The Singer Co.

National Labor Relations Board - Board Decisions

May 5, 1966

158 N.L.R.B. 677 (N.L.R.B. 1966)

THE SINGER COMPANY, WOOD PRODUCTS DIVISION 677
4. We find that the following employees of the Employer, as stip-
ulated by the parties, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9 (b) of the
Act :
All employees employed by the Employer at its 3617 Joppa Road,
Baltimore, Maryland, operation, but excluding all office clerical
employees, professional employees, salesmen, guards, casual and
temporary employees, and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.5]
5 An election eligibility list, containing the names and addresses of all the eligible voters,
must be filed by the Employer with the Regional Director for Region 5 within 7 days after
the date of this Decision and Direction of Election . The Regional Director shall make
the list available to all parties to the election . No extension of time to file this list shall
be granted by the Regional Director except in extraordinary circumstances. Failure to
comply with this requirement shall be grounds for setting aside the election whenever
proper objections are filed . Excelsior Underwear Inc., 156 NLRB 1236.
The Singer Company, Wood Products Division and United
Brotherhood of Carpenters and Joiners of America , AFL-CIO
and Local Union 2705 , United Brotherhood of Carpenters and
Joiners of America, AFL-CIO. Cases Nos. 06-CA-1922 and
26-CA-2042. May 5, 1966
DECISION AND ORDER
On January 11, 1966, Trial Examiner Laurence A. Knapp issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations Act, as amended,
and recommending that it cease and desist therefrom and take certain
affirmative action as set forth in the attached Trial Examiner's Deci-
sion . He also found that the Respondent had not engaged in other
unfair labor practices alleged in the complaint and recommended
dismissal of those allegations. Thereafter, Respondent and the Gen-
eral Counsel filed exceptions to the Trial Examiner's Decision and
supporting briefs.
Pursuant to the provisions of Section 3(b) of the Act, as amended,
the National Labor Relations Board has delegated its powers in con-
nection with this case to a three-member panel [Members Fanning,
Brown, and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
158 NLRB No. 72.
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Examiner's Decision and the entire record in this case, including the
exceptions and briefs, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
In January 1964 the International union, United Brotherhood of Carpenters and
Joiners, AFL-CIO, hereinafter called the Union, initiated a campaign to organize
the production employees of Respondent's Trumann, Arkansas, plant With Respond-
ent admittedly and.openly manifesting its opposition in principle to the unionization
of its employees, the Union pressed its drive actively until August 1964, when it lost
an election among Respondent's employees. Since that time, the scene has shifted
to one of scrutinizing Respondent's conduct responsive to the Union's campaign, in
prior and the instant proceedings under the National Labor Relations Act, as
amended.
Prior Proceedings
In a prior unfair labor practice proceeding emanating from the Union's campaign,,
the National Labor Relations Board has found that Respondent overstepped the
Act's marks by engaging, while the Union's campaign 'was proceeding , in a series
of violations of the Act.1 The violations so found include interrogating employees
about the union campaign and their reaction to it; criticizing employees and threat-
ening them with reprisals for supporting that campaign; applying a company rule
so as to prohibit union activity of its employees on their free (nonworking) time;
and discharging four employees, under cover of pretext, because of their activities
in support of the Union. The violations so found occurred over the period January-
May 1964.
The Instant Proceeding
This case presents , broadly stated, the question whether Respondent engaged in
further such violations in opposition to the Union in the months of June-November
1964. In particular, the substantive questions are whether, in August 1964, Respond-
ent discriminatorily discharged a leader among the employees supporting the Union's
campaign, one David W. Jones, and whether Respondent engaged in other acts of
interrogation and threats in regard to the union activities or desires of its employ-
ees. In view of certain procedural objections of Respondent, some more detailed
statement of the proceedings in this case is necessary.
1 See The Singer Company,, Wood Product8 Division, 153 NLRB 922 Upon a series
of union charges in that case , a final consolidated complaint issued on July 9 , 1964, and
the case was heard on July 27-29 by Trial Examiner Mullin. On July 28, 1964, while
that hearing was in progress , the Union filed a petition under the representation pro-
visions of the Act for certification as the bargaining representative of Respondent's em-
ployees. Respondent and the Union thereupon entered into a stipulation for a consent
election, which was held on August 13, 1964. With some 1,115 employees voting, the
Union lost the election by about 2 to 1, with the challenged ballots insufficient to affect
the outcome. Upon objections filed by the Union, the Board thereafter, in an unreported
decision dated April 29, 1965, set aside the election on the basis of conduct of Respondent
which the Board concluded had interfered with employee's free choice in the election and
directed that a second election be held at such time as the Regional Director should deem,
appropriate. Apparently no such second election has as yet been held, no doubt due to
the pendency of the present and the prior unfair labor practice proceedings
None of the conduct of Respondent held objectionable by the Board in the election pro-
ceeding was alleged in the complaint in the instant, or the prior, unfair labor practice case
to constitute unfair labor practices violative of the Act Accordingly, I refer to the
representation proceeding, not because I attach to the Board's conclusions therein relative
to Respondent's conduct affecting the election any evidentiary significance adverse to
Respondent concerning the issues before me , but for the sole purpose of rounding out the
full picture of prior proceedings involving Respondent and the Union stemming from the
Union's 1964 organizational campaign.
1
THE SINGER COMPANY, WOOD PRODUCTS DIVISION 679
On September 2, 1964, the Union filed an initial charge alleging that in July and
August 1964, respectively, Respondent had terminated the employment of two named
employees-William C. Watkins and David W. Jones-because of their membership
and activities in the Union, and that by these "and by other acts and conduct"
Respondent had "interfered with, restrained, and coerced its employees in the exer-
cise of the rights guaranteed in Section 7 of the Act." This charge the Regional
Director denominated Case No. 26-CA-1922. On September 28, 1964, the Union
amended this charge so as to eliminate the count with respect to the discharge of
Watkins.2
On February 4, 1965, the Regional Director issued a complaint in Case No.
26-CA-1922, alleging the discriminatory discharge of Jones in violation of Section
8(a)(3) of the Act, and two distinct items of conduct alleged to violate Section
8(a) (1). Thereafter, on February 25, 1965, the Local of the Union named in the
caption filed a charge alleging merely that on or about August 27, 1964, and there-
after Respondent had "interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act." This charge was denomi-
nated Case No. 26-CA-2042. Subsequently, on April 2, 1965, the Regional Direc-
tor issued an order consolidaitng the two cases and an "Amended and Consolidated
Complaint." The net effect of the consolidated complaint is that it incorporates the
charges of violation alleged in the initial complaint, and adds some half-dozen addi-
tional items of conduct alleged to violate Section 8 (a) (1) of the Act.
Passing over for the moment objections in bar which Respondent raises to all
8(a) (1) violations alleged in the consolidated complaint, Respondent answered both
the initial and the consolidated complaints' admitting the jurisdictional allegations
but denying its commission' of- any unfair, labor practcies. In this, posture of things,
this case was heard before Trial Examiner Laurence A. Knapp 'at Jonesboro, Arkan-
sas, on April 14, 15, 27, and 28, 1965, and I have considered the briefs filed (by
counsel for the General Counsel and for Respondent). Upon the entire record of
the case, including my observation of the demeanor of the witnesses, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT; THE LABOR ORGANIZATION INVOLVED
The consolidated complaint alleges, Respondent admits, and I find that Respond-
ent is engaged at a plant at Trumann, Arkansas, in the manufacture of sewing
machine cabinets and other wood products, and that during the 12 months preced-
ing issuance of the complaint Respondent shipped from its Trumann plant directly
to points outside the State of Arkansas products valued in excess of $50,000.
