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National Labor Relations Board v. Tom Wood Pontiac Inc.

July 23, 1971


Duffy, Senior Circuit Judge, and Kiley and Stevens, Circuit Judges.

Author: Kiley


The National Labor Relations Board (Board) seeks enforcement of its order finding that respondent (Company) violated Sections 8(a)(1) and (3) of the National Labor Relations Act.*fn1 The order will be enforced.

The Union*fn2 began its organizational drive in the Company's body and fender shop in October, 1968, and filed an election petition on November 14, 1968. On the same day, the Union and the Company entered into a Stipulation for Election upon Consent Agreement. The election was set for December 13, 1968.

About a week after the stipulation was reached, body shop manager Schmaltz called a meeting of all the body men and introduced them to Laster, the Company's new labor relations consultant. Laster told the employees that he wanted to take a survey among the employees to learn their "gripes or complaints" so that "Tom Wood could make it a better place for his employees to work, working conditions a little better." Each employee was then given a questionnaire containing thirty-three questions and was asked to fill out the questionnaire but not to sign it. The questions dealt with the employees' opinions regarding wages, fringe benefits, work hours, supervisory practices, promotion policy, and job security. The final question asked the employee what he would do to improve conditions if he were the boss.

The main issue raised by the Company is whether the Board erroneously concluded -- contrary to the Trial Examiner -- that the Company's purpose in conducting the opinion survey was to learn what the employees' complaints were and to impliedly promise to remedy them, and that this conduct violated 8(a)(1).*fn3

There is nothing violative of the Act in a Company's holding of meetings to determine employee grievances, so long as "the discussions avoided any attempt by the company to imply promises of benefits if the union was defeated." H. L. Meyer Co. v. NLRB, 426 F.2d 1090, 1093 (8th Cir. 1970); Fairchild Camera and Instrument Corp. v. NLRB, 404 F.2d 581 (8th Cir. 1968).*fn4 Nor does the use of opinion surveys per se violate Section 8(a)(1). The Board itself has recently approved the use of surveys in ITT Telecommunications, a Division of International Telephone and Telegraph Corporation, 183 NLRB No. 115 (1970). However, an 8(a)(1) violation is committed if the solicitation of employee grievances is "accompanied by an express or implied promise of benefits specifically aimed at interfering with, restraining, and coercing employees in their organizational effort," ITT Telecommunications, supra, at 3; cf. NLRB v. Taitel, 261 F.2d 1 (7th Cir. 1958), cert. denied, 359 U.S. 944, 3 L. Ed. 2d 677, 79 S. Ct. 725 (1959), or if the survey includes inquiries concerning the employees' union interests, Struksnes Construction Co., 165 NLRB 1062 (1967); cf. NLRB v. Quick Shop Markets, Inc., 416 F.2d 601 (7th Cir. 1969).

We find substantial evidence in the record as a whole to support the Board's conclusion that the purpose of ascertaining the employees' grievances was to impliedly represent to the employees that their grievances would be remedied if the Union was defeated. Laster, the survey organizer and distributor, repeatedly told the employees that there was no point in having a union because the Company would be equally willing to remedy complaints without one. At the outset of the survey meeting he told the employees that he wanted to take the survey so that the Company could improve the working conditions and that "There are some things that we can get corrected now. Some things that are going to take a while to correct, and there are some things that may never be corrected."

The survey questions in themselves are perhaps protected under Section 8(c) of the Act if viewed in isolation. However, Laster's comments gave color and meaning to the questions revealing, to the Board, the Company's purpose in conducting the survey. An employer's "willingness to receive and consider employee requests at a time which coincided with the first union organization campaign . . . might well have indicated to the average employee that better conditions would be forthcoming." NLRB v. Yokell, 387 F.2d 751, 755 (2nd Cir. 1967). And the Board could find that questions were asked in a way that would leave the employees with the impression that the Company was promising to remedy the employees' grievances if they would "forget" the Union.

Laster's request that the questionnaires be unsigned did not require the Board to find the survey lawful. Consideration of secrecy is relevant in determining the legality of a poll to determine a union's majority since the secrecy will assure that no reprisals against employees would be taken, Struksnes Construction Co., supra, at 1063. But, secrecy in the survey does not affect whether an implicit promise of future reform was intended or conveyed.

We conclude that the Board's finding that the opinion survey violated 8(a)(1) is supported by substantial evidence on the record as a whole, and since that finding by the Board "only disagree[s] with the examiner as to inferences to be drawn from the established facts," the Board's order must be enforced. NLRB v. Stafford Trucking Co., Inc., 371 F.2d 244, 249 (7th Cir. 1966).

Laster told employee Madden that if the Union won, he was "pretty sure" that the employees would "be out on the street by the first of January." The Board decided the statement violated Section 8(a)(1). The Company conceded other coercive conduct, and there is no exculpating testimony by Laster. The Board could properly infer from the statement, therefore, a threat of discharge should the Union win, even if the statement viewed in isolation could have reasonably been construed as meaning that if the Union won, it might pull the employees out on strike. Cf. NLRB v. Kolmar Labs, Inc., 387 F.2d 833, 838 (7th Cir. 1967); Lincoln Mfg. Co. v. NLRB 382 F.2d 411, 415 (7th Cir. 1967), cert. denied, 389 U.S. 972, 19 L. Ed. 2d 463, 88 S. Ct. 470. Since either inference is reasonable, we cannot reject the Board's inference. The Board need not have taken the statement as a prediction of demonstrable economic consequences of unionization and was justified in inferring a threat "to throw employees out of work regardless of the economic realities" -- a statement not protected under Section 8(c) of the Act. NLRB v. Gissel Packing Co., 395 U.S. 575, 619, 23 L. Ed. 2d 547, 89 S. Ct. 1918 (1969).

We conclude that the Board was justified in finding that Laster's statement to employee Madden violated Section 8(a)(1) of the Act.

Employee Roberts began working for the Company in early June, 1968, and became an active Union leader in the following October organization drive. Twice before the election, shop manager Schmaltz interrogated Roberts about Union meetings.*fn5 The day following the Union's election victory on December 13, 1968, the new shop manager Wiethoff formally reprimanded Roberts for low productivity, tardiness, and participation in "group bull sessions during working hours." On January 3, shop foreman Morelock reprimanded Roberts for being nine minutes late and told him to stay in his work area at the front of the shop. Roberts, whose job was replacing bumpers, protested that when he was hired he was told he was to learn metal work, and that he could not do so if he was separated from ...

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