Textron, Inc.

242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD W. A. Sheaffer Pen Company, Division of Textron, Inc. and International Union , United Automobile, Aerospace and Agricultural Implement Workers of America. Case 38-CA-1266 September 22, 1972 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On May 11, 1972, Trial Examiner Eugene F. Frey issued the attached Decision in this proceeding. Thereafter, both General Counsel and Respondent filed exceptions to the Trial Examiner's Decision and supporting briefs, and the Charging Party filed cross- exceptions together with a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopt his recommended Order, except as indicated hereinafter. The Trial Examiner found, and we agree, that by requesting applicants for employment during negotia- tions with the Union to answer questions on their employment applications as to their willingness or unwillingness to cross a picket line in the event of a strike, without assurances against reprisal for their answer to or failure to answer such questions, and by maintaining such information in its personnel files, Respondent has interfered with, restrained, and coerced applicants for employment in the exercise of rights guaranteed them by Section 7 of the Act, and has thereby violated Section 8(a)(1) of the Act. The Trial Examiner, however, also found that Respondent had substantial justification for the use of its questionnaire. We disagree and find, contrary to the Trial Examiner, for the reasons set forth below, that Respondent violated Section 8(a)(1) of the Act by its regular inclusion of a questionnaire with applica- tions for employment. The facts show that the Respondent and the Un- ion were operating under a collective-bargaining agreement which expired on October 1, 1971:1 That agreement contained a no-strike provision during the life of the agreement. On July 28, the Union notified Respondent that it was reopening the agreement. On August 12, in re- sponse to alleged strike rumors, Respondent circulat- ed a letter to all employees, informing them of 1 All dates herein are in 1971 unless otherwise stated. Respondent's knowledge of the rumors and of the employees' obligation to vote on any strike authoriza- tion vote. The Union did not answer the letter direct- ly. However, a poll was taken at the August 14 union meeting, and each member of the bargaining commit- tee stated that a strike vote was never discussed or considered. After the August 14 union meeting, where approval of bargaining proposals to be submitted to the Respondent was obtained, the first negotiating session was held on August 17 to explore the Union's written proposals.' Subsequently, additional negotiating sessions took place, the result of which was an agreement to extend the current contract beyond October 1, with a proviso that either party could terminate the extended agreement on 10 days' written notice. On October 10, a union meeting was held to discuss the status of the negotiations, and a proposed new agreement. At that meeting, the membership rejected the proposed con- tract and voted to apply to the International Union for a strike authorization. On October 31, the Union served notice effective November 1, to the Respon- dent that a strike would commence on November 10 should an agreement not be reached by that time. A strike did begin on November 11 and concluded as a result of a new agreement reached on November 19. The Respondent attached the questionnaire in issue to its application forms between August 20 and November 4. The questionnaire reads as follows: The W.A. Sheaffer Pen Company is currently engaged in contract negotiations. In the event of a strike, the plants may be picketed. Would you be willing, under these conditions, to cross a picket line when entering or leaving the plant? Yes No (Signature & Date) Respondent discontinued use of this questionnaire on September 29 when an agreement to extend the orig- inal contract was reached, but reinstated it on No- vember 4 after receiving written notice of termination by the Union. The Trial Examiner concluded that the Respon- dent had substantial justification to use the question- naire because of its limited purpose, which was to determine the availability of people in the event of a strike. His conclusion was based, in part, on rumors and allegcd reports received from production superin- tendents and department managers, starting in late 2 Respondent refers to the "Union 's initial demand for high wages and other provisions . . " received on August 17 (first bargaining session) and claims that the "magnitude" of these demands justified its reliance on the strike rumors. However, the record shows that the Respondent was not sure if the decision to attach the questionnaire was made before or after the first bargaining session, when the Union 's demands were first presented . In fact, Respondent's personnel manager admitted at the hearing that it is possible that the decision to use the questionnaire was made before the first bargain- mg session on August 17 199 NLRB No. 21 W.A. SHEAFFER PEN COMPANY 243 July, concerning the use of a strike as a negotiating weapon.3 The Trial Examiner also found that the use of the questionnaire was justified in the light of "the sequence of events indicating first the possibility, then the probability, and finally the confirming event of a strike." He further found that Respondent's letter, dated August 12, was a legitimate report to employees on what Respondent heard about a possible strike. In addition, he concluded that the Union's failure to directly respond to the rumors mentioned in the letter further justified Respondent's reliance on such ru- mors. The Trial Examiner considered