Cleveland Sales Co

National Labor Relations Board - Board Decisions

Feb 15, 1989

292 N.L.R.B. 1151 (N.L.R.B. 1989)

CLEVELAND SALES CO
Clesco Mfg Div of Cleveland Sales Co and Truck
Drivers Local Union No 407, International
Brotherhood of Teamsters, Chauffeurs, Ware
housemen and Helpers of America , AFL-CIO
Cases 8-CA-19718 and 8-CA-20164
February 15, 1989
DECISION AND ORDER
BY MEMBERS JOHANSEN, CRACRAFT, AND
HIGGINS
On May 25, 1988, Administrative Law Judge
Claude R Wolfe 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
conclusions2 and to adopt the recommended
Order
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Clesco Mfg
Div of Cleveland Sales Co, Willoughby, Ohio, its
officers, agents, successors, and assigns, shall take
the action set forth in the Order
i The Respondent has excepted to some of the judge s credibility find
rags 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 Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
2 In making these findings we are of course applying the Board s
well established standard for when an employer may lawfully poll its em
ployees to determine if a majority of those employees still wish to be rep
resented by an incumbent union We are mindful that the case arises in
the Sixth Circuit Court of Appeals and that the court applies a different
standard for determining whether an employer has acted lawfully in con
ducting such a poll More specifically the Sixth Circuit has held that an
employer may poll its employees to determine their union sentiment if it
has substantial objective evidence of a loss of union support even if that
evidence is insufficient in itself to justify withdrawal of recognition
Thomas Industries Y NLRB 687 F 2d 863 867 (6th Cir 1982) In our
view the evidence proffered by the Respondent is insufficient to consti
tute substantial objective evidence of loss of union support Rather the
evidence established that the reason for the poll was the Respondents
belief that the employees did not need a union Thus it was the Respond
ent s conclusions about the necessity of a union not a belief that there
was a loss of support that prompted the Respondent to poll the employ
ees
Mark Carissimi Esq, for the General Counsel
Stuart 0 H Merz and James Perrin Esqs for the Re
spondent
DECISION
1151
CLAUDE R WOLFE, Administrative Law Judge This
consolidated proceeding was litigated before me at
Cleveland, Ohio, on March 17 1988, after a rather in
volved procedural history The charge in Case 8-CA-
19718 was filed by the Union on December 17, 1986, and
served on December 18, 1986 This charge alleged
Clesco Mfg Div of Cleveland Sales Co (Clesco or Re
spondent) violated Section 8(a)(1) and (5) of the National
Labor Relations Act (the Act) by refusing to bargain
collectively with Truck Drivers Local Union No 407
(the Union) On December 15 1986, 2 days prior to the
filing of the charge, Sean Mulhearn, an individual, filed a
decertification petition in Case 8-RD-1376 seeking the
decertification of the Union as the collective bargaining
representative of Clesco s production and maintenance
employees This petition was withdrawn on February 5,
1987 because a complaint had issued in Case 8-CA-
19718 alleging Respondent had violated Section 8(a)(5)
and (1) of the Act by advising the Union negotiations
would be a waste of time, by unlawfully polling its em
ployees regarding whether they wished to be represented
by the Union, by telling employees they did not need the
Union and that the Union approved of the poll, by in
flexibly insisting on a 1 year contract extension expiring
September 11, 1987 and by advising an employee that
temporary employees would be terminated if they
became involved in the Union
On February 25 1987, the Board s Regional Director
approved a unilateral settlement, to which the Union was
not a signatory, disposing of the complaint allegations in
Case 8-CA-19718 and withdrawing the complaint Sean
Mulhearn then on May 14 1987, filed another decertifi
cation petition concerning the same employees in Case
8-RD-1404 On June 11, 1987 the Union filed another
charge in Case 8-CA-20164 which was served on June
12 1987 By letter of November 23, 1987, the Regional
Director dismissed the petition in Case 8-RD-1404, and
advised the settlement in Case 8-CA-19718 would be va
cated and a consolidated complaint would issue in Cases
8-CA-19718 and 8-CA-20164 On November 30 1987 a
consolidated complaint issued in those cases alleging vio
lations of Section 8(a)(5) and (1) of the Act consisting of
the allegations previously urged in Case 8-CA-19718
and an additional allegation in Case 8-CA-20164 that
from about April 15 through June 3, 1987 Respondent
continued to insist on an unreasonably short expiration
date for any contract reached The consolidated com
plaint was amended at hearing to allege Respondent ad
vised the Union it was not needed by the Company and
the employees would learn they would be better off
without it Respondent denies the commission of unfair
labor practices and raises affirmative defenses In this
posture the case came before me for hearing On the
