Leland Stanford Jr. University

National Labor Relations Board - Board Decisions

Mar 2, 1979

240 N.L.R.B. 1138 (N.L.R.B. 1979)

1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Leland Stanford Jr. University and Stanford Univer-
sity and United Stanford Employees, Local 680
Service Employees International Union AFL-CIO.
Case 32-CA-153
March 2, 1979
DECISION AND ORDER
BY MEMBERS PENELLO. MURPHY. AND TRUESDALE
On July 20, 1978, Administrative Law Judge Stan-
ley Gilbert issued the attached Decision in this pro-
ceeding. Thereafter, the General Counsel and the
Charging Party filed exceptions and briefs, and Re-
spondent filed cross-exceptions to the Administrative
Law Judge's Decision along with a brief in response
to the contentions of the General Counsel and the
Charging Party.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
We agree with the Administrative Law Judge's finding that Respondents
did not violate Sec. 8(a)l1) of the Act b) administering to their unrepre-
sented employees, who were the object of the Union's organizing efforts, an
opinion survey which, inter alia, solicited their grievances concerning certain
working conditions. In reaching this result the Administrative Law Judge
properly concluded that the survey was conceived for legitimate business
reasons and was not designed in response or opposition to the Union's
organizing effort. See, e.g.. Litton Dental Prsducts Division of Litton Indusiri-
al Products. Inc.. 221 NLRB 700 (1975). In this regard, the Administrative
Law Judge also found that the grievances were not solicited in a "pre-
election contest." We disagree with this latter finding. Thus, at the time the
survey was distributed, the parties herein were still in the midst of a long.
unresolved representation case involving the unorganized employees. How-
ever, notwithstanding the fact that, technically, the survey was undertaken
in a "pre-election context," we find that the timing of Respondents' action
does not, by itself, suggest that the use of the survey was designed to under-
mine the Union. The record is clear that for a considerable period of time.
both prior and subsequent to the distribution of the survey, there was no
active campaigning on the part of either the Union or Respondents and no
election was scheduled or imminent. Thus. the situation here. while techni-
cally arising in a preelection context, is distinguishable from those cases
where the timing of the employer's conduct made it reasonable to infer that
the actions were taken for the purpose of eroding employee support for the
union. See, e.g., Montgomerv Ward & ('o, Incorporated, 225 NLRB 112. 118
(1976) (implied promise of benefits made by the employer a few da's before
the election): The May Department Stores (Company. 191 NI.RB 928 (19711
(employer's discussions with employees were held a few weeks before the
election); Tom Woods Pontiac, Inc., 179 NL.RB 581 (1969) (emploser solic-
ited employee grievances I week after the consent election agreement).
We also agree with the Administrative L.aw Judge's finding that the distri-
bution of the survey directly to unionized employees without consulting the
Union did not violate Sec. 8(a}(5) as it was not designed for. nor did it have
the effect of, eroding the Union's position as the employees' exclusive bar-
gaining agent. In reaching this result, we particularly note that, shortly after
the survey was administered. ersonnel )lrclior Rionald 1 wlom c, sen i
memorandum to the unionized employees making it clear that Respondents
had no intention of bargaining directly with the employees and that Re-
spondents fully recognized the legal rights of the Union as the employees'
exclusive bargaining representative for purposes of negotiating employees'
wages, hours, and other working conditions.
240 NLRB No. 137
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint herein be, and it hereby is,
dismissed in its entirety.
DECISION
STATEMEN1 OF 1THE CASE
STANLEY GILBERT. Administrative Law Judge: Based
upon a charge filed on February 16, 1977, by United Stan-
ford Employees, Local 680 Service Employees Internation-
al Union, AFL-CIO, hereinafter referred to as the Union,
the complaint herein was issued on January 19, 1978. The
complaint alleges that Leland Stanford Jr. University and
Stanford University Hospital, hereinafter referred to re-
spectively as the university and the hospital and collective-
ly as Respondents, violated Section 8(a)(1) and (5) of the
Act. Respondents, by their answer, deny that they engaged
in conduct violative of the Act as alleged.
Pursuant to notice a hearing was held in San Jose, Cali-
fornia, on April 4, 1978, before me. Appearances were en-
tered on behalf of all parties, and briefs were timely filed
by said parties which have been carefully considered.
Based upon the entire record in this proceeding and my
observation of the witnesses as they testified, I make the
following:
FINDINGS OF FACT
I. HE BUSINESS OF RESPONDENTS
The university, an entity exercising corporate powers un-
der the laws of the State of California, operates a private
nonprofit institution of higher learning. During the past
calendar year, the university had gross revenues in excess
of $1 million from all sources, exclusive of contributions
not available for use for operating expenses, and purchased
goods valued in excess of $50,000 directly from suppliers
located outside the State of California.