the union president's testimony with respect to a poll of the bargaining committee-to show that none of the members intended to start negotiations with a "strike vote in hand"-to be self-serving. He also determined that William Baker, the president of the Union, made admissions of an intention to strike in connection with May and June discussions with employees concerning strike procedures. In addition, the Trial Examiner ap- plied the "small plant" rule in determining that ru- mors of strike activity did come to the attention of management. Finally, the Trial Examiner concluded that Respondent's decision to forego the question- naire immediately after the agreement to extend the original contract was reached supports its claim that the questionnaire was being used for a legitimate pur- pose. In our opinion, Respondent's position, as accept-' ed by the Trial Examiner, that it had ample justifica- tion for the use of the aforementioned questionnaire, does not withstand analysis. The record reveals that 22 of the applicants who had been given the question- naire were hired before the strike began, and conse- quently before the strike replacements were nec- essary. The rumors and alleged reports, relied on by Respondent, were never confirmed with the local president nor were they supported by adequate testi- mony at the hearing .4 In this connection, there is no evidence in the record that the Union conferred with Respondent about any strike action prior to the used of the questionnaire. Furthermore, we do not agree i with the Trial Examiner that events which took place subsequent to the initial use of the questionnaire can be used to justify the questionnaire. Respondent's ad- mission at the hearing that the decision to use the questionnaire might have been made before the first bargaining session further weakens Respondent's 3 The Trial Examiner found that such rumors did exist , but considered testimony with respect to the same weak , because of Respondent's failure to call the named supervisors allegedly responsible for these rumors to testify at the hearing. ° The Trial Examiner stated in his decision that "the only weak spot in his testimony deals with the first vague `rumors' of early use of a strike as a negotiating weapon, coming from named supervisors who were not called to give details . . claim that this decision was based, in part, on the magnitude of the Union's demands. We also find, contrary to the Trial Examiner, that the poll of the bargaining committee on August 14 was not self-serving but was a legitimate means of disclaiming rumors of an intention to come to the bargaining table with a "strike vote in hand." Nor do we consider the union president's testimony concern- ing his conversations with employees during May and June an admission of an intention to strike; we view it only as an expression to employees of their rights as guaranteed by the union constitution. These discus- sions dealt more specifically with the right of employ- ees to have at least two opportunities to vote on whether they wanted to strike. In this regard, no strike action was taken until well after the implementation of questionnaire. In addition, we do not agree with the Trial Examiner's application of the "small plant" rule concerning the strike rumors, especially in the present case, where the plant has more than 350 employees. Furthermore, when the interrogation of applicants commenced, the Respondent had no basis to fear an imminent strike, as the contract was not to expire until October 1. Indeed, the record shows that the Respon- dent discontinued using the questionnaire after the September 29 extension of the contract containing the 10-day notice of termination proviso. Surely, if this provision for 10 days' notice before strike was suffi- cient to allay any fears of a strike, the Respondent could not have had any such genuine fear 6 weeks or more prior to the termination of the contract contain- ing a no-strike clause. In short, Respondent's justifi- cation was based solely on strike rumors which it did not attempt to verify with the union leadership. The Board has never privileged the interrogation of applicants concerning their willingness to cross a picket line except in situations where a strike was in progress.' This is not to say, however, that there are no situations where such interrogation of employee applicants would not be justified.6 We are, however, of the view that this case does not present such a situation. In the circumstances of this case, to make privileged the' Respondent's use of the questionnaire 6 weeks'before the expiration of the contract, and at the very outset of bargaining, would severely limit and pervert the Section 7 rights of the employee appli- cants. Accordingly, as Respondent lacked a valid jus- tification for the use of the questionnaire, its interrogation of job applicants must be deemed viola- tive of Section 8(a)(1) of the Act? We shall amend the recommended Order and notice accordingly. 5 Roadhome Construction Corp, 170 NLRB 668, 674. 6 The General Counsel does not contend that such interrogation is a per se violation of Sec. 8(a)(1). 7 Clark Printing Company, Inc, 146 NLRB 121, Da-Life Screen Company, Inc, 154 NLRB 926, 930. 244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Trial Examiner as modified below and hereby orders that W. A. Sheaffer Pen Company, Di- vision of Textron, Inc., its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order as herein modified: 1. Redesignate paragraphs 1(a) and 1(b) as para- graphs 1(b) and 1(c), respectively, and add the follow- ing as paragraph 1(a) of the Trial Examiner's recommended Order: "(a) Requesting or requiring prospective employ- ees, in anticipation of or during any negotiations with the above Union or any other labor organization of its employees, to answer questions on or connected with their applications for employment as to their willing- ness or unwillingness to cross a picket line in the event of a strike." 