Blue Flash Express, Inc.

National Labor Relations Board - Board Decisions

Jul 30, 1954

109 N.L.R.B. 591 (N.L.R.B. 1954)

BLUE FLASH EXPRESS, INC. 591
[The Board denied the motion to set aside its order and to dismiss
its complaint.]
MEMBER BEESON took no part in the consideration of the above sup-
plemental Decision and Order.
BLUE FLASH ExPREss , INC. and GENERAL TRUCK DRIVERS , WAREHOUSE-
MEN & HELPERS LOCAL 270, AFFILIATED WITH INTERNATIONAL
BROTHERHOOD OF TEAMSTERS , CHAUFFEURS, WAREHOUSEMEN & HELP-
ERS OF AMERICA , AFL. Case No. 15-CA-618. July 30,1954
Decision and Order
On November 13, 1953, Trial Examiner Ralph Winkler issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in the unfair labor practices alleged in
the complaint and recommending that the complaint be dismissed in
its entirety, as set forth in the copy of the Intermediate Report at-
tached hereto. Thereafter, the General Counsel filed exceptions to the
Intermediate Report accompanied by a supporting brief. The Re-
spondent filed a brief in support of the Intermediate Report.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions contained in the Intermediate Report, except as modified below.
1. The Trial Examiner in this case was faced with a sharp conflict
in testimony as to whether the Respondent's general manager, Golden,
and its superintendent, Gravolet, made to employees certain express
threats and promises, more fully set forth in the Intermediate Report.
The Trial Examiner found that there was nothing in the demeanor of
the witnesses of the General Counsel and of the Respondent to detract
from their trustworthiness and that there was no inconsistency in the
testimony of any witness which would enable the Trial Examiner to
determine who was telling the truth. Because of these circumstances,
the Trial Examiner stated in his Intermediate Report that he could
not "find a preponderance of evidence to support the alleged threats
of shutdown and promises of benefit." Accordingly, he found, con-
sistently with the testimony of Golden and Gravolet, "only that
Golden conducted the conversations with the employees in the manner
to which he testified."
Contrary to the General Counsel's exceptions, we find nothing im-
proper in the manner in which the Trial Examiner resolved this issue.
109 NLRB No. 85.
592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The burden of proof is upon the General Counsel. When, as in this
case, the Trial Examiner is not persuaded by the testimony of the
General Counsel's witnesses that threats and promises were made to
them by the Respondent, the General Counsel has failed to meet that
burden of proof. As an examination of the record discloses no other
basis for reversing the Trial Examiner,' we find that the allegation
that the Respondent violated the Act by making threats of reprisals
or promises of benefit to its employees has not been sustained.
2. Between the date of the Respondent's receipt of a letter from the
Union, dated May 19, 1953, claiming majority status and requesting
collective bargaining, and the Respondent's reply thereto, dated May
22, 1953, which questioned the Union's majority status and thus re-
jected the Union's request, General Manager Golden interviewed the
employees, individually, in his office. In substance, Golden told them
that he had received the letter from the Union, that it was immaterial
to him as to whether they were union members, but that he desired to
know whether they had signed a union card so that he might know
how to answer the Union's letter. In reply to Golden's interrogation,
each employee denied that he had signed any union card, although
a majority of them had done so, designating the Union as their repre-
sentative on or about May 17,1953.
On the basis of these facts, the Trial Examiner, without determining
whether Golden's interrogation of the employees constituted a viola-
tion of Section 8 (a) (1) of the Act, concluded that no useful purpose
would be served by issuing a cease and desist order based thereon be-
cause such conduct was of an "isolated nature."
