## Facts

- International Union of Operating Engineers, Local 49 began organizing employees at a road-construction jobsite where Struksnes Construction Co. employed operating engineers and related workers.
- A union representative demanded recognition, asserting the union represented a majority (claiming 20 of the employer’s 26 employees).
- Company president Christ Struksnes denied the union had majority support.
- Struksnes prepared and circulated a written petition asking employees: “Do you want me to bargain with and sign a contract with [the union]? Please sign your name and answer Yes or No.”
- Struksnes and two foremen approached employees individually near the end of a work shift and asked them to sign and mark “Yes” or “No.”
- The employer did not call a meeting to explain the poll’s purpose and did not give assurances that participation was voluntary or that there would be no reprisals based on how employees responded.
- The poll was not secret; Struksnes and the foremen could see (and later knew) how each employee voted.
- The tally showed more “No” than “Yes” votes (15 “No,” 9 “Yes”).
- The union challenged the poll in unfair labor practice proceedings. The Board initially found no violation, but a reviewing court reversed and remanded for the Board to develop clearer standards governing employer polling.
- By the time the matter returned to the Board, the jobsite work had ended, and several years had passed.

## Issues

1. Under what circumstances may an employer lawfully poll employees about union support without interfering with § 7 rights in violation of NLRA § 8(a)(1)?
2. Whether Struksnes Construction’s open, signed poll—administered by the owner and foremen without explanation or anti-reprisal assurances—constituted unlawful interference or restraint under § 8(a)(1).
3. What safeguards are required to reduce the risk that an employer’s poll will pressure employees or chill union activity.

## Decision

- The NLRB used the remand to announce standards governing when an employer may conduct a poll regarding union representation.
- The Board held that employer polling carries a risk of coercion and is unlawful unless conducted under specified safeguards.
- Applying those standards, the Board found Struksnes’s poll unlawful because it was open and signed, administered by management, and conducted without a prior explanation of purpose or assurances against reprisals.
- The Board issued a remedial order designed to prevent repetition of the unlawful conduct and to inform employees of their rights.

## Legal Principles

- Employer polling of employee support for a union can interfere with employees’ § 7 rights because employees may fear retaliation if their views are disclosed to management.
- A poll may be lawful only when the employer has a legitimate reason to test employee sentiment—typically where the employer has a genuine, good-faith uncertainty about the union’s claimed majority status after a demand for recognition.
- Before any poll, the employer must communicate the purpose of the poll to employees.
- The employer must give clear assurances that there will be no reprisals, discipline, loss of work, or other adverse action based on whether an employee supports the union or based on how the employee responds.
- The poll must be conducted by secret ballot or a method that protects anonymity; a signed or otherwise identifiable vote weighs heavily toward a finding of coercion.
- The poll must be conducted in a setting free of threats, intimidation, or other conduct that would reasonably pressure employees about union activity.
- The poll must be limited to the relevant bargaining unit and administered in a neutral, evenhanded way; selective polling or supervisor pressure increases the likelihood of a § 8(a)(1) violation.

## Conclusion

Struksnes Construction Co., 165 N.L.R.B. 1062 (1967), set the Board’s primary safeguards for employer polling on union representation and held that an open, signed, supervisor-administered poll conducted without explanation or anti-reprisal assurances unlawfully interfered with employees’ § 7 rights in violation of NLRA § 8(a)(1).


International Union of Operating Engineers, Local 49 v. National Labor Relations Board (Struksnes Construction Co.), 165 N.L.R.B. 1062 (1967)