Respondent is engaged in commerce and in operations affecting commerce within
the meaning of Section 2 (6) and (7) of the Act.
The Charging Parties, United Brotherhood of Carpenters and Joiners of America,
AFL-CIO, an international union, and Local Union 2705 of the said International'
Union, is each a labor organization within the meaning of Section 2(5) of the Act.
Since nothing in the case turns on any distinction between the two organizations,
they will be referred to herein collectively as the "Union."
II. QUESTIONS PRESENTED
The substantive unfair labor practices presented are whether Respondent (1)
discharged one David W. Jones because of his union membership and activities,
and (2) engaged in certain interrogations, threats, and other conduct violative of
Section 8 (a) (1) of the Act.
2 At the outset of the hearing, counsel for Respondent offered in evidence a letter dated
October 15, 1964, from the Regional Director to the Union, to Respondent, and to their
counsel or representatives , refusing to issue a complaint upon this charge as amended,
with particular reference to the discharge of Jones. Presumably because the initial and
amended complaints later issued by the Regional Director allege the discriminatory dis-
charge of Jones, counsel for Respondent contended that the letter was "germane" to show
how the case had "been handled." Counsel did not, however , move to dismiss the com-
plaint or advance any other plea in bar on the basis of the letter , either at the time the
letter was offered or later. I declined to receive the letter in evidence , ruling that it was
immaterial to the issues,of the case as posed by the complaint but directed that the letter
be placed in a "Rejected Exhibits" file should counsel press any further contentions In this
regard. No such contentions are made In counsel 's brief to me.
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In addition, Respondent raises objections of a twofold character to the inclusion
in the consolidated complaint of all its unfair labor practice allegations other than
those pertaining to the discharge of Jones (that is, all allegations of unlawful inter-
rogation and other independent violations of Section 8(a)(1)). With these latter
objections I will first deal since they represent, in substance, pleas in bar to this
entire segment of the issues posed by the complaint.
Respondent's Objections in Bar
As has been seen , the Union filed on September 2 a charge which, after referring
to the discharges, charged Respondent with further interference, restraint, and coer-
cion through unspecified "other acts and conduct." Similarly, the Union's second
charge of February 25, 1965, asserted merely, in the terms of Section 8(a)(1) of
the statute, that Respondent had "interfered with, restrained and coerced its employ-
ees" without further specification. At the hearing, by motions to dismiss which I
denied, Respondent first challenged the sufficiency of the charges filed to support
any of the specific items of 8(a)(1) conduct alleged in the complaint, contending, in
effect, that a charge lacking particulars descriptive of the alleged violation or viola-
tions is "no charge" at all. In short, the essence of Respondent's contention is that
neither the catchall phrase "other acts and conduct" used in the first charge, or the
bare recitation of statutory terms in the second one, is sufficient to afford the Board
jurisdiction to issue a complaint under the terms of Section 10(b) of the Act, which
provide that the Board may issue a complaint "Whenever it is charged that any per-
son has engaged ... in,any such unfair labor practice .... 1133
Secondly, Respondent took the position that the initial complaint of February 4,
1965, must in any event be deemed to encompass all 8(a)(1) violations compre-
hended or intended to be comprehended by the charge which preceded that com-
plaint in, time (that of September 2, as amended September 28, 1964). Combining
this position with its theory that the charge of February 25, 1965, must be regarded
as no charge at all, Respondent contended at the hearing that those 8(a)(1) viola-
tions included in the consolidated (but not in the original) complaint which occurred
more than 6 months prior to (apparently) the date of issuance of the consolidated
complaint are barred by the 6 months' statute of limitation contained in Section
10(b).4
While in its posthearing brief submitted to me, Respondent deals only with the
6 months' limitation question, I deal with both questions because they were jointly
subsumed in Respondent's motions and Respondent took general exceptions to my
denial of them.
With respect to Respondent's first contention, certain pertinent principles are set-
tled. Among these are the propositions that the function of a charge is merely to
s In apparent reference only to the asserted insufficiency of the second charge to support
specific 8 ( a) (1) violations first alleged in the consolidated complaint , Respondent adverted
at the hearing and refers in its brief to the provisions of Section 102.12 of the Board's
Rules and Regulations which, in dealing with the "Contents" of a charge filed with it, state
that the charge shall contain "A clear and concise statement of the facts constituting the
alleged unfair labor practices affecting commerce ." Counsel also asserted as a fact at
the hearing that in the Regional Director 's investigations preceding issuance of the con-
solidated complaint no investigation was made ( meaning, apparently , as counsel also
stated , that no notice was given to Respondent ) of one or another of the unfair labor
practices first alleged in the consolidated complaint.
The Board's rules relative to the contents of a charge are primarily for the benefit of
the Board-to aid it in the performance of its administrative ' and investigative functions
at the "charge" stage-and cannot be interpreted as imposing the equivalent of statutory
jurisdictional limitations . Con8umers Power Company v. N.L.R B., 113 F. 2d 38, 43
(C.A. 6). The charge called for by the Act merely sets in motion the Board 's processes;
it is the Board 's complaint , if one issues, which poses the issues of which Respondent is
entitled to fair notice and opportunity to defend. Ibid.
Whether or not, in the prolonged period of investigation which preceded issuance of the
final consolidated complaint , Respondent was or was not ( and, if not , should have been)
given an opportunity to offer its explanations concerning items freshly included in the
later consolidated complaint represent questions of fact and policy exclusively of an
administrative character not cognizable in unfair labor practice litigation . The only issue
before me in this regard is one of power to issue the complaint containing the alleged
unfair labor practices in question.
4 This provision bars issuance of a complaint based on any unfair labor practice occurring
more than 6 months prior to the filing of "the charge."
THE SINGER COMPANY, WOOD PRODUCTS DIVISION 681
set in motion the Board's machinery of inquiry; that a charge is not a pleading and
hence is not to be measured by the standards applicable to a pleading in a private
lawsuit and, in particular, need not set up facts showing an unfair labor practice;
that there is no justification for confining the Board's investigation following the
charge to its precise particularizations; and that, accordingly, the Board's subse-
quent complaint, if one issues, is not to be held restricted merely to reflecting what-
ever unfair labor practices may be considered to be presented in the charge. N.L.R.B.
v. Fant Milling Company, 360 U.S. 301, 305-308, and cases there cited. On this
line of basic reasoning, the Court concluded in Fant Milling, as it had earlier in
N.L.R.B. v. National Licorice Company, 309 U.S. 350, that a complaint of the Board
could include an unfair labor practice occurring subsequent to the charge and not
made the subject of any amended charge. It is true that the Court's holdings in
both cases were predicated upon a determination that the postcharge conduct was
related to the conduct asserted in the charge, and that in National Licorice the Court
declined to consider a question not then before it, namely, to what extent, if any,
the statutory requirement of a charge precludes the Board from including in a com-
plaint "matters existing when the charge was filed, but not included in it." But the
fuller reasoning which the Court later elaborated in the Fant Milling opinion con-
cerning the purpose and nature of a charge, and concerning the consequent freedom
of the Board to make a full investigation and to frame its complaint without being
limited to the matters referred to in the charge, argues with equal, if not greater,
force to support the Board's authority to include in its complaint precharge matters
not specified in but related to those set up in the charge. In any event, this is the
settled position of the Board, and that position has been consistently approved by the
courts of appeals in a multitude of decisions, both antedating and postdating Fant
Milling, too numerous for complete citation. See N.L.R.B. v. Kobritz, Samuel l.,
d/b/a Star Beef Company, 193 F. 2d 8, 15-16 (C.A. 1); N.L.R.B. v. Epstein, Harry,
d/b/a Top Mode Manufacturing Co., 203 F. 482, 485 (C.A. 3), cert. denied 347
U.S. 912; N.L.R.B. v. Raymond Pearson, Inc., 243 F. 2d 456, 458-459 (C.A. 5);
N.L.R.B. v. Dal-Tex Optical Co., Inc., 310 F. 2d 58, 61-62 (C.A. 5); N.L.R.B. v.
