Petition of National Labor Relations Board to enforce its order granted except with respect to its order that Respondent bargain with union.
Feinberg, Chief Judge, Friendly and Oakes, Circuit Judges.
This is yet another case in a long series in which the National Labor Relations Board has found that a company violated sections 8(a)(1), 8(a)(3) and 8(a)(5) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1), (3) and (5), and then has issued a so-called Gissel bargaining order even though no representation election had ever been held, a considerable amount of time had elapsed between the violations and the order and there had been considerable employee turnover. The Board defends its choice of remedy primarily by arguing that a "hallmark" violation of the Act may in and of itself justify the issuance of a bargaining order under the law of this circuit and NLRB v. Gissel Packing Co., Inc., 395 U.S. 575, 613-15, 23 L. Ed. 2d 547, 89 S. Ct. 1918 (1969), which remains the Supreme Court's leading pronouncement in this area.
This case is before us on the Board's application to enforce. We enforce -- though not without some doubts -- as to the violations found and all remedies ordered with the exception of the order to bargain. We remand the question of the bargaining order because we think that the Board's analysis, based as it was on the fact that one of the company's violations was of "hallmark" status, fell short of the standards imposed upon the Board by the Act, by the Supreme Court, and by us.
Windsor Industries, Inc. (the Company) is an importer and wholesale distributor of small electronic products such as radios. Its operations take place at Melville, New York, in a single facility comprised of a shipping and receiving area, a warehouse area, a repair or technicians' room, and offices. David Fink and Mickey Hiller are vice presidents in charge of operations and sales, respectively. Nick Cianflone and Pat Carrington are supervisors. On April 7, 1980, at lunchtime, Business Representative Girard Jones and Executive Vice President Gerald Hustick of the National Organization of Industrial Trade Unions (the Union) visited the Company parking lot and began speaking to employees. They spoke first to employee Joseph Benzola, who signed an authorization card, and also obtained a signed card from employee Jack Roberts, who told them he would do anything possible to help organize the shop. They also gave two cards to employee Mildred Reph, one for her and one for her son, Al, who also worked for the Company. On the 7th and 8th of April, the Union obtained, apparently with the active support of Benzola and Roberts, signed authorization cards from eight of the fifteen unit employees.
On April 10, Company vice president Hiller observed Roberts receiving a blank authorization card from one of the Union representatives. Hiller also observed Benzola, Roberts and others talking to the Union representatives during lunch and breaktimes.
Also on April 10, the Company received from the Union a telegram stating that the Union had signed a majority of Windsor employees and demanding immediate recognition. The following morning a group of employees decided to request a meeting with Company vice president Fink to tell him what benefits they wanted and what grievances they had. That afternoon twelve employees, including Benzola and Roberts, met with Company representatives. Before the meeting, the employees met to draft a list of issues to raise with management. Benzola was holding this list when the Company representatives arrived.
Fink began the meeting by reading prepared remarks from index cards. He stated that he had been advised that he could not threaten employees for union activities or promise benefits to try to sway them, nor could he ask what was wrong. He did say that he always had an open door, that he did not want "a third party to come between us" and that he did not think employees needed or should pay for "outside representation." He denied that there would be reprisals, but added that he wanted employees to know what they were "getting into."
Benzola then read the list of benefits which the employees had already prepared. Fink, as advised by counsel, responded that he could not promise anything. One employee suggested that the Friday lunchbreak be lengthened fifteen minutes so that employees could cash their paychecks. Fink answered that that sounded reasonable and that he would look into it. Benzola raised the issue of medical benefits and Fink said he would look into that. There were other suggestions regarding vacations, raises and sick days. Fink and Hiller said that they would look into these but again could not make any promises. Roberts requested that the Company post a list of holidays at the timeclock, to which Hiller responded that the request was reasonable and that he would take care of it. When the meeting closed Benzola handed Fink the previously prepared list of grievances. Another employee who had been taking notes of the meeting handed them to Fink saying that the notes reflected what the employees wanted; Fink accepted the list and said he would look into the requests. Again Fink repeated that he could make no promises.
After the meeting, Benzola left the premises and went to speak to Union representative Hustick, who was in his car outside the Company parking lot. Company representatives apparently watched from inside the plant as the two men conversed.
On April 14, the Company, as Hiller had promised, posted a list of paid holidays next to the timeclock. The list included no additional holidays. On April 15, two working days after the grievance meeting, supervisor Cianflone told Benzola and Roberts that work was slow and that they were being laid off until further notice or until work picked up again. When asked how long the layoff would last, Cianflone said that he did not know. The Company had never previously laid off an employee, and an employee whose seniority was identical to Benzola's was not laid off. On May 29, after charges of unfair practices were filed, the Company offered Benzola reinstatement. Benzola did not respond to this offer. On June 4, the Company offered Roberts reinstatement which he accepted on June 9.
On August 3, 1981, the Administrative Law Judge found that the Company violated section 8(a)(1) of the Act by soliciting grievances from employees and promising to remedy them in order to induce them to refrain from supporting the Union. The ALJ further found that the Company violated sections 8(a)(1) and (3) by laying off Benzola and Roberts in order to discourage Union membership. The ALJ concluded that the Company had violated sections 8(a)(1) and (5) by refusing to recognize and bargain with the Union, and recommended, among other things, that the Company be ordered to bargain with the Union. In support of this recommendation the ALJ declared, citing and quoting Gissel and various Board cases, that there was "misconduct going to the very heart of the Act," and that the unlawful layoff of two employees in the "relatively small employee ...