On Application for Enforcement of an Order of The National Labor Relations Board.
Gibbons, Forman and Rosenn, Circuit Judges. Gibbons, Circuit Judge dissenting in part.
The scenario of this proceeding has been played frequently on the industrial scene. The case and stage differ, but the theme revolves around the efforts of the officers of a small manufacturing company to cope with a sudden union organizing movement at its plant.
The first and least difficult issue presented is whether there is substantial evidence to support the Board's finding that respondent, Armcor Industries, Inc., ("the Company" or "Armcor"), had engaged in unfair labor practices in violation of Sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1), 158(a)(3) (1970). We conclude there is and grant the Board's petition for enforcement of that part of its order*fn1 requiring the Company to cease and desist from the unfair labor practices and to reinstate two unlawfully discharged employees. The Board, in exercise of its remedial authority sustained by the Supreme Court in N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 23 L. Ed. 2d 547, 89 S. Ct. 1918 (1969), also ordered the Company to recognize and bargain with United Electrical Radio and Machine Workers of America ("UE") as the exclusive bargaining representative of Armcor's production and maintenance employees. That part of its order is remanded for further proceedings consistent with this opinion.
Following a discussion among some of the Company employees of the need for union representation in the plant, employee Michael Rossi contacted UE representative Ron Baldasseroni and the two arranged for a meeting to be held for interested employees on the evening of May 28.*fn2 Apparently, word of the initial meeting promptly reached management officials because on the afternoon of the twenty-eighth, Company Vice-President Jack Fabean asked two employees where the meeting was going to be held that evening and told one that anyone who wanted a union was crazy and that employee problems should be brought to management for resolution.*fn3 The meeting was attended by 15 of Armcor's 23 employees; all 15 signed authorization cards. The next day Rossi solicited and secured signed authorization cards from four additional employees.
On the morning of May 30, Fabean asked Rossi whether "he got all the cards back" and further inquired "how many." Fabean commented that if problems were brought to management, employees would have been given what they wanted. That same morning, some employees were discussing the Union in the lunchroom when Fabean came in and remarked that he could hear everything they were saying because "the walls are paper thin."
At lunchtime on May 30, Charles Copeland, a representative of the International Union of Electrical Workers, AFL-CIO ("IUE") and friend of Armcor President Pat DeLaquil, suddenly appeared on the scene and approached a group of employees who were eating their lunch outside the plant. Copeland went up to Rossi saying, "you must be Mike." He said that he was "from the IUE and that somebody in the office had called [him] and told [him] that you were in need of a union here." Rossi informed Copeland that the employees wanted the UE.*fn4
At the end of work that same day, Thursday, Rossi and fellow employee Wayne Burns were called into the office of plant manager Kyle. Kyle gave them their checks and told them they were being laid off because of lack of work and because they were the least senior male employees. Kyle also told them that they either were unable to or would not perform work other than their normal job of final window assembly. Neither replied to Kyle, but took their checks and departed.
On the very next day, May 31, UE organizer Baldasseroni, accompanied by a group of employees, approached Company President DeLaquil and requested recognition of the UE as the employees' bargaining representative. DeLaquil refused, and later told a group of employees that he did not want Baldasseroni on Company property again.
That afternoon DeLaquil spoke to employee Elaine Seiler at her work station and inquired why she wanted a union. When she replied for "job security and higher pay," DeLaquil said, there is "no way [employees] could get higher pay -- the doors would have to close first." DeLaquil also said he was disappointed that employees did not bring problems to him first. Later that afternoon, DeLaquil asked another employee why he wanted a union, and again expressed disappointment that problems were not brought to him first.
That evening, the Company held one of its regularly scheduled "Pizza Nights" where, after work, employees were provided with dinner and were given an opportunity to express their grievances. DeLaquil briefly addressed the employees telling them that he was aware of their attempt to organize a union, that he did not particularly oppose such activity, but that he did not like the UE and "would fight it all the way." He further told them that the UE was no longer affiliated with the AFL-CIO, that in its early days the UE had been affiliated with the communist party, that a local UE organized plant had experienced a long strike and several wildcat strikes, and that he preferred that the employees' union be affiliated with ...