UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
argued: January 14, 1977.
HEDSTROM COMPANY, A SUBSIDIARY OF BROWN GROUP, INC., PETITIONER,
NATIONAL LABOR RELATIONS BOARD, RESPONDENT
ON PETITION FOR REVIEW AND CROSS-APPLICATION FOR ENFORCEMENT OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.
Rosenn and Hunter, Circuit Judges, and Coolahan, Senior District Judge.*fn*
Opinion OF THE COURT
COOLAHAN, Senior District Judge:
Hedstrom Company, a subsidiary of Brown Group, Inc. (hereinafter Hedstrom or the Company), petitions this Court, pursuant to 29 U.S.C. § 160(f), to review, modify, or set aside the National Labor Relations Board's finding of violations of §§ 8(a)(1) and (5), National Labor Relations Act, 29 U.S.C. §§ 158(a)(1) and (5) (1970), and for an order vacating the National Labor Relations Board's May 12, 1976, order to bargain.*fn1 The National Labor Relations Board (hereinafter the Board) cross-petitions for an order of enforcement.
The Board found that Hedstrom violated § 8(a)(1)*fn2 of the National Labor Relations Act (hereinafter the Act) by coercively interrogating and threatening employees, unlawfully soliciting employee grievances, creating the impression of surveillance, promising and granting benefits to employees, and threatening employees with plant closure in the event they elected the union, in an attempt unlawfully to interfere with employee organizational rights protected by § 7 of the Act.*fn3 The Board also sustained the union's objections to the March 28, 1974, election. In addition, the Board found that the Company violated § 8(a)(5) of the Act*fn4 by refusing to recognize and bargain with a majority status union. The Board found that the Company's unfair labor practices were so pervasive as to preclude the possibility of a fair election to determine whether the employees desired the International Association of Machinists and Aerospace Workers, District 98, AFL-CIO, as their collective bargaining agent. Consequently, the Board issued an NLRB v. Gissel Packing Co., 395 U.S. 575, 23 L. Ed. 2d 547, 89 S. Ct. 1918 (1969), bargaining order. For the reasons stated below we enforce in part and deny enforcement in part; we vacate that portion of the Board's order which requires the Company to bargain, and remand this case for proceedings consistent with this opinion.
Hedstrom Company, a Delaware corporation with four plants located throughout the country, engages in the manufacture and non-retail sale of juvenile toys and furniture. The plant in which the alleged unfair labor practices occurred is located in Bedford, Pennsylvania. This company branch had been located in Fitchburg, Massachusetts, until 1966 when the Company decided to relocate its plant and corporate headquarters in Bedford. While in Fitchburg, company employees were represented by the United Furniture Workers of America, AFL-CIO. That union engaged in a 13-week strike at Hedstrom's Fitchburg plant, which contributed to the Company's decision to relocate. Hedstrom's Bedford plant has been nonunion since it opened in 1966. Several unionizing attempts were unsuccessful due to a lack of employee support as evidenced by insubstantial pro-union election votes.*fn5 However, the most recent unionizing campaign, which gave rise to the instant proceeding, proved more successful. It was started in late January, 1974, by some company employees who expressed an interest in representation by the International Association of Machinists and Aerospace Workers, District No. 98, AFL-CIO (hereinafter the Union).
On February 5, 1974, union representative Jesse Young conducted an organizational meeting at the Holiday Inn in Bedford, which was attended by 35 company employees. All but one employee present signed union authorization cards at that meeting. A few days later additional union authorization cards were signed and turned over to Young. On February 12 the Union by letter requested that the Company recognize it as the collective bargaining representative for Hedstrom's Bedford production and maintenance employees.*fn6 Two days later company president E. Lee (Jack) Ketcham, Jr., in response to the Union demand, suggested that the Union file a representation petition with the Board.
On February 21 the Union filed its petition with the Board.*fn7 Pursuant to a stipulation for certification upon consent election,*fn8 an election was held on March 28. The vote was 113 for the Union and 125 against it, with three void ballots. On April 2 the Union filed with the Board objections to conduct on the part of company management personnel which allegedly destroyed laboratory conditions necessary for an election.
