H. P. Wasson & Co.

National Labor Relations Board - Board Decisions

Mar 13, 1968

170 N.L.R.B. 293 (N.L.R.B. 1968)

H. P. WASSON & COMPANY 293
H. P. Wasson & Company and Retail, Wholesale
and Department Store Union, AFL-CIO. Case
25-CA-2616
March 13, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND ZAGORIA
On April 3, 1967, Trial Examiner John F. Funke
issued his Decision in the above-named proceeding,
finding that the Respondent had not engaged in the
unfair labor practices charged and recommending
that the complaint be dismissed, as set forth in the
attached Trial Examiner's Decision. Thereafter, the
General Counsel filed exceptions to the Trial Ex-
aminer's Decision and a brief in support thereof,
and the Respondent filed a brief in support of the
Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and fords that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner only insofar as they are
consistent with the following.
The facts are set out fully in the Trial Examiner's
Decision; those pertinent to our Decision are sum-
marized here. Retail, Wholesale. and Department
Store Union, AFL-CIO (the Union), was certified
by the Board on August 25, 1965, as representative
of certain warehouse employees of Respondent.
On November 19, 1965, the parties executed a 1-
year 'collective-bargaining agreement. About Au-
gust 24, 1966, the Union wrote to the Respondent,
seeking to begin negotiations for a new contract to
go into effect after expiration of the existing agree-
ment . The Respondent's president, having received
reports from supervisors that a few employees who
had backed the Union earlier were now dissatisfied
with it,' retained an independent research firm to
visit unit employees at their homes and ask them
the following questions:
After the present labor contract expires on
November 19, 1966, do you or do you not want
the Retail, Wholesale and Department Store
Union to continue to represent you as collec-
tive bargaining agent? Putting-it another way,
in a very simple way, "Do you or don't you
want the Union at the warehouse?"
Although interviewers were instructed to tell em-
ployees, before asking the question, that the poll
was being taken by an independent firm, that an-
swers would not be connected with employees'
names in the report to the Respondent, and that
employees would not be prejudiced in any way
because of their response to the question, there is
no probative evidence of any employee being given
these assurances by the interviewer. Each inter-
viewer was accompanied by a court reporter, who
recorded the questions and answers. On September
13, after receiving a report from the research firm
that the majority of the unit employees no longer
favored the Union,2 the Respondent informed the
Union that it would not negotiate because it had
reasonable grounds to doubt the Union's majority.
It also filed a petition with the Board for an elec-
tion.
In our opinion, the evidence demonstrates that
the interviews were conducted in a manner which
necessarily would produce a coercive impact upon
employees. Employees were visited in their homes,
without any advance warning or explanation from
their employer, by two-person teams of strangers
representing themselves to be agents of the Respon-
dent. Since one member of each interviewing team
was a professional court reporter assigned to take a
verbatim transcript of the questioning, it must have
been plain to the employees that their answers were
being recorded. Accentuating the departure from
any routines associated with normal employment
procedures, the visits were made either on a Friday
evening or Saturday. Although the polling service
reported that interviewers had told employees their
answers would not be identified by name to the
Respondent, and that no reprisal would be taken,3
the overall impression created by the unusual tim-
ing and procedure, unknown questioners hired by
the Respondent, requirement to make a quick
1 No employee chose to file a decertification petition under Section
9(c)(1)(A)( ii) seeking a new election on grounds that the Union no longer
represented a majority of the employees in the unit.
s The results of the poll were : Yes, 7; No, 27; undecided , 5; refused, 1;
not interviewed, 11.
o In its report to the Respondent , the polling service stated that its inter-
viewers introduced themselves as pollers hired by the Respondent, told em-
ployees their answers would not be identified to the Respondent by name,
and that there would be no reprisals . One employee , Mary Farley , testified
that she had been asked about her views on the Union without any such in-
troduction. On cross-examination , she conceded that something might
have been said to her that she did not hear , but maintained that "to the best
of my knowledge , it was not said to me." The Respondent did not call the
reporter who had recorded the interview- although she was apparently in
the hearing room during cross-examination-or produce the transcript of
the interview.