The hospital, a private, nonprofit, California corpora-
tion, operates an acute-care teaching hospital in Palo Alto,
California. During the past calendar year, the hospital had
gross revenues in excess of $250,000 and purchased goods
valued in excess of $50,000 directly from suppliers located
outside the State of California.
Respondents jointly operate the Stanford University
Medical Center, which includes the hospital and the Stan-
ford School of Medicine. The university has control of the
operations of the hospital and its labor relations policies.
LELAND STANFORD JR. UNIVERSITY 1139
As is admitted by Respondents. they are joint em-
ployers.' As is also admitted by Respondents, each of them
is, and at all times material herein has been, an employer
engaged in commerce and in operations affecting com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
II THE LABOR ORGANIZATION INVOLVED
As is admitted by Respondents, the Union is, and at all
times material herein has been, a labor organization within
the meaning of Section 2(5) of the Act.
III. THE AI.lEGED NFAIR LABOR PRACTICES
Background Information and Undisputed Facts
This case concerns three surveys submitted in February
1977 to employees at the Stanford University Medical Cen-
ter, which is "jointly operated" by Respondents.2
The medical center is located on the campus of the uni-
versity and includes the hospital, clinics, and the Stanford
University Medical School, hereinafter referred to as the
medical School. The hospital employs approximately 3,100
persons and its personnel policies, practices, and employee
relations are formulated and administered under the direc-
tion of the medical center personnel director, Ronald D.
Twomey. The medical school, an academic school of the
university, employs approximately 1.200 persons: and an-
other 100 or so persons are employed at the clinics, which
provide outpatient care to patients of the medical school
faculty. Personnel policies, practices and employee rela-
tions at the medical school and clinics are under the direc-
tion of the director of personnel for the university who
works in conjunction with Twomey in order to coordinate
the policies and practices of the hospital and medical
school.
Approximately 1.300 of the employees at the medical
center are members of a union: The Committee for Recog-
nition of Nursing Achievement (CRONA) represents ap-
proximately 950 registered nurses at the hospital; Stanford
University Medical Center Engineering Association repre-
sents approximately 95 maintenance employees at the hos-
pital; and the Union, the Charging Party herein, represents
about 250-300 employees at the medical school, of which
approximately 125-200 are "life science technicians." The
employees represented by the Union are part of a 1,400-
person universitywide bargaining unit.3
The facts set forth in the following numbered paragraphs
were stipulated by the parties:
Respondents. in their answer, den) the allegation in the complaint that
they are a single integrated enterprise In view of the admission that thes are
joint employers., it does not appear necessar? for the purposes of this pro-
ceeding to make a finding with respect to said allegation. It is noted that
none of the briefs filed mentioned the issue raised by said aliegation and
denial.
As conceded in Respondent's brief
In 1973, the Union was certified to represent technical. maintenance.
and service employees of the university. Since 1973. two cillectie-bargain-
ing agreements have been executed b the Union and the unisersilt the
first effective from September 1., 1973, through August 31. 1976, and the
second from September I. 1976, through August 31. 1979
I. On September 6, 1974. the Union filed a petition for
an election at the hospital with Region 20 of the National
Labor Relations Board. This petition was given Case 20-
RC 12323. On September 16, 1974, Stanford United Medi-
cal Technologists filed a petition for an election at Stan-
ford University Hospital with said Region. This petition
was given Case 20-RC-12345. On September 18, 1974,
Stanford University Medical Center Engineering Associa-
tion filed a petition for an election at the medical center
with said Region. This petition was given Case 20-RC-
12348. On November 1, 1974, Stanford University House
Staff Association filed a petition for an election at the med-
ical center with said Region. This petition was given Case
20-RC-12436. On November 1, 1974, the Union filed for
an election at the hospital with said Region. This petition
was given Case 20-RC-12435. Finally, on January 24.
1975, California Licensed Vocational Nurses Association
filed a petition for election among all licensed vocational
nurses employed at the hospital or clinics with Region 20.
This petition was given Case 20-RC-12567.
2. On November 4, 1974, following preliminary investi-
gation, a representation hearing commenced on all of the
above cases.
3. In December 1974 the hearing was recessed so that
the parties could explore the possibility of entering into a
consent election agreement.
4. On January 24, 1975. an Agreement for Consent Elec-
tion covering Cases 20-RC-12323, 20-RC-12345, 20-RC-
12348, 20-RC-12435, and 20-RC-12436, was approved.
An Agreement for Consent Election in Case 20-RC-12567
was approved on January 29, 1975. These consent agree-
ments provided for elections among the designated em-
ployees on April 10, 11, and 12, 1975. (It appears that ap-
proximately 1,600 hospital and clinic employees were
involved in the election in which the Union participated.)
