Seitz, Chief Judge, Kalodner and Gibbons, Circuit Judges.
The National Labor Relations Board ("the Board") seeks enforcement against defendants of a cease and desist order issued August 4, 1970.
Defendants operate an automobile dealership ("the Company"). As of 1968, their service personnel were not unionized. In the summer of that year union organizational activities were initiated by representatives of the International Association of Machinists and Aerospace Workers, District Lodge No. 63, AFL-CIO ("the Union"). Aiding these representatives were two Company employees named Thomas Richmond and Louis Vore.
The Union's efforts resulted in an election being ordered held in the spring of 1969. The election produced a tie vote and, consequently, unionization was defeated. Organizational efforts predictably subsided thereafter. However, Richmond and the Union representatives did maintain a subdued campaign in an attempt to kindle interest for another election. During this period defendant Hagan, as general manager of the Company, disclosed to employees a proposed package of employee benefits. He also announced a scheduled dinner meeting of service personnel. The purpose of the meeting was to permit representatives from General Motors to discuss changes appearing on the new models about to be released.
All service employees were invited to attend the dinner. Neither the initial announcement nor subsequent reminders suggested that those electing not to attend would face any disciplinary measures. Richmond and Vore were the only service personnel who did not attend. Several days after the dinner was held both were informed that they had been indefinitely laid off. "Lack of cooperation" was cited as the official cause for their dismissal, although their failure to attend the dinner was pointed out when specific reasons were requested.
Following dismissal of Richmond and Vore the Union filed charges with the Board against the Company. These charges were reviewed by General Counsel who then prepared a complaint alleging that defendants had committed unfair labor practices in violation of the National Labor Relations Act ("the Act"), 29 U.S.C. § 151 et seq. Specifically, the Company was charged with violating §§ 8(a)(1) and 8(a)(3) of the Act, 29 U.S.C. §§ 158(a)(1), (a)(3), in the following respects:
(1) having announced, and then granted, economic benefits to employees to dissuade them from joining, supporting or assisting the Union in its organizational efforts;
(2) having attempted to convince employees of the futility of joining, supporting or assisting the Union; and
(3) having discriminatorily discharged employees Richmond and Vore because they were members of or engaged in activities on behalf of the Union, or in other protected activities, or both.
The trial examiner concluded that only charge (3) was supported by the record. Accordingly, his proposed order was limited to reinstatement of Richmond and Vore and enjoining further unfair labor practices by the Company involving the discharge of employees actively seeking representation by the Union or any other labor organization. The Board adopted the examiner's recommendations. However, it concluded, in addition, that the record supported charges (1) and (2). Thus, the order sought here to be ...