ON APPLICATION FOR ENFORCEMENT OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD Board Nos. 22-CA-6311, 22-CA-6522, 22-RC-6336, 22-CA-6680 and 22-CA-6825.
Adams, Rosenn, and Weis, Circuit Judges.
The National Labor Relations Board petitions for the enforcement of two orders entered against respondent Eagle Material Handling of New Jersey ("Eagle" or "the employer"). The first order directs Eagle to cease and desist from unfair labor practices in violation of section 8(a)(1) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1) (1970), to recognize and bargain with the International Union of Operating Engineers ("the Union") as the exclusive bargaining representative of Eagle's service mechanics, and to restore the status quo ante with respect to certain changes made unilaterally by the employer following a representation election. The second order requires Eagle to cease and desist from unfair labor practices in violation of sections 8(a)(3) and 8(a)(5), 29 U.S.C. § 158(a)(3), (5) (1970), to reinstate four employees discharged in violation of section 8(a)(3), and, upon request, to bargain with the Union. Although we cannot sustain the 8(a)(5) violation, we conclude that substantial evidence in the record supports the Board's findings that Eagle engaged in unfair labor practices in violation of sections 8(a)(1) and 8(a)(3) of the Act, and that the remedies imposed did not exceed the Board's discretion. We therefore grant the Board's petitions for enforcement.
Eagle, a subsidiary of Somerset Tire Service, Inc. ("Somerset"), is engaged in the purchase, sale, and servicing of forklift trucks and related products. While attending a prearranged organizational meeting on January 11, 1975, five of Eagle's six service mechanics signed valid authorization cards on behalf of the Union's Local 825. Two days later, the Union filed a representation petition with the Board, a copy of which was served on the employer; on January 24 an agreement for a consent election to be held on February 6 was executed.
Prior to the election, Eagle's president, John Apgar, scheduled and conducted several meetings with the service mechanics. At the first meeting, held on January 20, Apgar asked what problems had prompted the employees to seek union representation. The mechanics related various complaints, including the insufficiency of wages and benefits and dissatisfaction with Service Manager Frank Veronsky. Apgar informed the employees at a second meeting, held a day or two later, that Veronsky was no longer with the company. In response to the president's inquiries at either the same or a subsequent session, the mechanics detailed the basic benefit package offered by the Union and discussed the comparable benefits provided by other forklift companies in the vicinity. Apgar explained that none of these benefits was "out of reach," and told the employees not to "underestimate Somerset Tire." He said that he would match or exceed the benefits provided by other companies, and that he would in time give the employees a benefit package that would be "the Cadillac of the industry."*fn1
Eagle held an evening meeting, attended by all six service mechanics, within three days of the election. This session also involved a discussion of wages, union benefits, the employees' reasons for wanting a union, and problems that could and would be rectified. An additional meeting was conducted shortly before the election, attended by three employees and two company officials, including Apgar.*fn2 The employees expressed their concern that unless they voted for and won union representation, they might be fired or might not receive any improved benefits. Apgar said that he could alleviate their uneasiness. He began drafting a letter stating that no one would be fired for any reason during the next year, enabling the employees to have another election if they were dissatisfied, and that if an employee were discharged during that period that the company would pay a financial penalty. While Apgar and the employees were discussing the penalty, a company supervisor entered and informed Apgar that a lawyer had advised him of the illegality of the letter. Apgar thereupon destroyed the letter, wrote another saying that the employees would not be discharged for union activities, and promised that he would rewrite the original letter immediately after the election.
Approximately one week prior to the February 6 election, two company supervisors, Paul Desnoyers and James Schactele, had a conversation about five feet from where a service mechanic was working. Schactele was at the time in the process of lettering Eagle trucks, which were used both to deliver new forklifts and by the mechanics in making service calls. Desnoyers told him to defer lettering the trucks, because they might be used elsewhere in the company if the Union won the election.*fn3 Shortly thereafter, in response to the service mechanic's inquiry, Schactele confirmed that the mechanic had heard the conversation correctly, but said that he was going to have the trucks lettered anyway.
The Union lost the election, 4 votes to 2, and filed timely objections. After the election, the company instituted the following changes in the employment conditions of the service mechanics:
(1) Paid vacation was increased from one to two weeks per year.
(2) Employees were uniformly granted three sick days per year, in place of a prior practice that left sick pay within the discretion of the manager.
(3) Employees were granted three additional paid holidays per year.
(4) As of approximately March 1, 1975, the company eliminated an existing plan whereby the service mechanics shared a three percent monthly commission on parts sales and labor bills. In its stead the company introduced another program, vaguely described by employee witnesses who did not fully understand it as a "40 percent plan," and characterized by Apgar as a superior benefit.
(5) As of April 1, 1975, Eagle began paying the full cost of the employees' hospitalization. The employer had previously paid only one-half.
(6) As of August 1, 1975, the service mechanics were no longer allowed to keep company trucks at home to use for transportation to and from the plant or an outside job. The employees had been ...