Reliance Steel Products Company, 322 F. 2d 49, 53-54 (C.A. 5); Consumers Power
Co. v. N.L.R.B., 113 F. 2d 38, 42-43 (C.A. 6); N.L.R.B. v. Kohler Company, 220
F. 2d 3, 5-8 (C.A. 7); Kansas Milling Company v. N.L.R.B., 185 F. 2d 413, 415-
416 (C.A. 10). And in various of the decisions just cited, the courts have held that
catchall phrases commonly included in charges, such as "these and other acts," suf-
fice to warrant including in the complaint conduct not specified in but related to the
conduct referred in the preceding charge or to the general controversy giving rise to
it. See for example the Kohler, Raymond Pearson, Dal-Tex Optical, Reliance Steel,
and Texas Industries decisions of the courts, and the Board's decisions in Texas
Industries, Inc., et al., 139 NLRB 365, 366-367, and in Efco Corporation, 150
NLRB 1505.5
The only question open in such a case as this, therefore, is whether the conduct
in the complaint may be considered related to that set up in the charge. In the
National Licorice case , the Court referred to conduct "in pursuance of the same
objects" as "related," and this concept is essentially that connoted by references of
the courts of appeals to conduct springing from the underlying or surrounding situa-
tion or controversy which gave rise to the charge. See the Kohler case, supra, at 7,
Certainly that was the case here since it is beyond question that all issues involved
in this proceeding (and the prior ones ) arose from the Union's organizational drive
of 1964 and Respondent's reaction to it. In such circumstances, charges referring
to discriminatory dischnrges,•violative of Section 8(a)(3), suffice to support unspeci-
fied acts of interrogation or threat violative of Section 8(a)(1) and vice versa, as
specifically held in the Kohler and other courts of appeals and Board decisions.6
a In the light of the Supreme Court's reasoning in the Pant Milling case , and the results
reached by the courts of appeals , the absence of such a catchall phrase from a charge
would seem no impediment to the Board 's power to include in a complaint any conduct of
the employer having the required relation to the matters referred to in the charge, and
whether occurring before or after the charge, subject only to the 6 months' limitation
provision as to precharge conduct.
6 In its brief , Respondent cites four comparatively early decisions of the Fourth , Fifth,
and Seventh Circuit Courts of Appeals, in each of which it was held that the Board
could not include in a complaint conduct which, in the Court's view , differed from that
comprehended by the charge. Reading these decisions in the light of the later Pant
Milling decision and, indeed, later decisions of most of the same courts , it is evident that
they were based on improper and unduly restrictive concepts concerning the function and
required contents of a charge , and cannot be regarded as carrying any persuasive authority.
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It follows that the Union's charge of September 2, 1964, as filed or as amended, was
sufficient to authorize inclusion in the consolidated complaint of all its 8(a)(1)
allegations, whether the violations so alleged occurred prior or subsequent to that
charge.?
In the circumstances, there is no merit in Respondent's contention based on the
6 months' limitation provision of Section 10(b). As Respondent recognizes in its
brief, the purpose of this provision is merely to bar stale claims. Local Lodge 1424,
International Association of Machinists, etc., v. N.L.R.B., 362 US. 411. Those
items of alleged coercion preceding the September 2 charge all occurred within 6
months of that charge's date; and those postdating that charge obviously are not
subject to the limitations provision (as is implicit in the Fant Milling decision and
as the courts of appeals held in the Kohler and other cases previously cited).8
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The discharge of David W. Jones
Respondent has a rule of long standing under which it automatically discharges
any employee with respect to whom Respondent is served with a total of three writs
of garnishment within a period of a year. On July 9, 1964, Respondent was served
at Respondent's plant with two such writs, one incidental to a suit by a local physi-
cian, Dr. Floyd A. Smith, and the second incidental to a suit by Smith Hospital, Inc.,
an incorporated hospital controlled by Dr. Smith, for the collection of amounts
owed by Jones to the doctor and the hospital, respectively .9 On August 25, 1964,
Respondent was served at Respondent's plant with a similar writ of garnishment
.,incidental to a debt-collection suit instituted the day before by a local furniture
dealer, Paul Dudley. Since this was 2 days prior to the date set for the 'election
among Respondent 's employees , Respondent took no action until August 28, the day
after the election, when it discharged Jones purportedly on the basis of the three-
garnishment rule.
Among Respondent's employees, Jones occupied a preeminent position as a worker
in and supporter of the Union's organizing drive, as Respondent knew and freely
conceded at the hearing. He was a member of the employee organizing committee,
engaged in extensive solicitation among the employees , became president of the local
which the Union brought into the picture, and was a union observer at the election.
The General Counsel's ultimate theory is that, in instituting their respective suits
and accompanying garnishment proceedings against Jones, Dr. Smith and Dudley
each acted as an "agent" of Respondent . Respondent denies the existence of any
agency and asserts that Jones' discharge resulted exclusively from a routine applica-
tion of Respondent 's garnishment rule.
In approaching an understanding of the General Counsel's theory of agency, it is
important to note that, at the hearing, counsel for the General Counsel conceded
that they possessed no evidence that either Dr. Smith or Dudley instituted his respec-
7 Accordingly , it unnecessary to consider the sufficiency in this regard of the second
charge filed on February 25, 1965. While the point Is not material , It might be observed,
however, that in the light of the principles expressed in Fant Milling, the complaints in
this case could, it would seem , be considered adequately supported by the charges which
led to the first unfair labor practice proceeding , since both proceedings arose in the same
general setting and involve similar conduct attributed to Respondent.
a On the theory that a complaint once issued merges into it all prior conduct which
might be considered embraced by the charge , Respondent also contends in effect that items
alleged in the consolidated complaint but not in the initial one cannot be considered
supported by the September 2 charge. The contention is devoid of merit. It rests
essentially on Respondent's mistaken notion of a charge as a pleading , and flies In the
face of the Board's express power to issue amended complaints.
9 A few days later, Respondent 's personnel director , Cooper, called Jones to an Inter-
view, In which Cooper reminded Jones of the garnishment rule and called to Jones' at-
tention a letter Respondent had received from a well known mail-order house with respect
to a debt purportedly owed by Jones to this company. In their talk of some 5-10 minutes,
which extended beyond the instant writs into the broader implications of the matter of
debts, Jones acknowledged his familiarity with the garnishment rule and indicated his
Intention to deal with his debt situation in a way sufficient to avoid further garnishment
proceedings . Jones made no reference to an overdue account with a local furniture
retailer , of which Cooper had no knowledge at the time.
