St. Louis Car Co.

National Labor Relations Board - Board Decisions

Jun 28, 1954

108 N.L.R.B. 1523 (N.L.R.B. 1954)

ST. LOUIS CAR COMPANY 1523
Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make
the following-
CONCLUSIONS OF LAW
1. Furriers Joint Council of New York affiliated with International Fur & Leather Workers
Union of the United States and Canada is a labor organization within the meaning of Section 2
(5) of the Act.
2. Abe Meltzer , Inc., is engaged in commerce within the meaning of Section 2 (6) and (7)
of the Act.
3. The Respondents have not, as alleged in the complaint , engaged in unfair labor practices
within the meaning of the Act.
[Recommendations omitted from publication.]
ST. LOUIS CAR COMPANY and WAREHOUSE AND DISTRI-
BUTION WORKERS UNION, LOCAL 688, affiliated with
INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF
AMERICA, AFL. Case No. 14-CA- 1104 . June 28, 1954
DECISION AND ORDER
On January 27, 1954, Trial Examiner Lloyd Buchanan issued
his Intermediate Report in the above-entitled proceeding , finding
that Respondent had engaged in and was engaging in certain un-
fair labor practices and recommending that it cease and desist
therefrom and take certain affirmative action, as qet forth in
the copy of the Intermediate Report attached hereto. Thereafter
Respondent filed exceptions to the Intermediate Report and a
supporting brief.'
The Board has reviewed the rulings made by the Trial
Examiner at the hearing and finds that no prejudicial error
was committed. The rulings are hereby affirmed.2 The Board
has considered the Intermediate Report ,' the exceptions and
brief, and the entire record in the case , and hereby adopts the
'Respondent also requested oral argument. In our opinion the record, the exceptions, and
the brief fully present the issues and the positions of the parties. Accordingly, the request is
denied.
2 Respondent excepts to the Trial Examiner's rejection in evidence of an exhibit which
purports to be a typewritten transcript of a dictating madhine recording of President
Meissner's conversation with employee Kellogg at the time he discharged her. Respondent
offered the exhibit "to avoid all questions on credibility" as to testimony about the discharge
conversation. The record, however, presents no dispute on this issue. Both Meissner and
Kellogg testified at the hearing . Their testimony is in substantial agreement on the material
facts of this conversation. The Trial Examiner resolved the only significant disagreement in
Respondent's favor. Moreover, we have examined the rejected exhibit and it reveals no claim
to the contrary. We therefore find that the Respondent was not prejudiced by the Trial Exam-
iner's ruling, even assuming arguendo that the Trial Examiner's ruling was incorrect.
5We note and correct an error in the Intermediate Report. The hearing was held on
December 17, 1953, rather than in October, as erroneously recited in the Intermediate
Report.
1524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
findings, conclusions, and recommendations of the Trial
Examiner.
1. The Trial Examiner found that Respondent had dis-
criminatorily discharged Kellogg and had unlawfully interro-
gated several employees as to their union activity. We agree.
The essential facts are undisputed. Employee Kellogg worked
in Respondent's office as a telephone switchboard operator and
receptionist. Two other employees, Marie Powers and Mabel
Beck, also worked on the switchboard as "relief" operators.
On Thursday and Friday, October 22 and 23, 1953, Kellogg
solicited the 2 relief operators and 3 other office employees
to sign union cards. The telephone operators declined to do so,
but one of the other office employees did sign a card together
with Kellogg. Soon after Kellogg commenced her organizing
activities, Respondent ' s president , Meissner, learned that an
unnamed operator was engaged in union activity. On Saturday,
October 24, Meissner systematically asked each of the operators
whether she was engaged in trying to organize a union. All
three answered in the negative- -Kellogg untruthfully.' Just
before closing time on Saturday, Meissner learned from a
management official that Kellogg was the one responsible for
the union activity. On the following workday, Monday, October
26, Meissner discharged her. In doing so, he told her that a
telephone operator was an important employee in a large
business handling classified Government contracts, and that
because of her untruthful answer to his question about union
activity he had lost confidence in her trustworthiness
The Trial Examiner, who had the advantage of observing the
demeanor of the witnesses ,5 discredited Meissner ' s explanation
that he had discharged Kellogg because of her untruthful answer
and found that the real reason for the discharge was Kellogg's
leadership in the union activity. We agree with this conclusion
of the Trial Examiner.
The Act does not interfere with an employer's right to dis-
charge an employee for any reason or no reason. The employer
may not, however, "under cover of that right" discriminate
against employees for exercising the right to self - organization
guaranteed them in Section 7 of the Act.6 The question of
determining the motive that prompted an employer in effecting
a discharge is inherently difficult. The professed motive is not
always the real one. There is no readymade measuring rod by
which it is possible to determine whether the professed motive
is in fact the true motive or only a subtle pretext intended to
disguise an unlawful one. The Board brings to bear on this
question its considerable experience in appraising motives
4 Meissner questioned Kellogg first , saying that "he had been informed that the telephone
operator at St. Louis Car Company was trying to organize the union," that "he realized
there were three of us and ... wanted to know if it was me." Meissner also asked Relief
Operator Powers if she "was trying to organize the union" and Beck whether she had "any
part in bringing a union into the office."
SN. L R. B. v, Universal Camera Corp., 190 F 2d 429, 430 (C A. 2).
6N. L. R. B. v. Jones & Laughlin Steel Corp., 301 U S. 1, 45.
ST. LOUIS CAR COMPANY 1525
in related situations and its collective good sense and judgment.
Often, too, a Trial Examiner's appraisal of a witness' credi-
bility, based on demeanor and conduct while testifying, is
probative. When a high level official of an employer--in this
case the company president- -systematically questions rank-
and-file employees in an effort to identify the leader in union
organizing activities and then, immediately after learning the
identity of this individual, discharges her, such facts give rise
to a compelling inference that the organizing activities were at
the root of the discharge action. And in the absence of per-
suasive evidence refuting this strong inference, the conclusion
is warranted that the discharge was discriminatorily motivated.
