International Telephone and Telegraph Corp.

National Labor Relations Board - Board Decisions

Jun 25, 1970

183 N.L.R.B. 1129 (N.L.R.B. 1970)

ITT TELECOMMUNICATIONS
ITT Telecommunications , a Division of International
Telephone and Telegraph Corporation and Com-
munications Workers of America , AFL-CIO.
Case 26-CA-2899
June 25, 1970
DECISION AND ORDER
BY MEMBERS FANNING, MCCULLOCH, BROWN, AND
JENKINS
On July 3, 1968, Trial Examiner Thomas A.
Ricci issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices in violation of the National Labor Rela-
tions Act, as amended, and recommending that it
cease and desist therefrom and take certain affir-
mative action, as set forth in the attached Trial Ex-
aminer's Decision. Thereafter, the Respondent filed
exceptions to the Trial Examiner's Decision and a
supporting brief, and the General Counsel filed
cross-exceptions to the Decision and a supporting
brief, and a request to the Board for special permis-
sion to appeal ruling of the Trial Examiner and ap-
peal to the Board, and the Respondent filed a reply
brief to the General Counsel's cross-exceptions. On
October 17, 1968, the Board upheld a subpena by
the General Counsel calling upon the Respondent
to produce a certain document and remanded the
case to the Trial Examiner to reopen the hearing
and receive the document into evidence. After
court enforcement of the subpena, the hearing was
reconvened, and the Trial Examiner issued his at-
tached Supplemental Decision on December 31,
1969, reaffirming the findings, conclusions, and
recommendations in his original Decision.
Thereafter, the Respondent filed further exceptions
to the Trial Examiner's Decision and a supporting
brief, the General Counsel filed exceptions to the
Decision and Supplemental Decision and a support-
ing brief, and the Respondent filed a brief in
response to the General Counsel's exceptions.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the Supplemental Deci-
sion, the exceptions and briefs, and the entire
record in this case, and hereby adopts the findings,
conclusions, and recommendations of the Trial Ex-
aminer , only to the extent consistent with the Deci-
sion herein.
We find, contrary to the Trial Examiner, that,
under the circumstances of this case, the Respon-
1129
dent's actions of having its employees answer a
questionnaire concerning their working conditions
and eliciting employees' complaints at group
meetings do not constitute interrogation of em-
ployees' attitude toward unionism, such as would
be a violation of Section 8(a)(1) of the Act.
On October 9 and 10, 1967, the Respondent had
its employees answer a written questionnaire, in-
structing the employees not to indicate their names,
departments, or supervisors. In December, the
Respondent held meetings with about 50 employees
at a time, in the absence of supervisors, at which
time it advised them of the results of the written
questionnaire and elicited any complaints or re-
quests they might have.
We agree with the Trial Examiner that the
questioning that took place in December was no
more than a continuation of the October question-
ing. Regarding both of these incidents, the only
mention of a union or unionism was in question 77
of the questionnaire which stated: "Many company
employees I know would like to see the union get
in." In answer to this statement, the employees
were supposed to mark boxes indicating that they
agreed, disagreed, or had no opinion.
We find question 77 to be innocuous when ob-
served in the factual circumstances of this case, and
its presence in the questionnaire insufficient
evidence that the purpose of the questionnaire was
to learn the employees' attitude towards unionism.
The solicitation of employee grievances by an
employer is not illegal unless accompanied by an
express or implied promise of benefits specifically
aimed at interfering with, restraining, and coercing
employees in their organizational effort. It does not
appear, upon consideration of all attendant cir-
cumstances, that the actions of the Respondent
were taken with this objective. Therefore, such
conduct as taken by the Respondent, we conclude,
does not violate Section 8(a)(1) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act , as amended , the National Labor
Relations Board hereby orders that the complaint
herein be , and it hereby is , dismissed in its entirety.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
THOMAS A. Ricci, Trial Examiner: A hearing in
the above-entitled proceeding was held before the
183 NLRB No. 115
1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
duly designated Trial Examiner at Corinth, Missis-
sippi, on March 5, 1968, on complaint of the
General Counsel against ITT Telecommunications,
a division of International Telephone and Tele-
graph Corporation, herein called the Respondent or
the Company. The charge was filed on October 3,
1967, and the complaint issued on November 24,
1967. The sole issue presented is whether the
Respondent violated Section 8(a)(1) of the Act.
