American Mirror Co., Inc.

National Labor Relations Board - Board Decisions

Jan 13, 1986

277 N.L.R.B. 1626 (N.L.R.B. 1986)

1626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
American Mirror Company , Inc. and United Furni-
ture Workers of America , AFL-CIO. Cases 5-
CA-14969 and 5-CA-15355
13 January 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
On 11 January 1985 Administrative Law Judge
James L. Rose issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed an answering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings , findings, I and
conclusions only to the extent consistent with this
Decision and Order.
The judge concluded that the Respondent violat-
ed Section 8(a)(1) of the Act by polling its employ-
ees 8 December 19822 and violated Section 8(a)(5)
by withdrawing recognition from the Union 10 De-
cember.3 Contrary to the judge, we conclude that
the poll and the subsequent withdrawal of recogni-
tion were lawful.
The Union was certified 6 July 1981. The parties
held negotiating sessions and reached an interim
agreement on a wage issue, but did not agree on a
total contract. The last session was 9 November.
In July Respondent's cutting and edging depart-
ment employees engaged in a 2-day strike.4 In No-
vember some of the Respondent's employees circu-
lated slips of paper reading, "I do not want the
Union to represent me any more," and obtained 42
employee signatures. The Respondent received the
42 slips 6 December. In the first week of Decem-
ber four employees told Plant Manager Don
Weatherman that if an election were held a majori-
i The Respondent has implicitly excepted to some of the judge's credi-
bility findings. The Board's established policy is not to overrule an ad-
ministrative law judge's credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d
Cir 1951) We have carefully examined the record and find no basis for
reversing the findings
2 All dates are in 1982 unless otherwise indicated.
3 We agree with the judge that the Respondent violated Sec 8(a)(1) by
threatening employee Ricky Widner with discharge for certain remarks
he made when the Respondent's poll was in progress. Although we dis-
agree with the judge's statement that Widner was protesting an unlawful
poll, we agree that Widner's remarks constituted protected union activi-
ty. We do not, however, rely on Coronet Casuals, 207 NLRB 304 (1973),
which is inconsistent with Clear Pine Mouldings, 268 NLRB 1044 (1984)
We shall modify the judge's recommended Order and notice accordingly
4 Twenty-three or 24 employees participated The total number of em-
ployees in the unit was 108 in December, and nothing in the record sug-
gests the unit's size differed appreciably in July
277 NLRB No. 179
ty of employees would reject union representa-
tion. 5
On 8 December the Respondent's president
Frank Morris told assembled employees that be-
cause of uncertainty as to whether the Union re-
tained majority status the Company wished to con-
duct a secret-ballot election. Morris assured them
no one would know how individual employees
voted; the Company's only purpose was to deter-
mine whether the employees wanted union repre-
sentation; there would be no reprisals and no man-
agement or union representatives would be present
during the poll. He then introduced Town Mayor
Glenn Wilson who, after management officials left
the polling area, conducted the poll. The results
were 57 against union representation, 41 for, and 3
no opinion. By letter dated 10 December the Re-
spondent's attorney notified the Union that the Re-
spondent was withdrawing recognition because the
Union had lost majority support.
The judge held that when the Respondent took
the poll it lacked sufficient objective evidence that
a majority did not want the Union, the poll in
these circumstances was unlawful, and consequent-
ly the Respondent could not rely on the poll's re-
sults to withdraw recognition.
We disagree. The Board has long held that an
employer is free to withdraw recognition from an
incumbent union if (1) the union has actually lost
majority support, or (2) the employer has a reason-
ably grounded doubt, based on objective consider-
ations, about the union's continued majority status.
Terrell Machine Co., 173 NLRB 1480, 1481 (1969),
enfd. 427 F.2d 1088 (4th Cir. 1970). We conclude
that the Respondent had a reasonably grounded,
doubt about the Union's continued majority status
after receiving signed rejections of the Union from
42 of 108 unit employees, and 4 separate oral re-
ports from employees that the Union no longer en-
joyed majority support. Accordingly, we conclude.
that, after receiving this information, 6 the Re-
8 The judge credits this evidence, but quotes testimony only from em-
ployee Odell Sumner, who told Weatherman the Respondent would pre-
vail in an election if the Union had no time to make promises. Other em-
ployees, however, expressed their opinion without qualification. Based on
his assessment of plant talk, employee William Upchurch told Weather-
man he thought the employees would vote out the Union. Employee J.