The Respondent has failed to come forward with a con-
vincing explanation which would overcome the conclusion com-
pelled by the sequence of events in this case, culminating in
Kellogg's discharge. President Meissner testified that he
questioned the telephone operators as to union activities in order
to remedy the conditions responsible for such activities. Yet his
questions were directed to learning who was doing the organizing
and not why the employees wanted a union. None of his questions,
as revealed in his own and in the questioned employees
testimony, shows a purpose to learn about and correct
presumably unsatisfactory working conditions.
Respondent also contends that it discharged Kelloggbecause,
by her untruthful answer to President Meissner's questionabout
union activities, Kellogg had demonstrated her untrustwor-
thiness and therefore her unfitness for the confidential position
of telephone operator.? This explanation is not convincing in the
light of Kellogg's record of satisfactory service and the
summariness of the discharge immediately following the
questioning. We therefore discredit it. Kellogg was admittedly a
competent telephone operator . Both President Meis sner andhis
son, Respondent's vice president, had praised her work. Only
a month before her discharge she was given a wage increase.
There is absolutely no evidence that she had broken any
business confidence which she had learned in the course of her
duties or had in any way been dishonest. Her single untruth
related not to the Respondent's business at all, but to personal
rights guaranteed employees by statute which she desired not to
disclose. Kellogg's response was the kind an employer might
7 The Board has repeatedly held that telephone operators are not confidential employees
and are therefore to be included in bargaining units with other office clerical employees.
Detroit Edison Company, 73 NLRB 1325, 1330; Wilson & Co., Inc., 97 NLRB 1388, 1394; The
Muller Company, Ltd., 98 NLRB 737, 739; Minneapolis-Honeywell Regulator Co , 107 NLRB
1191. It is only employees such as secretaries to management officials handling labor re-
lations problems who qualify as confidential employees. Minnesota and Ontario Paper Co.,
92 NLRB 711, 712-714; Minneapolis-Honeywell Regulator Co., supra Therefore the case
of American Book-Stratford Press Inc., 80 NLRB 914, relied on by the Respondent, is not
apposite. In that decision the Board said only that a president of a company could question
his confidential secretary as to whether she was a union member in order to determine
whether he wished to employ her in a confidential capacity. But the Board also said that
the president could not go beyond this point.
1526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reasonably anticipate to a blunt question about organizing
activities. 8 It seems to us farfetched to say that an employee
has shown that she is untrustworthy by trying to keep her
employer from prying into matters which are her personal
concern . For the foregoing reasons we do not accept Re-
spondent's explanation for the discharge of Kellogg. We find,
with the Trial Examiner, that this explanation was a pretext
and that the reason for her discharge was her leadership in
organizing activities among Respondent ' s office employees.
2. We also agree with the Trial Examiner's conclusion that
Respondent independently violated Section 8 (a) (1) by President
Meissner ' s interrogation of the office employees as to the em-
ployee responsible for bringing the Union into the office. This
was no casual or perfunctory inquiry by a minor supervisory
official.' On the contrary, it was part of a systematic effort
by Respondent's highest official to learn the identity of the union
organizer. Chairman Farmer and Member Beeson find that the
interrogation, when considered together with the discriminatory
discharge of Kellogg, was coercive and therefore violated
Section 8 (a) (1) of the Act. Members Murdock and Peterson,
however, believe and find that such systematic interrogation to
ascertain the identity of the employee organizer of the Union
was coercive and violative of Section 8 (a) (1) independently of
the presence or absence of a discriminatory discharge.
ORDER
Upon the entire record in the case , and pursuant to Section 10
(c) of the National Labor Relations Act, the National Labor
Relations Board hereby orders that Respondent , St. Louis Car
Company, St. Louis, Missouri , its officers , agents, successors,
and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in Warehouse and Distribution
Workers Union , Local 688 , affiliated with International Brother-
hood of Teamsters , Chauffeurs, Warehousemen and Helpers of
America, AFL, or in any other labor organization of its em-
ployees, by discharging any of its employees , or in any other
manner discriminating against them in regard to hire or tenure
of employment , or any term or condition of employment.
(b) Interrogating employe e s concerning union activities.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the right to self-
organization , to form labor organizations , to join or assist
Warehouse and Distribution Workers Union , Local 688 , affiliated
with International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , AFL, or any other
labor organization , to bargain collectively through repre-
8 N. L. R. B. v. Syracuse Color Press , Inc., 209 F . 2d 596 (C. A. 2).
9N. L. R. B. v. Syracuse Color Press , Inc., supra.
ST. LOUIS CAR COMPANY 1527
sentatives of their own choosing , and to engage in other con-
certed activities for the purpose of collective bargaining or
other mutual aid or protection , and to refrain from any or all
of such activities except to the extent that such right may be
affected by an agreement requiring membership in a labor
organization as a condition of employment , as authorized in
Section 8 ( a) (3) of the Act.19
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act:
(a) Offer to Agnes Elaine Kellogg immediate and full rein-
statement to her former , or a substantially equivalent , position,
without prejudice to her seniority or other rights and privileges.
(b) Make whole Agnes Elaine Kellogg for any loss of pay she
may have suffered by reason of Respondent ' s discrimination
against her , in the manner provided in the section of the Inter-
mediate Report entitled " The Remedy."
(c) Upon request make available to the National Labor Re-
lations Board or its agents , for examination and copying, all
payroll records , social - security payment records , timecards,
personnel records and reports , and all other records necessary
for a determination of the amount of back pay due and the right
of reinstatement under the terms of this Order.
