*3 COLEMAN, Before GOLDBERG Judges. GODBOLD,Circuit Judge: GOLDBERG,Circuit again faced are once In this case we of determin with the difficult task bargaining ing propriety order of a representation elec when a loses alleged employer’s after dissipate practices unfair labor the card majority claimed the union. Al though Supreme clarified Court *4 many problems arising this particular area of labor law N.L.R.B. Packing Co., Inc., 1969, v. Gissel U. 89 S.Ct. 23 L.Ed.2d S. great number of cases since Gissel many gray illustrate the areas that were Platt, generally, left to be decided. See Supreme Bargaining The Court Looks at Cards, Orders Based on Authorization (1970); Ga.L.Rev. 779 Christensen Christensen, Packing and Gissel “Good Required Faith Doubt”: Recognition the Gestalt of NLRA, Under the of Unions (1970). U.Chi.L.Rev. here The basic facts are similar many progeny those Gissel’s many of these cases there were a questions for number close factual the Board to decide. is a televi- WKRG broadcasting Mobile, sion station in Ala- October, 1969, employee In bama. Formby, at the station wrote a newsman Federation of Televi- to the American in- sion and Radio Artists for [AFTRA] chapter on formation how establish Formby himself in signed After Mobile. October an authorization card on using supplied by list AFTRA, Formby, mailed authorization cards the other members of the unit. After primar- campaign spearheaded an active ily Formby, were authorization cards of the other em- obtained from 21 Mallet-Prevost, Marcel Asst. General ployees in of the cards unit. Most B., Counsel, Washington, C., N. L. R. D. signed 10th and between November Paschal, Jr., Director, Charles M. Re- signed the remainder after a 13th with gion B., Orleans, La., N. L. R. New meeting on held November 19th. Levien, Washington, C., Lawrence D. for 15th, President On November WKRG petitioner. the em- Kenneth Giddens addressed Darby, Jr., Ala., meeting initially ployees requested Mobile, Willis C. at a respondent. Formby. address, ex- Giddens Board, April, dated The in an order union and opposition to the pressed improved adopted the trial examiner’s find- promises for made several wages ings 8(a)(1) but violations these as to Some and benefits. contrary prior examiner on implemented found to the trial promises were 8(a)(5) Specifically, holding November issue. election. On employer, compa- (1) Board found letter to the union sent a 21 the WKRG-TV, 8(a)(1) viola- recognition committed on ny requesting § organizational during represen- the union’s tions campaign; petition for a day same filed (2) unit determination N.L.R.B. election with tation ap- regional director was on made letter company the union’s received (3) day propriate; the union had received a the same 24th and November bargain- majority; (4) valid card announc- memorandum issued a Giddens ing appropriate rem- order the most ing implementation of bene- additional brings edy in case.3 15th promised the November fits appeal challenging on all responded this the Board speech. never findings. recognition. deal four of these We will demand union’s finding separately. with each regional deter- director The Board’s representational appropriate mined the 8(a)(1) an election be unit and directed that I. THE VIOLATIONS *5 February 12, 1970. for that unit on held organiza- Between the time when the un- for the results were 16 The election ion, got campaign underway tional and the against, 1 vote was chal- and election, company the committed various lenged. by acts which were found the Board to charges practice were 8(a)(1). Unfair labor constitute violations of Sec- § by 1, 1969, 8(a)(1) on December employer filed the union tion forbids an from again February interfering election on with, coercing after restraining the or sought 24, employees The union a Board 1970. in the exercise of their sec- company ruling rights. the had violated tion 7 One of the fundamental 8(a)(1) rights guaranteed of the NLRA1 because § in section 7 is the prior right self-organization. activities to the elec- anti-union of In order to tion, further, protect right that based on the Gis- important the Board decision, company sel had violated consistently and the courts § taken a 8(a)(5) failing by management of the NLRA2 activity dim view of calcu- bargain with The Board’s the union. attempt lated to undermine the union’s complaint A issued on June 1970. majority. to achieve an electoral Absent hearing August July scrutiny by was held in of courts, the Board and the management 1970 and the decision pow- trial examiner’s inherently can use its position was rendered on November 1970. erful many over company ways prevent The examiner found that different 8(a)(1) violations, exercising had guaranteed right committed but from their freely representation. because he found that several of the au- to choose collective by been thorization cards had solicited In this case the record indicates that rejected supervisors, the examiner WKRG utilized various methods of sub- charge. 