Cone Brothers Contracting Co.

National Labor Relations Board - Board Decisions

Oct 10, 1955

114 N.L.R.B. 303 (N.L.R.B. 1955)

CONE BROTHERS- CONTRACTING COMPANY 303
-APPENDIX B
Computation of Net Loss of Earnings by William F. Coopersmith
Quarter ending- Gross backpay Interim earnings -Net backpay
1952
June 3o---------------- $20.56 None------------------------------------------------- $20.56
Sept. 30----------------
Employeer Amount
1,281.15 Emil AIm---------------------------------- $30.00
Carroll Lmdenmeier----------------------- 20.00
Geo. Bewley------------------------------- 20.00
Denver Hardware Co---------------------- 10.00
Navajo Court------------------------------ 30.00
Total for quarter---------------------- --- 110.00
Dec. 31- ---------------- 1,351.82 Spray Coffee Co--------------------------- 72 00
McCollum-Law--------------------------- *17. 28
U. S. Post Office --------------------------- 261.36
Total for quarter------------------------- 350.64
1,171.15
1,001.18
1953
Mar.31---------------- 1,381.82 None------------------------------------------------- 1,381.82
Apr. 5 ----------------- 46.26 None ------------------------------------------------- 46.26
Total ---------------------------------------------------------------------------------- 3,620.97
'Coppersmith gave $17.26 as the amount earned on the McCollum -Law job, but the report on his earnings
furnished by the Social Security Administration show the earnings to have been $17.28.
Cone Brothers Contracting Company , and United Stone and
Allied Products Workers of America , CIO. Case No. 10-CA.-
2066. October 10,1955
DECISION AND ORDER
On April 27, 1955, Trial'Examiner A. Norman Somers issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the In -,
termediate Report attached hereto. Thereafter, the Respondent, filed,
exceptions to the Intermediate Report and a supporting brief.
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 Inter-,
mediate Report, the exceptions and brief,' and the entire record in this
case and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Upon-the entire record in the case, and pursuant to Section 10 (c) ,
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the `Respondent, Cone Brothers
114 NLRB No. 62.
304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Contracting Company, Tampa, Florida, its officers, agents, successors,
and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with United Stone and Allied
Products Workers of America, CIO, as the duly certified exclusive
bargaining representative of its employees in the following unit :
All production and maintenance employees, including truck-
drivers, crane and dragline operators, operators of other heavy
equipment and mechanics, wherever employed by Respondent but
excluding casual employees, all office clerical employees, guards,
and supervisors as defined in the Act.
(b) Refusing to furnish the said Union job classification, wage, or
other data relevant to the negotiation with said Union of wages, hours,
or conditions of work for the employees in said unit.
(c) Threatening to close its business before signing any contract
with the Union.
(d) Polling or interrogating its employees, orally or in writing,
concerning their membership in or desire for the Union, in such a
manner as to interfere with, restrain, or coerce them in the exercise
of their rights guaranteed in Section 7 of the Act.
(e) Granting any wage increase or otherwise altering the terms or
conditions of employment of any employees in the above unit without
prior notification to, consultation, and, if requested, bargaining with,
the Union concerning same.
(f) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of the right to self-organiza-
tion, to form, join, or assist, and bargain collectively through said
Union, or any other labor organization of their own choosing.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with the said certified Union
as the exclusive representative of the employees in the appropriate
unit described above with respect to grievances, labor disputes, rates
of pay, wages, hours of employment, and other conditions of work
and, if an agreement is reached, embody it in a signed contract.
(b) Furnish the said Union, on request, job classification, wage, or
other data relevant to the negotiation with said Union of wages, hours,
or working conditions for the employees in said unit.
(c) Post at its plant in Tampa, Florida, copies of the notice at-
tached to the Intermediate Report marked "Appendix." 1 Copies of
3 This notice shall be amended by substituting for the words "The Recommendations of
a Trial Examiner" the words "A Decision and Order ." In the event that this Order is
enforced by a decree of a United States Court of Appeals , there shall be substituted for
the words "Pursuant to a Decision and Order " the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order."
CONE BROTHERS CONTRACTING COMPANY 305
the said notice, to be furnished by the Regional Director for the Tenth
Region, shall, after being signed by the Respondent's representative,
be posted by it immediately upon receipt thereof and maintained by it
for sixty (60) consecutive days thereafter in conspicuous places, in-
cluding all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Tenth Region in writing,
within ten (10) days from the date of this Order, what steps the Re-
spondent has taken to comply herewith.
MEMBER MURDOCK took no part in the consideration of the above
Decision and Order.
INTERMEDIATE REPORT
STATEMENT OF THE ISSUE
On July 27, 1954, the Board , as the culminating step in a proceeding for investi-
gation and certification of representatives under Section 9 (c) of the National Labor
Relations Act (61 Stat . 136), and on the basis of the results of an election and a
runoff election conducted thereunder , certified the Union as the exclusive bargaining
representative of the employees in a stipulated unit. On September 15, Respondent
announced to the Union that it would not bargain with it. Concluding, as the
Trial Examiner must by virtue of the binding effect of the certification upon him,
that Respondent thereby dishonored its bargaining obligation under Section 8 (a) (5)
of the Act, the question still open for him on this record is whether Respondent, by
conduct intervening between the July 27 certification and the September 15 repudia-
tion , engaged in additional unfair labor practices within the meaning of Section 8 of
the Act, including , as alleged in the complaint , the attendant refusal to supply relevant
negotiatory data, a unilateral wage raise , coercive utterances , and an unlawful polling
of the employees concerning their union membership.
The matter arises under the established procedure of Section 10 of the Act for
the prevention of unfair labor practices . The Union ( United Stone and Allied Prod-
ucts Workers of America, CIO), herein found to be a labor organization , after the
refusal to bargain filed charges with the Regional Director . The latter, acting for
the General Counsel, issued and served a complaint , to which Respondent filed its
answer. A hearing was held before the, duly designated Trial Examiner in Tampa,
Florida, on January 17 and 18, 1955, at which all parties appeared and were per-
mitted full participation . Briefs were filed by the General Counsel's representative
and Respondent , which have been duly considered . This report is based upon the
entire record and the Trial Examiner 's observation of the witnesses.
FINDINGS OF FACT
1. JURISDICTION
Respondent , a general contractor , incorporated , located , and performing all its
operations in the State of Florida , is engaged therein in constructing highways , drains,
sewers, excavations , etc. For the typical year ending June 30, 1954, its total receipts
were approximately $4,500,000 . It derived over $2,000 ,000 from the State of Florida
for constructing , maintaining , and repairing State's highways intersecting and con-
necting with United States highways ; over $240,000 from the United States Govern-
ment under contract with the Air Force for repair , maintenance , and construction
work at its Strategic Air Force Command , MacDill Air Force Base , including the con-
struction of a radar reflector and resolution target ; and over $120 ,000 from the Atlan-
tic Coast Line and Seaboard Air Line Railroads for constructing, relocating, and
extending tracks at plants of the American Can Company , Armour & Co ., and Vir-
ginia-Carolina Chemical Company , and enlarging Atlantic 's freight and passenger
yard at Sanford . Of its total annual purchases of $3,000 ,000, it receives $62,000
worth directly and $22 ,000 indirectly from out of the State.
It is concluded that the activities of Respondent as hereafter found , occurring in
connection with its above -described operations , are intimately and substantially-
306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
related to commerce and tend to burden it within the meaning of the Act. It is also
concluded that Respondent 's operations fall within the current jurisdictional standards
of the Board.
II. THE UNFAIR LABOR PRACTICES
A. Background : the representation proceeding and the controversy therein over the
eligibility date, resolved adversely to Respondent
In the representation proceeding (Case No. 10-RC-2572) the contestants were the
Union and a group of four locals of the International Union of Operating Engineers,
AFL, herein called the Operating Engineers . , In an election directed by the Board,
the employees of Respondent , in an agreed unit, were to indicate their choice of
either the Union , the Operating Engineers , or no union . In the election held March
17, of 414 votes cast , none of the 3 choices polled a majority . Accordingly, under
Section 9 ( c) (3) of the Act , the Board directed a runoff election among the,two
highest choices , which in this case were the Union and ",no union ." Also, as pre-
scribed by the Board's Rules and Regulations , the same eligibility date was used in
the runoff as in the original election-February 27.1
Before the runoff election , Respondent requested that the eligibility date be changed
from February 27 to March 27, because of a turnover in a percentage of its em-
ployees during that period . The Board , citing the governing rule, denied the request.