5. On April 9, 1975, the Union filed an unfair labor
practice charge against the university and hospital. That
charge was given Case 20-CA-10117.
6. On April 17, 1975. following the aforesaid elections
scheduled for April 10, 11, and 12, 1975, the Union filed
timely objections to the conduct of the elections in Cases
20-RC-12323, 20-RC-12345. 20-RC-12348, 20-RC-
12435, and 20-RC-12567. Many of the objections raised
had also been alleged by the Union as unfair labor prac-
tices in the charge in Case 20-CA-10117.
7. Towards the end of November 1975 the Regional Di-
rector for Region 20 concluded the investigation of both
the unfair labor practice charge and election objections
filed by the Union. At that time, the Regional Director
concluded that the 8(a)2) allegations posed novel issues
which should be submitted to the Regional Advice Branch
of the Office of the General Counsel.
8. In March 1976 the Regional Advice Branch directed
issuance of a complaint, absent a settlement by the parties.
9. On June 21, 1976, the Regional Director issued a Re-
port on Objections, order consolidating cases, and com-
plaint and notice of hearing. The hearing on the complaint
and objections was set for September 28, 1976.
10. On September 1, 1976, counsel for the university re-
quested a month's postponement of the hearing because of
pending negotiations for a contract with the Union for the
1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining unit represented by it.
11. On September 6, 1976, pursuant to that request, the
hearing was rescheduled for November 8, 1976.
12. Settlement discussions with the Union were initiated
by Stanford University in October 1976.
13. On November 4, 1976, the university, the Union,
and counsel for the General Counsel reached an agreement
on terms of a settlement with respect to all issues raised by
the complaint and objections, save an election date. The
Regional Director then postponed the hearing scheduled
for November 8, 1976, indefinitely pending conclusion of
the settlement discussions. The parties were unable, how-
ever, to reach an agreement regarding a date for the elec-
tion.
14. On December , 1976, Alan Longman, attorney for
the General Counsel for the matters described in para-
graphs 9 through 13 above, sent all parties a proposed set-
tlement agreement. At the suggestion of counsel for the
university, the settlement left determination of the election
date to the Regional Director.
15. On December 6, 1976, the university signed the set-
tlement agreement and returned it to the counsel for the
General Counsel. The Union's representatives refused to
sign the settlement agreement.
16. On January 27, 1977, counsel for the General Coun-
sel met with representatives from Alianza Latina and Black
Advisory Committee, two affirmative action committees
alleged to be labor organizations in the complaint de-
scribed in paragraph 9 above, to seek their waiver of any
rights which might be affected by the settlement. Both of
these groups refused to give such a waiver.
17. On January 31, 1977, counsel for the university met
with counsel for the General Counsel and the Regional
Attorney for Region 20. The Regional Attorney advised at
that time that the Regional Director was unwilling to ap-
prove the settlement over United Stanford Employees' ob-
jection without waivers from the Alianza Latina and Black
Advisory Committee. The Regional Attorney advised
counsel for Stanford that the case would, therefore, be put
back on calendar for a hearing.
18. In February 1977 the university administered an em-
ployee opinion survey to employees at the medical center.
19. On February 15, 1977, the Union filed an unfair la-
bor practice charge against Stanford which was numbered
Case 20-CA-12481 (now Case 32-CA-153), and which is
the subject of this proceeding.
20. On February 24, 1977, the Regional Director resche-
duled the hearing on the cases referenced in paragraphs 5-
9 above for June 13, 1977.
21. In May 1977 settlement discussions were renewed by
counsel for the General Counsel, and tentative agreement
was reached on June 10, 1977. The settlement agreement
was signed by the parties on June 13, 1977, and approved
by the Regional Director on July 8, 1977. These settlement
agreements provided for elections at the medical center in
Cases 20-RC-12323, 12435, 12345, and 12567 on February
2-4, 1978.
The Survey
Twomey credibly testified that he discussed his intended
use of an opinion survey (when he was interviewed prior to
entering his job in May 1976) to develop a "data base with
employees to manage more effectively." Following is an
outline of his credited testimony as to the origin and devel-
opment of the three surveys which were administered re-
spectively to the hospital, clinics and medical school in
February 1977. It is noted that all three were substantially
identical for the first 77 questions (referred to as the "core
questions" or "core comments" ) and that the remaining
questions were tailored to fit the three different facilities.
