Having found that Chester Valley, Inc. committed a number of unfair labor practices, the National Labor Relations Board applies for enforcement of two orders directing Chester Valley, among other things, to bargain with a representative of its employees. Chester Valley challenges the unfair labor practice findings, as well as the Board's remedy. Enforcement is granted in part and denied in part.
Before Feinberg, Chief Judge, and Lumbard and Van Graafeiland, Circuit Judges.
Before us are two applications for enforcement of orders of the National Labor Relations Board. The order in 80-4236 is based upon alleged unfair labor practices committed in the course of a representational election campaign at Chester Valley, Inc., and in No. 80-4234, upon an unfair labor practice allegedly committed by Chester Valley while proceedings on the initial matter were pending before the Board. We consider each application in turn.
In a Board-ordered election, Chester Valley's employees rejected representation by Local 445 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America ("the Union"). Following the vote, the Union charged that Chester Valley had committed a number of unfair labor practices during the election campaign. The Administrative Law Judge, after conducting hearings, sustained most of the unfair labor practice charges and ordered Chester Valley to bargain with the Union. The Board adopted the ALJ's findings and recommended order, and it now applies for enforcement. Because we find that there was insufficient proof of one of the unfair labor practice charges and because we believe that reversal on that charge precludes enforcement of a bargaining order, we grant enforcement in part and deny enforcement in part.
Chester Valley is a New York corporation engaged in the sale of fuel oil, gasoline, automotive supplies and automotive and oil burner services. Its main facility is in Chester, New York, with other facilities at Vails Gate and Monroe, New York. In the fall of 1978, Mike Monte began discussing with fellow employees the possibility of union representation at Chester Valley. Monte also spoke with the Union. After obtaining signed authorization cards from a majority of employees, the Union filed, on November 1, 1978, a petition for a Board-supervised representation election in a unit consisting of employees at the Vails Gate and Monroe facilities. On November 2, the Union requested recognition and bargaining in a unit of employees at the Chester and Vails Gate facilities.*fn1 The Company refused to bargain. The election, which resulted in an 18-14 vote against the Union, was held on January 16, 1979.
We summarize the ALJ's findings of fact relating to the unfair labor practices during the election campaign. Gary Jones, who was the Company's bookkeeper and held the title of "Controller," in November of 1978 asked a group of employees at Chester what it would take for them to forget about the Union.*fn2 Jones was told that things had gone too far for "a simple raise or something like that." Shortly before the election, Jones made a similar request of employee Monte alone. Monte replied that he wanted everything the Union had gotten in other contracts plus a guaranteed job. Before the election, Jones called employee Zaccagnino into his office, disparaged the Union's pension plan and stated that he could work out a more advantageous "deal" where Zaccagnino could put in the same forty cents per hour as would go into the Union pension plan into a Company profit-sharing plan. Monte subsequently overheard Jones tell Zaccagnino to think seriously about Jones's proposal and that Zaccagnino would wind up "way ahead."
Also during the campaign, the manager of the Monroe facility, Francis Walters, discussed on many occasions the pros and cons of unionization with the Monroe employees and with employees Monte and Kennybrook, both of whom made frequent deliveries to the Monroe facility. During one such discussion, Walters stated to a group of employees that if the Union won the election, the resulting expenses would force him to cut costs and one method would be to turn the Monroe gasoline facility into a self-service station. In another discussion, Walters stated that if the Union won, company President Krieger would not continue to retain part-time employees. (Many of the Monroe employees worked part-time). Walters also told Monte that unionization would not be good for the Monroe employees, that if he had to, he would turn the facility into a self-service one, that the Company had been very accommodating in granting flexible work hours to the Monroe part-timers, many of whom were high school students, and that the Union might require physical examinations which would pose a problem for full-time Monroe employee Strobl who had eye trouble. Walters made similar statements about the possibility of going to a self-service operation on other occasions.
On December 22, 1978, Company President Krieger wrote a letter to all employees stating that if the Union "gets in," wages and benefits would be subject to negotiation and could "go up or down." Krieger reminded employees of the Company's flexibility in scheduling work hours, and of other benefits such as discounts on gasoline and repair work, uniforms, and liberal breaktimes. He stated that all the benefits would become negotiable if the Union "gets in."
Approximately one week before the election, Krieger made a speech to all of the employees. He stated that he was hurt that the employees had gone to the Union and that he had always had an "open door" policy. He said that whatever the employees could get from the Union, they could get from him. Krieger also stated that the Union might require employees to take physical examinations and he knew that some employees might have difficulty passing.
Finally, the ALJ found that the Company had granted a wage increase in December of 1978, retroactive to November 25. The Company had previously granted wage increases in November of 1976 and 1977. In a letter to employees announcing the raises, Krieger stated that in past years he had given wage increases in the fall, but this year he had been uncertain, because of the election petition, whether he could grant raises. He stated that, despite advice of counsel that there was some legal risk in granting such increases, he would do so anyway. For the majority of employees, the raise was a flat 7% increase, although others were granted the legally mandated increase in the minimum wage, and one employee on a commission salary received no raise.
Based upon these findings, the ALJ held that the Company had violated section 8(a)(1) of the National Labor Relations Act (NLRA), 29 U.S.C. § 158(a)(1) (1976). First, the ALJ held that Controller Jones's statements to employees, constituted promises of benefits to induce abandonment of the Union. The ALJ rejected the Company's argument that it was not answerable for Jones's statements. Jones was the Company "Controller," he supervised office personnel, and was believed by employees to have the authority to advise them as to the Company's wage policies.
Second, the ALJ held that the Company also violated section 8(a)(1) by the veiled threats made by both Walters and Krieger. These threats included 1) references by both Walters and Krieger to physical examination requirements, 2) statements by Walters that if the Union came in, there might be changes in the practice of accommodating part-time employees' work hours, 3) Krieger's statements in his December 22 letter mentioning that benefits such as flexible work hours might be bargained away and that the Union might "force" him to discontinue other benefits such as gasoline discounts and liberal breaktimes, and 4) Walters's statements that if unionization occurred, the Monroe facility might become self-service, and that the Company might not be able to afford part-time employees. The ALJ rejected the Company's argument that in making many of these statements Krieger or Walters attributed the possible changes in working conditions to conduct by the Union. The ALJ noted that the Company had the power unilaterally to effect these changes, and that the speakers did not ...