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*
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 ...