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Any employer who engages in interrogation does so with notice that he risks a finding of unfair labor practices if the circumstances are such that his interrogation restrains or interferes with employees in the exercise of their rights under the National Labor Relations Act.
McPherson, the union's area representative commenced organizational activity at a road construction job operated by Struksnes Construction Co., Inc. of Minot, North Dakota (herein, Employer). The employer's attorney corresponded with the representative regarding possible union membership. After conducting an open, signed poll of its employees to determine whether they wished the employer to bargain with the union, the employer decided not to enter into negotiations with the union. The General Counsel filed a complaint charging the employer with violations of § 8(a)(1), (5) of the National Labor Relations Act, 29 U.S.C.S. § 158(a)(1), (5). Reversing the Trial Examiner, a panel of the National Labor Relations Board, dismissed the complaint. The union appealed.
Did the National Labor Relations Board err in dismissing the union’s complaint under § 8(a)(1), (5) of the National Labor Relations Act, 29 U.S.C.S. § 158(a)(1), (5)?
Yes, with respect to the claim under § 8(a)(1).
The court affirmed the Board's order regarding the refusal to bargain, § 8(a)(5), finding that there was no § 8(a)(5) violation because there had been no strike, no evidence of anti-union animus, no discrimination, and no firing because of union activity. However, the court found that further fact finding was required to determine if the employer had properly polled its employees pursuant to § 8(a)(1), by explaining the purpose of the poll to the employees and offering assurances to the employees that their rights under the Act would not be infringed.