Joy Silk Mills, Inc. v. National Labor Relations Board, 185 F.2d 732

Joy Silk Mills, Inc. v. National Labor Relations Board

185 F.2d 732

D.C. Cir.

1950

Check Treatment

*4 MILLER, Bеfore WILBUR K. PROC- TOR, WASHINGTON, Judg- Circuit es. work, WASHINGTON, grievances Judge. at certain Circuit promised. paid settled vacations were Mills, Inc., corporation which Joy a Silk periods, There was no recess discussion of Hartsville, operates South a textile mill shifts, the union. wages, rotation of this court Carolina, petition filed a September returned On order of aside an review and set Jacobs, the September to work. On issued Relations Board National Labor regional Georgia, director in Atlanta 1949, pursuant September 13, against it on telephoned cor- president petitioner Labor 10(c) the National poration recognition (Gilbert) concerning Labor- Act, Relations as amended union. Gilbert also received tele- an- In its Management Relations Act.1 phone representative call from requested petition, the Board swer election, Board, in reference to consent prin- its order. The court enforce Gilbert asked de- matter cipal cer- questions presented are whether attorney. until he his ferred consulted with interrogation of statements to tain September 30 held On conference super- employees by Jacobs, man- (general between Southerland ac- visory employees coercive constitute ager corpo- corporation), the *5 of 8(a)(1) tivity in violation of section attorney, ration’s of and a field examiner sufficient Act, that and whether there is Board, regarding possibility the of bar- proof employer that refused consent election. A сross of mem- check 8 collectively gain in violation of section bership suggested, cards was and declined asked to (a)(5) the Act. We also of are n petitioner. ar- There were tentative questions em- whether certain asked decide rangements made election for a consent

ployees by employer’s counsel follow- 19, to be held October which were later on charge practice con- ing a of unfair labor confirmed. activity, violating stituted coercive and, privileged, finally, The consent was thus 8(a)(1), or were election set Immediately October after the tele- order within its whether the Board’s was phone September call of had authority. Gilbert supervisory employees instructed the that I. they way should in nо interfere with dispute the main out- employees. There is no about union activities of the other story of the events at the mill. posted lines of inform- On October 7 he notice court, purposes employees For of review in this ing right of their to vote stipulation parties lengthy freely into a On forthcoming entered election. 152-166), (Jt.App. and from prepared by of facts a statement Gil- October may following employees. we derive the brief sum- bert was read to all the South- normally mary: Petitioner 50 or 60 (plant superintendent) erland Russell and mill, working employees in its divided present were Gilbert when state- 15, September read, On among reading three shifts. ment was but the actual was dispute took place, Carpenter, petitioner’s a minor labor done whо is began. bookkeeper, authorization occupying and a strike Union an office next Textile of occupied by the United Workers cards those Gilbert and Southerland. distributed, Septem- were speech America to the effect was that man- majority employees 16 the of the had agement ber not did think unionization would designating signed employees cards that union as they benefit were representative purpose for the their vote as saw Included in free to fit. petitioner. bargaining collective with the of October was the fol- the statement fifty-two ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Thirty-eight out employees equipment lowing: “As soon as for the arrives, cards. There was a signed on which has been meeting canteen ordered employees September you given рeriod between and the be rest the com- will you to discuss conditions for pany’s expense return so that your eat seq. § Act June 151 et U.S.C.A. Stat. during and shift comfort lunches relax in rotation included in the state- before ments made day on shift.” On October October and October 18, 1948, speeches read election, practices similar constituted two unfair labor circumstances, in that “the presentation in one under similar economic bene- fits employees forego which the them said have col- ques- bargaining lective employees on the misleading pressure a form of compulsion rotation, that and and indicated no less telling shift in its effort (sic: majority effect) wanted if of the on because be- * * *” nign. company put it into would The findings rotation trial of the Carpenter examiner that effect.2 supervis- was a ory employee, and that the activities of day Russell A or two before the