entire record and the demeanor of the witnesses testify
ing before me, and after considering the posttrial briefs
submitted by the parties I make the following
292 NLRB No 126
1152 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
FINDINGS AND CONCLUSIONS
I JURISDICTION
At all times here Respondent an Ohio corporation
with an office and place of business in Willoughby Ohio
has been engaged in the manufacture of hardware Annu
ally Respondent in the course and conduct of these
business operations purchased and received at its Wit
loughby Ohio facility products goods, and materials
valued in excess of $50,000 directly from points outside
the State of Ohio Respondent is now , and has been at all
times material an employer engaged in commerce within
the meaning of Section 2(2) (6) and (7) of the Act
II LABOR ORGANIZATION
The Union is now, and has been at all times material a
labor organization within the meaning of Section 2(5) of
the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A Facts Found
Following the Board s May 12 1983 certification of
the Union as the exclusive collective bargaining repre
sentative of Clesco s employees in an appropriate bar
gaining unit, Clesco and the Union entered into a collec
tive bargaining agreement covering those employees' of
fective September 12 1983 to September 11 1986
By letter of June 24 1986, the Unions president C
Sam Theodus notified Clesco that the Union wanted to
revise or change contractual provisions and requested an
early response so that negotiations might be completed
before September 11 1986 This was followed by a July
16 letter from Bob Wenger union business representa
tive requesting Clesco to contact the union office to ar
range a mutually convenient date for negotiations
Thomas Malak Respondents president responded by
letter to Wenger dated July 21 and reading in relevant
part as follows
I received your letters Sorry for the late reply
but I have been out of town on business for the last
two weeks
Please let us know what your proposals for a
new labor contract would be
Also we want to let you know that we will
probably conduct a poll of our current employees
to get their feelings on the current situation of our
company
James Davis a union representative called Malak on
July 23 and explained he was calling on Wenger s behalf
to arrange a meeting date According to Davis Malak
told him that although he was willing to sit down with
the Union it would be a waste of time because he did not
' The bargaining unit is described in the contract as follows
All production and maintenance employees employed by the Em
ployer at its plant located at 4366 Hamann Parkway Willoughby
Ohio excluding all office clerical employees foremen and supervi
sors and all guards professional employees as defined in the Labor
Management Relations Act as amended and all other employees of
the Company
believe Clesco s employees were still interested in union
membership and he was going to poll his employees on
the matter Davis testified that he told Malak he did not
think Malak should be taking any polls or undermining
the Union and Malak should just set a date to sit down
and negotiate Malak denies telling Davis he was taking a
poll or that meeting would be a waste of time Malak
avers that he told Davis it would be a timesaver and
more productive if the Union would submit its proposals
for study prior to a meeting
Wenger called Malak on July 30 to discuss the upcom
ing negotiations According to Wenger Malak said he
thought the employees would be better of without the
Union Respondent had made a decision it did not need
the Union and he was going to poll the employees
Wenger says he protested the poll and stated the Union
was the employees bargaining representative with whom
Malak should negotiate Wenger testified that Malak in
sisted Respondent was going to go ahead and not have a
union and that as time went on, the employees would
learn that they would be better off without the Union
Malak testified that, after some general conversation
about the economy generally and Clesco s business con
ditions, Wenger commented that from the way it sound
ed maybe negotiations would be a waste of time and
maybe the Union would have to go on strike Malak
denies stating he thought negotiations would be a waste
of time He states that he told Wenger he was going to
poll the employees because I wanted to have an under
standing of how the majority of the employees felt about
being in the you know, having a union and that was
what I did Malak claims Wenger said nothing to this
and did not object to the poll
Malak s testimony that neither Wenger nor Davis ob
jected to his proposal to poll the employees on whether
they wanted the Union is unbelievable It is difficult to
imagine a more improbable sequence than union repre
sentatives standing mute without a word of protest when
confronted with a challenge to the Union s representa
tive status such as Malak s poll posed Moreover
Wenger s testimony that Malak said he thought the em
ployees would be better off without the Union and