(d) Post at its office in St. Louis , Missouri , copies of the
notice attached to the Intermediate Report and marked "Appen-
dix A". 11 Copies of said notice , to befurnishedby the Regional
Director for the Fourteenth Region , shall, after being duly
signed by Respondent ' s representative , be posted by Respondent
immediately upon receipt thereof and maintained by it for sixty
(60) consecutive days thereafter in conspicuous places , includ-
ing all places where notices to its office employees are
customarily posted . Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered , defaced,
or covered by any other material.
(e) Notify the Regional Director for the Fourteenth Region,
in writing , within ten ( 10) days from the date of this Order,
what steps Respondent has taken to comply therewith.
Member Rodgers took no part in the consideration of the
above Decision and Order.
ION. L. R. B. v. Entwistle Manufacturing Co., 120 F. 2d 532 (C. A. 4).
11 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 decree of the 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."
1528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Intermediate Report and Recommended Order
This case uivolves the right of an employer engaged in confidential work to discharge an
employee who replied untruthfully to a question concerning her union activities A subsidiary
issue, although it could be considered the main one from which liability on the other would
flow, is whether an employer may question an employee concerning such activities. Cases of
interrogation are commonplace; likewise, discharge for allegedly discriminatory reasons
The distinguishing features in this case, if not its distinction, are the Respondent's admission
of interrogation and the defense that the dischargewas prompted by the false answer, and was
only incidentally connected with the union activities or the questioning.
The complaint alleges that the Respondent has violated Section 8 (a) (3) of the National
Labor Relations Act, as amended, 61 Stat. 136, by discharging Agnes Elaine Kellogg on or
about October 26, 1953, and thereafter failing and refusing to reinstate her, in order to dis-
courage membership in a labor organization and because she supported the Union and engaged
in concerted activities, and Section 8 (a) (1) by said alleged acts and by interrogating its
employees since on or about October 23, 1953, concerning their union membership and
activities, and warning them not to assist the Union or engage in concerted activities. The
answer, as noted, admits interrogation and the discharge, and states that the reason for the
latter was that the employee told a falsehood to deceive the Respondent and thereby demon-
strated her lack of reliability and trustworthiness as a confidential employee ; the allegations
of unfair labor practices are denied. A hearing was held before me at St. Louis, Missouri, on
October 17, 1953. Pursuant to leave granted to all parties, and the time therefor having
been extended, briefs were thereafter filed by the Respondent, and the General Counsel.
Upon the entire record in the case and from my observation of the witnesses, I make the
following-
FINDINGS OF FACT
1. THE RESPONDENT'S BUSINESS AND THE UNION'S STATUS
It was admitted and stipulated and I find that the Respondent a Missouri corporation with
principal office and manufacturing establishment in St . Louis, Missouri , is engaged in the
manufacture, sale, and distribution of railroad cars, that during the year ending October 31,
1953, it purchased raw materials valued at more than $1,000,000, and which was transported
to said establishment from States other than the State of Missouri, that during said period
the Respondent shipped railroad cars valued at more than $1,000,000 from said establishment
to States other than the State of Missouri; and that the Respondent is engaged in commerce
within the meaning of the Act.
It was admitted and stipulated and I find that the Union is a labor organization within the
meaning of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Facts
Except in one respect, there is no dispute over the facts. The Respondent has a "restricted
contract" for production for the United States Navy, knowledge of certain matters by outsiders
must be guarded against. While the contract falls into the restricted category, which is the
lowest security classification in effect at the time of the hearing,' it must nonetheless be
recognized as classified.
Miss Kellogg had been employed on August 17, 1953, 10 weeks before her discharge, as
the receptionist and switchboard operator handling incoming , outgoing , and interoffice
telephone calls. The testimony indicates that while outgoing calls can be and frequently are
made so that the telephone operator is bypassed, and while discussion can be by code refer-
ence to some extent, the operator can and does in fact listen in on incoming calls. Kellogg's
denial that she listened in or attempted to listen in appeared to refer to calls placed by the
caller directly rather than by the switchboard operator; she was being questioned concerning
such calls. There was apparently no denial when, as she earlier testified, Meissner told her
that on the switchboard she was in a position to hear confidential information. Mr.Meissner, the
i That classification has since been abolished.
ST. LOUIS CAR COMPANY 1529
Respondent ' s president and general manager, testified that he could tell from the click that she
listened in. Although Meissner apparently places his own outgoing calls, and the operator's
opportunity to listen in is hnuted , I find that there was such opportunity and that commensu-
rate2 reliability and trustworthiness are requisites for the position . Further , it is undisputed
that the Respondent was highly pleased with Kellogg's performance on the job.
After seeking and receiving union cards , Kellogg on Thursday and Friday , October 22 and 23,
spoke to 5 of the office employees , of whom there are approximately 30, with respect to
joining . Three declared their willingness to join, and 1 signed a card , of the 5, the other 2, who
relieved Kellogg at lunch and during the midmorning and midafternoon breaks , said they were
not interested.
On Friday , October 23, Meissner learned that 1 of the telephone operators , regular or
relief, was engaged in union activity , and the following day he asked Kellogg and then the
other 2 whether they were so engaged or knew of any such activity. All denied that they had
engaged in such activity. Kellogg also stated that she knew nothing about it, while 1 of the
other operators told Meissner , " There is something like that going on but I'm not a party
to it."
Later on Saturday Meissner learned that Kellogg had in fact engaged in union activities.
Shortly before the end of the workday on Monday , October 26, he called her into his office and
charged her with having lied to him in replying to his inquiry of the 24th. She admitted that
she had lied , and said she regretted nothaving told him the truth. Meissner then declared that
although she had been a good operator and he liked her very much , he had lost confidence
in her ; the telephone operator is especially important since the Company has Government con-
tracts , and he could not keep her on the switchboard any longer . Meissner made it clear that he
had no objection to unions , but was firing her only because she had lied to him, and added that
they "could have talked it over and discussed the matter if she had chosen to tell the truth
in the first place."
