Choctawhatchee Electric Cooperative, Inc.

National Labor Relations Board - Board Decisions

Feb 28, 1985

274 N.L.R.B. 595 (N.L.R.B. 1985)

CHOCTAWHATCHEE ELECTRIC
Choctawhatchee Electric Cooperative , Inc. and
International Brotherhood of Electrical Work-
ers, Local Union No. 2152 , AFL-CIO-CLC.
Case 15-CA-9056
28 February 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 29 December 1983 Administrative Law
Judge Lawrence W. Cullen issued the attached de-
cision. The Respondent filed exceptions and a sup-
porting brief, and the General Counsel filed an an-
swering brief and a brief in support of the judge's
decision.
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 and to adopt the recommended Order.
We agree with the judge's finding that the Re-
spondent's supervisor Jimmie Foreman unlawfully
encouraged the circulation of a petition among its
employees to decertify the Union by unlawfully in-
terrogating and threatening employee Hobbs and
promising raises to employees Hobbs and Jackson.
We also agree with his finding that the Respondent
unlawfully refused to bargain with the Union on
the basis of a decertification petition because the
petition was tainted by the Respondent's unfair
labor practices.2 We do not agree, however, with
i The Respondent has excepted to some of the judge's credibility find-
ings The Board 's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance 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 Or 1951)
We have carefully examined the record and find no basis for reversing
the findings
2 In finding that the decertification petition was tainted, Member
Dennis notes that the Respondent 's unfair labor practices are clearly the
kind that would tend to dissipate support for the Union , that the unit
contains only 20 employees , and that the unfair labor practices involved
repeated incidents As a result , she would require the Respondent to
show that the unfair labor practices were isolated incidents not related to
the Union 's loss of support She finds that the Respondent has not sus-
tained that burden Although the 14 petition signers testified that no
member of management ever spoke to them about the petition and that
they were in no way coerced or influenced by the Respondent , there is
no showing that they were unaware of the Respondent ' s coercive con-
duct involving employees Jackson and Hobbs
Member Hunter agrees with the judge , for the reasons fully set forth
by him, that the Respondent 's unfair labor practices were sufficient to
taint the decertification petition and therefore the Respondent could not
rely on the petition to withdraw recognition from the Union He further
notes, in response to the dissent , that the fact that 14 employees testified
they were not coerced or influenced by the Respondent does not estab-
lish that they were unaware of the Respondent's misconduct which, in
Member Hunter's view , is an entirely separate matter Thus , the judge's
inference of employee awareness of the unfair labor practices has not
been rebutted by any probative evidence Moreover , in the absence of
evidence to the contrary , Member Hunter presumes dissemination of
8(a)(1) threats
Finally, we note that the proper test for 8(a)(l) conduct is whether it
tended to coerce employees in the exercise of their Sec 7 rights, not
595
his finding that the Respondent engaged in unlaw-
ful surveillance of employees Jackson, Hobbs, and
Adams.
Between 8:20 and 8:30 a.m. on Friday in early
July 1983, employees Adams, Jackson, and Hobbs
and others were seated at a table in the break or
assembly room. Supervisor Foreman was sitting
across the table. Employee Dorriety came into the
room and asked if anyone wanted to sign a petition
stating that the employees no longer wanted the
Union to represent them before the petition was
sent to the NLRB. Dorriety then specifically asked
Adams, Jackson, and Hobbs, all of whom declined.
Dorriety and Foreman then left the room. The
judge found Foreman's presence in the room at
that time was no mere happenstance, in view of
Foreman's prior commission of several unfair labor
practices involving attempts to get employees to
sign the petition, and that his presence constituted
unlawful surveillance of Adams, Jackson, and
Hobbs in violation of Section 8(a)(1).
The record is clear that supervisors frequently
use the breakroom in the morning to give out work
assignments . In fact, Adams and Jackson both testi-
fied that on the morning of the alleged surveillance
Foreman had work assignments to give out. Thus,
we conclude that the record does not support a
finding that Foreman was in the room for the pur-
pose of surveillance or that he engaged in surveil-
lance in violation of Section 8(a)(1) of the Act. Al-
though we are dismissing this allegation, we agree
with the judge that the unfair labor practices were
not isolated incidents and were sufficient to taint
the petition.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Choctawhatchee Electric Cooperative,
Inc., DeFuniak Springs, Florida, its officers, agents,
successors , and assigns , shall take the action set
forth in the Order as modified.
1. Substitute the following for paragraph 1(a).
"(a) Interrogating its employees, promising them
raises , or threatening them with retaliation in order
to solicit their support for a petition to decertify
the Union or to attempt to persuade them to aban-
don their support for the Union."
