291 N.L.R.B. 104 (N.L.R.B. 1988)

Hajoca Corp.

National Labor Relations Board - Board DecisionsSep 30, 1988

291 N.L.R.B. 104 (N.L.R.B. 1988)

104 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Hajoca Corporation and Truck Drivers and Helpers, Teamsters Local Union No 312 Cases 4-CA- 15951 and 4-CA-16397 September 30 1988 DECISION AND ORDER By CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On December 9 1987 Administrative Law Judge Walter H Maloney Jr issued the attached decision The Respondent filed exceptions and a supporting brief and the General Counsel filed a brief in reply to the Respondents exceptions 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 1 findings 2 and conclusions as modified below and to adopt the recommended Order as modified The facts are fully detailed in the judge s deci sion For background purposes we note the fol lowing relevant factual matters In mid 1986 3 the Respondent was engaged in separate negotiations for new collective bargaining agreements with Local 690 of the Plumbers and Pipefitters Union (Plumbers) representing the Respondents ware house employees and with Charging Party Team sters Local 312 (Teamsters) representing the Re spondent s two truckdrivers 4 Concerning negotia tions with the Teamsters the Respondent made its initial proposals which included a wage offer on May 28 and at a subsequent negotiating session on June 12 the Teamsters made initial counterpropos als On July 2 Vincent Ezzo the manager of the Re spondent s facility held two meetings with employ ees Employee David Little a driver and several warehouse employees were present at the first meeting employee Victor Borreggine the other ' 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 In addition some of the Respondent s exceptions imply that the judge s rulings findings and conclusions demonstrate bias and prejudice On careful examination of the judge s decision and the entire record we are satisfied that such contentions are without ment 2 We note the following inadvertent errors in the judge s factual find rags that do not affect our decision In sec I B of the judge s decision 5 cent an hour wage increases should read 5 percent wage increases In sec I C the findings should show that replacement driver Gerald Gillette worked for the Respondent until mid September 1987 S All subsequent dates are in 1986 unless otherwise noted 4 Each of the collective bargaining agreements expired on June 30 driver and another warehouse employee were present at the second These two meetings were the subject of unfair labor practice charges filed by the Teamsters later in July contending that the Re spondent through Ezzo had unlawfully threatened employees and had unlawfully bypassed the Team sters and negotiated directly with bargaining unit employees Subsequent negotiations with the Teamsters and the Plumbers did not result in collective bargaining agreements On July 10 the Plumbers began an economic strike and instituted a picket line outside the Respondents facility The Respondents two drivers honored the Plumbers picket line and did not report to work after July 10 neither they nor other Teamsters members participated in picketing the Respondents plant The Respondent subse quently hired replacement employees for both the warehouse employees and the drivers The Teamsters and the Respondent entered into a settlement agreement concerning the July unfair labor practice charges and the agreement was ap proved by the Regional Director on January 15 1987 On February 9 1987 the Respondent con ducted a poll of several of its replacement employ ees both warehousemen and drivers to ascertain the warehousemen s support of the Plumbers and the drivers support of the Teamsters Based in part on the results of the poll on February 11 1987 the Respondent withdrew recognition of the Teamsters as the representative of its driver employees In re sponse the Teamsters filed another unfair labor practice charge In late May 1987 the Regional Di rector set aside the settlement agreement and issued a consolidated complaint based on both the July 1986 and February 1987 charges The judge affirming the revocation of the settle ment agreement found that by its conduct at the July 2 meetings the Respondent threatened em ployees in violation of Section 8(a)(1) and bypassed the Teamsters to deal directly with unit employees in violation of Section 8(a)(5) The judge further found that the poll conducted on February 9 1987 violated Section 8(a)(1) and the Respondent s withdrawal of recognition violated Section 8(a)(5) Although we adopt the judge s conclusions that the Respondent violated the Act we do so only as set forth below 1 We address first the Respondents postsettle ment agreement conduct its poll of replacement employees and withdrawal of recognition of the Teamsters in February 1987 In Station KKHI 284 NLRB 1339 (1987) we reaffirmed the essential legal principles regarding the presumption of a col lective bargaining representatives majority status 291 NLRB No 16 HAJOCA CORP and the circumstances in which an employer law fully may withdraw recognition Absent unusual circumstances there is an it rebuttable presumption that a union enjoys ma jonty status during the first year following its certification On expiration of the certification year the presumption of majority status con tinues but may be rebutted An employer who wishes to withdraw recognition after a year may do so in one of two ways (1) by showing that on the date recognition was withdrawn the union did not in fact enjoy majority status or (2) by presenting evidence of a sufficient objective basis for a reasonable doubt of the union s majority status at the time the employ er refused to bargain Ibid There is a similarly irrebuttable presumption of the union s majority status during the term of a collective bargaining agreement 5 at its expiration an employer may lawfully withdraw recognition on either of the two grounds described above See e g KBMS Inc 278 NLRB 826 846 (1986) BASF Wyandotte Corp 276 NLRB 498 504 (1985) Burger