Whether or not such conduct is to be regarded as "isolated," we are,,
in any event, of the opinion that Golden's interrogation of the em-
ployees was not violative of the Act. At the time of the interrogation,
the Respondent had just received a communication from the Union
claiming majority status and the right to represent the Respondent's
employees in collective bargaining. Golden so informed the employ-
ees. He further gave them assurances that the Respondent would not
resort to economic reprisals and advised them that he wished to know
whether they had signed union authorization cards in order to enable
him to reply to the Union's request for collective bargaining. As
found above, there is no credible evidence that the Respondent at any
time made any threats or promises violative of the Act, resorted to any
reprisals, or exhibited any antiunion animus. Although the employees
who had signed union authorizati on cards gave false answers to Gold-
en's inquiries, the Respondent did nothing to afford them a reasonable
basis for believing that the Respondent might resort to reprisals be-
cause of their union membership or activity. The facts here are simi-
lar to those presented in Atlas Life Ins. Co. v. N. L. R. B., 195 F. 2d
1 Standard Dry Wall Products, 91 NLRB 544
BLUE FLASH EXPRESS, INC. 593
136, where the Employer tried to find out whether a union represented
a majority of the employees so that he would know whether he was
.obligated to bargain with the union. In that case, the Court of Ap-
peals for the Tenth Circuit held that such interrogation was proper.2
When such interrogation is conducted under proper safeguards, as was
the situation in the instant case, the fact that the interrogation is sys-
tematic does not, in itself, impart a coercive character to the interro-
gation. The purpose of such interrogation could not be achieved with-
out systematic inquiry.
Contrary to the assertion of our dissenting colleagues, we are not
holding in this decision that interrogation must be accompanied by
other unfair labor practices before it can violate the Act. We are
merely holding that interrogation of employees by an employer as to
such matters as their union membership or union activities, which,
when viewed in the context in which the interrogation occurred, falls
short of interference or coercion, is not unlawful.
Our dissenting colleagues rely upon the rationale of Standard-
Coosa-Thatcher, 85 NLRB 1358, in which the Board held that inter-
rogation per se is unlawful. They appear to overlook cases, for the
most part of recent date, in which the courts of at least six circuits
have explicitly or by necessary implication condemned the rationale
of Standard-Coosa- Thatcher.-' We hereby repudiate the notion that
interrogation per se is unlawful and overrule Standard-Coosa-
Thatcher and the line of cases following it to the extent that they are
inconsistent with our decision today.
In our view, the test is whether, under all the circumstances, the
interrogation reasonably tends to restrain or interfere with the em-
ployees in the exercise of rights guaranteed by the Act. The fact
that the employees gave false answers when questioned, although rel-
evant, is not controlling. The Respondent communicated its purpose
in questioning the employees-at purpose which was legitimate in
nature-to the employees and assured them that no reprisal would
take place. Moreover, the questioning occurred in a background free
2 Also, cf. Graham County Electric Cooperative , Inc, 96 NLRB 684, 685, where, in find-
ing a violation of Section 8 (a) (1), the Board, unlike the Trial Examiner, refused to rely
on an employer 's conduct in seeking verification from some employees of their signature
to a designation "petition" which a union had submitted as proof of its majority repre-
sentation
3 N L. R B v England Bros , 201 F 2d 395 (C. A. 1) ; N. L. R. B. v. Montgomery Ward
& Co , 192 F. 2d 160 (C A. 2) ; N. L. R. B. v Associated Dry Goods Corp , 209 F. 2d 593
(C A 2) ; Jacksonville Paper Co v N. L. R. B., 137 F. 2d 148 (C A. 5) ; N. L. R B. v
Tennessee Coach, 191 F. 2c1 546 (C. A 6) ; Sax v. N. L. R. B., 171 F. 2d 769 (C A. 7) ;
N L R. B. v. Winer, 194 F 2c1 370 (C A 7) ; Wayside Press, Inc v N. L R B., 206 F 2d
862 (C. A. 9). As far back as 1943, the Court of Appeals for the Fifth Circuit, in rejecting
the view that interrogation per se is unlawful , stated in the Jacksonville Paper case, cited
supra in this footnote: "He [the employer] is not precluded by the Act from inquiring or
being informed as to the progress of unionism . He has a right to inquire if the Union was
organized or washed up provided he does not do so "threateningly or coer-
cively .11
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of employer hostility to union organization. These circumstances
convince us that the Respondent's interrogation did not reasonably
lead the employees to believe that economic reprisal might be visited
upon them by Respondent.
The instant case is thus distinguishable from such cases as Syracuse
Color Press, 103 NLRB 377, enforced by the Court of Appeals for
the Second Circuit, 209 F. 2d 596, where the employer called the
employees to the superintendent's office a week before a scheduled
Board election, advocated adherence to 1 of 2 rival unions, and ques-
tioned them concerning their union membership and activities, as
well as the membership and activities of other employees, without
giving any legitimate explanation for the interrogation or any assur-
ance against reprisal. In such cases, unlike the situation in the in-
stant case, the surrounding circumstances together with the nature
of the interrogation itself imparted a coercive character to the
interrogation.'
