Textron, Inc.

National Labor Relations Board - Board Decisions

Sep 22, 1972

199 N.L.R.B. 242 (N.L.R.B. 1972)

242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
W. A. Sheaffer Pen Company , Division of Textron,
Inc. and International Union , United Automobile,
Aerospace and Agricultural Implement Workers of
America . Case 38-CA-1266
September 22, 1972
DECISION AND ORDER
BY MEMBERS JENKINS , KENNEDY, AND PENELLO
On May 11, 1972, Trial Examiner Eugene F.
Frey issued the attached Decision in this proceeding.
Thereafter, both General Counsel and Respondent
filed exceptions to the Trial Examiner's Decision and
supporting briefs, and the Charging Party filed cross-
exceptions together with a supporting brief.
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 au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions and to adopt his
recommended Order, except as indicated hereinafter.
The Trial Examiner found, and we agree, that by
requesting applicants for employment during negotia-
tions with the Union to answer questions on their
employment applications as to their willingness or
unwillingness to cross a picket line in the event of a
strike, without assurances against reprisal for their
answer to or failure to answer such questions, and by
maintaining such information in its personnel files,
Respondent has interfered with, restrained, and
coerced applicants for employment in the exercise of
rights guaranteed them by Section 7 of the Act, and
has thereby violated Section 8(a)(1) of the Act.
The Trial Examiner, however, also found that
Respondent had substantial justification for the use of
its questionnaire. We disagree and find, contrary to
the Trial Examiner, for the reasons set forth below,
that Respondent violated Section 8(a)(1) of the Act by
its regular inclusion of a questionnaire with applica-
tions for employment.
The facts show that the Respondent and the Un-
ion were operating under a collective-bargaining
agreement which expired on October 1, 1971:1 That
agreement contained a no-strike provision during the
life of the agreement.
On July 28, the Union notified Respondent that
it was reopening the agreement. On August 12, in re-
sponse to alleged strike rumors, Respondent circulat-
ed a letter to all employees, informing them of
1 All dates herein are in 1971 unless otherwise stated.
Respondent's knowledge of the rumors and of the
employees' obligation to vote on any strike authoriza-
tion vote. The Union did not answer the letter direct-
ly. However, a poll was taken at the August 14 union
meeting, and each member of the bargaining commit-
tee stated that a strike vote was never discussed or
considered. After the August 14 union meeting, where
approval of bargaining proposals to be submitted to
the Respondent was obtained, the first negotiating
session was held on August 17 to explore the Union's
written proposals.'
Subsequently, additional negotiating sessions
took place, the result of which was an agreement to
extend the current contract beyond October 1, with a
proviso that either party could terminate the extended
agreement on 10 days' written notice. On October 10,
a union meeting was held to discuss the status of the
negotiations, and a proposed new agreement. At that
meeting, the membership rejected the proposed con-
tract and voted to apply to the International Union
for a strike authorization. On October 31, the Union
served notice effective November 1, to the Respon-
dent that a strike would commence on November 10
should an agreement not be reached by that time. A
strike did begin on November 11 and concluded as a
result of a new agreement reached on November 19.
The Respondent attached the questionnaire in
issue to its application forms between August 20 and
November 4. The questionnaire reads as follows:
The W.A. Sheaffer Pen Company is currently
engaged in contract negotiations. In the event of
a strike, the plants may be picketed. Would you
be willing, under these conditions, to cross a
picket line when entering or leaving the plant?
Yes No
(Signature & Date)
Respondent discontinued use of this questionnaire on
September 29 when an agreement to extend the orig-
inal contract was reached, but reinstated it on No-
vember 4 after receiving written notice of termination
by the Union.
The Trial Examiner concluded that the Respon-
dent had substantial justification to use the question-
naire because of its limited purpose, which was to
determine the availability of people in the event of a
strike. His conclusion was based, in part, on rumors
and allegcd reports received from production superin-
tendents and department managers , starting in late
2 Respondent refers to the "Union 's initial demand for high wages and
other provisions . . " received on August 17 (first bargaining session) and
claims that the "magnitude" of these demands justified its reliance on the
strike rumors . However, the record shows that the Respondent was not sure
if the decision to attach the questionnaire was made before or after the first
bargaining session, when the Union 's demands were first presented . In fact,
Respondent's personnel manager admitted at the hearing that it is possible
that the decision to use the questionnaire was made before the first bargain-
mg session on August 17
199 NLRB No. 21
W.A. SHEAFFER PEN COMPANY 243
July, concerning the use of a strike as a negotiating
weapon.3 The Trial Examiner also found that the use
of the questionnaire was justified in the light of "the
sequence of events indicating first the possibility, then
the probability, and finally the confirming event of a
strike." He further found that Respondent's letter,
dated August 12, was a legitimate report to employees
on what Respondent heard about a possible strike. In
addition, he concluded that the Union's failure to
directly respond to the rumors mentioned in the letter
further justified Respondent's reliance on such ru-
mors.
