Struksnes Construction Co., Inc.

National Labor Relations Board - Board Decisions

Jun 26, 1967

165 N.L.R.B. 1062 (N.L.R.B. 1967)

1062 DECISIONS OF NATIONAL LABOR RELATIONS, BOARD
Struksnes Construction Co., Inc. and Inter-
national Union of Operating Engineers,
Local No. 49, AFL-CIO. Case 18-CA-1696.
June 26, 1967
SUPPLEMENTAL DECISION AND ORDER
On September 28, 1964, the National Labor
Relations Board issued its Decision and Order in
this case, finding that the Respondent had not
violated Section 8(a)(5) and (1) of the National Labor
Relations Act, and dismissing the complaint.' On
November 4, 1965, the United States Court of
Appeals for the District of Columbia Circuit set
aside the Board's Decision and Order insofar as it
pertained to the Respondent's alleged violation of
Section 8(a)(1) by polling its employees, and
remanded that aspect of the case to the Board for
further consideration not inconsistent with the
opinion of the court.2 Thereafter, a brief on the
remanded issue was filed by the Respondent, which
has been duly considered.3
The Board in the original Decision herein found
the poll in issue lawful under the test set forth in
Blue Flash Express, Inc.4 The court, however,
expressed the view, in its opinion, that the Board's
finding that the poll satisfied the criteria established
in Blue Flash Express was not enough to justify the
Board's conclusion that the poll was not violative of
the Act. The court also pointed out that the Board
had made no attempt to reconcile its conclusion in
this case with its findings of unlawful polling in The
Lorben Corporation and Johnnie's Poultry Co.' The
court stated, with regard to the scope of its remand
that:
We think the Board should come to grips with
this constantly recurring problem for the
protection of the employees as to their section 7
rights and for that of an employer acting in good
faith. It would seem that the Board could, in the
exercise of its expertise, develop appropriate
policy considerations and outline at least
1 148 NLRB 1368, Member Brown dissenting Thereafter, the
case was reconsidered on motion by the Union On March 25,
1965, the Board issued an order denying the motion
I International Union of Operating Engineers, Local 49,
AFL-CIO (Struksnes Constr. Co.) v. N.L.R.B, 353 F 2d 852
(C A.D C) Judge Edgerton , dissenting , would have found the
Board's Decision supported by substantial evidence on the record
considered as a whole The court agreed with the Board that the
Respondent had not violated Section 8(a)(5), and on January 4,
1966, issued an amendment to its judgment denying review of that
aspect of the case
3 The Charging Party filed a request for oral argument which is
hereby denied as the record, in our opinion , adequately presents
the issues and the positions of the parties
4 109 NLRB 591.
5 The Lorben Corporation, 146 NLRB 1507, enforcement
denied 345 F 2d 346 (C A. 2), Judge Friendly dissenting , Johnnie s
Poultry Co , 146 NLRB 770, enforcement denied 344 F 2d 617
(C A 8)
6 See, for example , Seng, Employer May Violate Sec. 8(a)(1) in
Attempting to Ascertain Union Majority Status , Notre Dame L
minimal standards to govern the ascertainment
of union status, or even in given permissible
situations, the desire of the employees
respecting a contract with the Union.
Accordingly, it is necessary, pursuant to the
court's remand, (a) to indicate the considerations on
which polling issues will be resolved by the Board in
future cases, and (b) to review the Board's
determination that the Respondent's poll in the
instant case was not violative of the Act.
A. Standards Applicable to Determining the
Legality of Polls
We have, in accord with the court's directive,
reviewed Board and court decisions, as well as
articles by scholars in this field,6 in order to
establish standards which may be used as guidelines
to determine whether a poll is lawful.
In our view any attempt by an employer 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. As we have pointed out, "An
employer cannot discriminate against union
adherents without first determining who they are."7
That such employee fear is not without foundation is
demonstrated by the innumerable cases in which the
prelude to discrimination was the employer's
inquiries as to the union sympathies of his
employees.
It was the Board' s original view that an employer's
poll of his employees was in and of itself coercive
and therefore a per se violation of Section 8(a)(1).8
Some courts disagreed with that view, and the Board
in Blue Flash established the rule that whether a poll
interferes with, restrains, or coerces employees
"must be found in the record as a whole," and that
the time, placd; personnel involved, information
sought, and the employer's known preference must
be considered.9 The Board found the poll in Blue
Flash lawful on the ground that (1) the employer's
Rev. (April 1966); Bok, The Regulation of Campaign Tactics in
Representation Elections Under the National Labor Relations Act,
78 Harv. L Rev 38 (November 1964), Wirtz The New National
Labor Relations Board, Herein of "Employer Persuasion," 49
N U L Rev. 594, 598 (1954), Melson, Labor Law Interrogation of
Employees Concerning Union Activities, 17 Okla L Rev 207
(1964); Note, Interrogation of Employees as an Unfair Labor
Practice, 62 Yale L.J. 1258 (1953)
Cannon Electric Company, 151 NLRB 1465, 1468.