8(a)(5) tle coercion that both trial examiner (5) 8(a)(1) bargain collectively 1. § reads: to refuse to “8(a) prac- representatives employ- It shall be an unfair labor with the of his ees, subject employer provisions — n tice for an of sec- (1) with, restrain, 9(a).” interfere employees in the coerce exercise of reported 3. The Board’s decision at 190 ” rights guaranteed in section 7. . . NLRB No. 74. 8(a) (5) 2. reads : § “8(a) prac- an It shall be unfair labor employer— tice for it, of of “cam violative of On the face this sort the Board found § squarely company paigning 8(a)(1). denies use benefits” fits The type proscribed pressure union within the of conduct contends majori- solely Supreme in N.L.R. Court’s decision the election because lost Exchange Co., 1964, representa- ty B. Parts unit did not desire In of the actions L.Ed.2d each S.Ct. tion. We will review case, a un the face of this, to constitute viola- found Board employer 8(a)(1). organizational drive, ion tions § prior new benefits announced several Promise A. Benefits. representation unani A election. in terms of formidable violations most undermining Court, through speaking mous Justice organizational the union’s activity Harlan viola found such to be spontaneous somewhat drive 8(a)(1). tive reasoned: Court grants after benefits danger “The in well-timed inherent began organizational around drive suggestion increases benefits is the 10 and before election November glove. Em- inside velvet fist February On November was held ployees likely in- are not to miss the 15, Giddens, President ad ference that the source of benefits employees. speech, he dressed now conferred is also source from ¡ said, inter alia: future benefits must flow and which organizing’ a dry obliged.” may up “I am disturbed about if which it is not among hope it I will Union us. 11 L. U.S. S.Ct. at just do come about. . . .We Ed.2d at 439. bring protect in outsiders need company responds, however, have taken each other. We care saying Exchange pro- people. our We have al- Parts . . . adjustments scription applies ready discussed sala- when the new ben- *6 granted person- going a are efits are with the clear inten- ries. We to agreements undermining make officer who tion of the cam- nel will paign. Company honor. In ar- the will We a rather intricate factual which jobs gument, company attempts paint sal- to see our the will evaluate and ary picture portraying a line with simi- Giddens structure comes in President intending comparable positions to markets. increase the benefits lar kind of in- well in advance of the time the union be- will also some We institute delay gan organizing showing plan to Blue Cross and surance in addition only by a com- caused breakdown that we have now.” during temporary munications Giddens’ company implemented these compa- company. The absence from the immediately. promises No- almost On ny spoke to that when insists Giddens fringe 20th, bene- all vember employees the on 15th at November during equalized; December fits were Formby’s request, he know that did not wages company of 25 of the raised the organizational underway. drive was unit; during employees in the and speech The anti-union references his days immediately preceding the three IBEW, to which were said to refer the company election, issued various the the repre- previously had been involved reciting employees the memoranda disputes with WKRG sentational employees, various given company had to its the benefits the and were aimed at and would the benefits organizational drive. AFTRA addition, given In on in the future. be argues company 25th, Alspaugh, essence, In a 24th November and granting consultant, benefits newly personnel cannot be faulted solicit- hired its when such benefits employees’ their about attitudes ed by ani- motivated an anti-union were not jobs. clearly counterweight agreement to AFTRA’s or- a with in full are mus. We permit ganizational a Certainly any To com- that would efforts. rule company. pany and allo- employee bene to time its announcement granting prevent in such a fashion ef cation of benefits of an anti-union in the absence fits foreseeable, great to the would be a disservice ideal fect, intended either organizational deeply impossible freedom so go far and it too would imbedded N.L.R.A. situation where to grant a factual envision campaign during a of benefits Being supporta- bound the Board’s g., permissible. N.L.R.B. E. would be prom- factual determination ble F.2d Co., 2 Cir. M. H. Brown granting and were con- ise of benefits Mfg. v. N. 842-843; Co. Wilkinson organiza- sciously related union’s 298, 303. L.R.B., 456 F.2d agreement effort, tional we are in full not such case. But this is Board with the that such behavior con- findings 8(a)(1). a clear on stitutes violation of examiner, § trial whose accepted 8(a)(1) violation No Solicitation Rule. B. Dur hearing Board, at full factual held a organizational ing Formby campaign defense. company raised this which the meetings station held several during V.T. considering examiner, these after response company time. In concluded, con “I find and objections, this, company on November in announced clude that these benefits were Formby employee, formed another granted purpose influence Fraggard, on com solicitation they reasonably tended election pany property company time and on accepted it.” The Board so to influence Formby forbidden. On December 16th say they findings and we cannot these reprimand received formal letter of unsupported N. See the record. are continuing company from Co., 5 Cir. L.R.B. v. Southwire solicitations for the union in violation of arguing 1056-1057. rule. new The examiner found the grant bene intended to discriminatory against rule to un along, head is met all fits ion. The Board found the no-solici simple fact that benefits informally promulgated tation rule Formby organization granted until the were not Fraggard overly broad actually had materialized al drive presented ground. and chose to it on that invalidate of suc a substantial threat 8(a) found Both rule violative cess. *7 (1). employee company may A in its employ itWhile is clear that an oblige, sincerely noblesse relations be right regulate er maintains the to solici spirit nobility purpose of and its but company property, tation on it must be The not anti-union motivated. must be legitimate purpose done with a in mind proving put absolute not to union is may discriminatory and be in either anti-unionism, and but the examiner of purpose or See foreseeable effect. Re ecological engage free to Board are public Corp. N.L.R.B., 1945, Aviation v. 8(a)(1) atmosphere The violations. 793, 65 982, S.Ct. 89 L.Ed. right every to and Board examiner have blanket rule that was an dropping from conclude that manna Fraggard Formby nounced to went upon heaven were based fear suste beyond necessary well what was to main would flow from unionization. nance appropriate discipline tain and decorum ignore decisional acceleration We cannot at the station. preceded by employee months benefits Lightning lethargy. 8(a)(1) aft struck Section demands carefully In this er rod we the union’s was hoisted. scrutinize no-solicitation wage readjustments promulgated temporal other rules case the benefits, con organizational say nothing an of the initial text of an drive order prevent benefits, unnecessary nouncement these or calculated em-
1309 Haug, operations advocacy. gated by WKRG’s union ployer inhibition feelings regarding Co., manager, his about Beverage-Air See, g., v. e. N.L.R.B. repri The trial examiner and union. 1968, 411. The F.2d 402 4 Cir. interrogation Formby found that this advo Board both by received mand 8(a) (1). violated mild, cacy it demonstrates § but employer abuse inherent potential for regarding The established rules dimen of uncertain rule a no-solicitation ques managerial permissibility of Soup Campbell N.L.R. Co. v. See sions. place tioning which took such as that gen 1967, B., F.2d 372. See 5 380 Cir. ques here concentrate on whether erally, Derishinsky, The Solicitation expected tioning reasonably could N.L.R.B., 40 of the Rules Distribution reprisal mind of fear of induce (1971). 417 U.Cin.L.Rev. employee. v. O. A. N.L.R.B. See easily 1967, Inc., Supermarkets, could The rule in case 5 Cir. Fuller 197, applying interpreted questioning to both as If the been F.2d hours, working non-working and we con not conducted in a manner or justifica special fear, reasonably detect the productive unable to are text of such necessary uphold a no-so tion that deemed an unfair labor it will applies non questioning licitation rule which even if practice, working g., Republic g., See, e. See, hours. e. involved the union. N.L.R.B., supra, Corp. Products, Mississippi Aviation v. N.L.R.B. v. 803-805, 89 L.Ed. 673; U.S. at S.Ct. N.L. see also 1372; Varo, Inc., supra; N.L.R.B. Cir. Varo, Inc, v. R.B. v. Struksnes clearly (1967), 425 F.2d 297. The Co., No. 102 Const. 165 N.L.R.B. ambigu broad, foreseeable effect of the assessing the context within by ous rule here established place questioning took in this which the organizational inhibition of ef following: case, we consider the must forts the union advocates. As we (1) Formby’s position as leader of Co., Mfg. held in N.L.R.B. Walton organizational (2) campaign; anti- 177, 180, pass Cir. 289 F.2d when position company;4 taken ing validity on the of a no-solicitation (3) 8(a)(1) the other com- violations § infringed rule, respondent “Whether ac- mitted which tend upon employees’ engage its freedom to intimidatory context; centuate the guaran activity in union or concerted (4) reprimands in the later fact received depends teed Section 7 of the Act by Formby. clearly in With facts these upon reasonably foreseeable effects record, we cannot reverse upon employees.” of its conduct its Haug’s finding questioning Board’s reasonably foreseeable effect of WKRG’s Formby, admittedly non-eoercive quite clearly ad hoc rule is the inhibition face, when its was coercive viewed organizational activities. Without interrogation the broader context. passing on the examiner’s 8(a)(1). Formby was a violation discriminatory, find, the