170 NLRB No. 3
294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
response concerning union allegiance which would,
plainly, be taken down and preserved for some pur-
pose, and lack of preparation or acknowledgement
from the Respondent that it would be sponsoring
such a poll, could not surely be dispelled by a few
words of reassurance, even if given.
Accordingly, ' we find, contrary to the Trial Ex-
aminer, that Respondent's poll of employees vio-
lated Section 8(a)(1) of the Act.
We also disagree with the Trial Examiner's find-
ing that the Respondent did not violate Section
8(a)(5). It is well established that where, as here, a
certified union requests an employer to negotiate a
new collective-bargaining agreement to become ef-
fective upon the expiration of a 1-year agreement
negotiated after the union was certified, there exists
a presumption that the union retains the support of
a majority of the employees in the unit; and the em-
ployer may refuse such request only if it can show
by objective facts that it has a reasonable basis for
believing that the union has lost its majority status
since its certification.4 As indicated above, the
Respondent concedes that reports of employee
dissatisfaction with the Union did not provide suffi-
cient grounds for believing that the Union had lost
its majority status . Moreover, we have found that
the poll, although perhaps intended to supply the
objective evidence required for such a reasonable
belief, was taken in a coercive atmosphere. The
results of the poll were therefore unreliable. No
other valid grounds have been advanced for believ-
ing that the Union's majority status had been dis-
sipated. In these circumstances, and in view of the
unfair labor practice committed by the Respondent
in conducting the poll, we find that the Respondent
by refusing to bargain with the Union on and after
September 13, 1966, violated Section 8(a)(5) of
the Act.
We adopt, pro forma, the Trial Examiner's find-
ing that the Respondent did not violate Section
8(a)(5) of the Act by granting merit wage increases
to employees in the unit involved in this case, to
which no exceptions were taken.
THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The acts of the Respondent set forth above, oc-
curring in connection with its operations as
described in the Trial Examiner's Decision, have a
close, intimate, and substantial relation to trade,
traffic, and commerce among the several States,
and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of com-
merce.
THE REMEDY
Having found that the Respondent has engaged
in unfair labor practices within the meaning of Sec-
tion 8(a)(5) and (1) of the Act, we shall order that
it cease and desist therefrom and, upon request,
bargain with the Union as the exclusive bargaining
representative of all employees in the appropriate
unit, and, if an understanding is reached, embody
such understanding in a signed agreement.
CONCLUSIONS OF LAW
We hereby adopt the Trial Examiner's Conclu-
sion of Law, his Conclusion of Law 2, and sub-
stitute the following:
"2. All warehouse employees, including
checkers and markers, loaders, stockmen, clerical
employees, and porters employed at Respondent's
warehouses located at 400 N. Capitol Avenue and
1302 N. Meridian Street, Indianapolis, Indiana, but
excluding all carpenters, painters, electricians, ap-
pliance repairmen, truckdrivers and all other em-
ployees, guards and supervisors as defined in the
Act, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Sec-
tion 9(b) of the Act."
"3. Since August 23, 1965, the Union has been
exclusive representative of all employees in the
aforesaid appropriate unit for the purpose of collec-
tive bargaining within the meaning of Section 9(a)
of the Act."
"4. By refusing on or about September 13, 1966,
and at all times thereafter, to bargain with the
Union as the exclusive collective-bargaining
representative of all the employees of Respondent
in the appropriate unit , Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) of the Act."
"5. By the aforesaid refusal to bargain, and by
conducting a coercive poll of its employees,
Respondent has interfered -with, restrained, and
coerced, and is interfering with, restraining, and
coercing, employees in the exercise of the rights
guaranteed them in Section 7 of the Act, and has
thereby engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1) of
the Act."
"6. The aforesaid unfair labor practices are un-
fair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act."
a Celanese Corporation of America, 95 NLRB 664, 673; Laystrom Manu-
facturing Co., 151 NLRB 1482, enforcement denied 359 F.2d 799 (C.A.