The core questions were taken from a standardized survey,
are highly interrelated, and can be evaluated on the basis
of "national normative data." The)' were originally devel-
oped by Rensis Likkert, a well known designer of tests on
the faculty of the University of Michigan. Likkert's ques-
tions were modified by Dr. Edward Giblin, a specialist in
organizational opinion surveys for use by Arthur Young &
Company, an international accounting and management
consultant firm, for servicing its clients. Twomey was em-
ployed for 2 years by Arthur Young & Company as "na-
tional director for health care consulting" and he modified
the questions slightly so that the survey could be applied to
hospitals. While so employed he used the survey for ap-
proximately 20 organizations engaged in dispensing medi-
cal services ("medical centers, hospitals" ).
After he joined the medical center he began discussing
plans for a survey with administrative personnel. In mid-
October 1976, at their request, he met with a delegation of
employees represented by the Union including its then
president, and at the meeting they complained "that top
management supervision should play a more active role in
trying to encourage" the representatives of the university
bargaining with the Union "to be more considerate of the
demands" of the Union. In response Twomey told them of
the plans for a survey designed to elicit feelings of employ-
ees including members of the Union, and when the presi-
dent of the Union asked to participate in it, he explained
that it would not be appropriate for him to do so since the
survey would be made available to all personnel at the
medical center. There was no protest by the Union about
the planned survey until February 10, 1977.
Prior to the distribution of the survey to personnel of the
medical center between February 7 and 25, 1977, Susan
Paulsen, the university's manager of employee relations, by
letter dated January 31, 1977, advised the then president of
the Union, Anne Schlagenhaft, of the plan to distribute
"an employee opinion survey . . . to all Medical Center
employees," and enclosed an "advance copy." While said
advance copy did not coincide with the three surveys
which were subsequently distributed, it does not appear
that the differences are of any materiality to the resolution
of the issues herein. On February 10, 1977, Schlagenhaft
called Paulsen and objected to the survey. She stated that
she had been advised that the administration of the survey
might be an unfair labor practice and asked Paulsen not to
proceed with it. Paulsen responded that it was the
university's position "that there was nothing unlawful
about the survey." By letter to Paulsen dated February 14,
Schlagenhaft detailed the basis for the contention that the
survey would be unlawful: in effect, that it would bypass
the Union in dealing with the employees the Union repre-
LELAND STANFORD JR. UNIVERSITY 1141
sents, and that it would undermine the Union's organiza-
tional efforts among unrepresented employees by implying
that the university would "remedy any dissatisfaction" the
survey might uncover. She concluded her letter by offering
to furnish any information sought "conserning working
conditions at Stanford." After receipt of Schlagenhaft's let-
ter, Paulsen, by telephone and a letter dated February 28,
attempted to explain the purpose of the survey and to reas-
sure her of the lawful intent ("not to interfere with or by-
pass the Union"). On March 11, 1977, Twomey sent a
memo to all medical school employees in which he stated,
in effect, for the benefit of those "who are members of the
collective bargaining unit" represented by the Union, that
"the survey was neither designed nor will it be used in
derogation of any legally recognized rights of your union,"
and that the university "recognizes and reaffirms its re-
sponsibilities to deal with" the Union as its "exclusive rep-
resentative" as to wages, hours, and working conditions.
The surveys were made available to all personnel in the
medical center, including administrators, physicians, sup-
ervisors, and employees (represented and not represented
by labor organizations). Notices were sent to all said per-
sonnel, in effect, urging them to participate in the survey.
In one notice it is stated:
THIS IS YOUR OPPORTUNITY TO PARTICIPATE IN EFFORTS TO
IMPROVE OUR WORKING ENVIRONMENT
In another it is stated:
Share your Attitudes, Opinions and Feelings About
All Aspects of Your Working Relationship with Stan-
ford University Hospital;
and also:
YOUR OPINIONS ARE NECESSARY IN PLANNING FOR IMPROVE-
MENT'
Personnel who were willing to participate went to desig-
nated rooms where they filled out the questionnaire and
dropped it into a ballot-box type of receptacle. Of approxi-
mately 4,400 persons to whom the surveys were made
available, approximately 1,800 participated: in the hospital
1,570 out of 3,088; in the clinics 55 of 117; and in the
medical school 195 of 1,200.
The Issues
The issues, according to the pleadings herein, are:
1. Whether Respondents violated Section 8(a)( 1) of the
Act by soliciting employee grievances (from employees in
units where petitions for an election had been filed by the
Union) and impliedly promising to resolve said grievances
by the administration of the surveys.
2. Whether Respondents violated Section 8(a)(5) and (I)
of the Act by administering a survey. It is alleged in the
complaint that said section was violated by:
(a) Undermining the Union's position as the exclusive
bargaining representative of certain of the employees by
administering an opinion survey questionnaire to said em-
ployees concerning wages, hours, and conditions of em-
ployment.
