On petition for review and cross-application for enforcement of an order of the National Labor Relations Board. (Board Nos. 1-CA-10658, 1-CA-11049 and 1-RE-13745).
Rosenn, Higginbotham, Circuit Judges and VanArtsdalen, District Judge.*fn*
VANARTSDALEN, District Judge
The National Labor Relations Board (NLRB or Board) by order dated February 9, 1977, directed Struthers-Dunn, Inc. (Struthers-Dunn), to recognize and upon request to bargain with Local 1973, International Brotherhood of Electrical Workers, AFL-CIO-CLC (the Union), as the exclusive bargaining agent for the production and maintenance employees (excluding clerical and certain other employees) of the Struthers-Dunn plant in Manchester, New Hampshire. Struthers-Dunn, having its principal place of business in Pitman, New Jersey, petitioned this court for review of this bargaining order pursuant to section 10(f) of the National Labor Relations Act, 29 U.S.C. § 160(f) (1970). The NLRB filed a cross-petition for enforcement of that order.
By written stipulation filed of record, the findings of the NLRB with respect to certain unfair labor practices of the employer and other factual matters are not contested and may be adopted by the court. Hence, the sole issue before us is the propriety of the NLRB's bargaining order. Because we do not believe circumstances justifying the issuance of a bargaining order exist under the guidelines of NLRB v. Gissel Packing Co., Inc., 395 U.S. 575, 23 L. Ed. 2d 547, 89 S. Ct. 1918 (1969), the application for an enforcement order will be denied, the bargaining order vacated, and the case remanded to the Board to determine whether to direct and conduct a representation re-election.
On March 6, 1975, Robert Fisher (Fisher), president of the Union, met in Manchester with five of the Struthers-Dunn employees of the Manchester plant.*fn1 He told them that in order to obtain union recognition he would need signed union authorization cards. He further explained that although Struthers-Dunn might grant the union recognition on the basis of authorization cards signed by a majority of the employees, such recognition was not often granted by management, and that the cards would probably have to be presented to the NLRB to invoke its processes for recognition, including an election. Fisher specifically told those present at the meeting that "anyone who signed a card remained free to change his mind and withdraw it." All of the five employees present signed cards, and Fisher delivered to them a quantity of blank cards in order to solicit and return to him signed authorizations from other employees.
By the morning of March 12, 1975, Fisher had in his possession a total of 43 signed cards.*fn2 On that date, the Manchester plant had 64 employees in the proposed bargaining unit. Fisher thereupon telephoned the Manchester plant manager, introduced himself, advised that he had in his possession a card majority and demanded recognition of the Union as the authorized collective bargaining representative. The plant manager refused to recognize or bargain with the Union at that time.
On the same day as the demand for recognition was made, the Union sent a representation petition to the regional office of the NLRB, pursuant to section 9(c)(1) of the National Labor Relations Act, 29 U.S.C. § 159(c)(1) (1970), seeking a representation election. This was followed by a transmittal to the regional office on March 14, 1975, of 44 signed authorization cards which by that time had been received by the Union. Two additional signed authorization cards were later received.
On March 19, 1975, the regional office of the NLRB received a statement dated March 14, 1975 and signed by 17 of the Manchester plant employees who would be within the proposed bargaining unit, and of whom 16 had signed and delivered authorization cards. The statement read:
We the undersigned have signed cards petitioning a Union into Struthers-Dunn, Inc. We now feel that we would like to withdraw our names from any such petition.*fn3
The signatories to the statement took no steps to inform Fisher or any official or other representative of the Union of their desire to withdraw the authorizations, and there is no finding that any of the employees who signed the cards were ever advised by anyone as to any required procedure for withdrawing an authorization, once given. In addition, there is no finding that the Union was aware of the statement until long after it was received by the NLRB, and no finding that the NLRB ever took any steps to advise the Union of receipt of the statement.
On March 25, 1975, Struthers-Dunn and the Union entered into a stipulation for a representation election to be held by consent, and the election was held April 25, 1975. The Union lost the election by a vote of 31 to 21, and it promptly filed with the NLRB objections to the election and unfair labor practice charges against Struthers-Dunn. A complaint issued July 8, 1975. On August 1, 1975, Struthers-Dunn granted a general wage increase, whereupon the complaint was amended, alleging the general wage increase as an additional unfair labor practice, and seeking, as alternative relief to the prior requested re-election, a ...