The Wrong Way to Test Union Support

A New Jersey trucking company wanted to know whether its employees still wanted their union. So it ran a secret-ballot poll to ask them. NLRB held the poll broke the law.

In Layla Transportation (JD-36-26), ALJ Jeffrey Gardner found the employer violated Section 8(a)(1) by polling its Teamsters-represented employees about whether they wanted the union — and separately violated Section 8(a)(5) by refusing to bargain in good faith with Local 469.

You generally cannot poll your own represented employees about union support. The narrow exception, from the Board’s Struksnes decision, requires two things: a good-faith, reasonable doubt that the union still holds majority support, and then a set of strict safeguards — secret ballot, assurances against reprisal, no coercive atmosphere, and proper notice.

Layla failed that threshold. The judge found it didn’t actually have a good-faith doubt about the union’s majority; its stated reasons appeared after the fact. Miss that threshold and the safeguards don’t matter — the poll is unlawful on its own.

The bargaining piece compounded it. The judge found the company stalled, including by trying to “pause” negotiations after the poll, which reflected an intent to delay rather than bargain. That’s surface bargaining — an 8(a)(5) violation.

To me, the lesson is simple. If you’re an employer who suspects your union has lost support, a DIY poll is one of the easiest ways to manufacture a fresh unfair labor practice. The rules are narrow and technical, and good intentions don’t rescue a poll that misses them.