(b) Dealing directly with employees represented by the
Union in derogation of the Union's status as their exclusive
bargaining representative by administering an opinion sur-
vey questionnaire to said employees concerning wages,
hours, and conditions of employment. (However, in his
brief General Counsel states that the issue is whether said
section was violated by Respondents "unilaterally adminis-
tering an opinion questionnaire to its employees [represent-
ed by the Union] without first bargaining with" the
Union.)
In its brief the Union states the following:
The theory of the complaint in this case is that the
survey violated Section 8(a)( 1) of the Act in the unrep-
resented unit[s] by soliciting grievances at a time when
there was an election case pending and at a time when
the Charging Party was engaged in organizing activity.
In addition the survey violated Section 8(a)(5) of the
Act by undermining the position of the Charging Par-
ty as bargaining representative because it solicited
grievances from employees represented by the Union
and sought to obtain information to be used in dealing
with the Charging Party during pending negotiations.
In contrast to the above, Respondents state in their brief
that the issues herein are:
I. Is it unlawful to survey opinions of unrepre-
sented employees concerning their work environment
where representation petitions have been pending for
2-1/2 years, where no active organizing has occurred
for nearly 2 years and where elections are unlikely to
be held for another 2 years or more?
2. Is it unlawful to include represented employees
in an institution-wide survey concerning employee
and managerial attitudes toward the work environ-
ment when the represented employees are covered by
an existing collective-bargaining agreement which will
not expire for over 2-1/2 years, and when no negotia-
tions for revisions of the agreement affecting said em-
ployees are either underway or proposed by either par-
ty?
Resolution of the Issues
To a great extent the parties reveal their contentions by
the wording of what they consider the issues to be. Al-
though the General Counsel seems to have altered the
theory of the violation of Section 8(a)(5) from what is al-
leged in the complaint to that of "unilaterally administer-
ing" the survey "without first bargaining with" the Union,
he does not develop this contention sufficiently to persuade
me that an employer must first bargain with the Union
before he can submit a questionnaire to his employees who
are represented by a union. While it would appear that a
questionnaire per se is not a matter which can be equated
with wages, hours, terms, or conditions of employment and
is not a mandatory subject of bargaining; I do not pass
upon this question.
The record discloses that the Union was notified in Oc-
tober 1976 (over 2 months prior to the surveys) through its
president that a survey was planned, and when he asked to
1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
participate in it he was told that it would be inappropriate
for the Union to do so in view of the fact that the Union
represented only a minor segment of the personnel to
whom the survey would be submitted. The Union did not
press its request and made no request to bargain about the
use of the survey. It did nothing until February 10, 1977,
when Schlagenhaft protested the administering of the sur-
vey. I am of the opinion that the issue of a violation of
Section 8(aR5) of the Act is framed by the allegation in the
complaint and the contentions of the Charging Party and
Respondents as revealed by their statements of the issue. It
is noted that no case was cited which supports the theory
that an employer must bargain with a union before taking
a survey of its employees. It is also noted that Respon-
dents' brief did not touch upon the issue raised by the
General Counsel's theory, since they could not have antici-
pated it. It is further noted that the one case cited by the
General Counsel with respect to the issues of a violation of
Section 8(aX5) 4 does not deal with said theory, but, rather.
deals with the issue of whether the solicitation of griev-
ances, in the circumstances of that case, constituted an "at-
tempt to erode a union's bargaining position by engaging
in a direct effort to determine employee sentiment rather
than to leave efforts to the agent of the employees."
Whether such a finding could be made herein, it appears, is
the issue to be resolved. The Union was notified of the
intention to administer a survey well in advance and ne-
glected to pursue any right it might have had to bargain
about its use. I am not satisfied that, in the circumstances,
the Respondents were required to bargain about the use of
the survey when Schlagenhaft protested its use a few days
after Respondents commenced administering it.5
The Alleged 8(a)(l) Violation
As set forth hereinabove, Agreements for Consent Elec-
tion based upon petitions filed by the Union in the latter
part of 1974 were entered into in January 1975 for bargain-
ing units in the hospital and clinics; elections were held in
April 1975; timely objections thereto were filed also in
April 1975; also in April 1975 an unfair labor practice
charge was filed; in June 1976 the Regional Director issued
a Report on Objections, order consolidating cases and
complaint and notice of hearing; and, as of February 1977,
the month in which the surveys were administered, the
above matters had not proceeded to hearing. It would ap-
pear appropriate to find that, at the time the surveys were
administered, Respondents could reasonably have as-
sumed that it would be at least a year or more before the
matters involved in the hearing would be resolved and new
elections, if ordered, could be held.