2. Substitute the attached notice for that of the
administrative law judge.
whether it actually coerced employees See Amason, Inc, 269 NLRB 750
fn 2 (1984) Thus here, in the context of the Respondent's 8(a)(1) con-
duct in support of the decertification petition, we conclude that the Re-
spondent 's withdrawal of recognition violated Sec 8(a)(5) and (1)
274 NLRB No. 84
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CHAIRMAN DOTSON, dissenting in part.
I would find that the Respondent did not violate
Section 8(a)(5) of the Act by refusing to bargain
with the Union on the basis of a decertification pe-
tition. There were 20 employees in the unit and 14
of them signed the petition to decertify the Union
during late June and early July 1983. All 14 testi-
fied that no member of management spoke to them
about the petition and that they signed the petition
without influence or coercion from the Respond-
ent. Because of the relatively small size of the unit
and because the unfair labor practices were not iso-
lated incidents, the judge inferred, despite the testi-
mony of the 14 employees, that the employees who
signed the petition were aware of the Respondent's
unlawful conduct. The judge concluded the the pe-
tition was tainted by the unfair labor practices and
could not serve as the basis for a good-faith doubt
of the Union's majority status. Thus, he found that
the Respondent violated Section 8(a)(5) and (1) by
refusing to bargain with the Union. I do not agree.
The judge correctly stated that, in order to es-
tablish a good-faith doubt, an employer must show
that the doubt is based on objective considerations
and is asserted in a context free of unfair labor
practices. I find, however, that the testimony of all
14 employees who •signed the petition that they
were in no way coerced or influenced by the Re-
spondent-testimony that the judge noted was "un-
rebutted" and that he did not discredit-affirma-
tively and directly establishes that the petition was
untainted by the unfair labor practices. Particularly
important is the lack of any direct evidence that
any unit employees, other than the two who were
personally involved, had any knowledge of the un-
lawful conduct. I would not infer employee knowl-
edge from the size of the unit nor would I, in view
of the 14 employees' unrebutted testimony, infer
from the totality of circumstances that the employ-
ees who signed the petition were aware of Fore-
man's unlawful activity. Accordingly, I find that
the record evidence compels the conclusion that
the Respondent was entitled to rely on the petition
signed by a majority of the unit employees as the
basis for a good-faith doubt of the Union's continu-
ing majority status. I would find that, in the cir-
cumstances of this case, the Respondent did not
violate Section 8(a)(5) and (1) by refusing to bar-
gain with the Union.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER TO 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.
Section 7 of the Act gives employees these rights.
To organize
To form, join , or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT refuse to bargain in good faith
with International Brotherhood of Electrical
Workers, Local Union No. 2152, AFL-CIO-CLC
as the exclusive representative of the employees in
the following appropriate unit:
All production and maintenance employees in-
cluding linemen , apprentice linemen , service-
men, equipment operators , groundmen , custo-
dians, service representatives , shop mechanics,
warehousemen , systems operation clerk, engi-
neering aide , and storekeeper employed by the
Employer at its DeFuniak Springs , Freeport
and Baker , Florida, facilities ; including all
office clerical employees , sales employees, all
other employees , professional employees,
guards, and supervisors as defined in the Act.
WE WILL NOT interrogate or issue promises of
benefits or threats of reprisal to our employees in
order to solicit their support for a petition to de-
certify the Union as the collective -bargaining rep-
resentative of the employees or to abandon their
support for the Union.
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.
WE WILL, on request, bargain collectively with
International Brotherhood of Electrical Workers,
Local Union No. 2152, AFL-CIO-CLC as the ex-
clusive representative of all employees in the ap-
propriate unit described above with respect to rates
of pay, wages, hours, and other terms and condi-
tions of employment and, if an understanding is
reached, embody such understanding in a signed
agreement.
CHOCTAWHATCHEE ELECTRIC
Our employees have the right to join and sup-
port International Brotherhood of Electrical Work-
ers, Local Union No. 2152, AFL-CIO-CLC or to
refrain from doing so.
CHOCTAWHATCHEE ELECTRIC COOPERA-
TIVE, INC.
DECISION
STATEMENT OF THE CASE
LAWRENCE W. CULLEN, Administrative Law Judge.
This case was heard before me on October 5, 1983, at
DeFuniak Springs, Florida. The hearing was held pursu-
ant to a complaint issued by the Regional Director for
Region 15 of the National Labor Relations Board (the
Board ) on August 25, 1983 The complaint is based on an
amended charge filed by the International Brotherhood
of Electrical Workers, Local Union No. 2152, AFL-
CIO-CLC (the Charging Party or the Union) on August
5, 1983 The complaint alleges that Choctawhatchee
Electric Cooperative , Inc (Respondent) violated Section
8(a)(1) of the National Labor Relations Act (the Act)
during the first week of July 19831 by approving, en-
couraging , and participating in the circulation among its
employees of a petition seeking the decertification of the
Union and that Respondent also violated Section 8(a)(5)
and (1) of the Act by since about July 11, 1983, refusing
and continuing to refuse to meet and bargain collectively
with the Union as the exclusive collective -bargaining
representative of the employees . The complaint is joined
by Respondent 's answer filed September 9, 1983, where-
in it denies the commission of the alleged unfair labor
practices.
