as food trucks, delivery trucks, friends and relatives of employees, and a former employee organizing softball games, was not restricted.
By June 14, 1979, the Union had obtained Union authorization cards from 52 of the 101 employees then in the bargaining unit. At the request of the Union, an election was scheduled by the NLRB for July 20.
On July 11, nine days before the election, Anthony Minasy, Knogo's President, summoned to his office seven employees, selected because they were thought to have influence over other workers and had been observed in union activities. He told them he wanted them to carry the Company's message to other employees. That message was that while the employees had the right to organize and have a union represent them, this union could not guarantee that it would deliver on its promises, and that the employees should shop around because there were many unions who would be more dedicated to their needs than this one. When Minasy asked if any of the employees at the meeting had worked in a plant where they had made less money, one employee, Nick Christofides, answered that he had. Minasy asked why didn't he go organize there; when Christofides inquired about a raise, Minasy answered that he could always get another job.
After the meeting, Christofides was concerned as to why Minasy considered him to be a union organizer. Later in the day, when Foreman DiPietro went to Christofides' work station to adjust a machine, Christofides explained to him that he had just been to a meeting with Minasy, and asked DiPietro if he knew why management considered him an organizer. DiPietro asked Christofides if he was a ...