D. Thomason told Weatherman he thought, based on his own conversa-
tions with fellow employees, 15 employees in addition to the 42 who
signed statements rejecting the Union would vote against the Union in an
election
6 In support of the judge's decision, the General Counsel ( citing excep-
tions in Case 5-CA-13895) argues alternatively that the Respondent con-
ducted the poll in an atmosphere of unremedied unfair labor practices.
The Board, however, adopted the judge's dismissal of the complaint in
Case 5-CA-13895 American Mirror Co, 269 NLRB 1091 ( 1984) Member
Dennis, who would have found the Respondent violated Sec 8(a)(I),
would not find under all the circumstances that the 8(a)(1) conduct taint-
ed the atmosphere surrounding the Respondent's poll She particularly
relies on the fact that the 8(a)(1) conduct occurred a year and a half
before the poll
AMERICAN MIRROR CO.
spondent lawfully polled employees as to their
union sentiments and then lawfully withdrew rec-
ognition from the Union based on the results of the
balloting . We therefore shall dismiss these allega-
tions. 7
ORDE 0
The National Labor Relations Board orders that
the Respondent, American Mirror Company, Inc.,
Galax, Virginia, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Threatening employees with discharge for en-
gaging in activities on behalf of United Furniture
Workers of America, AFL-CIO.
(b) In any like or related manner restraining or
coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Post at its plant in Galax, Virginia, copies of
the attached notice marked "Appendix."8 Copies
of the notice, on forms provided by the Regional
Director for Region 5, after being signed by the
Respondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material.
(b) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is
dismissed in all other respects.
7 The judge found that the Respondent unlawfully granted wage in-
creases after it withdrew recognition. Because we find the withdrawal of
recognition lawful, we find also that the Respondent lawfully instituted
the wage increases.
d If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
1627
WE WILL NOT threaten you with discharge for
engaging in activities on behalf of United Furniture
Workers of America, AFL-CIO.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
AMERICAN MIRROR COMPANY, INC.
Carol A. Baumerich, Esq., for the General Counsel.
Richard F. Kane, Esq. (Blakeney, Alexander and Machen),
of Charlotte, North Carolina, for the Respondent.
Robert S. Sarason, Esq., of Riverdale, Georgia, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
JAMES L. RosE, Administrative Law Judge. This
matter was tried before me at Galax, Virginia, on Sep-
tember 19, 1983, upon the General Counsel's complaint
which alleged generally that the Respondent withdrew
recognition of the Charging Party on December 9,
1982,' and subsequently refused to bargain with it in vio-
lation of Section 8(a)(5) of the National Labor Relations
Act (29 U.S.C. § 151 et seq.) The Respondent is also al-
leged to have threatened an employee in violation of
Section 8(a)(1) of the Act and to have violated Section
8(a)(5) by granting an across -the-board wage increase on
April 6, and selected merit and/or wage adjustments in
April or May.2
The Respondent generally denied that it has commit-
ted any unfair labor practices and affirmatively contends
that it withdrew recognition because it had objective evi-
dence that the Charging Party no longer represented a
majority of its bargaining unit employees. The Respond-
ent had conducted a secret ballot election on December
8, wherein the employees voted 57 to 41 against contin-
ued representation by the Charging Party. The Respond-
ent argues that it no longer had an obligation to bargain
with the Union, thus the wage increases it granted in
1983 were not unlawful.
Upon the record as a whole, including, my observation
of the witnesses, briefs, and arguments of counsel, I issue
the following
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. JURISDICTION
The Respondent is engaged in the business of manufac-
turing mirrors at a facility in Galax, Virginia. During the
course of its business , the Respondent annually sells and
ships directly to points located outside the State of Vir-
' All dates are between July 1982 and May 1983 unless otherwise indi-
cated.
2 The original charge in Case 5 -CA-14969 was filed on December 13,
1982, and amended on January 27, 1983 The complaint issued on March
2, 1983. The charge in Case 5-CA- 15355 was filed on April 26, 1983, and
the complaint issued July 7, 1983
1628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ginia products valued in excess of $50,000 and annually
receives materials and supplies directly from points out-
side the State of Virginia valued in excess of $50,000. It
is admitted , and I find, that the Respondent is an em-
ployer engaged in interstate commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The parties stipulated to most of the material facts in
this matter and the others are largely undisputed. In
brief, the Union was certified as the bargaining repre-
sentative for a unit of Respondent 's production and
maintenance employees3 on July 6, 1981. Following cer-
tification of the Union , representatives of the Union and
the Company engaged in collective-bargaining negotia-
tions but were unable to reach agreement on a total con-
tract . There was an interim agreement for a wage in-
crease on March 9, 1982.