On motion by the General Counsel filed on April 8,
1968, the hearing thereafter was reopened to afford
the General Counsel an opportunity to file an in-
terim appeal to the Board seeking reversal of a rul-
ing made by the Trial Examiner in the course of the
hearing. The Board denied the General Counsel's
request for leave to appeal and on April 19, 1968,
by order of the Trial Examiner, the hearing was
again closed. Briefs have been filed by the General
Counsel and the Respondent.
Upon the entire record and from my observation
of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a Maryland corporation
operating a plant at Corinth, Mississippi, where it is
engaged in the manufacture of electronics and
telecommunications equipment. During the past 12
months the Respondent purchased and received at
this plant directly from points located outside the
State of Mississippi materials and supplies valued in
excess of $50,000. During the same period of time
it manufactured, sold, and shipped from its plant
directly to points located outside the State products
valued in excess of $50,000. I find that the Respon-
dent is engaged in commerce within the meaning of
the Act, and that it will effectuate the policies of
the Act to exercise jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Communications Workers of America,
AFL-CIO, herein called the Union , is a labor or-
ganization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
The Issue
There is no substantial dispute as to the facts. In
the fall of 1967 there were between 570 and 600
employees in this plant and over a 2-day period, on
October 9 and 10, each one of the employees was
asked to respond to a lengthy written questionnaire,
or survey, listing 98 items. The survey is primarily a
psychological and scientific probing into the at-
titude of the employees towards their work, their
plant surroundings, and every aspect of their lives
in relationship to their Employer. The inquiry is in
the form of a series of statements of fact, or
declarative sentences , each followed by three
squares with the employee asked to check one-in-
dicating agreement, disagreement, or no opinion.
Only one question-statement makes any reference
to the work "union," or to the entire concept of
concerted activities or collective bargaining.
Question 77 reads: "Many company employees I
know would like to see the union get in."
The complaint alleges that the act of subjecting
the employees to this survey, questionnaire, inter-
rogation-whatever it be called-constituted
restraint and coercion within the meaning of Sec-
tion 8(a)(1) of the Act. Many collateral conten-
tions are urged in support, but essentially the
charge centers upon the fact that the survey does
include question 77. Precedent support is said to be
Struksnes Construction Co., Inc., 165 NLRB 1062,
where the Board ruled that a polling of employees
concerning their desires about union representa-
tion, except under specific conditions, is an unfair
labor practice. There are many arguments made in
defense, chief among them that this is not inter-
rogation at all, and that even if it is its aim was to
achieve greater motivation towards efficient and
productive work.
Facts
The Union has been attempting to organize the
Respondent's employees at least since 1965, and,
upon a representation petition a Board-conducted
election was held on February 8, 1967. The results
were 340 votes against union representation and
229 in favor. Sporadically thereafter, perhaps once
a month, the Union's International representative
stayed in touch with the union in-plant committee,
until, on September 19 and 20, there were two such
meetings, and distribution of signature cards was
resumed.
On October 9 and 10, the Company took its sur-
vey of employee sentiment. The workmen were
called into a conference room, near the offices, in
groups, sometimes only one department, sometimes
several departments together. They were invited to
sit at the tables indiscriminately, and the meetings
were conducted by several members of the
psychology department of the University of Missis-
sippi. These teachers also are regularly employed
by the Respondent to assist in diverse aspects of
management functions. The questionnaire sheets
did not reveal the name of the individual employee,
or his department, or his supervisor. The person in
charge read off the successive numbered statement-
questions and then, one box at a time, the em-
ployees present marked their views in response to
each-agree, disagree, or no opinion. A sampling of
ITT TELECOMMUNICATIONS
the questions will suffice here.' A fair description of
the whole-except for the critical question 77-
would be that the survey sought to glean the em-
ployees' attitude concerning every aspect of their
work duties, pay, indirect benefits, relationship with
individual supervisors, and physical surroundings.
