UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
decided: May 5, 1969.
NATIONAL LABOR RELATIONS BOARD, PETITIONER
S.E. NICHOLS-DOVER, INC. ET AL., RESPONDENTS
McLaughlin, Kalodner, and Van Dusen, Circuit Judges.
Author: Van Dusen
By VAN DUSEN, C. J.:
The National Labor Relations Board petitions for enforcement of its October 18, 1967, order,*fn1 entered in favor of the Retail Store Employees' Union (the Union) and against respondents, S.E. Nichols-Dover, Inc. (Nichols), Spencer Shoe Corporation (Spencer), and IMAC Food Systems, Inc. (IMAC). See 29 U.S.C. § 160(e). The order directed the respondents to: (a) cease and desist from certain unfair labor practices under §§ 8(a)(1) and 8(a)(3) of the National Labor Relations Act (the Act), 29 U.S.C. § 158(a)(1) and (3); (b) offer reinstatement and back pay to two employees found to have been unlawfully discharged by Nichols under § 8(a)(3) of the Act; (c) upon request, bargain collectively with the Union as the exclusive representative of the employees of Nichols, Spencer, and IMAC.
The Nichols department store in Dover, Delaware, is one of several such stores located in the eastern United States and owned by a parent corporation. Spencer and IMAC are licensees of Nichols and operate, respectively, the shoe shop and the snack bar within the Dover store. The Union has been attempting to organize the employees of the store since it opened in August 1965.*fn2
With the summer of 1966, the Union drive entered a more intensive phase involving the solicitation of authorization cards. Conflicting testimony was given at the hearing regarding the manner in which Nichols responded to this new campaign. The examiner, however, credited testimony given by the employees which is entitled to our acceptance, see Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 495-97, 95 L. Ed. 456, 71 S. Ct. 456 (1951), and which was to the following effect. Nichols representatives convened several meetings of store employees. The officials declared that the store did not need a middleman (the Union), and emphasized that any employee who had signed an authorization card had a right to revoke it. They also assisted with letters of revocation in ways calculated to insure their effectiveness, such as suggesting that carbon copies be made for safekeeping in the Nichols office and providing stationery, postage, the Union's address, and mailing services. Store Manager Jones and other officials spoke with several employees individually, asking them whether they had been approached by Union organizers and how they and their co-workers felt about the Union. In addition, Jones told Mrs. Ippolito, a Union sympathizer, that he could not understand why anyone would want to pay Union dues when they could simply request a raise. He also warned her that he had placed a spy at a Union meeting she had attended.
On October 27, 1966, Nichols received a letter from the Union dated the previous day, stating that it represented an "overwhelming majority of the employees in the S.E. Nichols store," offering to substantiate such majority by proof, and "request[ing] a meeting to commence negotiations for a collective bargaining agreement". Nichols responded under date of November 1, that it "cannot at this time consent to recognize the . . . Union as bargaining agent at the Dover store," suggesting an election be held instead. It cited "pending charges against the union, alleging coercive activity,"*fn3 as well as alleged statements of employees indicating that only a small minority actually desired representation and that some feared Union retaliation if they failed to support it.
Several weeks later, Jones became angry over a work dispute between three office employees, including Mrs. Ippolito and also Mrs. Hennessy, who was an active Union organizer. He threatened to fire all of them if another such argument arose, adding that he would lock the store's doors rather than open them to the Union. Three weeks later, on December 28, 1966, Mrs. Ippolito and Mrs. Hennessy were discharged along with a large number of temporary Christmas help. The Union, which had already filed unfair labor practice charges against Nichols on December 5, amended the charges to include an allegation that they had been unlawfully discharged because of their Union activity.
A complaint issued from the General Counsel and a hearing was conducted before a trial examiner. In his decision of June 20, 1967, the examiner held that the respondents had committed various unfair labor practices under § 8(a) of the Act. Specifically, he found that the statements made by Nichols representatives at the group meetings and also during interrogations of individual employees unlawfully tended to coerce the employees into revoking their authorization cards in violation of § 8(a)(1). Also found violative of § 8(a)(1) were the statements made by Jones to Mrs. Ippolito. Furthermore, her discharge, along with that of Mrs. Hennessy, was held to be discrimination for their Union sympathies in violation of § 8(a)(3). Finally, he concluded that Nichols had unlawfully refused to bargain with the Union upon request under § 8(a)(5). This finding was predicated on determinations that the Union's letter, received by Nichols on October 27, was a demand for recognition and bargaining; that the appropriate bargaining unit encompassed the employees of Nichols, Spencer and IMAC; and that, on October 27, the union numbered 133 employees, of whom 77 -- a clear majority -- had signed and returned to the Union valid authorization cards. A bargaining order was recommended. The Board affirmed the examiner's decision and recommended order, and now petitions us for its enforcement. For the reasons given below, we have concluded that enforcement should be granted.