The survey distributed to hospital personnel contained
119 questions and to the clinics 117 questions. Next to
most questions were five choices ranging in degree from,
for example, "very dissatisfied" to "very satisfied." While
at least a dozen of the questions related to satisfaction with
pay or terms and conditions of employment (including
4 Ohie Pacific, Incorporated, 196 NLRB 458 (1972).
It is noted she was notified that it would he implemented approlimate
a week prior thereto.
some of the core questions) as well as a last question invit-
ing any comment or suggestion, the questions were de-
signed for the most part to determine the effectiveness of
management. In view of the nature of some of the ques-
tions (relating to pay and tenure and conditions of employ-
ment) and the above-quoted statements on the notices of
the survey indicating that it was for the purpose of making
improvements, I am of the opinion that the questions relat-
ing to pay and terms and conditions of employment consti-
tuted solicitation of grievances and the notices implied the
possibility that they would be remedied.
There remains, however, the issue of whether or not, in
the circumstances of this case, such conduct violated Sec-
tion 8(a)(1) of the Act. It is noted that in their brief Re-
spondents contend that the circumstances were such that
their conduct did not interfere with, restrain, or coerce em-
ployees within the meaning of Section 8(a)( 1) of the Act. In
their brief Respondents clearly concede that the solicita-
tion of grievances accompanied by an expressed or implied
promise of benefits in order to interfere with employees'
rights to organize is unlawful. They also apparently con-
cede that it may be inferred from the timing of such an
action that it was designed to interfere with said rights.
However, they argue, in effect, that it should be inferred
from background information as to the origin of the survey
and the reason for implementing it, that it was not designed
to interfere with said rights. It is further argued, in effect,
that it should be inferred from the timing of the surveys
(i.e.. the prospect that elections would not be held for a
considerable period of time and the lack of an)' organiza-
tional activities at, and for some time prior to, the time
material herein) that there was no attempt to interfere with
said rights, nor could such an effect be reasonably fore-
seen.
The General Counsel in urging a finding of a violation of
Section 8(a)( ) of the Act relies on two cases: Tom Wood
Pontiac, Inc., 179 NLRB 581 (1969), and The Miller Press,
197 NI.RB 574 (1972).
It is noted that the Tom Wood case involved an "opinion
survey" not unlike the survey in this case. It is also noted,
however, that the survey in the cited case was administered
I week after the respondent therein entered into a Stipula-
tion for Certification Upon Consent Election. The Board
found that the conducting of the survey "in a preelection
context" violated Section 8(a)(1) of the Act. It is further
noted that the Board found that respondent's conducting
of the survey was "for the purpose of undermining union
organizational efforts."
In the Miller case the respondent therein engaged an
industrial psychology firm to conduct a survey of its em-
ployees concerning their opinions of working conditions.
The Board affirmed that portion of the Administrative
Law Judge's Decision in which he found that the survey
violated Section 8(a)( ) of the Act. It is noted, however,
that the Judge found that said respondent "acted only be-
cause it was made aware of union activity in the plant and
only because it opposed the unionization of its employees,"
and, in addition, from the circumstances surrounding the
taking of the employee attitude survey therein, it "was cal-
culated to and tended to inhibit" employees in the exercise
of their rights under Section 7 of the Act. (Emphasis sup-
LELAND STANFORD JR. UNIVERSITY 1143
plied.)6 It is further noted that the Administrative Law
Judge stated (at 582):
It is not unlawful for an employer to solicit employee
grievances during a union's organizational campaign,
"so long as 'the discussions [about grievances] avoided
any attempt by the company to imply promises of
benefit if the union was defeated.'" nor does the use
of opinion surveys per se violate Section 8(a)(1): but
the solicitation is unlawful if it is "accompanied by an
express or implied promise of benefits specifically
aimed at interfering with, restraining, and coercing
employees in their organizational effort." [Emphasis
supplied.]
Cases cited by Respondents, including ITT Communica-
tions, a Division of International Telephone and Telegraph
Corporation, 183 NLRB 1129 (1970), support the conclusion
that surveys, even though they solicit grievances and im-
pliedly promise benefits, do not violate Section 8(a)(1) of
the Act unless it be found that they had as a purpose that of
undermining the organizing activities on behalf of the
Union. In the ITT Case, the Board stated (p. 1129):
The solicitation of employee grievances by an em-
ployer is not illegal unless accompanied by an express
or implied promise of benefits specifically aimed at in-
terfering with, restraining, and coercing employees in
their organizational effort. [Emphasis supplied.]
Now the specific question to be resolved is whether or
not the surveys, and particularly the questions therein re-
lating to wages and terms and conditions of employment,
had as an object thereof to undermine the organizing ef-
forts of the employees on behalf of the Union. The answer
to said question requires an analysis of the circumstances.
