Before GIBBONS, WEIS, and GARTH, Circuit Judges.
WEIS, Circuit Judge: -- The National Labor Relations Board issued a bargaining order based on a union majority demonstrated by signed authorization cards. The only testimony as to three crucial cards is that each was signed after an assurance by a union organizer that it would be used to bring an election into the plant. This statement contradicted the language on the cards and, in the absence of any evidence that the employees read them, we conclude that the record does not demonstrate a union majority. Accordingly, the petition for enforcement of the bargaining order will be denied although we will enforce a cease and desist order.
Bakery and Confectionery Workers International Union of America, Local 6, filled unfair labor practice charges against Keystone Pretzel Bakery, Inc., contending that during the union's organizing campaign the employer engaged in various illegal activities, such as interference, coercion, discouragement of union membership, and refusal to bargain. After a hearing, an ALJ found that the employer's conduct violated the National Labor Relations Act, and recommended a cease and desist order. The Board adopted most of the ALJ's recommendations but, after concluding that the union had a card majority, issued a bargaining order. An applicartion was filed fifteen months later.
This court remanded the case to the Board on October 8, 1980, after the employer moved to adduce evidence of changed circumstances reflecting on the propriety of the bargaining order. The Board issued a supplemental decision on June 2, 1981, reaffirming its previous May 24, 1979 order.
The union organizing campaign at Keystone began in the spring of 1977, six months after Glen Hyneman and Horace Groff purchased the pretzel manufacturing company in Lancaster, Pennsylvania. By May 27, 1977, 17 employees in a bargaining unit of 29 workers had signed authorization cards designating the union as collective bargaining representative.
On Tuesday, May 31, the plant was closed for repairs, but a general plant meeting was held at the company's premises. It was announced in advance that those who came to the meeting would receive a day's pay, but that attendance was not mandatory. All employees attended.
At the meeting, company officers received grievances from the assembled employees, including requests for a wage increase, a pension plan and a cleaner women's restroom. Hyneman promised to grant a wage increase and to rectify conditions in the restroom, but stated that it was too soon to consider a pension plan.
As the meeting was ending, one of the employees suggested that an informal poll be taken to determine the status of the union. Management left the room and the employees, with a few exceptions, voted against unionizing the plant. On hearing the news, Hyneman invited the employees to join him for lunch in a nearby restaurant to celebrate his birthday.
The union initially petitioned the Board for an election, but later filed unfair labor practice charges. No action was taken on the election request, but there was a hearing on the unfair labor charges. The ALJ found the company had violated § 8(a) (1) by coercively interrogating employees, soliciting and promising to resolve employee grievances and grant benefits, as well as conducting an employee poll. 29 U.S.C. § 158(a) (1) (1976). Violations of § 8(a) (1) and (3) occurred when the company refused to grant an employee a wage increase because of his union activity. Id. at § 158(a) (1) & (3).
The evidence credited by the ALJ showed that President Hyneman authorized employee Douglas Schertzer to seek information about the union from other employees and report back with his findings. On another occasion, Hyneman questioned employee Ken Rohrer about the union, and when he denied knowing anything, Hyneman said he had heard that Rohrer was passing out union cards. Hyneman also rebuked employee Kenneth Hall, ostensibly for work-connected activity, but in reality for his union organizing efforts. Secretary-Treasurer Groff also spoke to Hall about his union participation, professing receipt of information from several sources about it.
The ALJ found that the company's decision to give a raise to Schertzer, who cooperated with management, and to deny one to Hall, who was a union adherent, was discriminatory under § 8(a) (3) and a restraint on the exercise of statutory rights in violation of § 8(a) (1). The May 31 meeting was found to be objectionable on a number of grounds: paying employees who attended for the day constituted an unlawful benefit; improper solicitation and adjustment of grievances had occurred; and employer acquiescence in polling employees, without assurance against reprisals and in the presence of supervisory personnel had a coercive effect.
The ALJ recommended dismissal of a § 8(a) (1) charge arising out of a jocular remark made by Hyneman as he gave Rohrer his pay check. When Hyneman laughingly said, "Here is your check, union steward," Rohrer chuckled in return, and testified that he treated the incident as a joke.
The ALJ did not discuss the advisability of issuing a bargaining order, since he found that the general Counsel had not demonstrated that the union possessed a card majority. The union had obtained seventeen authorization cards from the 29 eligible employees. The ALJ held three cards invalid because they were solicited with the representation that they were to be used to secure an election. The validity of several other cards suffered from the same misstatement, but the ALJ found other evidence supporting the authorizations in those instances.
The ALJ excluded from the bargaining unit the company's only truck driver, its three bakers, the president's father who was a general employee, and a part-time employee, the son of the plant manager.
The Board adopted most of the recommendations of the ALJ. However, it disagreed with respect to the jocular remark made to Rohrer, and found it coercive. In addition, the ALJ's findings as to the invalidity of three representation cards were overturned. Instead, the Board concluded that all the cards should be counted that the union had attained majority status, and that a bargaining order was appropriate.
After the petition for enforcement was filed in this court, the employer moved for a remand to consider changed circumstances. The motion recited that during the three years since the alleged unfair labor practices, substantial personnel turnover had occurred. The bargaining unit had grown from 29 to 33, but only 14 of the current workforce were employed in May 1977, and of that number, only seven had signed authorization cards.
After this court granted a remand, the parties filed statements of position. The Board decided that no further hearing was necessary, relying instead on the employer's affidavit describing the personnel changes. The Board declined to withdraw its original bargaining order, finding inter alia that "current expression of employee sentiment is necessarily tainted by the lingering effect of Respondent's unfair labor practices," that the employer's conduct "remains unremedied", and that Keystone has never given "assurances to its employees that such conduct will not recur."*fn1
Although we have given only a sketchy detail of the unfair labor practice charges, it is sufficient to state that there is substantial evidence in the record to support the Board's findings of violations of § 8(a) (1) and (3),*fn2 with the exception of the finding on the comment made to Rohrer. We cannot accept the Board's conclusion that Hyneman's "union steward" remark to Rohrer was coercive. The ALJ, who heard and saw Rohrer testify that he considered the exchange to be a joke; was in a far better position than the Board to evaluate the incident. See, e.g., Eastern Engineering & Elevator Co. v. NLRB, 637 F.2d 191, 197-98, 106 LRRM 2097 (3D Cir. 1980). It was a ...