election Carpenter and coercion, Russell constituted Carpenter discussed the matter were also affirmed. The Board affirmedthe em- election of the union with various trial examiner’s determination that there ployees. They questioned them concern- had been a to bargain, refusal but reversed generally views and indicated their the finding it did not occur Oc- until union, it their own dislike 12, holding tober that the violation com- union, support good not a idea September 24, menced continuing there- job security might threatened, after.3 perhaps wage raises other benefits might forthcoming got if the union The Board ordered to cease in. and desist from in manner “interfer- II. *6 ing with, restraining, or coercing its em- the preliminaries. Such were The elec- ployees in the exercise of right their to tion was on October the union held and self-organization, to form organiza- labor immediately protest lost. It filed a as to tions, to join or assist United Textile the conduct of the election. This was sus- America, Workers of L., F.A. or any other by regional tained the Board’s director on organizations,” labor and generally from 25, 1949, January when he ordered the interfering with the employees’ right to election set aside and directed another elec- engage in concerted and activities to bar- 3, 1949, tion. On March the union with- gain collectively through their own repre- representation petition drew its without sentatives. It also petitioner ordered to prejudice. Charges prac- of unfair labor cease and desist from “refusing to bar- tice were filed the hearing Board. A gain collectively with the Textile United was held before a trial examiner on March America, Workers of L., A. F. 22-23, 1949, as the ex- by followed an Intermediate representative clusive of all production the Report and Recommended On Decision. maintenance September and employed by the Board concluded * * Respondent the unfair practices certain labor Affirmatively, had place, petitioner taken “upon and announced was ordered its Decision to request and Order. bargain collectively with the United Tex- tile Workers of America” post Board to the cer- affirmed trial examiner’s plant. tain finding that notices at the promises the periods of rest gain speeches 2. The 8(a) contents the (5) violation of were not section had stipulation, copies included in the occurred. The trial examiner conclud- speeches ed, however, on, introduced in evidence October 12 petitioner by petitioner (Petitioner’s engaged when Nos. Exhibits what the ex- 7, 8, 9, Jt.App. 87-100). aminer determined were unfair and coer- petitioner activities, longer cive was no 3. The trial examiner had found al- acting good demanding faith in an elec- though request bargain there was a to doubting tion or in majority, the union’s claim aof September 24, recognize on refusal point peti- and frоm that on good the union until an election was in seeking obliga- tioner to evade its faith, prior and that to October when recognize bargain tion with the petitioner agreement gave its final union. election, consent no refusal to bar- 197,229, 206, 217, 83 L.Ed. S. III. also, see, Enamel- N. L. R. B. Columbian the or- to review petition bringing In this 292, 299-300, Stamping & stipulated, Board, has petitioner der of the amendment, L.Ed. 660. The noted, outline of the main have as we permit predecessor, like its does not While transpired. which events its weigh or to court to evidence substitute findings which were question certain does judgment Board’s as what con- for the 'is con- to which there stipulated as not drawn from the evidence.4 clusions are be challenge evidence, primary is to its flicting go far amendment even so Nor does the law of fact and conclusions the ultimate apply test to authorize court trial ex- reached been which have reviewing findings which it utilizes alleges that the It Board. aminer conclu- findings Court—that the are District interpreta- permit of does evidence “clearly sive unless What erroneous.” given and is insufficient it was tion insure to was amendment was intended do peti- that the determination support the case, fringe or borderline where 8(a) (1) section has violated tioner but a tenuous founda- evidence affords the Act. (5) of findings, for the Board’s the Court Appeals entire would scrutinize the rec- Labor-Management Relations care, liberty, where there ord with findings “The of the Board provides: Act modify evidence,” not “substantial sup questions of fаct respect to if findings.6 is cer- It aside the Board’s set ported evidence on record substantial exactly arguable tainly that this was a whole shall conclusive.” considered as prior courts amendment. The rule 160(e). The National Labor 29 U.S.C.A. § always been free set have aside