Clesco did not need a union is consistent with Malak s
testimony that he had told employees they did not need
a union before he conducted a poll on August 8 1986
and Thomas Nielson s credible testimony that Malak told
the employees in June 1986 that he felt the employees
did not need a union Wenger and Davis were more im
pressive and believable witnesses than Malak who was
given to circumlocution Given the improbability of
Malak s versions the detailed and more probable ver
sions of Davis and Wenger regarding their reactions to
Malak s intention to poll the employees Malak s advice
to employees that they did not need a union the tenden
cy of Malak to circumlocution and the superior testimo
vial demeanor of Davis and Wenger in terms of apparent
candor and certainty the versions of the telephone con
versations of July 23 and 30 given by Davis and Wenger
respectively are credited over the versions given by
Malak which are found incredible to the extent they
CLEVELAND SALES CO
contradict the testimony of Davis and Wenger on these
conversations
On July 30 Wenger sent Malak a letter reading in
pertinent part, as follows
This letter will serve to confirm our phone con
versation whereby we will meet on Wednesday
August 13 1986, 10 00 AM
This meeting will take place even though you
have already determined that any discussion con
cerning the contract, which expires September 12
1986, will be futile, because of your predetermined
summation that your employees no longer need a
Union and would be better off without one
Wenger mailed written contract proposals to Malak on
August 7 The proposals called for a 3 year contract
from 1986 to 1989, changes in hospitalization coverage
25 cent an hour increases twice a year for part time em
ployees, 50 cent per hour increase each year for full time
employees, 10 percent increase in piece work rates, and 2
all purpose days off prior to 1 year employment and
thereafter 1 day per month to a maximum of 8 days per
contract year
On August 8, Malak polled the employees Malak testi
feed and is credited that two employees had told him
they were dissatisfied with the Union and being part of
it, and asked if it was going to be a good idea to have a
union Another employee was considered by him to be
antiunion because of religious convictions I also credit
his testimony that he told the six employees assembled
on August 8 that it would be a secret ballot they did not
have to take part if they did not want to and there
would be no reprisals Contrary to Malak s denial, I con
elude Thomas Nielson's testimony that Malak told the
employees that the Union had given permission to take
the poll should be credited 2 In so concluding I have
considered that Nielson remains Respondents employee
is therefore not likely to deliberately fabricate testimony
contrary to that of his employer who controls his imme
diate employment future 3 and had no apparent reason to
concoct this report The ballot distributed to the employ
ees posed the question, Do you think that Clesco still
needs a union? and had yes and no boxes within which
to note the voters answer Of the six employees, three
voted yes two voted no and one did not mark his
ballot From this tally Malak concluded there was still a
majority favoring union representation and negotiations
with the Union should proceed
Respondent s bargaining team initially consisted of Re
spondent s lawyer and chief spokesman Stuart Merz
Malak, and Joseph Drake Respondent s general manag
er Wenger and Davis represented the Union in most of
the meetings At the first meeting on August 13 1986
Wenger stated the Union was present to negotiate its
proposals Merz responded the Respondent was not in a
position to do anything other than offer a 1 year exten
2 The Union did not give permission for the poll
3 See e g Unarco Industries 197 NLRB 489 491 (1972)
1153
sion on the contract Wenger4 said the Union could not
accept a 1 year extension but would consider a 3 year
contract with a 1 year freeze and reopeners in the second
and third year Merz rejected this proposal and repeated
Respondents request for a 1 year extension of the con
tract to expire on September 11 1987 The Union would
not agree to this
At the next meeting on August 21 Wenger said he
was willing to listen if Clesco would say why it wanted
a 1 year extension and would show the Union some fi
nancial statements Wenger then asked if Respondent
was pleading poverty Merz said it was not but Re
spondent was not going to offer anything other than a 1
year extension to the contract Wenger then asked for
the Respondents final position in writing Wenger ex
plains that he wanted Respondents position in writing to
show the employees to secure their continued support
That very day Malak sent Wenger a letter reading as
follows
This is in response to your request for the Compa
ny s final offer As we indicated in our meeting this
date, that offer is that we extend the current con
tract, without change, for one year
Wenger answered by letter of August 29 that the Union
would recommend to Respondents employees that they
reject Respondents offer, and would advise Malak of the