In the runoff election , held April 7, the Union polled a majority of 196 of the 388
votes cast . Resisting certification of the Union , Respondent again attacked the eligi-
bility date and this time specified that in the month following February 27, of the
employees in the unit , 87 dropped out and 99 came in . The matter was considered by
the full 5-member Board . In an order issued July 27, 1954, it unanimously de-
termined that "material deviation [from the governing Rule] is not warranted and
would not be consistent with good administration of the Act "; accordingly, in the
same order, the Board formally certified that the Union was designated by a majority
and, consequently under Section - 9 (a), was the exclusive bargaining representative
of all the employees in the unit, as follows:
All production and maintenance employees , including truckdrivers , crane and
dragline operators , operators of other heavy equipment and mechanics , where
ever employed by [Respondent] but excluding casual employees , all office cleri-
cal employees , guards, and supervisors as defined in the Act.
The foregoing determination of the Board , in respect to the issues in this proceed-
ing, is conclusive upon the Trial Examiner .2 Accordingly , it is found that on July
279 1954 , and at all times material thereafter (N. L. R. B . v. Ray Brooks, 348 U. S.
96), the Union was duly designated by a majority, and by virtue thereof was the ex-
clusive bargaining representative under Section 9 ( a), of all of the employees in
the unit above described.
B. Events after the certification of July 27
1. Preliminary synopsis
The parties had four meetings after the certification ; these took place August 12
and 18 and September 8 and 15 . At all meetings but the last , Respondent , in appar-
ent deference to the Union's status embodied in the certification , promised the Union
Respondent's job classification and wage data pertaining to the employees embraced
1 The governing rule provides :
Employees who were eligibly to vote in the election and who are employed In an
eligible category on the data of the runoff election shall be eligible to vote in the
runoff election.
The procedure which it embodies had its origin in the history of the runoff elections as
a rule of decision . Aluminum Co., )f America , 13 NLRB 79 , 81 ; Sears Roebuck and Co.-
48 NLRB 1170 . It was included as a rule 9f general promulgation in the amended Rules
and Regulations made effective July 12 , 1944 ( Series 3, as amended Art III, Sec. 11 (b)),
and continued to the present day as Section 102 62 ( b) of the Board ' s Rules and Regula-
tions, Series 6, as amended. Its purpose , as stated in Reed Roller Bit Co., 61 NLRB 867,,is
"to eliminate uncertainty and serve as a guidepost in a particular phase of Board
procedure."
2 Sam'l Bingham's Son Mfg. Company , 111 NLRB 508 ; S H. Kress & Co ., 88 NLRB•
292, 297, enfd . 1 94 F 2d 444 , 446 (C. A. 6 ) ; Conlon Bros. Mfg. Co., 88 NLRB 107, 111,
enfd. 187 F. 2d 329 ( C. A. 7).
CONE BROTHERS CONTRACTING COMPANY 307
by the certification; in the second, held August 18, the attorney for Respondent in
addition to promising the data discussed with the Union proposed contract terms
relating to matters other than the wage scale. Four weeks later, on September 15,
Respondent, challenging both the certification and the Union's majority, announced
that it would not bargain with the Union; it never supplied the promised data.
Concurrently with the foregoing occurred events apparently divergent in tenor from
the meetings which preceded the repudiatory action of September 15. The chain of
occurrences will be related in sequence, except where otherwise indicated.
2. The meeting of August 12: the promise to supply requested negotiatory data and
the brief reference to a recent employee poll conducted by Respondent
J. L. Cone, Jr., and LeRoy Allen are vice president and attorney, respectively, for
Respondent and also for Tampa Sand and Material Company. The latter (Tampa
Sand) has had contractual relations with a local of the Union for several years. On
August 12, representatives of the Union met with Cone and Allen to renegotiate a
contract for the Tampa Sand employees. For a brief interval, however, the discus-
sion concerned the employees of Respondent. Scott, the International president of
the Union, asked Respondent's representatives for the list of the job classifications
and wage rates of its employees in order to expedite contemplated negotiations con-
cerning them and to avoid delays which would result if the classifications were ar-
rived at "by guesswork." Allen turned to Cone and, on receiving the latter's ap-
proval, promised Scott the data.
At this meeting there was a brief reference to a poll of the employees taken by
Respondent; Scott requested Allen to set a date for a bargaining conference con-
cerning the employees of Respondent; Allen replied he would consult Respondent,
and suggested the Union call him shortly, but added he "wasn't at all satisfied with
the certification from the Federal government, or words to that effect." Scott coun-
tered by alluding to "a phony election . conducted by the Company." Allen in-
dicated he had heard about it but that he "had instructed Company to state on the
ballot . . . that regardless of how they voted it would not affect the status of their
job.. It would accordingly seem appropriate at this point to turn to the incident
referred to.
3. The poll of the employees
The poll of the employees took place shortly after the certification and, as is to be
inferred from the above, sometime before August 12. Testifying concerning it from
the point of view of the experience of the rank and file were 6 employees called by the
General Counsel; and from management's point of view were Vice-President Cone,
who ordered the poll, and the 4 persons who conducted it. Chief among the latter
was Keene, the paymaster, who had the primary responsibility for conducting the poll.
According to the employees, on a Friday afternoon, when they called for their pay-
checks, they were first shown a questionnaire, and told to mark it; after they did so,
they received their checks. Four of these employees (Doss, Lynn, Folks, and Estevez)
were shopmen, who customarily received their checks at their work place from the
assistant foreman, but on that occasion they found the checks being distributed at the
foreman's desk by Keene, the paymaster, who first handed them the ballot, and upon
their marking it, gave them their checks.3 Doss and Lynn, according to their undenied
testimony which is hereby credited, were told by Keene that they were to mark the
ballot first and then they would be paid. The other two, Burke and Holloway; were
truckdrivers. Burke, because of his additional work in greasing trucks, used to receive
his check in the stockroom from the night foreman; this time he was referred by the
latter. to the main office, with the explanation that "you have got to . check a
slip, whether you belong to the CIO or not." However, since as a driver he alterna-
tively would be paid at the truckdrivers' department by Sisson, a timekeeper, he went
to"the latter. Sisson handed him the ballot with the statement, "You will have to
check this, whether you belong to the CIO union or whether you don't belong to it,
and . . . then I will give you your check." Burke complied but, as it happened, his
check had gone to the main office; he went there the following morning and he was
again handed a ballot but, upon Sisson's vouching for his having already signed one,
he received his check. Holloway always received his check from Sisson, and the only
variance in his mode of payment was that, as he testified. Sisson first handed him a
ballot and upon his complying with the request to mark it, was paid.
Estevez was thus handed a ballot and paid by Keene's assistant
387644-56--vol. 114- --04
308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The ballot handed the employees (which was prepared , by Attorney Allen), read:
Do you belong to the United Stone and Allied Products Workers of America,
CIO, Union?
(Please answer by checking "yes" or "no."), , - -
Yes: No:
We are asking the above question to see whether the union represents a major-
ity of you or not. Your truthful answer will be appreciated .' It will 'make no
difference - in your employment whether you do or don't.
Two- employees testified to their difficulty in marking the -ballot' because of- the
wording of the question. Estevez - had signed a union authorization ` ca'rd, but since
'he had not paid .dues in the Union, he expressed doubt concerning how -to - mark it,
Latimer, a timekeeper ( and one of the ballot distributors in another area )t, thereupon
suggested„ "If you aren't sure .:.:, why don't you mark it No . I' )Nevertheless, it
should be noted , Estevez marked his ballot "Yes ." 4 Doss resolved -his doubt the other
way. He. too had signed an authorization card • for, the Union and he also voted for
it in , the Board election, but he marked the ballot "No," because , as he testified, "I
had never paid any , dues, and wasn 't for sure_ whether I • was a member of-this Local
or not."