Pits Inc 273 NLRB 1001 1002 (1984) affd sub nom Hotel Employees Local 19 v NLRB 785 F 2d 797 (9th Cir 1986) With respect to the second means of rebutting the presumption the employers expression of a reasonable doubt must be raised in a context free of unfair labor practices See e g KBMS Inc supra at 846 Guerdon Indus tries 218 NLRB 658 659 (1975) An employers polling of its employees concern ing their union sympathies and support is permissi ble in certain situations See generally Struksnes Construction Co 165 NLRB 1062 (1967) One such situation may occur when the poll is conducted to verify the minority status of an incumbent union The Board s established prerequisite for the lawful polling of employees in this situation is that the em ployer have a reasonable doubt of the union s ma jority status based on objective considerations that would be sufficient for a lawful withdrawal of rec ognition See e g Thomas Industries 255 NLRB 646 647 (1981) Montgomery Ward & Co 210 NLRB 717 (1974) 6 The Respondents asserted ob Â° Accordingly we correct the judge s statement of the law that such presumption is almost conclusive 8 We note that three Federal circuit courts have rejected the Board s precondition for a lawful poll holding instead that an employer may poll its employees to determine their union sentiment if the employer has sub stantial objective evidence of a loss of union support even if that evi dence is insufficient in itself to justify withdrawal of recognition Ming tree Restaurant v NLRB 736 F 2d 1295 (9th Cir 1984) Thomas Indus tries v NLRB 687 F 2d 863 (6th Cir 1982) denying enf 255 NLRB 646 (1981) NLRB Y A W Thompson Inc 651 F 2d 1141 (5th Cir 1981) We find it unnecessary in this case to reexamine the Board s polling standard because as set forth below the Respondents bases for conduct 105 jective considerations providing the grounds for its doubt of the Teamsters majority support and its decision to conduct the poll are first the hiring of two driver-William Moss and Gerald Gillette-to replace unit employees Little and Borreggine and the replacements act of crossing the Plumbers picket line to report to work 7 and second replace ment driver Moss statements critical of those man ning the picket line 8 Regarding the first factor we stated in Station KKHI supra that the hiring of permanent re placements who cross a picket line in itself does not support an inference that the replacements re pudiate the Union as collective bargaining repre sentative 284 NLRB 1339 1344 We stated fur ther that we would not apply any presumptions concerning the replacement employees union senti ments but would require in each case more evi dence establishing a lack of union support on the replacements part, in weighing the sufficiency of the employers showing of reasonable doubt Id at 1344 See also Curtin Matheson Scientific 287 NLRB 352 (1987) Accordingly the Respondent s hiring of Moss and Gillette in itself establishes nothing with respect to their attitudes concerning representation by the Teamsters The mere fact that they crossed a picket line also has no signifi cance per se and this is especially true here be cause the picketing was conducted by the Plumb ers which was not the representative of the unit employees here in question Regarding the Respondents second factor the record establishes that replacement driver Moss criticized the behavior of some of the Plumbers pickets on the picket line Such comments even if made with regard to an employees bargaining rep resentative, do not constitute a repudiation of the collective bargaining representative See e g NLRB v Windham Memorial Hospital 577 F 2d 805 814 (2d Cir 1978) Curtin Matheson supra at 351 Again in this case evidence of repudiation is particularly lacking because the pickets at whom ing the poll of replacement employees were insufficient under either the Board s or these courts standard Â° The record is unclear and no issue has been raised concerning wheth er Moss and Gillette were hired as permanent replacements For purposes of this analysis only we will assume without finding that they were in fact permanent replacements 8 As another element in its reasonable doubt defense the Respondent contends that employees Little and Borreggine took substantially equiva lent employment elsewhere prior to the poll thus severing their employ ment relationship with the Respondent We need consider this issue no further than to note that the Respondent made no showing that it knew about and relied on this consideration in reaching its doubt of the Teamsters majority at the time of the poll and the subsequent withdraw al of recognition Accordingly this contention carries no weight in our analysis See e g Orion Corp 210 NLRB 633 634 (1974) enfd 515 F 2d 81 (7th Cir 1975) 106 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Moss comments were directed were Plumbers there were no Teamsters pickets 9 The foregoing factors relied on by the Respond ent are insufficient to constitute objective consider ations that would support a reasonable doubt of the Teamsters majority status and are also insufficient to meet the somewhat less stringent standard that some courts would apply in determining whether an employer is warranted in conducting a poll of employee sympathies (see fn 6, above) Nothing in the unit employees conduct gave any substantial indication about their feelings about being repre sented by the Teamsters in collective bargaining Accordingly the Respondents polling of its re placement drivers violated Section 8(a)(1) See e g Mid Continent Refrigerated Service Co , 228 NLRB 917 (1977) In defending its subsequent withdrawal of recog nition of the Teamsters the Respondent relies on the same purported reasonable doubt factors that supported the poll and on the results of the poll itself The hiring of the replacement drivers and Moss comments are insufficient in this regard for the same reasons that they were insufficient to jus tify the poll i e these factors provided no objet tive basis for a lawful withdrawal of recognition