The Union in its objections to the election charged that (1) company management, along with the Bedford Gazette, a local daily newspaper, and the Industrial Development Commission,*fn9 threatened, intimidated, and coerced Hedstrom employees, thereby interfering with laboratory conditions; (2) company president Ketcham in an election-eve "captive audience" speech conveyed the impression that if the Union won the election, the Company would move from Bedford; (3) the Bedford Gazette conveyed this same threat, and implied that plant expansion hinged on the outcome of the election. Appendix 28a. Only the second objection was alleged as an unfair labor practice in violation of § 8(a)(1). On July 8, 1974, the Regional Director of the Board issued an order directing a hearing on the Union's objections. Subsequently, on July 12, 1974, the Union filed unfair labor practice charges against the Company, alleging that management personnel waged an anti-union campaign by coercively interrogating and threatening employees, unlawfully soliciting grievances, creating the impression of surveillance, and by promising and granting benefits to employees. After hearings on the Union charges and objections, the Administrative Law Judge (A.L.J.) rendered his decision on November 19, 1975, finding certain § 8(a)(1) violations. He sustained three union objections to the election and recommended that the election be set aside and another held. He also issued a cease-and-desist order. He did not find that the Union had a card majority. The A.L.J. concluded that a bargaining order was unnecessary. By a vote of 2 to 1, Chairman Murphy dissenting, the Board reversed the A.L.J.'s finding of no § 8(a)(1) violation with respect to an alleged threatening conversation between company president Ketcham and an employee named Norman Anderson, but sustained all other § 8(a)(1) findings. The Board found, consistent with the finding of the A.L.J., that president Ketcham's election-eve speech was coercive. The Board also found, contrary to the A.L.J., that the Union had obtained a card majority which was dissipated by employer unfair labor practices and, consequently, issued an order to bargain. Hedstrom petitions for an order denying enforcement of the Board's order and respondent cross-petitions for enforcement.
§ 8(a)(1): UNFAIR LABOR PRACTICE CHARGES
The Union charged the Company with approximately 41 separate § 8(a)(1) unfair labor practices. Most of these charges accuse lower-level management personnel of interfering with employee § 7 rights. However, some of the charges allege that the company president and the plant manager also committed § 8(a)(1) unfair labor practices. The Board*fn10 found that the Company had engaged in an active and pervasive anti-union campaign immediately following the Union's initial organizational meeting held at the Holiday Inn on February 5.
Petitioner concedes that it committed § 8(a)(1) violations.*fn11 However, petitioner characterizes these violations as fairly innocuous. Its position is that its conduct did not make a fair election impossible.
Inasmuch as petitioner concedes most of these unfair labor practices, we need not review in detail the evidence and law supporting the Board's findings, except insofar as they are germane to our discussion of the appropriateness of the Board's order to bargain. The A.L.J. found that most of the unfair labor practices taken alone would not have disturbed the laboratory conditions necessary for a fair election; taken together, however, they did destroy laboratory conditions.
The A.L.J. found that after the Union held its first organizational meeting, William Griffiths, the Company's plant manager, began to solicit employee grievances in order to dissuade pro-union votes.*fn12 The A.L.J. also found that Griffiths made specific promises to the employees to give them the impression that a union was not needed. He told employees to file their grievances with him and he would remedy them if meritorious. He told some employees that he was capable of running the plant without outside interference, more or less, without a union.