In some form or other the statistical results of the
survey were then sent to Dr. Henderson, a
psychologist, who studied them and returned to the
Company a graph analysis and written recommen-
dations as to how to proceed to derive some benefit
from it all. The graph broke down appreciation of
the results into 10 subjects: physical, social, status,
orientation, security, economic, growth, achieve-
ment, responsibility, and recognition.
On the basis of the expert advice, the Company
then held further meetings of employees in groups.
These took place late in December, with about 50
employees at a time again in the conference room.
First Plant Manager Safiol spoke for about 30
minutes, explaining the results of the survey as
reflected in the graph and saying the next step
would be for any individual employee who so
wished to voice any particular complaint he had, or
request he wished to make. The appropriate super-
visors in each instance were also present. After
Safiol's talk he and the supervisors left, and only
Arie Vance, the personnel director, remained. He
then listed in writing every separate gripe voiced by
any employee. In the course of the many meetings
then held, he made a list of 435 particular things
the employees wished to have corrected, and these
all related to the many questions that had been
asked in the survey. There was no mention of the
Union at these meetings.
Analysis and Conclusion
The theory of complaint rests squarely upon the
rule of law set out in the Board 's decision in
Struksnes Construction Co., supra, on the subject of
employer interrogation concerning union activity.
And the one act said to have been unlawful was the
total questioning which comprised the survey. Dur-
ing the hearing , and again in his brief , the General
Counsel made other arguments seemingly apart
from the principal contention , but it is by no means
I They are as follows:
72 I know where I stand with my supervisor
73 My supervisor fails to give credit for work well done
74 Merit pay increases are handled fairly
75 I'm really doing something worthwhile in myjob
76. I'm proud to work for this company.
77 Many company employees I know would like to see the union
get in
78. The company pays fairly for the kind of work I do
79 During the past six months I have seriously considered leaving
the company for another job
80 Employees in my group feel they must hide their mistakes
81. 1 would recommend employment with this company to my
friends
82 My supervisor takes time to discuss my job performance with
me
83 My pay has little influence on my attitudes about my job
84. Favoritism is a problem in my area
1131
clear that separate and independent unfair labor
practice allegations are seriously urged. For exam-
ple, the complaint was amended at the start of the
hearing to charge that the questioning which took
place in December, when the Respondent invited
employees to speak their individual complaints, in
itself constituted restraint and coercion within the
meaning of Section 8(a)(1). No mention of the
Union was made that day. If every other act of
management be excised from this record, I doubt
the General Counsel would have issued a complaint
aimed solely at this December "interrogation."
Compare Montgomery Ward & Co. Inc., 150 NLRB
1374, 1377.
At one point the argument was made that it is il-
legal for an employer to inquire into causes of un-
happiness in its employees, and/or to adjust their
grievances, when it knows that within 12 months
after one Board election another is permissable
under the statue. As it happens there was a second
election in this plant, in March 1968, just 1 year
after that which the Union lost on February 8,
1967. The Union lost the second election also. But
if, after a union campaign has been waged and lost,
with the election results certified, an employer may
not 8 months later deal directly with its employees
because within 4 months another election is possi-
ble, it would follow that when 12 months have
passed, direct dealing would be even more suspect,
because then a second election could come at any
time.
It is important to clear the air of these tangential
arguments said to support the complaint, so that
the real question be not obscured. It is , of course,
equally necessary to dispose of collateral defenses
urged by the Respondent, contentions which in turn
also tend to evade the true issue. One last broad in-
sistence, repeated several times by the General
Counsel, deserves comment. Whenever an em-
ployer improves conditions of employment, adds to
the happiness and general well being of employees
in the shop, he necessarily weakens, however
slightly, their desire to seek outside representation
or to resort to collective action against him. But it
does not follow from this truism that his unilateral
change in conditions of employment of itself vio-
lates the statue regardless of all other considera-
tions. Safiol, the plant manager in this case, is wide-
85 lam satisfied with the food available where I work
86 Most people I know in my community have a good opinion of
the company.
87 It is hard to find out what jobs are open here in the company
88 I can usually find my supervisor when I need him
89 Most employees are in jobs that make good use of their abilities
90 1 feel lost in a company this size
91 I've gone as far as I can ever go in the company
92 My job seems to be leading to the kind of future I want
93. The efforts of my group are appreciated
94. The amount of effort a person puts into his job is appreciated
here with the company.