'The ballot was handed,to ,each employee unfolded , marked in the presence and in
the view of the person- distributing and collecting the ballot, and returned , unfolded
to the distributor . The latter then placed it in an envelope : Five of the employees
acknowledged on cross , examination , that if they , had turned around before marking
the ballot, no one would have seen how they matked ' it, but Holloway testified' that
if he had done so , "I wouldn 't have had. anything to lay the copy on to mark it. I had
to mark it on it on the desk." Each acknowledged. that he could have walked away
to another part of the room. Each acknowledged he marked the paper as he "wanted
to.,,
As to the result, Respondent 's answer and offer of proof avers that "470 in number
returned the questionnaire, out of which total 64 stated they belonged to the Union
and 406 stated , they did not." 5 • • -
On behalf of Respondent , Vice-President Cone testified the purpose of the' poll
was to resolve a doubt in his mind as to whether , in view of the turnover of-em-
ployees following February 27, "it was really their desire to be in the union or
not." In this connection , Cone testified that in Respondent 's force "there is a
continual turnover , even if our business was standing on a level" but that Respondent
experiences "a much larger degree of turnover when a change of job location oc-
curs"; Cone explained that a job "may run a year , it may run a month , or it may
run two weeks." i
Concerning the manner of taking the poll, Cone testified that he "instructed those
distributing the ballots to please ask the employee to mark the ballot . If they didn't
want to they didn't have to , but we would appreciate it if they did; and that in
no way did I want to force the employee to mark the ballot."
The testimony of the persons who distributed the ballots did not concern the
experiences of the six employees , but was a general one regarding the mode of dis-
tributing and collecting the ballots . There was no denial of the testimony con-
cerning the sequence in handing out first the ballot and then the check , except that
Timekeeper Sisson alone testified he handed them out the same time; he said he
had no recollection of the Burke incident despite the added feature involving Burke's
being paid the following morning and then after Sisson's vouching for Burke 's having
signed a ballot the night before. Burke's testimony is credited . So is the testi-
mony of the remainder of the employees concerning the sequence in question.
Since their testimony is. substantially undenied and their bearing, aspect, and
4This is the construction the Trial Examiner places upon his testimony despite a
slight ambiguity arising from the unresponsiveness of the statement to the question, thus
Q Did you vote in the elections that were conducted by the National Labor
Relations Board?
A. Yes, sir
Q Whereabouts did you mark- that ballot at that time? '
A Like this on this paper heie?
Q Yes, on General Counsel 's Exhibit No S.
A I marked it Yes -
5 The proof thereof was excluded under the doctrine which accords a certification under
Section 9 ( c) of the Act a ieasonable duration, normally a year. Ray Brooks v. N. L. R. B.,
348 U S 96 , N. L. R. B. v Sanson Hosiery Mills, 195 F . 2d 350 ( C A. 5), cert. denied
344 U. S 863.
CONE BROTHERS CONTRACTING COMPANY 309
demeanor-negated likelihood.of-fabrication, their testimony concerning their,separate
experiences is_cledited:_-_
Keene and-the other-ballot distributors-testified-to having'told the employees that
marking the ballot was optional, although Respondent preferred it. However,
Keene testified he said that only to the "several" employees who specifically asked
about it, since he had the primary responsibility and, as appears from the credited
,testimony of the only employee witnesses to the matter, no such statement was made
to them, it is inferred and found, that the statement that marking the ballot was op-
tional was not volunteered but was made only to the limited number of employees
who specifically asked concerning it. Keene also testified that of those who, after
specific inquiry, were told they did not have to mark the ballot, none exercised it. .
Concerning the openness of the ballot, it was admitted no ballot box was provided,
but Keene testified that about 25 percent of the 470 who handed in ballots took
theirs elsewhere for marking
The Trial Examiner is persuaded that Respondent's purpose in taking that poll
was not to obtain disclosure of the affiliation of any -individual employee, but for
such reasons as seemed sufficient to it, Respondent wished to make a tally of its
own concerning the unit as a whole. While, as the Trial Examiner. finds, the poll
,was not born of any desire to obtain discovery of individual preferences or 'to
punish any employee, still open and deferred to the conclusionary part of this
,report is the question of whether the poll, considering its occasion, its wording, and
its manner, unwarrantedly impinged upon the rights' guaranteed to the employees
in Section 7 of the Act
4. Meeting of August 18
a. The contract negotiations and the second promise of the negotiatory data
Despite the reservation expressed by Allen at the August 12 meeting concern-
ing the certification, and despite the poll's outcome, the parties met again in Allen's
office on August 18, this time to negotiate contract terms for the employees em-
,braced by the certification. The record is not explicit as to whether this meeting
was preceded by compliance with the preliminaries specified by Allen on August 12
as the condition to holding it-namely, that he would consult with Respondent and
the Union call him afterwards. Since this meeting was for the very purpose re-
quested by the Union, it is inferred and found that the conditions on which Allen
had indicated such a meeting was contingent were fulfilled and that he arranged it
with the Union after consultation with Respondent. '
Present for the Union, besides its International president, Scott, and the southern
district director of CIO, Haigler, was a committee of three employees of Re-
spondent, appointed by the local of the Union in Respondent's plant to witness and
take part in the negotiations. The Union submitted a proposed contract to Allen,
who was the only one present for Respondent. The latter, after reading it, de-
murred to a number of items, and finally told the Union to resubmit to him a
proposed contract "cut down to the very core," i. e., to the minimum accept-
able to the Union, and that he would then "see what could be done." Scott again
requested the job classifications and wage scales, and Allen, explaining "that was
something it took some time to get up," again promised to provide them.
b. Allen's colloquy with an employee committee member
At this meeting occurred an interchange between Allen and Ray Conrad, a mem-
ber of the employee committee, which the General Counsel claims involved an in-
dependent violation of the Act. Conrad and Albert E. Holloway, a fellow member
of the employee committee (the latter is among the persons who testified to their
experiences at the poll), testified that in the course of the discussion of the terms of the
contract, Conrad indicated that apart from wages, the employees were interested
in improvement in the physical conditions of the job-"such as safety precautions,
cleanliness, place to change our clothes and take a shower and go home decent at
night." While Conrad testified that Allen replied "he didn't know anything ;about
our working conditions at Cone Brothers," Holloway testified that Allen,told Con-
rad, "You seem to be a smart man. . . . If you don't like the way things are run
down there at the Cone Brothers Construction shop . why don't you hunt you
another job." On further examination, Holloway explained that the other committee-
men at the meeting raised similar points with Allen, and that the latter stressed "that
what we were trying to discuss . . . were personal matters. We didn't go up there
for personal matters," and that "he [Allen] didn't want to have [a] personal argu-
ment with him [Conrad] about anything like that."
310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"Co'"li'rad;i andRrHolloway's testimony is-not denied; and -is-herebycredited6 How-'-
ever, the,inference fairly, to_be.drawn therefrom is deferred to the-conclusionary partr^._
of this"rep'or't.
5. The wage raise given August 28 to certain employees in the bargaining unit
It is conceded that on August 28 Respondent granted an increase of 10 cents an
hour to all truckdrivers of heavy equipment who had been in Respondent's continu-
ous employ a year or more.
The raise was given without notification to or consultation with the Union; neither
was any prior notification given the employees . Each employee affected found a
note with his paycheck explaining that the raise was being given to all drivers of
heavy equipment continuously employed by Respondent a year or more. The Gen-
eral Counsel contends the wage raise was given "for the purpose of destroying the
Union's majority status," and in so doing relied upon the fact that this occurred
during contract negotiations and that its institution involved a departure from prior
'custom in that this was the first time a raise was accompanied by an explanatory note,
or had ever been expressly predicated on a year's continuous service. Cone ex-
plained•that the'raise was pursuaiit to Respondent's efforts in 'the past few years "to
improve the Company in personnel and equipment"; that it was given to the opera-
tors of the heavy equipment, because they had not participated in a raise which
earlier had been given to the shopmen; that the 1 year's continuous service stand-
ard was employed because it was a reliable gauge as to whether an operator was
sufficiently qualified to be induced to stay on; and finally, that the purpose of the
notification slips was to explain the basis for the raise and thereby obviate inquiries
"by every laborer and other personnel as to why they didn't receive [one]."
6. Further requests for job classifications and wage data; meeting of September 8
and the third promise of the data
On September 2 the Union, by registered letter to Respondent and telegram to
Attorney Allen, requested a bargaining conference and also the job classifications
and wage data previously promised.
On September 8 the representatives of the parties, as in the case of the August 12
meeting, met in connection with contract negotiations concerning the Tampa Sand
employees, but with a brief interlude respecting Respondent's employees. The
Union repeated its request for the job classification and wage data covering Respond-
ent's employees; Respondent's representatives, Cone and Attorney Dell, partner and
acting in the place of Allen, promised that these would be "forthcoming shortly."
7. Meeting of September 15; repudiation of Union by Respondent
On September 15 the parties met in the office of Attorney Dell. Dell announced
that "there was no use [wasting] the time of both parties, that the Company was
not going to negotiate with the union." The ground given was that Respondent was
not satisfied that the Union represented a majority of the employees, first because
of the "remoteness" of the eligibility date in the Board's runoff election preceding
the certification, and second because of the outcome of the poll taken by Respond-
ent in August. The Union tried to persuade Respondent's representatives to nego-
tiate, but Cone replied that "apparently he was squeezed between two unions," with-
out naming the other union.