rule was *8 D. Solicitation Grievances —The Board, did the the no solicitation Survey the Personnel Consultant. unduly rule at issue here was broad and President in his November Giddens ambiguous and therefore violative 1969, speech promised company 8(a)(1), § jobs salary “evaluate would and see that Interrogation. po- C. Coercive In mid in structures come line with similar November, campaign comparable while the effort sitions in markets.” No- On swing, (the day Formby in full was interro- vember was unresolved, ports dispute, yet Formby 4. There is some conclusion that was interrogation place company’s pos- toas whether took of the aware anti-union regardless precise on November Al- ture of the November 20. date of the questioning. though speech place Giddens’ did not take sup- amply until November the record request recogni- implicitly accepted received union’s efforts.” Board tion), finding agree fully in a memoran- President Giddens this supported by and we that it is announced that a dum to all the record. We therefore wage Alspaugh] question- had find consultant [Mr. interviews and following: to do the been hired was naires and constituted unlawful interference 8(a) (1). in violation of § reviewing job Alspaugh each is “Mr. wages comparing per- and
and is practices at sonnel WKRG-TV with 8(a)(5) II. THE VIOLATION comparable in other stations located In order for the Board to find that Alspaugh markets. Mr. findings will make his obligation bargain WKRG had an directly and recommendations union, necessary with the first was inequi- of Directors. If the Board (1) appropriate; find that the unit was exist, they do, they ties and I am sure (2) had achieved a valid card will be corrected.” majority; bargaining (3) and order Alspaugh survey on No- distributed his appropriate was the most means rem- 1969, accompanied by mem- vember edying practices the unfair labor while said, orandum which inter alia: preserving at the same time job being survey “This content is free choice. We must deal with each of gather made to information findings. vital these salary the establishment of rates that aligned properly organ- Appropriateness are within the A. ization, competitive bargaining and that are also Unit. Before a order is industry.” in sued, area it should be determined that seeking repre unit that the union is contends the commonality sent contains a sufficient nothing questionnaire “contains “appropriate” interest to be deemed with, tends to interfere restrains or meaning within the of the N.L.R.A.5 way.” coerce While it Regional Director in his decision questionnaire promulgated is true that a Representation Hearing after the found purely purposes for informational following appropriate: unit to be N.L.R.A., see, g., violative e. N.L. regular All part-time full-time and di- Co., supra, R.B. v. M. Inc., H. Brown rectors, photographers, depart- film determining 441 F.2d at whether employees,newsmen, announcers, ment questionnaire fact used artists, production crew, television purposes” “informational as an promotion employee, art again and set de- union, instrument to defeat sign employees employed Employ- at there is a need to look context Alabama, er’s Mobile, radio and questionnaire televi- within which the was dis excluding sion station: engineers, record, taking tributed. theOn into ac salesmen, janitorial employees, the de- contemporaneous count the union cam livery employee, employees, traffic paign, granted benefits, the other guards supervisors as defined in posture company, anti-union of the the Act. say arewe unable to that the trial exam concluded, iner erred when he “these In his decision the trial examiner af- questions, writing, oral constitut Regional firmed Director’s sequel promises: ed a to Giddens’ appropriate unit. The Board objective discourage here to union its decision did ques- not consider this organizing activities and to defeat the tion. *9 9(b) provides: 5. Section of appropriate the Act purposes for the of collec- “The Board bargaining shall in employer decide each case tive shall whether, employ- unit, unit, plant order unit, assure to craft or subdivi- exercising ees the fullest freedom sion thereof. . . .” rights guaranteed by Act, the unit
1311
engage
Regional
in se
stated that
we could
Director
While
The
square
attempt to
to mantic
Petitioner
seeks
acrobatics
shows
“the record
directly
cases,
employees
in these
we
represent
all the board decisions
a unit of
necessary
ap
presentation
production
or
do
feel it is either
involved in
Although
propriate.
clearly
Employer’s
and tel-
there is
programs at
radio
obligation
company
maintain
The
contends
on the Board to
station.”
evision
approach
in their unit deter
consist
all
consistent
the unit should
sight
opera- minations,
cannot lose
of the
employer’s
and radio
we
television
excluding
ap
department
the office
fact
a determination of unit’s
tions
propriateness
invariably
janitorial
fac
employees,
em-
will
involve
clerical
supervisors
peculiar
employer
guards,
ployees,
tual situations
is
reason
Act.- The
and unit at issue.