The Trial Examiner considered the union
president's testimony with respect to a poll of the
bargaining committee-to show that none of the
members intended to start negotiations with a "strike
vote in hand"-to be self-serving. He also determined
that William Baker, the president of the Union, made
admissions of an intention to strike in connection with
May and June discussions with employees concerning
strike procedures. In addition, the Trial Examiner ap-
plied the "small plant" rule in determining that ru-
mors of strike activity did come to the attention of
management . Finally, the Trial Examiner concluded
that Respondent's decision to forego the question-
naire immediately after the agreement to extend the
original contract was reached supports its claim that
the questionnaire was being used for a legitimate pur-
pose.
In our opinion, Respondent's position, as accept-'
ed by the Trial Examiner, that it had ample justifica-
tion for the use of the aforementioned questionnaire,
does not withstand analysis. The record reveals that
22 of the applicants who had been given the question-
naire were hired before the strike began, and conse-
quently before the strike replacements were nec-
essary. The rumors and alleged reports, relied on by
Respondent, were never confirmed with the local
president nor were they supported by adequate testi-
mony at the hearing .4 In this connection, there is no
evidence in the record that the Union conferred with
Respondent about any strike action prior to the used
of the questionnaire. Furthermore, we do not agree i
with the Trial Examiner that events which took place
subsequent to the initial use of the questionnaire can
be used to justify the questionnaire. Respondent's ad-
mission at the hearing that the decision to use the
questionnaire might have been made before the first
bargaining session further weakens Respondent's
3 The Trial Examiner found that such rumors did exist , but considered
testimony with respect to the same weak , because of Respondent 's failure to
call the named supervisors allegedly responsible for these rumors to testify
at the hearing.
° The Trial Examiner stated in his decision that "the only weak spot in his
testimony deals with the first vague `rumors' of early use of a strike as a
negotiating weapon, coming from named supervisors who were not called to
give details . .
claim that this decision was based, in part, on the
magnitude of the Union's demands.
We also find, contrary to the Trial Examiner, that
the poll of the bargaining committee on August 14
was not self-serving but was a legitimate means of
disclaiming rumors of an intention to come to the
bargaining table with a "strike vote in hand." Nor do
we consider the union president's testimony concern-
ing his conversations with employees during May and
June an admission of an intention to strike; we view
it only as an expression to employees of their rights as
guaranteed by the union constitution. These discus-
sions dealt more specifically with the right of employ-
ees to have at least two opportunities to vote on
whether they wanted to strike. In this regard, no strike
action was taken until well after the implementation
of questionnaire. In addition, we do not agree with the
Trial Examiner's application of the "small plant" rule
concerning the strike rumors, especially in the present
case , where the plant has more than 350 employees.
Furthermore, when the interrogation of applicants
commenced, the Respondent had no basis to fear an
imminent strike, as the contract was not to expire until
October 1. Indeed, the record shows that the Respon-
dent discontinued using the questionnaire after the
September 29 extension of the contract containing the
10-day notice of termination proviso. Surely, if this
provision for 10 days' notice before strike was suffi-
cient to allay any fears of a strike, the Respondent
could not have had any such genuine fear 6 weeks or
more prior to the termination of the contract contain-
ing a no-strike clause. In short, Respondent's justifi-
cation was based solely on strike rumors which it did
not attempt to verify with the union leadership.
The Board has never privileged the interrogation
of applicants concerning their willingness to cross a
picket line except in situations where a strike was in
progress.' This is not to say, however, that there are
no situations where such interrogation of employee
applicants would not be justified.6 We are, however,
of the view that this case does not present such a
situation. In the circumstances of this case, to make
privileged the' Respondent's use of the questionnaire
6 weeks'before the expiration of the contract, and at
the very outset of bargaining, would severely limit and
pervert the Section 7 rights of the employee appli-
cants. Accordingly, as Respondent lacked a valid jus-
tification for the use of the questionnaire, its
interrogation of job applicants must be deemed viola-
tive of Section 8(a)(1) of the Act? We shall amend the
recommended Order and notice accordingly.
5 Roadhome Construction Corp, 170 NLRB 668, 674.
6 The General Counsel does not contend that such interrogation is a per
se violation of Sec . 8(a)(1).
7 Clark Printing Company, Inc, 146 NLRB 121, Da-Life Screen Company,
Inc, 154 NLRB 926, 930.