Dell testified that "it was not until the morning of September 15, 1954, that any
.definite instructions were given by the Respondent Company to its attorneys" con-
cerning whether to negotiate with the Union, and that until then, Respondent was in a
"state of flux" concerning the matter, which it never communicated to the Union.
Concerning the decision arrived at the morning of September 15, Dell testified:
Q. Now to your knowledge was this direct, outright refusal to bargain of
September 15, 1954, the first such refusal?
A. Absolutely, yes, sir. Prior to that time it had been the endeavor of Mr.
Allen and myself, if possible, to secure some proposal from the Union which we
might be able to prevail upon Cone Brothers to accept, despite their feeling that
the Union did not represent a majority. That was the purpose of the August
18, 1954, meeting [with Allen.]
* s * + . r
"Allen did not attend the hearing because of illness. The Trial Examiner offered to
have Allen's testimony taken in the latter's hotel room, but counsel for Respondent indi-
cated he did not wish to call him
CONE BROTHERS CONTRACTING COMPANY 311
Q. (By Trial Examiner.) Do I understand then, from you, Mr. Dell, that
assuming the union, at the meeting with Mr. Allen [on August 181, had with-
drawn the provisions that Mr. Allen said were objectionable, and presented a
proposal representing in effect, as Mr. Allen had [been] quoted, a bare mini-
mum, so that the substantive terms were satisfactory, then Respondent would
have entered into the contract?
A. I cannot say that. I can only say that we, the attorneys would endeavor
to have them enter into such a contract. That was our hope at all times.
8. Cone's talk with the business agent of the Operating Engineers
and his statement to employee Conrad
Cone'soreference, at the September 15 meeting, to his being "squeezed between
two unions" is apparently illumined by a contemporaneous occurrence described by
employee Conrad. According to Conrad's undenied and hereby credited testimony,
sometime in September, at the radio room in the shop, he overheard a conversation
over the two-way radio between Cone and one Womack, the business agent of the
Operating Engineers. The latter, as noted earlier, was the rival contestant in the
representation proceeding in which the Union had been certified; before then, it had
a contract with Respondent covering the same unit of employees, which expired before
the election. Womack told Cone that he would require Respondent to remove its
equipment from a certain job in the United States phosphoric plant in the Tampa
area. Conrad then walked out of the radio room, but immediately afterwards was
stopped by Cone, who said, "Do you see those doors? . Well, I will close them
so there won't any light shine through them before I will sign a contract," and
later, that he "wouldn't sign a contract for a million dollars." Conrad's reply was,
"Mr. Cone, I don't blame you in the least bit"; explaining, on the stand, that what he
meant was that "when a man bids a job or_ a contract and he has to pull out from it, he
was in a little aggravation over it, and I think he had to relieve his steam, .: .
Conrad and a corroborating witness, -Lynn, testified that Cone was visibly upset at
the time.
Conrad could not remember whether this incident occurred before or after the
September 15 meeting. However, the incident clarifies Cone's comment at the Sep-
tember 15 meeting that he was "squeezed between two unions," and was presumably
the basis for it. The inference drawn, therefore, is that Cone's conversation with
Womack and Conrad preceded the September 15 meeting.
C. Ultimate findings and conclusions
1. Resume
As previously stated, all issues in this case are here predicated, as they must be, upon
the validity of the certification issued by the Board to the Union. Thus considered,
all the actions of the Respondent must be viewed as having occurred in relation, to and
directed toward the representative of the employees duly chosen by them under the
statute.
The sum of the events is that on the heels of the issuance of the certification to the
Union, Respondent to resolve its own asserted doubt concerning the Union's ma-
jority, or as Cone put it, as to whether "it was really their desire to be in the union
or not," took its own poll of the employees, asking them whether they "belonged" to
the Union. The answer to the question, as averred by Respondent, was "No" in over-
whelming numbers. Respondent, however, made no use of and placed no reliance
upon either the results of its poll or upon the objections which it had raised within
the Board proceeding to the certification until over a month after the election. In
the intervening period Respondent had three meetings with the Union in which the
action which it took was consistent with a recognition of the status of the Union as
exclusive bargaining representative; this included promises to supply job classifica-
tion and wage data needed in the negotiations and the actual discussion of a proposed
contract through its attorney. The breaking off of negotiations was preceded by
Respondent's action in unilaterally granting a wage increase to a portion of the em-
ployees embraced by the certification and closely followed a declaration by Re-
spondent's vice president, made in a moment of deep emotional disturbance over
an ultimatum he received from another union, that he would close the business
before he would sign a contract, which in context meant a contract with the Union.
2. The repudiation, the raise, and the refusal to supply relevant data as violations
of the Act
The legal significance of three of the events detailed in the preceding portion of
this report is manifest without discussion . These consist of Respondent 's explicit
312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
repudiation of the Union announced at the meeting held September 15, the attendant
refusal to supply the previously promised job classification and wage data, the rele-
vancy of which is not here in dispute (N. L. R. B. v. The Item Company, 220 F. 2d
956, (C. A. 5); N. L. R. B. v. Yawman & Erbe Manufacturing Co., 187 F. 2d 947
(C. A. 2); N. L. R. B. v. Whitin Machine Works, 217 F. 2d 593 (C. A. 4) ), and the
grant of an increase in wage rate to a portion of the employees in the unit without
prior notification to or consultation with the Union. (Armstrong Cork Manufac-
turing Co. v N. L. R. B., 211 F. 2d 843 (C. A. 5); May Department Stores v. N. L.
R. B., 326 U. S. 376.) As clear refusals to bargain with the duly certified representa-
tive of the employees, they constitute unfair labor practices within the meaning of
Section 8 (a) (5) and (1) of the Act.
The General Counsel seeks a finding that the wage rate unilaterally granted was
for the purpose of destroying the Union's majority. While the basis for the illegality
of such a unilateral change in conditions of employment is the inherent tendency of
such conduct to "undermine the authority of their [the employees'] certified bar-
gaining representative" and thereby destroy its majority (Armstrong Cork, supra, at
p. 847), the Trial Examiner does not find that the raise was given with destruction of
the Union's majority as its premeditated goal. It was granted to but a part of the
group, who had not participated in an earlier raise given to the shopmen under circum-
stances of unquestioned propriety; those receiving it were persons of proven com-
petence, whom Respondent had a vital interest in retaining because of the expensive
character of the equipment which they handled. While the wage raise thus over-
stepped the bounds of Section 8 (a) (5) because of its unilateral character (Arm-
strong Cork, supra), the factors pointing to a business necessity for granting the
raise puts the matter of actual motive in sufficient doubt for Respondent to be en-
titled to the benefit thereof.
3. The respective statements of Allen and Cone to Conrad and the poll of the em-
ployees: their legal significance
This leaves for consideration the three items whose legal significance is in dispute
even assuming the validity of the certification and granting the status of the Union
as exclusive bargaining representative under the statute.
a. The standard applicable
It is well to keep in the forefront of consideration that such precedents as exist
in regard to the legality of the utterances or acts here under consideration do not
mechanically compel the same conclusion here, since each precedent involved a
legal appraisal of the conduct in the context there considered. The principle that
words, like actions, do not have the same meaning at all times and all circumstances,
but depend for their significance on their context, would seem to bear reemphasis.
Just as utterances innocuous on their face may acquire a coercive thrust from the
context in which they are uttered, so also may language or conduct seemingly co-
ercive when taken in isolation lose its coercive coloration in a neutralizing context.
b. The statement of Attorney Allen to employee Conrad
Allen's retort to Conrad at the bargaining conference of August 18 that he should
find himself another job if dissatisfied with working conditions, on its face would
appear to be in derogation of the rights of a person acting as spokesman for the
group. Whatever its legal consequences if the statement had been made by a person
in authority to receive or process the grievance, the Trial Examiner does not conclude
on the basis of this record that Allen was vested with such authority either actually
or ostensibly. Allen's function at the meeting was limited to negotiating or pre-
liminarily exploring with the Union on behalf of Respondent the basis for a contract
covering basic terms of employment. Hence, when he stated that the committeemen
were taking up "personal" matters which were not within the scope of the bargaining
conference, Allen must have intended to refer to the fact that these were subjects
which he was neither authorized nor had the personal knowledge to discuss Conrad
evidently understood him that way, as appears from the fact that according to his
own testimony the sum of Allen's answer to him, as he remembered it, was that Allen
did not "know anything about our working conditions at Cone Brothers."
