Schnackenberg, Knoch and Kiley, Circuit Judges. Schnackenberg, Circuit Judge, (dissenting).
The petitioner, Lincoln Manufacturing Company, Inc., hereinafter called "Lincoln," pursuant to § 10(f) of the National Labor Relations Act, as amended, Title 29 U.S.C. § 151 et seq., § 160(f), seeks to set aside an Order of the National Labor Relations Board issued October 12, 1966, reported at 160 NLRB 1866, 160 NLRB No. 146, 1966 CCH NLRB para. 20,784, p. 26,744. The Board has cross-petitioned under § 10(e) of the Act for enforcement of its Order to cease and desist from unfair labor practices or other infringement on employees' rights, to bargain collectively with Local Union 503, Sheet Metal Workers' International Association, AFL-CIO (hereinafter called the "Union") on request, and to post appropriate notices.
The Board found that Lincoln violated § 8(a)(5) and (1) of the Act by refusing to bargain with the Union, and had independently violated § 8(a)(1) by acts of interference, restraint and coercion to undermine the Union, dissipate its majority status and avoid the duty to bargain.
Union organizer Frank Elbrink testified that, after he had addressed a meeting of 22 Lincoln employees late in March, 1965 on the benefits of union representation, explaining that the Union as employee representative could negotiate for a contract with Lincoln on wages, seniority, job security, holidays, vacations, etc., the employees present unanimously voted to be represented by the Union. He said he told the employees of his then opinion that Lincoln's President D. Dean Rhoads would recognize the Union without an election.
Under date of May 13, 1965, on the basis of authorization cards from 21 of the 29 employees in the unit, Mr. Elbrink wrote Lincoln defining the unit and asking for recognition and bargaining. Lincoln stipulated that this letter was received on or about May 17, 1965, the same day the Union filed a Representation Petition seeking an election.
A consent election was held on July 8, 1965, at which 11 of the 28 then eligibles voted for and 16 against the Union. One employee did not vote.
On the basis of the Union's objections, the Board set this election aside.
The cards signed by the 21 employees read:
AUTHORIZATION FOR REPRESENTATION
I, the undersigned, hereby authorize the SHEET METAL WORKERS INTERNATIONAL ASSOCIATION, or any affiliated Local Union thereof, to represent me for purposes of Collective Bargaining, and in my behalf, to negotiate and conclude all agreements as to hours of labor, wages, and other conditions of employment.
After hearing testimony as to the statements made in connection with the cards, the Trial Examiner found no support for Lincoln's objections that 11 of the cards were signed on representations that despite the clear wording of the card its sole purpose was to secure an election. There were some conflicts and inconsistencies in the testimony of the various witnesses. Granting that resolution of certain issues of credibility had to be made by the Trial Examiner who heard the witnesses, we agree that the record supports his conclusion, as affirmed by the Board, that on May 17, 1965, when Lincoln received the Union's request for recognition, a majority of the employees in the unit had authorized the Union to act as their collective bargaining representative.
Lincoln argues that the May 13, 1965, letter was defective in that it made no claim to majority status. The letter read:
SHEET METAL WORKERS INTERNATIONAL ASSOCIATION