ON APPLICATION FOR ENFORCEMENT OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD Case Nos. 4-CA-7575 and 4-RC-11699.
Adams, Higginbotham, Circuit Judges, and Bechtle, District Judge.*fn*
This appeal raises three principal issues. First, is there substantial evidence to support findings that the employer here violated Sections 8(a)(1) and (3) of the National Labor Relations Act (NLRA)? Second, should this Court enforce the order by the National Labor Relations Board (NLRB) that two employees be reinstated? Third, should the bargaining order, entered as a remedy for the employer's unfair labor practices, be enforced in the absence of an independent statement of reasons by the NLRB?
We have concluded that the record does support the findings of unfair labor practices, and that in the circumstances here, enforcement of the order of reinstatement should not be denied. However, we have determined that the NLRB has not complied with the rule that it independently should articulate the reasons why the remedy of a bargaining order is required, and thus we cannot enforce the bargaining order, at least on the record as it now exists.
Kenworth Trucks of Philadelphia, Inc., a Pennsylvania corporation engaged since 1973 in the retail sale and servicing of trucks, is the employer in the present proceeding. In the early summer of 1975, the employees of the service department of Kenworth began to talk among themselves about their dissatisfaction with the situation in the service area. Stephen Chop, a mechanic, suggested the possibility of organizing a union, and wrote to Lodge No. 724, International Association of Machinists and Aerospace Workers, AFL-CIO, which in response sent Chop authorization cards. Between June 27 and July 1, 1975, Chop, with the assistance of Allan Thomas, also a mechanic, obtained signed authorization cards from 9 to 11 employees in Kenworth's service department.*fn1
In a letter dated July 7, 1975, the union advised the employer that it represented a majority of the service department employees and requested recognition as their collective bargaining representative. This letter was received by Kenworth's President, Paul Jones, on July 10. On July 11, the union filed with the NLRB a petition for a representation election. When the election was conducted on August 15, 1975, the union lost by a vote of 6 to 5.
During the pre-election period, the employer engaged in a number of acts that, the Administrative Law Judge (ALJ) found, had violated the employees' rights under the NLRA. On July 11, Jones called a meeting of the service department employees, at which he read aloud the union's letter requesting recognition as the employees' bargaining representative. He asked the employees what they wanted from the company and requested them to "give him a chance." Then, Frank D'Amico, a supervisor, spoke about the disadvantages of a union as he had observed them in another shop. D'Amico mentioned in particular the high cost of union membership, and told the men that they would lose job opportunities because, if the shop had a union, job classifications would be instituted and they would be laid off if there were no work in a particular classification.
Responding to Jones' inquiry, the employees indicated that they wanted a 20 percent wage increase and improved hospitalization insurance. Jones said that he would comment on their request later in the day, and announced that if there were no objections, he would ask his secretary to type a letter revoking their authorizations to the union. In the afternoon of the same day, Jones informed the employees that they would receive a 15 percent pay increase beginning on July 14, and another 5 percent increase on an individual basis after 90 days. Shortly thereafter, D'Amico brought a letter addressed to the union into the shop, and asked each employee to sign it. Two weeks later, the workers' paychecks began to reflect the 15 percent raise, and an increase in insurance benefits was then announced.*fn2
Also, in the pre-election stage as well as on the day of the election itself, the employer's representatives made a number of comments about the union to the employees. In July or early August, Kenworth's vice-president, S. Bertram Stiff, Jr., told employee Jerry Jackson that if the union won the upcoming election, the company probably would have to discontinue providing hospitalization insurance as well as work uniforms to the employees. And on or about August 13, Jones approached Chop and asked if the company had his support in the election. Chop declined to answer. Further, on August 13, Jones spoke to Thomas and asked if he thought that a union was necessary; Thomas replied affirmatively. When Thomas failed to respond to other questions, Jones remarked that he hoped that Thomas understood that with a union the company would take away all employee benefits and, as the ALJ put it, "they could start all over again . . . ."*fn3 On the day of the election itself, Jones told Thomas that whatever the outcome, the company would nonetheless remain a nonunion shop. Also on the day of the election, Vice-President Stiff asked Kevin Partridge, a service department employee, whether he was on the company's side, and Partridge said that he was.
The major facts bearing on the events after the election concern the discharge of Chop and Thomas, who as indicated had been active in the union's organizational campaign. On the day after the election, Supervisor D'Amico and employee Graham were out of the shop on a road test, and D'Amico remarked about Thomas, who had been an observer at the election for the union, that "if he just steps out of line a little bit, he's done . . . ."
Chop was called into the service department office on August 19 and was informed that he was going to be "let go" because of his inadequate workmanship. Soon thereafter, Chop told Thomas that he had been discharged. Thomas asked Chop whether the rest of the men in the shop should walk out, for they had agreed among themselves that if anyone were fired because of union activity, the others would walk out in sympathy. A period of discussion and some confusion ensued, during which the employees stopped working and talked with each other to determine whether to walk out. D'Amico addressed some of the employees and told them either get back to work or to quit. Thomas began to clean his tools in preparation for leaving, and then waited for a chance to talk with the company president. D'Amico, after asking Thomas how his work was proceeding, told Thomas to get to work on a ...