7), accord, United States Gypsum Company, 157 NLRB 652.
H. P. WASSON & COMPANY 295
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respon-
dent, H. P. Wasson & Company, Indianapolis, In-
diana, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with Retail, Wholesale
and Department Store Union, AFL-CIO, as the ex-
clusive bargaining representative of its employees
in the following appropriate unit: -
All warehouse employees, including
checkers and markers, loaders, stockmen, cler-
ical employees, and porters employed at
warehouses located at 400 N. Capitol Avenue
and 1302 N. Meridian Street, Indianapolis, In-
diana, but excluding all carpenters, painters,
electricians, appliance repairmen, truckdrivers
and all other employees, guards and super-
visors as defined in the Act.
(b) Conducting coercive polls of its employees.
(c) In any like or related manner interfering
with, restraining, or coercing employees in the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
(a) Upon request, bargain with the above-named
labor organization, as the exclusive representative
of all employees in the aforesaid appropriate unit,
with respect to rates of pay, wages, hours, and
other terms and conditions of employment, and, if
an understanding is reached, embody such un-
derstanding in a signed agreement.
(b) Post at its warehouses at 400 N. Capitol
Avenue and 1302 N. Meridian Street, Indianapolis,
Indiana, copies of the attached notice marked "Ap-
pendix. Copies of said notice, on forms provided
by the Regional Director for Region 25, after being
duly signed by Respondent's representative, shall
be posted by Respondent immediately upon receipt
thereof, and be' maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 25,
' 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 "a Decision and
Order" the words " a Decree of the United States Court of Appeals Enforc-
ing an Order."
in writing, within 10 days from the date of this
Order, what steps have been taken to comply
,herewith.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National
Labor Relations Board and in order to effectuate
the policies of the National Labor Relations Act, as
amended, we hereby notify you that:
WE WILL NOT refuse to bargain collectively
with Retail, Wholesale and Department Store
Union, AFL-CIO, as the exclusive representa-
tive of the employees in the bargaining unit
described below.
WE WILL NOT conduct coercive polls of our
employees.
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce our em-
ployees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL , upon request, bargain with the
above -named Union , as the exclusive represen-
tative of all employees in the bargaining unit
described below, with respect to rates of pay,
wages , hours , and other terms-and conditions
of employment , and, if an understanding is
reached, embody such understanding in a
signed agreement. The bargaining unit is:
All warehouse employees, including
checkers and markers, loaders, stockmen, cler-
ical employees , and porters employed at our
warehouses located at 400 N. Capitol Avenue
and 1302 N. Meridian Street, Indianapolis, Indi-
ana, but excluding all carpenters , painters,
electricians , appliance repairmen, truckdrivers
and all other employees , guards and super-
visors as defined in the Act.
H. P. WASSON &
COMPANY
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 614 ISTA Center, 150 West Market Street,
Indianapolis, Indiana 46204, Telephone 633-8921.
296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN F. FUNKE, Trial Examiner: Upon a charge
filed September 16, 1966, by Retail, Wholesale and
Department Store Union, AFL-CIO, herein the
Union, against H. P. Wasson & Company, herein
the Respondent, the General Counsel issued a com-
plaint alleging Respondent violated Section 8(a)(1)
and (5) of the National Labor Relations Act, as
amended. The answer of the Respondent denied
the commission of any unfair labor practices.
This proceeding, with all parties represented, was
heard before Trial Examiner John F. Funke 'at Indi-
anapolis, Indiana, on January 4 and 19, 1967. At
the conclusion of the hearing the parties were
granted leave to file briefs and briefs were received
from the General Counsel and Respondent on
March 6.
Upon the entire record in this case and from my
observation of the witnesses while testifying, I make
the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
Respondent is an Indiana corporation operating a
department store and other retail stores and two
warehouses in Indianapolis. During the past year
Respondent's sales of goods and materials exceeded
$500,000 and Respondent shipped in interstate
commerce goods and materials valued in excess of
$50,000. Respondent, during the same period,
purchased goods and materials valued in excess of
$50,000 from States other than the State of Indi-
ana. Respondent is engaged in commerce within
the meaning of the Act.
II. LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the
meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The Refusal to Bargain
On August 23, 19,65, the Union was certified by
the Regional Director for Region 25 as the exclu-
sive collective-bargaining representative of Respon-
dent's warehouse employees in a unit described as
follows:
All warehouse employees, including checkers
and markers, loaders, stockmen, clerical em-
' It was estimated that there were approximately 85 to 90 employees at
the two warehouses, about 50 of whom were embraced in the unit.
ployees, and porters employed at Employer's
warehouses located at 400 N. Capitol Avenue
and 1302 N. Meridian Street, Idianapolis, Indi-
ana. But excluding all carpenters, painters,
electricians, appliance repairmen, truckdrivers
and all other employees, guards and super-
visors as defined in the Act.
The election was by direction of the Board and
the tally of ballots showed the following results:
On November 19, 1965, the parties executed a
collective-bargaining agreement . (General Coun-
sel's Exhibit 2.) The agreement was for a period of
1 year with an automatic renewal clause unless 60-
day notice of termination was given. It also pro-
vided for maintenance of membership and a dues
checkoff for union members who executed a
checkoff authorization. (Article IL) It contained a
provision for wages (Article XIV) which included
the following exemption:
It is agreed that the hourly rates set forth
above shall be considered as minimum rates.
The Company shall have the right, at any time
during the life of this Agreement, to pay above
such minimums [sic] where such action is
based upon the ability, skill or performance of
the individual employee.
In mid-August of 1966 the Respondent granted
merit wage increases to 17 employees in the cer-
tified unit.' (All but three were union members.)
The increases were in the amount of 10 cents per
hour, except for one employee who received 25
cents. one who received 12-1/2 cents, and one who
received 5 cents. (General Counsel's Exhibit 28.)
These were the first merit increases granted since
the Union had filed its petition for an election on
September 9, 1963; the, petition which led to the
election.2 These increases were admittedly granted
without notice to or consultation with the Union.
According to Harry E. Webber, warehouse su-
pervisor, no merit increases had been granted to
such a number of employees before. Webber, how-
ever, had only been warehouse supervisor since
January. Both Webber and Dexter M. Radove, per-
sonnel director for the Respondent, testified that
the reason for the increase was to afford protection
against a "tight labor market" allegedly existing at
this time in Indianapolis by raising the wage stan-
dards of qualified personnel . The selection of em-
2 The Respondent apparently took the position it could not grant merit
increases while this petition was pending . There was, therefore , a lengthly
hiatus in the granting of merit increases.
Approximate number of eligible voters 47
Votes cast for Petitioner 25
Votes cast against participating labor
organization 17
,Valid votes counted 72
Challenged ballots counted 5
Total votes plus challenged ballots 47
H. P. WASSON & COMPANY
ployees was based on merit sheets prepared by su-
pervisors on August 16 .1 Webber testified that
while he had participated in the ratings in August
he had never rated employees prior to that date. He
had not, however, been a supervisor at a time when
merit increases had previously been given.
On or about August 24 the Union wrote Respon-
dent asking for negotiations leading to a new col-
lective-bargaining contract. (General Counsel's Ex-
hibit 4B.) Louis Wolf, president of Respondent,
testified that, based on the high turnover in person-
nel since the election and reports from his super-
visors that employees had expressed dissatisfaction
with the Union and with paying union dues, he
doubted that the Union retained its majority status.
Harry Webber testified that certain employees
expressed their dissatisfaction to him. I agree with
the General Counsel that some of his testimony is
too remote in time to be relevant to the issue of the
Union's majority in August and September. Web-
ber's testimony with respect to Bonnie Vaughan
(February), Elizabeth Smiley (January), Garnett
Burns (January), Dorthory Fritsch (January), and
Mabel Zerbe (March) will be disregarded. As to his
testimony that Hazel -Murphy told him in August
that she had not voted for the Union and would not
vote for it, this is not the testimony of a disaffecting
employee-she had never been an adherent. I shall
accept his testimony that Mildred McNeeley told
him she had not wanted the Union in the first place
and now wanted out; that Violetta Wyrick told him
that although she was a member she was not for the
Union; that Florence Griffith told him she did not
want to be represented by the Union and wanted
out; that Florence Connel told him she had signed a
card and that there had been a deduction from her
paycheck for dues which she did not believe was
authorized; that Hilda Thiesing told him she had
joined because she thought it was a closed shop and
that she would lose her job or be laid off first if she
did not join; that J. P. Lloyd told him she had
joined only because she believed that if there was a
layoff the employees who were not members would
not be called back.
