Before HASTINGS, Chief Judge, KNOCH and KILEY, Circuit Judges.
HASTINGS, Ch. J.: We have this case on petition of the National Labor Relations Board, pursuant to Section 10(e) of the National Labor Relations Act, as amended, 29 U.S.C.A. § 151 et seq ., for enforcement of its order issued against respondent Mid-West Towel & Linen Service, Inc . (company) on July 23, 1963. The Board's decision and order are reported in 143 NLRB 744 (1963). The Board's opinion fully states the facts and we deem it necessary to restate only such as are relevant to our decision.
The Board found the company violated Section 8(a)(1) of the Act by coercively interrogating employees concerning their union activities, soliciting employees to withdraw from or refuse to join Local 135, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (union) and sanctioning the takof a poll to ascertain the union sympathies and desires of its employees.
The Board also found that the company violated Section 8(a)(3) and (1) by discharging Thomas E. Smith because of his activities in the union organizing campaign.
The Board further found that the company violated Section 8(a)(5) and (1) by refusing to recognize and bargain with the union and by increasing its minimum wage without notice to or consultation with the union at a time when the union represented a majority of its driver-salesmen employees in an appropriate unit.
The Board ordered the company to cease and desist from engaging in the above unfair labor practices and to reinstate Smith with backpay. The issues presented to us are whether there is substantial evidence in the record as a whole to justify the above findings by the Board.
The company employs eighty-nine persons "inside" its plant located at Muncie, Indiana. These employees have been represented for thirteen years by the Laundry Workers Union.
The company also employs about twenty-four "outside" employees as truck drivers or driver-salesmen who deliver and pick up uniforms, towels, etc. These employees have never been represented by a union although Teamsters Union Local 369, a predecessor of the union, twice unsuccessfully attempted to organize them. In both attempts elections were held and the union received no votes.
The company expanded rapidly after entering the industrial linen supply field in 1955 and its growth caused severe congestion in the area adjacent to its plant where delivery trucks are loaded and unloaded. Loading congestion was the subject of numerous complaints by the drivers, some of whom insisted that their duties should not include loading and unloading.
On Saturday, September 29, 1962, company vice-president Benjamin Hertz completed negotiations for a new Laundry Workers' contract covering the inside employees. The same day, driver Norman Childs picked up thirty union membership application cards from Pat Mahoney, a representative of the union. Childs and driver Edward Chesney signed cards and visited other drivers at their homes, securing thirteen additional signatures on Saturday and three on Sunday. Childs, Robert Nemyer and James Kierstead took the signed cards to Mahoney at his home. Driver Jack Janney signed on October 2 and driver Jerry Johnson on October 4 to complete the campaign and bring the the total number of signed membership cards to twenty.
I. The company does not materially contest the Board's finding and order concerning violations of Section 8(a)(1) by coercively interrogating employees.
The company states, "we do not oppose an 8(a)(1) finding limited to interrogation designed to elicit information about individual participation in the union, and an order narrowly drawn to require respondent to cease and desist from such interrogation."
We feel the record as a whole amply supports the Board's finding of coercive interrogation and that the Board's order respecting this finding is proper.
The company asserts that the Board's finding that Hertz sanctioned or conducted a private poll of the employees, which was, in essence, soliciting the employees to express sentiment against the union, is not supported by the evidence since Hertz was not present at the balloting and could not have known how any driver voted.
On October 8, 1962, the drivers held their regular sales meeting at a restaurant. Hertz entered and after excusing all other supervisors and three new drivers reported he had received the union's request for recognition and a letter from the Board he "hadn't read yet." He said he could not understand why the drivers needed a union to do their talking, he had always had an "open door policy," he was "deeply hurt" by the organizing attempt and it was "just like his son slapping him in the face."
Hertz asked the drivers what their problems were, stated he would do his best to "iron them out and keep us happy" and said the company was doing its best to alleviate the unloading situation.
Driver Chesney remarked that they had heard "the company's side" and the union should also be heard. Chesney stated the drivers would feel more secure under a union contract.
Philip Fosnaugh asserted he could not live on his earnings. Hertz promised that he would "see him after the meeting."
Hertz agreed to "talk about" additional insurance benefits. When an employee asked if benefits or bonuses would be taken away under a union, Hertz stated he was not "at ...