Luxuray of New York, Division of Beaunit Corporation v. National Labor Relations Board

WATERMAN, Circuit Judge

(concurring in part and dissenting in part):

I would deny any enforcement of any portion whatever of the Board’s order. I fully concur in my brother Kaufman’s discussion of the film “And Women Must Weep” and hold with him that the showing of it under the circumstances under which it was shown was not a violation of the Act. The Union also utilized the silver screen and, on its part, treated those employees willing to be entertained to a showing of “The Anatomy of a Lie.” 1

Both of my brothers vote to enforce the remainder of the Board’s order on the ground that the Board properly found, as its Examiner recommended, that the grant of economic benefits after the Union had been soundly defeated at the Board-supervised representation election was a violation of Section 8(a) (1), and that the Board properly ordered, contrary to its Examiner’s recommendation, that the single instance of surveillance (admitted by the employer to be a violation) warrants a cease and desist order.

Inasmuch as a second election was not clearly imminent at the time that the increase in benefits was announced by Luxuray, I cannot find a violation of Section 8(a) (1) in the timing of that announcement. Indeed, to so find a violation appears to ignore the prime interests of the employees. It is undisputed that the employer here had put into effect these same increases at other plants where unionization activity did not proscribe it, and that the delay in announcing the increases to the Fort Plain employees was in all likelihood motivated by a desire to avoid a charge of an unfair labor practice under the doctrine of NLRB v. Exchange Parts Co., 375 U.S. 405 , 84 S.Ct. 457 , 11 L.Ed.2d 435 (1964). To construe the Exchange Parts doctrine, as the Examiner appears to do, to require the employer to refrain from announcing and implementing pay increases until after all aspects of a union organizational campaign have been resolved, a process which often consumes years, twists the Exchange Parts doctrine into an instrument to punish employees for union organization. The doctrine should not bar grants of economic benefits after the employees have had a full opportunity to ballot secretly on whether they wish unionization. Quite obviously the purposes of the Act are not furthered by finding a violation of Section 8(a) (1) in this context. 2

*121 Moreover, I fail to see how the single instance of surveillance by the employer’s supervisors, a surveillance which the employees never knew about, which was never followed up or pursued by the employer, and which did not interfere with the organizational activity of the employees, warrants the issuance of a court cease and desist injunction order. Of course, there would be interference with employees’ organizational rights if any employee were aware of the surveillance, or if the employer used the information gained in such surveillance to punish union organizers or to influence employees against unionization; but these factors justifying a cease and desist order are totally absent here. Admittedly, Luxuray does not contest the Board’s finding that this surveillance was a violation of the Act, even though I seriously question that it really was; Luxuray only argues that a remedial order is not warranted. In this posture, we cannot properly reverse the Board’s finding of a violation on this issue, but even if a violation is admitted, I believe that we should approach the issuance of a remedial order as the Examiner would approach it and that we should exercise our discretion to deny the Board’s request for relief on the grounds that the facts indicate that this violation was de minimis.

. See Appendix at pages 152 and 164.

. As stated in Part III of the lead opinion, the votes were counted on September 19, and the challenged announcement was made immediately after the count. The objections to the election were filed one week later, on September 26, and the September 19 election was not set aside until October 6. In view of the 68-20 vote, a vote found at the Board level not to have been unfairly influenced by employer activity except by the showing of “And Women Must Weep” (which we hold was not an unfair labor practice), it is unreasonable to suppose that the increased benefits were offered to affect unfairly a second election.

• In NLRB v. Ambox, 357 F.2d 138 (5 Cir. 1966), the Fifth Circuit subsequent to Exchange Parts, held that an employer’s post-election grant of retroactive benefits not made dependent upon the outcome of an election proceeding where objections were still to be cleared up was not an unfair labor practice. This approach seems to me to be more sensible than the approach taken by the Board here. Here the increases in benefits were not made contingent on the outcome of any possible second election, and here the *121 increases were put into effect contemporaneously witli their announcement. The promise of retroactive pay increases pending resolution of union objections to the conduct of an election is clearly more of “a fist inside the velvet glove,” Exchange Parts, supra, 375 U.S. at 409-410 , 84 S.Ct. at 460 , than an increase becoming effective at the time of the announcement thereof.