According to Kellogg , Meissner told her when he discharged her that she could use him as
reference when she sought another job. The General Counsel, arguing that the Respondent
would not recommend anyone it could not trust , points to this as negating the explanation
that Kellogg was now considered untrustworthy or unreliable , and as indicating that she was
discharged because she had engaged in union activities . The validity of this argument aside,
Meissner , on the other hand , testified that he had not agreed to recommend her but had told
her that he "would not stand inher way." The conflict in testimony here is direct , simple, and
clear . I am unable to make a finding of credibility on the basis of the other testimony received
or from the demeanor of the respective witnesses . Both appeared to be straightforward and
honest, and the discrepancy appears to be due to misunderstanding by one or the other, or
lapse of memory. (Whatever light a purported transcript may have shed, foundation was not
laid for its receipt although it was discussed on the record and to a greater extent concerning
the original recording , off the record. ) Because the General Counsel had the burden of proof
on this issue . I resolve the conflict in favor of the Respondent by finding that that burden has
not been sustained.
Nor do the findings hereinafter made help resolve this question since they are based not on
any other conflicting testimony but on the principles of law involved.
Since there are admittedly no cases directly in point , I shall from several angles attach the
questions presented , leaving it to the Board to select those approaches , if any, which in its
opinion support the recommendations made.
B. The alleged violation of Section 8 (a) (3)
Even if it be held that the interrogation , whose lawfulness under the Act is considered in the
next subsection , was not coercive or interferential , the question remains whether the discharge
reflected the Employer ' s "normal exercise of the right... to select its employees or to dis-
charge them."9 The discharge may itself have been a reflection of a discriminatory purpose
rather than of the Employer 's normal exercise of a right . That issue is to be determined: if
the former , it violated the Act , if the latter , it was lawful, however capricious or whimsical.
As noted infra . Meissner testified that he sought to remove any basis or reason for unioniza-
tion. (Whether he is correct in his belief that organizational activity depends on the existence
of dissatisfaction need not now be determined ) Here he was removing not the basis but the
moving agent and the means.
2 Whether the Respondent actually requires reliability to the extent which it claims that it
does is considered infra.
3 N. L. R . B. v. Jones & Laughlin Steel Corp., 301 U. S. 1, 45.
1530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As for the Respondent's amicable recognition of the representative of its production em-
ployees for.17 years, the significance attaching thereto might be great as indicating a willing-
ness to deal with such an organization; or it might be slight in its reflection on the organiza-
tional activities of office employees.4 But whichever road speculation might follow, that
significance becomes nil in the light of Meissner's frank testimony that he sought to avoid
the reason for union activities among the office employees: we are left with the immediate
facts and the conclusions to be drawn from them. Nor is it within my power, if I would, to
recreate the apparently all's-right-with-the-world atmosphere which, from the testimony of
both Meissner and Kellogg, existed prior to the events under consideration.
Bearing in mind the facts in this case, It is in order to state several propositions:
1. An employer who requests a supervisor to engage in surveillance is guilty of interference
in violation of the Act.
2. Refusal so to observe is therefore not ground for discharge, however "insubordinate."
3. A fortiori, a refusal by this "confidential" employee, Kellogg, who is not a supervisor,
to observe and make disclosure would not be ground for discharge although it would be
"insubordinate"; because insubordinate, the employee could also be called untrustworthy
and unreliable.
4. Omitting the element of observation and limiting the request to disclosure, there
would be no greater justification for discharge on refusal although again it would be insub-
ordinate.
5. It would seem to follow that a false answer to avoid disclosure is not ground for dis-
charge although it is untrustworthy. As the insubordination and untrustworthiness, limited
to refusal to observe or observe and report , do not warrant discharge in the preceding
instances, neither does the untrustworthiness, limited to a false answer, in a similar con-
nection.
Whatever an employer's right to inquire concerning union activities , an employee may
assume that reprisal would follow disclosure, and certainly the intent of the Act is to permit
him to withhold such information. Yet regardless of moral distinction between refusal to
answer and a false answer, insubordination (which as noted embraces the element of un-
reliability) is as much a ground for discharge as is unreliability standing alone. Thus, if the
question be permitted, there is as much reason for discharge in either case. But since as
noted, disclosure may be withheld and discharge for such withholding is not permitted, an
employee acts within his rights and may not be discharged if he chooses the other method
and gives a false answer. To hold otherwise is to proscribe employees' organizational
activities; certainly to permit discharge under such circumstances is to limit their extent.
Kellogg's untruthful response was provoked by Meissner's question concerning a matter
which related primarily to her rights, which rights she is authorized by statute to pursue
without interference. (The situation here and the resulting difficulty point up the objection
to such interrogation, considered infra.) To the defense that the discharge would not have
followed but for the unlawful answer_ -it may be pointed out that to question employees about
activities in which they may engage is presumptuous; and a presumptuous questioner should
not be heard to complain of a false answer. Further, it is merest casuistry to argue that an
employer does not discharge because of, or interfere with, union activities when he questions
concerning them with the purpose, indicated, infra, of preventing such activities. The evidence
herein noted indicates a discrminatory purpose within the meaning of the Act, and I am unable
to credit Meissner's testimony to the contrary.
While an employee may be suspended for cause, the Respondent itself provoked the cause
which it cites for discharge.A counterpart to this case can be seen in the Jefferson Standard
Broadcasting Company case. 5 The circuit court, declining to follow the Board's finding that
the Union's acts in that case were indefensible, held that so long as they were not illegal they
were entitled to protection under the Act. In the instant case it is argued similarly that since
4Cf, recent Intermediate Report, in East Texas Steel Casting Company, Inc., 108 NLRB
1078, in which an almost contemporary finding of violations in another proceeding was
ignored while reliance was placed on the matter directly in issue. As to the effect, in any
event, of the Respondent's overall labor record, see Magnolia Petroleum Co. v. N. L. R. B.,
200 F. 2d 148 (C. A. 5).
5 N L. R. B. v. Local Union No. 1229, International Brotherhood of Electrical Workers,
346 U. S. 464.
ST. LOUIS CAR COMPANY 1531
interrogation is lawful (that issue is adverted to infra), what followed therefrom was pro-
tected . 4 But the Supreme Court in the case cited and in language peculiarly applicable to the
instant situation declared in connection with Section 7that "the means used by the technicians
in conducting the attack have deprived the attackers of the protection of that section, when read
in the light and context of the purpose of the Act."