In addition, the Respondent cannot rely on the re sults of the poll as an objective consideration be cause the poll itself was an unfair labor practice establishing an unlawful context for a withdrawal of recognition See e g Guerdon Industries supra 218 NLRB at 659 661 See also Montgomery Ward supra, 210 NLRB at 717 In light of these consider ations the Respondents withdrawal of recognition violated Section 8(a)(5) and, (1) 10 2 In view of the unfair labor practices above, committed subsequent to the January 15 1987 set tlement agreement, we agree with the judge that the Regional Director properly set the settlement aside Accordingly we proceed to a consideration of the Respondents presettlement conduct alleged as unlawful See e g Cambridge Contracting 259 NLRB 1374 1381 (1982), Interstate Paper Supply Co 251 NLRB 1423 fn 9 (1980) 9 We also note that in testimony credited by the judge Moss specifi tally denied making any statements that would indicate a rejection of the Teamsters as his bargaining representative 10 In view of our disposition above we find it unnecessary to pass on other aspects of the Respondents poll including whether the ballot ques tion- Do you consider Teamsters Local 312 to be your collective bar gaining representative''-would tend to elicit an inaccurate and unreli able expression of employee sentiment as found by the judge We also note that there are outstanding questions unnecessary for us to resolve here concerning whether three employees-Moss Gillette and Collins- are properly in the drivers unit Moss and Gillette may have been only temporary replacements and Collins had been working as a warehouse man Both Gillette and Collins voted in the poll as drivers with Collins supposedly substituting for Moss who was ill on the day the poll was taken We affirm the judge s findings and conclusions as set forth in his decision that the Respondent through Facility Manager Ezzo bypassed the Teamsters as the collective bargaining representa tive of the driver employees and bargained directly with Borreggine and Little concerning wages on July 2 1986 in violation of Section 8(a)(5) and (1) 11 We also adopt his conclusion that Ezzo made a threat on July 2 in violation of Section 8(a)(1) but we do so on the following grounds We focus on the second employee meeting held by Ezzo on July 2 Present were Ezzo driver Borreg gine who was also the bargaining unit s shop stew and and warehouse employee William Szczepanski In addition to making a new wage offer as he had at the first meeting Ezzo made certain statements to Borreggine concerning the possibility that the Teamsters might resort to an economic strike Ac cording to Borreggine s uncontradicted testimony which was substantially corroborated by Szcze panski Ezzo told him that if the employees went on strike they would be permanently replaced and if that occurred they would no longer have jobs with the Respondent 12 We have found that such statements go beyond a lawful explanation of an employers right to replace employees permanently during an economic strike and beyond a lawful though incomplete statement of striking employ ees Laidlaw rights 13 Ezzo s remarks made to one who was both an employee and a representative of the Union clearly indicated that unit employees would lose their jobs if they participated in an eco nomic strike The statement constituted a threat to sever the employment relationship should the em ployees exercise rights protected by Section 7 Thus, it violated Section 8(a)(1) as alleged in the complaint See e g Emerson Electric Co 287 NLRB 1065, 1066 (1988) Alpha Cellulose Corp 265 NLRB 177, 178 (1982) enfd mem 718 F 2d 1088 (4th Cir 1983) Webel Feed Mills 217 NLRB 815 818 (1975) Cf John W Galbreath & Co 288 NLRB (1988) Eagle Comtronics 263 NLRB 515 516 (1982) 14 The judge also found that Ezzo uttered a similar urlawful threat at the first employee meeting on July 2 We find it unnecessary to consider the judges findings in this regard as any conclusions we might draw would be duplicative of the viola tion found above and would not affect the remedy 11 We find it unnecessary to rely on the judge s finding that Ezzo s wage offer which was clearly distinct from the previous wage proposal to the Teamsters was made on a take it -ot leave us basis 12 The record does not support the judge s finding that this statement was made without reference to a strike or strike replacements 12 Laidlaw Corp 171 NLRB 1366 (1968) enfd 414 F 2d 99 (7th Cir 1969) cert denied 397 U S 920 (1969) 14 Member Johansen concurs HAJOCA CORP 107 AMENDED CONCLUSIONS OF LAW In the judge s Conclusion of Law 5 insert and (1) after the phrase Section 8(a)(5) delete Con clusion of Law 6 and replace it with the following 6 By threatening employees with the loss of their jobs if they engaged in protected concerted activities, and by conducting a poll of employees concerning their support of the Union without the prerequisite reasonable doubt of the Union s major ity status as the employees collective bargaining representative the Respondent has violated Section 8(a)(1) of the Act AMENDED REMEDY The judge granted the General Counsel s routine request for a visitatonal clause as part of the remedy for the Respondents unfair labor practices In the circumstances of this case we find it unnec essary to include such a clause See Cherokee Marine Terminal 287 NLRB 1080 (1988) There fore we will modify the judge s recommended Order accordingly ORDER The National Labor Relations Board orders that the Respondent Haloca Corporation Chester, Pennsylvania its officers agents successors and assigns shall 1 Cease and desist from (a) Refusing to bargain in good faith with Truck Drivers and Helpers Teamsters Local Union No 312, as the exclusive collective bargaining repre sentative of its truckdnver employees employed at its Chester Pennsylvania facility (b) Bypassing the Union and negotiating directly with bargaining unit employees concerning wages, hours and terms and conditions of employment (c) Withdrawing recognition from Truck Drivers and