NLRB v. HP WASSON & COMPANY
| Decision Date | 12 February 1970 |
| Docket Number | No. 17412.,17412. |
| Citation | 422 F.2d 558 |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. H. P. WASSON & COMPANY, Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Elliott Moore, Corinna Lothar Metcalf, Attys., National Labor Relations Board, Washington, D. C., for petitioner.
Herman J. De Koven, Richard Lee Stavins, Dorfman, De Koven & Cohen, Chicago, Ill., for respondent.
Before KNOCH, Senior Circuit Judge, and CUMMINGS and KERNER, Circuit Judges.
Petitioner, the National Labor Relations Board, seeks enforcement of its Order of March 13, 1968, reported at 170 NLRB No. 3, pursuant to § 10(e) of the National Labor Relations Act, as amended, Title 29 U.S.C. § 151 et seq., against respondent, H. P. Wasson & Company.
The Retail, Wholesale and Department Store Union, AFL-CIO, had been certified by the Board as the collective bargaining representative of respondent's two warehouses in Indianapolis, Indiana, after a Board-conducted election. The Union and respondent had executed a one-year collective bargaining agreement on November 19, 1965. On August 24, 1966, the Union wrote respondent requesting negotiations for a new agreement.
After receipt of the Union's letter, respondent's president, Louis Wolf, employed Walker Research, Inc., a firm engaged in such services as marketing research studies and public relations consulting for its clients, to make a survey of respondent's warehouse employees. The president of Walker, Dorothy Mae Walker, was provided a list of the employees' names and addresses. Her interviewers were to ask a single question, the answer to which would be recorded verbatim by a court reporter. The question was:
After the present labor contract expires on November 19, 1966, do you or do you not want the Retail, Wholesale and Department Store Union to continue to represent you as your collective bargaining agent? Putting it another way, in a very simple way, "Do you or don\'t you want the Union at the warehouse?"
The question was to be preceded by the following statement:
Hello, I am Mrs. __________ of Consumer Research Service and we have been employed by H. P. Wasson and Company to take a short opinion survey among all ware house employees. (Pause, then state-slowly-) We want to ask you a question, but before we do so, we want you to know that in our report to Wassons, you will not be identified by name. Instead, we will report only the number of "yes" answers and the number of "no" answers to our one question. We also wish to assure you that you will not be prejudiced in any way by the results of this survey or by your answer to my question.
A report only of the numerical results as "yes", "no" or "refused" with no identification of any employees, as agreed in advance, was given to respondent. The report read:
yes .................... 7
no ..................... 27
undecided .............. 5
refused ................ 1
not home ............... 7
on vacation ............ 2
couldn't locate ........ 2
__
Total .................. 51
The transcripts were ordered only to enable respondent to prepare its defense and were seen only by respondent's attorney George Ryan who with Mr. Wolf and Mrs. Walker had set up the procedure for conducting the poll.
The 1965 agreement contained a maintenance of membership clause whereby employees who were or who became Union members had to maintain their membership as a condition of employment for the life of the agreement. It also provided that respondent could check-off dues of those members who executed check-off cards which were irrevocable for the life of the agreement. Forty employees submitted such cards in the fall of 1965. At the election 25 employees had voted for the Union and 17 against it. Five ballots had been challenged. Respondent's personnel director, Dexter M. Radoye and Mr. Wolf both testified that there was a large turnover in employees during the subsequent months and Mr. Wolf said few if any of the new employees submitted check-off cards, so that by August 1966, check-off cards were on file for less than a majority.
Meanwhile, as indicated in the testimony of supervisor Harry E. Webber, at intervals during the period from January to August 1966, a number of employee complaints regarding the Union came to the attention of management.
After the receipt of the results of the poll described above, respondent filed an employer's petition for an election on September 13, 1966, and the same day wrote advising the Union of that fact, explaining it had reasonable grounds for believing the Union no longer represented a majority of the employees in the unit.
The Union filed charges September 16, 1966, alleging refusal to bargain since September 13, 1966, but made no charges concerning the poll. November 8, 1966, the Regional Director of the Indianapolis, Indiana, Regional Office of the Board issued a complaint and consequently dismissed the respondent's petition for an election.
The Trial Examiner found no unfair labor practices and recommended dismissal of the complaint. The Board, however, held that respondent had violated § 8(a) (1) of the Act by conducting a coercive poll and § 8(a) (5) and 8(a) (1) by refusing to bargain with the Union.
We agree with respondent that the Board's finding that the poll as conducted was coercive is not supported on the record as a whole by substantial evidence....
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