It
for this
defined in the
Regional
given great
Board has been
dis
claims that
that the
therefore
ruling
wrong
from
cretion in
to exclude
these matters. As
Director was
recently
operations department
this court
one member
stated:
production
and six
crew
the television
long
“It has
been axiomatic that
employees.
traffic
National Labor Relations Board has
wide discretion in the selection of the
The
the Television
member of
bargaining
appropriate
unit and that
disputed
Production
member
Crew.
a decision
the Board will not be
production
crew was
the television
arbitrary
capri-
disturbed unless
according
Tom Graham who
mony
to the testi-
Laughlin
NLRB v.
&
Jones
cious.
manager
operations
spends
of the
Corp.,
416,
Steel
331 U.S.
67 S.Ct.
delivering properties
his time
80%
the studio. The remainder of his
(1947);
was based on the changes, and other can factors make zation rather than on considerations proof unreliable, cards but there must be commonality. Metropoli N.L.R.B. v. Cf. pervasive these were and existent Co., 1965, tan Life Insurance purely theoretical. and not 85 L.Ed.2d Sec S.Ct. 13 Supreme Packing, 9(c)(5) “In The Court in Gissel states, of the N.L.R.A. supra, determining proposition appropri established the whether a unit “cards, though admittedly ate . . em inferior . the extent to which the adequately ployees organized process, reflect con election can shall trolling.” process Regional Director’s unit sentiment when determination, January impeded.” U.S. at has been issued carefully 8(a)(1) many viola- considered in set at 1934.6 Since factors S.Ct. general reliability of Authorization 6. The the Basis Cards: use author Standard, “Independent Knowledge” recognition ization cards as a basis for (1972) ; Note, instigated has much N.L. debate since U.Chi.L.Rev. Packing Bargaining g., Platt, Supreme Gissel case. R.B. v. Gissel Co. Choice, Employee Bargaining Free Court Looks Orders Based Orders (1970). Cards, supra,; on Authorization Com N.Y.U.L.Rev. ment, Employer Recognition of Unions
1313
clearly
controversy,
par-
and the
as
the
between
discussed
above
tions
im-
process,
ties and as
the Board
impeded
we are
between
the election
examiner,
solely
majority
ap-
de-
pelled
revolves
around
turn to the card
propriate
apply.
provide us an accu-
standard to
Neither
if that will
termine
argue
actually
prior
party
picture
would
that cards
sentiment
rate
by
practices.
supervisory personnel
The union
solicited
should
to the unfair labor
pre-
accepted,
clearly
alleging
did find
the Board
the law
here
is
g.,
employees
acceptance.
unit
such
N.L.R.B.
cludes
E.
22 of
that
the 34
Aviation,
signed
re-
cards.
v. Hawthorne
10 Cir.
authorization
valid
question
a
F.2d
that
must
contends that
val-
we
428.
sponse,
supervisory
majority
in-
is whether
card
never existed.
resolve
id
place
two-pronged.
admittedly
company’s
challenge
volvement
took
that
is
imper-
constitutes,
law,
First,
of the
as a matter of
it is claimed that several
they
supervisory
that
“solicitation”
cards should
because
missible
be disallowed
Cable, I,
by
Secondly,
su-
supervisors.
in American
we condemned
were solicited
urges
reject
pra.
us to
some
misrepresentations
the cards because of
determination,
8(a)(1)
Unlike an
employees concerning
pur-
made to
generalize
privilege
re-
are not
pose
reject
of the cards. We
both at-
supervisory
Al-
spect to the
influence.
tacks.
general
though
of the
involvement
supervisors
to the determina-
is relevant
Supervisors.
by
1. Solicitation
validity
of the
of each individual
In order
an authorization card to be
determining
card, in
whether there was
employee’s
free
a valid indicator
solicitation,
split
improper
we must
choice,
that
the card not
it is essential
atom,
speak,
al-
and look at each
so to
supervisory
by
be tainted
the use
leged
logically
see if the
solicitation to
sig
employee’s
gaining
pressure in
part
al-
on the
of each
deducible reaction
general
rationale
nature. The
rule and
leged
support an infer-
would
solicitee
v.
in N.L.R.B.
this court
was stated
It is
coercion or intimidation.
ence of
Inc.,
Systems,
Cable
American
therefore,
necessary,
look at
facts
F.2d
664:
pertaining
supervisory influence
of the
that cards solic-
“It is well established
disputed
if
to determine
to each
card
may
by supervisory personnel
not
ited
improper
solici-
tainted
that
card
determining
union’s-
considered
tation.
Inc.,
majority
NLRB Hecks
status.
v.
