NLRB v. Tom Wood Pontiac, Inc., 18778.

Decision Date23 July 1971
Docket NumberNo. 18778.,18778.
Citation447 F.2d 383
PartiesNATIONAL LABOR RELATIONS BOARD, Petitioner, v. TOM WOOD PONTIAC, INC., Respondent.
CourtU.S. Court of Appeals — Seventh Circuit

Marcel Mallet-Prevost, Asst. Gen. Counsel, Nancy M. Sherman, Atty., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Judith

P. Wilkenfeld, Atty., N. L. R. B., Washington, D. C., for petitioner.

George V. Gardner, Asa Ambrister, Gardner & Ambrister, Washington, D. C., for respondent.

Before DUFFY, Senior Circuit Judge, and KILEY and STEVENS, Circuit Judges.

KILEY, Circuit Judge.

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

The Union2 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).3

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 benefit 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).4 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 N.L.R.B. 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, 79 S. Ct. 725, 3 L.Ed.2d 677 (1959), or if the survey includes inquiries concerning the employees' union interests, Struksnes Construction Co., 165 N.L.R.B. 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 disagrees 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, 88 S. Ct. 470, 19 L.Ed.2d 463. 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 ...

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    ...specifically aimed at interfering with, restraining, and coercing employees in their organizational effort.' " NLRB v. Tom Wood Pontiac, Inc., 447 F.2d 383, 384-85 (7th Cir. 1971) (quoting ITT Telecommunications, 183 N.L.R.B. No. 115, at 3 (1970)). Here the Company repeatedly approached emp......
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    ...of manifest hostility toward unionization combined with knowledge of the discharged employees' union activity, NLRB v. Tom Wood Pontiac, Inc., 447 F.2d 383 (7th Cir. 1971); coincidence in time between the employees' union activity and their discharges, Borek Motor Sales, Inc. v. NLRB, 425 F......
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