2. Substitute the attached notice for the Trial Examiner's notice. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government ingness to cross a picket line in the event of a strike, without assuring them at the same time that their answers to or failure to answer such questions will not be used for any type of reprisal in the future against them as prospective employ- ees or employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce prospective em- ployees or our employees in the exercise of any rights guaranteed to them by Section 7 of the Act. All our employees are free to become, remain, or refrain from becoming or remaining, members of the above-named Union or any other labor organization. Dated By W. A. SHEAFFER PEN COMPANY, DIVISION OF TEXTRON, INC. (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Savings Center Tower, 10th Floor, 411 Hamilton Boulevard, Peoria, Illinois 61601, Tele- phone 309-673-9061, Ext. 282. After a trial in which all parties participated and of- fered evidence, the National Labor Relations Board has found that we violated the law and has ordered us to post this notice and take the action indicated in it. We intend to carry out the Order of the Board and we hereby notify you that: WE WILL NOT, in anticipation of or during any negotiations with International Union, United Automobile, Aerospace and Agricultural Imple- ment Workers of America, its Local 1551, or any other labor organization of our employees, re- quest or require prospective employees to answer questions on or connected with their applications for employment as to their willingness or unwill- ingness to cross a picket line in the event of a strike. WE WILL NOT, in anticipation of or during any negotiations with International Union, United Automobile, Aerospace and Agricultural Imple- ment Workers of America, its Local 1551, or any other labor organization of our employees, re- quest or require prospective employees to answer questions on or connected with their applications for employment as to their willingness or unwill- TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE EUGENE F. FREY, Trial Examiner: This case was tried before me on March 7, 1972, at Fort Madison, Iowa, with all parties represented by counsel, after pretrial procedures in compliance with the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq. (herein called the Act). The issues raised by the pleadings' are whether or not Re- spondent, W. A. Sheaffer Pen Company (a division of Tex- tron, Inc.), during contract negotiations with the above-named Union 2 as statutory bargaining agent of Respondent's employees in an appropriate unit, questioned applicants for employment about their union activities and desires, by having them answer a questionnaire as part of their application for employment, indicating whether they would cross a picket line to work if the Union went on i The issues anse on a complaint issued November 26, 1971 , by the Officer- '-Charge of the Board's Sub-Region 38, after due Board investigation of a charge filed by the above-named Union on September 7, 1971, and answer of Respondent which admits jurisdiction but denies the commission of any unfair labor practices, and raises certain affirmative defenses of fact and law. 2 The term "Union" herein refers interchangeably to the Union as named in the caption and to its Local 1551 , which actively represented employees in the unit. W.A. SHEAFFER PEN COMPANY strike, and has maintained such information as part of the personnel files of such applicants, in violation of Section 8(a)(1) of the Act. At the close of the testimony the Trial Examiner reserved decision on Respondent's motion to dis- miss the complaint on the merits. At the close of the trial all parties waived oral argument, but filed written briefs with me by April 18, 1972; these have been carefully consid- ered by me in disposition of Respondent's motion to dismiss the complaint herein and in reaching the findings of fact and conclusions of law in this Decision which was signed and released by me on May 9, 1972, for distribution to the parties in the usual course. Upon consideration of the entire record in the case, including my observation of the demeanor of witnesses on the stand and analysis of the arguments of counsel, I make the following: FINDINGS OF FACT 1. RESPONDENTS BUSINESS AND THE STATUS OF THE UNION Respondent is a Delaware corporation with an office and place of business and plant located at Fort Madison, Iowa, where it is in the business of making writing instru- ments and accessories. In the past 12 months it has had a direct outflow of finished products from said plant and direct inflow of goods and materials to said plant, valued in each instance in excess of $50,000. I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES 3 A. Preliminary and Background Events As a result of elections conducted in Cases 38-RC-391, 38-RC-486, and 38-RC-490, and an Amendment of Certi- fication in Case 38-AC-7, the Union was certified in 1968 as the statutory bargaining agent of Respondent's employ- ees in an appropriate unit. From September 1968 to October 1, 1971, Respondent and the Union were operating under a collective-bargaining agreement which expired October 1, 1971. That agreement contained a clause prohibiting strikes by employees during the lire of the agreement. On July 28 the Union gave Respondent due notice that it was reopening the current contract. On August 14 the Union held a meeting of members in the unit to get approval of the proposals to be submitted to Respondent. On August 17 the parties held their first meeting, at which the Union presented its written contract demands; this meeting merely explored those demands. Later negotiotion sessions were held September 1, 14, 21, 22, and 23. On September 30 the parties agreed in writing to extend the current contract be- yond October 1, with the understanding that either could 3 All dates found herein are in 1971 unless otherwise stated. 