Wagon Wheel Bowl, Inc. v. National Labor Relations Board, National Labor Relations Board v. Wagon Wheel Bowl, Inc.

Citations: 47 F.3d 332; 95 Daily Journal DAR 1319; 95 Cal. Daily Op. Serv. 746; 148 L.R.R.M. (BNA) 2385; 1995 U.S. App. LEXIS 1687Docket: 93-70404, 93-70515

Court: Court of Appeals for the Ninth Circuit; January 30, 1995; Federal Appellate Court

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Wagon Wheel Bowl, Inc. petitions the Ninth Circuit Court of Appeals for review of a National Labor Relations Board (NLRB) decision that found the Company engaged in unfair labor practices by unlawfully polling its union employees and taking subsequent actions. The Company argues that the NLRB applied the incorrect legal standard in assessing the legality of the poll and contends that there was adequate evidence supporting its decision to conduct the polling. The NLRB seeks enforcement of its order.

The court denied the Company's petition for review and granted enforcement of the NLRB's order. The facts indicate that Wagon Wheel Bowl, a small California corporation, had recognized the Culinary Alliance Bartenders Union, Local 498, as the exclusive bargaining representative for its bartenders and waitstaff from 1970 until January 1991. Negotiations for a new collective bargaining agreement post-expiration were unsuccessful.

On January 23, 1991, the Company informed the Union of its intention to conduct a "Struksnes Poll" to gauge employee support for the Union, citing various employee complaints about inadequate health insurance and a lack of Union representation. Specific grievances included dissatisfaction with the health insurance coverage, claims of insufficient Union visits, and general concerns about the Union’s effectiveness. Employees expressed a desire for improved health insurance similar to what non-union employees received and questioned the value of their Union dues given the perceived lack of support.

In January 1991, Boyd heard Unit employees express dissatisfaction over a rise in Union dues effective January 1, 1991, and their belief that Union agents were absent and unhelpful, questioning the rationale for the dues increase. On January 25, 1991, an independent poll revealed two votes in favor of Union representation, five against, and three abstentions. Following this, the Company informed the Union that it would no longer recognize it as the exclusive representative and ceased collective bargaining, introduced a new health insurance plan, and stopped contributions to the Union’s Welfare Fund. The Union filed a charge against the Company, leading the NLRB General Counsel to issue a complaint, alleging violations of Sections 8(a)(1) and (5) of the National Labor Relations Act. A stipulation of facts was agreed upon, and the case was transferred to a three-member panel of the Board.

The Board concluded that the Company violated the Act by polling employees without adequate evidence of diminished union support, refusing to negotiate, implementing the health plan without Union consultation, and halting contributions to the Welfare Fund. The Company contested the Board's decision, claiming it used an incorrect standard for evaluating the polling's legality and that evidence indicated a sufficient loss of Union support to justify the polling. The legal standard for employer polling of union employees dictates that NLRB decisions must be upheld if supported by substantial evidence and appropriate legal application. The Board's decision emphasized the need for "sufficient objective evidence" to justify polling, referencing a standard previously established in Texas Petrochemicals Corp. However, the Company argued that the appropriate standard follows the precedent set in Mingtree Restaurant, Inc., which differentiates between the requirements for conducting a poll and those for withdrawing Union recognition.

The court upholds the use of employee polls to gauge union sentiment, provided they comply with the Struksnes safeguards. The Fifth and Sixth Circuits allow employers to conduct such polls based on substantial, objective evidence of diminished union support, even if this evidence alone does not warrant withdrawal of union recognition. The Company mistakenly argues that the Board required more evidence than necessary, while the Board correctly applied the "loss of support" standard recognized in prior circuit court decisions. 

The Board maintains that general employee dissatisfaction does not equate to a desire to disavow union representation. Citing precedent, the Board emphasizes that employee statements reflecting dissatisfaction with union performance lack the necessary substantiation to justify polling or withdrawal of recognition. In this case, most employee statements presented by the Company were merely expressions of dissatisfaction rather than indications of an intent to abandon union support. The Board concluded that the evidence provided by the Company was insufficient to support its polling actions.

The Board correctly determined the legality of the Company's employee polling and concluded that the Company did not meet the required legal standard. The majority of employee statements were deemed expressions of "dissatisfaction" lacking the specificity necessary to support a genuine belief in declining union support. This finding was backed by substantial evidence. Consequently, the initial unjustified polling led to the Company's subsequent actions being classified as unfair labor practices. The petition to overturn the Board's order was denied, and the Board's enforcement application was granted. Material facts of the case were largely undisputed, with stipulations from the Company, Union, and Board, and any unagreed facts were sourced from the record. Procedural challenges to the polling were absent, and relevant legal provisions under Title 29 U.S.C. Secs. 158(a)(1) and (5) outline unfair labor practices related to employee rights and collective bargaining.