filed: November 15, 1977; As Amended December 8, 1977.
ON APPLICATION FOR ENFORCEMENT BY NATIONAL LABOR RELATIONS BOARD NOS. 6-CA-7845 AND 6-RC-6950
Before: ADAMS, GARTH, Circuit Judges, and LACEY, District Judge*fn*
This case is before the Court upon the application of the National Labor Relations Board (NLRB) for enforcement of its order against Craw and Son.*fn1 In adopting the findings and conclusions of an Administrative Law Judge (ALJ), the NLRB determined that Craw had committed unfair labor practices in the course of an organizational campaign by a local union of the Sheet Metal Worker's International Association, AFL-CIO, thus violating §§ 8(a)(1) and 8(a)(3) of the National Labor Relations Act. In light of these unfair labor practices, the NLRB ordered Craw to bargain with the union, which had obtained signatures of a majority of Craw's employees on their authorization cards prior to the dispute with the employer.
The questions we must decide are, first, whether there is substantial evidence in the record to support the findings of unfair labor practices on the part of the employer and, second, whether the bargaining order should be enforced.
In the early part of August 1974, seven of Craw's ten employees signed cards authorizing the union to act as their collective bargaining representative. On August 21, the union representative, Richard L. Steward, Jr., visited the company and asked that it commence negotiations with the union. Vernon E. (Mike) Craw refused to do so, or to look at the authorization cards. After the union's demand for recognition on August 21, Craw retained counsel and declined to meet further with the union representative. At a meeting of all employees that was called by the company on September 3, Mike Craw delivered some prepared remarks and answered questions from the employees. He declared, inter alia, that he could "drag out" the negotiations for "as many years as possible" until he achieved "a contract which suited him," and that during this interval there would be no pay raises. In addition, he stated that if the union were successful, "there would be a lot more layoffs."
At a meeting on September 4, attended by eight of Craw's nine production employees and the union representative, the employees voted to strike.*fn2 Five of the production workers subsequently went on strike and picketed the shop. A sixth employee joined the strike after about a week and picketed the shop for about two weeks before returning to work.
In the course of the strike, Mike Craw took photographs of the striking employees.*fn3 On the second or third day of the strike, Craw spoke with some of the strikers and asserted that they were "doing Dick Steward's dirty work." He also commented that, while he did not wish to be quoted on the matter, if Steward had been there and if he himself had a club, he "would use the club on Dick Steward."
Four replacements for the striking employees were hired by Craw between September 10 and September 25. The company sent letters to the strikers notifying them that they had been permanently replaced and that their health and accident insurance carrier had been informed of the termination of their employment.
The strike ended on October 3, and on the next day the five employees who had remained on strike throughout its duration informed Craw that they were ready to return to work. Only one of them, William Victor Davis, was reinstated; the others were instructed to complete employment applications, and were then informed that they would be recalled only if they were needed.*fn4 Although two of the replacements did not continue to work for Craw after November 1, 1974, and a third had a heart attack on December 31, 1974, rendering him substantially unable to work, none of the four strikers was reinstated by the company.*fn5
A Board-ordered election conducted on October 25, 1974, resulted in one vote for the union and five against it. Eight ballots were challenged - those cast by the four strikers who had not been reinstated and those cast by the four replacements who had been hired in September.
In an opinion dated October 22, 1975, the Administrative Law Judge determined that Craw's statement, that if the Union came into the shop there would be layoffs, was not a prediction based on "demonstrably probable consequences beyond his control" or one "based on available facts," but rather constituted "a threat of retaliation based on... coercion...." NLRB v. Gissel Packing Co., Inc., 395 U.S. 575, 618, 23 L. Ed. 2d 547, 89 S. Ct. 1918 (1969). It thus violated § 8(a)(1) of the NLRA. N5 Similarly, the ALJ concluded that the threat by Craw to "drag out" negotiations with the union, and Craw's comment that during the labor controversy wages would be frozen, violated § 8(a)(1).
The ALJ further stated that the justifications advanced by Craw for photographing the striking employees - namely, that the photos would be helpful in the event of violence and would accurately record the date of the picketing - were specious. Therefore, the photographing was held to violate § 8(a)(1). Moreover, the ALJ determined that Craw's threat regarding the infliction of physical harm on the union representative amounted to unlawful coercion of an employee's rights under the NLRA.
Finally, the Administrative Law Judge found that the strike was motivated at least in part by the employer's unfair labor practices and, consequently, that the strike was an unfair labor practice strike. The ALJ supported this conclusion by noting that the vote for a strike occurred at a meeting ...