On the entire record in this proceeding , including my
observations of the witnesses who testified herein, and
after due consideration of the positions of the parties and
the briefs filed by the General Counsel and counsel for
Respondent , I make the following
FINDINGS OF FACT AND ANALYSIS
I JURISDICTION
A. The Business of Respondent
The complaint alleges, Respondent admits, and I find
that Respondent was, and has been at all material times
herein , a Florida corporation with facilities located in
DeFuniak Springs, Freeport, and Baker , Florida, where
it engages in the transmission of electricity, and that
during the past 12 months, a representative period, Re-
spondent , in the course and conduct of its business oper-
ations, derived gross revenues in excess of $250,000 and
purchased and received goods valued in excess of
$50,000 directly from points located outside the State of
Florida and that Respondent is, and has been at all times
material herein , an employer within the meaning of Sec-
tion 2(2) of the Act engaged in commerce within the
meaning of Section 2 (6) and (7) of the Act.
' All dates are in 1983 unless otherwise stated
597
B The Labor Organization
The complaint alleges, Respondent admits in its
answer, and I find that the Union is now and has been at
all times material herein a labor organization within the
meaning of Section 2(5) of the Act
The complaint also alleges , Respondent admits in its
answer, and I find that the following employees of Re-
spondent constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b)
of the Act:
All production and maintenance employees includ-
ing linemen , apprentice linemen , servicemen , equip-
ment operators , groundmen, custodians , service rep-
resentatives , shop mechanics , warehousemen, sys-
tems operation clerk , engineering aide, and store-
keeper employed by the Employer at its DeFuniak
Springs, Freeport and Baker , Florida facilities; ex-
cluding all office clerical employees , sales employ-
ees, all other employees , professional employees,
guards, and supervisors as defined in the Act.
The complaint further alleges , Respondent admits in
its answer , and I find that about July 26, 1979, in Case
15-RC-6468, a majority of Respondent 's employees in
the aforestated appropriate unit, by secret -ballot election
conducted under the supervision of Regional Director
for Region 15 designated and selected the Union as their
collective -bargaining representative , and that on Septem-
ber 18 , 1979, the Union was certified as the collective-
bargaining representative of the aforesaid unit and that
Respondent has recognized the Union as such in a col-
lective-bargaining agreement which was effective by its
terms from July 1, 1980, to June 30, 1983.
II. THE ALLEGED UNFAIR LABOR PRACTICES
This case involves the circulation of a decertification
petition by members of the bargaining unit and allega-
tions that a supervisor , by reason of interrogation, sur-
veillance, promise of benefits , and threats to unit employ-
ees encouraged , participated , and attempted to coerce
the employees to induce them to sign the decertification
petition in violation of Section 8(a)(1) of the Act and
that Respondent 's refusal to bargain on the basis of its as-
sertion of a good-faith doubt of the Union's majority was
violative of Section 8(a)(5) and (1) of the Act as the de-
certification petition was tainted by the supervisor's ac-
tions and the signatures thereon were not obtained in a
context free of unfair labor practices Respondent con-
tends that no violations of Section 8(a)(1) were commit-
ted by it, and that assuming , arguendo, violations of Sec-
tion 8(a)(1) were committed , these did not taint the peti-
tion because the employees who signed the petition did
so voluntarily and without supervisory interference,
promises , or coercion and that Respondent thus had the
right to rely on the petition in asserting a good-faith
doubt of majority status
The General Counsel presented as witnesses in support
of its case Noble R. Dean, LaRau Jackson, Samuel
Hobbs, and David Adams. Dean is the president of the
Union (Local 2152). Dean identified the collective-bar-
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gaining agreement (G C. Exh 2) and a copy of a letter
dated July 11, 1983, from Respondent's attorney to the
International Union with a copy to Dean (G.C. Exh 3)
wherein Respondent notified the Union that it was de-
clining to bargain with the Union concerning the unit on
the ground that Respondent had received a petition
"signed individually by well over a majority of the em-
ployees in the unit, which states to the effect that they
no longer want to be represented by Local 2152 for bar-
gaining purposes." Dean testified that the Union had
been and remains willing to continue to represent the
employees in the unit and bargain with Respondent on
their behalf. Dean testified on cross-examination that a
bargaining session had been scheduled by the parties'
representatives for July 122 or 13. Although Dean had
requested on June 20 that the existing labor agreement
be extended, Respondent did not agree to do so and the
contract expired by its terms on June 30. The testimony
of Dean is undisputed and I credit it
LaRau Jackson testified as follows: He has been em-
ployed by Respondent since 1972 and is a first-class line-
man. During the last week of June, service representative
Tommie McBroom brought a petition to him in the yard
in front of the warehouse which said something about
getting rid of the Union and asked him to sign it. Jack-
son glanced at the petition which had a few names on it
and declined to sign it Subsequently, in the middle of
the same week Jackson and Samuel Hobbs, a ground-
man, were approached concerning the petition by Robert
Dorriety,3 a mechanic, as they were walking to their ve-
hicles about 5 p.m. At that time, Jimmie Foreman,4 su-
pervisor of construction and operations, who is Jackson's
supervisor, was backing a vehicle out of the warehouse
and called Jackson and Hobbs over to his truck and
asked them to help him out by getting rid of the Union
and that they could get a raise if they did so. Jackson
placed this conversation as occurring on a Friday Jack-
son testified further that he was again contacted by Dor-
riety during the following week after the employees re-
turned from the Fourth of July holiday At this time
Jackson and Dorriety were inside the warehouse in front
of the employees' assembly room about 4 to 4:30 p.m.