Griffiths admitted talking to the employees about their union sympathies. In some instances Griffiths asked the employees to support the Company in the forthcoming election. He told several employees that they did not need a union. The A.L.J. found this questioning constituted coercive interrogation designed to persuade employees not to vote for the Union.*fn13
The A.L.J. found that Griffiths granted an employee named Gary Figard an immediate benefit in order to discourage him from voting for the Union. Griffiths asked Figard what he thought about the Union. When Figard told Griffiths that he had not yet made up his mind, Griffiths solicited his grievances. Figard told Griffiths he needed a jog button on his automatic press. He said he would also like to have his pay rate stabilized. The next day Figard was placed on straight pay, which had the effect of stabilizing his rate, and remained on it until November, after the election, when other employees complained about his preferential status. Within three days a jog button was placed on his automatic press.*fn14
Griffiths told one employee, who was as yet undecided about the way he should vote, that the building would not be worth much without the Company.*fn15 This the A.L.J. found was an implied threat to close the plant in the event the Union won the election.*fn16
The A.L.J. concluded that Hedstrom, in the person of William Griffiths, "violated Section 8(a)(1) of the Act by interrogating employees about their union activities, membership, and desires, by soliciting their grievances, and promising and granting them improvements in their working conditions, and by threatening to close the plant, in order to deter them from selecting the Union as their collective-bargaining representative." Appendix, 12a.
Similarly, the A.L.J. found that lower-level management pursued a policy of grievance solicitation and employee interrogation about union sympathies. In many of these cases, however, the employees who were questioned wore union badges or were known union supporters. This was true as well of some of the employees with whom Griffiths spoke. Nonetheless, some uncommitted or undecided employees were approached and interrogated on these matters. The lower-level supervisors interrogated employees about their union membership and conveyed the threat that if the Union won the election, the employees would lose their benefits, and the Company might enforce its rules more strictly.*fn17
Supervisor Randy Whetstone, a former union steward in Fitchburg, told one employee that the union in Fitchburg stifled Company growth there. He told another employee that two Fitchburg employees started the 13-week wildcat strike so that they could see the World Series. He promised employee Alfred Wertz a better job if he voted against the Union. The A.L.J. found these statements were coercive of employee § 7 rights.
Another supervisor, Inda Logue, told employee Thomas Lewis that he should give the Company a chance because "You don't want to be standing out in a picket line half of the winter." Appendix, 110a. She warned other employees that if the Union won the election, it would strike.
Supervisor Robert Will was found to have conveyed the impression of surveillance of employee concerted activity when he asked employee Michael Hilmer why on the day he reported sick from work, he showed up at a union meeting.*fn18 Hilmer, however, answered unresponsively that he would make up his own mind about the Union. Other supervisors were found to have committed similar unfair labor practices.
In the objections to the election, there was an unfair labor practice charge made against president Ketcham for impliedly threatening, in his election-eve speech, to close the plant if the Union won the election.*fn19 At 10:00 p.m. on March 26, president Ketcham had delivered an election-eve speech to the night, or second, shift, and on March 27 he delivered the same speech before the morning, or first, shift.*fn20 The A.L.J. found that Ketcham did not deviate, except for some opening pleasantries, from his prepared text, which was admitted into evidence.*fn21 Appendix, 402a-427a. Ketcham noted in his speech that this was the third representation election in 7 1/2 years. He reviewed the Company's record and listed its benefits. He also talked about the Company's plans for growth. He related that there was 18% unemployment in Bedford County according to one newspaper. He added, "Right now, Hedstrom is hiring - your Company's prosperity is your best job security." Appendix, 420a. Ketcham enumerated six reasons why the Company opposed the Union. In the fifth reason, he said:
"This Company has already had experience with a union - in Fitchburg. It was an unhappy experience for us, and we honestly think it was for our hourly employees also. Unions aren't always what they are cracked up to be." (Emphasis added.) Appendix, 426a.