Surely in the light and context of the purpose of the Act, employees have the right to organize
without interference or restraint and without pressure or undue influence to limit that right;
and even if the interrogation be lawful, the means used by the Respondent of questioning and
then discharging have deprived it of the protection of that section of the Act.
A further note may be made concerning Kellogg 's act per se , its nature and relation to the
Respondent's business , and her capacity to perform her duties. Overruling the circuit court's
insistence on evidence of "unlawfulness" as distinguished from "indefensible," the Supreme
Court in the broadcasting company case emphasized the "underlying contractual bonds and
loyalties of employer and employee." But the very contrast between the facts in that case
and this, and between the determining considerations in the two cases, is evident from the
following language from the Supreme Court's opinion:
There is no more elemental cause for discharge of an employee than disloyalty to his
employer . It is equally elemental that the Taft-Hartley Act seeks to strengthen , rather
than to weaken , that cooperation , continuity of service and cordial contractual relations
between employer and employee that is born of loyalty to their common enterprise
[citing Section 1 (b) of the Act's declaration of policy].
We should not equate the disloyalty there shown with Kellogg' s organizational activities or
with her false reply as she sought to withhold their disclosure.
Continuing with the Supreme Court's opinion in that case , we find insubordination grouped
with disloyalty as it declared , "The courts have refused to reinstate employees discharged
for 'cause ' consisting of insubordination , disobedience or disloyalty." But to recognize as
insubordination or disloyalty a refusal to answer or a false answer to a question concerning
union activity would be to carry such " cause" far beyond the intendment and purpose of the
Act: it would effectually limit if not stifle the very organizational activities for which, if he
may not encourage , an employer may not discriminate. There the employees' "attack related
itself to no labor practice of the company"; here on the contrary. Kellogg's untrue reply can-
not be separated from her lawful organizational activities . In fact, but for such activities, the
reply would not have been untruthful.
Another case which, by the very contrast in facts and the court' s emphasis on those facts
to find that the Act was not violated , points to liability in the instant case , is Farmers'
Cooperative Company v. N. L. R. B.,T in which it was stated:
It is not denied that the discharge of an employee for wrongful conduct is an inherent
power of management and one expressly protected by law ..... An employer may
hire and discharge at will, so long as the action is not based on opposition to union
activities.
The two conditions there cited must both be met ere we can justify the instant discharge.
First, wrongful conduct (by the employee) nnist be found where the employee was tested on
a matter extraneous to the operation of the business , a matter concerning which she is by
statute entitled to full protection . Second, the condition that the action taken be not based
on opposition to union activities can be metonly if we overlook the plain fact that if Meissner's
purpose in questioning the employees had been only to "find out the basis for some dis-
satisfaction" and to correct the conditions, he need not have questioned concerning union
activities but could have confined himself to his stated purpose . A question concerning
dissatisfaction or a suggestion box would represent an attempt to achieve that purpose.
61t is clear that if the interrogation was unlawful, a discharge based on it is likewise unlaw-
ful. I have referred to the cited case as a counterpart since we are here dealing with the
question , not of protected rights of employees , but of the protection claimed by an employer
who impinges upon those rights . The policy as there recognized and the language used are
appropriate to the present consideration.
733 LRRM 2212 (C. A. 8) December 2, 1953.
1532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Curiously, it does not appear that he asked any whom he questioned whether or in what
respects they were dissatisfied.
Reverting to the Farmers' Cooperative case, it is true that an employer may establish
any standards for employment provided that those standards are not discriminatory or
otherwise unlawful. But I cannot accept the thesis that this Employer imposed a requirement
of undeviating truthfulness to unlimited inquiry. No attempt appears to have been made to
inquire of Kellogg or other employees concerning a myriad of matters which could be pursued
to test truthfulness and reliability: interrogation was limited to union activities. An un-
truthful reply on this point no more establishes unreliability under such circumstances than
does failure to inquire concerning other matters prove reliability. These circumstances
again point to rejection of the Employer ' s explanation. Kellogg had passed the more diffi-
cult test of satisfactory service.
I am unable to accept the statement, in the face of the surrounding circumstances to the
contrary, that the cause for Kellogg's discharge was not her organizational activity but her
answer to Meissner ' s question wholly aside from such activity. ( For the reason stated supra,
I have refrained from grounding a finding of discrimination on the interference which is
considered infra. ) Here was no question concerning criminality from which Kellogg must
or might seek refuge behind the fifth amendment, nor of security, which might warrant
discharge. The question pertained to rights specifically granted by statute. It stretches
credulity to claim that the discharge was based on an alleged indication of security risk
or unreliability when an untrue answer was given; and it would subvert the purposes of the
Act to declare lawful a discharge based on such claim in the face of the uncontradicted
evidence of reliability, which I find, and the Respondent's recognition thereof.
I find that there was not in fact such disappointment over Kellogg's untruthfulness as would
lead to her discharge, the unreliability established was not that she could not be trusted to
perform her duties with due regard to their nature and the requirements of the Respondent's
business, but that she was engaged in union activities, for which she was not to be discharged.
That loyalty which an employer has a right to expect is by statute not to be considered lessened
by lawful union activities, neither is it diminished when an employee chooses to withhold
information concerning such activities and in the process resorts to untruth.