Helpers Teamsters Local Union No 312 as the exclusive collective bargaining representative of truckdriver employees employed at its Chester Pennsylvania facility unless it can demonstrate by convincing objective evidence that the Union no longer represents a majority of the employees in that bargaining unit or that the Respondent has a reasonably grounded good faith doubt that the Union no longer represents a majority of the em ployees in that bargaining unit (d) Threatening employees with the loss of their jobs if they should engage in protected concerted activities (e) Polling employees concerning their support of the Union without the prerequisite reasonable doubt of the Union s majority status as the employ ees collective bargaining representative (f) In any other manner interfering with restrain ing, 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) Recognize and bargain collectively and in good faith with Truck Drivers and Helpers Team sters Local Union No 312 as the exclusive collec tive bargaining representative of its truckdriver em ployees employed at its Chester Pennsylvania fa cility and if an understanding is reached embody the understanding in a signed agreement (b) Post at its Chester Pennsylvania facility copies of the attached notice marked Appen dix 15 Copies of the notice on forms provided by the Regional Director for Region 4 after being signed by the Respondents authorized representa tive shall be posted by the Respondent immediate ly upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees 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 Respondent has taken to comply 15 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 Section 7 of the Act gives employees these rights To organize To form join or assist any union To bargain collectively through represents 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 bypass Truck Drivers and Help ers Teamsters Local Union No 312 by negotiat 108 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ing directly with employees concerning wages hours and terms and conditions of employment in the truckdriver bargaining unit at our Chester Pennsylvania facility WE WILL NOT withdraw recognition from Truck Drivers and Helpers Teamsters Local Union No 312 as the exclusive collective bargaining repre sentative of truckdnver employees employed at our Chester Pennsylvania facility unless we can dem onstrate by convincing objective evidence that the Union no longer represents a majority of the em ployees in that bargaining unit or we can demon strate a reasonably grounded good faith doubt that the Union no longer represents a majority of the employees in that bargaining unit WE WILL NOT poll employees concerning their support of the Union without the prerequisite rea sonable doubt of the Union s majority status as the employees collective bargaining representative WE WILL NOT threaten employees with the loss of their jobs if they should engage in protected concerted activities WE WILL NOT in any other manner interfere with restrain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act WE WILL recognize and bargain collectively and in good faith with Truck Drivers and Helpers Teamsters Local Union No 312 as the exclusive collective bargaining representative of our truck driver employees employed at the Chester Penn Sylvania facility HAJOCA CORPORATION Judith I Katz Esq for the General Counsel Jeffrey A Smith and Walter H Flamm Jr Esqs of Philadelphia Pennsylvania for the Respondent Mark P Muller Esq of Philadelphia Pennsylvania for the Charging Party DECISION FINDINGS OF FACT STATEMENT OF THE CASE WALTER H MALONEY JR Administrative Law Judge This case was heard before me at Philadelphia Pennsylvania on a consolidated unfair labor practice complaint i issued by the Regional Director for Region i The principal docket entries in this case are as follows charge filed by Truck Drivers and Helpers Teamsters Local Union No 312 (Team stern or Local 312) against the Respondent on July 10 1986 in Case 4- CA-15951 and amended charge filed on July 21 1986 charge filed by Local 312 against Respondent on February 17 1987 in Case 4-CA- 16397 consolidated complaint issued by the Regional Director on May 29 1987 Respondents answer filed on June 9 1987 hearing held in Philadelphia Pennsylvania on October 15 1987 briefs filed with me by the General Counsel and the Respondent on November 30 1987 4 which alleges that Respondent Hajoca Corporation2 violated Section 8(a)(1) and (5) of the Act More particu larly the consolidated complaint alleges that the Re spondent threatened employees with loss of employment if their union went on strike dealt directly with its bar gaining unit employees by discussing contract proposals which had not been presented to official union represent atives and unlawfully interrogated employees by con ducting a poll concerning their union sympathies and de sires The consolidated complaint further alleges that the Respondent unlawfully withdrew recognition from Local 312 as the representative of its truckdnver employees The earlier allegations in the consolidated complaint were the subject of a settlement agreement approved by the Regional Director on January 15 1987 In order to prosecute these earlier violations the Regional Director set aside this settlement agreement on the basis of assert ed postsettlement misconduct and proceeded to issue the instant complaint which is directed at both presettlement and postsettlement conduct Respondent denies the commission of any unfair labor practices either before or after the execution of the set tlement agreement and denies that the Regional Director had any basis for setting that agreement aside Respond ent asserts that the polling of unit employees which took place on February 9 1987 was done in accordance with Board rules and case precedents and that the withdrawal of recognition from Teamsters Local 312 which admit tedly took place on February 11 1987 following the polling of employees was based on a freely expressed in dication of employee sentiment