95 1 feel that there is someone in authority in this plant , either the
Plant Manager or some other member of management , that I can go to
with any problem I may have about my work and who will help me and
take a personal interest in my problem
96 1 think the company is fair in trying to provide things within
reason for its employees
1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ly read in the field of management psychology and
offered a respectable body of technical literature
on the subject to support his claim that motivation
surveys of this kind are scientifically developed and
extensively used in the business world . If, in con-
sequence of such advanced methods for inspiring
employees to greater effort, with resultant higher
earnings for themselves and increased profits to
management , the march of unionism is slowed,
these are only the realities of industrial life, and
there can be no automatic finding of ulterior pur-
pose and inherent restraint and coercion violative
of the statute . There must be something more to
prove an unfair labor practice.
In this instance that something more is the
question put to every one of the employees for the
purpose of learning how many of them desired to
be represented by the Union . I am satisfied on this
record that the interrogation on that subject fell
within the rule of Struksnes , and constituted a viola-
tion of Section 8(a)(1), as alleged in the complaint.
Each employee was asked to state whether in his
opinion " many employees ... would like to see the
Union get in." In plain language the question seeks
to learn the approximate strength of the Union in
the plant . This was no less a polling of employees
than it would be had each man been asked to vote
yes or no. What the Company wanted to know was
whether the Union was strong or weak , and it is im-
material whether it acquired such knowledge with
numerical precision , or in general terms . Nor is the
nature of the interrogation changed by the fact the
work "many" may have one meaning to some per-
sons and another to somebody else. The net result,
the ultimate information sought , was that the Com-
pany learned whether the Union was a factor that
had to be reckoned with, or could be ignored with
impunity.
In defense the Respondent , through its manager,
contends that it simply did not care about this
matter of union strgenth , that instead interest in the
union activities of its employees was not a factor at
all in its decision to take the survey . The argument
is simply and amply refuted by question 77 as it
stands . A reason for asking the question there had
to be.
The more belabored defense, and the more
lengthy testimony , with documentary support, is
that a similar survey is used by other large compa-
nies, and that it was the end product of scientific
research by experts in business psychology . All this
amounts to is an argument that because others have
done this, and because the others , as well as the
survey itself, are highly regarded in such publica-
tions as the Training and Development Journal and
the Harvard Business Review, the Respondent must
be found innocent of all wrongdoing. The Respon-
dent also seeks refuge in the fact the survey was
given by outsiders-from the university-with no
supervisors or direct officials of the Company
present . I find no merit in this defense; the visiting
faculty members were plainly acting as agents of
the Respondent and the employees knew it. If the
interrogation survey is unlawful under Board law,
its use by other employers cannot serve to excul-
pate a particular Respondent in these proceedings.
And the use of specialized experts to question the
employees is irrelevant to the issue of the com-
plaint. Compare H. P. Wasson & Company, 170
NLRB 293.
" In our view [ the Board 's] any attempt by an em-
ployer to ascertain employee views and sympathies
regarding unionism generally tends to cause fear of
reprisal in the mind of the employee if he replies in
favor of unionism and, therefore , tends to impinge
on his Section 7 rights ." Struksnes Construction Co.,
supra . The Board will nevertheless find such inter-
rogation lawful when four safeguards are observed:
(1) the sole purpose of the poll is to determine the
truth of a union 's claim of majority , ( 2) this pur-
pose is communicated to the employees, (3) as-
surances against reprisal are given , and (4 ) the em-
ployer has not engaged in unfair labor practices or
otherwise created a coercive atmosphere.
Clearly the first three of these conditions were
not satisfied when the Respondent conducted its
October survey . There was no pending claim of
majority, a purpose of verifying the truth of such
claim was not, and could not have been , expressed
to the employees , and they were given no assurance
against reprisal . Nor were there any "unusual cir-
cumstances " that could excuse the Respondent's
failure to satisfy the critical requirements . Manager
Safiol said he decided to take the survey because it
had come to his attention that employees were
placing toilet paper rolls in the bathroom bowls,
and the " stalls were being defaced with obsenities
(sic)." Quite apart from the question whether such
things could reasonably explain all the other
questions listed in the survey , clearly they could not
justify such a broadside inquiry into the employees'
attitude towards the Union.