The reasoning in a quite different situation is also helpful and points to the conclusion
reached here In Auto Parts Co.,8 the Board held lawful a discharge for "refusal to do the
job for which, he [the employee] had been hired and [for] a direct disregard of his employer's
instructions." The contrast is clear between failure to perform the job by refusal to cross
a picket line, and Kellogg's dissimulation whenasked concerning activities which are personal,
lawful, and protected by the Act. Likewise, to find any "disregard" of Employer's instructions
here would require recognition of Kellogg 's denial of activities as such disregard (thus
holding that she must disclose her activities), or extension of the meaning of "instructions"
to encompass a requirement for a truthful reply concerning any question even if not related
to "the job for which he [she] had been hired" and beyond, as I find here, any reasonable and
indeed credible test of trustworthiness. It may be noted that the nature and degree of trust-
worthiness here demanded by the Respondent permitted the operator to listen in on conversa-
tions, Meissner testified that he was aware of such practice by Kellogg, not at all in criticism
of her but rather to show that he permitted it and that her position called for trustworthiness
since classified matters were available to her.
The Board, in the Clearwater Finishing Company case ,9 held that discharge of "a clerk,
charged with the proper custody o the Employer's records [was proper since] it was clearly
inconsistent with the performance of his duties for [the clerk] to disclose such records
. Such an indiscretion on Livingston's part might well be deemed by the Respondent to
demonstrate his lack of fitness for his job ... as the Respondent was entitled to have such a
position occupied by an employee in whose discretion it had implicit confidence." The Board
there stressed "the lack of evidence that the Respondent knew ... [that] the purpose of the
list" was to support concerted activities and a pending unfair labor practice charge.
We need not labor the distinction that in the instant case the Respondent was quite aware
of its own purpose in seeking disclosure from Kellogg and the others, and that that purpose
was to obtain information concerning union activities. But the marked contrast between the
two cases indicates the difference in the findings and conclusions to be made. In the one, the
element of discretion was sadly lacking, "implicit confidence" could not be placed in the
8107 NLRB 242.
9100 NLRB 1473.
ST. LOUIS CAR COMPANY 1533
employee's so-called discretion. In the other, "implicit confidence" is sought, not in dis-
cretion, but in observing and reporting (to the extent that other employees were questioned),
and in violation of confidence (to the extent that the sponsor of the activities might have dis-
closed the response of other employees). The Employer here would have us believe that he
places his confidence where in fact no confidence would have been warranted had disclosure
been made. An employee is not to be discharged as unreliable for proving that confidence
may properly be placed in him When an employer seeks to compel disclosure of concerted
activities by employees, who have the right to withhold information concerning such activities,
and when that employer discharges for failure to make such disclosure, his is a discriminatory
discharge within the meaning of the Act. The refusal to answer or the misleading or false
answer has been prompted by the employer, who cannot justify it by pointing to his own
insistence on full disclosure. Such insistence could all too conveniently, but contrary to
statute, prevent organization of employees.
(Although it is urged by the General Counsel, we need not consider Meissner's failure
to offer Kellogg another job it does not appear that she was qualified for any other which
was available or to what extent the "reliability" cited by the Respondent applied to other
office jobs. The issue is determined as presented. As for the fact that no other employees
have been discharged for lying, it does not appear that other office employees have been
otherwise questioned or have hed; shop employees have been disciplined as provided in the
contracts with their union.)
This breach in the wall is not great as we reflect on the apparently satisfactory relations
between the Respondent and the organization of its production employees. But breach it is,
and it must be repaired, the rebuilding of the wall brings the guarding of the gates. (Nehemiah
7:1-3.) What the law has declared can now be accomplished.
C. The alleged independent violation of Section 8 (a) (1)
While a finding that the interrogation was unlawful would "be corroborative of the dis-
crimination found," such interrogation may in a sense be considered to be "the principal
issue in the case, and a failure of the Board to rule upon it might well require that the parties
relitigate ... issues which have been fully litigated here.- 10
Because of the variety of pronouncements concerning interrogation as a violation of
Section 8 (a) (1) of the Act, I have, as earlier pointed out, considered the allegation of dis-
crimination without reference to a finding of independent interference.
In the light of that variety, I shall make no fatuous attempt to reconcile the diverse and
conflicting rulings on this point. Comment on such rulings is pointless: acerb, it would re-
flect poor manners; dispassionate, it would be quite as futile. I shall therefore neither
preface my remarks on this point with the phrase "with all due respect," nor proceed to
show a complete lack of respect for the decisions of the Board and the courts. But with com-
plete respect and full deference, I shall present the issue of interrogation as interference
briefly but in terms which may not have been considered previously. In fact, recent and
conflicting decisions u constitute an invitation to reexamine the question. That an employer
may express his opinion I have long recognized even in situations where others disagreed. n
The questioning was admittedly designed to meet any reason for organization of the em-
ployees. As noted supra, had Meissner sought onlyto correct such conditions as were causing
dissatisfaction, he need not have inquired concerning union activity, and further, his inquiries
on October 23 did not include reference to dissatisfaction or any reason therefor.
Because it is relevant to the issue of interrogation now before us, I would repeat the state-
ment earlier made in connection with the discharge: It is merest casuisty to argue that an
toBrewery and Beverage Drivers, etc . ( Washington Coca Cola Bottling Works , Inc.), 107
NLRB 299.
n The decisions of the Circuit Court of Appeals for the Eighth Circuit are especially
pertinent and support the conclusions herein: N. L . R. B. v. Minnesota Mining and Manufactur-
ing Co , 179 F. 2d 323, cited in N. L R. B. v. Cold Spring Granite Company , 208 F. 2d
163.
12 Cf. Corning Glass Works , 204 F 2d 422 (C. A. 1). Cf. also my Intermediate Report in
Shelby Cotton Mills , adopted by the Board on April 23, 1952 ( not reported in printed volumes
of Board Decisions and Orders ), in which I found that an inquiry was made in a spirit of
camaraderie and was therefore lawful.