Early July 1982 the Respondent 's employees engaged
in a 2-day strike. The first day, according to the testimo-
ny of Frank Morris , the Respondent 's president, only
employees in the cutting department went on strike and
they numbered about 14. On the second day 9 or 10 em-
ployees from the edging department also went on strike.
But as Charles Thomas, the Union' s business agent, testi-
fled there was no intent to have the whole bargaining
unit strike . Thus, as was reported in the Gazette on July
16,
[R]ather than have the whole plant on strike this
week, only the glass cutting department would be
on the picket line. He [Thomas ] said 13 of the com-
pany's 14 glass cutters are on strike now. "We may
or may not have other departments out today, to-
morrow or next week , and this department may or
may not return to work today , tomorrow or next
week," Thomas said.
According to Thomas the purpose of the strike was to
protest the Company's unfair labor practices allegations
which were awaiting trial. Those matters were heard by
Administrative Law Judge Russell M. King Jr. on July
29. Judge King issued his decision on September 22 con-
cluding that the Respondent had not committed the
unfair labor practices alleged and recommending the
complaint be dismissed in its entirety .4 The General
Counsel filed exceptions but to date no decision has been
reached by the Board.
The parties did continue to bargain for a time , but held
their last negotiating session on November 9.
About this time certain of the Respondent 's employees
began circulating slips of paper reading:
The appropriate unit within the meaning of Sec. 9(b) of the Act is:
All production and maintenance employees , including assistant fore-
men and local truckdrivers , employed by Respondent at its Galax,
Virginia, facility, excluding all office clerical employees , over-the-
road drivers, sales employees, guards and supervsors as defined in
the Act
4 Case 5-CA-13895, JD-425-82
I DO NOT WANT THE UNION TO REPRE-
SENT ME ANY MORE.
Print Name Signature
Without agreeing to the authenticity of any signatures,
the General Counsel and Charging Party did stipulate
that 42 such slips were received by the Company.5
In addition to receiving these slips from employees,
Don Weatherman , the Respondent's plant manager, was
told by four different employees something to the effect
that in their opinion if there were another election, a ma-
jority of the employees would vote against the Union.
Thus Odell Sumner , one such employee , testified he told
Weatherman:
I said , "if there's someway you can get the Labor
Board up here and have a secret ballot without
giving the union time to promise anything or stir up
something, then the union would be voted out." I
said it would be close by my opinion but it would
go out.
Then, officials of the Respondent apparently deter-
mined to poll the employees in a secret-ballot election to
be conducted on its premises by Glenn Wilson, the
mayor of Galax . No advance notice was given to the
Union or the employees. The employees were notified by
Morris approximately 15 minutes prior to the election
which was conducted at 3 p .m. on December 8. Fifty-
seven employees voted against continued representation
by the Union , 41 in favor , and 3 expressed no opinion.
There were also three employees who were absent that
day and did not vote.
On December 9 Morris posted a notice to employees
stating that "the majority of those voting on December
8, 1982, decided they did not want to be represented by"
the Union and that "[b]ased upon the results of your,
vote, we have withdrawn recognition of the Union." He
concluded the notice , "My personal thanks to all of you
for your vote of confidence in the Company."
Then on December 10 the Respondent 's counsel wrote
to the Union stating that recognition had been with-
drawn based on "objective evidence" that "the Union
has lost the support of a majority of the employees."
On learning of the election , employee Ricky Widner
left the plant to inform the Union 's agent, John Kissack.
He then returned to vote and at this time made some
comment to Mayor Wilson, the essence of which was
that Widner objected to Wilson participating in antiunion
activity , given that he was the mayor of the town.
Though precisely what Widner said is a matter of some
dispute, that he confronted Wilson is acknowledged. The
Respondent contends that Widner had threatened Wilson
in some fashion. The next day Weatherman called
Widner into his office and told Widner that such threats
5 One slip was signed by Jimmy R. Ramey and another by a James R.
Ramey . While these may be different individuals , the printing and signa-
tures on each slip are so similar as to suggest the same person did both
However, whether the Company had slips from 41 or 42 employees is
not critical to the outcome of this matter
AMERICAN MIRROR CO.
would not be tolerated , and should he threaten Wilson or
anyone else again, he would be terminated.
As above noted, in April and May 1983 the Respond-
ent granted certain wage increases without notification
to or bargaining with the Union.
The Respondent 's withdrawal of recognition was al-
leged to have been a violation of Section 8(a)(5) of the
Act and therefore its subsequent unilateral grant of pay
increases was also violative of Section 8(a)(5). It is al-
leged that conducting the poll on December 8 and
Weatherman's threat of discharge to Widner on Decem-
ber 9 were violative of Section 8(a)(1).
