Duffy, Swygert, and Major, Circuit Judges. Swygert, C. J., dissenting.
This case is here on petition of the National Labor Relations Board, pursuant to Sec. 10(e) of the National Labor Relations Act, as amended (Title 29 U.S. C.A. Sec. 151 et seq.), for enforcement of its order issued against respondent on January 19, 1965. The Board's decision and order are reported at 150 NLRB No. 115.
The alleged unfair labor practices occurred at Freeport, Illinois, where respondent is engaged in electroplating metals. No jurisdictional issue is presented.
The Board found, in agreement with the Trial Examiner, that the company violated Sec. 8(a)(1) of the Act by offering to grant a wage increase to employees to discourage their membership in the Union, by granting a wage increase to the employees for that purpose and by advising employees that they would lose rather than benefit from union representation.
Respondent resists enforcement of the order on the basis that there is no substantial evidence, when the record is considered as a whole, in support of the Board's findings. With this contention we agree.
The incidents giving rise to the controversy took place around March 1, 1963. At that time respondent had 120 employees. There was no evidence of hostility on the part of respondent toward a union, and nothing to indicate other than an harmonious relationship between it and its employees.
In the last part of February 1963, a business representative of the Union (Lodge 1096, International Association of Mechanics, AFL-CIO) met with some of respondent's employees, some fifteen or twenty of whom signed application cards and some began to wear union buttons in the plant.
On March 9, a group of employees consulted their supervisor about a wage increase. They were advised to send a delegation to the president's office rather than to go en masse, and a group consisting of Frank Truman, Charles Eichmeier, Charles Nicklaus, James Truman, Robert Parker and Calvin Thompson went to the office of Richard Servatius, respondent's president. The Board in its brief relates what purportedly took place at that time:
"Charles Nicklaus, acting as spokesman, asked Servatius whether it was true that his office was always open and that the men were free to come in and discuss matters with him. Servatius agreed that it was and Nicklaus said that the men had come in to ask for 'a dime' raise. Servatius then asked whether the men were speaking just for themselves or whether they were asking 'for a union raise,' that is, for the whole plant. Nicklaus said he referred to the whole plant.
"Servatius answered that he could not afford it because he 'had bills' and was trying to get a new plant which would mean a lot of new bills coming up, but he pointed out that the men had 'the best insurance in Freeport.' The men stated that they, too, had bills, and Thompson remarked that it was necessary for him to hold two jobs to make ends meet. Thompson was wearing a Union button and Servatius asked him what it was and whether he was in the Union: Thompson said he was not. There was some further general talk and Servatius then asked, if a raise were considered, 'would this union crap be dropped?' Apparently, none of the employees answered this question, but Servatius then said that he would think it over and that the men could come back in 2 or 3 days and they would discuss it further."
This appraisement of what was said at the March 9 meeting is far more favorable to the Board than the record justifies, particularly that portion relied upon in support of its finding that the wage increases were promised and granted to discourage membership in the Union. Of the six employees who were present at the meeting, only three, James Truman, Charles Nicklaus and Calvin Thompson, were witnesses. They all agreed that the purpose of the meeting was to make a request for an increase in wages. Only Truman testified as to the "union crap" statement. His testimony on this point was not corroborated by any other witness. On cross-examination he admitted that he heard nothing which connected the requested pay raise with the Union, as shown by the following:
"Q. During that conversation to which you have testified did you or anyone present make any reference to what wage rates would ...