amendment, Act, prior to' Relations findings injus- in a case of obvious Board’s findings the Board’s “as to provided that Supreme As tice.7 a result the Court evidence, facts, supported by if shall ”* indicated that the standard o'f * * review estab- provi This latter be conclusive. present approximately lished law interpreted by Supreme had been sion *7 provided same that the predeces- the as findings that Board’s to mean the (cid:127)Court act, Crompton-Highland L. R. sor N. B. v. supported by only if “sub conclusive were Mills, 217, 4, 960, 337 U.S. 220 n. evidence,”- is, “such relevant stantial 1320, might accept 93 L.Ed. a similar a reasonable mind conclusion has as evidence support adequate by ap- a conclusion.” Con been reached various as the courts of B., U. peals. See, example, Corp. Edison N. L. R. 305 solidated Co. v. for Eastern Coal Cong., Sen.Rep.No.105 1126, 4. 3020, Cong., Sess., p. (1947). 80th on S. 80th 1st 41 3020, Sess., (1947). pp. supra, 4, H.R. 1st 26-27 As we have noted in footnote part provided formed the basis the which the House an bill even broader law, provided present present act, the Board’s review than the and still its only findings purpose if conclusive were to be was restricted the correction against “glaring “the not manifest of errors.” were sup weight evidence” and were of the by Congress, 7. This realized by ported H.R. “substantial evidence.” report Senate on S. contains Sess., ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍pp. Cong., Rep.No.245, 1st 80th following statement reference weight the evi “manifest of 41-42. The 10(e) of section the National Labor Re rejected the final test was ver dence” lations Act: “This hoon construed the Act. sion of Supreme meaning as ‘sub Court ” change, Taft, explaining Apparently evidence.’ what 5. Senator stantial go objected quite Congress not so far as under “It does the National said: appeals given great power of a circuit court Act was “too Labor Relations part tendency 93 decision.” district-court on the courts review of not Cong.Rec., (1947). findings, though they pt. 395 even disturb Board may questions on of mixed he law based purpose of the the amendmеnt The * * * or inferences based on and fact “To enable the courts cor- which are not record.” Sen. facts glaring Board’s find- errors in the rect Cong., Sess., p. Rep.No.105, 1st 80th ” * * H.R.Rep.No.245 * ings. on H.R. (1947). B., Cir., Dept. R. agent.” May L. collective bargaining F.2d v. B. N. L. R. Austin Stores 376, 385, v. Co. v. N. L. R. event, is 203, 209, the test now 594-595 In 90 L.Ed. 145. on whether there is evidence “substantial concluded, The Board has whole,” is and it the record as a considered promise of benefits question here inter apply shall test which we best employees’ fered with the freedom to or understanding. ability our ganize, contrary to section 8(a) (1). The employees were periods, and, offered rest IV. they desired, if shift prom rotation.8 These question first to be considered ises were speeches made the context of or not the on whethеr statements made verbally employees assured the com 18, 1948, October 12 inter constituted plete freedom of choice. But at the same or ference coercion in violation of section time speeches made clear that em (1). pointed so holding In the Board ployer did not think unionization would promises out of benefit are least to the employees benefit of the or the com as efficacious as threatened detriment when pany. speeches were made aat crucial discourage attempting activity. time, is, prior immediately to the elec Labor-Manage purposes One tion. Whether or not promises such ment Relations Act is to that em insure reasonably calculated to induce em ployees shall a free have choice as. to union, ployees join not to must be sensed representation question of their in negotiat from the entire situation. Considering employer. This, course, an ing with does whole, record as a we think that there is preclude employer from stating substantial evidence support the Board’s views as to whether not the regard conclusion. In this we must canvass join “Employers should the union. But still Carpenter activities -im Russell may not, guise merely under the exercis mediately prior to- the election. right speech, pursue their ing free designed Russell, course of conduct to- restrain and noted, we have is the their plant superintendent, coerce in the exercise of and Carpenter rights guaranteed boоkkeeper. them the Act”. N. Petitioner contends that Car City Mills, Cir., penter Gate B. Cotton supervisory not a employee. The preclude F.2d The Act does not Board has opposite reached the conclusion. Carpenter an introducing dur occupies benefits one of the three front organizational But period. when the offices at the (the mill other two oc being proposed cupied uses benefits as an in *8 Southerland Gilbert). and He is union, join activity president ducement not to the his of Mills, Premier Knitting which privilege. bears no shield of For “inter adjoining premises, and which re is no ference less interference it financially petitioner, because lated the control accomplished through ling allurements rather stock interests of bоth being identical. * * *." than coercion Carpenter Western Cartridge meets all corpora callers to both B., Cir., 240, 244; N. L. Co. v. R. 134 F.2d tions. authority He has to hire and fire Co., Bailey Cir., N. L. B. Premier, R. 180 F.2d though for petitioner. not for N. L. B.R. v. LaSalle Steel Certainly at the time of the above-men 829, 835; speeches 178 F.2d N. L. R. B. v. tioned he was part as a of treated Co., Cir., Can Crown management. the Under such circumstanc action “minimizes the Such influence of or es we think the Board clearly correct ganized bargaining. It interferes with responsible, finding purposes for right self-organization of by emphasizing Labor-Management to- of the Act, Relations employees that is no there necessity Carpenter's for for actions. International As- speech speech 8. The second Octobеr 18 indi- of after the she asked Gilbert about rectly promised shift rotation if a ma- shift rotation he and said that if the jority 99). (Jt.App. majority wanted it it, they What the wanted could have it on, however, (Jt.App. 35-36). examiner trial relied testimony Chapman of Bessie App. Carpenter 160-61). day v. N. L. The same sociation of Machinists clip newspaper The showed Helen Watson 85 L.Ed. U.S. ping. He vari told her he he knew couldn’t are facts testified'to following her, they do trial much with office by the employees, ous true found to be surprised were to find was the examiner, for out that she by petitioner and admitted movement, brains of if the union to Car and purposes appeal, which relate of this place he tell were Gilbert’s he penter’s actions: and Russell’s would employeеs they quit if some could Carpenter with sev the election discussed they (Jt.App. 161). wanted to. employees. petitioner’s On eral Russell, day As to preceding a or two Carpenter gave Bes morning of the election spoke election Russell to several newspaper Chapman clipping to read. sie a union, noting column,9 individually about the that the syndicated a clipping was of The any good, union did him all never he distinctly containing unfavorable commen a pay did was inquired dues. of some He leadership. tary on union When Bessie prior had meeting, who union attended Chapman, dipping, men reading after many there, people how and what against com grievance old tioned an promised. had (Jt.App. 162-64). union To said, “Why, reply: Bes pany, Carpenter employee, Chapman, one William Russell you,” sie, thought and then I better. hoped Chapman up said he had made Carpenter then her union. cursed the told right way about the election mind you "you yourself down here if could better and that Russell like union didn’t try.” Carpenter the con would concluded think good. it would do Russell didn’t change by saying, “I know I can’t versation said, “You also can’t leave union to be- mind, point, your is no in me stand there ” * * foreman,” come added that he “had *. you. (Jt. arguing here up” Chapman, if coming raise but App. 159-60). day The before the election the union came in raise might be de- Henry O’Neil, Carpenter said to “You Chapman might layed get (Jt. not it. you are way going didn’t tell me App. 163): vote, against he for or the union.” When reply, Carpenter away at super first turned part didn’t Such actions on the asked, came like 'then back “You unquestionably visory constitute your 160). morning job?” (Jt.App. Interrogation by supervisory em coercion. Longrie Carpenter gave election ployees sympathies as to union carries with Jean Carpenter clipping mentioned above. it least the aroma of coercion. Here the was run bunch coupled said that the union then questioning only crooks, if the came supervisor’s expressions and that of extreme distaste unionism, the mill probably would close down Gilbert but also with threats veiled (Jt. job. security. be out of a job would both Con to future benefits and 160). day App. employees’' before the election Car duct of this sort violates the penter to Ednа Robbins that he was rights said Act and con under union, surprised practice was for the she an unfair labor under sec stitutes *9 be a union 8(a) (1). he think she should v. N. L. R. didn’t H. Heinz Co. J. 309; (who B., 514, 320, else girl, that her father worked 85 L.Ed. 311 U.S. where) a union man. She asked of Machinists v. was not Association International 72, 83, Carpenter how he knew she was for the N. R. 85 L. L. 311 U.S. got question that rumors around. is no that there union and he said There Ed. 50. 160). day support (Jt.App. On the of the election evidence to the trial is substantial regard. Carpenter findings Robert Morris how was in this Fur asked he examiner’s noted, vote, already replied ther, coer to he that it was his as we have going to a lends color the intent be activity There was then discussion own cive business. promises of benefit discussed above feelings toward Southerland and hind of Morris’ said, Gilbert, Carpenter ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Board’s con “Don’t tends to substantiate the after which (Jt. to forestall un- go how to were made people vote.” . clusion telling ar.ound Clipped from the 1948. Observer October Charlotte 9.. implication. Labor-Management Re- v. R. B. plant. L. Cf. N. of the ionization or of frauds lations Act “is not statute a Co., supra. LaSalle Steel of con- prescribing an act the formalities V. required is veyancing. writing or No seal special formula by any Nor bargain its terms. is to a there refusal Was or 8(a) form words.” (5) of section collectively violation wrong a can be Act? Before there question is then presented been must have bargain, there refusal to ful bargain was Gilbert’s to whether refusal N. L. union. request bargain by the to a permissible been held It has under the Act. Stamping Enameling & B. v. Columbian R. recognition may employer that an refuse 660. 83 L.Ed. 292, 59 S.Ct. good faith by to a a union when motivated request such concluded that The Board majority doubt status. as to union’s telephone con by made Jacobs B.,R. Mfg. North L. Electric Co. N. v. September on with Gilbert versation 887; Chicago v. 123 F.2d N. L. R. B. requested rec testified that he had Jacobs ognition When, Apparatus Co., Cir., 116 F.2d bargain collective the union as however, to refusal due a desire such stating ing agent, that the union had been gain dissipate to time to take action employees; and represent the authorized to majority, long the union’s is no refusal suggested of mem a cross-check that he had justifiable er and constitutes a violation of payroll, by an im bership cards with the duty bargain set forth in section partial person, prove the authorization. (5) the Act. N. B. v. Federbush that Gilbert declined He further testified Co., Cir., 121 F.2d B. L. R. requests, stating he wished to con both Rand, Remington Inc., Cir., attorney; thought he the mat sult provides 868-869. The Act for elec by an election held ter had been settled tion proceedings provide in order years previously, which the union had two whereby an acting mechanism lost; preferred that in event he to good may faith secure a determination of (Jt.App. Board the matter. have the handle or not the whether union does in fact have request 102-03). Gilbert testified that no majority appropriate and is therefore the bargain was made and merely Jacobs agent bargain. with which to pur Another enough petition said had he pose is insurе the Board for an election if Gilbert wouldn’t freely register their individual choices con agree (Jt.App. ato consent election. representation. cerning Certainly it 126-28). also testified that at the Jacobs purposes not one of the of the election meeting September 30 he suggested ne provisions supply awith gotiating a contract to obviate necessity procedural device which he may secure (Jt.App. 110-11). of an election. Again necessary the time to defeat efforts toward was contradictory testimony. there (Jt.App. organization being Thus, made a union. 146). The trial examiner chose believe problem now before us narrows down version conversations, finding Jacobs’ to whether not the evidence warrants the recollection, Gilbert mistaken in his and Board’s inference that the refusal of recog concluded that request there been had to nition was in fact motivated bad faith. bargain; findings these were affirmed by Board. The think that there circumstances We “substan evidence, viewing conversations record, corroborate this tial” entire conclusion But apart that, some extent. from which the Board could credi conclude that bility recognition of witnesses original is a matter refusal of for Board was in *10 determination, N. and not for this bad faith. Cf. L. R. B. v. court. Nor Consolidated request Corp., bargain must the 2 Cir., to Machine Tool 163 376,11 F.2d haec verba, long so as there was one denied 332 certiorari U.S. 68 clear Foundry speaking 10. Lebanon of the Steel N. L. National Labor Rela- U.S.App.D.C. 100, 404, 407, tions Aet. Enforcing 67 N. L. R. B. 737. the that of of the witnesses differed engaged employer The 92 L.Ed. 399. R. B. v. Laister- examiner.” N. trial L. immediately preced in coercive activities F.2d Corp., Kauffmann