and Dorriety brought the petition to Jackson again
Foreman was present at this time and pulled out his
wallet and asked Jackson if he needed more money and
told him that it would mean more money if the employ-
ees got rid of the Union. Subsequently, on a Friday
morning (the week after the Fourth of July) about 8:15
to 8.30 a.m., Jackson, Hobbs, and David Adams, a winch
truck operator (who was also a member of the bargain-
ing unit), were in the assembly (breakroom) room and
were approached by Dorriety to sign the petition, and
Foreman then "got up and left " On cross-examination,
Jackson testified he recalled that the petition was "as far
as I can remember, typed." Jackson also then related the
z Respondent's general manager Smith placed the date as July 12
Jackson, McBroom, Hobbs, and Dorriety were all members of the
bargaining unit
4 The complaint alleges, Respondent admits, and I find that at all times
material herein Foreman has been a supervisor of Respondent within the
meaning of Sec 2(11) of the Act and an agent of Respondent within the
meaning of Sec 2(13) of the Act
initial statement of Foreman on the occasion when Fore-
man,was backing his truck out in the yard as a request
that Hobbs and Jackson help Dorriety out by signing the
petition but he could recall nothing further about this
conversation On cross-examination Jackson related an-
other incident when McBroom came out to the jobsite
during the workweek of July 5-8 when the employees
were stringing wire and at which time Foreman, who
was also present, approached Hobbs and Jackson and
said that McBroom was there and "you can sign that pe-
tition now." Jackson and Hobbs declined to sign the peti-
tion. Jackson was asked on cross-examination whether he
had ever been disciplined by Foreman; he replied that he
had received a written warning in early 1983 for a safety
violation and that this was the only discipline he has re-
ceived from Foreman who has been his immediate super-
visor for 11 years. He did not protest the warning or
complain to Foreman that he thought it was unfair. He
testified further that Foreman was "a good fellow to
work with "
Samuel Hobbs testified as follows: He has been em-
ployed by Respondent for almost 5 years. He was initial-
ly approached by McBroom to sign the decertification
petition in front of the warehouse the Monday prior to
the Fourth of July (June 27). He read the petition which
stated that the employees no longer wanted to be repre-
sented by the Union and told McBroom, "I couldn't sign
it " He was again asked by McBroom to sign the petition
on July 2, a Saturday evening when both he and
McBroom were called out on an outage in Baker, Flori-
da. He was also asked to sign the petition on another oc-
casion when he was on a jobsite doing reconstruction
work around July 1. On this occasion, Foreman asked
him if he had signed the petition that was being circulat-
ed, and Hobbs replied that he had not. Foreman asked
him why he had not done so, and Hobbs told him that
without representation he might not obtain an apprentice
lineman's job which lie was next in line to receive. Fore-
man told him not to worry about this because in all the
years that he, Foreman, had been working for Respond-
ent, anyone who was entitled to, or in a position for such
job, had been given an opportunity to do it and told
Hobbs not to worry about the job He believes that this
conversation took place in the middle of the first week
of July. Additionally, on the Friday after the Fourth of
July weekend, he and other employees were in the break
(assembly) room about 820 to 8.30 a in., and Foreman
was sitting across from them at the same table. At that
time Dorriety came into the room and asked generally
whether anyone wanted to sign the petition before it was
sent to the Labor Board, and then specifically asked
Adams, Jackson, and Hobbs, all of whom declined,
whereupon Dorriety and Foreman left the room. Hobbs
also testified that during the last week the petition was
circulated, Foreman came up to him on several occasions
on the construction site and told him to remember where
his livelihood and bread and butter came from.
On cross-examination, Hobbs testified that Foreman
has been his immediate supervisor for 3-1/2 years, that
Foreman has never taken disciplinary action against him
and that he has a good relationship with Foreman.
CHOCTAWHATCHEE ELECTRIC
Hobbs also testified that the petition he read on the occa-
sion outside the warehouse was typed. Hobbs also testi-
fied that employee Roger Byrd had been asked by Dor-
riety to sign the petition in the presence of Foreman in
the breakroom.