Goodman,
The cards
Cir.1967,
Smith,
Engle,
Bagwell,
King,
and Davis
super-
rationale for this rule
rejected
examiner
be
trial
through
visor,
power over
eco-
his
by supervi
exerted
of influence
cause
well-being
charges,
nomic
Keeney
Both
examin
and Ellis.
sors
position
to exert undue and intrinsi-
Keeney and
the Board found
er and
cally coercive
over their de-
influence
supervisors,
were,
fact,
and the
Ellis
sign
cisions as to whether
not
men is
supervisory
status
two
card.”
American Ca
at issue.
N.L.R.B.
Cf.
supra.
found
ble, I,
examiner
The trial
below,
proceedings
the trial ex-
In the
rejected
each of
six
follows as to
least
of the 22
aminer found
cards:
by improper supervi-
cards were tainted
reversing
Board,
“Employee
sory
testified
Max Goodman
influence. The
signed
at a
examiner,
his card
held
there was
that he
trial
meeting
Both Kee-
showing
improper supervisory
so-
on November
no
meeting,
ney
and Ellis attended
error for
licitation and
it was
presence
lent
remarks
out the cards.
their
trial examiner
throw
activity.
organizational
alleged
surrounding
support
un-
The facts
Keeney
meeting
to lend
dispute,
offered
At
lawful solicitation are
“Employee King
payment
testified
Kee-
$25
one of
*12
ney
personal
initiation
was
on account of
a
friend
his and
to the Union
Union;
support
it
fee,
had
made
never
for
Ellis, who
also
solicited
and
Union,
they
supported the
but that
had
“mu-
he
discussed
that
it
clear
tually”
signed
King
questions.
told
his
We were
before
card
asked several
Keeney
questions
nothing
asked
and that while there
“of
further
that
was
meeting.
nature,”
Witnesses testified
both “seemed to
definite
during
representation
present
feel the
more
was
var-
need for
that Goodman
argue
Ellis,
Keeney
.
favor-
.
.
.”
that
did
with
all
To
discussions
ious
ing
King’s
Union;
hardly
us
he
not
one told
that
be-
card is
to
solicit
Encourage-
of these discussions
meet the
one
issue before us.
lieved that
meeting,
supervisor which,
preceded
ment
November 19
a
where
raised, may
discussions took
that
that such
issue is
warrant
another
signed
place
and after he
interference and even un-
before
both
day.
employer
support against
Max
lawful
on that
Goodman’s
card
rejected.
King’s card
invalidates a card.
is re-
card is
jected.
Bagwell
“Employee
testified that
signed
“Employee Engle
a card on November
before he
minimized his
sup-
Keeney
Formby spoke
Keeney concerning
and
conversations with
signed
port
presence
of the Union
the Union
he
his
before
card.
employees,
Keeney
he
other
and that
He told
several
that
“seemed to
us
be
gathered
Keeney
saying
was
favor
at the station”
of a union
and
might
proper
to
it
sign
course to take
had said
be the
was
that “that
way”
wages
and also
be
a card
it would
and
obtain better
other
Engle
of announcers and
benefit
benefits.
was less reluctant to
high
wages
newsmen,
not
were
declare that both
and after
before
he
enough,
signed
“there
ad-
and that
were some
his card and in conversations
being
vantages
represented by
with
all
almost
de-
Ellis
Bagwell’s
rejected.
represen-
card
AFTRA.”
is
clared
union
that he was for
talking
up.”
tation
En-
and “was
it
“Employee
testified
he
Smith
gle’s
rejected.
card is
payroll
yet on
was
working
“Employee
testified
Davis
that he
Keeney,
been
elsewhere but “had
had a
conversations
few
training
joba
here
hired” and was
signed
at least
of them
he
one
before
signed
on
he
card
No-
when
Keeney
on November 20. While
never
payroll on
He
on the
went
vember
sign
card,
asked Davis to
he did
yet privileged Not
November 30.
point
pro-
out
would
that the Union
Keeney or
the ad-
discuss with
Ellis
$5,000
vide
of insurance and that
it
vantages
unionization,
had
Smith
money
get
was worth the
in-
such
meeting
the union
which
attended
they
age.
surance at their
Davis’ card is
day
before
attended
likewise
rejected.
unnecessary
It becomes
signed
card; he
he
recalled that
questions
may
consider
which
present
he
of the men
said that
one
concerning validity
raised
of other
supervisor.
im-
made a
had been
cards.”
pression
throughout
given
of an at-
by
is
mosphere
employees,
indis-
which was tainted
As to
each of these six
support
signed
apparent
they
criminate
Union
is
cards, they
that when
super-
support
the welcomed
these
either
aware that
Keen-
were
rejected.
ey
Keeney
is
visors. Smith’s card
Ellis
Ellis or
both
questioning
purpose
7. The
also
the val-
it would
no
to elaborate
serve
idity
cards,
passed
light
of several other
on
of oúr determi-
further
these
trial examiner. The
facts sur-
nation
no ‘solicitation’ of
there was
rounding the solicitation of these other
first
six.
six, supra,
cards
are similar
favorably disposed
It
the union.
tablished that cards often
some-
toward
can and
however,
apparent,
upon
equally
that none
times must
relied
as the most
approached
ever
reliable
indication
senti-
Co., Inc.,
Keeney
purpose
of solic- ment.