244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Trial Examiner as modified below and
hereby orders that W. A. Sheaffer Pen Company, Di-
vision of Textron, Inc., its officers, agents, successors,
and assigns, shall take the action set forth in the Trial
Examiner's recommended Order as herein modified:
1. Redesignate paragraphs 1(a) and 1(b) as para-
graphs 1(b) and 1(c), respectively, and add the follow-
ing as paragraph 1(a) of the Trial Examiner's
recommended Order:
"(a) Requesting or requiring prospective employ-
ees, in anticipation of or during any negotiations with
the above Union or any other labor organization of its
employees, to answer questions on or connected with
their applications for employment as to their willing-
ness or unwillingness to cross a picket line in the event
of a strike."
2. Substitute the attached notice for the Trial
Examiner's notice.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
ingness to cross a picket line in the event of a
strike, without assuring them at the same time
that their answers to or failure to answer such
questions will not be used for any type of reprisal
in the future against them as prospective employ-
ees or employees.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce prospective em-
ployees or our employees in the exercise of any
rights guaranteed to them by Section 7 of the Act.
All our employees are free to become, remain, or
refrain from becoming or remaining, members of the
above-named Union or any other labor organization.
Dated By
W. A. SHEAFFER PEN COMPANY,
DIVISION OF TEXTRON, INC.
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
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.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Savings Center Tower, 10th Floor, 411
Hamilton Boulevard, Peoria, Illinois 61601, Tele-
phone 309-673-9061, Ext. 282.
After a trial in which all parties participated and of-
fered evidence, the National Labor Relations Board
has found that we violated the law and has ordered us
to post this notice and take the action indicated in it.
We intend to carry out the Order of the Board and we
hereby notify you that:
WE WILL NOT, in anticipation of or during any
negotiations with International Union, United
Automobile, Aerospace and Agricultural Imple-
ment Workers of America, its Local 1551, or any
other labor organization of our employees, re-
quest or require prospective employees to answer
questions on or connected with their applications
for employment as to their willingness or unwill-
ingness to cross a picket line in the event of a
strike.
WE WILL NOT, in anticipation of or during any
negotiations with International Union, United
Automobile, Aerospace and Agricultural Imple-
ment Workers of America, its Local 1551, or any
other labor organization of our employees, re-
quest or require prospective employees to answer
questions on or connected with their applications
for employment as to their willingness or unwill-
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
EUGENE F. FREY, Trial Examiner: This case was tried
before me on March 7, 1972, at Fort Madison, Iowa, with
all parties represented by counsel, after pretrial procedures
in compliance with the National Labor Relations Act, as
amended, 29 U.S.C. Sec. 151, et seq. (herein called the Act).
The issues raised by the pleadings' are whether or not Re-
spondent, W. A. Sheaffer Pen Company (a division of Tex-
tron, Inc.), during contract negotiations with the
above-named Union 2 as statutory bargaining agent of
Respondent's employees in an appropriate unit, questioned
applicants for employment about their union activities and
desires , by having them answer a questionnaire as part of
their application for employment, indicating whether they
would cross a picket line to work if the Union went on
i The issues anse on a complaint issued November 26, 1971 , by the Officer-
'-Charge of the Board 's Sub-Region 38 , after due Board investigation of a
charge filed by the above-named Union on September 7, 1971, and answer
of Respondent which admits jurisdiction but denies the commission of any
unfair labor practices, and raises certain affirmative defenses of fact and law.
2 The term "Union" herein refers interchangeably to the Union as named
in the caption and to its Local 1551 , which actively represented employees
in the unit.
W.A. SHEAFFER PEN COMPANY
strike, and has maintained such information as part of the
personnel files of such applicants, in violation of Section
8(a)(1) of the Act. At the close of the testimony the Trial
Examiner reserved decision on Respondent's motion to dis-
miss the complaint on the merits. At the close of the trial
all parties waived oral argument, but filed written briefs
with me by April 18, 1972; these have been carefully consid-
ered by me in disposition of Respondent's motion to dismiss
the complaint herein and in reaching the findings of fact
and conclusions of law in this Decision which was signed
and released by me on May 9, 1972, for distribution to the
parties in the usual course.
