Before MOORE, FRIENDLY, and MARSHALL, Circuit Judges.
MARSHALL, C. J.: The National Labor Relations Board seeks enforcement of its order against The Lorben Corporation issued May 11, 1964 and reported 146 NLRB No. 174. As the result of our determination of the merits we find it unnecessary to discuss the challenge to the procedure of consolidating the original charge and complaint with the second ones other than to say that the procedure was proper, see, NLRB v. Coca-Cola Bottling Co., 195 F.2d 955, 956 (8 Cir. 1952).
The basic facts are simple and undisputed. On April 1, 1963 Local 1922, International Brotherhood of Electrical Workers, AFL-CIO, began organizing respondent's plant and secured the adherence of four of the 25 or 26 employees. On April 4 the union held a meeting to decide what to do about the discharge of one of the employees believed to have been discharged for union activities. A strike was decided upon and picketing began the next day with placards reading:
"Employees of Lorben Electronics Corporation on Strike - Please help us maintain decent working conditions."
About two days later the discharged employee asked respondent's president whether he wanted to have any discussions with the union's officials and the president said he did not want to do so. Subsequently, respondent's president on advice of counsel, prepared a paper with a question:
"Do you wish Local 1922 of the Electrical Workers to represent you?"
Under this were two columns, "yes" and "no." The plant superintendent handed the sheet to each employee explaining to each that each was free to sign or not sign. This was done throughout the plant.All of the employees signed in the "no" column. There is no evidence of any employer hostility to the union and the Trial Examiner found an absence of any "other unfair labor practices." However, the Examiner found that the respondent had violated the Act. While the Examiner mentioned the failure of respondent to advise the employees of the purpose of the interrogation and to assure them that no reprisals would follow, he based his decision primarily on his finding that the respondent had no legitimate purpose for the interrogation.The Board based its decision on the first two reasons and refused to rely on the third. We deny enforcement of the Board's order.*fn1
Employer interrogation of employees as to their desire to be represented by a particular union is not coercive or intimidating on its face. It is extremely difficult to determine how often and under what circumstances threats will be inferred by the employees. The resulting confusion from efforts to set up basic ground rules in this field is carefully explored by Prof. Derek C. Bok, The Regulation of Campaign Tactics in Representation Elections Under the National Labor Relations Act, 78 Har. L. Rev. 38, 106 (1964).
The problem of delineating what is coercion by interrogation has resisted any set rules or specific limitations. The Board's original determination that interrogation by the employer was unlawful per se, Standard-Coosa-Thatcher Co., 85 NLRB 1358 (1949), was disapproved by the courts and the Board retreated to the position that interrogation would only be unlawful where it was found to be coercive in the light of all surrounding circumstances. As the Board stated in Blue Flash Express, Inc., 109 N.L.R.B. 591, 594 (1954):
"We agree with and adopt the test laid down by the Court of Appeals for the Second Circuit in the Syracuse Color Press case 209 F.2d 596, cert. denied, 347 U.S. 966, 74 S. Ct. 777, 98 L. Ed. 1108 (1954)) which we construe to be that the answer to whether particular interrogation interferes with, restrains, and coerces employees must be found in the record as a whole."
In Bourne v. NLRB, 332 F.2d 47, 48 (2 Cir. 1964), this Circuit reaffirmed this comprehensive approach and we attempted to suggest some of the many factors that must be considered anew in each case to determine whether a particular interrogation is coercive:
"(1) The background, i.e. is there a history of employer hostility and discrimination?
(2) The nature of the information sought, e.g. did the interrogator appear to be seeking information on which to base taking ...