that indicated that Local 312 no longer represented these employees On these contentions the issues were framed 3 I THE ALLEGED UNFAIR LABOR PRACTICES Respondent operates approximately 76 distribution centers throughout the United States from which it sells and delivers plumbing and heating fixtures and supplies Its principal customers are firms engaged in the industrial and commercial sectors of the plumbing and heating business One such outlet is located at Chester Pennsyl vania from which it services the Philadelphia metropoli tan area Until the events in this case arose Respondent employed about six warehousemen and two drivers at the Chester location The warehousemen will presum ably continue to be represented by Local 690 of the Plumbers Union The drivers were represented by Team sters Local 312 Until 1986 the Respondent bargained with the Plumbers Union concerning its inside employees through a trade association known as the Philadelphia 2 Respondent admits and I find that it is a Maine corporation which is engaged in the wholesale distribution of plumbing and heating supplies throughout the United States It maintains a place of business at Chester Pennsylvania During the past year in the course and conduct of this business Respondent has derived gross revenues in excess of $500 000 and has purchased and received goods at its Chester Pennsylvania, place of business directly from points and places located outside the Common wealth of Pennsylvania valued in excess of $50 000 Accordingly the Re spondent is an employer engaged in commerce within the meaning of Sec 2(2) (6) and (7) of the Act Local 312 is a labor organization within the meaning of Sec 2(5) of the Act 3 Certain errors in the transcript have been noted and corrected HAJOCA CORP 109 Area Bargaining Group Any contracts concluded with the Teamsters were directly and individually negotiated Both the Plumbers and Teamsters contracts expired on June 30 1986 Because of problems within the industry the Respondent decided to negotiate an individual con tract with the Plumbers in 1986 and had given timely notice that it was withdrawing from the multiemployer association of heating suppliers The opening of negotiations between the Respondent and the Charging Party took place at the Teamsters Local 312 office in Chester on May 28 1986 It was an informal discussion because the Teamsters shop steward was not present and it is union policy to have a unit em ployee present during formal negotiations whenever pos sible Timothy R Lehman Local 312 s secretary treasur er was present for the Union while Eugene M Strine the Respondents northeast regional manager and Vin cent K Ezzo the distribution center manager were present on behalf of the Respondent Strine presented Lehman with an outline of proposals for a new contract containing a cover memo which read Conditions at our Chester facility dictate to us that we must get our labor expenses into line Due to the poor conditions in the industrial pipe valve and fitting areas and in general the chemical refin ery and basic customer base the attached proposal is mandatory The principal feature of the proposal was that the Union agree to a 30 cent an hour cut in the existing basic wage rate during the first year of the contract that the rate be brought up to the current rate during the second year of the contract and that it be increased by 30 cents during the third year The proposal eliminating various existing fringe benefits also called for no increase in con tributions to Teamsters health welfare and pension funds a situation that would mean a reduction in cover age by those funds because their premiums were sched uled to be increased during the coming years Lehman was understandably unhappy about Strine s proposals He told Strine and Ezzo that he did not want to get into formal negotiations at that time because the shop steward Victor Borreggine was not present but he agreed to meet with them on June 12 for a formal bar gaining session The June 12 meeting took place as scheduled At this meeting Lehman furnished the Company with an outline of union proposals which included a $2 an hour increase during each of the 3 years of a proposed agreement He cautioned company negotiators not to get sticker shock and admitted that some of his proposals were a little heavy However he observed that the company proposals were also on the heavy side Lehman flatly rejected a 30 cent cut in the hourly rate stating that the Teamsters did not engage in give backs and also in formed Strine that the Company s health and welfare proposals were unacceptable because they would also amount to give backs in light of scheduled increases in fund premiums Lehman noted that in previous negotiat ing years the Teamsters had generally followed the wage pattern set by the Company and the plumbing sup pliers association with the Plumbers and indicated that he might be willing to follow this practice again They all agreed to another meeting on June 19 The June 19 meeting was canceled at the Company s request on the basis that company representatives were tied up in negotiations with the Plumbers The parties agreed to meet on Monday June 30 at 9 am which was the expiration date of the existing contract I credit Lehman s testimony to the effect that shortly before the meeting was scheduled to begin Stnne phoned Lehman at the latter s office and called the meeting off using as an excuse that he was tied up with the Plumbers 4 Lehman replied that Strine s action put him in a heck of a position because the contract was scheduled to expire at midnight and we have to have something as the basis for continuing to work They agreed that the driv ers would continue to work on a day to day basis under an extension of the existing contract and that any con tract terms eventually agreed on would be retroactive to July 1 Strine said that he did not know when he would finish negotiations with the Plumbers but promised to get in touch with Lehman when the Plumbers negotiations were concluded At or about this time the association