There is substantial evidence on this record, considered as a whole, to support the examiner's finding that Nichols violated § 8(a)(1) and (3) of the Act. See Universal Camera Corp. v. N.L.R.B., supra, at 487-88.
The credited testimony on the subject of the group meetings indicated that Nichols unlawfully attempted to persuade those employees who had signed cards to revoke them. See NLRB v. Elias Brothers Big Boy, Inc., 327 F.2d 421 (6th Cir. 1964). Questioning of individual employees designed to elicit information about the activities of Union organizers and the sympathies of co-workers was not permissible interrogation. See NLRB v. Elias Brothers Big Boy, Inc., supra; NLRB v. S.S. Logan Packing Company, 386 F.2d 562 (4th Cir. 1967). And the various statements which Jones made to Mrs. Ippolito were unlawful, not only as creating an impression of surveillance, see NLRB v. S.S. Logan Packing Company, supra, but also as constituting an implied threat of discharge for Union activity, see NLRB v. Marsh Supermarkets, Inc., 327 F.2d 109 (7th Cir. 1963), cert. den. 377 U.S. 944, 12 L. Ed. 2d 307, 84 S. Ct. 1351 (1964), and an actual threat of plant closure, see NLRB v. Winn-Dixie Stores, Inc., 341 F.2d 750 (6th Cir.), cert. den. 382 U.S. 830, 15 L. Ed. 2d 74, 86 S. Ct. 69 (1965). We agree with the Board that these acts interfered with, restrained, or coerced the employees in the exercise of their rights, in violation of § 8(a)(1).
As for the alleged violation of § 8(a)(3), respondents and the Union introduced sharply conflicting testimony concerning the reasons for Mrs. Ippolito's and Mrs. Hennessy's discharge. The trial examiner discredited Nichols' assertion that they were let go as part of the normal post-Christmas layoff and that Mrs. Ippolito had exhibited "incompatibility" and "bad attitude" and Mrs. Hennessy a habit of smoking in prohibited areas.*fn4 He found that both had been satisfactory employees and that Nichols, knowing of their Union sympathies, had fired them for that reason. We accept such a finding since it is based on assessments of credibility. Also, the Board was entitled to infer that the justifications offered by Nichols do not have the ring of truth.
For example, such explanations as were given to Mrs. Ippolito and Mrs. Hennessy at the time of their discharge were lacking in logic and consistency. Each had begun work for Nichols-Dover when it opened in the summer of 1965. From initial assignments on the main floor of the store, they had advanced by late summer 1966 to positions in the office which entailed increased responsibilities, including the occasional training of other employees. On December 28, 1966, however, both were terminated with the explanation that they were being laid off because the Christmas rush was over. Yet neither had been hired on that account. Indeed, several store workers with less seniority were retained and 29 new employees were hired during the first three months of 1967. Nevertheless, the "layoffs" of Mrs. Ippolito and Mrs. Hennessy were not made subject to recall, nor were they ever reoffered jobs by Nichols. Moreover, the Board was entitled to infer that the revised justifications later offered at the hearing -- Mrs. Ippolito's "bad attitude" and Mrs. Hennessy's smoking -- bear the hallmarks of afterthought.*fn5 Thus, conflicting testimony was given as to whether either was warned, while an employee, of her alleged misbehavior. And Nichols officials were vague when asked to describe specific instances of complaints about them by customers. Questioned as to why in the past Mrs. Ippolito had been promoted instead of discharged for her alleged attitude, Jones was unable to reply. Regarding Mrs. Hennessy, there was testimony that smoking regulations were frequently disregarded, not only by other employees but by members of the managerial staff as well. The Board was justified in concluding that the discharges of these two employees were discriminatory under § 8(a)(3) of the Act.*fn6
We pass finally to the question of whether there was a § 8(a)(5) refusal to bargain here, and, if there was, what the appropriate remedy should be. Fortunately, we have the benefit of a recent Supreme Court decision involving facts very similar to the instant case and presenting this legal issue, NLRB v. Gissel Packing Co., Inc., et al., 395 U.S. 575, 89 S. Ct. 1918, 23 L. Ed. 2d 547, 37 L.W. 4536 (1969). There Chief Justice Warren, speaking for a unanimous Court, reaffirmed the use of authorization cards as an acceptable means of creating representative status and a duty to bargain. His opinion also sanctioned the bargaining order as a remedy for an employer's failure to undertake such duty, if he instead " . . . committed independent unfair labor practices which . . . made the holding of a fair election unlikely . . ."
