Before GOODRICH, STALEY and FORMAN, Circuit Judges.
FORMAN, C.J.: Petitioner, Paul M. O'Neill International Detective Agency, Inc., seeks to have set aside an order of the National Labor Relations Board entered July 20, 1959,*fn1 pursuant to Section 10(c) of the National Labor Relations Act, 29 U.S.C. § 151 et seq. Jurisdiction of the court exists under Section 10(e) and (f) of the Act.
Petitioner, a New Jersey corporation, conducts a detective agency in the course of which it furnishes guard service for 33 industrial plants located in the northern and central parts of New Jersey. Approximately 157 guards were employed at the time in suit. On November 23, 1956, the petitioner signed a collective bargaining agreement with the Independent Guards Union (hereafter IGU). Another organization called the New Jersey Guards Union (hereafter NJGU), unsuccessful in its attempt to unionize the petitioner's guard employees, filed a petition for a representation election on November 27, 1956, which was held on April 5, 1957.
The result of the election was:
Votes cast against participating labor organizations 7
On April 12, 1957, NJGU filed objections to the conduct of the election and on May 14, 1957, it filed charges against the petitioner based on the same allegations upon which the objections to the election were founded. A complaint*fn2 was issued on December 31, 1957. It was consolidated with the objections to the election for the purpose of a hearing before a Trial Examiner pursuant to the direction of the Board.
The Trial Examiner ruled that the petitioner was guilty of unfair labor practices "in violation of Section 8(a)(2) and (3) of the Act, thereby interfering with, restraining and coercing the employees in the exercise of rights guaranteed by the Act in violation of Section 8(a)(1)." He recommended, among other things, that the election of April 5, 1957, should be set aside and a new election directed; and that petitioner should refund to all employees and former employees at the various plants in New Jersey, from whose wages it has deducted funds for transmittal to the IGU the amount of such deductions.*fn3
Three members of the Board adopted the findings, conclusions and recommendations of the Trial Examiner.*fn4 Two members dissented.
Two questions are presented. First does the Board's determination that the petitioner assisted the Independent Guards Union in violation of Section 8(a)(1) and (2) of the Act*fn5 find substantial support in the record as a whole, and second, did the petitioner violate Section 8(a)(3) of the Act*fn6 by executing a contract containing a union security clause with the IGU before the latter had complied with Section 9(f), (g) and (h) of the Act which require that the union file its constitution, by-laws and annual financial reports, and that the union's officers file non-Communist affidavits as a condition of recourse to the Board.
As to the first question, petitioner contends that the Trial Examiner should have believed the testimony of witnesses called by it and the IGU rather than those called by the General Counsel.
The petitioner stresses that the findings of the majority of the Board as to illegal assistance are unsupported by substantial evidence, and are clearly contrary to the preponderance of the credible evidence.
It leveled an attack upon the acceptance by the Trial Examiner and a majority of the Board of the testimony of Brendan B. McElaney, a captain of guards at the plant of Givaudan Corporation, who implicated both Donald J. Leahey, Director of Operations of petitioner, and Bernard T. Sweeney, Sales Manager and assistant to Paul M. O'Neill, petitioner's president, in the matter of assisting the Independent Guards Union in the distribution of its authorization cards. The petitioner asserts that his testimony was indefinite, vague and contradictory and that the Trial Examiner erred in regarding it as believable in the face of denials by Leahey and Sweeney. Attention was called to the fact that in his testimony McElaney did not remember whether occurrences involved Leahey or Sweeney; that McElaney answered "No" to a question under oath in two employment applications, inquiring whether he had ever been convicted of a crime, when in fact, he had more than twenty years prior thereto, pleaded guilty to petty larceny and had received a suspended sentence; that at the time of the hearing he was employed by a competitor of the petitioner which had a labor contract with the NJGU; and that a number of other circumstances were present which petitioner felt should have prompted the Trial Examiner to reject his testimony. Instead, petitioner contends that the Trial Examiner and the majority of the Board credited the testimony without so much as discussing any reasons therefor.
McElaney conceded that his memory was dim as to whether it was Sweeney or Leahey who placed the IGU authorization cards on his desk and asked him to get them signed. But he was positive that it was either one or the other of these supervisory heads of the petitioner. Both denied his statements. Even in the absence of a discussion by the Trial Examiner of his reasons for believing McElaney against the words of Sweeney and Leahey we must presume that he took into consideration their denials and McElaney's weakened memory, in making his determination as to whom to believe. McElaney's status, at the time he testified, as an employee of a rival of petitioner, under a labor contract with the NJGU and that he had twice misstated that he had never been convicted of crime in applications for employment when in fact he had pleaded guilty to a charge of petty larceny twenty years before, were not matters that necessarily destroyed his testimony. They were for the consideration of the Trial Examiner in determining along with all the other believable evidence the weight to be given to McElaney's assertions.
Petitioner next charged that the acceptance of the evidence of a guard named Edward R. Howe, was an error. He was assigned to the plant of the Continental Paper Company. He testified that Sweeney accompanied by Clem Schramma, vice-president of the IGU, visited the Continental plant; that Sweeney introduced Schramma as a representative thereof and stated that "his Union went before Mr. O'Neill and submitted a contract which calls for four holidays at double time, five days vacation for the first year, ten days vacation the third year and 15 days vacation the fifth year." Howe testified that Sweeney said, "Mr. O'Neill figures the contract was suitable for the men and he agreed with them that he wouldn't recognize any other union."