The A.L.J. found that Ketcham in his speech did impliedly threaten to close the plant if the Union won the election. In arriving at this finding, the A.L.J. considered the fact that the entire community of Bedford, especially those in the plant, were aware that Hedstrom left Fitchburg to avoid the union. Therefore, the A.L.J. observed, everyone in the room knew what Ketcham meant by the "unhappy experience." The A.L.J. said (Appendix, 7a):
"It is no wonder that, by the time of the hearing, the employees were remembering a specific statement by Ketcham that they now had the jobs formerly held by Fitchburg employees because of the latter's unhappy experience with a union, even though those were not the precise words Ketcham used. That was the message Ketcham intended to convey by the words he did use. 'Unhappy experience' became 'bitter experience' in the employees' memories because that was the phrase placed in the mouth of an unidentified manager of the plant by the Bedford Gazette. An allusion to the loss of jobs in Fitchburg became a specific statement by Ketcham because they got the message Ketcham intended to send them. I find, therefore, that when Ketcham stated the fifth of [Hedstrom's] six reasons for not wanting a union in Bedford, [Hedstrom] impliedly threatened to close the plant in the event its employees selected the Union as their collective-bargaining representative, thereby violating Section 8(a)(1) of the Act."*fn22
All of the foregoing violations as found by the A.L.J. were affirmed by the Board. In light of petitioner's concessions with respect to most of these particular § 8(a)(1) unfair labor practices, see fn. 11, we need merely note that the Board's findings of § 8(a)(1) violations are supported by substantial evidence in the record as a whole, 29 U.S.C. § 160(e) (1970); see, Universal Camera Corp. v. NLRB, 340 U.S. 474, 95 L. Ed. 456, 71 S. Ct. 456 (1951); NLRB v. Armcor Industries, Inc., supra, 535 F.2d at 242; Mon River Towing, Inc. v. NLRB, 421 F.2d 1, 9-10 (3d Cir. 1969).
However, we do not find substantial evidence in the record as a whole to support the Board's conclusion that Ketcham threatened to fire employee Norman Anderson in violation of § 8(a)(1).*fn23 The Board, by a 2 to 1 vote with Chairman Murphy dissenting, reversed the A.L.J.'s finding of no § 8(a)(1) violation with respect to the conversation between Ketcham and Anderson. The A.L.J. rejected Ketcham's version of the facts, and relied on Anderson's version. He found, nonetheless, that in view of the cordial nature of the conversation and the setting, Anderson would not have been coerced.
The testimony demonstrates that on March 16, 1974, twelve days before the election, the Company held its periodic dinner-dance at the Bedford Elks Club.*fn24 During this affair, Ketcham talked with Anderson, a press operator, late in the evening at the bar. Ketcham knew Anderson personally. The two men discussed Anderson's personal life and some of his troubles. They discussed deer hunting, softball, and Anderson's family. According to Anderson, Ketcham asked him what his biggest "gripe" was. Anderson replied that it was that he was losing money under the incentive system every time the Company installed a new piece of equipment. Anderson admitted that the conversation was informal and friendly.
Anderson testified that Ketcham told him that he "could run the Company with or without a damn union; and then, he [Ketcham] said that if he had been president of the Company the first three times that this union was brought up, he would have fired my f ass." Appendix, 83a. Ketcham told Anderson that he was an abrasive sort who was always kidding everyone. Anderson's testimony on cross-examination did indicate that he and Ketcham were on friendly terms and that they socialized together. Appendix, 85a. Anderson's wife sat at Ketcham's table with Ketcham's wife at the dinner-dance. He also admitted that Ketcham did counsel him in a fatherly way and urged him to have more self-confidence. He added that Ketcham told him whether he was for the Union or not was his own business. Ketcham assured Anderson that he was judge only on what he did, and that was excellent. Appendix, 321a.
The A.L.J. found:
". . . Ketcham did not ask Anderson about his gripes in order to solicit his grievances. The incentive system came up as two men talked shop. They had shed, at least for a few hours, their roles as boss and worker. They were communicating with each other as equals under social, not plant, conditions. Ketcham did not warn Anderson that he was in danger of being fired because of his prounion stance in the current campaign. On the contrary, Ketcham was making the precise point that, while Anderson's abrasive personality might have gotten him into trouble during earlier union drives, he had nothing to worry about this time with Ketcham in charge of [the Company]." Appendix, 8a.