In the instant case, we agree with the Board's conclusion that the Union's letter, received by Nichols on October 27, 1966, constituted an unambiguous demand for recognition and bargaining. Nichols' November 1 response, declining to bargain and suggesting an election, was, without more, a permissible response to that demand.*fn7 However, instead of proceeding to an election, Nichols embarked upon the unfair labor practices described above, which, at the very least, had a "tendency to undermine majority strength and impede the election processes." 395 U.S. 575, 614. The Supreme Court makes clear in Gissel that this type of response by an employer constitutes a § 8(a) (5) refusal to bargain for which a bargaining order is an appropriate remedy.*fn8
Remaining for discussion is Nichols' contention that the Union lacked a valid majority of employees in the appropriate bargaining unit as of the date of the demand for recognition. The trial examiner determined that the appropriate unit should include employees of Nichols and its licensees, Spencer and IMAC.*fn9 Within this unit, he specifically found qualified as employees the two previously discharged discriminatees who had been held entitled to reinstatement,*fn10 four part-time workers, and one individual whose status as an employee on the date of demand for recognition was in dispute. Such discretionary determinations are peculiarly within the Board's expertise. See Packard Motor Car Co. v. NLRB, 330 U.S. 485, 491, 67 S. Ct. 789, 91 L. Ed. 1040 (1947); NLRB v. Sun Drug Co., 359 F.2d 408, 412-13 (3rd Cir. 1966); NLRB v. J.W. Rex Co., 243 F.2d 356, 359 (3rd Cir. 1957).*fn11
This unit numbered 132 employees on October 27, 1966, on which date, the Board found, the Union held 72 valid authorization cards.*fn12 Nichols attacks the cards on a variety of grounds. The contentions that five cards were obtained by misrepresentations, that a "majority" of the other employees had signed or that no initiation fee would have to be paid (R. brief, pp. 11-13, 15-16), were resolved on the basis of a determination, which is supported by the record, that no substantial misrepresentations were established by the evidence. The claim that seven cards were effectively revoked (R. brief, pp. 17-23) is rebutted by the fact that the efforts of Nichols management to procure the revocations were themselves violative of § 8(a)(1). See NLRB v. Quality Markets, Inc., 387 F.2d 20, 24 (3rd Cir. 1967). Finally, two cards are questioned on the ground that they were falsely represented to be for the purpose of an election (R. brief, pp. 13-15). The Supreme Court's Gissel decision resolves this issue. It approved the Board's " Cumberland rule," under which an unambiguously phrased card*fn13 will be counted unless it is proved that the employee was told it was to be used solely for the purpose of obtaining an election. 37 L.W. at 4544. The Court further pointed out that:
" . . . employees should be bound by the clear language of what they sign unless that language is deliberately and clearly canceled by a union adherent with words calculated to direct the signer to disregard and forget the language above his signature. There is nothing inconsistent in handing an employee a card that says the signer authorizes the union to represent him and then telling him that the card will probably be used first to get an election."
As we read the record, it would be difficult to maintain that the two Nichols employees were even told of the probability of the cards' use to get an election, let alone that they should disregard the language of authorization entirely. We therefore find valid the Board's conclusions that the Union had a majority when it demanded recognition on October 27, 1966, that Nichols refused to bargain under § 8(a)(5) by attempting to undermine this majority, and that a bargaining order is a proper remedy.
Since the Board may desire to consider its remedial bargaining order in the light of Gissel, supra (37 L.W. at 4547), the cause will be remanded to the Board so that it may be afforded an opportunity to do so.*fn14