Helena Laboratories Corp.

294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Helena Laboratories Corporation and Communica- tions Workers of America, AFL-CIO. Case 23- CA-6162 February 18, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER Upon a charge filed on August 11, 1976, and an amended charge filed on September 1, 1976, by Communications Workers of America, herein called the Union, and duly served on Helena Laboratories Corporation, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 23, issued a complaint on September 10, 1976, against Respon- dent, alleging that Respondent had engaged in and was engaging in certain unfair labor practices affect- ing commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing before an Adminis- trative Law Judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on July 9, 1976, while the results of a Board election were still pending, Respondent, through its president, Tipton Lee Golias, circulated or caused to be circulated a questionnaire requiring employees to answer certain inquiries with respect to their union sympathies. The complaint further alleges that on July 30, 1976, Respondent, through its president, Tipton Lee Goli- as, circulated a letter to its employees which reported, inter alia, that only 24 percent of the employees desired a union, and that Respondent would do everything possible to uphold the feelings of the majority. On September 14, 1976, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations of the complaint. On October 12, 1976, counsel for the General Counsel filed with the Division of Judges a Motion To Strike and a Motion for Summary Judgment, with a memorandum in support thereof and exhibits attached. On October 18, 1976, Respondent filed a memorandum brief against General Counsel's Mo- tion for Summary Judgment. On October 21, 1976, these and other documents were properly forwarded by the Division of Judges to the Board for consider- ation. Subsequently, on November 12, 1976, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. On November 22, 1976, Respondent filed a response to the Notice To Show Cause with exhibits attached. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Upon the entire record in this proceeding the Board makes the following: Ruling on the Motion for Summary Judgment In its answer to the original complaint in this case, Respondent specifically denied that it had circulated, or caused to be circulated, a questionnaire inquiring as to employee sentiments concerning union repre- sentation and that it subsequently published and distributed a letter to its employees informing them that the results of the poll showed that only 24 percent of the employees wanted a union and that Respondent would do everything possible to uphold the feelings of the majority. In his Motion To Strike and Motion for Summary Judgment, the General Counsel attached as exhibits a questionnaire from Tipton Lee Golias to the employees at Respondent's facility which contained, inter alia, the following questions: "Would you prefer to have your wages negotiated by a union? Do you want a union?" Also attached to the General Counsel's Motion to Strike and Motion for Summary Judgment as an exhibit is a letter signed by Respondent's president, Tipton Lee Golias, informing employees that only 24 percent of those polled wanted a union, and that Respondent would do everything possible to uphold the wishes of the majority. In its memorandum brief against General Counsel's Motion for Summary Judgment, Respondent did not dispute the sufficiency or authen- ticity of the General Counsel's exhibits, but instead argued that it was entitled to a hearing and that it would present numerous witnesses to rebut the charge of restraint and coercion. In its response to the Notice To Show Cause, Respondent did not dispute that the questionnaire was circulated, but again argued for a hearing and submitted affidavits by employees in support of its contention that there was no restraint or coercion connected with the question- naire. Contrary to Respondent's view, neither this Act, the Administrative Procedure Act, nor constitu- tional due process mandate that the instant proceed- ing be heard and determined by an Administrative Law Judge where, as here, there are no issues of fact on which to hold a hearing.' As indicated above, the General Counsel's exhibits are uncontroverted by I Cf. Globe Security Services, Inc, 221 NLRB 596 (1975). 228 NLRB No. 32 HELENA LABORATORIES CORPORATION Respondent, and Respondent has admitted the circulation of the poll in its response to the Notice To Show Cause, notwithstanding the fact that it specifi- cally denied the circulation of the poll in its original answer. Furthermore, it is axiomatic by now that a finding of restraint or coercion depends not on the subjective impressions of employees, but on the objective standard as to whether such conduct reasonably "tends to interfere with the free exercise of employee rights."2 As we have found Respondent's contentions to be without merit, we shall, accordingly, grant the Mo- tion for Summary Judgment.3 On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is a Texas corporation with its princi- pal office and place of business in Beaumont, Texas, where it is engaged in the business of manufacturing and selling laboratory supplies and equipment. Dur- ing the past year, a representative period, Respondent purchased goods and materials valued in excess of $50,000 which were shipped directly to it in Beau- mont, Texas, from points outside the State of Texas. We find, on the basis of the foregoing, that Respondent is, and has been at all times material herein, an employer engaged. in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED Communications Workers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 111. THE UNFAIR LABOR PRACTICES A. The 8(a)(1) Violations On July 9, 1976, Respondent, through its president, Tipton Lee Golias, circulated or caused to be circulated a questionnaire to employees at its plant which contained, inter alia, the following questions: "Would you prefer to have your wages negotiated by a union? Do you want a union?" As a result of the aforementioned poll, on July 30, 1976, Respondent through its president, Tipton Lee Golias, published and circulated to all employees a letter which advised 295 that only 24 percent of the employees desired a union and that Respondent would do everything possible to uphold the feelings of the majority. Prior thereto a secret ballot election was conducted by the Board among the Respondent's employees in Case 23-RC- 4151. There were challenged ballots sufficient in number to affect the results of the election, with the employees whose ballots were determinative being discriminatees in an unfair labor practice proceeding before the Board in Case 23-CA-5462. On June 29, 1976, the Board found merit in the unfair labor practice proceeding and ordered the employees whose ballots were determinative reinstated to their former or equivalent positions of employment.4 Thereafter, on September 29, 1976, the Board issued an Order Directing the Challenged Ballots to be counted. Thus, the poll of employees and the subse- quent announcement of the poll took place while the results of the secret ballot election were still pending. The Board has long condemned employer-conduct- ed employee "polls" while the results of a Board secret ballot election are still pending. As we stated in the case of Struksnes Construction Co. Inc.: 5 ... a poll take 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 elec- tion. In accord with long-established Board poli- cy, therefore, such polls will continue to be found violative of Section 8(a)(1) of the Act. Among several stringent criteria that must be met before an employee poll may be found legitimate under the holding in Struksnes, supra, is the require- ment that the poll be taken in a setting where the employer has not engaged in unfair labor practices or otherwise created a coercive atmosphere. As noted above, we find Respondent to have been engaged in widespread unfair labor practices in an earlier proceeding, at a time immediately prior to the taking of the employee poll.6 In these circumstances, it is clear that Respondent could not comply with one of the foremost criteria of the Struksnes case; namely, that any employer poll of employee union sentiments take place in a background free from other coercion. Nor does the fact that the poll was taken after the election was held remove Respondent from the requirements set forth in Struksnes. In Central Mer- chandise Company,7 we held that an election is only part of the investigation to determine the employees' representative for collective bargaining, and found the language of Struksnes applicable even though, as 2 N L R. B v. Illinois Tool Works, 153 F 2d 811, 814 (C A 7, 1946) 5 165 NLRB 1062, 1063 (1967) In view of our disposition of the Motion for Summary Judgment, we 6 Helena Laboratories Corporation, supra find it unnecessary to rule on the General Counsel's Motion To Strike 4 Helena Laboratories Corporation, 225 NLRB 257 (1976) 7 194 NLRB 804, 805 (1972) 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD here, the poll took place after the election had been held. Accordingly, we find that, by the aforesaid con- duct, Respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed under Section 7 of the Act and that, by such conduct, Respondent engaged in and is engag- ing in unfair labor practices within the meaning of Section 8(a)(l) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its 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 com- merce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act, we shall order that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Helena Laboratories Corporation is an employ- er engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Communications Workers of America, AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By the conduct set forth in section III, Respon- dent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employ- ees in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) 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 Respondent, Helena Laboratories Corporation, Beaumont, Texas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Circulating or causing to be circulated question- naires to its employees which inquire as to whether the employees want a union or whether they would prefer to have their wages negotiated by a union. (b) Circulating or causing to be circulated letters which contain the results of a poll reporting that a minority of the employees polled want a union and that Respondent will do everything possible to uphold the wishes of the majority. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Post at its Beaumont, Texas, facility copies of the attached notice marked "Appendix." 8 Copies of said notice, on forms provided by the Regional Director for Region 23, after being duly served by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereaf- ter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 23, in wnting, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 8 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT circulate or cause to be circulated questionnaires which inquire as to whether our employees want a union or whether they would prefer to have their wages negotiated by a union. HELENA LABORATORIES CORPORATION 297 WE WILL NOT circulate or cause to be circulated WE WILL NOT in any like or related manner letters which contain the results of a poll reporting interfere with, restrain, or coerce our employees in that a minonty of the employees polled want a the exercise of the rights guaranteed in Section 7 union and that we will do everything possible to of the Act. uphold the wishes of the majority. HELENA LABORATORIES CORPORATION