This decision does not by any means grant employers a license to
engage in interrogation of their employees as to union affiliation or
activity. We agree with and adopt the test laid down by the Court
of Appeals for the Second Circuit in the Syracuse Color Press case
which we construe to be that the answer to whether particular inter-
rogation interferes with, restrains, and coerces employees must be
found in the record as a whole. And, as the court states "The time,
the place, the personnel involved, the information sought and the
employer's conceded preference [as in that case] must be considered.
... " Members of the majority have participated in a number of
recent decisions in which we have joined in holding that certain acts
of interrogation were violative of the Act, and we reaffirm that posi-
tion here. Therefore, any employer who engages in interrogation does
so with notice that he risks a finding of unfair labor practices if the
circumstances are such that his interrogation restrains or interferes
with employees in the exercise of their rights under the Act.
The rule which we adopt will require the Trial Examiners and the
Board to carefully weigh and evaluate the evidence in such case, but
that is what we believe the statute requires us to do. The only alter-
natives, both of which we reject, are either to find all interrogation
per se unlawful, or to find that interrogation under all circumstances
is permissible under the statute.
Our dissenting colleagues express disagreement with our decision,
but do not make it clear precisely what rule they would follow. There
is the strong implication that the dissenting members would hold in-
terrogation to be coercive per se, which, of course, means wholly with-
4 All the court cases cited in the second footnote of the dissent in the instant case, except
Jackson Press, Inc, 201 F. 2d 541, 545, involved fact situations in which interrogation was
coupled with independent acts of unfair labor practices ; and the Jackson Press case is
opposed to the overwhelming weight of court authority.
BLUE FLASH EXPRESS, INC. 595
out regard to the circumstances in which it occurs. This would mean
that a casual, friendly, isolated instance of interrogation by a minor
supervisor would subject the employer to a finding that he had com-
mitted an unfair labor practice and result in the issuance of a cease
and desist order, which, if enforced by the court, would subject the
employer to punishment for contempt of court if the same or another
minor supervisor repeated the question to the same or another em-
ployee. If this is not the position of our colleagues, and they agree
that the Board is required to determine the significance of particular
acts of interrogation in the light of the entire record in the case, the
difference between their view and ours merely reflects disagreement
as to the conclusion to be drawn from the particular facts of the case.
Hence, we conclude that the Respondent's interrogation of the em-
ployees under the circumstances of this case did not carry an implied
threat of reprisal or in any other way interfere with, restrain, or
coerce the employees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act. Accordingly, we find that such conduct is not viola-
tive of Section 8 (a) (1) of the Act .,5
3. As the record does not establish that, in refusing to extend recog-
nition to the Union, the Respondent was motivated by any considera-
tion other than its asserted good-faith doubt as to the Union's majority
status, we find, in agreement with the Trial Examiner, that the Re-
spondent did not violate Section 8 (a) (5) of the Act.
As we find that the Respondent engaged in no unfair labor practice,
the entire complaint shall be dismissed.
[The Board dismissed the complaint.]
MEMBERS MURDOCK and PETERSON, dissenting :
We dissent from this decision. The majority has here found that
an employer did not violate the Act when he systematically interro-
gated his employees concerning their union adherence. In so doing
the majority departs without convincing explanation from an estab-
lished interpretation of the Act founded on long administrative ex-
perience and supported by court authority. In our opinion this de-
parture is unsound and ignores the realities of industrial life. It
fails to insure to employees the full protection of the Act in the exer-
cise of the rights given them under Section 7 and fails to effectuate
the declared policy of the Act to encourage collective bargaining.
The exact meaning and extent of the majority decision is not cer-
tain. Apparently, however, the majority has decided that interroga-
tion unaccompanied by other unfair labor practices is not conduct
which violates the Act.' We cannot agree.
e See cases cited in footnote 3, supra.
e This interpretation of the majority opinion is confirmed by the position of Chairman
Farmer and Member Rodgers in A E. Nettleton Co., 108 NLRB 1637. In that case they
334811-55-vol. 109-39
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
From the very beginning of the administration of this Act the
Board has, with court approval, found that interrogation by an en-
ployer prevents employees from exercising freely their right to engage
in concerted activities.' After a substantial period of administrative
experience and after amendment of the Act, the Board reaffirmed its
position that when an employer questions his employees concernitig
any aspect of concerted activity he violates Section 8 (a) (1) of the
Act." We believe that the carefully considered position on interroga-
tion taken by the Board in previous cases is well founded, and we are
aware of no recent development which warrants a departure from
such precedent.
