Hastie, Gibbons, Circuit Judges, and Becker, District Judge.
This case is before us on petition of Landis Tool Company, Division of Litton Industries, to review and set aside an order issued against it by the National Labor Relations Board, and on the cross-application of the Board for enforcement of the order. The case arises out of a representation election held among Landis employees on May 7, 1970, which the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 110, lost by a vote of 432 to 252. Thereupon the Union filed objections to the conduct of the election and an unfair labor practice charge against Landis. After the Board's Regional Director concluded his investigation of the Union's unfair labor practice charge the General Counsel issued a complaint. The hearing on the objections to the conduct of the election was consolidated with that on the unfair labor practice complaint. All of the objections to the election were either withdrawn by the Union or overruled by the Trial Examiner. The Trial Examiner did, however, find that Landis had engaged in some of the unfair labor practices charged, while dismissing allegations of others. Landis, the Union and the General Counsel each filed exceptions to the Trial Examiner's decision. The Board overruled all exceptions, adopted the Trial Examiner's findings and conclusions, and ordered that the results of the May 7, 1970 election be set aside and a rerun election held. It entered a cease and desist order with respect to the unfair labor practices found by the Trial Examiner, and ordered the posting for 60 days of the usual form notice.
Landis' petition for review presents the issue whether substantial evidence on the record as a whole supports the conclusion of the Board that it interfered with, restrained and coerced its employees, in violation of § 8(a)(1) of the Act. 29 U.S.C. § 158(a)(1).
I. Solicitation of Grievances and Implied Promises to Correct Them
The Trial Examiner found that Landis' President, Ralph E. Price, at meetings of employees shortly before the election, solicited employee grievances and impliedly promised that the grievances would be remedied if the Union was defeated. The grievance solicitation meetings were not a part of any regular grievance solicitation program. There is evidence in the record which supports the Trial Examiner's conclusion that there were implied promises. For example, employee Monn testified:
"Q. I'll ask you again if you can relate to the best of your recollection the substance of what was discussed at these meetings?
A. I don't know if it was the first one or not -- I believe it was all he said to us was he felt -- he told us that there was enough guys signed union cards to get a vote; that he couldn't promise anything; that his hands was tied; he couldn't tell us the date of the election because it wasn't set yet. And then there was another one -- he took us all up -- and he wanted to know what our complaints and gripes were. He still stated that he couldn't do anything because his hands was still tied -- until the election was over ; that he couldn't promise us anything.
The guys told him about what their complaints were about; and he said that he didn't feel that that was a need for a union because he thought -- that he really didn't realize that the complaints were getting that bad; and he felt that the employees there in the company could of taken this all out -- could of worked this all out -- between them -- without a third party." (131a).
There was testimony in like vein by employees Hoffman (125a) and Mellott (140a). The examiner concluded that in a preelection context it was not necessary for Price to make express promises; a promise was implied when he told them they did not need a union to straighten out their problems. The conclusion that implied promises were made in a preelection context is supported by substantial evidence. The testimony suggests that the employees understood their grievances would be remedied if the Union was defeated. Such conduct was an interference with rights of employees guaranteed by Section 7 of the Act, 29 U.S.C. § 157, and Landis thereby violated Section 8(a) (1), 29 U.S.C. § 158(a)(1).
In his discussion of Price's implied promises the Trial Examiner states:
"The complaint allegation in this case is cast in terms of interrogation, which in a sense is an accurate description of Price's conduct, but the illegality of Price's conduct lies in the fact that the solicitation of grievances, in a preelection context, carries with it the implied promise that the grievance will be remedied." (14-15a).
Counsel for the Board in oral argument conceded that the quoted language is a dictum only. To the extent that it suggests a per se rule that any solicitation of grievances in a preelection context will always be held to imply unlawful promises we expressly disapprove it. See Fairchild Camera and Instrument Corp. v. NLRB, 404 F.2d 581, 583-85 (8th Cir. 1968); ITT Telecommunications, 183 N.L.R.B. 1129, 183 NLRB No. 115, 74 LRRM 1386, 1387 (1970). There is substantial evidence to support the ...