David Adams testified as follows: He has been em-
ployed by Respondent for a period of 9 years. He was
initially contacted by McBroom on the first of July
about 5 to 10 minutes prior to worktime in front of the
warehouse He was shown a copy of the petition by
McBroom who told him, "We wish you would sign it,
but it doesn't make any difference at all, whether you do
or not, the Union is going, one way or the other."
Adams read the petition which stated that the "people"
(employees) of Respondent no longer wished to be rep-
resented by the Union. Adams declined to sign the peti-
tion. He also recalled an occasion on the Friday before
the Fourth of July weekend when he was asked to sign
the petition by Dorriety in the office of the staking engi-
neer (also a member of the bargaining unit). He told
Dorriety he wanted to think about it over the weekend.
Dorriety brought the petition to him again and he de-
clined to sign it in the presence of Foreman in the break-
room; he placed this occasion as the following workday
after the Fourth of July weekend. He later stated he was
not certain of the day of this occurrence.
On cross-examination Adams testified as follows: He
has never been disciplined by Foreman and has had a
good relationship with him over the years. To the best of
his knowledge, the petition was typed. On being shown
his affidavit taken by a Board agent wherein he had
stated that the petition was written in longhand, he
stated that it was in longhand the first time he saw it, but
on the latter two occasions he saw the petition, it was
typed
In the presentation of its case, the Respondent called
McBroom and Dorriety who had both signed and circu-
lated the decertification petition (R. Exh. 6), Foreman,
James E. Smith, the manager of Respondent's DeFuniak
Springs facility, and the members of the bargaining unit
who had signed the petition.
McBroom testified as follows He initiated and drafted
the decertification petition on July 1 as a result of the
general dissatisfaction among himself and other bargain-
ing unit employees with the Union's representation of
them during the prior 3 years. He testified he initially ob-
tained the signatures of several employees prior to start-
ing time at 7:30 a in. at the DeFuniak facility on July 1,
that he also asked Jackson, Hobbs, and Adams to sign
shortly thereafter that morning, and that they declined to
do so and that Dorriety then took the petition to the Re-
spondent's Freeport (Florida) facility and obtained the
signatures of the four unit employees assigned to that fa-
cility. Dorriety retained the petition until Friday, July 8,
when he returned it to McBroom. A total of 14 employ-
ees, including McBroom and Dorriety (approximately 75
percent of the employees in the unit), had signed the pe-
tition. The petition was mailed to the National Labor Re-
lations Board Office in New Orleans, Louisiana, on the
afternoon of July 8. On the morning of Monday, July 11,
McBroom presented a copy of the petition to Respond-
599
ent Manager Smith in Smith's office and informed him of
the action taken by the employees.
McBroom testified that he was the sole initiator of the
petition, that the petition was handwritten, and that no
member of Respondent' s management told him to initiate
the petition, and further that no member of Respondent's
management was present when he obtained the signa-
tures of several employees in the employee breakroom
on the morning of July 1 The accompanying letter sent
to the National Labor Relations Board by McBroom on
July 8 (R. Exh. 3) states in part, "We are enclosing a pe-
tition and ask that you set up an election." Subsequently,
McBroom was informed by the Board Office that the pe-
tition was untimely and improperly filed and should have
been filed within the 60-day period prior to the expira-
tion of the labor agreement on July 30. Additional forms
were also sent to McBroom from the Board Office and
filled out and returned. The petition was then dismissed
by the Regional Director for Region 15 of the Board on
the ground that violations of Section 8(a)(1) and (5) of
the Act had been committed by the Employer (Respond-
ent).
Dorriety testified as follows: On Friday, July 1,
McBroom showed him the decertification petition in the
breakroom before 8 a.m., and Dorriety read it and signed
it. It had been discussed previously. Four other employ-
ees (Jerry Nelson, Adrian Gillis, Charles Caswell, and
Thomas Johnson) also signed it in the breakroom prior
to 8 o'clock that morning At the time the petition was
signed by Dorriety and the other employees, neither
Jimmy Foreman nor any other supervisor nor company
representative was present, nor had Jimmy Foreman or
any other member of management or supervisor dis-
cussed anything with Dorriety about signing it prior to
this. After the petition was signed by Dorriety and the
other employees, Dorriety requested permission of his
supervisor for time off and took the petition over to the
Freeport facility where it was signed by employees Ray
Maples, Mark Hart, and Leonard (Zeke) Hilligoss. There
were no supervisors or members of management present
when he obtained his signatures. He then took the peti-
tion to the home of Ronnie Hebert who was not working
that day and obtained his signature at which time there
was also no supervisor or management representative
present. Prior to this time, no member of management
had discussed the petition with him Prior to the circula-
tion of the petition, he had not discussed it with anyone
but McBroom. After he returned from Freeport on that
date, he kept the petition on a clipboard in the shop
where he was a mechanic until he returned it to
McBroom.