Sweeney handed Howe, according to the latter's testimony, seven IGU cards and asked him to have the men at Continental Paper sign them, which Howe undertook to do. Sweeney, said Howe, told him that he might as well sign his own card which he did thereupon and handed it back to Sweeney. Petitioner argues that Howe's testimony was rendered unbelievable because he put the date of his meeting with Sweeney and Schramma, at which the foregoing is alleged to have occurred, at November 24, 1956, when his IGU card in his own handwriting is dated November 19, 1956, and the contract between petitioner and IGU was not signed until November 23, 1956. Petitioner says that Sweeney could not have told what the contract would contain on November 19, the date on which Howe signed his IGU card. Petitioner cited other circumstances and inconsistencies that it asserted showed that Howe's memory was faulty, and Sweeney and Schramma contradicted Howe's statements as to any activity by Sweeney in soliciting Howe to either sign his card or get other guards to sign.
Howe remained unshaken in his testimony with regard to his conversation with Sweeney concerning the distribution of the IGU cards and that he had signed one in Sweeney's presence and at his request, thereupon handing it to Sweeney. For all his confusion of dates and the contradictions of other witnesses it was still within the province of the Trial Examiner to believe or disbelieve him. Howe was still in the employ of the petitioner at the time of the hearing and the Trial Examiner, well within his right, for this reason chose to "place considerable credence upon his testimony with respect to resolving the salient issues in this proceeding."
John J. Doran, testifying on behalf of the General Counsel, stated in effect that he had been assigned by petitioner since November 1955 to the plant of the Continental Paper Company as a guard; that in November 1956 as he was leaving the gatehouse of the plant to commence his tour he saw Sweeney from a distance; that at the completion of the tour he returned to the gatehouse and asked Howe what Sweeney had been doing there; that Howe brought out a package of IGU cards stating that "O'Neill is starting a union"; that Sweeney had been there explaining the aims of the union and had left cards for the men to sign and said "There's one for you"; that he did not sign; that the following morning Captain Charles Boerensen in charge of guards at Continental told him that all the men were signing with the IGU and that there was a card for him to sign; that he still refused to sign; that from November 1956 to March 1957 Captain Boerensen made repeated requests to him to sign an IGU authorization card to which he never acceded; that in February 1957 he was advised by Captain Boerensen that a complaint had been received that he had allowed unauthorized persons in the gatehouse; that this was followed by a notice from Leahey concerning unauthorized persons being permitted on the premises and that a repetition would result in dismissal of any guard involved; that he questioned Captain Boerensen as to who was meant by "unauthorized persons" and whether he meant the organizers of the NJGU; that Captain Boerensen replied "That's about the size of it."; but that when he asked in whose name he was to chase them - O'Neill's, Continental Paper's or Boerensen's - he, Boerensen gave a negative answer as to each; that he then told Boerensen he was not authorized to chase them in his own name and the matter was dropped there; that shortly thereafter he was ordered transferred to the Givaudan plant, refused to go and was discharged.*fn7
Doran never signed an IGU authorization card and his separation from the service of the petitioner was apparently involuntary.His testimony was contradicted by Captain Boerensen. The Trial Examiner chose to believe Doran.
William Joseph Summerfield testified on behalf of the General Counsel in substance that he was employed by petitioner in November 1956 as a guard at the plant of Anheuser-Busch; that about a week after his employment a guard captain named Allegar came into the gatehouse of the plant as he, Summerfield, was finishing his midnight to seven o'clock shift and gave him and several other guards who were present cards and said "sign these." Summerfield testified that one of the guards wanted to know what it was for and Allegar said that it was for a union. Summerfield said that he signed the card and asked what the dues were to which Allegar replied, "Fifty cents a month, but you don't have to worry. O'Neill will pay for it." Summerfield did not read the card and did not know or ask any one what union he was joining. He left the job after three or four weeks. In making reference to Summerfield's testimony the Trial Examiner stated that he testified that Captain Allegar "handed him an IGU card and said 'sign this'". As mentioned in footnote 4 both the majority and the minority of the Board agreed that Summerfield did not testify that Allegar specified "an IGU card". They were correct.
Petitioner offered the testimony of Captain Boerensen, its present Assistant Director of Operations, but then Captain of the Guards at Continental Paper Company, Donald J. Leahey and Bernard T. Sweeney. Frank R. Fischer and Clem Schramma, president and vice-president respectively of the IGU, testified in its behalf. All generally contradicted the witnesses produced by the General Counsel as to assistance rendered by petitioner to the IGU organizational campaign. Petitioner contends that the conclusions reached by the Trial Examiner that their testimony was "vague", "evasive", "contradictory" or "improbable as well as incredible" were based on invalid reasons, susceptible of examination by the Board and the court.It is true as petitioner points out that some of the Trial Examiner's reasons for rejecting the testimony of given witnesses appear to be unsupported. For example, in the case of Captain Boerensen the Trial Examiner noted that he testified, among other things, that he was handed some IGU cards which he placed in a desk drawer in the gatehouse; that a few days later he gave the signed cards to Louis Hughes,*fn8 secretary-treasurer of the IGU when he came to call for them; that he had no knowledge of how the guards came to sign them with but one exception, the guard on duty with him named Orland. He also testified that although officers of the IGU came to the gatehouse on various occasions to leave and pick up authorization cards he never saw them speak to any guards. The Trial Examiner then adds:
"It would seem for Union Officers not to speak to the employees they were attempting to organize is particularly significant in evaluating the conditions under which the guards joined and ...