THE SINGER COMPANY, WOOD PRODUCTS DIVISION 683
,tive suits 10 as a consequence of any plan, arrangement, or understanding between
Ahem and Respondent (and there is no such evidence); and disclaimed any attempt
to establish agency in the "classical" sense,' meaning, I have understood, that they
would not attempt to establish that either Dr. Smith or Dudley occupied any posi-
tion or relationship with Respondent as a result of which they were persons under
Respondent's control or direction and thus persons for whose acts Respondent may
be held responsible under accepted principles of the law of agency.il
Rather, the General Counsel advances a theory of agency based essentially on the
following mixture of fact and assertion, viz: Respondent is by far the single largest
industrial enterprise and the single largest employer in the small community of
Trumann, so that the community is substantially dependent on Respondent's opera-
tions; 12 beginning in January but concentrated mainly in June, July, and August
Respondent circulated to local business and professional men copies of some 26 let-
,ters addressed by Respondent to its employees during the Union's campaign, mani-
festing Respondent's strong opposition to unions in general and this Union in par-
ticular and the consequent prejudice to the welfare of Respondent and its employees
wnich Respondent envisaged if the Union's drive were successful; one of these letters
referred to garnishments as one of various grounds for which employees could be
discharged and there were passages in others which should be interpreted as con-
stituting indirect appeals by Respondent to the local businessmen to aid it in defeat-
ing the Union; and Dr. Smith and Dudley were among the local business and
professional people who received these letters. In this context, counsel for the
General Counsel first argues that with the Trumann community substantially de-
pendent, economically, upon Respondent, Respondent must be said "to control, at
least in great part, among other things, the local business and professional men"
because their welfare is related "to the prosperity of" Respondent. They then con-
tend that Dr. Smith and Dudley are to be deemed chargeable with knowledge, from
Respondents letters primarily, of Respondent's concept of the Union as a threat to
the community and of Respondent's garnishment rule. Dr. Smith and Dudley must
therefore, it is argued, have been motivated by Respondent's letters to institute their
respective suits in order to make it possible for Respondent to discharge Jones, and,
being under Respondent's control on the economic theory previously described, they
were "agents" of Respondent for whose actions Respondent is responsible. As their
legal precedents, counsel for the General Counsel apparently rely primarily on two
Board decisions, Bibb Manufacturing Company, 82 NLRB 338, and The Russell
Manufacturing Co., et al., 82 NLRB 1081 (each reversed in this regard by the Court
of Appeals for the Fifth Circuit).
Turning to a consideration of the various components of this chain of argumenta-
tion, it is obvious that its keystone is the notion that Respondent's position as the
outstanding employer and a principal contributor to the livelihood of the community
"I refer to both Dr. Smith's personal suit and that of the hospital as his.
U The evidence establishes and I find that Dr. Smith is not an officer or employee of
'Respondent, but provides medical services as does the hospital to Respondent under medi-
cal retainer arrangements devoid of agency characteristics. In these circumstances, the
continued references to Dr. Smith as the "company doctor" in the brief of counsel for
the General Counsel are rather misleading.
13 The principal evidence relevant In this regard is that in 1960, the town of Trumann
had a population of about 4,500 and an available labor force of about 1,830 persons above
the age of 14 ; its present population Is about 5,500, at the time of the hearing Respond-
ent had about 1,700 employees, while the only other significant industrial concern In
Trumann employed about 300 workers, as of about 1962, about 45 percent of Respondent's
employees lived in Trumann or within a mile of its limits, Respondent's weekly payroll
at hearing time was about $100,000 ; and in 1964 Respondent paid in taxes to the city
some $55,000, constituting, as a rough guess by Respondent's manager, about 40-45 per-
cent of the city's corresponding tax revenue.
In contrast to the fact situations presented in such cases as the Bibb Manufacturing
and Russell Manufacturing ones cited by counsel for the General Counsel, this evidence
falls far short of that necessary to establish that Trumann may be considered a so-called
company town essentially dominated or controlled by Respondent. Respondent's real
property is limited to its plant premises and certain adjacent land ; it neither owns nor
provides any public services ; it does not operate or control other local commercial, finan-
cial, or service enterprises ; and none of its officers or employees are town officials More-
over, Trumann Is located In a productive agricultural area from which and from other
sources than Respondent must come a large portion of the income of local business and
professional men.
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Trumann serves, by itself, to place all local business and professional men in
Respondent's thrall. Such a proposition, reminiscent of the days of feudalism but
with the fundamental characteristics of feudal relationships missing, is one from
which, viewed merely in the light of commonsense, fairminded thinkers will recoil.
For there is no basis' in reason to suppose that the business and professional men of
a locality in which there is a leading employer would, merely for that reason, aban-
don all individuality of viewpoint and freedom of choice and action and render
themselves up to such an employer as the willing and unwavering adherents and
instruments of whatever viewpoints or policies he might espouse. Viewing the law
of agency in its negative consequences, it is precisely in order that liability will not
be imputed to one for the acts of another on such loose and unreasonable bases as
these that the principles of agency developed at the common law and, as such, are
binding in the Board's judicial forum as in others.13
Under fundamental principles, an agency relationship is a creature of mutual
consent, of mutual agreement, express or implied, that one person is thereby author-
ized to act on behalf and under the control of another. It is totally irrelevant under
these principles that Respondent is the principal employing industry in the Trumann
community. Absent evidence of a consensual arrangement between the two local
men and Respondent, the two men were not Respondent's representatives "under
the ordinary law" of agency which the Board must look to in matters of this char-
acter, at least since the 1947 amendments to the Act. Although the Bibb Manufac-
turing case relied upon by counsel for the General Counsel was decided prior to
those amendments, on close analysis it probably is not to the contrary. For in
holding that local police officers carried on surveillance of union activities in that
case at the instigation, or "behest" (command or mandate) of the employer, the
Board relied on circumstances showing both (1) that the town's officers, public
services, and the real property it encompassed were so fully in the employer's hands
as make the town, in effect, the employer's adjunct; and (2) that in some instances
the police and a company official carried on the surveillance in concert. In these
circumstances, the Board in effect found that the police officers were, in reality,
agents in'the servant category and, moreover, that they were agents as well by con-
sent or agreement (i.e., agents in the category of independent contractors). None
of the other Board decisions cited by counsel for the General Counsel can possibly
yield any support to the proposition that "control" (in itself but one aspect of an
"agency" relationship) over local officials or businessmen is a conclusion which may,
as a matter of law, be drawn merely from an employer's position as the principal
employing industry in the locality 14
Moreover, the case cited by counsel for the General Counsel are all the more
irrelevant because in those cases the acts committed by the local officials or towns-
people were overt acts of antiunion coercion, conduct which on its face violated the
Act if chargeable to the employer. Here, however, there is nothing inherently anti-
union in the suits which, sustained by the local court, must be regarded as meritori-
ous respecting the debt and related questions of liability and garnishability at issue.
Counsel for the General Counsel nevertheless points to circumstances which, in
v International Longshoremen's and Warehousemen's Union C.I.O. (Sunset Line and
Twine Company), 79 NLRB 1487, 1507-15; International Ladies' Garment Workers
Union v. N.L.R.B., 237 F. 2d 545, 551 (C.A.D C.).
I' In his brief , counsel for the General Counsel refers to a passage in the Trial Exam-
iner's Report in The Russell Manufacturing Co. Inc., 82 NLRB 1081 , 1099-1100, where
the data descriptive of the employer's dominant role in the community is set forth. But
the holding of the Board (and of the Trial Examiner) that two local police officers and
a townsman were agents of the employer ( reversed in this respect , 187 F. 2d 296 (C.A. 5)),
was rested , not in this ground , but on other evidence that the three had, in fact, been
authorized by the employer to carry on their antiunion activities. Findings that there
was such authorization, in fact, were likewise the basis for the Board's agency conclusions
in the other Board decisions which counsel cites, namely, Henry Mayer, an individual,
d/b/a Cherokee Hosiery Mills, 93 NLRB 590 ( reversed in this respect, 196 F. 2d 286
(C.A. 5) ), and Mid-South Manufacturing Company, Inc., 120 NLRB 230. See also N.L.R.B.
v. Byrds Manufacturing Corporation, 324 F. 2d 329, 332 (C.A. 8) ; and The Colson Corpo-
ration, 148 NLRB 827, enfd. 347 F. 2d 128 (C.A. 8), cert. denied 382 U.S. 904. Counsel's
citation of passages in the Trial Examiner 's Report in Morehead City Garment Company,
Inc., 94 NLRB 245, is apparently the result of oversight since in that case the Board
specifically held that the employer could not be held responsible for the antiunion activities
of local businessmen and, in doing so, explicitly disavowed the very passages counsel
refers to.