B. Analysis and Concluding Findings
1. The withdrawal of recognition
The parties are in general agreement that an employer
may not withdraw recognition from a certified bargain-
ing representative of its employees absent objective evi-
dence that it no longer represents the majority of those
employees. Thus the question is whether the Respondent
in fact had such objective evidence to support its with-
drawal of recognition from the Union. The Respondent
contends that it did based on the results of the poll it
conducted on December 8. Further, it was permitted to
take the poll because (a) only 23 or 24 of approximately
108 employees went on strike in early July; (b) 42 em-
ployees had signed a statement to the effect that they did
not want the Union to continue to represent them, and
(c) four employees had notified their supervisor that in
their opinion a majority of employees would vote against
the Union in an election.
In Forbidden City Restaurant, 265 NLRB 409 (1982),
the Board held that Respondent violated Section 8(a)(1)
and (5) of the Act "by polling its employees at a time
when it did not possess sufficient objective evidence to
support a reasonable doubt of the incumbent Union's ma-
jority status." The Board further held that factors such
as those relied on by the Respondent here were insuffi-
cient to justify taking the poll in the first instance. A
doubt is not enough to justify the polling of employees.
Before permitting an employer to do so, there must be
"sufficient objective evidence" that a majority no longer
wants representation.
I conclude that at the lime the Respondent took the
poll it did not have sufficient objective evidence that a
majority of the employees no longer wished representa-
tion. At the time material, there were about 108 employ-
ees in the bargaining unit. Thus 42 employees who
signed the slips indicating they did not wish continued
representation were far short of a majority.
Statements by employees to their supervisor giving
opinions concerning how other employees might vote is
scarcely reliable evidence that a majority of employees
did not want to be represented . In this respect, it might
be noted that Simmers' opinion to Weatherman was
predicated on there being a quick election such that the
Union would not be allowed to campaign . Even then, he
told Weatherman the outcome would be close.
Finally, the fact that only 23 or 24 employees went on
strike in July is hardly sufficient to justify Respondent
concluding the majority of employees no longer wanted
1629
the Union to represent them . As reported by the Ga-
zette , the Union was engaged in a partial strike . It is im-
material that such activity might not be protected. Com-
pany officials read the Gazette and thus knew of the
tactic and knew that the number of strikers did not cor-
respond to the number of union supporters . Under such
circumstances the Respondent could not reasonably con-
clude that a majority employees evidenced a disinterest
in continued representation.
Having received designations from 42 employees and
having been advised that others might vote against the
Union the Respondent conducted an election without
prior notice to the employees or the Union . When the
poll was held, the Respondent did not have sufficient ob-
jective evidence that the majority of employees did not
want the Union . Thus conducting the poll in such cir-
cumstances was unlawful and it follows that the results
of such an unlawful act cannot be offered as evidence to
support withdrawing recognition . Thomas Industries, 255
NLRB 646 ( 1981).
The policy reasons for this are obvious . The long-ap-
proved forum to test employees ' desire for collective
bargaining is a Board -conducted election . An election
staged by a company, no matter how apparently fair the
procedure may be , does not carry imprimatur of the
Federal Government and the congressionally mandated
safeguards . Even though the Respondent had the mayor
of Galax run the election , he was clearly an agent of the
Respondent and not of the Federal Government.
Further , had the Respondent truly believed that a ma-
jority of its employees would vote against continued rep-
resentation in a free election environment , it could file
petition with the Board . There is in fact a process by
which to determine employee sentiment which has been
fashioned by Congress and more than 40 years of experi-
ence . Private elections are no substitute. Thus the kind of
self-help employed by the Respondent is not permitted
except as a device to verify a fact already established by
other objective evidence-that the majority of the em-
ployees do not wish continued representation . To con-
duct a poll as did the Respondent on December 8 absent
such independent objective evidence was unlawful and
was not validated by the result.
The Respondent argues that "the test to be applied
should be that contained within the Board 's own regula-
tions prescribing the circumstances under which it will
entertain a petition from employees ." In short, the Re-
spondent contends that objective evidence that 30 per-
cent of its unit employees do not want representation is
sufficient to permit a poll. However , the cases cited by
the Respondent are inapposite . Nor is the basis for the
Board's administrative standard applicable to a privately
conducted poll.
