Lumbard, Chief Judge, Waterman and Feinberg, Circuit Judges. Feinberg, C. J. (concurring in part and dissenting in part).
Colecraft Manufacturing Co., Inc., petitions to set aside an order of the National Labor Relations Board requiring petitioner to recognize and bargain with the Textile Workers Union of America, to reinstate employees with back pay and to cease and desist from enumerated unfair labor practices. 162 NLRB No. 69 (1966). The Board cross -petitions for enforcement of its order. This court has jurisdiction under § 10(f) of the National Labor Relations Act, 29 U.S.C. § 160 (f) as petitioner's plant for manufacture of laminated plastic table and counter tops is in Lancaster, New York.
During the fall of 1965 the Textile Workers Union engaged in an organization campaign at petitioner's plant. On Friday, November 5, 1965 representatives of the union met with Norman Cole, vice president of Colecraft, and demanded recognition of the union as bargaining agent for all of petitioner's production and maintenance workers on the basis of signatures on union authorization cards. Cole was joined by his brother, Wallace Kowalewski, who requested to see the cards. After examining the cards, the brothers declared that the union did not possess a majority and said they would have to consult with their lawyer.
The union representatives expressed the hope that there would be no retaliation against any employees because of their visit. Cole replied, "I took a labor relations course. I know what I can do and can't do. I know I can't fire for union activity, but I can fire for absenteeism or tardiness." That afternoon David Ostrowski was discharged for missing too much work and for tardiness.
Colecraft's management met with its lawyer to discuss the situation. While that meeting was in progress, the union vice president telephoned to find out what had been decided. Company counsel informed him that there was a bargaining unit question and that the company felt that six "co-op" students employed in Colecraft's plant were not properly part of the bargaining unit. They were high school students who worked part time in the plant and received academic credit for their work.
The union sought to include these students in the bargaining unit. Five of the 34 cards which Cole and Kowalewski had inspected were signed by co-op students. The company proposed that it should file a representation petition wherein the question could be resolved. The union then made a counterproposal that the company recognize the union on the basis of a card check in a unit excluding the students. The company agreed to consider this but indicated that its intention was to file a representation petition the next day. The union representative called back fifteen or twenty minutes later and stated that the union now definitely considered the co-op students a part of the unit and that any offer made by him which involved their exclusion was withdrawn.
The following day, November 8, the company filed a representation petition. The same day the company's employees went out on strike to protest the discharge of Ostrowski. The union filed unfair labor practice charges claiming Ostrowski's discharge violated §§ 8(a)(1) and (3). On November 17, a formal hearing was held on the election petition at which the union argued for inclusion of the co-op students in the bargaining unit. December 6 the Regional Director ruled that the appropriate unit did not include the students and an election was scheduled.
During the strike thirteen workers received letters informing them that they had been permanently replaced. On December 18, the strike ended and the union sent a telegram to petitioner on behalf of its employees offering their unconditional return to work. Colecraft subsequently offered to reinstate all of the workers who had struck with the exception of those who had received replacement letters and William Palumbo, who had told Norman Cole that he would advise the company of the results of his Armed Forces physical examination.
On December 20, after the strike but prior to the scheduled election, the union amended the unfair labor practice charges pending before the Board to allege a § 8(a)(5) violation in petitioner's refusal to recognize the union at the time of the November 5 demand. The Regional Director dismissed on his own motion the employer's election petition and issued the complaint in this action.
The Trial Examiner found that the co-op students should not be part of an appropriate bargaining unit and that the union represented a majority of workers in an appropriate unit at the time of the recognition demand. He found that petitioner did not recognize the union in order to gain time "to subvert the Union's majority, to thwart unionization, and to avoid collective bargaining." Therefore he found that Colecraft violated § 8(a)(5) and recommended that the Board order Colecraft to bargain with the union, following the Joy Silk Mills doctrine. Joy Silk Mills, Inc., 85 NLRB 1263, enforced as modified, Joy Silk Mills, Inc., 87 U.S. App. D.C. 360, 185 F.2d 732, cert. denied, 341 U.S. 914, 71 S. Ct. 734, 95 L. Ed. 1350 (1950).
The Examiner also found that Ostrowski's discharge violated §§ 8(a)(1) and (3) and that the discharge was the cause of the strike. Accordingly, he found that the refusal to reinstate strikers was a violation of § 8(a)(3) and recommended that the company be ordered to offer to reinstate the discharged workers and to give them back pay. He also found that various instances of employer conduct constituted § 8(a)(1) violations which rendered it impossible to hold a coercion-free election among the employees. The Board accepted the Trial Examiner's findings and adopted the recommended order with minor modifications not relevant here.
Because we find that there is not substantial evidence in the record as a whole to support the Board's findings that petitioner violated § 8(a)(5) of the Act by refusing to recognize and bargain with the union, that Ostrowski's discharge violated § 8(a)(3) and that the three incidents enumerated below violated § 8(a)(1), we remand to the Board to determine whether or not a bargaining order is justified by those unfair labor ...