It is apparent from the credited testimony of Twomey
that, before he even entered the position of director of per-
sonnel of the medical center, he contemplated using a sur-
vey as a tool to aid him in effective management should he
be appointed to the position. Further, it is apparent from
his credited testimony that he had previously used similar
surveys as a management consultant at a number of medi-
cal facilities. It is quite clear, therefore, that the idea of
using the surveys was ,ot originated because of the employ-
ee's organizing activities on behalf of the Union, as the
survey was found to be in the Miller case, supra. Nor were
the surveys administered in a "preelection context" as
found in the Tom Wood case, supra. In said cited case the
survey was instituted I week after a Stipulation for Certifi-
cation Upon Consent Election. In the instant case the mat-
ter of elections had been dormant for almost 2 years and
could reasonably be expected to remain so for at least an-
other year, pending resolution of objections to the elections
and the aforementioned unfair labor practice complaint.
Thus, in my opinion, it cannot be found that the surveys
were administered in a "preelection context." It can be spe-
culated that improvements or benefits which Respondents
might incorporate in the wages or terms and conditions of
employment as a result of information elected by the sur-
veys would affect employees adherence to the Union if, or
The 7 ller Press. supra. 582 583
when, elections were held. It would appear, in the circum-
stances of this case, that it would be unreasonable to hold
that for a period of years (between the election in April
1975 and the possibility of election in 1978 or later) 7 the
Respondents would be prohibited to take action to find
and remedy problems in order to improve employees' mo-
rale and effectiveness of operations. I have not overlooked
the argument that at the time the surveys were adminis-
tered employees were engaged in organizing activities on
behalf of the Union. The testimony with regard to such
activities consisted of meetings led by an employee repre-
sentative of the Union, but without any indication that the
meetings concerned compaigning for votes in favor of rep-
resentation by the Union; dissemination of a newsletter,
again without showing that it was directed at such a cam-
paign; and union members assisting employees in pro-
cessing grievances. I am satisfied that for a considerable
period of time prior to, during, and after the surveys there
was no active campaigning (in prospect of elections being
held) carried on either on behalf of the Union or the Re-
spondents. (It is noted that there was no mention of the
Union or union representation in the surveys.) Conse-
quently, it is found that the surveys were not administered
in a "preelection context."
Based upon the above findings of fact, Decisions of the
Board, and analyses, it is concluded that the General
Counsel has failed to prove by a preponderance of the evi-
dence that Respondents violated Section 8(a)( 1) of the Act
by administering the surveys in February 1977.
The Alleged 8(a)(5) Violation
With respect to the allegation of a violation of Section
8(aX5). the one case relied upon by both the General
Counsel and the Charging Party is Obie Pacific, Inc., supra.
As indicated hereinabove, the finding of a violation in that
case hinged upon a finding that the solicitation of griev-
ances therein constituted "an attempt to erode the Union's
bargaining position." The facts found in said case reveal
that the respondent therein was attempting "to obtain the
opinion of employees for subsequent presentation to the
Union as a basis for obtaining a concession as to a revision
of article I1(f)" of the collective-bargaining agreement.
Apparently, in order to bring the facts of the instant case
within the ambit of those in the cited case, both the Gener-
al Counsel and the Charging Party refer to the provisions
in the existing bargaining agreement with respect to em-
ployees falling within the classification of "life science
technicians" of which apparently approximately 100 or
more are represented by the Union under said agreement.
In effect they argue that said agreement left a "substantial
'open' issue" as to the classification and wages of said tech-
nicians to be "resolved" during the "second year" of the
agreement It appears that they would have me infer that
the obtaining of information from said technicians consti-
tuted "'an attempt to erode the Union's bargaining posi-
tion" with respect to said technicians. I am not so persuad-
ed. The collective-bargaining agreement provides for a
it is noted hat the elections were eentuall. held In Februar 1978 as a
result of a settlement which could not have been anticipated at the time of
the surveys n ebruars 1977.
1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"Classification Committee" composed of three representa-
tives selected by the university and three "workers" select-
ed by the Union, the purpose of which is "to investigate,
study and make recommendations on classification specifi-
ciations as provided in this agreement." The agreement
further provides that within 2 years of the execution of the
agreement the university will develop revised specifications
for the life science technicians and present them to the
classification committee for its recommendations. It fur-
ther provides that the Union's disagreement with the uni-
versity as to the life science technicians' classification and
pay scale may be made the subject of a grievance under the
procedures set forth in the agreement with the ultimate
right of arbitration. Assuming that the university is able to
glean from the survey in which life science technicians par-
ticipated their views as to wages and other terms and con-
ditions of employment, the survey does not, in view of the
time element (approximately a year and a half before the
committee's recommendations were due) and the interposi-
tion of the committee in the process (which can only make
recommendations) constitute "an attempt to erode the
Union's bargaining position" within the purview of Obie
Pacific, Inc., supra. There is no indication that the recom-
mendations of the committee are binding upon either the
university or the Union. In the circumstances, it does not
appear appropriate to find that the survey in which em-
ployees represented by the Union could participate consti-
tuted an attempt to "erode" the Union's bargaining posi-
tion. In addition, I do not believe it appropriate to find that
by administering the survey Respondents were seeking to
enlist employees' aid in support of Respondents' bargain-
ing position with respect to the classification of life science
technicians.
