Before LUMBARD, Chief Judge, MOORE and FRIENDLY, Circuit Judges.
Upon the previous appeal this court held, "The petition for enforcement is denied pending further consideration of the case as directed in this opinion" (258 F.2d 403). To ascertain whether this direction was followed, a brief resume of the relevant facts is required. Adhesive Products Corporation (Adhesive) is a manufacturer in New ork City. From September, 1947, at least until April, 1954, Adhesive had a contract with an employees' union, Adco Employees' Association (Adco). This union "the Board found in sufficient evidence was not employer dominated" (p. 405). "Over the years the employees had at various times threatened to join an outside union and they had used Adco with some ingenuity in their dealings with Adhesive" (p. 405). The last contract between Adco and Adhesive expired on April 8, 1954 but neither party concerned itself with a renewal. Nor is there any evidence that this status was not agreeable to both parties.
Prior to Christmas 1954 De Pena, an Adhesive employee, who apparently had the confidence of his fellow employees because he served as a member of the employees' negotiating committee, had authorization cards for Teamsters Local 239. Disgruntled over the failure to receive a Christmas bonus as large as expected, De Pena and others then met with Doswell, an organizer of District 65, Retail, Wholesale & Department Store Union, AFL-CIO (the charging party). A third union, Local 810, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, AFL-CIO, was also in the picture.
In January, 1955, membership application cards for District 65 were signed by many employees and the same De Pena and others were members of a negotiating committee of five. District 65 claimed the right to majority representation and on January 24, 1955 filed a petition for certification with the Board. On January 26, 1955 Local 810 began picketing Adhesive's plant. Prior to February 3, 1955, the same committee on behalf of the employees negotiated a collective bargaining agreement between Adco and Adhesive which was signed on February 3, 1955 by all thirteen of Adhesive's production and maintenance employees.
Thus over a comparatively short period of time the employees had exhibited an interest in Local 239, Local 810, District 65 and their old union, Adco. The circumstances surrounding their final decision and the reasons therefor are by no means free from doubt. They may have been influenced at one time by District 65's professional organizers; at another time by Adhesive's president, Medwick. The Board, however, found that Adhesive unlawfully interfered with its employees in reactivating and assisting Adco. Two facts are particularly significant, first, that during this period of uncertainty De Pena was apparently the employees' choice as one of their principal representatives, first as the holder of their application cards for Local 239 and then as negotiator with District 65 and later for Adco; second, that Adco has been held not to have been employer dominated.
This court on the previous appeal characterized the case as turning on certain issues of veracity between Medwick, Adhesive's president, Doswell, the District 65 organizer, and Vicinanza, "a type of professional union organizer, who sought and obtained employment as an ordinary worker for Adhesive but spent considerable time and effort in stirring up the employees and backing up the efforts of Doswell" (p. 406).
Upon the original hearing and during cross-examination Doswell had reached into his inside pocket for a paper from which, according to his testimony, he had refreshed his recollection. When examining counsel requested its production, the Board's counsel instructed him to keep it in his pocket. This direction was sustained by the trial examiner. "We were at a loss to understand why the trial examiner did not compel its production forthwith; and his refusal to do so constituted error that could not have failed to prejudice Adhesive" (p. 408). "Accordingly, this court directed a reconsideration of the issues by the Board, in the light of further testimony by Doswell and Vicinanza, and any other witnesses the Board or the Trial Examiner may wish to hear" (p. 406).
This court's effort to return the case for further consideration of "the credibility of the most important witness" (p. 408) in the light of such facts as might be developed upon a second hearing turns out to have been a vain act because when falsity was developed, the trial examiner for the first time disclosed that he knew of the falsity even in the first hearing.
The court finds it difficult to reconcile the trial examiner's views that, assuming "the employee Vicinanza was a paid organizer for District 65, that he did herd the Employees into District 65 because of their pent-up feelings against the Respondent through the use of mob psychology and without allowing them the opportunity of giving the matter due and proper reflection and consideration," with the statement that these facts "as a matter of law" are "completely immaterial to this case" and "of no concern to the employer" in determining whether the union selected is "of their own choosing." To the contrary, how could any court or administrative body reconcile such a state of facts with the freedom of choice intended by the Act to be granted to employees
The Board's Supplemental Decision and Order, in effect, reaffirms its original order and directs that Adhesive (1) withdraw and withhold recognition from Adco and Local 810; (2) to bargain with District 65 as the exclusive representative of the employees; and (3) reimburse the employees for dues to Local 810. Such an order gives to District 65 the position of being in 1960 the exclusive representative of the employees upon the assertion of Doswell in January, 1955 that District 65 represented a majority, despite the fact that these same employees indicated the union "of their own choosing," Adco, within a comparatively few days after this claim by District 65.
Under these circumstances what relief is best calculated to give to the employees the rights to which they are entitled? First, they should not be made the pawns of any union, the company, or of the Board. Second, they should have an opportunity to express their choice in the manner provided by law.
In N.L.R.B. v. National Licorice Co ., 2 Cir., 1939, 104 F.2d 655, the Board's finding of union representation related to a period two years earlier. The order directed the employer not to treat the company union as the employees' representative, there being evidentiary support for a finding of domination but the court modified the order making it "conditional upon the Board's ascertaining by a new election whether the union is now the choice of the majority" (p. 658).
In N.L.R.B. v. American Mfg. Co ., 2 Cir., 1939, 106 F.2d 61, it was held "that the part of the order requiring collective bargaining with T.W.O.C. be made conditional upon the Board's ascertaining by an election ...