The Board reversed the A.L.J.'s finding. It held that notwithstanding the nature of the conversation, the comment was a threat to discharge Anderson if he engaged in union activity. It found the threat to fire Anderson was given emphasis by the vulgar epithet. Chairman Murphy dissented for the reasons stated in the A.L.J.'s opinion and because the majority had failed to place the comment in the context of a frank and candid discussion.*fn25 Any threat that might have been conveyed by Ketcham's remark, that had he been president the last three times the employees tried to unionize, he would have fired Anderson, was totally removed by his explicit assurance that Anderson was judged solely on his work, which was excellent. The Board, we believe, unduly emphasized the "vulgar epithet." It is not unusual for two men drinking at a bar to use such expressive, vulgar language. In the context of the circumstances, the friendly rapport the two had, and the assurances given, it is clear that there is not substantial evidence in the record as a whole to support the Board's finding that the conversation violated § 8(a)(1) of the Act.*fn26 Consequently, we cannot sustain that portion of the Board's order which relies upon that determination.
§ 8(a)(5): UNFAIR LABOR PRACTICES
The Board reversed the A.L.J.'s decision not to permit the amendment of the complaint to include a § 8(a)(5) charge.*fn27 The Board then found that the Company violated § 8(a)(5) by refusing to recognize and bargain with a majority status union. We cannot sustain the Board's finding of a § 8(a)(5) violation.
Respondent concedes that the Union did not represent a majority of the employees in the unit on February 12, 1974, the day it sought recognition from the employer. See, respondent's brief, p. 44 n.7. Respondent contends that the employer's duty to recognize the Union's claim of majority representation is premised on a "continuing demand" for recognition. The General Counsel argues that once the employer is notified that a union demands recognition and that its demand is continuing, the employer risks a § 8(a)(5) violation if the union sometime thereafter attains majority status and the employer does not recognize and bargain with it. We reject this concept of "continuing demand." Respondent conceded at oral argument that the Company was never notified subsequent to the original recognition demand that the Union had finally attained majority status.
The General Counsel relies most heavily upon Local No. 152 v. NLRB, 120 U.S. App. D.C. 25, 343 F.2d 307, 310 (1965), where in the District of Columbia Court of Appeals held:
". . . An employer violates Section 8(a)(5) when, as here, it rejects a Union's bargaining request made in the honest but mistaken belief that a majority had been obtained, without questioning the Union's representative status, and the Union does obtain a majority shortly after such request."
In Local No. 152 there was evidence (1) that the union honestly but mistakenly believed it represented a majority of the employees in the unit when it sought recognition, and one week thereafter actually attained majority status, (2) the company responded that it was not interested in talking to the union, (3) the company did not in any manner dispute the union's claim of majority representation, (4) the company ignored the union's demand for recognition, and (5) the union petitioned the Board for an election. The court reasoned that under these circumstances "the Board was justified in construing the Union's conduct described above as a continuing demand for recognition in circumstances where a formal demand in light of the Company's prior peremptory refusal would have been useless." (Emphasis added.) 343 F.2d at 310. Thus the court in Local No. 152 recognized the concept of "continuing demand" only in cases where there had been a prior peremptory refusal.
In NLRB v. Kostel Corp., 440 F.2d 347, 350-351 (7th Cir. 1971), the court recognized an initially invalid demand as an adequate basis for a "continuing demand," where the company requested that the matter of representation be deferred for more than three weeks during which time the union did in fact reach majority status. The court reasoned that it was unnecessary to require another demand on the deferred date. When the company actually considered the union's claim of majority status, the union did in fact represent a majority of the employees. Consequently, the employer's failure to recognize and bargain at that point could be the basis for a § 8(a)(5) violation.
In NLRB v. Arkansas Grain Corp., 390 F.2d 824, 828 (8th Cir. 1968), the court rejected the District of Columbia Circuit's concept of "continuing demand," saying:
"We hold that an employer, irrespective of his motivations, does not violate Section 8(a)(5) by refusing to recognize and bargain with a union, if in fact the union at the time of the demand for recognition does not represent a majority of the employees." (Emphasis added.)