. The foregoing would likewise suggest that the substantive content of Allen's
statement, taken in connection with the circumstances in which it was uttered, did
not, to the group,at least, imply a threat; if it had, it is a fair presumption that at
least one of the high officials of the Union there present would have spoken up. And
to, the extent .that there would appear to be merit to the view that whether a threat or
not, the statement was in clear derogation and in , disregard of Conrad's fiduciary
role toward the group for which he spoke, it would bear on the question of the
CONE BROTHERS CONTRACTING COMPANY 313
good faith accompanying the conduct of the negotiations; concerning that aspect
of the matter, it should be noted that such bargaining order as would flow from
the refusal to bargain already conceded would. entail a requirement of good faith
as part of its inherent content; consequently, even if Respondent were to be held
bound by Allen's utterance and it were found to be in derogation of the obligation to
bargain in good faith, such finding would not add to scope of the order which must
follow in any event. It would seem a sound principle of administration and judica-
ture to avoid accumulating adverse findings, in doubtful situations, where to do so
would not add to the obligation of the order which independently must issue in
consequence of findings which are not in dispute. See American Newspaper Associa-
lion v. N. L. R. B., 193 F. 2d 782, 798-799 (C. A. 7), cert. denied as to this point
344 U. S. 812; Oak Flooring Company, Inc., 111 NLRB 906. The Trial Ex-
aminer accordingly does not find any violation of the Act by the Respondent on
the basis of Allen's statement, as contended by the General Counsel.
c. The statement of Vice-President Cone to employee Conrad
The statement of Vice-President Cone 'to Conrad that he would close the doors
of his business before signing a contract with the Union must likewise be taken in
the context of the events as a whole. It came immediately after a conversation
between Cone and Business Agent Womack of the Operating Engineers, in which
the latter told Cone that he would have to remove his equipment from a certain
job. The details were not elaborated in the record, but it was seemingly in the
nature of an ultimatum to Cone calculated to embarrass Respondent because it
was no longer dealing with the Engineers. Whatever obligation the Act places
upon a person, it would appear to allow for at least the perspective shown by Conrad,
when he assured Cone he did not "blame" him for his outburst, realizing that the
latter "had to relieve his steam." Lynn, the only other employee who heard Cone,
likewise observed Cone's agitated condition at the time. In these circumstances,
it is a fair conclusion that neither Conrad nor Lynn regarded Cone's statement as a
threat; nor, if the incident had ended there, could it validly be said to have tended
to restrain or coerce either them or any employee who might later have learned
of the incident.
If in the light of'the record as a whole, it did not appear that Cone's words truly
reflected Respondent's policy, the, utterance could well be dismissed from considera-
tion on the basis expressed by Conrad However, what Cone said in a moment of
deep disturbance was not disavowed during the period of calm which followed. At
the meeting of September 15, while his attorney attributed the breaking off of
negotiations to doubt concerning the Union's majority, Cone expressly put it on
the ground that he was "squeezed between two unions." The apparent economic
dilemma in which Respondent was put by the ultimatum merits sympathetic consid-
eration; it may well have involved a threat of action of the kind which Congress
has enjoined in the 1947 amendments to the Act. But whatever recourse a party
has in these circumstances, it has long been judicially settled that it does not include
the privilege of resolving the dilemma at the price of forfeiture of the employees'
rights vouchsafed them by statute. The Act "permits no immunity because the
employer may think the exigencies of the moment require infraction of the statute."
N. L. R. B. v. Star Publishing Co., 97 F. 2d 465, 470 (C. A. 9) ; reaffirmed N. L R. B.
v. Lloyd A. Fry Roofing Company, 193 F. 2d 324, 327 (C. A. 9); accord: N. L. R. B.
V. Goodyear Tire & Rubber Co., 129F 2d 661, 663 (C. A. 5); N. L. R. B. v. Na-
tional Broadcasting Co., 150 F. 2d 895, 900 (C. A. 2), and cases cited. The ulti-
matum to Cone by a representative rejected by the employees did not neutralize
or terminate Respondent's obligation to negotiate the working terms of the employees
with the representative they selected for that purpose under the procedure of the
statute. °
When Cone attributed Respondent's repudiation of the Union to the economic
dilemma created by the' action of another union, he indicated that what he said to
Conrad after the Womack' conversation, though uttered in anger, keynoted the
actual policy of Respondent for the future. The utterance thus lost the immunity
it might otherwise have enjoyed. Gullett Gin Co., Inc. v. N. L. R B., 179 F. 2d 499,
501-2 (C A. 5). It became subject to those legal consequences which attach to
,an employer's declaration that he would close his business before treating with the
employees' chosen representative.? It is, of course, true that, in context, the total
7 Richards and .4 ociates, 110 NLRB 132, N L R B. v Vail Mfq Co , 158 F 2d 664
(C.' A. 7) ; West Texas Utilities Co. v N. L R R. 119 F 2d 683, 684-5 (C. A. 5) ;
Wallace Corp v N L R. B., 141 F. 2d 87, 89 (C. A 4), affd. 323 U. S 248; N. L R B v.
Libschutz, 149 F. 2d 141, 142 (C A. 5).
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
repudiation of, the Union inherent in Cone's statement was qualified by and made to
turn upon economic inconvenience to Respondent in honoring its -bargaining, obli,
gation with the Union. But just as, under controlling authority, such inconvenience
does not justify dishonoring the obligation, so also does it not immunize an open
avowal to the employees that it proposes to do so. Such a declaration renders futile
the employees' act of availing themselves of the rights which Congress guaranteed
them in Section 7. If the culminating step in the exercise of those rights, the selec-
tion of a representative, is to be nullified by outright repudiation, resort to those
rights in the first place is a waste of their energies and their hopes; accordingly,
while such conduct does not, in the literal sense of the term, "coerce," assuming that
what it connotes is actual fear, the conduct operates as a forceful deterrent to the
employees' efforts and impulses to choose representation for themselves, and there-
by "interferes with" and "restrains" them, within the fair meaning of those terms,
in the exercise of their rights under Section 7 of the Act. In that sense, and in that
sense only, the effect is to "coerce" as "well." It is accordingly found and concluded
that Cone's statement to Conrad, taken in context with Respondent's actual repudia-
tion of the Union and Cone's declaration at the September 15 meeting as to his reason
therefor, interfered with, restrained, and coerced the employees in the exercise
of their guaranteed rights in violation of Section 8 (a) (1) of the Act.
d. Conclusion concerning the poll of the employees
The poll of the employees, as has already been found, was not resorted to for the
purpose of either making discovery of the individual union preferences or affilia-
tions of the employees or laying a basis of reprisal therefor. This factor although
relevant is not dispositive. In the administration of a statute whose object is remedial
and preventive rather than penal, motive, though a valuable guidepost in the journey,
is,not its terminal point. The goal of the inquiry is to determine whether the "con-
duct . . . may reasonably be said to tend to interfere with the free exercise of em-
ployee rights under the Act." 8 For reasons whose importance will appear later, this
,should be taken to mean unwarrantedly to interfere with such rights.
(1) The general standard: polling, like interrogation, is not "unlawful per se"
Like interrogation, polling of employees concerning their union affiliations or
sympathies "cannot abstractly be declared to be a violation of Section 8 (a) (1) of
the . Act." Regard must be had to "the setting, the conditions, the methods,
the incidents, the purpose, or other probative context of the particular situation."
This principle was articulated by the Eighth Circuit Court in N. L. R. B. v. Protein
Blenders, 215 F. 2d 749, 750, and was adopted by the Board in Blue Flash Express,
109 NLRB 591, overruling the prior doctrine that all such conduct was "illegal per
se."
This, of course, states the negative standard. It does not reach the affirmative
criteria for determining when and whether polling employees concerning their union
ties or desires, which is the aspect of the problem under consideration here, is an
unwarranted encroachment upon employee rights under the Act. Before doing so,
it would seem appropriate to describe the setting, the occasion, and manner of the
poll, in order to determine first what it did, or better, what it tended to do to the
employees, and then, whether, the tendency being present, it is to be concluded that
the rights of the employees were thereby illegally invaded.