Upon consideration of the entire record in the case,
including my observation of the demeanor of witnesses on
the stand and analysis of the arguments of counsel, I make
the following:
FINDINGS OF FACT
1. RESPONDENTS BUSINESS AND THE
STATUS OF THE UNION
Respondent is a Delaware corporation with an office
and place of business and plant located at Fort Madison,
Iowa, where it is in the business of making writing instru-
ments and accessories. In the past 12 months it has had a
direct outflow of finished products from said plant and
direct inflow of goods and materials to said plant, valued in
each instance in excess of $50,000. I find that Respondent
is an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES 3
A. Preliminary and Background Events
As a result of elections conducted in Cases 38-RC-391,
38-RC-486, and 38-RC-490, and an Amendment of Certi-
fication in Case 38-AC-7, the Union was certified in 1968
as the statutory bargaining agent of Respondent's employ-
ees in an appropriate unit. From September 1968 to October
1, 1971, Respondent and the Union were operating under
a collective-bargaining agreement which expired October 1,
1971. That agreement contained a clause prohibiting strikes
by employees during the lire of the agreement.
On July 28 the Union gave Respondent due notice that
it was reopening the current contract. On August 14 the
Union held a meeting of members in the unit to get approval
of the proposals to be submitted to Respondent. On August
17 the parties held their first meeting, at which the Union
presented its written contract demands; this meeting merely
explored those demands. Later negotiotion sessions were
held September 1, 14, 21, 22, and 23. On September 30 the
parties agreed in writing to extend the current contract be-
yond October 1, with the understanding that either could
3 All dates found herein are in 1971 unless otherwise stated.
245
terminate it (as extended) on 10 days' written notice, and
that negotiations would continue during the extended pen-
od.
On September 30 or October 1, the Union openly noti-
fied employees on the plant bulletin board of a special
meeting on Sunday, October 10, to discuss the status of the
contract negotiations, and allow the employees to accept or
reject the language which the Union had worked out with
Respondent to that date. The notice advised that "at this
time, if the membership is dissatisfied with the terms of the
proposed contract, a strike vote will be taken." At the meet-
ing a large majority of the employees present voted to reject
the contract terms, and to apply to the International Union
for a strike authorization .4 On October 31, the Union gave
Respondent notice by telegram that it was serving the 10-
day termination notice effective November 1, and that if no
agreement was reached by November 10, the Union would
strike. The strike actually began at 12:01 a.m., November
11. The parties continued negotiations and reached agree-
ment on a contract November 19. The employees ratified
the agreement on November 19 or 20, the contract was
executed November 22, and the employees returned to work
November 23.5
B. The Alleged Illegal Questionnaire
The record shows that between August 20 and Novem-
ber 4, Respondent attached to its usual form of employment
applications a slip reading as follows:
The W.A. Sheaffer Pen Company is currently engaged
in contract negotiations. In the event of a strike, the
plants may be picketed. Would you be willing, under
these conditions, to cross a picket line when entering or
leaving the plant?
Yes No
(Signature & Date)
The applications were given to applicants for employment
with the slip attached, without any specific mention of the
slip or instructions or directions that questions on the slip
must be answered. Between August 20 and November 4, 649
applicants filled out the basic applications with 185 of them
answering "NO" to questions on the slip, 440 answering
"YES," and 14 not answering either question. Respondent
discontinued attaching the slip to applications on Septem-
ber 29, the day it agreed with the Union orally on the
indefinite extension of the contract term, resumed its use on
November 4, and discontinued it entirely on November 22,
the day the contract was signed. When Respondent resumed
use of the slip on November 4, it pulled from its personnel
files all prior signed applications with the slip attached, and
has not since used them in hiring employees. However, prior
to that date, it had hired 22 of the applicants who had been
given the slip; 8 of these did not answer the slip questions,
9 marked it "YES," and 5 marked it "NO." Three of the 22
were former employees and union members.
Under the Union's procedure, vote of a majority of unit employees can
authorize such application . If the parent Union grants it , the local members
must then vote by a two-thirds majority vote to use the strike authority
5 The above facts are found from stipulated and uncontradicted testimony.
6 The above facts are found from stipulated and uncontradicted testimony.
246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Contentions of Parties, with
Final Conclusions
The narrow issue is the legality vel non of the procure-
ment and maintenance in personnel files of the applications
with questions slips attached. General Councsel relies on
decisions holding that use of employment applications
which require prospective empoyees to indicate their union
membership or desires is inherently coercive in violation of
Section 8(a)(1) of the Act,7 and argues that questions which
require prospective employees to disclose their willingness
to cross a picket line are likewise coercive as an extension
of these rulings, citing Tidelands Marine Services, Inc., 144
NLRB 176, 189. He admits, however, that interrogation of
this type could be privileged if Respondent showed substan-
tial justification for it and also gave applicants certain assur-
ances against discriminatory use of such information.8
Respondent claims it had ample justification for use, of
the question slip because it had good reason to believe,
before negotiations began, that the Union would probably
strike during negotiations, that this belief was strengthened
by the course of the negotiations and actions of the Union
and fully confirmed by the fact of the strike, hence it had
good and increasing economic justification from July on-
ward for investigating the labor pool in order to find out if
it could secure a work force which would enable it to contin-
ue operations during a strike. On this point, Respondent
adduced testimony of Personnel Manager William H. Met-
zinger, Jr., and his secretary, Carolyn E. Wagner, which, in
light of admissions of Union Negotiators Robert E. Roberts
and Charles F. Weed, credibly shows that: As early as July,
Metzinger began to get reports almost daily from at least
four named production superintendents and department
managers that they had heard remarks from employees to
the effect that the union negotiating committee intended to
come to the bargaining table with a strike authorization,
and that there would probably be a strike. Metzinger re-
layed these reports to Ned Bishop, president of Respondent.