The court reached this conclusion irrespective of the employer's good faith doubt as to the union's majority, because the employer's motivations were only relevant once in fact majority representation existed.*fn28 Because there was no valid demand, a fortiori, there could be no "continuing" demand. The court, though rejecting the broader concept of "continuing" demand, did however observe that the facts demonstrated that the union's conduct belied the assertion of an "honest but mistaken" claim of majority status.*fn29
In the case at bar, the Union demanded recognition on February 12, when, in fact, it did not represent a majority of the employees in the unit. Unlike the "continuing demand" cases, Hedstrom did respond to the demand, Appendix, 397a, fn. 7, supra, and did express doubts as to the Union's majority status by suggesting that it seek an election. The recognition demand was not ignored, and the Company did not refuse to talk to the Union about the matter.*fn30 Nor did the Company put the matter off, as the employer had done in Kostel. Therefore, we are not presented with a peremptory refusal case.
We cannot accept any concept of continuing demand which requires an employer either to recognize a minority status union, or to risk a § 8(a)(5) violation in the event the minority union attains majority status sometime after the demand, unless it gives renewed notices to the employer that it has attained majority status since the last demand. If an employer were to recognize and bargain with a union which does not represent a majority of the employees in the appropriate unit, it commits an unfair labor practice in violation of § 8(a)(2) which prohibits an employer from aiding any minority union. International Ladies' Garment Workers' Union, AFL-CIO v. NLRB, 366 U.S. 731, 6 L. Ed. 2d 762, 81 S. Ct. 1603 (1961). Under circumstances such as appear in this case, if we were to accept the Union's position that its invalid demand should be accepted by the employer because subsequent to the demand, and unbeknown to the employer, the Union in fact achieved majority status, we would force the employer to tread the fine line between § 8(a)(2) and § 8(a)(5). If at the time an initial demand is made, the union lacks majority status, the union must notify the employer when in fact it has obtained a card majority from the employees in order to effectuate a valid demand for recognition. Only after such a valid demand does the employer's obligation to recognize the union arise. Here there admittedly was no valid demand made. We therefore, cannot sustain the Board's finding of a § 8(a)(5) violation.
The Board, contrary to the A.L.J., ruled that a bargaining order was necessary because of the pervasive nature of the unfair labor practices. Our inquiry into the appropriateness of such a remedy must commence with a discussion of NLRB v. Gissel Packing Co., Inc., 395 U.S. 575, 23 L. Ed. 2d 547, 89 S. Ct. 1918 (1969).
In Gissel the Supreme Court formulated criteria for determining when a bargaining order is appropriate. The Court set forth three categories. The first is the "exceptional" case marked by "outrageous" and "pervasive" unfair labor practices. In such cases, despite the absence of majority status, the union would be entitled to a bargaining order where the coercive effects of the unfair labor practices could not be eliminated by traditional remedies. The second category is where the case is less extraordinary and "marked by less pervasive practices which nonetheless still have the tendency to undermine majority strength and impede the election processes." 395 U.S. at 614. The Court continued:
". . . The Board's authority to issue such an order on a lesser showing of employer misconduct is appropriate, we should reemphasize, where there is also a showing that at one point the union had a majority; in such a case, of course, effectuating ascertainable employee free choice becomes as important a goal as deterring employer misbehavior. In fashioning a remedy in the exercise of its discretion, then, the Board can properly take into consideration the extensiveness of an employer's unfair practices in terms of their past effect on election conditions and the likelihood of their recurrence in the future. If the Board finds that the possibility of easing the effects of past practices and of ensuring a fair election (or a fair rerun) by the use of traditional remedies, though present, is slight and that employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order, then such an order should issue . . . ." 395 U.S. at 614-615.
The third and final category presents the case "of minor or less extensive unfair labor practices, which, because of their minimal impact on the election machinery, will not sustain a bargaining order." 395 U.S. at 615.