8 See cases to that effect cited in Blue Flash Express, Inc ,
supra It is well established that an employer, in questioning his
employees as to their union sympathies , is not expressing views,
argument , or opinion within the meaning of Section 8 (c) of the
Act, as the purpose of an inquiry is not to express views but to
ascertain those of the person questioned Martin Sprocket & Gear
Co , Inc v. N.L.R B., 329 F.2d 417 (C A 5); N L R.B v Minnesota
Mining & Mfg Co , 179 F 2d 323 (C.A 8)
9 The Board in Blue Flash stated its agreement with, and
adoption of, this test as laid down by the court in N.L R B v
Syracuse Color Press, Inc., 209 F 2d 596 (C.A 2)
165 NLRB No. 102
STRUKSNES CONSTRUCTION CO.
sole purpose was to ascertain whether the union
demanding recognition actually represented a
majority of the employees, (2) the employees were so
informed, (3) assurances against reprisal were given,
and (4) the questioning occurred in a background
free from employer hostility to union organization.
Although the courts have not disapproved of the
Board's Blue Flash rule, some of the courts have
disagreed with the Board on the application of the
rule in specific cases, and a few courts have adopted
their own tests for determining whether a poll was
lawful under Blue Flash.' ° The result has been to
create considerable uncertainty in this area of labor-
management relations." Furthermore, our
experience since Blue Flash indicates that that rule
has not operated to discourage intimidation of
employees by employer polls.
As recent Board decisions have emphasized, there
are clearly uncoercive methods for an employer to
verify a union's majority status. An employer faced
with a union demand for recognition may normally
refrain from according recognition;12 he may also
request proof of majority status;13 or he may file a
petition,14 or suggest that the union do so,15 and
await the outcome of a Board election.16
We have therefore determined, in the light of all
the foregoing considerations, and in accord with the
court's remand, to adopt the following revision of the
Blue Flash criteria:
Absent unusual circumstances, the polling of
employees by an employer will be violative of
Section 8(a)(1) of the Act unless the following
safeguards are observed: (1) the purpose of the
poll is to determine the truth of a union's claim
of majority, (2) this purpose is communicated to
the employees, (3) assurances against reprisal
are given, (4) the employees are polled by secret
ballot, and (5) the employer has not engaged in
unfair labor practices or otherwise created a
coercive atmosphere.
The purpose of the polling in these circumstances
is clearly relevant to an issue raised by a union's
claim for recognition and is therefore lawful. The
10 See N L R B. v Firedoor Corporation of America, 291 F 2d
328 (C A 2), Bourne Co. v. N L R B , 332 F 2d 47 (C.A 2);
N L R.B. v Carrico Incorporated, 340 F 2d 803 (C A 5), N L R.B.
v. Protein Blenders, Inc , 215 F 2d 749 (C A 8), N L R.B v.
Roberts Brothers, 225 F 2d 58 (C A 9) See also S H. Kress &
Company v. N L.R.B., 317 F 2d 225 (C A 9), N L R.B v Larry
Faul Oldsmobile Co., Inc, 316 F 2d 595 (C A. 7), N.L.R B v
Lorben Corporation, supra
11 Such uncertainty is illustrated by the fact that the Court of
Appeals for the District of Columbia Circuit, in reversing the
Board in the instant case , indicated approval of the Board's
Decisions in the Lorben and Johnnie's Poultry cases, and
agreement with Judge Friendly's dissent in Lorben, while the
Courts of Appeals for the Second and Eighth Circuits denied
enforcement of the Board's Decisions in both those cases.
12 Hammond and Irving, Incorporated, 154 NLRB 1071 Cf. Joy
Silk Mills, Inc, 85 NLRB 1263, 1264, enfd. 185 F 2d 732
(C A D.C.), cert denied 341 U.S 914; Irving Air Chute Company,
Inc, Marathon Division, 149 NLRB 627
13 Aaron Brothers Company of California, 158 NLRB 1077 Cf
1063
requirement that the lawful purpose be
communicated to the employees, along with
assurances against reprisal, is designed to allay any
fear of discrimination which might otherwise arise
from the polling, and any tendency to interfere with
employees' Section 7 rights.. Secrecy of the ballot
will give further assurance that reprisals cannot be
taken against employees because the views of each
individual will not be known. And the absence of
employer unfair labor practices or other conduct
creating a coercive atmosphere will serve as a
further warranty to the employees that the poll does
not have some unlawful object, contrary to the lawful
purpose stated by the employer. In accord with
presumptive rules applied by the Board with court
approval in other situations ,17 this rule is designed to
effectuate the purposes of the Act by maintaining a
reasonable balance between the protection of
employee rights and legitimate interests of
employers.