Section 101 . 18 of the Board's Rules and Rules and
Regulations is based on efficient administration of the
Act and allocation of agency funds: "[I]n the absence of
special factors the conduct of an election serves no pur-
pose unless the petitioner has been designated by at lest
30 percent of the employees." (The 30-percent rule does
not apply to petitions filed by an employer.) Such has
nothing to do with employers polling employees about
1630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their union sentiments where they are represented by a
certified union.
Finally , to adopt the Respondent 's argument would
allow companies to conduct their own polls on relatively
flimsy evidence and would tend to unsettle bargaining
relationships . And, as the Board noted in Montgomery
Ward & =Co., 210 NLRB 717 (1974), where a company
initiates a poll of employee sentiment such tends , unlaw-
fully, to undercut the continuing majority status of the
union.
Accordingly, I conclude that by conducting the poll
the Respondent violated Section 8(a)(1) and by subse-
quently withdrawing recognition , the Respondent violat-
ed Section 8(a)(5) of the Acts
2. Threat to Ricky Widner
Ricky Widner came to vote in the election having dis-
cussed the matter with one of the Union's representa-
tives. He told Mayor Wilson, in effect, that Wilson was
making a big mistake by inserting himself in an effort on
behalf of the Company to get rid of the Union. Accord-
ing to Company Witness Carolyn Worrell, Widner ended
his statement by saying, "I talked to Kissack and he says
you're in a lot of trouble." And, "you'll be hearing from
us." She reported this to Weatherman who the next day
called Widner to his office and told him that Wilson was
a guest of the Company, and should Widner threaten
Wilson again , or anybody else, Widner would be dis-
charged.
The General Counsel argues that the Respondent
thereby threatened an employee in violation of Section
8(a)(1) of the Act. The Respondent contends that
Widner's statement to Wilson was not protected,, con-
certed activity.
No doubt Widner's statement was prompted by Wilson
helping the Respondent do an unlawful act. Though
Wilson may have been acting in good faith, he was nev-
ertheless the Respondent's agent for purposes of con-
ducting an unlawful poll. Widner's remarks thus oc-
curred in the context of the Respondent's unlawful an-
tiunion activity with which Wilson was associated. The
Widner-Wilson confrontation arose out of union activi-
ty-the Respondent's attempt to dethrone the employees'
certified bargaining representative. Thus Weatherman's
threat to discipline Widner was necessarily unlawful
unless Widner's statement could be found so egregious,
6 In view of my conclusion that the Respondent did not have sufficient
objective evidence to conduct the poll, I need not rule on the General
Counsel's further argument that the poll was conducted in an atmosphere
of unremedied unfair labor practices, and thus unlawful. Struksnes Con-
struction Co, 165 NLRB 1062 (1967) This argument is based on the Gen-
eral Counsel's contention that the Board will reverse Judge King's dis-
missal of the earlier complaint
on balance, as to be unprotected-a standard long ap-
plied by the Board when employees are engaged in a
strike. See, e.g., Coronet Casuals, 207 NLRB 304-(1973).
The statement to Wilson, "You'll be hearing from us,"
or the other things Widner is alleged to have said hardly
qualify as unprotected, egregious acts.
Widner, I conclude, had the protected right to protest
the Respondent's poll especially since the poll was un-
lawful. And he had a right to do so to the one the Re-
spondent had put in charge of conducting it. To disci-
pline, or threaten to discipline, him for doing so was un-
lawful and a violation of Section 8(a)(1).
3. The grant of wage increases
As stipulated to by the parties, in April the Respon-
dent granted an across-the-board wage increase and in
April and May gave selective merit and/or wage adjust-
ments. The Respondent admittedly gave these wage in-
creases unilaterally, contending that it no longer was re-
quired to negotiate with the Union concerning such mat-
ters.
Having concluded that the Respondent unlawfully
withdrew recognition from the Union and that the Union
continued to be the duly certified representative of the
Respondent's bargaining unit employees, the unilateral
grant of wage increases in April and May 1983 was vio-
lative of Section 8(a)(5) of the Act. However, consistent
with the Board's policy concerning the unlawful grant
benefits, the Respondent will not be ordered to withdraw
such increases.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The unfair labor practices found above, occurring in
connection with the Respondent's business have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof within the meaning of Section 2(6)
and (7) of the Act.
V. THE REMEDY
Having concluded that the Respondent has engaged in
certain unfair labor practices, I shall recommend that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act. The
Respondent will be ordered to resume bargaining with
the Union, on request, as the duly certified representative
of its employees in the appropriate bargaining unit de-
scribed above. A new certification year shall commence
when Respondent begins to bargain in good faith. Mar-
Jac Poultry, 136 NLRB 785 (1962).
[Recommended Order omitted from publication.]