245 terminate it (as extended) on 10 days' written notice, and that negotiations would continue during the extended pen- od. On September 30 or October 1, the Union openly noti- fied employees on the plant bulletin board of a special meeting on Sunday, October 10, to discuss the status of the contract negotiations, and allow the employees to accept or reject the language which the Union had worked out with Respondent to that date. The notice advised that "at this time, if the membership is dissatisfied with the terms of the proposed contract, a strike vote will be taken." At the meet- ing a large majority of the employees present voted to reject the contract terms, and to apply to the International Union for a strike authorization .4 On October 31, the Union gave Respondent notice by telegram that it was serving the 10- day termination notice effective November 1, and that if no agreement was reached by November 10, the Union would strike. The strike actually began at 12:01 a.m., November 11. The parties continued negotiations and reached agree- ment on a contract November 19. The employees ratified the agreement on November 19 or 20, the contract was executed November 22, and the employees returned to work November 23.5 B. The Alleged Illegal Questionnaire The record shows that between August 20 and Novem- ber 4, Respondent attached to its usual form of employment applications a slip reading as follows: The W.A. Sheaffer Pen Company is currently engaged in contract negotiations. In the event of a strike, the plants may be picketed. Would you be willing, under these conditions, to cross a picket line when entering or leaving the plant? Yes No (Signature & Date) The applications were given to applicants for employment with the slip attached, without any specific mention of the slip or instructions or directions that questions on the slip must be answered. Between August 20 and November 4, 649 applicants filled out the basic applications with 185 of them answering "NO" to questions on the slip, 440 answering "YES," and 14 not answering either question. Respondent discontinued attaching the slip to applications on Septem- ber 29, the day it agreed with the Union orally on the indefinite extension of the contract term, resumed its use on November 4, and discontinued it entirely on November 22, the day the contract was signed. When Respondent resumed use of the slip on November 4, it pulled from its personnel files all prior signed applications with the slip attached, and has not since used them in hiring employees. However, prior to that date, it had hired 22 of the applicants who had been given the slip; 8 of these did not answer the slip questions, 9 marked it "YES," and 5 marked it "NO." Three of the 22 were former employees and union members. Under the Union's procedure, vote of a majority of unit employees can authorize such application. If the parent Union grants it, the local members must then vote by a two-thirds majority vote to use the strike authority 5 The above facts are found from stipulated and uncontradicted testimony. 6 The above facts are found from stipulated and uncontradicted testimony. 246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. Contentions of Parties, with Final Conclusions The narrow issue is the legality vel non of the procure- ment and maintenance in personnel files of the applications with questions slips attached. General Councsel relies on decisions holding that use of employment applications which require prospective empoyees to indicate their union membership or desires is inherently coercive in violation of Section 8(a)(1) of the Act,7 and argues that questions which require prospective employees to disclose their willingness to cross a picket line are likewise coercive as an extension of these rulings, citing Tidelands Marine Services, Inc., 144 NLRB 176, 189. He admits, however, that interrogation of this type could be privileged if Respondent showed substan- tial justification for it and also gave applicants certain assur- ances against discriminatory use of such information.8 Respondent claims it had ample justification for use, of the question slip because it had good reason to believe, before negotiations began, that the Union would probably strike during negotiations, that this belief was strengthened by the course of the negotiations and actions of the Union and fully confirmed by the fact of the strike, hence it had good and increasing economic justification from July on- ward for investigating the labor pool in order to find out if it could secure a work force which would enable it to contin- ue operations during a strike. On this point, Respondent adduced testimony of Personnel Manager William H. Met- zinger, Jr., and his secretary, Carolyn E. Wagner, which, in light of admissions of Union Negotiators Robert E. Roberts and Charles F. Weed, credibly shows that: As early as July, Metzinger began to get reports almost daily from at least four named production superintendents and department managers that they had heard remarks from employees to the effect that the union negotiating committee intended to come to the bargaining table with a strike authorization, and that there would probably be a strike. Metzinger