Restraint and coercion can take two forms: deni-
al or withdrawl of benefits , and concession of
economic improvements not previously enjoyed.
The search here was for what the Respondent
might do to add to the employees' motivation, to
raise their attachment to the job and to the Com-
pany , and to reduce their sense of insecurity. In-
deed Manager Safiol explained that question 77
was classified under " security" in the psychologist's
graph analysis of the survey . This was a virtual ad-
mission by him that if the interrogation showed the
employees felt insecure-and leaned towards union
activity as a means for improving their employment
condition-the Respondent intended to do
something to relieve them of the anxiety . But this is
precisely what the statue prohibits as a weapon in
the hands of the employer to curb self-organiza-
tional activities. And the juxtaposition of
questions-closely linking union inclination with
possible dissatisfaction about earnings-made the
ITT TELECOMMUNICATIONS
ultimate and illegal object of the Respondent clear
to all the employees. Personnel Director Vance ad-
mitted that at the time of the survey he was aware
that the organizational campaign was once again
alive.
At the end of the survey sheets there was a space
reserved for employees to write, if they wished,
"any suggestions that would help us make this plant
a better place for all of us to work. . . ." The record
does not show whether any employee took ad-
vantage of the invitation at that time. The question-
ing that took place 2 months later, in December,
when all were again asked to come forth with their
particular complaints, and when 435 such items
were written down as a result by the personnel
director, was no more than a continuation of the in-
terrogation which started more formally in writing
in October.
I find that by conducting its written survey on
October 9 and 10, 1967, and by extending the
questioning in December, the Respondent inter-
rogated its employees concerning their attitude
towards unionism and thereby violated Section
8(a)(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE
UPON COMMERCE
The activities of the Respondent set forth in sec-
tion III, above, occurring in connection with the
operations described in section I, above, have 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.
THE REMEDY
Having found that the Respondent has engaged
in certain unfair labor practices, I will recommend
that it be ordered to cease and desist therefrom and
take certain affirmative action designed to effectu-
ate the policies of the Act.
Upon the basis of the above findings of fact, and
upon the entire record, I make the following:
CONCLUSIONS OF LAW
1. The Employer is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By coercively interrogating its employees con-
cerning their union activities and sentiments, the
Respondent has engaged in and is engaging in un-
1133
fair labor practices in violation of Section 8(a)(1)
of the Act.
4. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publica-
tion. J
TRIAL EXAMINER'S SUPPLEMENTAL
DECISION
THOMAS A. Ricci, Trial Examiner: After issuance
of a Trial Examiner 's Decision in this proceeding
the Board upheld a subpena by the General Coun-
sel calling upon the Respondent to produce a cer-
tain document and remanded the case to the Trial
Examiner to receive it into evidence. After court
enforcement of the subpena, the hearing was recon-
vened in Memphis , Tennessee , on September 18,
1969. The General Counsel and company counsel
appeared at the hearing, and both filed briefs with
the Trial Examiner thereafter.
Upon the basis of the entire record as it now
stands, I make the following findings and conclu-
sions:
The sole issue presented in this entire proceeding
is whether a survey questionnaire, to which the
Respondent subjected its employees, illegally inter-
rogated them concerning their union activities. Ad-
ministrative discretion demands that the detailed
facts of the case , as well as my earlier comprehen-
sive consideration and Decision, not be repeated
here. Accordingly, this Supplementary Decision is
to be read together with the first Decision.
The document in question, subpenaed by the
Board and finally produced by the Respondent, is a
written analysis of the results of the questionnaire,
prepared at the request of the Company by Doctor
James L. Henderson, a University of Mississippi
psychologist. It contains a single reference to union
activity, a gratuitous comment by Henderson based
upon his personal expert appraisal of some of the
answers appearing in the survey. "Morale is poor
among many members of this group. [fabrications]
Many of them are 'ripe' for a good union organizer,
if they are not organized already." Henderson
credibly testified no member of the Respondent's
management gave him any information about union
activity or asked him any question on the subject.
I have considered the expert's report and the
evidence given at the last hearing and find that it
neither detracts from nor adds to the merits of the
complaint. I therefore reaffirm my original Decision
in every respect.