International Telephone and Telegraph Corp.

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.