re- layed these reports to Ned Bishop, president of Respondent. Management officials, including Bishop and Metzinger, held a meeting early in August to discuss procedure in event of a strike. They discussed two alternatives, closing the plant down or continuing to operate it. On the basis of the strike rumors, Bishop issued a letter to all employees on August 12, which read as follows: TO ALL SHEAFFER EMPLOYEES: As you know, there is a meeting planned for Saturday morning by the UAW members employed at Sheaffer. This meeting is of vital concern to each of us. Word has been passed along that the UAW negotiating committee wants to enter negotiations with a strike vote in hand. The first meeting for new contract negotiations is scheduled for August 17. In order to have a successful conclusion to these negotiations it is imperative that both parties negotiate in good faith. It does not seem reasonable that entering negotiations with this attitude r Hydro-Molding Company, Inc, 183 NLRB No. 72, Sterling Aluminum Company, 163 NLRB 302. 8 Clark Printing Company, Inc, 146 NLRB 121, Da-Life Screen Company, Inc, 154 NLRB 926,930 See also Struksnes Construction Co. Inc., 165 NLRB 1062. and in this atmosphere contributes to smooth and co- operative negotiations. I, therefore, feel it vitally important that union mem- bers in good standing attend this meeting and voice your opinion so that the UAW officers and officials are well informed of your feelings concerning the coming negotiations. It is essential that if a vote is taken, your vote be heard and counted. The UAW should be repre- senting you and your desires. Since the UAW is also the bargaining agent for non- union employees in the bargaining unit, it is vitally important that these non-union employees voice their feelings to union members and officials so that the UAW truly represents the employees of the W.A. Sheaffer Pen Company. You have a responsibility to your Company and your fellow employees to become involved in the coming events. The Union did not reply officially to this letter, but its officers discussed it with employees at a meeting on August 14. There was no oral communication, official or casual, on this subject by union officials to company officers or agents. In a meeting on August 17, the date of the first bargain- ing session,management decided to continue production dur- ing a strike, and Metzinger was directed to investigate the local labor pool to find out if the plant could get enough new workers to continue production. This was necessary because Respondent had not advertised for help for many years past, relying upon the normal flow of applicants for work which had usually been sufficient to fill its labor require- ments. Respondent began advertising for help in local news- papers on August 20. After receiving advice from counsel that Respondent had the right under the Act to hire perma- nent replacements for strikers in event of an economic strike, Metzinger was directed on August 17 to prepare and use the question slip aforesaid as part of applications for employment. The slip was thus given to each applicant for work, but without any comment or instructions about the need for answering the questions on it. Respondent had never used this type of question slip before at the plant. Respondent procured applications with the slip attached from August 20 to September 29, discontinuing the slip that date because of the agreement for extension of the contract period during continued negotiations, which Respondent considered an indication that a strike was not imminent. The use of the slip was resumed only after Respondent received the Union's 10-day notice of termination of the extended contract period; the notice was received appar- ently sometime in the week of November 1 and before November 4. The receipt of the notice terminating the con- tract with its no-strike provision, after the Union's public announcement of the October 10 union meeting with a pos- sible strike vote on the agenda, was clear notice to Respon- dent that the Union would strike after November 10 if agreement on a contract was not reached by that time. However, on advice of counsel based apparently on notice that the Board was in process of issuing the complaint here- in, Respondent did not use any of the applications with slip attached which had been received and not processed into actual hirings up to November,4.9 The single replacement 9 This excludes the 22 employees hired before November 4 from that batch W.A. SHEAFFER PEN COMPANY 247 hired during the strike came only from applications with slip attached filled out during the strike. When Respondent on August 17 received the Union's initial demand for high wages and other provisions, such as a proposed skilled trades preference clause and an incentive wage program, management felt that the magnitude of the demands lessened the probability of quick agreement and made the rumored strike more probable. After four bargain- ing sessions, the parties had not agreed on any provisions, and were particularly far apart on the Respondent's propos- al of further limiting the downgrading practice; Respondent wanted to restrict the practice, which would affect seniority, but the Union wanted to make it more flexible, because it considered seniority "the basic backbone of the contract." At the bargaining meeting of September 22, Robert E. Rob- erts, an International representative from the parent union, gave various arguments against Respondent's transfer and hiring practices which he claimed were detrimental to sen- iority, and bluntly told company representatives on the downgrading issue that, if all other issues were settled sat- isfactorily between them, and that issue