THE SINGER COMPANY, WOOD PRODUCTS DIVISION 685
his view, demonstrate (1) the antiunion motivation of Dr. Smith and Dudley, and
(2) their having acted at Respondent's request or instigation. It is true, on undis-
puted evidence, that on various occasions during the organizing campaign period
Dr. Smith vigorously voiced his antiunion sentiments to some of Respondent's
employees, including dischargee Jones, although there is no such evidence at all in
the case of Dudley.15 But either was entitled to entertain and express such senti-
ments. Furthermore, as a matter of law, each could have involved Jones in the
garnishments, with knowledge of Respondent's garnishment rule and in the hope
that Jones would in consequence be discharged (although no such findings are war-
ranted on this record), so long as Respondent was not, as the record requires me to
find, a party to any such aim or scheme.16
Nor is there any record basis for finding that Respondent issued a call to the
local business and professional men to institute such suits to the end of facilitating
Respondent's discharge of union leaders, or for finding that either Dr. Smith or
Dudley were aware of the passages in Respondent's employee letters which counsel
for the General Counsel asserts contained such a call. As previously stated, Respond-
ent's letters are some 26 in number. They extend, in all, over some 600 pages, with
additional reading matter in the form of attachments (published material of various
kinds). Assuming, although the record does not permit such a finding, that Dr.
'Smith and Dudley read each and every one, there is no reason to suppose that they
would have had reason to regard the letters, or some of them, as representing requests
that they undertake debt-collection suits against Jones, or anyone similarly situated,
to facilitate his discharge by Respondent. The letters are not initially addressed to
the local businessmen at all, but to Respondent's employees and what they contain
is the usual set of arguments and claims which employers propagandize in oral and
written communications to employees in the midst of a union's organizing campaign,
i.e , the employment stability, growth, and benefits allegedly provided by Respond-
ent without a union ; the alleged grandiose and unreliable claims of union organizers
during such campaigns, and Respondent's attempted analysis of some such claims
allegedly advanced by this Union; the asserted dangers union representation pre-
sents by way of alleged disastrous strikes and resulting closed plants; the asserted
malfeasances of some union leaders in respect of union funds and otherwise; the lid
imposed on Respondent's cost and benefit levels by the necessity to meet competition;
etc., etc. The covering letters of transmittal to the local men, signed by the plant
manager, carry no special messages to or for them but merely state, with unimpor-
tant and minor exceptions, that "I am sure you, as a businessman in Trumann, will
be interested in the attached letter we have just sent to our employees." And the
letters constituted Respondent's only mode of communication with the local busi-
nessmen during the campaign; its spokesman, the plant manager, consciously refrained
from discussing the union matter in other forms or forums in the community.
It is true that a (two-page) letter of June 30 refers at its end to Respondent's
endeavor to keep Trumann prosperous and growing and invites "your help" in this
aim, but the subject of the entire letter leading up to this peroration is composed of
Respondent's effort to explain, to its employees, its need to remain competitive in
order that it might continue to provide its already alleged "generous employee bene-
fits." It is also true that another, dated June 11, consisting of three pages, is devoted
to the matter of "job security" and, in particular, to refuting an organizational "trick"
allegedly being used by the Union; i.e., its telling the employees that if it got in the
plant "nobody can be fired." The letter asserts that employees are subject to dis-
,charge both in unionized and nonunion plants, lists some 16 reasons for which
Respondent had recently let employees go (including "repeated garnishments"), and
then deals at length with some employees whose discharges had been or were then
being dealt with by the Regional Director of the Board under charges filed by the
15 Counsel for the'General Counsel also sought to establish a discriminatory motivation
on the part of Dr. Smith against Jones by evidence indicating that he had not instituted
debt proceedings against other debtors similarly situated. Assuming this evidence shows
disparate treatment, it does not show and there is no other evidence that there were not
reasons of a nonunion nature which led the doctor to stay his band in other cases, and
various such reasons could exist
As to Dudley, the evidence is that he had instituted similar suits against others after
the Jones suit.
16In addition to the concessions of counsel for the General Counsel previously adverted
to, there is no evidence that Respondent had any advance knowledge of either suit. There
is also no evidence that there was any kind of consultation or collaboration between Dr.
Smith and Dudley relative to their respective suits.
686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union . 17 Counsel for the General Counsel endeavors to characterize such refer--
ences as the two mentioned as a call -to-arms by Respondent which Dr. Smith and
Dudley would recognize as signals for them to ferret out from among their customers
or clients employees prominent in the Union whose wages they might garnish in
order to enable Respondent to discharge them. But passages such as these can be
so interpreted only by engaging in a distortion of rather magnificent proportions.
Accordingly , I find and conclude that the letters provide no satisfactory basis for the
`inference of invitation on Respondent 's part which counsel for the General Counsel
urges be drawn from them.
But if I am in error in my construction of the letters in this crucial regard, there
is no evidence warranting a finding that either Dr. Smith or Dudley read all or any
of them. Indeed, the question as to whether either received any or all of the letters
was the subject of prolonged contest at the hearing and one not rendered any easier
to decide when Dr. Smith and Dudley, both called to the stand by counsel for the
General Counsel , were not examined on this question by any counsel . 18 As a result,
the body of evidence to consider is incomplete and far from definitive but on such
as it is, I find, albeit with some hesitance , that Dr. Smith and Dudley in fact received
Respondent 's letters.19 But assuming that Dr. Smith and Dudley did receive the
letters, there is no evidence showing or warranting an inference that they read each
and every one , or the precise ones counsel for the General Counsel emphasizes,
and these evidentiary gaps alone are fatal to a prime premise or essential element in
the General Counsel 's otherwise tenuous theory of appeal and response.
In conclusion , on the evidence before me , I find as facts that neither Dr Smith
nor Dudley instituted their respective suits and garnishment proceedings against Jones
for the purpose of bringing about or facilitating his discharge by Respondent under
Respondent 's garnishment rule. I further find as a fact that neither acted in conse-
quence of any arrangement or understanding with, or authorization or ratification
by, Respondent ; accordingly , I conclude as a matter of law that neither was Respond-
ent's agent . With these matters disposed of, the evidence compels me to find as a
fact , as I do, that Respondent discharged Jones on the basis of the garnishment rule
and not because of Jones' union membership , activities , or sympathies Cf. Pacific
Electricord Company, 153 NLRB 512.
27 The corresponding letter of transmittal to the businessmen is in the usual form and
makes no reference to any of the discharge bases mentioned in the employee letter
11 Counsel for the General Counsel declined to question either man on the question
whether he had received Respondent's letters, on the ground that they did not wish to be
bound by the answers of "hostile" witnesses , a position maintained after I noted that
whether these men could be examined as hostile witnesses would depend on how they
reacted during their examination. And even if either had testified that he had not
received the letters ( as counsel for the General Counsel apparently thought , but without
explanation , that they would ), it does not follow, necessarily and absolutely , that the
General Counsel would have been bound by their testimony , or that, in the light of all
the evidence or circumstances open to me to consider , I might not have been authorized
(see N.L.R . B. v. Walton Manufacturing Company & Loganville Pants Co. , 369 U S 404,
408), to find the truth to be contrary to their testimony . But while counsel for the Gen-
eral Counsel was not obliged to question either gentleman on this point . neither was
counsel for Respondent. (Whether either was an agent of Respondent begged a primary
issue in the case. I determine that issue adversely to the General Counsel , as later seen ;
hence, no inference adverse to Respondent may be drawn from its failure to examine them
in this respect .) The result is that whether they received the letters must be determined
on the other pertinent evidence
"The evidence is that Respondent maintains a set of IBM cards containing the names
and addresses of persons and firms to whom it distributes its monthly house-organ called
the "Cabinetmaker ." These addressees are of various categories , located within and
without the State of Arkansas , and include some local business and professional people.