A case relied upon by the Charging Party is Dow Chemi-
cal Co., 536 F.2d 550 (3d Cir. 1976); (on remand) 227
NLRB 1051 (1977). That case involved a "Speak Out" pro-
gram which the Board concluded "violated Section 8(a)(5)
of the Act by soliciting and adjusting grievances . . . with-
out providing the Union an opportunity to be present at
the adjustment." The Dow Chemical case, on its facts, is so
dissimilar to the instant case that its holding cannot be
applied herein. The element of adjustment of grievances
without the opportunity afforded to the Union to be pres-
ent at the adjustment is wholly lacking in the instant case.
As to the allegation that the administering of the surveys
constituted "direct dealing" with the employees whom the
Union represented or sought to represent, I am of the opin-
ion that the facts herein will not support said allegation.
There was no attempt to "deal with" employees with re-
spect to their wages or terms and conditions of their em-
ployment, but at the most an attempt to elicit information
from them with respect thereto which would provide Re-
spondents with possible elements of discontent and im-
pliedly promised the possibility of benefits. As stated here-
inabove, I am of the opinion that such conduct, without
T8 hat is, in circumstances which warrant a finding that it is "calculated"
to interfere with, restrain, and coerce employees with respect to their rights
guaranteed under Sec. 7 of the Act. Central Diagnostic lahorator. 206
NLRB 754, 764 (1973).
more,8 cannot be found to be violative of either Section
8(a)(I) or (5) of the Act.
There is nothing in the record viewed as a whole that
would warrant a finding that the surveys were calculated to
interfere with, restrain, or coerce employees in the exercise
of the rights guaranteed them under Section 7 of the Act,
not even Respondents' conduct subsequent to the surveys.
It appears that the only action Respondents took as a re-
sult of the information they obtained from the surveys was
to (I) upgrade the quality of food and expand the seating
capacity of the cafeteria: (2) increase the dissemination of
information regarding the affirmative action plan; (3) up-
grade their publication, "Memo": and (4) upgrade the su-
pervisory development program. As stated in Respondents'
brief, "these changes were at most changes in form rather
than substance" and were not violative of the Act. Rust
Craft Broadcasting of New York, Inc., 225 NLRB 327
(1976); The Trading Port, Inc., 224 NLRB 980, 983 (1976).
It is noted that there is neither any allegation nor conten-
tion that Respondents engaged in any conduct subsequent
to the surveys that was violative of the Act.
It is further noted that Respondents contend that, had
they violated Section 8(a)(5) and () of the Act by adminis-
tering the survey to employees represented by the Union,
no remedy for such conduct would be required in view of
their memorandum to said employees, in effect, "disa-
vowing" any intention to bypass the Union and assuring
them that all legal obligations to bargain with their repre-
sentative would be met. In support of said contention Re-
spondents cite Fleetwood Trailer Co., 118 NLRB 1355, 1356
(1957). While, in view of the findings hereinabove, it would
appear unnecessary to consider the contention, neverthe-
less it is observed that it lacks merit. The memorandum did
not repudiate their alleged unlawful act (as was found the
respondent did in the cited case), but merely constituted an
assurance that their alleged unlawful act was not intended
to accomplish any unlawful effects.
Upon the basis of the foregoing findings of fact and
upon the entire record in this case, I make the following:
CONCLUStONS OF LAW
I. Respondents are joint employers, each of whom is,
and at all times material herein has been, an employer en-
gaged in commerce and in operations affecting commerce
within the meaning of Section 2(2), (6) and (7) of the Act.
2. The Union, is, and at all times material herein has
been, a labor organization within the meaning of Section
2(5) of the Act.
3. The General Counsel has failed to prove by a prepon-
derance of the evidence that by including employees whom
the Union was seeking to represent among the employees
to whom surveys were administered in February 1977 Re-
spondents violated Section 8(a)( ) of the Act.
4. The General Counsel has failed to prove by a prepon-
derance of the evidence that by including employees repre-
sented by the Union among employees to whom a survey
LELAND STANFORD JR. UNIVERSITY 1145
was administered in February 1977 Respondents violated
Section 8(a)(5) and (1) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 9
The complaint herein is dismissed in its entirety.
In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions. and recommended Order herein shall, as provided in Sec
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions. and Order. and all objections thereto shall he
deemed waived for all purposes.