(2) The setting, the occasion, and the manner
One aspect of the basic setting here should be noted: if what Respondent did
reasonably tended to restrain the employees in the pursuit of their guaranteed rights-
and this Trial Examiner, for reasons stated later, finds Respondent's conduct had
such a tendency-a contributing element did not lie in the fact that this employer
did it; when, in the questionnaire, Respondent expressly assured employees that the
manner of their marking the ballot would "make no difference in [their] employ-
ment," there was nothing in its history to cause them to doubt the sincerity of the
assurance. Any finding that the employees were restrained by the Respondent's
conduct must rest, therefore, upon an appraisal of the act, rather than the actor,
and upon the proposition that restraint in the free exercise of employees' rights can
inhere in something other than fear of employer reprisal.
I Joy Silk Mills v. N. L R B, 185 F. 2d 732 , 744 (C. A, D. C.), citing N. L. R. B. v.
Link Belt Co., 311 U. S. 584, 588 , cf. Radio Cfcers ' Union, etc . v N L. R. B., 347 U. S.
17, 50-51.
CONE BROTHERS CONTRACTING COMPANY 315
In-making the appraisal, first in order of importance would be the occasion for
the taking the poll. It was taken on the heels of the Board's certification of the
Union. In legal effect, the certification was an official adjudication of the Union's
majority status. In terms of its purpose in the scheme of the Act, it was the culmina-
tion of the procedure which Congress incorporated-into this Act to exert the same
stabilizing influence in industry which Government-supervised elections of repre-
sentatives had achieved for the railroads.9 The House Committee, in reporting back
the bill after conference, espoused the election procedure of Section 9 (c) because,
as it stated, disputes dyer representation have, a "potentiality of strife, which the bill
is designed-to eliminate -by the establishment of this machinery for prompt, govern-
mentally -supervised elections." 10 The rule which accords a certification based on,
a valid election a duration for a reasonable period stems from its function as a.
stabilizing -force, in labor relations: Ray Brooks v. N. L. R. B.,-.348 U.:'S. 96;
N. "L: 'R. -B. v. Sanson Hosiery Mills, 195 F. 2d 350 (C. A. 5), cert. denied 344'
U.'S. 863; that aspect-oft an election- under Government- auspices was-given renewed
recognition by the 80th Congress-when, in Section-9 (c) (3), it forbade the holding,
after-a valid election, of a new election within a year...
The employees, have a direct stake in the, stabilizing function of a, certification)
based on a valid election. Subject only to the reviewing procedures provided by,
the statute, it adjudicates finally- that which until then has been an unsettled issue.
It assures the employees that for a reasonable period at least, their choice, so made
will be honored. I
Respondent conducted its own poll on the majority issue in the teeth of such ad-;
judication; such conduct can reasonably.be said to.•have invaded ,the employees',
rights in the following respects: First: The poll itself is an implied repudiation of
the employees' officially adjudicated choice and thus has the same discouraging effect
upon the employees' exercise of their rights as inheres in an open declaration of,
repudiation of the kind considered in the preceding part of the report. Secondly::
Insofar as such a poll carries the likelihood of a vote adverse to the Union, it entails
adverse consequences to the effectiveness of the employees' choice as embodied in
the certification. An adverse result lends the appearance of a "no confidence"
vote against the certified Union; this tends to dissipate the Union's majority and, in,
addition, undermines its effectiveness in any negotiations which may ensue; insofar
as-the Union is thus impaired in its'capacity to achieve substantive benefits for the
employees, it means a direct economic, detriment to the employees and an attendant
frustration of their purpose in selecting a representative.' Further, it creates a temp-
tation in the Employer to use the result of his poll as a lever to obtain substantive
concessions, in much the same manner as is reflected in Attorney Dell's candid testi-
mony, which was substantially to the effect that had the Union acquiesced in Attorney
Allen's' suggestion that it reduce its demands "to the core," this might well have re-
sulted in Respondent's foregoing, or being advised to forego, its objections to the
Union's majority status. The consequence of a poll thus taken in defeasance of an
already adjudicated status is to enshroud the pursuit of the rights guaranteed by
the statute in futility and thereby to interfere with and restrain the employees in
freely exercising them. Though the inhibiting impulse is rooted in frustration, not
fear , it is an interference and a restraint in much the same sense as previously noted
in the consideration of Cone's statement in repudiation of the Union.
What has been said above concerning the occasion makes it perhaps not overly im-
portant to dwell upon the manner. But it would seem fair to note the factors which
increased the likelihood of a vote against the Union and, in consequence, tended to
aggravate the injury above discussed. The inquiry on the ballot, being addressed to
whether the employees belonged to rather than, designated the Union, did not fairly
state the issue which Respondent asserted it was seeking to resolve for itself. In
addition , though the ballot on its face contained assurance against reprisal and
though the employees testified that they voted as they "wanted to," certain safe-
guards were notably absent. These included the fact, as has been found, that the
questionnaire was handed to the men under circumstances reasonably calculated
to imbue them with the feeling that marking it was required, a feeling which was
apparently dispelled in the case of those who specifically asked about it. Further,
9 Bro of Ry. Clerks v Tex & N 0 R Co, 24 F 2d 426, 431 (D. C, Tex, Hutcheson, J.) ;
Penn. R. Co. v. Labor Board, 261 U. S 72, 82-83, N. L R. B v N P Transp. Co., 14 F.
Supp. 497 (D C, Conn., Hineks, J, 1936) , N L. R B. v. Jones & Laughhn Steel Corp.,
301 U. S 1. 42 (1937)
10 H. Rep No. 1147 on S 1958, pp. 22-23, reprinted in Legis. Hist. of NLRA 1935
(Govt. Print. Off., 1949), p. 3073.
316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
there was the failure to make provision for marking the ballot in privacy; while, the
men admitted .they could . have achieved secrecy by turning around or moving to' an-
other part of the room , it seemed to the Trial Examiner , when they were ques-
tioned about it , that that was something which had not previously occurred to them.
There would be an understandable hesitancy on the part of an employee to take such,
action because of the implied affront to the person distributing the ballot ; at any;
rate, as appears from the testimony of Paymaster Keene, only a small percentage of,
the men took affirmative measures to mark the ballot privately.
The failure to provide the safeguards above noted can reasonably be said to-have
deprived the employees of freedom of choice . Such an inference does not rest
upon the premise that the absence of the safeguards tended to put the employees in
fear of loss of their jobs if their prounion ties or leanings should be discovered. The
Board held in the Blue Flash Express case there is no reasonable basis for such a fear
where the poll , even an open one , is taken by an employer , who like this employer,
has a background free of repression and gives the employees appropriate assurance
against reprisal . But it would seem clear from two subsequent decisions of the
Board that it did not intend to imply that for the purposes of insuring reliability.
of the result, the safeguards can be abandoned even in the case of employers not
having an antiunion background.
. In Economic Machinery Company, Division of George J. Meyer Manufacturing,
Co., 111 NLRB 947, a representation case, the Board held that an employer engaged
in conduct "calculated to interfere with [the employees '] freedom of choice in-
[an] election ," when , shortly before, it called employees into its office and in non-
coercive language urged them -to reject the union . And in A . L. Gilbert Company,
110 NLRB 2067 , an unfair labor practice case, the Board condemned as a "usurpa-
tion" of its own function , and hence as inducing in the employees "an element,of,
coercion," an employer 's act of successively polling the employees concerning their
union sentiments . But it would seem that for such "usurpation" to be an invasion-
of employees ' rights, rather than a mere trespass upon a prerogative of office, there
must be in the thing "usurped" an element essential to the employees ' freedom of
choice of which the "usurpation" tends to deprive them. The freedom of choice
would appear to inhere in the observance of the safeguards which the Board -super-
vised election provides and a poll conducted by an interested party does not. The,
deprivation of freedom of choice apparently need not have its roots in fear of.
reprisal action by the employer ; nor need it , in view of the congressional purpose,
to have an election conducted "under conditions as nearly ideal as possible, to de-
termine the uninhibited desire of the employees ," " rest upon more than the re-
sultant of psychological factors which produce a natural aversion to having to record
one's preference in a goldfish bowl. When Congress acted to surround a Board-
conducted election with the safeguard of secrecy , there would appear to have been
inherent in such action the assumption that such safeguard is essential to freedom of,
choice, and that the deprivation of such freedom through removal of the safeguard
has a restraining effect upon the exercise of one's rights . Consequently, it is to be'
inferred that the poll invaded the rights of the employees by the occasion of its tak-
ing, aggravated by its manner.