Early in the game , Crozier , the plant manager , instructed a subordinate official named
Cooper to see that the letters to the employees were also sent to local business and pro-
fessional people and Cooper gave similar instructions to the employees in Respondent's
IBM or mailing section Neither Crozier nor Cooper was able to say of their personal
knowledge that Dr. Smith or Dudley was among the local men to whom the subordinates
sent the letters, and no list of such addressees was prepared , or at least maintained, by
Respondent . All that the evidence , and a corresponding admission of Respondent ' s coun-
sel, establishes beyond peradventure is, as Respondent stresses, that the names of Dr Smith
and Dudley are on the basis IBM cards used to disseminate the "Cabinetmaker " But I
consider it reasonable to infer that the mailing staff understood and carried out their
instructions , and on this basis I find that the letters were sent to Dr . Smith and to Dudley.
THE SINGER COMPANY, WOOD PRODUCTS DIVISION 687
B. The alleged acts of coercion
I turn now to the alleged independent violations of Section 8(a)(1) charged in
the complaint.
1. The incidents involving Dr. Smith
Paragraphs 7 and 8 of the complaint charge that, as Respondent's agent, Dr. Smith
engaged in one incident of unlawful interrogation and a second incident of threat
of discharge. The General Counsel offered no evidence that Dr. Smith was Respond-
ent's agent in respect of these incidents, and my findings of fact and conclusions of
law to the contrary pertain, of course, to the issue of the Jones' discharge and the
evidence counsel for the General Counsel alludes to as specifically pertinent to that
issue. But assuming that counsel for the General Counsel means to contend that
on that same evidence Dr. Smith was endowed with the authority of a general agent
to commit violations of the Act wholesale on Respondent's behalf, the evidence fails
for some of the reasons underlying my previous findings and conclusions. Hence,
these allegations are without merit and should be dismissed.20
2. The "steward" button incident
From about June 1 or July 1, forward, employee L. B. Jones, like other prounion
employees, wore several buttons while at work. One, about the size of a dime, bore
the legend "Vote Union"; a second, about the size of a quarter, read "Member,
Furniture and Cabinet Workers"; and a third, about the size of a silver dollar, said
"Vote Carpenters, UBC & J." A fourth, size not established, bore the single word
"Steward." About mid-June or mid-July (the testimony is in conflict but the con-
flict is immaterial), Supervisor Hendricks directed (according to Jones) or requested
(according to Hendricks) Jones to remove the "steward" button for the reason that
there was no recognized union in the plant for collective-bargaining purposes so
that the "steward" button had a misleading connotation. Jones removed the button
at the time but resumed wearing it a few days later to Hendricks' knowledge but
without further remonstrance by him or any other representative of Respondent.
At no time did Hendricks raise any objection to Jones' wearing the three other but-
tons. The complaint charges that Hendricks directed Jones to remove the "steward"
button and that this direction constituted unlawful interference, restraint, or coercion
relative to union activities.
In the prior unfair labor practice case, my colleague Mullin held that an identical
incident constituted such proscribed interference, restraint, or coercion, but the
Board reserved decision upon this question despite Republic Aviation Corporation,
51 NLRB 1186, enfd. 142 F. 2d 193 (C.A. 2). There is likewise no occasion to pass
upon this question in this case. If there was a violation here, it was altogether minor
and fleeting and any restraining or coercive effect it may have had was in substance
erased by Respondent's failure again to interpose after Jones resumed wearing the
button a few days later.
Accordingly, I shall recommend that this charge of the complaint be dismissed.
23 To complete the record in the event of error on my part on the agency issue, Dr.
Smith was not interrogated by any counsel concerning and hence did not deny and I find
1. That about July 22, 1964, while conducting preemployment physical examinations of
three men otherwise accepted for employment, Dr. Smith said, "You boys don't like horse
manure , do you , when the three replied in the negative, he then said "then you don't
want to vote the Union in then, do you 9"; and when one of the three said he did not
want any trouble but merely a job, Dr. Smith stated that if he were they he would not
vote for the Union. Charged as interrogation concerning their union "desires " the
evidence reveals instead that though what were in truth merely rhetorical questions
Dr. Smith was expounding his own antiunion views and advice Such statements might
not violate the Act if uttered by an agent of Respondent.
2. Sometime in June 1964, at the hospital, Dr Smith drew dischargee Jones into a
discussion centering around Jones' support of the Union, in the course of which Dr Smith
told Jones that Respondent did not want a union and that the Union might cause Jones
to lose his job. Later in the same conversation, Dr. Smith, after some references back
and forth concerning what Jones owed him, advised Jones to take off his union buttons
and deliver them to one of Respondent's officials, to tell this official that he had done
wrong and would now work against the Union, and, with these steps taken, Dr Smith
said he would guarantee that Jones would not be discharged. Certainly Dr Smith ;s,
remarks on this occasion were inherently coercive had they been spoken with Respond-
ents' authority.