from which the Respondent had withdrawn concluded an agreement with Plumbers Local 690 for a 3 year con tract providing for 5 cent an hour wage increases in each of the 3 years This settlement became a matter of common knowledge among the Respondents employees On July 2 Strine phoned Ezzo and told him to hold a meeting of company employees to explain the Compa ny s position Such a meeting was held at the distribu tion center at the end of the day and included both a driver and several warehousemen Teamsters Shop Stew and Borreggine was absent because he had not returned to the plant from making a delivery so a separate discus sion was held with him on his arrival I credit the cor roborated testimony of several witnesses in attendance at the first meeting that Ezzo proposed that both the Plumbers and the Teamsters agreed to no raise during the first year of a contract and to wage reopeners at the end of the first and second years He also mentioned something about profit sharing The proposal was not well received One employee named Weiss wanted to know why the other employers in the industry could pay 5 5 5 during the next 3 years and Hajoca could not Ezzo replied that the Respondent had dropped out of the em ployers association that it was Hajoca Chester and it had to live or die on its own Another employee com plained that this matter should not have been taken up directly with employees and that union representatives should have been present Ezzo responded to employee objections by stating that the Respondent had apphca tions on file from other individuals and that if the em ployees did not agree to the offer they would be re placed with nonunion applicants When Borreggine returned to the plant Ezzo met with him in the presence of William Szczepanski who despite his title as warehouse supervisor was a member of the 4 Part of Strine s testimony on this point conflicted with statements made in an affidavit submitted to the U S district court in pending hhga tion between these parties 110 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Plumbers bargaining unit Ezzo told Borreggine essen tially the same thing he told other employees earlier in the afternoon He said that the Company was not making enough of a profit to be able to give employees a raise and that they wanted to keep wages as they were for a year and then negotiate at the end of a year for an in crease Borreggine asked Ezzo why they could not nego tiate at this time for 2 years rather than wait to do so till the end of the first year He also asked Ezzo if he had talked to the Union about this proposal Ezzo replied that Strine was supposed to have taken care of contact ing the Union Borreggine told Ezzo that he had no au thonty to act on behalf of the Union and he would rather wait and see what Stone and the Union agreed on Ezzo then told Borreggine that if employees did not agree to the company proposal they would no longer have jobs and would be replaced adding that the Com pany had people lined up waiting to take their jobs Later on that evening Borreggine phoned Lehman and reported these events to him The Company and the Plumbers scheduled a negotiat ing session at the plant on the morning of July 9 I credit Lehman s testimony that he was unaware of this meeting until he was informed by Plumbers Business Agent Jack Convery that it was going to take place On receiving this information he decided to go to the plant to find out what was happening The scheduled meeting between the Plumbers and the Company began in Lehman s absence After it was in progress for a few minutes he was invited to attend and he did At this time company representatives announced that they were standing pat for a 1 year extension of both contracts with no increases Lehman said he knew nothing about a 1 year extension and that his only agree ment with the Respondent was a day to day extension of the recently expired contract Strine told Lehman that the pose ion just announced came from upper level man agement of the Respondent Lehman countered by saying that he supposed that his $2 an hour increase proposal over a 3 year period of time was out of the question and asked the Company if they had anything else to offer Stone and Ezzo caucused When they returned Stone told both Plumbers and Teamsters negotiators that the Chester facility was earn ing a 17 percent profit and that the new owners wanted a 16 percent return on their money Lehman observed that they were not doing too badly Strine and Ezzo cau cured again and when they returned they offered both unions a 3 percent increase in wages in each of the 3 years 5 Lehman asked if this was Stone s final offer Strine did not respond At that point the meeting broke up without an agreement On the following morning the Plumbers posted a picket line in front of the plant Although the line has not been maintained all day everyday since that time the Plumbers are still on strike and have not achieved any contract with the Respondent The two Teamsters repre sented employees respected the Plumbers picket line and thereafter did not report to work While the two drivers were present from time to time at the line during the first 3 or 4 weeks of the strike they never picketed nor did any other Teamsters 6 At the present time all Plumbers represented warehou semen and Teamsters represented drivers who worked for the Respondent have been replaced The Respondent is currently operating with a slightly smaller complement of employees than before the strike Immediately after the stake began Lehman and Company attorneys Walter H Flamm Jr and Jeffrey Smith engaged in an exchange of telegrams that essentially accomplished nothing either in settling the strike or concluding a contract On July 10 Lehman sent a telegram saying that Local 312 was not on strike was working under the terms of the recently expired contract and was willing to continue to negoti ate for a new contract Flamm replied by a telegram which stated that work was available for Teamsters rep resented employees under the same terms that