Dorriety testified further that he recalled a conversa-
tion with Jackson and Hobbs in the employee parking lot
after July 1, when he approached them after quitting
time when they were returning from the jobsite and
asked them to sign the petition. They responded they
wanted to think about it. Jimmy Foreman was not there
at this time. He has never heard Jimmy Foreman tell
other employees to sign the petition, help get rid of the
Union and they can obtain a raise, or words to that
effect. He does not recall any occasion when Foreman
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was there and pulled out his wallet and told employees
that they would get more money or a raise if they got
rid of the Union or words to that effect. He did not
recall any conversation with employee David Adams
concerning the petition except an incident wherein
Adams told him (Dorriety) to "Bring the petition and
we'll all sign it " Employees Larry Tankersley, Dennis
Pippin , and Jerry Cosson all signed the petition in his
presence in the shop . No member of management or su-
pervisor was present at the time these employees signed
the petition. He does not remember a conversation with
Adams in the office of Darrell Smith wherein Dorriety
asked Adams to sign the petition. The longhand petition
(R. Exh . 3) was the only petition which was circulated
and there never was a typed petition He recalls talking
to employees Cosson, Hobbs, and Jackson in the break-
room one morning about signing the petition; Jimmy
Foreman was not in the room at this time . He does not
recall when this conversation occurred. When he re-
turned the petition to McBroom , all 14 signatures of em-
ployees were on the petition. McBroom drafted a note to
go with the petition and McBroom and Dorriety signed
it. At no time when he discussed the petition with any
other employees was Jimmy Foreman or any other su-
pervisor in the immediate area . On cross-examination,
Dorriety testified that he may have talked to Jackson
about the petition a third time in the warehouse as well
as in the parking lot and in the breakroom.
Respondent also called as witnesses the 12 other em-
ployees who had signed the decertification petition in ad-
dition to McBroom and Dorriety. These employees testi-
fied that they signed the petition of their own free will,
and that no member of management coerced them into
signing the petition or otherwise discussed it with them
prior thereto.
Respondent also presented Supervisor Jimmie Fore-
man who testified as follows : He did not discuss or in
any manner encourage the signing of the decertification
petition by any of the employees, and he was not present
during any time when the employees signed the petition.
He became aware of the circulation of the petition by
overhearing employees discuss it but he did not partici-
pate in such discussions.
James Eugene Smith , Respondent 's general manager,
testified as follows: There were 20 employees in the col-
lective-bargaining unit as of July 1. To his knowledge,
no managerial or supervisory employee had anything to
do with the preparation or circulation of the decertifica-
tion petition. He initially saw a copy of the petition
signed by the employees (R. Exh 3) on the morning of
July 11 when McBroom brought it into his office and in-
formed him that he had mailed the original to the Board.
He had been aware of rumors of the circulation of the
petition but he was not expecting McBroom who asked
to see him on the morning of July 11. After he received
the copy of the petition from McBroom , he contacted
his legal counsel by telephone as contract negotiations
between Respondent and the Union were scheduled for
the next day . His legal counsel advised him that he
would contact James G. Stuart , International representa-
tive of the IBEW, and inform him that in view of the
petition Respondent could not bargain with the Union.
This was confirmed by a letter to Stuart dated July 11
signed by Respondent' s legal counsel (G C. Exh. 3)
which asserted Respondent's position that the decertifica-
tion petition from the employees constituted an objective
consideration of doubt concerning the Union's majority
status as representative of the employees in the bargain-
ing unit.
Analysis
After a review of all of the testimony, I am convinced
that Supervisor Jimmie Foreman did , in fact , encourage
and participate in the circulation of the decertification
petition with respect to employees Jackson, Hobbs, and
Adams as set out in their testimony I found these em-
ployees to be credible witnesses who testified in a forth-
right manner concerning the participation of Foreman in
the decertification effort. Although I recognize certain
inconsistencies in their testimony as to whether the peti-
tion was typed or handwritten and their placement with
respect to certain of the dates, I do not find these incon-
sistencies damaging to their overall credibility. I thus
find that Foreman did unlawfully encourage them to sign
the decertification petition by promising them raises (as
in the case of the parking lot incident with Jackson and
Hobbs) and in the incident involving Jackson inside the
hall, by comments to Jackson and Hobbs on the jobsite
that they could sign the petition now, and by his interro-
gation of and threats to Hobbs that Hobbs should re-
member where his bread and butter and where his liveli-
hood came from , all in violation of Section 8(a)(1) of the
Act. I further find that Foreman was present in the
breakroom on July 8 when Dorriety again asked employ-
ees Jackson, Hobbs, Adams, and employee Byrd to sign
the petition and abruptly left after they declined to do
so I find that Foreman's presence in this situation was
not a mere happenstance in view of the background of
Foreman 's prior engagement in the violations of the Act
as found herein , and thus constituted unlawful surveil-
lance of these employees in violation of Section 8(a)(1)
of the Act I do not credit the disclaimers of McBroom
and Dorriety that Foreman was not present during any
of the times asserted by Jackson, Hobbs, and Adams. I
find it extremely unlikely that three long-term employ-
ees, all in good standing with Respondent , such as Jack-
son, Hobbs, and Adams, would fabricate their testimony
in this case I found that Jackson, Hobbs, and Adams
each responded candidly to cross-examination questions
as to whether they had been disciplined by Foreman.
