EMPLOYEE SATISFACTION SURVEY > Survey Legal Issues

Survey Legal Issues

There are a number of legal considerations when planning an opinion survey.  These fall into one of two categories.  First, there are a number of National Labor Relations Board (“the Board” or “NLRB” hereafter) decisions regarding the use of satisfaction surveys.  The second area of concern is in responding to complaints of discrimination or safety violations that come up on the survey.  Failure to respond to these issues can lead to potential liability under Title VII of the Civil Rights Act of 1964 or under the Occupational Safety and Health Act.

The NLRB has held in some circumstances that employee opinion surveys can violate the National Labor Relations Act (“the Act” or “NLRA” hereafter).  These decisions center on the Board’s interpretation of Section 8(a)(1) of the Act, which has been interpreted over the years as prohibiting the solicitation of grievances by management during union organizing activity.

Section 8(a)(1) of the NLRA provides that “it shall be an unfair labor practice for an employer to interfere with, restrain or coerce employees in the exercise of rights guaranteed in section 7.”  This section (as interpreted through Board decisions) prohibits employers from soliciting grievances where a purpose of such solicitation is to induce employees to reject a union as their collective bargaining agent. 1

The Board will inquire into both the wording of the survey instrument as well as related comments made by representatives of management to determine whether either an express or implied promise of benefit is made to employees.2  Perhaps the best expression of this doctrine was made in the Board’s decision in Uarco Incorporated, 216 NLRB 1, 1-2 (1974) where it stated:
. . . it is not the solicitation of grievances itself that is coercive and violative of Section 8(a)(1), but the promise to correct grievances or a concurrent interrogation or polling about union sympathies that is unlawful; the solicitation of grievances merely raises an inference that the employer is making such a promise, which inference is rebuttable by the employer.

Depending on the factual circumstances, the NLRB has held that some employee satisfaction surveys violate section 8(a)(1) as solicitations of grievances, while others do not. 3  The Board relies on a number of factors when determining whether a survey violates the prohibition on soliciting grievances, including the existence of union activity, the types of questions asked, whether participants are anonymous, whether the company has conducted surveys in the past, whether issues brought up in the survey are corrected and the timing of the survey.4

In Clark Equipment Company a union election was first held in February of 1978, in which the union lost. The union objected to the first election and the NLRB, agreeing with the union objections, set aside the election and directed a second election.  A second election was conducted in July of 1979, and the union lost again.  Once again the union filed objections to the election.  In May of 1980, while the NLRB considered the objections to the second election, the company announced and conducted a survey by distributing a questionnaire to all employees in its manufacturing operation. 

The survey questionnaire was not the first survey conducted by the employer, who had earlier surveyed randomly selected groups of employees and on a separate occasion surveyed its supervisors.  However, these earlier surveys were substantially different than the survey distributed in 1980.

The survey asked about policies and procedures, whether the company was a good place to work and whether employee complaints received attention.  It also contained an open-ended question asking what employees would change about the company.  The employer asserted that the survey was confidential, but employees were asked to reveal their department, work shift, sex and length of employment.  The union filed an unfair labor practice charge alleging that the survey violated section 8(a)(1) of the Act.

The NLRB ruled that the survey did not violate the Act.  The Board found that the survey, conducted 11 months after the second election and at a time when no “special union activity” was under way, did not unlawfully solicit grievances.5  They ruled the survey lawful in spite of the conclusion that the survey could identify individual employee opinions on questions that could readily disclose employees’ union sentiments.6

In Ben Franklin, the employer opened a distribution center in 1978 and union activity began almost immediately after the facility opened.  In April of 1979, the union filed a petition to represent the employees of the facility, with an election scheduled for July 13.  On June 6, the employer announced an employee satisfaction survey and asked employees to complete a survey form.  One employee asked whether the surveys were being conducted because of the union activity and was told no and that surveys were common.  The employer testified that, while informal surveys of a sampling of employees were common at other facilities, they decided to conduct a more formal survey using a questionnaire at this facility.

Follow-up meetings were conducted later in June, where the survey results were communicated to employees.  The employer representative explained that the survey showed that communication between employees and supervisors needed improvement, and that there were questions about benefits and about wages.  Employees were told during the meeting that the company would train the supervisors and that they would learn about wages in July.  In early July the company announced pay increases to go into effect over the next year.  Insurance plans were also explained.

The Board held that the conduct of the opinion survey violated section 8(a)(1) of the Act.  Among the critical factors noted in the decision were that the survey did not follow the same pattern as other surveys, the survey occurred during the middle of a very active organizing effort and that the employer made improvements in wages and work conditions as a result of the survey.7

Holding individual or very small group meetings with employees can, under certain circumstances, also run afoul of the Act’s protections.  A number of Board decisions have found that, when an employee meeting occurs at a time, place or with personnel such that the employee may feel threatened or intimidated, the employer has engaged in unlawful interrogation under the Act.8 The Board will examine all the surrounding circumstances when determining whether an employer’s meeting was conducted in such a manner as to be threatening to the employee.9 

In order to avoid problems with individual meetings, it is suggested that employer’s begin these meetings by reassuring employees under the guidelines established in the Board’s Johnnie’s Poultry decision.10  These safeguards were articulated in the context of questioning an employee regarding the investigation of an unfair labor practice charge.  Nevertheless they are considered persuasive by the NLRB.11

The Johnnie’s Poultry safeguards are as follows:  (1) The purpose of the questioning must be communicated to the employee. (2) An assurance of no reprisal must be given.  (3) The employee’s participation must be obtained on a voluntary basis.  (4) The questioning must take place in an atmosphere free from union animus.  (5) The questioning itself must not be coercive in nature.  (6) The questions must be relevant to the issues involved in the complaint.  (7) The employee’s subjective state of mind must not be probed.  (8) The questions must not “otherwise interfere with the statutory rights of employees.”12  Explaining these issues to an employee prior to an individual meeting should provide a significant measure of protection to any potential unfair labor practice charge.

Another legal consideration regards complaints of discrimination.  Employers have an obligation under Title VII of the Civil Rights Act of 1964 to avoid discrimination on the basis of race, color, religion, sex or national origin.13  Other statutes prohibit discrimination based on age and disability.14

An employer who is made aware of discrimination or harassment based on a protected characteristic has an affirmative obligation to investigate and deal with those concerns.15 Therefore, an employer who learns of discrimination based on a protected characteristic during an employee satisfaction survey must promptly conduct a thorough investigation of that claim and carefully document its investigation and any action taken.

Another potential issue regards complaints of safety problems.  Employers are obligated under the “general duty clause” of the Occupational Safety and Health Act to provide a workplace “free from recognized hazards that are likely to cause death or serious physical harm” to employees.16 An employer who has knowledge of a preventable hazard and fails to correct it violates this obligation and is liable under the Act.17  Therefore an employer who learns of a dangerous condition through an employee opinion survey is obligated under the general duty clause to make the workplace free from that condition.