At the conclusion of Webber's testimony the
hearing was recessed for 15 days to give the
General Counsel opportunity to provide rebuttal.
When the hearing reconvened, the General Counsel
offered no witnesses in rebuttal.
On September 13 the Respondent replied, declin-
ing to meet because Respondent had "reasonable
grounds for believing that your organization no
longer represents a majority of the employees in the
bargaining unit." (General Counsel's Exhibit 5.) On
that same day Respondent filed a petition for an
election with the Board in Case 25-RM-217.
(Respondent's Exhibit 4.) °
Prior to September 13 President Wolf contacted
Dorothy Mae Walker, president of Walker
297
Reasearch, Inc., a firm which performed marketing
research studies, public relations consulting, and
other services for its clients. She met with Wolf and
George Ryan, counsel for Respondent, and was
asked if she would be willing to take a poll, involv-
ing one question only, of Respondent's employees.
The question:
After the present labor contract expires on
November 19, 1966, do you or do you not
want the Retail, Wholesale and Department
Store Union to continue to represent you as
your collective bargaining agent? Putting it
another way, in a very simple way, "Do you or
don't you want the Union at the warehouse?"
Mrs. Walker was instructed to interview the em-
ployees at their homes and a court reporter was to
accompany the interrogator and to take down the
conversation. A report of the results, not identify-
ing the employees, was to be given to Respondent
or to Ryan. The Research interviewers were in-
structed to make the following statement to the em-
ployees:
Hello, I am Mrs .-of Consumer Research Ser-
vice and we have been employed by H. P. Was-
son and Company to take a short opinion sur-
vey among all warehouse employees. (Pause,
then state-slowly-) We want to ask you a
question, but before we do so, we want you to
know that in our report to Wassons, you will
not be identified by name. Instead, we will re-
port only the number of "yes" answers and the
number of "no" answers to our one question.
We also wish to assure you that you will not be
prejudiced in any way by the results of this sur-
vey or by your answer to my question.
The question was then read to the employee and
the answer recorded. Walker reported the results as
follows:
yes 7
no 27
undecided 5
refused 1
not home 7
on vacation 2
couldn't locate 2
total 51
Wolf testified that he was never informed of the
identity of the employees with respect to their
responses and that the transcripts of the interviews
were never made available to him. The transcripts,
were ordered to enable Respondent to prepare its
defense to the complaint herein , and were seen
only by Respondent's counsel.
Only one employee testified as to the interroga-
tion. This was Mary Farley who testified that at the
time the research interviewer reached her home she
' These merit rating sheets were not offered in evidence by either the
General Counsel or Respondent
298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was entertaining company and that she was "ired"
by the interruption. She stated she was asked only
the question quoted above and could not remember
that she had been told her name would not be used
and that no reprisals would be taken against her.
(Her first testimony was that the preliminary state-
ment had not been read to her.)
The Walker report was received by Respondent
on September 13, the day Respondent filed its peti-
tion for an election and rejected the Union's bar-
gaining request.
B. Conclusions
1. The merit wage increases
No language could be more unambiguous than
that in the exemption clause in article XIV. The
reservation by Respondent of the right to grant uni-
lateral merit wage increases was complete. No
notice to the Union is required by the contract .4
The only qualification provided is that such in-
creases be based on ability, skill, and performance.