Jackson, alone , had been disciplined and this was limited
to a written warning for a safety infraction . I credit
Jackson's testimony that he did not harbor any ill feel-
ings toward Foreman as a result I further find that the
comments and action of Foreman as a supervisor and
agent of Respondent may properly be imputed to Re-
spondent and find that Respondent thereby violated Sec-
tion 8(a)(1) of the Act
On the expiration of a collective-bargaining agreement,
the incumbent union is accorded the presumption of con-
tinued majority status as the exclusive bargaining repre-
sentative of the employees in the bargaining unit See
Guerdon Industries, 218 NLRB 658, 659 (1975), citing
CHOCTAWHATCHEE ELECTRIC
Barrington Plaza & Traginew, 185 NLRB 962 (1970), enf.
denied on other grounds 470 F 2d 669 (9th Cir. 1972).
This presumption is a rebuttable one, however, and may
be rebutted by evidence that the union has lost its major-
ity status or by a good-faith doubt on the part of the em-
ployer based on objective considerations concerning the
continued majority status of the union. See Guerdon In-
dustries, supra, citing NLRB v. Gulfmont Hotel Co., 362
F 2d 588 (5th Cir 1966), enfg. 147 NLRB 997 (1964). In
order to establish a good-faith doubt, the employer must
show that the doubt was based on objective consider-
ations and was asserted by the employer in a context free
of unfair labor practices. See Guerdon Industries, supra,
citing Nu-Southern Dyeing & Finishing, 179 NLRB 573
fn. 1 (1969), enfd. in part 444 F.2d 11 (4th Cir. 1971).
The decertification petition signed by a majority of the
employees is a recognized objective consideration which
may give rise to a reasonably based or good-faith doubt,
if it has occurred in the context free of unfair labor prac-
tices. KSD-AM Radio, 262 NLRB 687 (1982). In the in-
stant case the central issue with respect to the allegation
of violation of Section 8(a)(5) is whether the decertifica-
tion petition was obtained in a context free of unfair
labor practices so as to permit Respondent to justifiably
rely on it as establishing a good-faith doubt of the
Union's continued majority status and as a basis for Re-
spondent's refusal to bargain with the Union.
In assessing the overall impact of the finding of 8(a)(1)
violations having been committed by Respondent in sup-
port of the decertification petition, I find that Respond-
ent's reliance on the petition as objective consideration
of a good-faith doubt of the Union's majority status is
misplaced and its refusal to bargain under these circum-
stances was violative of Section 8(a)(5) and (1) of the
Act notwithstanding the unrebutted testimony of the 14
employees who signed the petition that they did so with-
out being influenced or coerced by Respondent to do so.
In making this determination, I note the testimony of
both Foreman and Smith that they were aware of
rumors of the circulation of the petition. I find that there
is a valid basis for drawing an inference that the employ-
ees who signed the petition were also aware of the par-
ticipation of Foreman in the encouragement of the sign-
ing of the decertification petition notwithstanding their
testimony that they themselves received no promises or
pressures from Respondent's managerial or supervisory
representatives In making this determination , I find that
the unfair labor practices engaged in by Respondent
through its supervisor Foreman were not isolated inci-
dents Rather, Foreman solicited the signatures of Jack-
son and Hobbs in support of the decertification by prom-
ising them improvements in wages and threatened Hobbs
concerning his failure to sign the petition. It also en-
gaged in surveillance of the solicitation of employees
Jackson, Adams, Hobbs, and Byrd to sign the decertifi-
cation petition on July 8 by the presence of Foreman in
the breakroom. Moreover, the solicitation of the employ-
ees in the relatively small bargaining unit (20 employees)
to sign the decertification petition occurred in part on
Respondent's premises during the working time of the
employees. I thus find that notwithstanding the unrebut-
ted testimony of the employees who signed the petition
601
that they were neither influenced nor coerced, that the
totality of the circumstances in this case is sufficient to
warrant an inference that they were made aware of
Foreman's conduct in support of the decertification peti-
tion. See Piggly Wiggly, 258 NLRB 1081 fn. 8 (1981),
enfd. 705 F.2d 1537 (11th Cir. 1983). I find that Re-
spondent has failed to rebut this inference. I thus con-
clude that the commission of the unfair labor practices
by Foreman occurring at that time on the jobsite and on
Respondent's premises were sufficient to taint the peti-
tion Respondent's withdrawal of recognition and refusal
to bargain with the Union under these circumstances
interfered with the rights of its employees under Section
7 of the Act to select and/or retain their bargaining rep-
resentative. See Idaho Fresh Pak-Inc., 215 NLRB 676,
679 (1974); Cantor Bros., 203 NLRB 774 at fn 4 (1973).
