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National Labor Relations Board v. Historic Smithville Inn and Quail Hill


decided: July 18, 1969.


Kalodner, Van Dusen and Stahl, Circuit Judges.

Author: Van Dusen


This case comes before us on application for enforcement of an order of the National Labor Relations Board (hereinafter "Board"). The Board found that the Company*fn1 violated § 8(a)(1), 29 U.S.C. § 158(a)(1), by unlawfully threatening, interrogating, and polling its employees, and by surveillance of their union activities.

On November 28, 1966, some of the Company's employees met with representatives of the Hotel, Motel, and Restaurant Employees Union*fn2 in Atlantic City, New Jersey. Certain employees, including Margaret Jackson whose discharge will be discussed below, then took Union cards for distribution to other employees. Following that first meeting, the Union held meetings for employees on November 30 and every night thereafter until December 7. These meetings were first held in a poolroom in Jo-Jo's Bar.*fn3 On December 1 and December 3, the Company's "coordinator," Mr. Miller, was present in the bar area at Jo-Jo's during the Union meeting. On December 3, the Union meeting was moved from Jo-Jo's to the Beachcomber Inn, where Mr. Miller also appeared.*fn4

On December 2, the Union requested recognition as the employees' bargaining representative. The Company refused, asserting doubt about the Union's majority status. The Union called a strike and began to picket respondent on December 7. On December 18, the Company distributed a questionnaire entitled "Voluntary Statement By Employee"*fn5 to each employee in an attempt to poll them to determine whether they preferred a secret election conducted by the Board or a show of Union application cards to an impartial third party.

Charges of unfair labor practices were filed by the Union against the Company on December 5 and on December 9, 1966. General Counsel of the Board issued a consolidated complaint on April 3, 1967, alleging unfair labor practices in violation of § 8(a)(1) and (3) of the National Labor Relations Act. A hearing was held on May 16 and 17, 1967, before Trial Examiner George Bott, who, in a decision issued August 29, 1967, found the Company had engaged in unfair labor practices. On January 10, 1968, the Board issued its decision and order adopting the findings, conclusions, and recommendations of the Trial Examiner.

The issues are whether there is substantial evidence on the record as a whole to support the Board's findings that (a) the Company interfered with, restrained, and coerced its employees in the exercise of their statutory rights, in violation of § 8 (a)(1) of the Act (29 U.S.C. § 158(a)(1)); (b) the Company discharged Margaret Jackson because of her Union activities, in violation of § 8(a)(3) and (1) of the Act (29 U.S.C. § 158(a)(3) and (1)); and (c) the December 18 poll interfered with the employees in the exercise of their § 7 (29 U.S.C. § 157) rights.

We hold that there is substantial evidence in the record as a whole to support the Board's findings.

We can find no error in the Board's determination that the surveillance of Company employees interfered with and coerced the employees in the exercise of their self-organizational rights, in violation of § 8 (a)(1). See NLRB v. Morris Fishman and Sons, Inc., 278 F.2d 792, 796 (3rd Cir. 1960); NLRB v. Rockwell Manufacturing Co. (Du Bois Div.), 271 F.2d 109 (3rd Cir. 1959). The Board's finding of surveillance is supported by the testimony of the Company coordinator, Mr. Miller, and by the testimony of the Assistant Chef, Mr. Hand.*fn6 From the facts related in their testimony, the Board could properly infer that Miller and Hand were present for the purpose of monitoring the employees' Union activities.

There is no dispute that Margaret Jackson was chronically late for work while employed by the Company.*fn7 That fact alone could constitute a non-discriminatory basis for discharge, but if the discharge was motivated, even in part, by union activity, it is illegal despite the existence of adequate cause for firing her. See NLRB v. Barberton Plastics Products, Inc., 354 F.2d 66, 68 (6th Cir. 1965). Although the witnesses gave conflicting testimony,*fn8 we find that there was sufficient evidence to support the Board's finding that Margaret Jackson's discharge was, at least in part, due to her Union activity.*fn9

We must consider the interests of the Company and the effect on the employees in determining the propriety of the poll. An employer may have a legitimate interest in polling his employees to determine whether a union demanding recognition actually represents a majority of the employees or to defend itself against an unfair labor charge, but we must also recognize that the employee being polled may fear management reprisal for support of the union. Cf. National Labor Relations Bd. v. Essex Wire Corp., 245 F.2d 589, 592 (9th Cir. 1957). The test to determine legality of the poll, applicable when this case arose, was "whether, under all the circumstances, the interrogation reasonably tends to restrain or interfere with the employees in the exercise of rights guaranteed by the Act." Blue Flash Express Co., 109 NLRB 591, 593 (1954).*fn10 We hold that the Board's finding that the December 18 poll interfered with the employees in the exercise of their § 7 rights is supported by substantial evidence on the record as a whole.

The poll was taken against a background of unfair labor practices in the form of surveillance and the discharge of an employee because of union activity. The form on which the poll was taken clearly sought employee identification, both by signature at the end and by initials in the box indicating the alternative chosen. The Board also adopted the Trial Examiner's finding that inadequate assurances against reprisals were given. That finding is particularly apt where employees who have been exposed to certain unfair labor practices are then requested to fill out a form which seeks their identification and makes inquiry regarding their alignment with union or management.

The Board's order will be enforced.

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