Before MOORE, Circuit Judge, SMITH and HERLANDS, District Judges.
SMITH, D.J.: The National Labor Relations Board, pursuant to the provisions of the National Labor Relations Act, 29 U.S.C.A., Sec. 160(e), petitions this court for enforcement of a Board order issued against respondent union and the Grand Union Company, enjoining union recognition without a majority designation in an election, enjoining a union membership agreement, and enjoining coercion of employees in organization, and requiring repayment of checked-off dues, fees and assessments, and the posting of the usual notices.
On December 18, 1956 the Company and the Union entered into a collective bargaining agreement which recognized the Union as the exclusive bargaining agency for all employees at the Company's Waterford, New York, warehouse excluding office employees, watchman, permanent salaried supervisors, bakery employees, trucking department employees, and inspectors. The agreement required that as a condition of employment all employees covered by the agreement shall within the statutory grace period become members of the Union and remain members in good standing during the term of the contract, and also contained a check-off provision.
In the Fall of 1956 the Union had renewed a campaign, which it had pursued intermittently since 1954, to organize the employees at the Company's Waterford, New York, warehouse. In late November it sought recognition as the representative of these employees and threatened the Company with a strike and picketing unless the Company entered into a collective bargaining agreement with it. On December 5, 1956, a meeting was held in Albany attended by various representatives of the Company and the Union, including Bernard A. Lubeck, who is in charge of labor relations for the Company, Robert L. Hood, the Company's counsel, Nicholas M. Robilotto, president of Local 294, and Harry Pozefsky, the Union's counsel. The Union's representatives indicated that they had in their possession designation cards signed by a majority of the Company's employees and agreed to produce them for inspection. The meeting was thereupon adjourned to the Union's offices where the Company's representatives were shown a typewritten sheet listing the employees who had signed cards for the Union as well as the cards themselves. A total of 45 cards was produced which the Company's representatives checked against its payroll records. Four of the cards were found to have been signed by persons no longer in the Company's employ and 3 by persons who were working in classifications not included within the proposed bargaining unit. With respect to the remaining cards, the Company's representatives were uncertain as to the authenticity of the signatures on 3 and were unable to make a comparison of the signatures on 2 others because they did not have specimen signatures of these employees with them. In addition, the Company's representatives questioned the validity of 8 cards which bore dates more than 12 months old. Thus, including all doubtful cards, the Union had 38 authorizations from employees who were working in the classifications for which it was seeking recognition. At the time there were 101 employees in the proposed bargaining unit. The Company's representatives therefore informed Robilotto that the Union did not represent a majority and that the Company would negotiate with the Union when it succeeded in obtaining designations from a sufficient number of employees. The Union's representatives indicated that it would only be a matter of a few days before they would have more designation cards. No one representing the Company at this meeting made a list of the names of the employees whose designation cards had been shown to them. Negotiations went on until December 18, with threats from the Union of a strike if it was not recognized. There were two meetings of the employees with Company officers or two sessions of the same meeting on that date. In the earlier part of the morning meeting, in response to a specific query, 69 out of 75 employees then present at the meeting expressed by a show of hands opposition to having the respondent Union as their representative. Thereafter, at the close of the meeting, the president of the Company said to the 75 employees that the Union had threatened a strike if it was not recognized and that the Union had the Company "over a barrel." Somebody asked the employees to show their loyalty to and confidence in the president and, at this point, all of the employees rose and applauded the president. Faced with heavy losses if struck at its busiest period, the Company capitulated and signed a union shop agreement, although on a show of hands the great majority of the employees had indicated that they did not wish to be represented by Local 294. The employees had given a rising vote of confidence to the Company's president. However, Local 294 had never shown the Company designation cards signed by a majority of the employees. After the execution of the contract all the employees signed checkoff cards. Union dues were checked off and paid over to the Union until about August 3, 1957. On August 9, 1957 in a representation election in a voting unit including the warehouse workers and bakery workers, the Union was rejected and Robert E. Gray elected. On September 23, 1957 Gray and the Company entered into a collective bargaining agreement.
The Board's finding that on December 18, 1956, the critical date, the Union did not represent a majority of the 101 employees in the contractual unit is supported by its analysis of the evidence which was as follows:
47 They testified before the Board and it is undisputed that
they never designated respondent before the contract was
signed on December 18, 1956 to represent them.
4 They testified before the Board that they never authorized
the respondent before December 18, 1956 to represent them.
Their authorization cards were not signed ...