remained, "this will, shut the plant down, make no mistake about it." 10 Attorney Haynes replied that "unless you come up with something in between, you may dust have to do that." After further dis- cussion of the issue, the parties could not agree, and when Roberts was leaving at the end of the meeting he com- mented that "we had a lot of work to do" and had only a "short time to reconcile our differences." When Charles F. Weed, another agent from the parent union, took Roberts' place in the negotiations on September 23, he accused both sides of "not facing up to their responsibilities," referring to company releases in local newspapers, and indicating they were not carrying on negotiations which would result in an agreement. After Weed came in, the parties apparently reached tentative agreement on the downgrading practice, but the Union withdrew its acceptance of it before the strike.'' In light of the total absence of proof of disharmony between Respondent and the Union during the term of the 1968-71 contract (which General Counsel concedes), or of any other conduct by Respondent prior to August indica- ting animus toward the Union, I must conclude that the testimony adduced from company witnesses, as well as Roberts and Weed, affords strong support for the defense that the question slips had only the limited purpose of de- termining the availability of people for work in event of a strike, which was fully justified by the sequence of events indicating first the possibility, then the probability, and fi- nally the confirming event, of a strike.12 The only weak spot of applications. 10 This remark is found from credited testimony of Metzmger and Wagner, as corroborated in part by admissions of Roberts that he told the Company it would never get its downgrading proposals , that if it expected to get them "I do not want you to hold your breath, you would have a short life " He also admitted that the promise of a strike was a reasonable "connotation you could put on" these remarks . Union President William S Baker also admitted possibility of a strike had been discussed within the union negotiating com- mittee before that, and that a strike was always possible during negotiations "Weed's conduct and remarks are based mainly on his admissions 12 Insofar as Respondent was questioning outsiders to learn how large a work force would be available instantly, the case appears somewhat stronger than the situation in Roadhome, supra where the interrogation was directed to striking employees about the sentiments and conduct of other employees. in this testimony deals with the first vague "rumors" of early use of a strike as a negotiating weapon, coming from named supervisors who were not called to give details, but it finds support in the admissions of Baker that in numerous meet- mgs with employees in all departments as early as May and June to learn their contract demands, strikes were often discussed, with Baker explaining the detailed procedure for securing strike authority under the Union's constitution, including the right of the employees to have at least two strike votes. Although there is no proof that the Union officially or otherwise talked to Respondent about the pos- sibility or probability of a strike (before the September 30 posting of the notice of the union meeting of October 10), it is a fair inference that Baker's talks with employees about strikes were later discussed freely among employees throughout the plant of about 350 workers, and that the substance of these talks more than likely came to the ears of supervisors and officials in the normal course.13 In addi- tion, Respondent must have been aware, as the Union was, from the moment the Union moved to reopen the contract for negotiation, that a strike was an ever-present threat thereafter, as the traditional ultimate weapon used by labor organizations in negotiations and economic disputes with employers. All of these considerations strongly negate the inference of an ulterior, antiunion motive which General Counsel seeks to draw from the circumstance that the inter- rogation in question was first used about 6 weeks before the contract, with its no-strike clause, was due to expire; and the inference is further weakened by the significant fact that Respondent stopped usage of the questionnaire as soon as the Union suggested, and then agreed to, extension of the contract term, which directly supports Metzinger's story that Respondent felt the strike threat had thus receded, obviating the immediate need for further stockpiling of a possible labor pool for use in a strike.14 I find no merit in the argument of General Counsel that the early "rumors" of a strike could not justify the later interrogations because Respondent made no attempt to ver- However, the case for justification is weaker than Roadhome in that Respon- dent was interrogating 649 applicants in a systematic way over a long period of time, long before an actual strike took place 13 The same considerations which lead the Board to consider the small size of a plant in determining whether an employer is likely to have knowledge of union activity among his workers should apply in deciding whether rumors of strike activity in a small plant are likely to come to the attention of management, especially where the top union official engages in widespread talk about strikes with workers in all departments and there was apparently no attempt to keep discussion of union matters secret. See The Circle KCorp, 173 NLRB 713, 715. 