The rationale for finding interrogation violative of the Act is sim-
ple. Section 1 of the Act declares the purpose of the Act is to encour-
age collective bargaining and to protect "the exercise by workers of
full freedom of association, self-organization, and designation of
representatives of their own choosing, for the purpose of negotiating
the terms and conditions of their employment or other mutual aid
or protection." Section 7 implements this purpose by guaranteeing
employees the "right" to engage in or refrain from such activity.
Section 8 enforces the guarantee by declaring it an unfair labor prac-
tice for an employer "to interfere with, restrain, or coerce" employees
in the exercise of their rights under Section 7 and for a labor organi-
zation or its agents "to restrain or coerce" employees in the exercise
of those rights. Employees can exercise fully their right to engage
in or refrain from self-organizational and other concerted activities
only if they are free from employer prying and investigation. When
an employer inquires into organizational activity whether by espi-
onage, surveillance, polling, or direct questioning, he invades the
privacy in which employees are entitled to exercise the rights given
them by the Act. When he questions an employee about union organi-
zation or any concerted activities he forces the employee to take a
stand on such issues whether or not the employee desires to take a
concluded that instances of interrogation were not violative of Section 8 (a) (1) when the
instances were "isolated remarks occurring in an atmosphere free of anti -union back-
ground" and were "not part of a pattern of conduct hostile to the Union." See also the
views they expressed in H. R Vanover Coal Co , 107 NLRB 1411, and Poe Machine it Engi-
neering Company, Inc., 107 NLRB 1372.
7 See, for example , First Annual Report of the National Labor Relations Board (1936)
76; Saxe Glassman Shoe Corp ., 97 NLRB 332, enfd. 201 F. 2d 238 (C. A 1) ; Precision Fabri-
cators, Inc., 101 NLRB 241, enfd. 204 F. 2d 567 (C. A. 2) ; Ifanmak Mills, Inc., 93 NLRB
490, enfd. in part 200 F. 2d 542 (C. A. 3) ;'Southland Mfg. Co., 98 NLRB 53, enfd. 201 F.
2d 244 (C. A. 4) ; Stratford Furniture Corp, 96 NLRB 1031, enfd. 202 F. 2d 884 (C. A 5) ;
F. H. McGraw and Co , 99 NLRB 695, enfd as modified 206 F. 2d 635 ( C. A. 6)-; Jackson
Press, Inc, 96 NLRB 897, enfd. as mod . 201 F. 2d 541 (C. A. 7) ; United Bsscust Co., 101
NLRB 1552, enfd . 208 F. 2d 52 (C. A. 8), cert. denied 347 U. S. 934; W. T. Grant Company,
94 NLRB 1133, enfd. 199 F . 2d 711 (C. A. 9), cert. denied 344 U. S. 928 ;Frti-State Casualty
Insurance Co, 83 NLRB 828, enfd. 188 F. 2d 50 (C. A. 10) ; Joy Silk Mills, 85 NLRB 1263,
enfd . as mod. 185 F. 2d 732 (C. A., D. C.), cert. denied 341 U. S. 914.
8 Standard-Coosa-Thatcher, 85 NLRB 1358; Syracuse Color Press, 103 NLRB 377, enfd.
209 F. 2d 596 ( C. A. 2) cert. denied , 347 U. S. 966 ; Protein Blenders , Inc., 105 NLRB 890.
BLUE FLASH EXPRESS, INC. 597
position or has had full opportunity to consider the various arguments
offered on the subject. And the employer compels the employee to
take this stand alone, without the anonymity and support of group
action. Moreover, employer interrogation tends to implant in the
mind of the employee the apprehension that the employer is seeking
information in order to affect his job security and the fear that eco-
nomic reprisal will follow the questioning. The fear induced by an
employer's questions is illustrated by the fact that employees, as in
this case, often give untruthful or evasive answers to such questions.