Management officials, including Bishop and Metzinger,
held a meeting early in August to discuss procedure in event
of a strike. They discussed two alternatives, closing the plant
down or continuing to operate it. On the basis of the strike
rumors, Bishop issued a letter to all employees on August
12, which read as follows:
TO ALL SHEAFFER EMPLOYEES:
As you know, there is a meeting planned for Saturday
morning by the UAW members employed at Sheaffer.
This meeting is of vital concern to each of us.
Word has been passed along that the UAW negotiating
committee wants to enter negotiations with a strike
vote in hand.
The first meeting for new contract negotiations is
scheduled for August 17. In order to have a successful
conclusion to these negotiations it is imperative that
both parties negotiate in good faith. It does not seem
reasonable that entering negotiations with this attitude
r Hydro-Molding Company, Inc, 183 NLRB No. 72, Sterling Aluminum
Company, 163 NLRB 302.
8 Clark Printing Company, Inc, 146 NLRB 121, Da-Life Screen Company,
Inc, 154 NLRB 926,930 See also Struksnes Construction Co. Inc., 165 NLRB
1062.
and in this atmosphere contributes to smooth and co-
operative negotiations.
I, therefore, feel it vitally important that union mem-
bers in good standing attend this meeting and voice
your opinion so that the UAW officers and officials are
well informed of your feelings concerning the coming
negotiations . It is essential that if a vote is taken, your
vote be heard and counted. The UAW should be repre-
senting you and your desires.
Since the UAW is also the bargaining agent for non-
union employees in the bargaining unit, it is vitally
important that these non-union employees voice their
feelings to union members and officials so that the
UAW truly represents the employees of the W.A.
Sheaffer Pen Company.
You have a responsibility to your Company and your
fellow employees to become involved in the coming
events.
The Union did not reply officially to this letter, but its
officers discussed it with employees at a meeting on August
14. There was no oral communication, official or casual, on
this subject by union officials to company officers or agents.
In a meeting on August 17, the date of the first bargain-
ing session ,management decided to continue production dur-
ing a strike, and Metzinger was directed to investigate the
local labor pool to find out if the plant could get enough new
workers to continue production. This was necessary because
Respondent had not advertised for help for many years
past, relying upon the normal flow of applicants for work
which had usually been sufficient to fill its labor require-
ments. Respondent began advertising for help in local news-
papers on August 20. After receiving advice from counsel
that Respondent had the right under the Act to hire perma-
nent replacements for strikers in event of an economic
strike, Metzinger was directed on August 17 to prepare and
use the question slip aforesaid as part of applications for
employment. The slip was thus given to each applicant for
work, but without any comment or instructions about the
need for answering the questions on it. Respondent had
never used this type of question slip before at the plant.
Respondent procured applications with the slip attached
from August 20 to September 29, discontinuing the slip that
date because of the agreement for extension of the contract
period during continued negotiations , which Respondent
considered an indication that a strike was not imminent.
The use of the slip was resumed only after Respondent
received the Union's 10-day notice of termination of the
extended contract period; the notice was received appar-
ently sometime in the week of November 1 and before
November 4. The receipt of the notice terminating the con-
tract with its no-strike provision, after the Union's public
announcement of the October 10 union meeting with a pos-
sible strike vote on the agenda, was clear notice to Respon-
dent that the Union would strike after November 10 if
agreement on a contract was not reached by that time.
However, on advice of counsel based apparently on notice
that the Board was in process of issuing the complaint here-
in, Respondent did not use any of the applications with slip
attached which had been received and not processed into
actual hirings up to November,4.9 The single replacement
9 This excludes the 22 employees hired before November 4 from that batch
W.A. SHEAFFER PEN COMPANY 247
hired during the strike came only from applications with slip
attached filled out during the strike.