The General Counsel, who had access to the merit
rating sheets, did not offer them to establish that
these qualifications were not met. Since the reser-
vation of such a right is neither contrary to the law
nor to Board policy, its exercise could not be un-
lawful unless motivated to discourage membership
in the Union and rejection of the Union as bargain-
ing agent. The only evidence to support this con-
tention is entirely, inferential and is based on the
fact that the increases were granted as the contract
reopening period approached and the contingency
of another election was in the offing. I find this in-
sufficient. Here we have a Company free from prior
unfair labor practices and which, on the record of
the case, has displayed no hostility toward the
Union. It had withheld merit increases since Sep-
tember 1963 because of the pendency of a petition
for an election, so it does appear that a substantial
number might have been due. It is true, of course,
that the increases might have been staggered over
the months since the signing of the contract in
November 1965, or granted at any prior time.
Respondent's answer to this, as I understand it, is
that the labor market in Indianapolis grew "tight"
4 General Counsel states that the Union's agreement was conditioned on
notice to it Raulston's testimony was that the Union did not object but
"wanted to know when the merit increase was given and then who they
were given to, and the reasons ." Raulston had to be led by the General
Counsel to use the word "notice ." Raulston's testimony on this point vio-
lates the parole evidence rule and is disregarded. The clause required no
clarification or interpretation
i Although 40 employees were interviewed and the General Counsel was
given 15 days in which to obtain the testimony of the employees respecting
the manner of polling , only one witness was called. She stated, above, that
she could not remember that the preliminary statement was read to her but
also admitted she was both confused and angry at the time and that the
statement could have been read and she did not hear it.
6 Laystrom Manufacturing Co., 151 NLRB 1482 , United States Gypsum
Company, 157 NLRB 652.
r An employer confronted with a demand for new negotiations with a
during the summer of 1966 and it felt it necessary
to maintain a competitive wage scale. This is an ar-
gument almost impossible to refute unless a study
in depth were made of the labor market, and
prevailing wages in Indianapolis during this period.
I think it suffices to say that while the increases are
subject to suspicion , the General Counsel has not
sustained his burden of proof. I do not find Respon-
dent violated Section 8(a)(5) by this unilateral ac-
tion.
2. The polling of employees
The method used to poll employees has been set
forth above. The Respondent first insulated itself
from the poll by having it conducted by an indepen-
dent research council. It then immunized itself
against any coercive impact by the preliminary
statement read to the employee by the interrogator
which promised protection of identity and freedom
from reprisal.5 Since the Board requires that an em-
ployer submit objective evidence to support his
good-faith doubt of the continued majority status of
an incumbent union," it must, for I cannot believe
that those words were intended as a ploy to entrap
an employer into other unfair labor practices if he
makes an effort to secure the required objective
evidence, accept evidence obtained by interroga-
tion free coercion. I do not know what other means
could be used which would not subject an employer
to a similar charge.' It may well be that the require-
ments of Laystrom and U. S. Gypsum will suggest
numerous and diversive tactics for meeting the "ob-
jective evidence" test and that the General Counsel
will feel it incumbent that he test these tactics for
legality as they arise. Certainly the decisions them-
selves provide no guidelines. The General Counsel,
in his brief, suggests that all Respondent was
required to do was to submit an affidavit' from
Webber settingforth his conversations with the em-
ployees in which they expressed their dissatisfaction
with the Union. In the immediately preceding sub-
heading of his brief the General Counsel states that
the Trial Examiner could, on the basis of Webber's
testimony, make a finding of disaffection as to only
two employees. The General Counsel's own argu-
ment establishes the necessity for the poll." It would
seem curiously inconsistent for the Board to direct
union whose certification is more than a year old is caught in a serious
dilemma by court and Board decisions Had the Respondent in this case
signed a contract with the Union it would have, if the results of the poll are
accepted , engaged in an unfair labor practice, whether or not it acted in
good faith. (N.L.R.B, v. International Ladies' Garment Workers' Union
[Bernhard-Altmann Texas Corp ], 366 U.S. 731.) Had it refused to bargain
because of a good-faith doubt it would have engaged in an unfair labor
practice under Laystrom and Gypsum unless its doubt was supported by ob-
jective evidence In this "case the Respondent was charged with an unfair
labor practice because it sought , by means which I find free from coercion,
to obtain such evidence . There should be some path from such a dilemma
which does not lead the employer into ambush.
s The General Counsel also argues that there was no assurance against
reprisal The charitable assumption is that he either did not read or did not
understand the last sentence of the preliminary statement. As to the reason
for taking the poll the question as posed reveals its purpose.