See J. P. Stevens &
or Ellis for
card,
B.,
iting
Div.
that,
an authorization
Gulistan
N.
R.
L.
Keeney
actively
prepared
nor
cam-
F.2d 514. We are not
neither
Ellis
say,
paigned
implicitly
as the trial
for the union.
examiner
did
that authorization
cards are so
below,
argues
company persuasively
*13
inherently
they must be
unreliable that
of the
should be invalidated
each
cards
employee per-
disallowed whenever
an
inherently coercive nature of
because the
supervisor openly
ceives that a
favors
relationship
employee
supervisor
the
pressure
the union.
It
is actual
making
prevents
employee
a
from
seeking
by
coercion
are
our
we
to avoid
sign
freely
not
to
reasoned decision
disallowing
by super-
rule
cards tainted
supervisor
if
that a
card
he knows
is
visory
influence.
A mechanical
rule
interpretation,
if
the union.
this
Under
requires
finding
supervisory
that
of
supervisor
fa-
has made statements
solicitation in situations such as we have
employee
voring
has
the union and an
here, where there
no
of intimida-
.hint
employee
statements,
heard these
tion, is too broad.
signing
precluded from
will forever be
exposure.
subsequent
to such
valid card
Before the Board invalidates a
hand,
Board,
in
on the other
both
supervisory
prounion
card because of
so
general
in
the decision below and
licitation,
showing
there must be some
argues
interpreta-
brief,
for an
counsel’s
signing employee
subject
that
to
of
limit
the definition
that would
apprehension
a reasonable
his fail
improper
those in-
“solicitation”
sign
ure to
could
adverse
conse
actually
can
shown
stances
it
be
where
Certainly
quences.
a direct solicitation
employee
a fear
was faced with
give
supervisor
a known
could
rise to
supervisory
he didn’t
of
retaliation
if
necessary
inference
of
reasonable
sign a card.8
apprehension.
g.,
E.
N.
R. B. v.
L.
Hecks,
Inc.,
supra,
benefits. Bobbins advised certain em-
must be
trial
find
examiner’s
‘they
ployees
N.L.R.B.,
ings.
should vote for the Union
Universal Camera v.
Cf.
they
protection’.
if
wanted
Tebo threat-
S.Ct.
95 L.Ed.
gets in,
ened
driver:
‘When the Union
456.
going
you’,
we are
to take care of
you
8, supra.
1
others
1.
told
‘if
don’t
vote
See note
say.
supported
AFTRA had
Godwin
what
is well
factual conclusion
considering
the card
that he had read
testified
without
even
the record
signed it.
before he
company animus
of official
fact
cards
none of the
hold
Hodges:
union. We
Employee
He testified
6.
supervisors.
improperly solicited
meeting
union
there
that at
During
discussion where was said
Representations
So-
2.
a certain
there had
attacks
company further
licitation.
in order
of cards
to have
majority on the
number
validity of the card
an election.
au-
signers
ground
of several
sign-
told
cards were
general
thorization
asserts
counsel
they
petitioning for
ing
the card
wholly
the authorization cards are
where
repre-
inviting
AFTRA
here,
an election
unambiguous
face,12 as
be-
on their
them.
explain
AFTRA
sentative to
they designate
“ex-
as
cause
ques-
are
cards
whose
The six
agent
bargaining,”
for collective
clusive
fol-
testified
tioned
cards
invalidated be-
should
:
lows
soliciting
party
the card also
cause
signer
the cards
mentions to the
Employee
He testified
Bauman:
pur-
or other
signed
used for an election
told will be
he was
because
he
pose.
somebody
signed
would
if he
explain
what
town
“come to
although
examiner,
he
The trial
did
was about.”