The many cases in the Board's experience in which interrogation
was the prelude to discrimination demonstrate the reasonableness of
such fear. Interrogation thus serves as an implied threat or a warn-
ing to employees of the adverse consequences of organization and
dissuades them from participating in concerted activity. It thereby
undermines the bargaining agent chosen by the employees, thwarts
self-organization, and frustrates employee attempts to bargain col-
lectively. Such conduct tends to interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed by Section 7 as
prohibited by Section 8 (a) (1). Board condemnation of interroga-
tion, which we believe is required by the Act, protects the right of
employees to privacy in their organizational activities, removes the
restraint and coercion resulting from the threat implicit in interro-
gation, and deters the commission of further unfair labor practices.
For these reasons the Board in its expert judgment and in the light
of its administrative experience is warranted in concluding, as it has
in the past, that interrogation generally inhibits employee self-organi-
zation and is violative of Section 8 (a) (1) whether or not other un-
fair labor practices are committed. This does not mean that all inter-
rogation is automatically unlawful or requires remedial action by
the Board. There are, of course, instances of interrogation which
can be properly regarded as isolated, casual, and too inconsequential
in their impact to constitute a violation of the Act or to warrant a
Board remedy. In such situations we have participated in dismissing
the allegations of illegal interrogation.°
The test for determining the legality of interrogation-as the mem-
bers of the majority profess to recognize-is whether the interroga-
tion, reasonably interpreted, tends to impair the free exercise by em-
9 See, for example , Socony Vacuum Oil Co., Inc ., 78 NLRB 1185; U. S. Gypsum, 93 NLRB
966; Boston d Lockport Block Co., 98 NLRB 686; Remington Rand Inc, 103 NLRB 152;
Capital Lumber Co., 103 NLRB 187; Maryland Sportswear Co., 104 NLRB 70; Western
Textile Products Company of Tennessee , 104 NLRB 162 ; Protein Blenders Inc., 105 NLRB
890.
A number of the circuit court cases cited by the majority as opposed to our position reflect
the courts ' conclusion that the interrogation there presented was "casual ," "Isolated," or
"perfunctory " In considering the view of the Sixth and the Seventh Circuit Courts, see
the following cases decided atter the Tennessee Coach, Sam, and Winer decisions referred to
by the majority : F. H. McGraw and Co., 206 F. 2d 635 ( C. A. 6) ; Jackson Press, Inc., 201
F. 2d 541 (C A 7)
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees of their rights under the Act.- In applying this test in inter-
rogation cases, the Board must, of course, carefully weigh and evaluate
the evidence as it must in all cases. And it must do so in the light of
its administrative experience and specialized knowledge 11 Viewing
the interrogation in this case with these considerations in mind, we
fail to see how the Respondent's questioning of its employees can be
considered lawful. Certainly Section 8 (c) of the Act when it rec-
ognizes that an employer's expression of opinion is not an unfair labor
practice does not privilege an employer to ferret out the views of his
employees and to pry into their organizational activities.12 We see no
circumstances in this case which would make unreasonable the fear
which questions such as those of the Respondent usually tend to en-
gender. Here a high managerial representative, the general manager,
was the interrogator; all employees in the bargaining unit were sub-
jected to the questioning; each employee was interviewed separately;
the place of the interviews was the general manager's office. While
the general manager did state to the employees that it was immate-
rial to him whether they were union members and explained that he
was seeking information for the purpose of answering the Union's
letter, his assurances were ineffective when the entire situation belied
them.13 As the majority states, the interrogation was not accompanied
by express threats or promises and was not followed by reprisals. The
interrogation alone, however, we conclude, tended to create fear in the
employees and to thwart organization. The facts demonstrate clearly
the soundness of our conclusion : The employees obviously did not
accept the assertions of the general manager and felt it necessary
to misrepresent their union position. Each of the employees ques-
tioned denied that he had signed a union card although each had in
fact signed a card only about 5 days before. The employees' denial
of union adherence through fear furnished the Respondent grounds
for refusing to bargain; the Union which had in fact represented all
employees in the bargaining unit was deprived of the recognition to
which it was entitled by reason of its actual majority status and was
incapacitated as bargaining agent; and the employees were deprived
of the opportunity for collective bargaining. The majority ap-
parently believes, however, that the employees here, in concealing their
union adherence in the face of the general manager's assurances and
explanation, behaved in an unreasonable manner. But these em-
ployees acted in a manner typical of employees subjected to interro-
gation. We wonder whether the members of the majority would
m N. L. R . B. v. Link-Belt Co., 311 U. S. 584. 588; Joy Silk Mills v. N. L. R B., 185 F. 2d
732 (C. A, D. C).
n See Universal Camera Corp . v. N. L. R. B , 340 U. S. 474, 488; N. L. R. B. v. Seven-Up
Bottling Co ., 344 U S 344, 346.