results The offer was unanimously rejected by the em
ployees on September 10 and a strike vote carved by a
5 to 1 margin Wenger advised Malak of those results
and requested continued negotiations in a letter dated
September 12
The parties met again on October 22 Respondents po
sition remained the same The Union withdrew its pro
posal for the changes in hospitalization, and reduced its
request for a maximum of 8 all purpose days off after the
first year of employment to a maximum of 4
The next meeting took place on November 5 Wenger
was the sole union representative present Clesco s team
remained the same Wenger offered to reduce the pro
posed wage increase for full time employees from 50
cents per hour each year to 40 cents Respondents pose
tion remained the same
Wenger and Davis met again with Merz Malak and
Drake on November 19 Respondents position remained
the same Wenger credibly testified that Merz told him
at three or four meetings Respondent wanted a 1 year
contract because the Company could not see beyond that
period and was not willing to make a commitment
beyond it The Union offered no new proposals and
Wenger said the Union would give Respondents propos
al further consideration and get in touch with Respond
ent if the Union considered it necessary to meet again
On December 5 Wenger sent the following letter to
Merz 5
4 Inasmuch as Wenger was the Union s chief spokesman I have con
eluded that positions attributed to the Union at negotiation meetings were
voiced by Wenger
5 The body of the letter is reported in full
1154 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Since receiving the company s (Clesco Manufac
turing) final offer on August 28 1986 the Union
has met with yourself and the company representa
tives Tom Malak and Joe Drake, in an effort to ne
gotiate a fair and just agreement for all parties con
cerned
Given the fact, that you have refused to give
even a limited financial disclosure, it is hard for the
Union to understand why you will not negotiate
anything other than your position of a one (1) year
extension to the current contract We have placed
several items on the bargaining table and your one
and only position has not dealt with them
This is to advise that we are still interested in
meeting with you and negotiating a fair and just
contract If as you said, your first and final offer is
the only position you will consider then the Union
will be forced to once again submit your offer to
your employees for their consideration However,
we will wait until December 12, 1986 before going
to our members In the meantime please contact us
if you are willing to bargain
Merz replied by letter of December 11 as follows
This is in response to your letter of December 5
regarding the Clesco negotiations My apologies for
not replying sooner but I was tied up in an Ohio
Civil Rights Commission hearing earlier this week
Prior to the onset of negotiations between Clesco
and Local 407 Company officials carefully re
viewed the economic conditions and their effect on
business At that time they concluded that it would
be extremely unwise to agree to any proposal which
would increase labor costs Therefore, in response
to the union s proposal for very substantial in
creases the Company proposed that the existing
contract be extended without change for one year
That suggestion was rejected by the union
Nothing has happened since we began negotia
tions to alter the Company's assessment of the eco
nomic climate We still believe it would be unwise
and not in the best interests of the Company or the
employees to increase labor costs at this time
Therefore, our position calling for a one year exten
sion of the contract has not changed and, absent a
dramatic and totally unforeseen change in the
economy, it is unlikely that it will change
We will, of course, be happy to meet with you to
further discuss this matter should } ou wish to do so
Thomas Nielson testified that in the second week of
December 1986 after he told a temporary employee Re
spondent was a union shop and there might be an open
ing for permanent employment with Respondent, Plant
Manager Drake called him over and told him he could
not promise temporary employees jobs and if Nielson in
volved such employees in the Union the Respondent
would get rid of them According to Nielson Drake
concluded with These people need jobs too On cross
examination, Nielson agreed that what Drake said was
that temporary employees were only there for specific
jobs and could be let go when those jobs were done On
further examination by the General Counsel and me, it
became obvious that Nielson although an honest wit
ness was confused regarding what Drake actually said I
therefore credit Drake s straightforward account that he
was told by a permanent employee and a temporary em
ployee that the temporary employee had been ap
proached by either Wenger or Nielson the Union s stew
ard, regarding employment at Clesco and was uncom
fortable about being approached by the Union and being
involved in something he had no reason to be involved