14 In attacking the justification offered by Respondent, the Union relies heavily on an admission of Metzinger that one Laverne Bartlett, who signed "NO" to the questionnaire , was "restored" to work on July 22, to indicate that the questionnaire, was first used on that date, or before, at a time further removed from the actual strike. However, comparison of his testimony and the records in evidence clearly shows he read the Bartlett record incorrectly, for it shows clearly she was rehired September 13, almost a month after the questionnaire was first used as found above If anything, her case shows that Respondent in September and October was rehiring former employees who were union members, even though they had indicated "NO" on the question- naire, for out of five applicants who wrote "NO," Respondent hired two (Treatch and Bartlett) in September, and three (Spring, Chainlee, and Burch) in October; and Bartlett, Treatch, and Burch had been former employees and known union members This indicates strongly that in the period before the strike Respondent was hiring and recalling people on the basis of past expe- rience or other qualifications, even though they indicated they would not cross a picket line, and was not using their answers as a basis for discrimma- tion. 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ify the reliability of the rumors in any way, even through discussions with the Union. The obvious answer is that in making almost any type of investigation, other than ques- tions to supervisors, Respondent would probably have been charged with violation of the Act such as deliberate interro- gation of employees, or direct or indirect coercion such as spying or surveillance; and it could hardly have expected the Union to state openly it would never use its traditional strike weapon, if questioned directly about its intentions. Nor can I view the company letter of August 12 as a "self-generated strike scare" and part of its bargaining strat- egy, which would weaken the claim of economic motive. Aside from open interrogation of employees in the unit or the Union itself about its intentions, with the danger of more charges of violation of the Act, the letter seems to be a legitimate means of bringing to the attention of all em- ployees, for discussion or answer, what it had heard about a possible strike. The fact that the Union did not choose openly to deny or otherwise answer the letter on this point does not negate, but rather strengthens, Respondent's reli- ance on the rumors as having some substance in fact.I5 General Counsel also argues that, even if the question- naire had a valid justification, it was still coercive and not privileged because the applicants for work were not given proper assurances that their answer (or nonanswer) of the questions would not be used for future discrimination or reprisal against them, one of the criteria for legal interroga- tion outlined in Struksnes Construction Co., Inc., 165 NLRB 1062.16 Respondent admits that this requirement was not satisfied in its proffer and use of the questionnaire, but argues that if applied in the circumstances here, protection of applicant's rights under the Act would have required Respondent to assure each applicant he would be hired regardless of his response to the questions, as the assurance of employment would have been useless for those who indi- cated they would not cross a picket line to work. I consider this reasoning faulty, in that it assumes Respondent had to guarantee any applicant a job, regardless of his response (or nonresponse) to the questions. The Act does not require an employer to hire applicants on the basis of their union or nonunion sentiments, but forbids refusal to hire on that basis; it has always permitted employers to hire or refuse to hire on the basis of experience or any other qualifications or factor, provided union or nonunion activity or sentiments is not a factor. Here, Respondent could easily have met this requirement by adding to the questionnaire a statement to the effect that an applicant's response or nonresponse to the questions would not be used for any type of reprisal against him in future, whether as a prospective employee or actual employee; and if the questionnaire was justified to enable Respondent to find out if an applicant was available for work in event of a strike, it is a weak argument to say that failure to hire him because he said "NO" was discriminato- ry, for it is very likely that a request to him to report to work across a picket line would have been futile. It also appears that the whole issue could reasonably have been avoided if Respondent had accumulated a stockpile of 649 signed ap- plications without the questionnaire, and waited until the date of actual need for workers to call applicants and then find out by calling qualified applicants if any applicant would cross the picket line to work; this trial-and-error method would probably have required calls to more appli- cants than otherwise, but would have avoided one of the pitfalls created by the Struksnes decision.17 On the basis` of the above facts and authorities, I must conclude that the use of the question slips for the period and to the extent found above was not accompanied by a vital safeguard required by Board precedents for the protection of the statutory rights of applicants for employment, who for this purpose are considered in the same class as employ- ees, hence the systematic interrogation thus involved was not privileged even though made for a legitimate economic purpose, and must be presumed to have had a coercive impact upon applicants for employment, in violation of Section 8(a)(1) of the Act. As a corollary I also conclude that it is a fair inference that continued maintenance of said applications with slip attached in the personnel records of Respondent may well be the source of future discriminatory action against these and other applicants for employment, including