H. P. cWASSON & COMPANY 299
,an employer to make known the names and ad-
dresses of its employees in an appropriate unit to a
Regional Director and available to the union9 and
to permit the union to visit the employees at their
homes for the purposes of solicitation and persua-
sion and then to find an employer guilty of an un-
fair labor practice for visiting them, not for the pur-
pose of solicitation or persuasion, but for obtaining
evidence, in a noncoercive manner, which the
Board itself has required.10
I find the poll taken by Walker Research at
Respondent's direction did not violate the Act."
3. The refusal to bargain
Respondent defends against the refusal-to-bar-
gain charge by asserting that, as a result of the poll
taken by Walker Research, it had a good-faith
doubt that the Union continued to represent a
majority of employees in the bargaining unit.
The landmark case, as Respondent's brief points
out, is Celanese Corporation of America, 95 NLRB
664. Therein the Board held that the union's
majority would be presumed to continue after the
end of the certification year but that the employer
could refuse to bargain with the union on the
ground that it had a good-faith doubt as to the
union's majority. It stated the prerequisites for rais-
ing the issue, supra at 673, as follows:
By its very nature, the issue of whether an em-
ployer has questioned a union's majority in
good faith cannot be resolved by resort to any
simple formula. It can only be answered in the
light of the totality, of all the circumstances in-
volved in a particular case. But, among such
circumstances, two factors would seem to be
essential prerequisites to any finding that the
employer raised the majority issue in good
faith in cases in which a union had been cer-
tified. There must, first of all, have been some
reasonable grounds for believing that the union
had lost its majority status since its certifica-
tion . And, secondly, the majority issue must
not have been raised by the employer in a con-
text of illegal antiunion activities or other con-
duct by the employer aimed at causing disaf-
fection from the union or indicating that in
raising the majority issue the employer was
merely seeking to gain time in which to un-
dermine the union.
In the Laystrom and U. S. Gypsum cases the
Board added the qualification that the doubt must
be based on objective evidence, a requirement
which led Respondent to take the poll. Since I have
already found that the circumstances under which
the poll was taken did not violate the Act and that
the merit increases granted by unilateral action
were not granted to dissipate the Union's majority,
I find that the doubt was supported by objective
evidence (see results, above) and that it was not
raised in a context of unfair labor practices.
I find that Respondent did not refuse to bargain
with the Union in violation of Section 8(a)(5) of
the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in com-
merce and the" Union is a labor organization within
the meaning of the Act.
2. Respondent has not engaged in unfair labor
practices in violation of Section 8(a)(1) and (5) of
the Act.
RECOMMENDED ORDER
It is recommended that the complaint be
dismissed in its entirety..
Excelsior Underwear Inc., 156 NLRB 1236.
10 The General Counsel has described the impact of Respondent's poll in
his brief as follows.
One need only envision the knock on the door of the employee's
home, his opening the door to be confronted by a stranger who asks
the portentious question set out above, while a court reporter solemnly
regards the whole conversation, to see the restraining effects of this
survey. It is almost unbelievable that there would be a non-conformist
able to resist Respondent's pressure by refusing to answer or an em-
ployee courageous enough to answer in the affirmative.
The short answer to this outburst is that the General Counsel had 2 weeks
in which to obtain evidence that any employee had been coerced and ob-
tained none . None, at least , was offered . Apart from this I do not see that
exaggeration or vituperation contribute to a brief . A Trial Examiner asks
only that the facts of the case be succinctly and accurately stated and that
the applicable law be set forth. He is not interested in a trial attorney's
opinion of Respondent 's conduct.
11 Blue Flash Express, Inc., 109 NLRB 591; Johnnie's Poultry Co., 146
NLRB 770, 775.