with Drake explained this individuals discomfort at
being so approached to Nielson, and suggested to Niel
son that he should leave the temporary employees, who
were not Clesco employees, out of the negotiations or
any dispute between Clesco and the Union because these
matters did not involve the temporary employees He
also told Nielson as Nielson agrees, that temporary
workers were there for a specific task and once that task
is finished could be gone I further credit Drake that he
did not tell Nielson that Respondent would get rid of the
temporary employees if they became involved with the
Union and conclude this was what Nielson believed
Drake meant rather than what Drake actually said
Mulhearn filed the decertification petition in Case 8-
RD-1376 on December 16 The Union filed its charge in
Case 8-CA-19718 on December 17 The petition was
withdrawn on February 15 1987, and the settlement
agreement in Case 8-CA-19718 approved on February
25, 1987 On March 23 1987, Wenger and Merz ar
ranged to resume negotiations on April 13, 1987 The
meeting was actually held on April 15 and began with
Wenger Davis and Union Steward Thomas Nielson rep
resenting the Union and Merz Malak and Drake for the
Respondent At this meeting Respondent offered a pack
age proposal consisting of a 2 cent wage increase, a 3
percent piece rate increase 1 all purpose day, and a con
tract expiration date of September 11 1987 The Union
reduced its wage request to 38 cents retroactive to Sep
tember 1986 because Respondent offered 2 cents and re
duced its all purpose day maximum to 3 days
They met again on April 23 with Wenger the only
one there for the Union Wenger proposed a contract ex
piration date of September 1988 and reduced the all pur
pose day proposal to 1 day Respondent offered a 3 cent
wage increase and 3 percent on piece rate as a package
deal retroactive to September 1986, provided the Union
would agree to a September 11 1987 contract expiration
date No agreement was reached
The next meeting was on April 29 Respondent offered
4 cents on wages the 3 percent increase in piece rate,
and contract expiration of September 11 1987 The
Union reduced its wage increase proposal to 18 cents of
fered to accept the 3 percent increase in piece rates and
1 all purpose day and wanted retroactivity to February
1987 and a May 30 1988 contract expiration date Merz
said the Company was offering a package deal, all or
nothing and would not move from the September 1987
expiration date but also said Respondent would agree to
retroactivity if the Union agreed to the September 1987
expiration date
CLEVELAND SALES CO
At the next meeting on May 8 the Union proposed a
May 30 1988 expiration date an 18 cent raise a 3 per
cent increase in piece rate, and 1 all purpose day Re
spondent stuck to its previous offer This angered
Wenger who threatened to return to a 25 cent wage in
crease and retroactivity to September 1986 This drew
no response
Wenger sent the following letter to Metz on May 13
1987, in relevant part
As I have thought about your latest offer of May 8,
1987, it is apparent that the company s offer was an
other attempt to belittle and to disquise the compa
ny s contempt for the Union with their ridiculous
offer
The Union believes that the company s earlier
stated position, (that the employees would be better
off without the Union) is still intact as far as the
company is concerned and because of this position,
never really intended to bargain seriously with the
Union Therefore, it is our position that your offer
of the above mentioned date is grossly inadequate
and does not respect the demands and needs of our
members and we will not submit your offer to them
for all of the mentioned reasons
Wenger met with Merz and Malak on June 3 1987
Wenger concedes he was hostile and characterized Re
spondent s offer of May 8 as a piece of excrement that he
would not take to the union members He then gave the
same offer tendered by him at the May 8 meeting Re
spondent countered with a 5 cent wage increase a 3 per
cent piece rate increase 1 all purpose day and a Septem
ber 11 1987 expiration date all as a package deal
Wenger agreed to the 3 percent piece rate raise and the
1 all purpose day, and proposed a 20 cent wage increase
retroactive to February 1987 and contract expiration in
May 1988 Respondent did not move from its offer No
further meetings have been held
Sean Mulhearn had filed his second decertification pe
tition on May 14, 1987 in Case 8-RD-1404, which as I
have noted was dismissed after the Regional Director
determined to set aside the settlement and issue the con
solidated complaint before me Four days before the
second decertification petition was issued Malak advised
the Union by letter of November 19, 1987 that Clesco
did not believe the Union enjoyed majority support and
therefore no longer recognized it as the representative of
Clesco s employees The withdrawal of recognition is
not alleged as a violation of the Act
B Discussion and Conclusions
The Board has a long established policy against setting
aside a settlement agreement absent a breach thereof or
