## Facts

- A union representative began organizing employees at a road construction job run by Struksnes Construction Co., Inc.
- The representative sought recognition and a bargaining meeting, stating he “felt” the union had majority support.
- Employer counsel asked the union to specify how many employees were union members as of a particular payday; the representative refused to provide the number.
- The bargaining unit was found to include 26 employees, 14 of whom were union members.
- The employer disputed the claimed majority and conducted a written poll asking employees whether they wanted the employer to bargain with and sign a contract with the union.
- The poll was conducted at the end of a shift by the employer and foremen; employees signed their names and answered “yes” or “no.”
- The poll was not secret and included no express assurances against retaliation; supervisors knew how each employee voted.
- The results showed more “no” than “yes,” and the employer relied on the poll to refuse recognition and bargaining.
- The NLRB General Counsel issued a complaint alleging violations of NLRA § 8(a)(1) (coercive polling) and § 8(a)(5) (refusal to bargain).
- A Trial Examiner found violations, but a divided NLRB panel dismissed the complaint; the union petitioned for judicial review.

## Issues

1. Whether the employer’s open, signed poll of employees about bargaining with the union unlawfully interfered with employees’ § 7 rights in violation of NLRA § 8(a)(1).
2. Whether the employer violated NLRA § 8(a)(5) by refusing to bargain, given the union’s asserted majority and the employer’s reliance on the poll.

## Decision

- The court denied the union’s petition for review and upheld enforcement of the NLRB’s dismissal of the complaint.
- The court held that substantial evidence supported the Board’s determination that the polling, in the circumstances presented, was not an unfair labor practice under § 8(a)(1).
- Because the Board permissibly found the employer had a good-faith doubt about majority status and did not commit an unlawful poll, the court sustained the Board’s conclusion that the refusal to bargain did not violate § 8(a)(5).

## Legal Principles

- Judicial review of NLRB unfair-labor-practice determinations applies the substantial-evidence standard; fact-bound assessments of workplace coercion are primarily for the Board.
- An employer’s employee poll concerning union support is not per se unlawful; whether it constitutes § 8(a)(1) interference depends on the surrounding circumstances and the Board’s evaluation of coercive tendency.
- A refusal to bargain does not violate § 8(a)(5) where the employer is found to have a bona fide doubt of the union’s majority status and the Board determines the employer’s method of inquiry was not unlawfully coercive under § 8(a)(1).

## Conclusion

The court sustained the NLRB’s dismissal of charges arising from an employer’s open, signed poll and ensuing refusal to bargain, deferring to the Board’s supported finding that the employer’s conduct, viewed in context and including claimed uncertainty about majority status, did not amount to violations of NLRA §§ 8(a)(1) or 8(a)(5).


Int'l Union of Operating Eng'rs, Loc. 49 v. NLRB (Struksnes Constr. Co.), 353 F.2d 852 (D.C. Cir. 1965)