Before Hunter, Weis and Garth, Circuit Judges.
This case arises in a familiar factual pattern. After losing a representation election at petitioner's plant, the Union filed charges that the petitioner, Rapid Manufacturing, had committed unfair labor practices during the course of the election campaign, in violation of the National Labor Relations Act. The National Labor Relations Board sustained these charges in part. On the basis of the unfair labor practices which it found, the Board set aside the election and ordered Rapid to bargain with the Union. Conceding that substantial evidence supported the unfair labor practices which were found against it, Rapid only petitions us to review and set aside the bargaining order. The Board has cross-petitioned for enforcement.
We grant Rapid's petition to set aside the bargaining order. Although we recognize that the selection of remedies to enforce the labor laws is a matter within the special competence of the Board, in this case we find virtually no evidence, let alone substantial evidence, that Rapid's unfair labor practices created a serious impediment to the electoral process. Accordingly, mindful that employee free choice is a cornerstone of the National Labor Relations Act, we refuse to sanction a "remedy" which was ordered without a basis in evidence and which effectively disenfranchises Rapid's employees.
Rapid operates a small manufacturing plant in New Jersey. The relevant bargaining unit, at the time these events occurred, numbered 45 persons. On or about September 20, 1976, Local 312 of the International Ladies' Garment Workers Union began an organizational campaign at the plant. On September 24, after it had obtained authorization cards from 25 employees, the Union requested Rapid to recognize it as the employees' exclusive bargaining agent. When the company refused recognition, the Union commenced the procedures which led to a Board certified election on November 12, 1976. The Union lost the election 16 to 20. Thereafter, the unfair labor practice charges were filed.
The Union's unfair labor practice charges were tried by an Administrative Law Judge. The Law Judge found that the company had violated § 8(a)(1) of the Act, 29 U.S.C. § 158(a)(1) (1976),*fn1 through the conduct of two of its agents, Edith Ficeto and William Cruz, neither of whom were company officials. The Board affirmed these findings and issued the bargaining order recommended by the Administrative Law Judge.*fn2
Edith Ficeto is no more than an employee in the plant in a non-supervisory capacity. She holds no office, is not a director and owns no stock. Nevertheless, because of her family ties with the management of the company, the Law Judge found her to be an agent of the company.*fn3 Both the Law Judge and the Board concluded that two instances of Ficeto's conduct constituted unfair labor practices.
The first unlawful incident concerned a conversation which Ficeto had outside the plant with an acknowledged union supporter, Ms. Bruno. While the record is unclear as to the exact date when this conversation took place, it is undisputed it occurred prior to September 24 when the Union obtained its card majority. Although four other employees were present at the time of the conversation, there is no evidence that all four of them understood what was being said. Nor is there evidence that the substance of the conversation was ever explained to them.*fn4 The Law Judge summarized his findings, in regard to this conversation, as follows:
Ficeto told Ms. Bruno that Gualtier had instructed her to find out if Ms. Bruno had anything to do with the organizers being in front of the plant because Ms. Bruno had been seen speaking to them. Ms. Bruno said no. Ms. Ficeto then asked Ms. Bruno to ask Ms. Santiago the same question. Ms. Santiago said no. Ms. Ficeto asked Ms. Bruno what she was going to do about the Union. Ms. Bruno said she would not talk to anyone in the street. Ms. Ficeto asked what Ms. Bruno had to gain if a union came into the plant since it only meant that the union would get some money out of her paycheck every month. Besides, Ms. Ficeto said, the owners would just close the plant or move it someplace else.
The second incident involving Ficeto occurred shortly before the election. Ficeto, while speaking with Maridel Roman, another employee, suggested that she, Ficeto, had an "idea" which employees would vote for the union. She also indicated that her brother would not stand idly by and would resist unionization. Finally, Ficeto told Roman that if there was a union, the work rules would have to be rigidly enforced and that therefore the employees should think twice before voting for the union. The Law Judge found that Roman had relayed Ficeto's advice to ...