the commission of subsequent unfair labor practices 6
The General Counsel alleges Respondents postsettle
ment insistence on a contract expiration date of Septem
ber 11 1987, to be such a circumstance because this expi
ration date is unreasonably short In assessing the validity
of this allegation it is appropriate to consider presettle
6 Sundstran Castings Co 209 NLRB 414 (1974)
1155
ment conduct for the purpose of establishing the motive
or object of Respondents postsettlement conduct 7
By June 3, 1987 the last meeting between the parties
Respondent was in fact requesting a contract of 3
months and 8 days duration by continuing to insist on a
September 11 1987 expiration date The Board has re
cently reaffirmed the general proposition that the con
tent of bargaining proposals will, in certain circum
stances, be evidence of an intent to frustrate the collec
tive bargaining process 8 and it has long held that insist
ence on a contract of less than a year without good
reason is evidence of bad faith bargaining 9 The Board
has also long held that when an employer proposes a
contract of extremely limited duration , it must appear
from the circumstances that the proposal is not in bad
faith or to achieve an illegal purpose and the proposal
must be based on a doubt of majority status based on ob
jective considerations 10 It is also settled law that ada
mant insistence on a bargaining position is not by itself a
refusal to bargain in good faith and the determination of
whether a party has bargained in bad faith must flow
from an examination of the totality of circumstances
within which the bargaining took place 11 Respondent
notes in its posttrial brief and I find that it was not chal
lenging the Union s status as a bargaining representative
when it made its proposal of a 1 year contract extension
I further find that this proposal was never thereafter
based on a doubt of the Unions majority status Inas
much as Clesco s insistence on the 1 year contract exten
sion does not of itself constitute bad faith , 12 the totality
of Respondents conduct during the bargaining period
must be evaluated to determine if Clesco s refusal to de
viate from its original contract term proposal was in
good or bad faith
Respondent is correct that the facts in this case are
quite similar to those in Atlantic Hilton & Tower13 in
9 Joseph s Landscaping Service 154 NLRB 1384 (1965) Electrical Work
ers Local 613 227 NLRB 1954 fn 1 (1977) and Berbiglta Inc 233
NLRB 1476 1485 (1977)
8 Reichhold Chemicals 288 NLRB 69 70 (1988)
9 Briarcliff Pavilion 260 NLRB 1374 1377 (1982) (4 1/2 months) Huck
Mfg Co 254 NLRB 739 755-756 (1981) (2 months) Deister Concentrator
Co 253 NLRB 358 (1980) (3 1/2 months) S&W Motor Lines 236 NLRB
938 955 (1978) (negotiations continued past the Respondent s proposed
expiration date ) and Insulating Fabricators 144 NLRB 1325 1329-1330
(1963) (6 months)
10 Grace & Hornbook Mfg Co 225 NLRB 15 17 (1976) Lithium
Corp 275 NLRB 1482 1484-1485 (1985)
11 Schaeff Namco Inc 280 NLRB 1317 (1986) Boaz Carpet Yarns 280
NLRB 40 (1986) Hedaya Bros 277 NLRB 942 945 ( 1985) and Atlanta
Hilton & Tower 271 NLRB 1600 1603 (1984)
12 Atlanta Hilton & Tower 271 NLRB 1600 1603 ( 1984) Malak gener
ally identifies indebtedness the need for puce decreases caused by com
petition with lower labor costs the unpredictability of Clesco s immedi
ate business future and a desire to give the employees another chance to
vote on Clesco s proposal of a I year contract extension as reasons for
continuing to insist on an expiration date of September 11 1987 Clesco
offered no documentary evidence to support Malak s conclusions Re
spondent s posttrial brief recites that its motivation for insisting on a I
year contract was economic uncertainty The general claim of economic
uncertainty is broad enough to cover all of Malak s expressed reasons
except his desire for another ratification vote on the proposal
13 271 NLRB 1600 (1984)
1156 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
which the Board found the hotel had not refused to bar
gain in good faith by firmly insisting on a 1 year exten
sion of the collective bargaining agreement There as
here the respondent appeared at numerous negotiating
sessions , offered wage increases and had previously suc
cessfully negotiated a collective bargaining agreement In
the instant case Respondent also offered one all purpose
day and piece rate increases The wage and piece rate in
creases were to be retroactive to September 1986 All of
these proposals were offered as part of a package con
taming the September 1987 expiration date from which
Clesco would not budge To this point there is no sub
stantial difference between Atlanta Hilton and this case,
but there are other factors to be weighed There is noth
ing in Atlanta Hilton to indicate that the employer in any
way evidenced an interest in ending union representation
of its employees and I conclude for the following rea
sons Atlantic Hilton is not controlling In this case Malak
told Davis on July 23, 1986 that negotiations would be a
waste of time because he did not believe the employees