1534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employer does not discharge becauseof , or interferewith , union activities , when he admittedly
questions employees concerning them with the purpose of "correcting " the reason for such
activities . An employer' s interest in the proper conduct of its business can be satisfied with-
out inquiring of employees concerning union activities - -unless it be held that such interest
legitimatizes efforts to abort organization or otherwise interfere therewith beyond the
expression or dissemination of views , argument , or opinion.
The unit is small, extended activity by employees unnecessary, and the Respondent moved
promptly ; it would thus tend to exaggerate the Respondent ' s actions to say that its president
"embarked on a course of conduct ." 13 Yet to the extent that the situation permitted he did so
embark and effectively terminated those activities by discharging the employee who engaged
in them.
To present the issue squarely , it should be recognized and noted that , considered apart
from the discharge , the interrogation here was as innocuous , as pleasant and mild, as
interrogation concerning union activities can be . There was no background of animus, no
overt manifestation of threat or coercion . But can we separate the interrogation from the
discharge? Can we separate the interrogation from its effect on employees?
Under the express terms of the Act, it does not matter whether questioning constitutes
or contains a threat . Whether or not there be a threat is material under the statute only in
connection with the expression of views , argument , or opinion . Such expression is permitted
under the Act although, short of threat or promise of benefit , it may interfere with lawful con-
certed activities . But the Act does not, nor does the doctrine of free speech, authorize
inquiries . Questions are not expressions of opinion . On the contrary , they look to expressions
and commitments by employees , who as individuals are characterized by "inequality of
bargaining power" of which the Act speaks , and again as individuals are "helpless in dealing
with an employer . -U Because of this inherent difference between a question and a statement,
recognition of interrogation as interference is no constitutional limitation on the right of free
speech or of communication of ideas generally.
Nor does the evil inherent in interrogation depend on the reply . Whether or not there be a
reply, and whatever it be , the interference and tendency to interfere are manifest. Here the
employer actively seeks disclosure (as distinguished from expression of his own views), how
can an employee better avoid such disclosure than by avoiding the activity?
A statement by an employer would differ from a question put to an employee even if the
latter were free to reply as he pleased or to refuse to reply. But we have proof here that
the employee did not feel free to express herself when questioned : This admittedly otherwise
reliable employee answered untruthfully . Nor need there be fear of discharge ; fear of incurring
the employer's displeasure, whether by disclosure of activities or refusal to answer--such
fear is created or intensified by a request for disclosure . Since intent is not the gravamen, but
the effect or tendency is, the recognition of such effect is most important.
If interrogation concerning concerted activities be lawful , it cannot be said that Meissner
was guilty of unlawful provocation; and it would follow that he could therefore compel dis-
closure of union activities , or msubordination$ by refusal to answer; or other indication of
"unreliabihty" by a false answer . But to say that an employee must disclose his organiza-
tional activities is to limit and restrain him and to interfere with his right to engage in such
activities . Further, it leaves no basis for the long line14 of decisions that surveillance con-
iiOne may suggest that undue emphasis has been placed on the concept of "course of
conduct." In such cases it is not subjectively the employer's intent which is at issue, with
whatever indication of that intent is to be found in his course of conduct. The offense lies
objectively in interference or tendency to interfere with organizatonal activities , and while
interference on a large scale may be more readily recognized , it is present even if only
one employee is affected; and it is unlawful if not permitted by the free speech provision of
the Act. Whether the de minimis doctrine should be invoked is another question, quite
different from that of existence of a violation. In the instant case, of course, the seriousness
of the interrogation is reflected in the discharge.
i4N. L. R. B. v. Jones & Laughlin Steel Corp., 301 U. S. 1.
M If the questioning is lawful, it can hardly be maintained that refusal to answer would not
be insubordinate. We must bear in mind that the question referred to activity on this confi-
dential job.
16 That line was not broken by the decision that there was no interference where "casual
inquiry" was made of an employee concerning a "public" union meeting, "and there was
nothing to indicate that respondent was attempting to spy on the union or to intimidate its
ST. LOUIS CAR COMPANY 1535
stitutes interference: for it be lawful to question an employee for information concerning his
activities , it is surely so to observe those activities without compelling him to testify con-
cerning them.
Further, interrogation leads to the very discrimination hereinabove found . We have already
noted the alternatives available to an employee who is unwilling to disclose his concerted
activities ; refusing , he is charged with being insubordinate , unreliable , and untrustworthy;
falsifying , the charge is that he is unreliable and untrustworthy . To say that , if the employer
stops at interrogation when stymied by a refusal to answer , he has committed no wrong is
not only to overlook the interference inherent in the interrogation , but also to put a premium
on a "fight fire with fire" refusal technique- by employees which would subvert the purposes
of the Act.
The reason for the court 's declaration in the Coca - Cola Bottling case tr that the employer
"should not have interested itself in any way in the matter of the revocation of authority
previously given by any of its employees to the Union to represent them" (emphasis supplied)
obtains in the instant situation , where the matter is not revocation of authority but a lawful
attempt to establish such authority . No more to revoke such authority may an employer
interest itself to prevent it (that purpose being here found , if not admitted).
Another basis for the finding herein can be found in the cases involving an employer's
sponsorship of a vote by employees . If an employer ' s secret poll of employees is unlawful, >e
a fortiori interrogation concerning organizational activities is proscribed : here the element
of secrecy is absent , likewise absent is the element of dispersion among a group whereas
here each inquiry is directed to and the Employer ' s attention is concentrated on a single
individual ; and finally the question is directed not merely to the employee 's preference but
to initiation of the activities . ( If it be material , it may be emphasized that the interrogation
was directed at each of the employees covered by the information which the Respondent
received . But quite apart from the question of de minimis , as noted supra , a single act can
constitute interference within the meaning of the Act even though it be unaccompanied by other
unfair labor practices.)
The interference and restraint imposed by the interrogation , and the tendency to interfere
are clear , and I so find . This is not an extension of the statute in any guise of interpretation,
it follows and is in direct application of the plain language and the stated purpose of the Act.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section II , above, occurring in connection with
the operations described in section 1, above , 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 commerce.