On the other hand, a poll taken while a petition for
a Board election is pending does not, in our view,
serve any legitimate interest of the employer that
would not be better served by the forthcoming Board
election. In accord with long-established Board
policy, therefore, such polls will continue to be found
violative of Section 8(a)(1) of the Act.18
B. The Polling Issue in the Instant Case
The record establishes that the Union organized
the employees at the Respondent's construction
jobsite in July and August 1963. The Respondent,
although aware of the Union's organizing, did not
interfere and, in fact, hired men it knew to be
members of the Union. By August 7, 1963, a majority
of the 26 employees had become members of the
Union, but some had joined while employed at other
projects years before, and some were delinquent in
their dues payments. The Union's first demand for
recognition and a contract was made on August 7,
upon the Respondent's attorney, as Struksnes
himself was out of town. The attorney informed
Fred Snow, et al, d/b/a Snow & Sons, 134 NLRB 709, enfd. 308
F 2d 687 (C A 9); Gruber's Food Center, Inc, 159 NLRB 629;
Keller Plastics Eastern, Inc , 157 NLRB 583
14 See Section 9(c)(1)(B) of the Act
15 Aaron Brothers Company of California, supra Cf Berne'
Foam Products Co , Inc , 146 NLRB 1277
11 Clark Printing Company, Inc , 146 NLRB 121
it Ray Brooks v. N.L.R B , 348 U S 96 (certification year);
Frito-Lay, Inc , 151 NLRB 28 (continuation of established
majority status); N L.R B. v United Steelworkers of America, CIO
(Nutone, Inc), 357 U.S. 357, N L.R B. v The Babcock & Wilcox
Company, 351 U.S. 105, Republic Aviation Corporation v.
N L R B., 324 U.S. 793, Walton Manufacturing Company, 126
NLRB 697, enfd 289 F 2d 177 (C.A. 5) (employer no-solicitation
and no - distribution rules).
is N.L.R.B v. My Store, Inc, 345 F 2d 494 (C A 7); N.L.R B v
Lindsay Newspapers, Inc , 315 F 2d 709 (C A 5), Mallory Plastics
Company, 149 NLRB 1649; Phillips Manufacturing Company,
148 NLRB 1420.
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Struksnes of this demand upon his return. Two days
later, the Respondent by letter asked the Union, "in
preparation to discuss your labor agreement," about
the number of employees who were members "as of
a specific date." The Union replied that it
represented 20 employees.
On August 13, Struksnes and two supervisors
polled the employees, asking them to sign a paper
indicating whether they wanted the Respondent "to
bargain with and sign a contract with" the Union,
and assuring them that it made no difference to the
Respondent how they voted. The results of this poll
were that 15 signed in the "No" column, 9 in the
"Yes" column, and 1 refused to sign. The
Respondent then informed the Union that a majority
of the employees did not want it to negotiate with the
Union.
The Board found the poll lawful because (a) its
sole purpose was to ascertain whether the Union
represented a current majority; (b) the employees
were given assurances against reprisal; (c) the
evidence failed to establish that the employees
answered untruthfully but, even if they did, their
answers did not result from any threats of reprisal;
and (d) the polling occurred in a background free
from hostility toward the Union.
The court's opinion indicates disapproval of this
polling procedure, particularly because of the
Respondent's failure to call a meeting of the men to
explain the purpose of the poll, and the fact that
each man's vote was made known to the Respondent
and was made a matter of record.
We have reviewed the circumstances of this poll
1e The Board found the polls in Lorben and Johnnie's Poultry,
supras, unlawful under the Blue Flash rule because of coercive
factors present in those cases which were not present in this case
Thus, in Lorben, the employer had no legitimate purpose in taking
the poll and failed to assure the employees against reprisal; and in
in the light of the court's opinion and remand order
and also of the rule established herein. In view of the
failure of the Respondent to inform its employees of
the purpose of the poll and the nonsecret manner in
which the employees were polled, the Respondent's
conduct would probably be found unlawful if this
.case were now before us for an initial determination
under the new rule. We are satisfied, however, that
in the special circumstances of this case no remedial
order is warranted. Thus the poll previously was
found lawful by the Board under the Blue Flash rule,
which was in effect at the time the events herein
occurred.19 Moreover, as the court noted in its
opinion, the work at the jobsite where the poll was
taken apparently was scheduled to be concluded
within 3 months after these events took place, which
was more than 3 years ago. All things considered, we
find in these circumstances that effectuation of the
purposes of the Act does not require a remedial
order. Accordingly, we shall reaffirm the Board's
original Decision and Order dismissing the
complaint in its entirety.
ORDER
It is hereby ordered that, upon reconsideration,
the original Decision and Order in this proceeding
be, and it hereby is, reaffirmed.
MEMBER BROWN, concurring:
I approve my colleagues' formulation of the
polling criteria, and now also join them in dismissing
that aspect of the complaint. See 148 NLRB 1368,
1372.
Johnnie's Poultry, the employer threatened to shut down rather
than have a union in the plant , inquired of employees as to where
union meetings were held and who was present, interfered with
the Board's processes by inquiring about statements given to
Board agents, and unlawfully refused to bargain