were still interested in union membership, and that he
would therefore poll them regarding their interest in the
Union Similarly, Malak told Wenger on July 30 1986
that employees would be better off without the Union,
Clesco had decided it did not need the Union Clesco
would poll the employees on their Union interest, Clesco
would go ahead and not have a Union and employees
would learn they would be better off without the Union
After Malak made these statements he proceeded to poll
the employees on August 8 1986, during the term of the
contract This conduct of Malak on July 23 and July 30
and August 8 1986 warrants a conclusion which I
make that Clesco did not want to bargain with the
Union wished and planned to get rid of the Union, and
polled the employees in furtherance of that plan 14 This
conclusion together with Malak s advice to employees
that they did not need a union a plain effort to dissuade
them from retaining union representation and Respond
ent s failure to provide either convincing economic rea
sons or a reasonably based doubt of the Union s continu
ing majority status as basis for its insistence on a Septem
ber 11 1987 termination date persuade me that insistence
was not in good faith Accordingly I conclude and find
that during the postsettlement negotiations commencing
April 15, 1987 only 5 months before Respondents pro
posed expiration date, Respondent inflexibly insisted on a
contract of less than a year s duration without good
reason , and thereby engaged in bad faith bargaining vio
lative of Section 8(a)(5) and (1) of the Act By so doing
Respondent also failed to comply with the agreed on
terms of the settlement agreement in Case 8-CA-19718
which provided, among other things that Respondent
would not assume an inflexible bargaining position,
and otherwise refuse to bargain in good faith and would
on request, bargain in good faith with the Union The
said settlement agreement was therefore properly set
aside by the Board s Regional Director for Region 8 It
14 As found below when he polled the employees Malak did not have
a reasonably based doubt of the Union s majority status which is pre
sumed to exist throughout the term of the contract and thereafter unless
rebutted
is therefore appropriate to now consider the allegations
of unfair labor practices preceding the settlement agree
ment
The evidence preponderates in favor of a conclusion
that Respondent entered negotiations with a closed mind
and a fixed inflexible position regarding the contract ter
mination date gave short shrift to the Union s attempt to
accommodate its concerns via a wage freeze for the first
year of the contract and never varied its position on the
termination date even after the period remaining before
that date diminished to little more than 3 months Re
spondent gave no better reason for its presettlement con
duct than it did for its postsettlement conduct Respond
ent s inflexible and unreasonable attitude regarding the
contract termination date is contrary to the duty to bar
gain in good faith and violated Section 8(a)(5) and (1) of
the Act from the beginning of negotiations
Malak s advice to employees that they did not need a
union is not much different from the statement of the
employer to his employees in Thomas Industries 15 that
the company did not want the union and thought it
would be in the employees best interest if there was no
union there Accordingly, I find, as the Board did in
Thomas that such comments are statements of opinion
protected under Section 8(c) of the Act, do not violate
Section 8(a)(1) of the Act, and although I find Malak s
comment was designed to persuade employees they did
not need a union it was not coercive The fact is how
ever, that Respondent had no reasonably based doubt of
the Union s majority status on which to base its poll and
the poll was therefore unlawful 16 The asserted doubt
rests on Malak s testimony that two employees said they
were dissatisfied with the Union and being part of it and
asked if it was going to be a good idea to have a union
and Malak s further testimony that he knew another of
six unit employees disapproved of union membership on
religious grounds General dissatisfaction with an incum
bent union and/or disinclination to be members do not
evidence a clear rejection of union representation 17 For
these reasons I conclude and find that by conducting the
poll without a reasonably grounded doubt of the Union s
continued majority status Respondent violated Section
8(a)(1) of the Act With respect to Malak s misrepresen
tation to the employees that the Union had given permis
sion for the poll I conclude it violated Section 8(a)(1) of
the Act because it was designed to persuade employees
to participate in the poll, and therefore interfered with
the free exercise of their right not to participate or mdi
cate whether they desired continued union representa
tion
I have found that Plant Manager Drake did not as the
complaint alleges tell employees that Respondent would
terminate temporary employees if they became involved
in the Union That allegation is dismissed