prevailed on July 9 He also stated that the company offer of July 9 to the Teamsters was a final offer and that the Compa ny would assume that the offer was rejected unless ac ceptance was made before the close of business on July 14 Lehman telegraphed Flamm the following day to say that the Union would not present to its members for rati fication any final offer from Hajoca that was not in writ ing dated and signed by the Employer and noted that it had received nothing in writing from Hajoca that would meet these requirements Lehman further informed Flamm that he would be in a position to conduct a ratifi cation vote on July 17 if he received a written final offer meeting Teamsters requirements before that date On July 14 Ezzo telegraphed the Teamsters to state that any offers made by Hajoca previous to that date were with drawn that work was available for drivers and that if they did not report to work they would be subject to replacement Following the filing of a charge in the first of these two consolidated cases the parties entered into a settle ment agreement approved by the Regional Director on January 15 1987 in which the Respondent agreed among other things to refrain from dealing directly with Teamsters represented employees and to fulfill our bar gaining obligations under Section 8(a)(5) of the Act with respect to Teamsters Local 312 On January 29 1987 Teamsters Local 312 Attorney Mark P Muller wrote Flamm a letter following up on a previous phone call in which he requested a date to commence collective bar gaining He requested a meeting so that the Company could present a formal offer that union representatives could take back to the membership for possible ratifica tion No such meeting ever took place On February 9 1987 Emily A Interrante a paralegal employee of the law firm representing the Respondent visited the Respondent s premises and conducted a poll of employees in the plant manager s office The employ ees participating in this poll were summoned to the 6 The Teamsters maintain that they have never been on stoke This contention is largely a question of semantics and has been raised to pre serve a union position that is currently being advanced in other litigation 5 A 3 percent increase in the Teamsters contract would work out to an Whether or not the Teamsters have formally been on strike is not a mate additional 30 cents an hour each year rial question in this case and I make no finding on this point HAJOCA CORP 111 office Ezzo privately pointed out to Interrante the driver bargaining unit employees as the black employees and the warehouse unit employees as the white employ ees and then left the office A total of four employees were present two in each unit Interrante introduced herself and told them that she had been hired by Hajoca to determine whether a majority of them are represent ed by unions She stated that the poll would be taken in accordance with standards established by the National Labor Relations Board She assured employees that they did not have to participate if they did not want to and would receive no benefit from participating She also as sured them that their response would not be disclosed to Hajoca representatives unless required by law adding that there would be no reprisal or punishment if they did not participate After delivering these introductory remarks which were tape recorded she passed out individual written ballots The two drivers were given a slip of paper which said Do you consider Teamsters Local 312 to be your collective bargaining representative9 The paper carried lines on which the employees could mark either yes or no Identical slips of paper were given to the two warehousemen except that Plumbers Local 690 not Teamsters Local 312 was the union designated The bal lots were marked by the employees as they sat in the room and were folded and returned to Interrante When she returned to her office she unfolded the slips of paper and noted the results All were marked no On Febru ary 11 Flamm wrote a letter to Muller in which he stated that it is the position of the Company that the Union (Teamsters Local 312) does not represert an un coerced majority of the Company s employees in a unit appropriate for collective bargaining Therefore it cannot lawfully recognize or bargain with the Union Shortly thereafter the second charge in these consolidated cases was filed against the Respondent by Local 312 On May 28 1987 the Regional Director notified all parties to this proceeding that he was setting the January 15 settlement agreement aside and was issuing an unfair labor practice complaint based on charges filed both before and after the execution of that agreement C Analysis and Conclusions It is well settled that presettlement activity of a re spondent may be examined and relied on in assessing its conduct following the execution of a settlement agree ment to determine if any postsettlement conduct amounts to an unfair labor practice Laborers Local 185 (Josephs Landscaping) 154 NLRB 1384 Lawyers Publishing Co 273 NLRB 129 1984 Middle Earth Graphics 283 NLRB 1049 (1987) To warrant setting aside a settlement agree ment the General Counsel must establish that following the execution of the agreement the Respondent either failed to comply with its specific terms or that it engaged in subsequent unfair labor practices If the General Counsel is successful in establishing either or both of these facts then the settlement agreement may be treated as if it had not been executed and the presettlement con duct of the respondent as well as its postsettlement con duct may be prosecuted as if the settlement had never taken place The first item of presettlement activity prosecuted by the General Counsel in this proceeding is an alleged threat made by Ezzo to unit employees that they would be replaced if their unions went on strike In fact Ezzo told employees on July 2 not once but twice that if they did not accept the proposal made to them on that occasion they would be replaced He made no mention either of a strike or of permanent strike