IV. THE REMEDY
Since it has been found that the Respondent has engaged in and is engaging in certain unfair
labor practices affecting commerce, I shall recommend that it cease and desist therefrom and
take certain affirmative action in order to effectuate the policies of the Act.
It has been found that the Respondent , by discharging Kellogg , discriminated against her
in respect to her hire and tenure of employment in violation of Section 8 (a) (3) of the Act.
I shall therefore recommend that the Respondent offer to said Kellogg immediate reinstatement,
and make her whole for loss of pay, computation to be made in the customary manner. 19
members. " (N. L. R. B . v. Clearwater Finishing Company , 203 F . 2d 938 (C. A. 4)). How-
ever one may define "casual, " the inquiry was not casual in the instant case since the term
can hardly be applied to questioning whose motive is even to remove reasons for dissatis-
faction and whose outcome is a charge of untrustworthiness because of a false answer. Such
"casualness" must be restrained.
r, Coca - Cola Bottling Company of St. Louis v. N L. R. B., 195 F. 2d 955 (C. A. 8).
lSCharles R. Krim Lumber Company, 97 NLRB 1574 ; Protein Blenders Inc., 105 NLRB
890. Cf. The Walmac Company , 106 NLRB 1355 , where the violation was indicated but, for
reasons of policy, not found.
19 The Chase National Bank of the City of New York, San Juan , Puerto Rico , Branch, 65
NLRB 827 ; Crossett Lumber Company , 8 NLRB 440 ; Republic Steel Corporation v. N. L. R. B.,
311 U . S. 7; F. W . Woolworth Company, 90 NLRB 289.
1536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It has been further found that the Respondent, by interrogation concerning union activity,
interfered with, restrained , and coerced its employees in violation of Section 8 (a (1) of the
Act. I shall therefore further recommend that the Respondent cease and desist therefrom.
Upon the basis of the above findings of fact and upon the entire record in the case, I make
the following-
CONCLUSIONS OF LAW
1. Warehouse and Distribution Workers Union, Local 688, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, is a
labor organization within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Agnes Elaine
Kellogg, thereby discouraging membership in the Union , the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 ( a) (3) of the Act.
3. By such discrimination and by interrogation concerning union activity, thereby inter-
fering with, restraining , and coercing its employees in the exercise of rights guaranteed in
Section 7 of the Act , the Respondent has engaged in and is engaging in unfair labor practices
within the meaning of ection 8 (a) (1) of the Act.
4. The aforesaid labor practices are unfair labor practices affecting commerce, within the
meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Exarruner of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor Relations Act, as amended,
we hereby notify our employees that:
WE WILL NOT discourage membership in Warehouse and Distribution Workers Union,
Local 688, affiliated with International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, AFL, or in any other labor organization of our
employees by discharging any of our employees or discriminating in any other manner
in respect to their hire or tenure of employment, or any term or condition of employment.
WE WILL NOT question our employees concerning union activity.
WE WILL NOT in any other manner interfere with, restrain, or coerce our employees
in the exercise of the right to self-organization , to form labor organizations , to join or
assist Warehouse and Distribution Workers Union, Local 688, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, or
in any other labor organization, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from any or all of such
activities, except to the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment , as authorized in
Section 8 (a) (3) of the Act.
WE WILL offer to Agnes Elaine Kellogg immediate and full reinstatement to her
former or substantially equivalent position, without prejudice to her seniority or other
rights and privileges, and make her whole for any loss of pay suffered as a result of the
interference, restraint , coercion , and discrimination against her.
All of our employees are free to become, remain, or to refrain from becoming or remain-
ing members in good standing in Warehouseand Distribution Workers Union, Local 688, affili-
ated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
WHITIN MACHINE WORKS 1537
America, AFL, or any other labor organization except to the extent that this right may be
affected by an agreement in conformity with Section 8 ( a) (3) of the Act.
ST. LOUIS CAR 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.
WHITIN MACHINE WORKS and UNITED STEELWORKERS OF
AMERICA , CIO., Case No . 11-CA-494 . June 28, 1954
DECISION AND ORDER
On July 30 , 1953, Trial Examiner John C. Fischer issued his
Intermediate Report in the above-entitled proceeding , finding
that the Respondent had not engaged in any unfair labor prac-
tices and recommending that the complaint against the Respond-
ent be dismissed in its entirety . Thereafter , the General
Counsel filed exceptions to the Intermediate Report and
supporting brief.
The Board has reviewed the rulings made by the Trial
Examiner at the hearing and finds that no prejudicial error
was committed . The rulings are hereby affirmed . The Board
has considered the Intermediate Report attached hereto, the
exceptions and brief , and the entire record in the case and
hereby adopts the findings , conclusions , and recommendations
of the Trial Examiner insofar as they are consistent with
this Decision and Order.
The Trial Examiner found that the Respondent did not violate
Section 8 (a) (5) of the Act when it refused to furnish the
Union with certain wage data concerning the employees which
the Union represented for the purposes of collective bargaining.
In view of Board and court precedent and for the reasons stated
below we do not adopt the Trial Examiner's recommendation.
On June 19 , 1952, the Union was certified by the Board as the
collective-bargaining representative of the Respondent's pro-
duction and maintenance employees . Thereafter , on some 10
occasions , officials of the Respondent and the Union met to
discuss a proposed collective -bargaining agreement. One of
the first matters proposed by the union negotiators was a gen-
eral wage increase . The Employer refused to grant the in-
crease.
At a meeting held on November 25, 1952, the Union reques',.ed
of the Respondent a list of names , job classifications, rates
of pay, and seniority positions of each employee in the appro-
priate unit. The Union took the position that this information
was necessary for it adequately to compare the Company's
339676 0 - 55 - 98
108 NLRB No. 223.