Respondent in its answer to the complaint raised the
following affirmative defenses
15 255 NLRB 646 (1981)
' e Thomas supra
17 See e g Atlanta Hilton & Tower 278 NLRB 474 ( 1986) and cases
cited therein
CLEVELAND SALES CO
FIRST AFFIRMATIVE DEFENSE
To the extent that the matters alleged herein oc
cured more than 180 days before the filing of this
Complaint this action is barred by the statute of
limitations
SECOND AFFIRMATIVE DEFENSE
The matters alleged in Case 8-CA-19718 have
been settled and released Respondent fully com
plied with the terms of said settlement Wherefore
the Board is estopped from raising matters raised in
Case 8-CA-19718
The first affirmative defense is without merit because
the date of issuance of the complaint is not the control
ling factor The rule that Respondent misreads is set
forth in Section 10(b) of the Act as follows, in relevant
part no complaint shall issue based upon any
unfair labor practice occurring more than six months
prior to the filing of the charge with the Board and the
service of a copy thereof upon the person against whom
such charge is made All matters alleged in the
consolidated complaint are supported by timely filed
charges With respect to the second affirmative defense
Respondent did not comply with the settlement agree
ment in Case 8-CA-19718 The settlement agreement
was properly set aside and the allegations of Case 8-CA-
19718 were properly and fairly litigated before me
CONCLUSIONS OF LAW
1 Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6) and (7) of the
Act
2 The Union is a labor organization within the mean
mg of Section 2(5) of the Act
3 Respondent violated Section 8(a)(1) of the Act by
conducting a poll of its employees union sentiments
without having a reasonably grounded doubt of the
Union s majority status and by telling the employees
that the Union had given permission for the poll
4 By failing and refusing to bargain in good faith with
the Union Respondent violated Section 8(a)(5) and (1) of
the Act
5 The violations of the Act set forth above are unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend
ed18
ORDER
The Respondent, Clesco Mfg Div of Cleveland Sales
Co Willoughby Ohio, its officers agents, successors,
and assigns shall
1 Cease and desist from
18 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
1157
(a) Coercively polling its employees concerning their
union sympathies, or telling them the Union has given
permission for such a poll
(b) Refusing to bargain collectively in good faith with
the Union as the exclusive representative of the follow
mg appropriate bargaining unit
All production and maintenance employees em
ployed by the Employer at its plant located at 4366
Hamann Parkway, Willoughby Ohio, excluding all
office clerical employees foremen and supervisors
and all guards professional employees as defined in
the Labor Management Relations Act as amended
and all other employees of the Company
(c) In any like or related manner interfering with, re
straining or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) On request, bargain collectively and in good faith
with the Union as the exclusive collective bargaining
representative of its employees in the aforesaid unit and
embody in a signed agreement any understanding
reached
(b) Post at its Willoughby Ohio facility copies of the
attached notice marked Appendix 19 Copies of the
notice on forms provided by the Regional Director for
Region 8, after being signed by the Respondents author
ized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecu
tive days in conspicuous places including all places
where notices to employees are customarily posted Rea
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered defaced or covered by
any other material
19 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 or
dered us to post and abide by this notice
WE WILL NOT fail or refuse to bargain in good faith
with Truck Drivers Local Union No 407 International
Brotherhood of Teamsters Chauffeurs Warehousemen
and Helpers of America AFL-CIO as the exclusive rep
resentative of the following appropriate bargaining unit
All production and maintenance employees em
ployed by the Employer at its plant located at 4366
Hamann Parkway Willoughby, Ohio, excluding all
1158 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
office, clerical employees, foremen and supervisors
and all guards, professional employees as defined in
the Labor Management Relations Act as amended
and all other employees of the Company
WE WILL NOT coercively poll our employees regard
ing their union sympathies, nor will we tell them the
Union has given permission to hold such a poll
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the rights guaranteed them by Section 7 of the Act
WE WILL, on request, bargain with the above named
Union as the exclusive representative of all the employ
ees in the above described unit concerning rates of pay
wages, hours of work and other terms and conditions of
employment and, if an understanding is reached, embody
such understanding in a signed agreement
CLESCO MFG Div OF CLEVELAND SALES
Co