ON PETITION FOR REVIEW AND CROSS-APPLICATION FOR ENFORCEMENT OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.
Van Dusen and Adams, Circuit Judges, and Huyett, District Judge. Adams, Circuit Judge, dissenting.
VAN DUSEN, Circuit Judge.
This case is before this court upon the petitions of Suburban Transit Corporation ("Suburban"), H.A.M.L. Corporation ("H.A.M.L."), and United Transportation Union, Lodge No. 1589 ("UTU") to review and set aside a decision and order of the National Labor Relations Board (hereinafter "NLRB" or "Board") issued against Suburban and H.A.M.L. on May 4, 1973, and reported at 203 N.L.R.B. No. 69. The Board has cross-applied for enforcement of that order. This court has jurisdiction pursuant to § 10(e) and (f) of the National Labor Relations Act, as amended (hereinafter "Act"). 29 U.S.C. § 160(e) and (f).
The unfair labor practice charges, which resulted in the Board's order in this case, were filed by the Highway and Local Motor Freight Drivers, Local No. 701, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America ("Teamsters") in October and November of 1971. As amended and consolidated,*fn1 the complaint filed by the Board under Section 10(b) of the Act, 29 U.S.C. § 160(b), alleged that Suburban violated (A) §§ 8(a) (1) and (2) of the Act by executing a new collective bargaining agreement with UTU while a question concerning representation existed, (B) §§ 8(a) (1) and (3) by virtue of the fact that said contract contained a union-security provision, (C) § 8(a) (1) by making threats to certain striking employees, and (D) §§ 8 (a) (1) and (3) by discharging those employees. The complaint also alleged that H.A.M.L. violated (A) §§ 8(a) (1) and (2) by executing a contract with UTU at a time when UTU did not represent an uncoerced majority of H.A.M.L.'s employees and by assisting UTU in its organizing drive, (B) §§ 8(a) (1) and (3) by the inclusion of a union-security provision in said contract, and (C) § 8(a) (1) by acts of surveillance of and assistance to union activities.*fn2
On the basis of this complaint, the Board filed a petition for an injunction under § 10(j) of the Act on January 24, 1972. Thereafter, extensive hearings were conducted by the Administrative Law Judge, the transcript of which was forwarded to the district court and made a part of the injunction proceeding by agreement of the parties. Following oral argument and submission of briefs, the district court on July 26, 1972, rendered an opinion and order denying the Board's application for injunctive relief. See Balicer v. Suburban Transit Corp., unpublished opinion of 7/28/72 (Civil No. 158-72, D.N.J.).*fn3 The Administrative Law Judge issued his decision on November 27, 1972, in which he found that Suburban and H.A.M.L. violated §§ 8(a) (1), (2) and (3) of the Act as charged in the complaint, and he incorporated a proposed order. On May 4, 1973, a three-member panel of the Board affirmed the findings and conclusions of the Administrative Law Judge and adopted his recommended order.
I. Charges Against Suburban
UTU has represented Suburban's employees for approximately 30 years.*fn4 In July 1971, UTU requested that bargaining for the terms of a new contract commence as the then current agreement was due to expire on September 14, 1971. In late August, Suburban employee Daniel Rava was elected chairman of UTU's bargaining committee, which also included employees Peterson and Bowman. Although not officially members of the committee, Gerald McPhillips, a UTU international representative, and Austin Zechman, a UTU vice president, assisted the committee in its deliberations. Suburban was represented by Morris Lipschitz, officer, director and sole owner of Suburban, Lee Jacobs and Sidney Kuchin, the two other Suburban officers, and Ronnie Kohn, Suburban's office manager.
After a series of bargaining sessions, the parties reached accord on September 13 on a three-year agreement. On September 14 a ratification meeting was held at which the employees decisively rejected the proposed contract by a vote of 49 to 3, apparently because of its three-year term. Following this meeting, the UTU committeemen agreed to bargain for a shorter, two-year contract term. However, at the next bargaining session on September 24, Suburban insisted upon a three-year contract, but offered to increase its initial wage offer. The subsequent ratification meeting, attended by about 30 Suburban employees, broke up in chaos when the term of the contract was announced and no ratification vote was taken. After the meeting, McPhillips met with Rava and Peterson, and they all agreed that they had not had a fair opportunity to present the package to the men and that they should meet with Suburban again.
As early as July 1971, Rava and, at some time during that summer, several other employees, had become interested in the possibility of changing union representation from UTU to the Teamsters. Between July and September, Rava called the Teamsters on several occasions to explore avenues of having the Teamsters represent the Suburban employees. In early September, he and employee Manga met with Martin McDermott, a Teamsters international representative, at the Teamsters' premises. McDermott agreed to check to see if there was a "no raid pact" with the UTU but warned that the Teamsters could be of no help until the contract expired. Thereafter, Rava called the Teamsters several times and was told by McDermott that there was not a "no raid pact" between the Teamsters and UTU.
On the morning of September 15, Rava requested that Peterson meet him at the Teamsters' premises, where they discussed with McDermott ways in which a change in union representation could be effected. During this meeting, McDermott gave Rava a decertification petition and some Teamsters' membership cards, which Rava placed in the trunk of his car. Later that day, Peterson informed McPhillips of the meeting with McDermott. McPhillips then advised UTU vice-president Kenneth Moore of Rava's contacts with the Teamsters, and Moore requested that McPhillips obtain further information before having Rava removed from his union office.
On September 26, Rava gave the decertification petition and Teamsters' authorization cards to Manga, who proceeded to solicit signatures. After obtaining signatures of more than 30% of Suburban's employees, Manga filed the petition for decertifying UTU on September 29, and the Teamsters filed a representation petition the same day. Suburban received the petitions on October 2.
On September 28, Suburban officials and the UTU bargaining committee met again and agreed that it would be useless to hold another membership meeting. The mediator suggested that a petition be drawn up and that members of the committee speak to each employee, and if a majority signed the petition, then the committee could sign the contract. Rava opposed the petition and suggested instead a mail ballot, which was finally agreed upon. That night, however, while Peterson was in a meeting with Zechman at the latter's home, Moore called Zechman and told him that Rava was collaborating with the Teamsters and that he was taking steps to have Rava removed as chairman of the wage committee. Zechman began to suspect that Rava's suggestion of the mail ballot was designed to cause further delay and, therefore, he and Peterson decided to proceed with a petition.
The contract ratification petition was drawn up and circulated on October 1 by Peterson and another UTU official, Tom Alexander, and was returned to Zechman on October 2 with 51 signatures (out of the 61 employees constituting the unit of drivers). McPhillips contacted Suburban president Lipschitz and told him that the committee believed they had a majority and were prepared to sign a renewal agreement. The signatures on the petition were checked against the payroll forms and were found to be ...