12 N. L R. B v. Minnesota Mining & Mfg. Co., 179 F. 2d 323, 326 (C. A. 8).
"See Joy Silk Mills v. N. L R. B., 185 F. 2d 732, 739, 743 (C. A., D C ), cert. denied 341
U. S. 914.
BLUE FLASH EXPRESS, INC. 599
consider the employees' behavior more reasonable had the employees,
instead of denying their union affiliation, tested the good faith of their
Employer's explanation by disclosing their allegiance to the Union or
had the employees claimed a right under the Act not to answer their
Employer's question. The majority's conclusion that the employees
had no reasonable basis for fear of reprisal is simply contrary to all
the Board's administrative experience and the realities of industrial
life.
In addition to arriving at the unsound conclusion that the Respond-
ent's interrogation did not reasonably tend to interfere with, restrain,
or coerce its employees, the members of the majority encourage em-
ployers to engage in interrogation as a means of determining whether
a labor organization represents a majority of their employees. They
emphasize that the Respondent here questioned its employees to en-
able it to reply to the Union's request for recognition and that this
purpose was legitimate in nature. An employer's purpose for in-
quiring into the union activities of his employees, we must point out,
is not a significant or mitigating consideration in determining the
legality of such conduct under Section 8 (a) (1). This section is con-
cerned with the effect of the employer's conduct upon his employees'
exercise of their statutory rights regardless of what motivates the con-
duct.14 The Act protects employees from an innocent or ignorant inva-
sion of their rights as well as from an intended invasion. And the
remedy for the invasion does not penalize the employer but merely
restores freedom of activity to employees by requiring the employer
to refrain from the conduct which impairs that freedom and to notify
the employees that he will do so. Yet the majority sanctions interro-
gation, with its attendant discouraging effects upon collective bargain-
ing, when engaged in for the purpose of resolving the question of a
labor organization's majority status.- We cannot understand this
position nor can we see how our colleagues can approve such a method
of determining a question concerning representation, a statutory func-
tion of the Board. This method places in the hands of an interested
party, with obvious capacity to resort to economic reprisal against
the voters, complete control over the timing, means of inquiry, the
phrasing of the question, and compilation of results of the polling of
employees; and it offers none of the traditional safeguards of voting
such as a secret ballot and conduct of the poll by an impartial agency.16
The fallibility of such a method for testing a majority claim and the
1f See N. L R. B. v Illinois Tool Works, 153 F. 2d 811 , 814 (C . A. 7) ; cf. Republic Avia-
tion Corp . v. N. L. R. B., 324 U. S. 793; Radio Officers' Union, AFL v. N. L. R. B.. 347
U. S. 17.
15 See A. E . Nettleton Co., 108 NLRB 1670, where the members of the majority,
apparently relying upon the erroneous test of the employer 's motive, likewise found that
an employer 's interrogation as to a labor organization 's representative status was not vio-
lative of Section 8 (a) (1).
113 Cf . Protein Blenders , Inc., 105 NLRB 890.
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
inaccuracy of the results it obtains is demonstrated in this case where
all employees in the bargaining unit when subjected to individual in-
terrogation by the Respondent denied the union adherence which they
had earlier adopted.
Several approved methods of determining whether a labor organi-
zation represents a majority of his employees are available to an em-
ployer. He may ask. the labor organization to offer proof of its
majority; he may request the organization to file a petition for a'
Board determination by election ; or he may file a similar petition
himself. He may agree with the labor organization to submit author-
ization cards to an impartial third party for a check; and we note
that in making its bargaining request the Union here stated its
willingness to agree to such a check. Finally, if an employer has a
genuine doubt as to the labor organization's majority status, he may
simply refuse to recognize the organization, and his good-faith doubt
is a defense to a charge of a violation of the duty to bargain. With
all these avenues open to an employer, plainly there is no need for
him to utilize interrogation, with its coercive effect, in order to reply
to a union's request for recognition, and the Board should not approve
such conduct.