See also Harvey's Resort Hotel, 236 NLRB 1670 (1978);
Acme Markets, 232 NLRB 219 (1977); Nu-Southern
Dyeing & Finishing, Marriott Corp., 258 NLRB 755, 768-
769 (1981); Jax Mold & Machine, 255 NLRB 942, 951-
952 (1981), Rockland Lake Manor, 263 NLRB 1062, 1070
(1982); Forester Beverage Corp., 265 NLRB 285 fn 3
(1982).
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The unfair labor practices as found in section II,
above, occurring in connection with operations of Re-
spondent as found in section I, above, have a close, inti-
mate, 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 of commerce.
On the basis of the foregoing findings of fact and on
the entire record in this case, I make the following
CONCLUSIONS OF LAW
1. Choctawhatchee Electric Cooperative, Inc. is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. International Brotherhood of Electrical Workers,
Local Union No. 2152, AFL-CIO-CLC is a labor orga-
nization within the meaning of Section 2(5) of the Act.
3. By soliciting the support of its employees to sign a
petition to decertify the Union as the bargaining repre-
sentative of the employees through the interrogation of
its employees, the issuance of promises of raises in pay if
the employees supported and signed the decertification
petition, and threats of retaliation if they failed to sign
the petition, and by engaging in surveillance of its em-
ployees and their responses to the solicitation of their
signatures on the petition, Respondent violated Section
8(a)(1) of the Act.
4. The following employees of Respondent constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All production and maintenance employees includ-
ing linemen, apprentice linemen, servicemen, equip-
ment operators, groundmen, custodians, service rep-
resentatives, shop mechanics, warehousemen, sys-
602 DECISIONS it ;
f '
NATIONAL LABOR
tems operation clerk, engineering aide, and store-
keeper employed by the Employer-at its DeFuniak
Springs, Freeport, and Baker, Florida facilities; ex-
cluding all office clerical employees, sales employ-
ees, all other employees, professional employees,
guards, and supervisors as defined in the Act
5. At all times material herein the International Broth-
erhood of Electrical Workers, Local Union No. 2152,
AFL-CIO-CLC has been , and is now, the exclusive rep-
resentative of all employees in the aforesaid bargaining
unit for purposes of collective bargaining within the
meaning of Section 9(a) of the Act.
6. Since July 11, 1983 , by refusing to meet with the
International Brotherhood of Electrical Workers, Local
Union No. 2152, AFL-CIO-CLC for purposes of negoti-
ating a collective-bargaining agreement covering the bar-
gaining unit employees , Respondent has violated Section
8(a)(5) and ( I) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of
the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, it shall be ordered to cease and
desist therefrom and to take certain affirmative actions
designed to effectuate the policies of the Act and to post
the appropriate notice.
Having found that Respondent engaged in violations
of Section 8(a)(1) of the Act, it shall be ordered to cease
and desist therefrom. Having found that Respondent has
refused to meet and bargain with the Union in violation
of Section 8(a)(5) and (1) of the Act, it will be ordered
to cease and desist therefrom and, upon request, to bar-
gain collectively in good faith wih the Union as the ex-
clusive representative of all of the employees in the ap-
propriate unit, and in the event an understanding is
reached, to embody such understanding in a signed
agreement.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed5
5 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
RELATIONS BOARD
ORDER
The Respondent, Choctawhatchee Electric Coopera-
tive, Inc., DeFuniak Springs, Florida, its officers, agents,
sucessors, and assigns, shall
1. Cease and desist from
(a) Interrogating its employees, promising them raises,
or threatening them with retaliation or engaging in sur-
veillance of them in its efforts to solicit their support for
a petition to decertify the Union or to attempt to per-
suade them to abandon their support for the Union.
(b) Refusing to bargain collectively concerning rates
of pay, wages, hours of employment, and other terms
and conditions of employment with the International
Brotherhood of Electrical Workers, Local Union No.
2152, AFL-CIO-CLC as the exclusive bargaining repre-
sentative of its employees in the appropriate unit.
(c) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act
(a) On request, bargain collectively with the Interna-
tional Brotherhood of Electrical Workers, Local Union
No. 2152, AFL-CIO-CLC as the exclusive representa-
tive of all of its employees in the appropriate unit and if
an understanding is reached, embody such understanding
in a written agreement.
(b) Post at its facilities in DeFuniak Springs, Freeport,
and Baker, Florida, copies of the attached notice marked
"Appendix."e Copies of the notice, on forms provided
by the Regional Director for Region 15, 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 conspic-
uous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are
not altered, defaced, or covered by any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
6 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "