Helena Laboratories Corp.

National Labor Relations Board - Board Decisions

Feb 18, 1977

228 N.L.R.B. 294 (N.L.R.B. 1977)

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