(3) Whether the conduct having had a restraining effect , it was thereby unlawful,
or was it specially justified by legitimate circumstances of overriding necessity
(balancing of interests)
To find, however, that the conduct in question invaded the employees ' rights under,
the Act does not, in the Trial Examiner 's opinion , end the inquiry , for in his view,
there is an additional aspect to be considered . It was suggested at the outset of this,
discussion that a basic test in all such cases is whether the invasion was an unwar-
ranted one . In the normal instance , a restraint imposed can be assumed to be un-
warranted unless the matter is too casual or "isolated " to be of any consequence; iz
another exception is where the person charged advances in justification of his con-
duct legitimate circumstances of overriding necessity . In the latter instance , it be-'
comes the function and duty of the agency to balance or reconcile the two interests
thus coming into conflict and strike a reasonable and practical accommodation be-
ween them ; in this type of case it would be , on the one side, the interest of the em-
ployees in being protected against the restraint which inheres in the conduct, and on
11 General Shoe Corp, 77 NLRB 124, 127, quoted with approval in Kea? nep & TrecLer.,
Corp v. N, L R. B , 210 F 2d 852, 858 (C .A 7)
12 See, e g., N L R B v Hinde & Dauch. 171 F 2d 240 (C A 4) ; Sax v. N. L. It. B.,,
171 F 2d 769 (C A. 7). '
CONE BROTHER- _NTRACTING"1COMPANY _ 317:
the other, the interest of the employer in meeting the legitimate exigency which'calls'
for the information sought to be elicited.13
The importance of the above is that it helps distinguish the two elements in the
Board's judicially rejected and now administratively abandoned doctrine that all at-
tempts to elicit from employees information concerning their union ties or leanings
are "unlawful per se"; in thus helping to note the distinction, it also helps point up
which element in the doctrine was struck down. The two constituent parts of the
prior doctrine were, first, its premise and, then, its conclusion. As applied to inter-
rogation, the premise, enunciated in Standard-Coosa-Thatcher, 85 NLRB 1358, was
that such action tended to lead the employee to believe the employer "contemplates
some form of reprisal once the information is obtained"; as applied to polling, the
further premise, enunciated in Protein Blenders, Inc., 105 NLRB 890, was that a poll
had an additional dimension in that the unreliable result generally flowing there-
from, in'view of its interested auspices, purports to be a "determination of a ques-
tion of representation," and thus tends to bind the employees morally to it, with the
consequence that if, the vote is adverse to the Union, it could dissipate a majority
which it may genuinely have. From this dual premise was derived the conclusion
that the conduct was per se unlawful.
The apparent fallacy in the above was that it begged the question: it assumed that
whatever coerced and no matter to what degree was always unlawful, without re-
gard to competing legitimate interests of the employer which might make the conduct
necessary and, on balance, entitle it to paramount weight. Actually, the Board, de-
spite its unlawful per se doctrine, did not invariably follow it. It had, for example,
carved out a special privilege for an employer requiring the information for use in
litigation . May Department Stores Co, 70 NLRB 94, 95. It limited that privilege
to a quest for information which was reasonably related to the issues of the litiga-
tion and which had no purpose of intimidation. Joy Silk Mills, 85 NLRB 1263,
1288-1292. Where the Board thus did not purport to endow the employees with an
absolute protection, against- interrogation but indicated its willingness to subordinate
it to an overriding competing interest subject to reasonable limitations, its action met,
with court approval even though on appraisal its decision was adverse to the em-
ployer because he had overstepped the limitations of the privilege. Thus, in Joy
Silk Mills v. N. L. R B., supra, at p. 743, the court, in upholding the Board's stand-
ard above described stated:
Such a standard assumes that interrogation of employees concerning their union
activities is, of itself, coercive [cases cited in footnote] but that fairness to the
employer requires that a limited amount of such questioning be permitted de-
spite the possible restraint which may result. [Emphasis supplied.]
When, however, the Board, in the courts' view, did not attach due weight to the
overriding legitimate interest of the employer,- the'courts struck down the conclu-
sion that the conduct was illegal, without finding it necessary to attack the premise
that it may have had'some restraining effect. See cases cited in footnote 13, above.
This appears in sharp focus in the Katz Drug case decided by the Eighth Circuit.
There the employer, like the employer in Joy Silk, was engaged in litigation to which
information concerning the employees' desire for a union was relevant: the employer
was seeking an injunction in the State court against picketing by a union and, for that
purpose, had to establish that a majority of the employees did not belong to or desig-
nate that union as representative. Accordingly, employees were called into the of-
fice, shown an affidavit disclaiming membership in or a desire to be represented by
the union, and told they were free to sign or not as they wished. The Board refused
to accord the employer the special privilege above described on the ground that the
employer could have dispensed with the affidavits by relying instead on an informal
disclaimer by the union, made out of court, that it represented a majority. On re-
view, the court indicated that the weight given by the Board to the employer's com-
peting interest in seeking the affidavits was inadequate since it required the latter to
rely on an uncertain admission and thus impinged upon its right to prepare its case
"by proper evidence." More important is that the court thought that by its action
the Board was giving conclusive weight to the interest -of the employees at the ex-
13 Joy Silk Mills, Inc v. N L. R B , 185 F. 2d 732, 743 (C. A, D. C ), cert. denied
341 U S. 914; Katz Drury Co v. N. L R B , 207 F. 2d 168, 171-172 (C A 8) , N. L. It. B.
v. Protein Blenders, Inc, 215 F 2d 749, 750 (C. A. 8) ; see also N L It. B. v. Kingston,
172 F 2d 771, 774 (C. A. 6), and comment thereon in 63 Marv L. Rev. 900 (1950) ; see
also Shuford, Interrogation of Employees Concerning Union Matters as an Unfair Labor
Practice, 3 Duke Bar J'1 113, 126 (1953) Atlas Life Ins. Co v N L R. B, 195 F. 2d
136, 138 (C. A. 10).
318 DECISIONS rOF NATIONAL -LABOR RELATIONS BOARD
pense of other legitimate interests . It stressed that the Act neither "intended to pre-
clude or obstruct the obtaining of evidence for judicial proceedings" nor to "vest-
any authority in the . . . Board to prescribe . what evidence the courts are en-
titled to receive or the parties entitled to present" in a lawsuit. "It cannot therefore
be said" the court noted, "that any inquiry whatever by an employer of an employee
as to his or her union membership is unlawful per se," as "attempting to violate an,
absolute privilege of the employees." [Emphasis supplied.] "No such privilege
exists in relation to judicial proceedings," said the court, and -"any legally proper evi-
dential interrogation . within the issues of the case and wholly for the purpose
thereof cannot be held to be an unfair labor practice no matter what the incidental
consequences, if any, may have to be." The italicized portion would appear to be
the key to the problem, for, the court explained, "the Board must make a reasonable
and practicable reconciliation -between the purposes of the . Act" and the com-
peting legitimate interest which happened there to be involved, namely, the statute's
"lack of interest to interfere with the administration of justice in other rights." [Em-
phasis supplied.]
To be noted is the fact that the court, in rejecting the Board's conclusion of illegality
of employer interrogation or polling, did not find it necessary to assail the factual'
premise from which it was derived; it allowed for the possibility of "incidental con-
sequences", of the kind against which the Board sought to protect the employees, but
declared that these must nevertheless sometimes^be endured in the interest of a "rea-
sonable and practicable reconciliation" between the two competing interests involved.
A year after its decision in the Katz case, the court invoked'the principle there enun-
ciated to strike down the Board's conclusion that an employer poll concerning the,
employees' desire for a union was an unwarranted invasion of their rights. N. L. R. B.
v. Protein Blenders, Inc., 215 F. 2d 749 (C. A. 8). The dual premise which the Board
there invoked has already been stated. • From it, the Board concluded the poll was
illegal . In that case, the employer advanced as the overriding circumstance necessi-
tating the poll its desire to gauge future production costs. In reversing the Board, the
court noted the Board's failure to give weight to either the overriding circumstance
or the safeguards with which the employer surrounded the poll: the latter included a
statement to the employees of the purpose of the poll, an assurance that the result
would have no official significance, advice that they were free to vote or not as they
wished, a further assurance that no consequences would be visited upon them on the
basis of their choice, and finally "complete privacy" in marking the ballot. The court
saw in the Board's action an adherence in the position, criticized in the Katz case, that
"employees are absolutely privileged against any interrogation, or polling as to their
union sentiment or membership" and thus that "any such interrogation or polling is
absolutely and per se unlawful." The result, said the court, "is to forbid the employer
to take any more [such] polls of any kind, at any time, in any manner, under any
circumstances, for any purpose."