replacements Ezzo said both to the group which met with him toward the end of the day and to Borreggine when the latter re turned from a delivery run that the Company had lined up other employees to take their jobs if they did not accept the Respondents new wage offer This is a clear threat to interfere with rights protected by Section 7 of the Act and is a violation of Section 8(a)(1) Since at least 1944 it has been well settled that an em ployer violates the Act if it engages in direct negotia tions with its employees concerning wages hours and terms and conditions of employment when they are rep resented for purposes of collective bargaining by a labor organization Medo Photo Supply Corp v NLRB 321 U S 678 (1944) In this case Ezzo at Stnne s request spoke with employees on July 2 and presented them with a company proposal that was something more than just an explanation of the Company s position I have found as a fact based on corroborated testimony that Ezzo proposed to employees a wage freeze during the first year of a new contract and wage reopeners at the end of the first and second years covering in each in stance the ensuing 12 months This proposal was mark edly different from the one which Stnne and Ezzo had made to union negotiators on June 12 On that occasion as well as at a preliminary meeting in late May company negotiators proposed a 30 cent cut during the first year panty with the existing wage rate during the second year and a 30 cent increase for the third year The two proposals were totally inconsistent and at an obvious variance with each other so the Respondent can take no comfort from a contention that it had the right to coin municate information to unit members concerning its bar gaining position with their representative When Ezzo told employees during these meetings that they would be replaced if they did not accept this offer he disposed of any contention which might be made that he was merely explaining a company position He was making an offer and he was making it on a take it or leave us basis In so doing the Respondent violated its duty to bargain collectively in good faith with Teamsters Local 312 required by Section 8(a)(1) and (5) of the Act Shortly after the strike began the Respondent began to hire replacements While interviewing truckdriver ap plicant Gerald Gillette Stnne told him that he would not be represented by a union as long as he worked for Hajoca because the union was on strike He also asked Gillette if he was or had been a member of any labor or ganization Gillette replied that he had been a Local 312 member in his previous job adding that he was a lifetime member He also told Strine that he did not care if Local 312 did or did not represent him while he was working at Hajoca Gillette was hired by the Respondent late in July 1986 and quit in mid September While this event 112 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD was not prosecuted by the General Counsel as a separate violation of the Act the statements made and questions asked by Strine on the occasion of the Gillette interview are revealing of the attitude and motivation of the Re spondent throughout the period of time covered by the allegations in the consolidated complaint See NLRB v Antonino s Restaurant 648 F 2d 1206 (9th Cir 1981) The settlement agreement approved by the Regional Director on January 15 1987 contained a provision set forth in the attached notice that the Respondent would fulfill our bargaining obligations under Section 8(a)(5) of the Act with respect to Teamsters Local 312 In de termining whether the Respondent is guilty of postsettle ment misconduct the Respondent seeks some justifica tion for its actions from the language just quoted which it wrote into the agreement arguing that it never flatly agreed to recognize and bargain with Local 312 but merely agreed to fulfill our bargaining obligation under Section 8(a)(5) of the Act In fact the Respondent did not bargain with Local 312 after the settlement was exe cuted If the evasive language relied on by the Respond ent means anything at all it indicates that the Respond ent harbored a real but unexpressed intention on entering into the settlement agreement of ridding itself of Local 312 as the bargaining representative for its truckdrivers an act which it accomplished within a month from the date of the agreement Such deviousness suggests that the settlement agreement itself was concluded in bad faith and is further evidence of the lack of good faith that was exhibited a month later when the Respondent formally withdrew recognition from Local 312 Since at least 1951 an incumbent union has been enti tied to rely upon an almost conclusive presumption that its majority status as bargaining representative continues throughout the term of the contract and that it enjoys a rebuttable presumption that its status continues thereaf ter Celanese Corp 95 NLRB 664 672 (1951) The pre sumption which lingers on after the contract expires can be rebutted by convincing proof that in fact the incum bent union no longer enjoys majority support of the members of the bargaining unit or that the employer in good faith reasonably grounded on objective evidence believes that the incumbent union no longer enjoys ma jonty support among members of the bargaining unit KBMS Inc 278 NLRB 826 846 (1986) and cases cited The presumption of continuing majority status may not be rebutted in the context of employer unfair labor prac tices The presumption of continuing majority status exists irrespective of whether the union has achieved ma ,jonty status through a Board certification or by volun tary recognition on the part of the employer Eastern Washington Distributing Co 216 NLRB 1149 (1975) NLRB v Frick Co 423 F 2d 1327 (3d Cir 1970) The asserted good faith belief of an employer who withdraws recognition from an incumbent union may not be founded on any presumption that employees who have crossed a picket line have abandoned support for a union which is on strike Garrett Railroad Car v NLRB 683 F 2d 731 (3d Cir 1982) