National Labor Relations Board v. The Lorben Corporation , 345 F.2d 346 ( 1965 )

FRIENDLY, Circuit Judge

(dissenting) :

The Board supported its conclusion that Lorben “violated 8(a) (1) of the Act in polling the employees” by saying that it relied “principally on the manner in which the poll was conducted, particularly the fact that Respondent did not explain the purpose of the poll to all of the employees. and did not offer or provide any assurances to the employees that their rights under the Act would not be infringed.”

I fail to understand on what basis, in a case like this, we may properly reject the conditions to permissible interrogation which the Board has developed¹ and here enforced. The Board’s adoption, in Blue Flash Express, Inc., 109 N.L.R.B. 591, 594 (1954), of language used by this court in granting enforcement in NLRB v. Syracuse Color Press, Inc., 209 F.2d 596, 599 (2 Cir.), cert. denied, 347 U.S. 966, 74 S.Ct. 777, 98 L.Ed. 1108 (1954), did not prevent it from later concluding, in the light of experience, that proper administration demanded working rules for reconciling the employer’s desire to know what was afoot and the employees’ need to be free from harassment, which would provide a test more definite, and more readily applicable, than “whether, under all the circumstances, the interrogation reasonably tends to restrain or interfere with the employees in the exercise of rights guaranteed by the Act,” 109 N.L.R.B. at 593. See NLRB v. A. P. W. Prods., Inc., 316 F.2d 899, 905-906 (2 Cir. 1963); Dickinson, Administrative Justice and the Supremacy of Law in the United States 143, 205 (1927). An agency receiving over 14,000 unfair labor practice charges a year, see 28 NLRB Ann.Rep. 161 (1963), ought not be denied the right to establish standards, appropriate to the statutory purpose, that are readily understandable by employers, regional directors and trial examiners, and be forced to determine every instance of alleged unlawful interrogation by an inquiry covering an employer’s entire union history and his behavior during the particular crisis and to render decisions having little or no precedential value since “the number of distinct fact situations is almost infinite.” See Bok, supra note 1, at 111, and also at 64-65. The Board’s power to rule that certain types of conduct constitute unfair labor practices without further proof of motivation or effect has been sustained in cases too numerous for anything more than illustrative citation. Republic Aviation Corp. v. NLRB, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372 (1945) (prohibition of union solicitation on company premises outside of working hours); Brooks v. NLRB, 348 U.S. 96, 75 S.Ct. 176, 99 L.Ed. 125 (1954) (one-year rule on duty to bargain); NLRB v. Katz, 369 U.S. 736, 82 S.Ct. 1107, 8 L.Ed.2d 230 (1962) (per se violations of duty to bargain); NLRB v. Marcus Trucking Co., 286 F.2d 583 (2 Cir. 1961) (contract bar rule).

It is true, as Professor Bok has also written, that one may well be “reluctant to find that he [an employer] has broken the law on the basis of inadvertent or uncalculating behavior which has created no more than a speculative risk of intimidating employees,” and that in cases of that sort “one may justly question whether much can be done by faulting the employer long after the conduct in question has occurred.” Bok, supra note 1, at 111. In such cases insistence on literal compliance with the three criteria stated in the majority opinion may appear to ignore the realities of industrial life. Bourne v. NLRB, 332 F.2d 47, 48 (2 Cir. 1964), Federation of Union Representatives v. NLRB, 339 F.2d 126, 130-132 (2 Cir. 1964), and NLRB v. Park Edge Sheridan Meats, Inc., 341 F.2d 725 (2 Cir. 1965), in which we denied enforcement, were situations of that sort.² But here we are dealing with employer conduct which was systematic and purposive, indeed taken after consultation with an attorney; the inquiry covered all the employees, and the answers were formalized by signatures on a list returned to the employer. Strict rules may not suit the casual question privately put to a few employees. But when the employer sets in motion a formal tabulation of this sort, it is not too much to ask that he provide some explanation and assure his employees against reprisal. Although my brothers condemn the Board’s requirements, they do not explain why these rules are inappropriate or, more relevantly, why the Board may not reasonably, think them so. NLRB v. Local 50, American Bakery, etc., Workers, 339 F.2d 324, 327-328 (2 Cir. 1964).

While the Board relied “primarily” on the lack of explanation and assurance, the trial examiner’s report which it adopted points to further circumstances supporting its conclusion. The interrogation occurred when several employees had been picketing the plant and one had been fired for what some workers apparently thought was pro-union activity; that this latter charge was not borne out cannot alter the cast thereby given to the inquiry into union support at that time. And one need not hold a doctoral degree in psychology to realize that the method of polling here utilized, in contrast to other methods of testing employee sentiment that were readily available, entailed serious risk that some employees would indicate a position quite different from that really held and would then feel obliged to adhere to it. Whether by design or by accident, the first workers to be questioned might be preponderantly against the union; the display of such votes would inevitably aifect later voters who would be inclined to “follow the leader” and would see little use in bucking a trend; and all this could have a snowballing effect. I cannot believe that if the Board had utilized its rule-making power, under § 6 of the Act, see Peek, The Atrophied Rule-Making Powers of the National Labor Relations Board, 70 Yale L.J. 729 (1961), to prohibit such a means of ascertaining employee views as tending to “interfere with” rights guaranteed by § 7, and insisted on methods whereby each employee would indicate his sentiments without knowing those of others, any court would strike that down. I see no justification for a different result when the Board ha.s followed the equally valid course of reaching its conclusion by the decision of a particular case. See NLRB v. A. P. W. Prods., Inc., supra, 316 F.2d at 905.

I would grant enforcement.

1 . The development is indicated by such cases as Frank Sullivan & Co., 133 N.L.R.B. 726 (1961); Orkin Exterminating Co., 136 N.L.R.B. 399 (1962); and Johnnie’s Poultry Co., 146 N.L.R.B. No. 98 (1964). See Bok, The Regulation of Campaign Tactics in Respresentation Elections Under the National Labor Relations Act, 78 Harv.L.Rev. 38, 107 (1964).

2 . In Welch Scientific Co. v. NLRB, 340 F.2d 199 (2 Cir. 1965), neither the Trial Examiner’s report nor the Board’s decision referred to the three-fold criteria, and the Board’s brief in this court sought to justify the order as to interrogation only on the basis of lack of any proper purpose. Compare S. H. Kress & Co., 137 N.L.R.B. 1244 (1962), enforcement denied, 317 F.2d 225 (9 Cir. 1963).