General Counsel, respondent here, conceded before the A.L.J. that this was not a Gissel category 1 case, but urged the A.L.J. to find it a category 2 case.*fn31 See, Appendix, 32a. The A.L.J., however, found:
". . . All of the conversations, whether they involved the minor supervisors or Griffiths himself, which did not raise the specter of Fitchburg are trivial by comparison. In and of themselves they do not rise to the level of the Gissel [category 2] standard. Do the implied threat to close the plant in Ketcham's election eve speech and the conversations specifically about Fitchburg in which charges were rung on the same theme boost this proceeding into the Supreme Court's second category? I think not." Appendix, 34a.
The Board reversed the A.L.J. and found that this was a second category case. The Board must have found that though the unfair labor practices were not so outrageous and pervasive as to constitute a category 1 case, they were more than minimal and were pervasive. It also found that at some point before the election the Union had attained majority status which the unfair labor practices dissipated. Appendix, 46a.
We begin with the issue of majority status, which is a necessary element of a second category case. The A.L.J. found only 123 valid authorization cards. The Board, in reversing the finding of the A.L.J., found that the Union had obtained 125 valid authorization cards by February 15, which constituted exactly a majority of the 249 employees in the unit. The Board found that the Union's majority grew to 129 valid cards by March 4.*fn32
In NLRB v. Gissel Packing Co., Inc., supra, 395 U.S. at 584, the Supreme Court observed:
". . . Under the Cumberland Shoe [ Corp., 144 NLRB 1268 (1963), enforced, 351 F.2d 917 (6th Cir. 1965), and reaffirmed in Levi Strauss & Co., 172 NLRB 732 (1968), enforced, 142 U.S. App. D.C. 337, 441 F.2d 1027 (1970)] doctrine, if the card itself is unambiguous (i.e., states on its face that the signer authorizes the Union to represent the employee for collective bargaining purposes and not to seek an election), it will be counted unless it is proved that the employee was told that the card was to be used solely for the purpose of obtaining an election."
In fact, the Court recognized that even if the employee were told that his card would be used to get an election first, this would not deprive the card of its validity for representation purposes. The Court said:
". . . we think it sufficient to point 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." 395 U.S. at 606.
However, the Court warned that "trial examiners should not neglect their obligation to ensure employee free choice by a too easy mechanical application of the Cumberland Shoe rule. We also accept the observation that employees are more likely than not, many months after a card drive and in response to questions by company counsel, to give testimony damaging to the union, . . . ." 395 U.S. at 607-608.
The card used by the Union in this case was unambiguous in its language, as the A.L.J. and Board found.*fn33 We conclude that the Board properly found under the Gissel test that at some point prior to the election the Union had attained majority status.*fn34
Our next inquiry must be into the nature and extent of the unfair labor practices, and into their past effect upon elections and the likelihood of their recurrence in the future. The A.L.J. found:
". . . Almost all of the conversations here were one-on-one. Many can be described as casual. Viewed separately, most of them do not measure up to the coercive level of [an] 8(a)(1) violation. This is especially true of the minor supervisors, that is, everybody below the level of Ketcham, the president, and Griffiths, the top in-plant boss." Appendix, 33a.
The A.L.J. concluded that the Company committed numerous and unisolated unfair labor practices, but he did not find they were "extensive" within the meaning of Gissel. The A.L.J. did not explain this distinction. However, he did explain that with regard to the "past effect on election conditions" the testimony of the witnesses weighed against a bargaining order. He said:
". . . Generally, they [the employees] pictured themselves as either ignoring the supervisors' efforts to affect them or giving as good as they got in the conversation." Appendix, 33a.
As noted above, the A.L.J. found that the unfair labor practices which did not raise Fitchburg were trivial. Appendix, 34a. Consequently, his characterization of the case, though specifically not stated, was as a Gissel category 3 case.
The Board, in reversing the A.L.J., made no specific findings with respect to the past effect or the likelihood of recurrence of these unfair labor practices. It merely indicated that the unfair labor practices were numerous and extensive.
The Board found that the unfair labor practices constituted "pervasive misconduct, directly affecting all of the employees, created an atmosphere hostile to the Union and its adherents and was clearly intended to, and did in fact, dissipate the Union's majority status among the employees." Appendix, 48a. The Board's conclusion was that this case fell into the second Gissel category, and a bargaining order was necessary.
As this Court pointed out in NLRB v. Armcor Industries, Inc., supra, 535 F.2d at 244, the Board is required to "clearly explicate its reasons for issuing a bargaining order and include findings as to why a fair election cannot be held." (Emphasis added.) Judge Rosenn, writing for the majority in Armcor, continued:
". . . Gissel itself contemplates that the Board 'must make "specific findings" as to the immediate and residual impact of the unfair labor practices on the election process and that the Board must make "a detailed analysis" assessing the possibility of holding a fair election in terms of any continuing effect of misconduct, the likelihood of recurring misconduct, and the potential effectiveness of ordinary remedies.' Peerless of America, Inc. v. NLRB, 484 F.2d  1118 (7th Cir. 1973). See NLRB v. Gissel Packing Co., 395 U.S. at 615-16, . . . . In light of the general and highly desirable practice in industrial relations of selecting bargaining representatives through traditional election processes, a rule requiring the Board to set forth a reasoned analysis justifying a bargaining order under Gissel is salutary." 535 F.2d at 244.
The Board in Armcor had failed to indicate specifically under which of the first two Gissel categories it had classified the case. Here, the Board has gone that far, but no further. It has failed to make the findings required by Gissel and deemed essential for purposes of appellate review in Armcor. In Armcor, we remanded the case for specific findings where the Board had merely characterized the unfair labor practices as "extensive and egregious" and "designed to interrupt, thwart, destroy the employees' support of the union, and make the holding of a fair election impossible." 535 F.2d at 244. As in Armcor, the Board's findings here have been conclusory.*fn35
Both the A.L.J. and the Board placed heavy reliance upon the Bedford Gazette's election-day front page editorial, which they found, though not a violation of § 8(a)(1)*fn36 disrupted the laboratory conditions necessary for an election.*fn37 The Board found that the editorial conveyed the threat that if the Union won the election, the Company might move. Additionally, the Board found that the article implied that plant expansion hinged on management victory in the representation election. However, neither the Board nor the A.L.J. assessed what impact the article might have on a fair rerun election. The Board in conclusory terms sustained the Union's objection to the election with respect to it.
Unlike Armcor, we only have § 8(a)(1) violations present in the instant case. Though, as the General Counsel has argued, § 8(a)(1) violations in and of themselves may have enough of a disruptive effect on an election to warrant a bargaining order, see, NLRB v. Arkansas Grain Corp., supra, 390 F.2d at 830, we have no way of evaluating that absent Board findings. Certainly, the Board has not made "specific findings," nor has it given us "a detailed analysis" of the lingering effect of the unfair labor practices and the likelihood of a fair rerun election.
There are additional reasons for requiring a remand here. First, we have reversed the Board's finding of a § 8(a)(5) violation, and we have also been unable to find substantial evidence to support one of the Company's allegedly more flagrant § 8(a)(1) violations.*fn38 We also conclude that the Board failed to assess the impact the Gazette article had on the election and the chances for a fair rerun election. In addition we note, as did counsel for the Company, that the unfair labor practices occurred over three years ago. The Board has not considered what effect this passage of time would have on the possibility of having a fair rerun election. See, NLRB v. Armcor Industries, Inc., 535 F.2d at 246.*fn39 We cannot conclude that because the Company left Fitchburg, in part to avoid a union, this fact alone justifies a bargaining order. There is no indication that traditional remedies such as cease-and-desist orders, the mailing or the reading of notices to employees during plant time, the posting of notices on Company billboards, or the granting to the Union of access to employees during work time at the plant, or a court injunctive order under § 10(j) (29 U.S.C. § 160(j)) as a last resort, will not remedy the unfair labor practices charged here.*fn40
We conclude that all other issues raised are without merit and, therefore, require no discussion. Because the Board has failed to evaluate the unfair labor practices in light of the considerations enunciated in Gissel, and in light of our own ruling with respect to certain unfair labor practices, this case will be remanded to the Board for further proceedings consistent with this opinion.