We are convinced that the majority decision in this case is unsound
and an unwarranted departure from well-considered Board and court
precedent. The unrealistic view our colleagues have taken of em-
ployer interrogation fails to protect employees adequately in the
exercise of the rights guaranteed them by the Act and permits con-
duct which, in our opinion, will necessarily have an adverse effect on
collective bargaining. We are firmly persuaded that the decision does
not effectuate the purposes of the Act.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon charges filed by General Truck Drivers, Warehousemen & Helpers Local
270, affiliated with International Brotherhood of Teamsters, Chauffeurs , Warehouse-
men & Helpers of America , AFL, a labor organization herein called the Union, the
General Counsel for the National Labor Relations Board issued a complaint on
June 24, 1953 , against Blue Flash Express, Inc., herein called Respondent , alleging
that the Respondent had engaged in specified conduct violating Section 8 (a) (1)
and (5 ) and Section 2 (6) and (7) of the Labor Management Relations Act, 1947,
61 Stat. 136, herein called the Act. Copies of the complaint and charges were served
upon the Respondent , and the Respondent in turn filed an answer denying the com-
mission of the unfair labor practices alleged.
Pursuant to notice , a hearing was held in New Orleans, Louisiana, on October
19-20, 1953, before the undersigned Trial Examiner . The General Counsel and
the Respondent were represented by counsel and all parties were afforded full oppor-
tunity to be heard, to examine and cross -examine witnesses , and to introduce evidence
bearing on the issues . The parties were given opportunity to present oral argument
before the Trial Examiner and also to file briefs and proposed findings of the fact
and conclusions of law.
• Upon the record in the case, and upon observation of the demeanor of the wit-
nesses, I make the following:
BLUE FLASH EXPRESS, INC.
FINDINGS OF FACT
601
1. THE BUSINESS OF THE RESPONDENT
Respondent , a Louisiana corporation with its registered corporate office in Baton
Rouge, Louisiana, maintains its principal place of business in New Orleans, Louisiana,
where it is engaged in the business of transporting roofing, siding, and other ma-
terials by motor truck between various points in and between the States of Louisiana
and Mississippi. Respondent operates as an interstate motor carrier under a license
issued by the Interstate Commerce Commission.
In the year immediately preceding June 1, 1953, Respondent rendered services in
the approximate value of $132,000 to the following firms and corporations: 40
percent to Flintkote Company and the remainder to Jones-Laughlin Steel Corp.,
Laclede Steel Corp., and Orleans Materials & Equipment Co., Inc. During said
period each of said firms and corporations, except Orleans Materials & Equipment
Co., Inc., produced and handled goods for out-of-State shipment and performed
out-of-State services valued in excess of $100,000. Approximately 9 or 10 percent
of said $132,000 represents services rendered by Respondent in transporting mate-
rials directly between the States of Louisiana and Mississippi.
I find that the Respondent is engaged in commerce within the meaning of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The principal question in this case is whether the Respondent had a good-faith
doubt concerning the Union's majority and was therefore justified in refusing to rec-
ognize and bargain with the Union.
The parties agree, and I find, that all truckdrivers and helpers employed by Respond-
ent at its New Orleans terminal, excluding office and clerical employees, guards,
professional employees, and supervisors, constitute an appropriate bargaining unit
within the meaning of Section 9 (b) of the Act. The record further establishes that
a majority of the approximately seven employees in this unit as of May 17, 1953,
signed cards on or about that date designating the Union as their exclusive bargain-
ing representative.
By letter dated May 19, 1953, the Union advised the Respondent that it represented
a majority of the employees in the above-stated unit and that it was prepared to
submit proof of such representation to Respondent or through a card check by an
impartial third party, and it requested Respondent to enter into negotiations on a
specified day. Respondent's general manager, John Golden, replied on May 22,
1953, that he had a question as to the Union's majority and he advised the Union
to take up any further matters in this connection with Respondent's designated
attorney.
Upon receiving the Union's letter and before sending his own response , Golden
directed Superintendent Ben Gravolet to send the employees into Golden's office,
which Gravolet did. Golden told each employee that he had received the afore-
mentioned letter from the Union and that it was immaterial to him whether or not
they were union members, but that he desired to know whether they had joined so
that he might know how to answer the letter. Each employee denied his member-
ship to Golden. According to Golden, this was the entire conversation with employees
on this occasion, and he was corroborated in this regard by Gravolet and Mrs. Golden
both of whom testified to having heard the conversations in an adjoining office.