,688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3 Surveillance solicitation by Supervisor Wilkinson
Employee Moody testified, and Supervisor Wilkinson denied, that in the first week
of June 1964, Wilkinson asked him to note and give to Wilkinson the names of any
employees Moody heard talking about the Union On consideration of all the testi-
mony of both witnesses and the contemporaneous unfair labor practices of Respond-
ent as found in the prior case, I credit Moody Accordingly, I find that by Wilkin-
son's importuning Moody to serve as an informer, as charged in paragraph 10 of
the complaint, Respondent engaged in coercive and restraining conduct violative of
Section 8(a) (1) of the Act
4 The alleged interrogations by Bill Gibson, Respondent's employment agent
The General Counsel adduced testimony by
(a) Billy Joe Clem, that during his employment interview about July 21, 1964,
Gibson asked him if he would vote for the Union and Clem replied that he would
not, and that Gibson then asked the same question and was given the same answer
by another but unidentified applicant
(b) Bill O'Brien, that in his employment interview about September 3, 1964,
Gibson asked him if he knew how his Uncle Mervin an employee of Respondent,
felt about the Union and that, after Bill "told him," Gibson asked Bill how he felt
about the Union and Bill replied he would not vote for the Union "either " 21
(c) Donald O'Brien (Bill's brother, interviewed immediately following Bill), that
Gibson asked him how he felt about the Union, and that he replied he would not
vote for it, and that Gibson then said he did not believe Uncec Mervin, or Sam
Chaffin, owner of a large plantation where Donald and his father lived, would want
a union
(d) Doyce Moody, that in his rehire interview about Novembei 30, 1964, Gibson
asked him how he felt about the Union, that he replied that he had worked for a
union and did not care for one," and that thereupon Gibson referred to an "uproar"
over the preceding election of August 27
Gibson flatly contradicted making any of these inquiries and his secretary gave
testimony tending, to a degree, to support his contradictions in the cases of the
O Briens But since the alleged inquiries are in line with Respondent's considerable
volume of antiunion violations found in the prior unfair labor pi actice proceeding,
including unlawful interrogation, and in view of their more or lese contemporaneous
character and the common general background, I find that Gibson made the inquiries
attributed to him in this testimony
The question, then, is whether, as contended by counsel for thi General Counsel
in his brief, Gibson's inquiries violated Section 8(a) (1) of the Act, that is, whether
interrogation of applicants relative to their union sympathies, desires, or inclinations
tends to interfere with, restrain, or coerce them in relation to their exercise of the
rights to self-organization guaranteed in Section 7 of the Act In his brief counsel
for the General Counsel makes no reference to Respondent's unfair labor practices
and corresponding union animus (as primarily established in the prior complaint
case) in arguing, as I interpret his position, that Gibson's inquirie' constituted viola-
tions of Section 8(a) (1) in and of themselves There are, however, decisions in
which the Board has attached important significance to other unfair labor practices
or union animus of the employer in holding that his inquiries concerning union sym-
pathies constituted unlawful restraint or coercion, and these decisions variously
involve actual employees, on the one hand, or applicants on the other But in the
case of applicants, situations might well arise, as may well be true of at least some
of the applicants in this case, where an inference that they were aware of the
employer's other derelictions or animus at the time of their application interviews
would be considerably less warranted than in the case of persons actually employed
when those derelictions or animus were committed or displayed 22 Furthermore,
21 Bill O'Brien did not explain what it was he told Gibson regarding his uncles views,
but I interpret all his testimony to mean that to the knowledge of Gibson and Bill O'Brien
Uncle Mervin was opposed to the Union
0 Respondent s violations found in the preceding case and the one other violation I
have found all preceded the appearance of these applicants for interviews Moody how
ever interviewed in November was previously an employee in the late spring and again
briefly in September 1964, and was the one directly affected by the one other violation
I have found
THE SINGER COMPANY, WOOD PRODUCTS DIVISION 689
it appears to me that an applicant for employment is in a much more delicate and
sensitive position than a worker possessing a job, where inquiries relative to his union
sympathies or interests are concerned. For these reasons, therefore, it seems in
order to deal directly with the question whether Gibson's inquiries at the employment
interviews had a restraining or coercive tendency even if Respondent's other unfair
labor practices and derivative animus are disregarded 23 As I view the matter, this
question must be answered in the affirmative.
An employment interview is not an abstract discussion forum, or an occasion for
chance or casual conversation, but is a session of serious import at which the
employer deals with matters, and propounds corresponding inquiries, designed to
determine the suitability for employment, in the employer's eyes, of the applicant
being interviewed. Hence, an applicant has reason to know that his answers to
questions are meaningful to the employer 24 and, depending upon their nature, may
in greater or lesser but nevertheless in some degree be determinative of the outcome.
For if the subjects inquired about were' matters of indifference to the employer, he
would have no reason to put the questions. . When, therefore, an applicant for
employment is asked how hefeels about a union or whether he would vote for one,
he has ample reason to know from such questioning itself, when no contrary words
or circumstances are said or indicated to him during the interview, that the employer
has a significant aversion to. the employment of prounion applicants; in the circum-
stances, there is no other rational interpretation he can'place upon the employer's
inquiry, as experience prior to and under the Act has amply demonstrated. Accord-
ingly, applicants in the position of the five involved in this case had reason to believe
that their chances of employment would be adversely affected if they were, in fact,
persons who favored self-organization of employees and were to expose themselves
as of this persuasion during the interview. For such fundamental reasons as these,
inquiries of an applicant for employment respecting how he feels about, or whether
he would vote for, a union tend to restrain the applicant, both during the interview
and during his employment if accepted, from the totally free exercise of the self-
organization rights which the Act guarantees to him.
These conclusions are in accord with Blue Flash Express and subsequent delineat-
ing decisions of the Board. Indeed, the test as defined in Blue Flash, and repeatedly
reiterated by the Board since, is the test to be applied here, namely, ". . . whether,
under all the circumstances, the interrogation reasonably tends to restrain or inter-
fere with employees ["applicants" in this case] in the exercise of rights guaranteed
by the Act." In Blue Flash a majority of the Board held that the interrogation there
involved lacked such a tendency primarily because of three circumstances known or
made known, at the time of the interrogation, to the employees interrogated: (1) an
announced purpose of the interrogation held legitimate by the Board-to verify a
union's claim to majority representation; (2) an express disavowal by the employer
of any retaliatory purpose; and (3) the absence of any other indication of antiunion
hostility on the employer's part. Moreover in relation to item (3), the Board in
Blue Flash, as it has done in later decisions, disclaimed holding that interrogation
must be accompanied by other unfair labor practices before it can violate the Act.
Thus Blue Flash implicitly holds that interrogation of employees concerning their
desires relative to self-organization has, standing alone, an interfering, restraining,
and coercive tendency, and this implicit holding rests, as do all Board decisions deal-
ing with the subject, upon the constraint and fear implanted in the minds of employ-
ees or applicants when interrogated respecting their subjective feelings or desires
concerning self-organization. Cf. N.L.R.B. v. Byrds Manufacturing Corporation,
324 F. 2d 329, 332 (C.A. 8); Joy Silk Mills, Inc. v. N.L R.B., 185 F. 2d 732, 743-744
(C.A.D.C.), cert. denied 341 U.S. 914; OfJner Electronics, Inc., supra, 1066; Minne-
sota Mining & Manufacturing Company, 81 NLRB 557, 558. (footnote,4 and cases
there cited), enfd.. 179 F. 2d 323, 326 (C.A. 8). These considerations are circum-
stances actually operative„ and color the questioning' on such subjects, during the
employment interview,or other interrogation, and the only remaining question, under
Blue Flash and all other Board decisions, is whether there are, other and countervail-
ing circumstances likewise present which, as the Board put it as,the Johnnie's Poultry
Co., 146 NLRB 770, serve to "minimize the coercive- impact ,of such employer
interrogation."
43 See the comparable approach of Chairman McCulloch in Offner Electronics, Inc., 134
NLRB 1064, 1065.
24 See the corresponding affirmation of the employer in Efco Corporation, 150 NLRB
1505, footnote 7.
221-731-67-vol. 158-45
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Taking the occasion presented in that case to deal broadly with the subject of
permissible and impermissible interrogation , the Board went on to say (146 NLRB
at774-775):
Despite the inherent danger of coercion therein, the Board and the courts
have held that where an employer has a legitimate cause to inquire, he may
exercise the privilege of interrogating employees on matters involving their
Section 7 rights without incurring Section 8(a) (1) liability . The purposes which
the Board and courts have held legitimate are of two types: the verification of
a union's claimed majority status to determine whether recognition should be
extended , involved in the preceding discussion , and the investigation of facts
concerning issues raised in a complaint where such interrogation is necessary
in preparing the employer 's defense for trial of the case.
In allowing an employer the privilege of ascertaining the necessary facts from
employees in these given circumstances , the Board and courts have established
specific safeguards designed to minimize the coercive impact of such employer
interrogation . Thus, the employer must communicate to the employee the
purpose of the questioning , assure him that no reprisal will take place, and
obtain his participation on a voluntary basis; the questioning must occur in a
context free from employer hostility to union organization and must not be
itself coercive in nature ; and the questions must not exceed the necessities of
the legitimate purpose by prying into other union matters , eliciting information
concerning an employee 's subjective state of mind , or otherwise interfering with
the statutory rights of employees . When an employer transgresses the bound-
aries of these safeguards , he loses the benefits of the privilege. [Case citations
omitted.]
Of course, these observations of the Board were not intended to be all -inclusive.