It would seem important to observe that the Board, in overruling the doctrine that
interrogation or polling is "unlawful per se," did take account of the existence or
absence of a "need or occasion" for the conduct in question. In Blue Flash, where it
exonerated the employer, it found such need to exist; in A. L. Gilbert, where it con-
demned the conduct, it found no "need or occasion" for the repeated polling of the
employees there resorted to. What this would seem to connote, then, is that just as
the conclusion that conduct of the kind here considered is illegal does not automati-
cally flow from the premise that it has an inherent restraining effect, so also does re-
jection of the conclusion not require rejection of the premise. This is not to vouch
for the validity of the premise that all such conduct has an inherent tendency to put
an employee in fear of employer reprisal. As noted, the Board, in Blue Flash,
rejected such a premise when applied to an employer who has no antiunion back-
ground and expressly assures the employees against any such intention . But, as also
noted, the Board's decision in A. L. Gilbert would seem to entail a recognition that
fear of reprisal resulting from discovery of one's choice is not the only way in which
polling can have a restraining effect. And the lesson seemingly to be derived from the
court decisions here discussed is that though restraint may inhere in the kind of con-'
duct here considered, the conclusion that it is illegal is not automatic, but must be the
resultant of a fair balancing of the interest of the employees sought to be protected
and of such legitimate competing interest as may be served by the information sought.
A "balancing of interests" thus being called for, the next question is what specific
elements are -to be considered. The factors seem to correspond to those considered by
a court in the balancing of conveniences in an equity case. Thus in Republic Aviation
Co. V. N. L. R. B., 142 F. 2d 193 (C. A. 2), affd. 324 U. S. 793, Judge Learned Hand,
CONE BROTHERS CONTRACTING COMPANY 319
in reciting the factors to be considered in appraising the validity of a rule prohibiting
union solicitation on plant premises, indicated that the matter involved a determination
-of the relative "prejudice" or "benefit" to the competing interests if the disputed con-
duct is permitted or disallowed. Inherent in a consideration of relative detriment or
benefit to the rival interests'is also the question of what practicable alternatives are
available.14
. Applying the foregoing considerations to this case,'what interest does the Respond-
ent advance in justification of its seeking the information embodied in the poll of
August 1954? It asserts-that it wished to determine for itself whether the Union had
a majority in order to know whether to bargain with it. But the poll would not answer
that question for it. The majority was already adjudicated, and the obligation to
bargain flowed from the adjudication. Whether the Union retained its majority in
August, 2 weeks after the certification, would neither affect its status as exclusive bar-
gaining representative in law nor remove Respondent's obligation to bargain with the
Union by virtue of that status. Ray Brooks v. N. L. R. B., supra., and N. L. R. B. v.
Stinson Hosiery -Mills, supra. It would seem to follow that Respondent. thus had no
legitimate interest in eliciting the information called for in its August questionnaire,
assuming even that its wording was fairly directed to the issue of unon majority.
The Respondent challenged the validity of the certification on the basis of an objec-
tion to the eligibility date used. As such it had a legitimate interest in an authorita-
tive determination of the soundness of its objection. But that determination could only
come from the Board and the reviewing court, not from the employees. Respondent
had available to it the reviewing procedures provided by the Act. See Volney Felt
Mills v. Le Bus, 196 F. 2d 497 (C. A. 5). It is there that the validity of the certifica-
tion and of its doubts concerning it would be adjudicated. While the conduct thus
-resorted to would have been of no benefit to any legitimate interest of Respondent, the
conduct entailed detriment to the employees' interests, in the manner previously
recited. Even assuming a legitimate interest, Respondent for the purpose which it
asserted it had in conducting the poll had the'duty of providing the employees with
adequate safeguards of the kind previously described, but which were regrettably
absent here.15
The conclusion then is that the Respondent's action in polling the employees, con-
sidering the occasion and the manner, and considering the absence of any legitimate
competing interest to be served by its action, unwarrantedly invaded the rights of the
employees guaranteed by the Act. It is accordingly found that by such conduct Re-
spondent interfered with, restrained, and coerced its employees in the exercise of the
rights guaranteed by the Act, and thereby violated Section 8 (a) (1) of the Act.
III. REMEDY
The unfair labor practices found call for the usual preventive and redressive meas-
ures. The Trial Examiner has given careful consideration to the scope of the negative
injunction warranted by the record as a whole. On specific matters, the Trial Ex-
aminer has given Respondent the benefit of the doubt concerning the motive, under-
lying the acts here found to have violated the statute. The Trial Examiner con-
cludes that Respondent is entitled to the benefit thereof in fashioning the remedy as
well. While the infringements of the statute have a somewhat varied hue; they would
appear, basically, to have been aspects of Respondent's refusal to bargain with the
Union. Once the bargaining relationship is accepted by Respondent, there would
seem to be every reason to anticipate that it will demean itself generally in conformity
with the statute. The Trial Examiner is thus of 'the view that "the benefits of pre-
vention or prophylaxis"'IB will here be achieved by limiting the negative injunction
to a provision restraining "like or related" interferences with the employees' rights
in the future.
Upon the basis of the whole record, and the findings made, the Trial Examiner ar-
rives at the following:
14 Cf. Monsanto _Chemtical Company, 108_ NLRB. 1110; Seamprufe, Inc. (Holdenvilie
Plant), 109 NLRB 24
15 Like the Eighth Circuit in Protein Blenders, Inc., supra, the Sixth Circuit in N. L. R. B.
v. 'Kingston, supra, noted the employer's observance of similar safeguards as a vital aspect
of his immunity in conducting the poll in addition to the business- exigency which neces-
sitated it. Law review analyses of the issue attach similar importance to these safe-
guards. See footnote 13, above
14 Hutcheson , Judging as Administration, Administration as Judging, 21 Texas L.
Rev. 1, 6 (1942)
320 DECISIONS 'OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. United Stone and Allied Products Workers of America, CIO, is a labor organi-
zation within the meaning of Section 2 (5) of the Act.
2. By virtue of the certification duly issued by the Board July 27, 1954, said
Union, at all times material hereto, was and still is the exclusive bargaining repre-
sentative of all the employees of Respondent in the appropriate unit described in
the said certification.
3. By refusing to bargain with the Union on request, unilaterally raising the wages
of some of the employees in said unit, stating that it will close its doors before sign-
ing a contract with said Union, refusing to furnish the Union, on request, job classi-
fication and wage data relevant to negotiations of wage and working conditions for
the employees in the appropriate unit, and polling the employees concerning whether
they are members of the Union, Respondent has engaged in and is engaging in unfair
labor practices within the.meaning of Section 8 (a) (5) and (1) of the Act.
4. Said unfair labor practices affect commerce within the meaning of Section 2 (6)
and (7),of the Act.
[Recommendations omitted from publication.]
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor Re-
lations Board, and in order to effectuate the policies of the Labor Management Re-
lations Act, we hereby notify our employees that:
WE WILL bargain collectively, upon request, with United Stone and Allied
Products Workers of America, CIO, as the exclusive bargaining representa-
tive of all employees in the bargaining unit described below concerning griev-
ances, labor disputes, wages, rates of pay, hours of employment, and other condi-
tions of work, and, if an understanding is reached, embody it in a signed agree-
ment. The bargaining unit is:
All production and maintenance employees, including truckdrivers, crane
and dragline operators, operators of other heavy equipment, and mechanics,
wherever employed by us but excluding casual employees, all office clerical
employees, guards, and supervisors as defined in the National Labor Re-
lations Act.'
WE WILL furnish said Union, on request, job classification, wage, or other
data relevant to the negotiations of wages, hours, or working,terms for the
.employees in the above-described unit.
WE WILL NOT grant wage wage increases or otherwise change or alter the
conditions of work or employment of any of the employees in the above-de-
scribed unit, without first notifying, consulting, and, if requested, bargaining
with the Union in respect thereto;, threaten to close our business before sign-
ing a contract with the Union; poll or question our employees, orally or in
writing, concerning whether they belong to or desire the'Union, in such a man-
ner as to interfere with, restrain, or coerce our employees in the exercise of the
rights, guaranteed them by the National Labor Relations Act; and in any like
or related manner interfere with, restrain, or coerce our employees in the
exercise of their right to self-organization, to form, join, or assist, and bargain
collectively through the said Union-or any other labor organization of their
own choosing.
r CONE BROTHERS CONTRACTING COMPANY,
Employer:
Dated--------- -------- -By----------------------------------------------
(Representative) (Title)
This notice, must remain posted for 60 days from the date hereof, and must not be
.altered, defaced, or covered by any other material.