former employees, and thus have a coercive im- pact on them, in continuing violation of Section 8(a)(1) of the Act." III THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section II, above, occurring in connection with Respondent' opera- tions described in section I, above, hava a close, intimate and substantial relationship to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. - IV THE REMEDY IS Baker's self-serving attempt to shy away from discussion of the rumors in the August 14 membership meeting , and his claim of rather obvious polling of the bargaining committee to bring out that none of them had talked about starting negotiations with a strike vote in hand, does not weaken Respondent's defense, for he was obviously trying in testimony to counter Pespondent's legitimate appeal to all employees in the unit to attend the meeting so that they would know what was going on, and could vote on matters affecting them, including a possible strike vote. 16 The Union also argues that the requirements in that case of a secret poll and disclosure of the reasons for the questions to the applicants were not met. I find that since the query was not made to ascertain the truth of a union claim of majority status, but the availability of a nonworker for work in event of a strike, the requirement of secrecy should not apply, and the question slip itself plainly told the applicants that the questions were asked because Re- spondent was presently in contract negotiations, and there might be picketing in event of a strike. Having found that Respondent has engaged in certain ,limited unfair labor practices , I shall recommend that it cease and desist therefrom and from any like or related conduct, and take certain affirmative action designed to effectuate the policies of the Act, including the removal from its personnel files and any other records of the ques- tion slips procured with all applications for employment i7 The fact that Respondent found it necessary to hire only 19 new workers from the mass of applications received before the strike , and only one, Judy Wilson, during the strike, somewhat detracts from the sincerity of the claimed justification for the mass interrogation. is The above findings and conclusions make it unnecessary to review and make findings on other facts cited and arguments made by the parties in their beefs W.A. SHEAFFER PEN COMPANY 249 submitted to and signed by applicants for employment on and after August 20, 1971, and physical destruction of such slips and any other records of the information contained thereon. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce, and the Union is a labor organization, within the meaning of the Act, 2. By requesting applicants for employment during negotiations with the Union to answer questions on their employment applications as to their willingness or un- willingness to cross a picket line in the event of a strike, without assurances against reprisal for their answer to or failure to answer such questions, and by maintaining such information in its personnel files, Respondent has interfered with, restrained, and coerced applicants for employment in the exercise of rights guaranteed to them by Section 7 of the Act, and has thereby engaged in and is engaging in unfair labor practices affecting commerce, within the meaning of Section 2(6) and (7) and 8(a)(1) of the Act. Upon the basis of the foregoing findings of fact, conclu- sions of law, and the entire record in the case , and pursuant to Section 10(c) of the Act, I hereby issue the following recommended:19 ORDER Respondent, W.A. Sheaffer Pen Company, Division of Textron, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Requesting or requiring prospective employees, in anticipation of or during negotiations with the above Un- 19 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. ion or any other labor organization of its employees, to answer questions on or connected with their applications for employment as to their willingness or unwillingness to cross a picket line in the event of a strike, without assuring them at the same time that their answers to or failure to answer such questions will not be used for any type of reprisal in future against them as prospective employees or employees. (b) In any like or related manner interfering with, re- straining, or coercing prospective employees or employees in the exercise of rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: (a) Remove from its personnel files and other records the question slips submitted to or procured from prospective employees as part of their signed applications for employ- ment on and after August 20, 1971, and destroy such ques- tion slips and delete the information contained thereon from any other records on which it may have been recorded. (b) Post at its plant and place of business in Fort Mad- ison, Iowa, copies of the notice attached hereto as "Appen- dix."20 Copies of said notice, on forms to be provided by the Officer-in-Charge of Sub-Region 38, after being duly signed by Respondent's representatives, shall be posted by Re- spondent immediately upon receipt thereof and be main- tained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify said Officer-in-Charge, in writing, within 20 days from the date of receipt of this Decision, what steps Respondent has taken to comply therewith.21 20 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 21 In the event that this recommended Order is adopted by the Board after exceptions have been filed , this provision shall be modified to read : "Notify the Officer-in-Charge for Sub-Region 38, in wasting, within 20 days from the date of this Order, what steps the Respondent has taken to comply there- with "