Aircraft ing commenced the election. Interference 9, 16-17. had days election only the consent five after lapse agreed upon. time between been The VI. request bargain the election the first and totality of the only days. was Board’s In view Next is the for -consideration conclusion evidence, questioning of the. it is reasonable determination that certain suddenly prior immediately suffer that petitioner the did counsel for charge change in a field where 22 on a hearing of “Wv.are March heart. the Board of small may play practices nо was in violation subtleties of conduct unfair of labor * * *." Express part stipulated that R. B. v. It was 8(a) (1). of questioning were Publishing circumstances of the U.S. the pre- 693, 700, questionnaire Board been Neither the A had L.Ed. 930. as follows: minds men. the course pared -by the read the of for courts- counsel can nor -hearing. em- preparation cases of this the -The of for As the Board stated: .“In employer is the canteen question ployees were interviewed in type the whether of eight of plant groups the time from four acting good bad the of or faith at of n course, employees! They is, one which of were advised counsel of the refusal purpose questionnaire light in the of the necessity must be determined that was case, including help prepare facts in defense relevant of all questionnaire employer, answering of the and that any conduct unlawful events, voluntary; lapse would time there sequence completely of rewards, threats, coercion, promises or the unlawful con the refusal and no between any filling with the out Petitioner has trans kind connected (Jt.App. 11) of duct.” conduct, questionnaire. They- permissible were also ad- of the" gressed ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the bounds of they permit the could omit answer to extent to- Board vised to sufficient questions any question all the after bargain its was as read- refusal or conclude over. filled the as its other actions.12 them ill-intentioned signed questionnaire independently and out is correct contend Petitioner page. each has been some cоn where there ing that opinion the Board and trariety between affirmed the Board conclusions of (here both found re examiner 8 out trial examiner who held that the trial to when it bargain, differed as’ objectionable to- but questions fusal asked as were must be examined occurred), the evidence Constituting interference, restraint and co- Board than when both the greater care meaning of section within ercion complete are in quesíions examiner trial the Act. Those are as (1) not mean that But this does agreement. follows: required evidence is amount of greater any you pur- What did consider be the “7. “The support Board’s determination. signing the pose of card? findings to malee con is authorized Board you yourself a consider member “8. Did examiner, findings trial trary to the you signed the when card? the Union is substantial evidence there where card, you signed the did At the time “9. findings, court Board’s support the any money membership you other pay merely because aside them not set Union? weight fees credibility Board’s view goddamned plant down throw stipulated there tes- It was key away morning and the here timony of the elec- that on Carpenter repre- do it.” we will Carpenter know that stated to statement, making they the last denied “hadn’t damn sentatives testimony, operations found re- interfering trial examiner business substantially true, garding “just it to be plant,” our purposes Stalin,” admitted review it was and that “before we as Joe red *11 162). (Jt.App. here. in here we will burn union come see

743 matters pay- interrogation which as union future to agree Did to the you “10. entails; such necessarily or membership, and even any ment initiation of questions may there not be asked where other fees Union? to the purposeful employees. is of intimidation your connection you “13. terminate Did a interrogation Such standard assumes that sign- you any with the at time after Union employees of ac- concerning their union ed a card? is, itself, fair- coercive,13 tivities of but that you did so, “14. If ter- for what reason requires to ness limit- that a your minate with the Union? connection permitted ed amount of such questioning be you your “21. Did cast vote the elec- despite possible restraint which personal your solely according tion own to result. concerning you desired views whether any you without represent Union tо We think that the standard es job future your Board, described, as to by fear or threats tablished just as being in- Company, one, with the without is a aptly designed reasonable respect by promise of fu- any carry in purpose fluenced out of the Act. We Company benefits ? think that it by correctly applied ture has been this case. The fact that of the fruits speech- that these you “25. Did consider questioning are to preparation used in posted on and notices es or statements hearing a for interroga does not make the promises or threats the bulletin board were less questions coercive. The your vote against of influence benefits to which have here been held violative of the the Union?” Act, perhaps while charges relevant to the “an Board has held that em against employer, made yield would privileged employees ployer is to interview way proof little of as to. or whether purpose discovering of facts within for practices not unfair labor have been com by a the limits the issues raised com of mitted. This especially true of those counsel, employer, its plaint, or where the which deal with employee’s subjective purpose its preparing does so for the of mind, of questions 8, state 7, 14, such as beyond go for trial and does not case 21, and 25. See L. R. B. N. v. Donnelly preparation pry of into necessities such Co., 219, Garment 230-231, 330 U.S. membership, matters of union discuss 756, S.Ct. 91 L.Ed. 854. It has been held activity, or extent union the nature employee’s thoughts (or after joining or dissuade rеmain thoughts) to why signed as he card, a union union, or members of otherwise thought and what he that card meant, can statutory right interfere with self- negative the overt action having organization.” May In the Matter De signed card designating a union bar partment N.L.R.B., 94, Co., Stores 95. gaining agent. N. L. R. B. v. Sunshine Mining Co., Cir., 780, Apparently this means that an rule em- ployer may question prep- R. B. v. Consolidated Machine Tool Corp., N.L.R.B., 737, hearing 739, but is aration restricted enforced 163 questions charges to the F.2d relevant unfair certiorari denied probative practice and of sufficient 92 L.Ed. Similarly, labor 399. it has justify ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍consistently the risk of been question value intimidation held that the sonable by em well-founded. “Inquiry eases interrogated union affiliations has been ployees’ held employees have been discharged of the Act.” violative Texarkana otherwise discriminated against L. R. on the Bus Co. v. N. F.2d basis of information ob- through interrogation Matter of See Standard Coo tained are numer- N. L. R. B. These sa-Thatcher ous. cases demonstrate conclu- sively large, that, the Board stated reason employers when who engage experience determination: “Our this practice are not motivated curiosity, demonstrates fear subse idle rather desire interrogation discrimination which rid themselves quent adherents.” (at (Footnote omitted) 1362). minds of employees p. is rea- instills *12 7U actually in In N. L. R. employee felt Franks Bros. Co. v.

not whether an supra, a Black, speaking en Mr for employer timidated but whether the Justice reasonably court, gaged may said : unanimous conduct which “ the free be with said to tend to interfere to ‘It is the courts for Board not Act. employee rights under the exercise of prior determine the effect of unfair how 584, Co., N. 311 U.S. * * L. R. B. v. Link-Belt * practices may expunged.’ labor be 368; R. 588, L.Ed. made “That determination the Board Ford, Cir., 738. We F.2d B. v. adopt- by in this case and in similar cases con justified in its think the Board was requires ing a form that remedy which through 14, questions clusion that employer bargain exclusively an 8(a) (1), were violative of particular represented a union which garnered be which could that the evidence majority employees at time of of so little questioning that would be despite wrongful bargain refusal to risk probative as not to warrant value subsequent that union’s failure to retain rights. upon employee infringing majority. its think might The Board well VII. that, adopt type it of rem- not to this edy, upon every but instead elections order wheth- for consideration remains There membership claim that a shift in union be enforced order should Board’s er. during proceedings had occurred occa- in some re- be modified in full or should n employer’s wrongful sioned an 'refusal spects. employers bargain, might to recalcitrant First, portion of the as to opposition to able continued bargain: refusal relating to the Order membership indefinitely postpone per- finding is in its correct If the Board statutory obligation. formance of their bargain in viola refused to employer th'e * * * within, That the Board was its 8(a) (5), order that its of section tion authority statutory adopting remedy collectively bargain employer adopted prob- which it has to foreclose the amply authority, and is its union is within ability of such frustations of the Act seems is de This true by precedent. sustained plain too anything but statement. See the con union lost spite the fact (c), 29 U.S.C. 29 U.S.C.A. § (cid:127) has concluded The Board sent election. 