For, as recognized in Blue Flash and subsequent decisions , surrounding circumstances
other than those enumerated in Johnnie 's Poultry have occurred and no doubt others
will arise which either serve to deprive the interrogation of coercive impact or render
such a tendency so minimal as to be unworthy of cognizance.25
Sunilarly, it is possible that some purpose of interrogation other than those stated
in Johnnie 's Poultry may exist and be held legitimate by the Board. But to defend
on the basis of a legitimate purpose the employer must make that asserted purpose
known to the persons interrogated at the time ; otherwise , by hypothesis, it cannot
accomplish any disabusing effect. In this case , Respondent merely denies that the
interrogation took place and, necessarily , makes no claim either of a legitimate pur-
pose or of ' its communication to the applicants . These circumstances alone render
such interrogation unlawful.2°
In the absence of any asserted legitimate reason for Gibson 's questions relative to
the union inclinations of the applicants , it may be doubtful that the restraining and
coercive effect of his questions could have been overcome had he stated that the
applicants could decline to respond , or could respond freely, without fear in either
case of being disadvantaged . Cf. S. H. Kress & Co., supra , 1249. For if this had
been Respondent 's true position there would have been no occasion for putting the
questions , and hence the applicants could well have declined to give full faith and
credit to any such disclaimers . However this may be, in fact Gibson made no dis-
claimers and gave no such assurances , and these circumstantial characteristics of
the interviews left the questioning imbued with its otherwise natural interfering and
restraining tendency and effect.27
25 In such a category falls interrogation of a "casual, friendly, and isolated" nature
as referred to both in the majority opinion and in the dissent in Blue Flash, with cita-
tions at footnote 9 of the dissent. See also Frito-Lay, Inc., 151 NLRB 28.
2@Cf. Johnnie's Poultry Co., supra; Koch Engineering Company, Inc., 155 NLRB 1272;
Southwestern of Dallas Optical Company, 153 NLRB 33; S. S Logan Packing Company,
152 NLRB 421; Kern's Bakery, Inc., 150 NLRB 998; Wallace Press, Inc., 146 NLRB 1236,
1239; Clark Printing Company, Inc, 146 NLRB 121, 122-123; International Ladies Gar-
ment Workers' Union, AFL-CIO, 142 NLRB 82, 114-115; S. H. Kress & Co., 137 NLRB
1244, 1248-49; Super Operating Corporation, 133 NLRB 240, 241, footnote 3; Offner
Electronics, Inc., 134 NLRB 1064, 1066
27 Cf. Blue Flash Express, Johnnie's Poultry Co., and Super Operating Corp , supra,
Elliott-Williams Co., Inc., 149 NLRB 1242, footnote 37, The Lawson Milk Company, 143
NLRB 916, 916-917. But see Transamerican Freight Lines, The, 122 NLRB 1033, 1034,
footnote 3.
THE SINGER COMPANY, WOOD PRODUCTS DIVISION 691
For the foregoing reasons, Gibson's questioning of the four applicants on the
occasions in question violated Section 8 (a) (1) of the Act.28
IV. THE REMEDY
Although the Board's Order in the prior unfair labor practice case contains a
broad injunction restraining Respondent from engaging in violations of Section
8(a)(1) "in any manner" and hence would suffice to enjoin any further violations
in the form of attempted surveillance or informing of the sort I have found herein,
I am not aware of any final court of appeals decree enforcing the order issued in
the prior proceeding. In the circumstances, and since surveillance or espionage,
whether attempted or committed, is a violation of grave character going, as it is
said, to the heart of the Act, I consider both that issuance of an Order, and one
broad in scope, is necessary in this case. The order also contains the usual and
necessary notice provision.
CONCLUSIONS OF LAW
1. By seeking to induce an employee to provide Respondent with the names of
employees favorably disposed toward the Union, Respondent has engaged in an
unfair labor practice affecting commerce within the meaning of Section 8(a)(1) of
the Act.
2. By interrogating applicants for employment concerning how they feel about
or whether they would vote for a union, Respondent has engaged in unfair labor
practices affecting commerce within the meaning of Section 8(a)(1) of the Act.
3. Respondent has not engaged in any other unfair labor practices alleged in the
complaint herein.
RECOMMENDED ORDER
The Singer Company, Wood Products Division, Trumann, Arkansas, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from requesting any employee to report to it the names of
employees sympathetic to United Brotherhood of Carpenters and Joiners of America,
AFL-CIO, or any subordinate local union of said labor organization, or any other
labor organization seeking to represent Respondent's employees; from interrogating
applicants for employment concerning how they feel about or whether they would
vote for a union; and from in any other manner interfering with, restraining, or
coercing employees in the exercise of their right to self-organization, to form, join,
or assist any labor organization, to bargain collectively through representatives of
their own choosing, to engage in concerted activities for the purposes of collective
bargaining or other mutual aid or protection, or to refrain from any or all such
activities.
2. Take the following affirmative action which is necessary to effectuate the
policies of the Act:
(a) Post at its plant in Trumann, Arkansas, copies of the attached notice marked
"Appendix." 29 Copies of said notice, to be furnished by the Regional Director for
Region 26, shall, after being duly signed by the Respondent's representative, be
posted by the Company immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall be taken by
the Respondent to insure that said notices are not altered, defaced, or covered by
any other material.
21 The questioning violated Section 8(a) (1) on another basis, namely, Respondent's
generally contemporaneous unfair labor practices in the prior unfair labor practice pro-
ceedings, if those violations and the aura of union hostility they manifest may be con-
sidered part of the totality of circumstances to be considered in assessing the restraining
or coercive tendency of the questioning at the employment interviews See e g, Efco
Corporation, 150 NLRB 1505; Clark Printing Company, Inc., 146 NLRB 121, 123; The
Lawson Milk Company, 143 NLRB 916, 916-917; Schott Metal Products Company, 128
NLRB 415, 429, 430; Breckenridge Gasoline Company, 127 NLRB 1462, 1463, 1481-82;
Hilme H. Erikson, at at. d/b/a Detroit Plastic Products Company, 121 NLRB 448, 455
" In the event that this Recommended Order be adopted by the Board, the words, "a
Decision and Order" shall be substituted for the words "a Recommended Order of a Trial
Examiner" in the notice In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order."
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Notify the said Regional Director , in writing , within 20 days from the receipt
of this Decision , what steps Respondent has taken to comply herewith so
IT IS FURTHER ORDERED that except as to unfair labor practices hereinabove specifi-
cally found , the comply int herein be dismissed.
su In the event that this Recommended Order be adopted by the Board , the provision
shall be modified to read: "Notify said Regional Director , in writing , within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended , we hereby notify our employees that:
WE WILL NOT request any employee to report to us the names of any employee
or employees sympathetic to United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, or any subordinate local union thereof, or any other labor
organization seeking to represent our employees.
WE WILL NOT ask applicants for employment how they feel about, or whether
they would vote for, a union.
WE WILL NOT in any other manner interfere with, restrain, or coerce employ-
ees in the exercise of the rights to self-organization , to form, join, or assist the
above-named, or any other labor organization , to bargain collectively through
representatives of their own choosing , and to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities.
THE SINGER COMPANY, WOOD PRODUCTS DIVISION,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board 's Regional Office , 746 Federal
Office Building , 167 North Main Street, Memphis, Tennessee , Telephone No. 534-
3161.
Milo Brooke Ford and Automobile Salesmen and Miscellaneous
Workers Union, Local No. 192, AFL-CIO. Case No. 13-CA-
6723. May 6, 1966
DECISION AND ORDER
On November 1, 1965, Trial Examiner Max Rosenberg issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent and the General Counsel filed
exceptions to the Trial Examiner's Decision together with supporting
briefs. Thereafter, the General Counsel filed a reply brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
158 NLRB No. 66.