Several employees, on the other hand, testified that Golden also stated on this occa-
sion that Respondent was too small to operate with a union and that Respondent
would be impelled to sell out or reduce operations should the business be unionized.
According to the stipulated testimony of employee Morris Jarvis, Golden also asked
Jarvis as to who had solicited Jarvis in the Union's behalf. The next day, according
to the stipulated testimony employee John Walker, Superintendent Gravolet told
Walker that he (Gravolet) and Walker would both lose their jobs and Respondent
would shut down if the Union were successful but that Walker would get a wage
increase if the Union did not succeed in organizing the employees. Gravolet denied
this testimony, and Golden testified in this connection that he had instructed Gravolet
not to discuss any union matters with the employees.
Early in April 1953, driver Willie Brown had some difficulty in making delivery
to a union project because he was not a union member. Brown testified that Golden
told him on this occasion that Respondent was not big enough to operate with a
union and would have to sell out should the employees become organized . Golden
denied making this statement to Brown.
Each of the witnesses-the General Counsel's and the Respondent's-appeared
to be trustworthy, so far as my demeanor observation of them is concerned, and
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
no inherent or circumstantial inconsistency was developed in any witnesses ' testimony.
Under these circumstances ; I cannot find a preponderance of evidence to support
the alleged threats of shutdown and promises of benefit , and I accordingly find only
that Golden conducted the conversations with the employees in the manner to which
he testified.
There is no substantial basis for finding that Golden interrogated the employees
for the purpose of dissipating the Union 's representation . And, as the record does
not otherwise show any efforts by the Respondent to undermine the Union or that
it withheld recognition of the Union for reasons other than its stated good-faith
doubt concerning the Union's majority, I conclude that the Respondent has not
thereby violated Section 8 (a) (5) of the Act. See The Walmac Company, 106
NLRB 1355; Beaver Machine & Tool Co., Inc., 97 NLRB 33; Roanoke Public Ware-
house, 72 NLRB 1281, 1282-1283; Chamberlain Corporation, 75 NLRB 1188,
1189-1190.
This leaves only the matter of Golden 's interrogation . Although such conduct
under Board doctrine has been a long-established violation of Section 8 (a) (1) of
the Act (Syracuse Color Press, Inc., 103 NLRB 377; Standard-Coosa-Thatcher Com-
pany, 85 NLRB 1358 ), the Board recently held in a factual context similar to the
present case that such interrogation of all employees within a proposed bargaining
unit is, absent other unfair labor practices , to be regarded as of "isolated nature."
The Walmac Company, 106 NLRB 1355. Without determining whether the inter-
rogation in the Walmac case was an unfair labor practice , the Board dismissed the
allegation upon finding that no useful purpose would be served by issuing a cease
and desist order thereon . The Walmac holding is applicable here. Having found
no other unfair labor practices, I shall recommend , that the entire complaint be
dismissed.
[Recommendations omitted from publication.]
STERLING FURNITURE COMPANY and CHARLES O. BARNES
CARPET, LINOLEUM & SOFT TILE WORKERS, LOCAL No. 1235 and
CHARLES O. BARNES. Cases Nos. 2O-CA-350 and 9dO-CB-109.
July 30, 1954
Second Supplemental Decision and Order
On April 27, 1951, the National Labor Relations Board issued a
Decision and Order in the above-entitled cases,'- finding, inter alia,
that Sterling Furniture Company, herein called Sterling, and Carpet,
Linoleum & Soft Tile Workers, Local No. 1235, herein called the
Union, had violated Section 8 (a) (3) and 8 (b) (2) of the Act,
respectively, by discharging Charles O. Barnes pursuant to an unlaw-
ful union-security provision contained in a contract between the Union
and the Retail Furniture Association of California, of which Sterling
is a member. The Board therefore ordered that Sterling and the
Union, jointly and severally, make Barnes whole for any loss of pay
suffered as a result of the discrimination practiced against him.
In due course, the Board petitioned the United States Court of
Appeals for the Ninth Circuit for enforcement of its Order. On
February 4, 1953, the court remanded the cases to the Board for fur-
ther consideration of the remedial scope of its Order.2 The court,
194 NLRB 32.
2 202 F. 2d 41 ( C.A.9).
109 NLRB No. 98.