When Respondent on August 17 received the Union's
initial demand for high wages and other provisions, such as
a proposed skilled trades preference clause and an incentive
wage program, management felt that the magnitude of the
demands lessened the probability of quick agreement and
made the rumored strike more probable. After four bargain-
ing sessions , the parties had not agreed on any provisions,
and were particularly far apart on the Respondent's propos-
al of further limiting the downgrading practice; Respondent
wanted to restrict the practice, which would affect seniority,
but the Union wanted to make it more flexible, because it
considered seniority "the basic backbone of the contract."
At the bargaining meeting of September 22, Robert E. Rob-
erts, an International representative from the parent union,
gave various arguments against Respondent's transfer and
hiring practices which he claimed were detrimental to sen-
iority, and bluntly told company representatives on the
downgrading issue that, if all other issues were settled sat-
isfactorily between them, and that issue remained, "this will,
shut the plant down, make no mistake about it." 10 Attorney
Haynes replied that "unless you come up with something in
between, you may dust have to do that." After further dis-
cussion of the issue, the parties could not agree, and when
Roberts was leaving at the end of the meeting he com-
mented that "we had a lot of work to do" and had only a
"short time to reconcile our differences." When Charles F.
Weed, another agent from the parent union, took Roberts'
place in the negotiations on September 23, he accused both
sides of "not facing up to their responsibilities," referring to
company releases in local newspapers, and indicating they
were not carrying on negotiations which would result in an
agreement. After Weed came in, the parties apparently
reached tentative agreement on the downgrading practice,
but the Union withdrew its acceptance of it before the
strike.''
In light of the total absence of proof of disharmony
between Respondent and the Union during the term of the
1968-71 contract (which General Counsel concedes), or of
any other conduct by Respondent prior to August indica-
ting animus toward the Union, I must conclude that the
testimony adduced from company witnesses, as well as
Roberts and Weed, affords strong support for the defense
that the question slips had only the limited purpose of de-
termining the availability of people for work in event of a
strike, which was fully justified by the sequence of events
indicating first the possibility, then the probability, and fi-
nally the confirming event, of a strike.12 The only weak spot
of applications.
10 This remark is found from credited testimony of Metzmger and Wagner,
as corroborated in part by admissions of Roberts that he told the Company
it would never get its downgrading proposals , that if it expected to get them
"I do not want you to hold your breath, you would have a short life " He
also admitted that the promise of a strike was a reasonable "connotation you
could put on" these remarks . Union President William S Baker also admitted
possibility of a strike had been discussed within the union negotiating com-
mittee before that, and that a strike was always possible during negotiations
"Weed's conduct and remarks are based mainly on his admissions
12 Insofar as Respondent was questioning outsiders to learn how large a
work force would be available instantly , the case appears somewhat stronger
than the situation in Roadhome, supra where the interrogation was directed
to striking employees about the sentiments and conduct of other employees.