160(a, c). § strength was due loss of union’s “Contrary petitioner’s suggestion, this It has activities. petitioner’s coercive order, remedy, as in a Board embodied engage prior concluded also any injustice not involve does a large union had that coercion ment in par who wish to substitute for the specifically em Board majority. The agent bargaining ticular union some other action take such affirmative powered “to * * * arrangement. For a Boаrd order which policies of will effectuate the employer requires bargain an awith It 160(c). chapter.” 29 U.S.C.A. § is not designated union intended to a fix Supreme held consistently has been bargaining relationship permanent without an refuses where Court may develop. to new situations that regard union, majority collectively with bargain * * * But, remedy ques as the here in majority status loses its the union recognizes, bargaining relationship employer’s coercive activi because per rightfully established once must be election, it the loss of ties, suffering exist and function for a reason mitted to order the the Board appropriate period given it in which able can fair bargain with the union. * ** to succeed. After chance such B., 321 v. N. L. R. U.S. Co. Bros Franks period may, the Board in a 1020; a reasonable N. L. R. 817, L.Ed. S.Ct. upon proper proceeding and show proper 62 S. Lorillard P. B. v. steps recognition of changed ing, take v. Brad N. L. B. 397,86 L.Ed. Ct. might appropriate make 318, 339-340, situations Ass’n, 310 U.S. Dyeing ford relationships.” 321 changed bargaining U. 918, 84 L.Ed.

745 bar- collective purpose page tivities for at 704-706, 64 S.Ct. pages at S. protection or aid gaining or other mutual 818. activities, any and to refrain or all from Co. v. Bros. Franks The decision in may except right that such the extent controlling, and B., supra, appears R. L. requiring mem- agreement be affected an to be is entitled order of the Board bership condition organization in a labor as just discussed. respect enforced employment Section in as authorized requir- order portion of the As to that Sec- (3) guаranteed of the Act as petitioner and desist to cease 7 thereof.” said bargain, has been refusing to what majority A does not believe of this court order equally applicable, above developed pattern of coercion likewise enforced. must he paragraph here warrants the issuance order, 1(b) quoted, its en- as ordering petitioner In addition forcement this court.14 refusing to bar and desist from cease order, eliminating A modified form of and, upon affirmatively, bargain gain, paragraph conforming 1(b) otherwise Board, 1(b) of paragraph request, in opinion, no- to this submitted. order, petitioner to cease ordered 2 employees required paragraph tice to inter any from “In manner desist other (b) conform to the order. should with, its fering restraining, coercing or modified, As so order is affirmed and right employees in exercise of their will enforced. self-organization, organi to form labor zations, Textile join or assist United So ordered. America, L., any A. other Workers of F. MILLER, WILBUR Judge, K. Circuit organization, bargain collectively

labor dissents, being part of the view that no through representatives their own of the Board’s order should choosing, be enforced. engage concerted ac- 693, 700, agree 61 S.Ct. 85 L.Ed. 930. The writer does not “The proper scope conclusion, paragraph test of the of a cease and but believes that might 1(b) desist order is whether the Board of the order is entitled to enforce reasonably have concluded from the ment. The evi here interfered necessary dence that such an order was with ployees of its em concerted activities prevent specific ways before it ‘from in certain engaging practice above, namely, by unfair labor have been discussed interrogation, ” * * * affecting May threats, offering commerce.’ bene Dept. B., join Stores Co. v. N. L. R. 326 fits inducement not to the un 376, 390, 203, 211, ion, bargain refusing 66 S.Ct. U.S. L.Ed. as well as designated representative 145. page 389, cases therein cited at See U.S. em 10, par. 1(b), justify ployees. restraining note 66 S.Ct. “To an order page procedures, appear 241. For alternative see other violations it must Regal Co. v. N. R. Knitwear some resemblance to bear employer that which the 9, 13, 661; danger U.S. L.Ed. has committed or that Trade Federal Commission v. their commission Morton future is to be anticipated Co., Salt from the course of his con Lipshutz, past.” N. L. R. B. v. duct press Publishing 92 L.Ed. N. L. R. B. Ex v. 141, 142; 426, 437, 149 F.2d Wilson & Co. U.S. B., Cir., N. L.