Union
ques-
not devote much
attention
tion, specifically rejected
company’s
Employee
He testified
Goodman:
*15
in
signed
contention
a footnote:
someone an-
he
after
that
meeting that
nounced
the union
at
argument
reject
Company’s
“I
the
they
enough people signed,
if
clearly
designa-
despite the
stated
that
petition
an election.
could
for
union,
some of the cards
indicating
rejected
only a
should be
as
Employee
He testified
3.
Smith:
to
signed
desire to have an election or a visit
the inten-
he
with
that
by
representative.”
Mobile
a Union
his vote” and
tion that “it was
His oth-
was secret.
that his vote
Although
explicitly
the Board did not
testimony
he
what
er
as to
matter,
pass
implicitly accept-
this
it
very
signed
he
told when
holding
by
finding
ed the examiner’s
vague
uncertain.
majority
that a valid
was obtained.
company’s
contention that
Employee
He testified that
4.
Land:
cards should be invalidated is answered
meeting he attended
the union
at
Supreme
in N.
decision
Court’s
he
discussed and
an election was
Co.,
Packing
op- L. R. B.
395 U.S.
v. Gissel
he would have an
was told that
private.
89 S.Ct.
23 L.Ed.2d
portunity
in
vote
to
(1969),
said as to sin-
where the Court
Employee
He testified
Godwin:
5.
gle
following:
purpose cards the
of his card told
that
solicitor
“[E]mployees
should be bound
initial
him that
the card “was an
sign
language
they
un-
application
it did not neces-
clear
what
language
deliberately
sarily
is
he
to
less that
indicate that
wanted
AFTRA,
clearly
a union adherent
canceled
but
become member
to direct
with words calculated
indication to show
was an
disregard
forget
hearing
signer
the lan-
in
to
he was interested
transcriptions,
sion,
records,
:
electrical
follows
The card stated as
repro-
any
hereby designate
means for mechanical
the American Fed-
other
“I
any
in-
other matters or
Artists
duction and
eration of Radio and Television
jurisdiction
my
agent
dustries within the
for collective bar-
as
exclusive
gaining purposes in
matters
said Federation.”
and all
industry,
dealing
televi-
the radio
Godwin,
example,
Employee
signature.
There
testi-
guage
above
handing
card,
he
but
claims
an
fied that he read
nothing
in
inconsistent
signer
only an
told it was
initial
says
that he was
card that
Co.,
application.
represent him
In J. P. Stevens &
union to
authorizes
B.,
Inc.,
supra,
v.
Div. N. L. R.
telling
will
Gulistan
the card
him
and then
reviewing
get
said
elec-
at
court
probably
an
used first
to
eye
critical
accept
court should
with a
“[view]
ob-
also
.
.
.We
tion.
contrary
post-solicitation
statements
more
are
servation
language
the cards.”
many
likely
not,
months after
than
ques-
response
in
card drive
legal
assessment of the
effect
Our
give
counsel,
by company
tes-
tions
‘challenged misrepresentations
union, partic-
damaging
timony
very much colored
fact
ularly
officials
where
representations
were at least
Gissel
reprisals
un-
previously
misleading
threatened
those that
as
occurred
as
activity
8(a)(1).
ion
violation
rejected
case.13 The Court
the chal-
reject any
re-
rule that
We therefore
lenge to
the cards
we like-
Gissel and
probe
employee’s
quires
an
challenge
reject
company’s
wise
here.
involving
subjective
as
motivations
Stevens,
Div.,
In
P.
J.
v. N.
Gulistan
inquiry.”
endless and unreliable
B.,
supra,
L. R.
tarded unfair labor holding Board ei’red in that a
that the could held would'
fair election not be
hardly justice do the values of free protect.
choice that seeks Gissel The Board’s freedom of through
choice would best served bargaining
issuance of a order is well
supported by the record. As we held in Stevens, supra,
J. P. 441 F.2d at given “peculiar
the Board must be re-
spect” appro- in its determination of the
priate remedy: “ ‘It is for the and not Board * * *
Courts to make de- [the] remedies],
termination based on [of
its estimates as to the effects on the process prac-
election of unfair labor varying intensity.
tices of In fash-
ioning its remedies under the broad
provisions 10(c) of the Act * * * the Board draws on a fund knowledge expertise all its own, remedy and its choice must given special respect by therefore be ” reviewing Courts.’ (citing Packing, Gissel n. 547). 89 S.Ct. 23 L.Ed.2d
Though subjectives of these con- rough grist judi- troversies are for the mill,
cial we are convinced that
Board milled the facts and the law cor-
rectly, and the Board’s order is enforced entirety.
in its
Enforced.
GODBOLD, Judge (specially Circuit
concurring):
I concur in the result.