in this testimony deals with the first vague "rumors" of early
use of a strike as a negotiating weapon, coming from named
supervisors who were not called to give details, but it finds
support in the admissions of Baker that in numerous meet-
mgs with employees in all departments as early as May and
June to learn their contract demands, strikes were often
discussed, with Baker explaining the detailed procedure for
securing strike authority under the Union's constitution,
including the right of the employees to have at least two
strike votes. Although there is no proof that the Union
officially or otherwise talked to Respondent about the pos-
sibility or probability of a strike (before the September 30
posting of the notice of the union meeting of October 10),
it is a fair inference that Baker's talks with employees about
strikes were later discussed freely among employees
throughout the plant of about 350 workers, and that the
substance of these talks more than likely came to the ears
of supervisors and officials in the normal course.13 In addi-
tion, Respondent must have been aware, as the Union was,
from the moment the Union moved to reopen the contract
for negotiation, that a strike was an ever-present threat
thereafter, as the traditional ultimate weapon used by labor
organizations in negotiations and economic disputes with
employers. All of these considerations strongly negate the
inference of an ulterior, antiunion motive which General
Counsel seeks to draw from the circumstance that the inter-
rogation in question was first used about 6 weeks before the
contract, with its no-strike clause, was due to expire; and the
inference is further weakened by the significant fact that
Respondent stopped usage of the questionnaire as soon as
the Union suggested, and then agreed to, extension of the
contract term, which directly supports Metzinger's story
that Respondent felt the strike threat had thus receded,
obviating the immediate need for further stockpiling of a
possible labor pool for use in a strike.14
I find no merit in the argument of General Counsel that
the early "rumors" of a strike could not justify the later
interrogations because Respondent made no attempt to ver-
However, the case for justification is weaker than Roadhome in that Respon-
dent was interrogating 649 applicants in a systematic way over a long period
of time, long before an actual strike took place
13 The same considerations which lead the Board to consider the small size
of a plant in determining whether an employer is likely to have knowledge
of union activity among his workers should apply in deciding whether rumors
of strike activity in a small plant are likely to come to the attention of
management , especially where the top union official engages in widespread
talk about strikes with workers in all departments and there was apparently
no attempt to keep discussion of union matters secret . See The Circle KCorp,
173 NLRB 713, 715.
14 In attacking the justification offered by Respondent, the Union relies
heavily on an admission of Metzinger that one Laverne Bartlett, who signed
"NO" to the questionnaire , was "restored" to work on July 22, to indicate
that the questionnaire, was first used on that date, or before, at a time further
removed from the actual strike . However, comparison of his testimony and
the records in evidence clearly shows he read the Bartlett record incorrectly,
for it shows clearly she was rehired September 13, almost a month after the
questionnaire was first used as found above If anything, her case shows that
Respondent in September and October was rehiring former employees who
were union members, even though they had indicated "NO" on the question-
naire, for out of five applicants who wrote "NO," Respondent hired two
(Treatch and Bartlett) in September, and three (Spring, Chainlee, and Burch)
in October; and Bartlett, Treatch , and Burch had been former employees and
known union members This indicates strongly that in the period before the
strike Respondent was hiring and recalling people on the basis of past expe-
rience or other qualifications, even though they indicated they would not
cross a picket line, and was not using their answers as a basis for discrimma-
tion.
248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ify the reliability of the rumors in any way, even through
discussions with the Union. The obvious answer is that in
making almost any type of investigation, other than ques-
tions to supervisors, Respondent would probably have been
charged with violation of the Act such as deliberate interro-
gation of employees, or direct or indirect coercion such as
spying or surveillance; and it could hardly have expected
the Union to state openly it would never use its traditional
strike weapon, if questioned directly about its intentions.
Nor can I view the company letter of August 12 as a
"self-generated strike scare" and part of its bargaining strat-
egy, which would weaken the claim of economic motive.
Aside from open interrogation of employees in the unit or
the Union itself about its intentions , with the danger of
more charges of violation of the Act, the letter seems to be
a legitimate means of bringing to the attention of all em-
ployees, for discussion or answer, what it had heard about
a possible strike. The fact that the Union did not choose
openly to deny or otherwise answer the letter on this point
does not negate, but rather strengthens, Respondent's reli-
ance on the rumors as having some substance in fact.I5
General Counsel also argues that, even if the question-
naire had a valid justification, it was still coercive and not
privileged because the applicants for work were not given
proper assurances that their answer (or nonanswer) of the
questions would not be used for future discrimination or
reprisal against them, one of the criteria for legal interroga-
tion outlined in Struksnes Construction Co., Inc., 165 NLRB
1062.16 Respondent admits that this requirement was not
satisfied in its proffer and use of the questionnaire, but
argues that if applied in the circumstances here, protection
of applicant's rights under the Act would have required
Respondent to assure each applicant he would be hired
regardless of his response to the questions, as the assurance
of employment would have been useless for those who indi-
cated they would not cross a picket line to work. I consider
this reasoning faulty, in that it assumes Respondent had to
guarantee any applicant a job, regardless of his response (or
nonresponse) to the questions. The Act does not require an
employer to hire applicants on the basis of their union or
nonunion sentiments, but forbids refusal to hire on that
basis; it has always permitted employers to hire or refuse to
hire on the basis of experience or any other qualifications
or factor, provided union or nonunion activity or sentiments
is not a factor. Here, Respondent could easily have met this
requirement by adding to the questionnaire a statement to
the effect that an applicant's response or nonresponse to the
questions would not be used for any type of reprisal against
him in future, whether as a prospective employee or actual
employee; and if the questionnaire was justified to enable
Respondent to find out if an applicant was available for
work in event of a strike, it is a weak argument to say that
failure to hire him because he said "NO" was discriminato-
ry, for it is very likely that a request to him to report to work
across a picket line would have been futile. It also appears
that the whole issue could reasonably have been avoided if
Respondent had accumulated a stockpile of 649 signed ap-
plications without the questionnaire, and waited until the
date of actual need for workers to call applicants and then
find out by calling qualified applicants if any applicant
would cross the picket line to work; this trial-and-error
method would probably have required calls to more appli-
cants than otherwise, but would have avoided one of the
pitfalls created by the Struksnes decision.17
On the basis` of the above facts and authorities, I must
conclude that the use of the question slips for the period and
to the extent found above was not accompanied by a vital
safeguard required by Board precedents for the protection
of the statutory rights of applicants for employment, who
for this purpose are considered in the same class as employ-
ees, hence the systematic interrogation thus involved was
not privileged even though made for a legitimate economic
purpose, and must be presumed to have had a coercive
impact upon applicants for employment, in violation of
Section 8(a)(1) of the Act. As a corollary I also conclude
that it is a fair inference that continued maintenance of said
applications with slip attached in the personnel records of
Respondent may well be the source of future discriminatory
action against these and other applicants for employment,
including former employees, and thus have a coercive im-
pact on them, in continuing violation of Section 8(a)(1) of
the Act."
III THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section II,
above, occurring in connection with Respondent' opera-
tions described in section I, above, hava a close, intimate
and substantial relationship 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
IS Baker's self-serving attempt to shy away from discussion of the rumors
in the August 14 membership meeting , and his claim of rather obvious polling
of the bargaining committee to bring out that none of them had talked about
starting negotiations with a strike vote in hand , does not weaken
Respondent's defense , for he was obviously trying in testimony to counter
Pespondent's legitimate appeal to all employees in the unit to attend the
meeting so that they would know what was going on, and could vote on
matters affecting them , including a possible strike vote.
16 The Union also argues that the requirements in that case of a secret poll
and disclosure of the reasons for the questions to the applicants were not met.
I find that since the query was not made to ascertain the truth of a union
claim of majority status, but the availability of a nonworker for work in event
of a strike , the requirement of secrecy should not apply, and the question slip
itself plainly told the applicants that the questions were asked because Re-
spondent was presently in contract negotiations , and there might be picketing
in event of a strike.
Having found that Respondent has engaged in certain
,limited unfair labor practices , I shall recommend that it
cease and desist therefrom and from any like or related
conduct, and take certain affirmative action designed to
effectuate the policies of the Act, including the removal
from its personnel files and any other records of the ques-
tion slips procured with all applications for employment
i7 The fact that Respondent found it necessary to hire only 19 new workers
from the mass of applications received before the strike , and only one, Judy
Wilson, during the strike , somewhat detracts from the sincerity of the claimed
justification for the mass interrogation.
is The above findings and conclusions make it unnecessary to review and
make findings on other facts cited and arguments made by the parties in their
beefs
W.A. SHEAFFER PEN COMPANY 249
submitted to and signed by applicants for employment on
and after August 20, 1971, and physical destruction of such
slips and any other records of the information contained
thereon.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce,
and the Union is a labor organization, within the meaning
of the Act,
2. By requesting applicants for employment during
negotiations with the Union to answer questions on their
employment applications as to their willingness or un-
willingness to cross a picket line in the event of a strike,
without assurances against reprisal for their answer to or
failure to answer such questions , and by maintaining such
information in its personnel files , Respondent has interfered
with, restrained, and coerced applicants for employment in
the exercise of rights guaranteed to them by Section 7 of the
Act, and has thereby engaged in and is engaging in unfair
labor practices affecting commerce, within the meaning of
Section 2(6) and (7) and 8(a)(1) of the Act.
Upon the basis of the foregoing findings of fact, conclu-
sions of law , and the entire record in the case , and pursuant
to Section 10(c) of the Act, I hereby issue the following
recommended:19
ORDER
Respondent, W.A. Sheaffer Pen Company, Division of
Textron , Inc., its officers , agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Requesting or requiring prospective employees, in
anticipation of or during negotiations with the above Un-
19 In the event no exceptions are filed as provided by Section 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Section
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
ion or any other labor organization of its employees, to
answer questions on or connected with their applications for
employment as to their willingness or unwillingness to cross
a picket line in the event of a strike, without assuring them
at the same time that their answers to or failure to answer
such questions will not be used for any type of reprisal in
future against them as prospective employees or employees.
(b) In any like or related manner interfering with, re-
straining, or coercing prospective employees or employees
in the exercise of rights guaranteed to them by Section 7 of
the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Remove from its personnel files and other records the
question slips submitted to or procured from prospective
employees as part of their signed applications for employ-
ment on and after August 20, 1971, and destroy such ques-
tion slips and delete the information contained thereon
from any other records on which it may have been recorded.
(b) Post at its plant and place of business in Fort Mad-
ison, Iowa, copies of the notice attached hereto as "Appen-
dix."20 Copies of said notice, on forms to be provided by the
Officer-in-Charge of Sub-Region 38, after being duly signed
by Respondent's representatives, shall be posted by Re-
spondent immediately upon receipt thereof and be main-
tained 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 Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify said Officer-in-Charge, in writing, within 20
days from the date of receipt of this Decision, what steps
Respondent has taken to comply therewith.21
20 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
21 In the event that this recommended Order is adopted by the Board after
exceptions have been filed , this provision shall be modified to read : "Notify
the Officer -in-Charge for Sub-Region 38 , in wasting, within 20 days from the
date of this Order, what steps the Respondent has taken to comply there-
with "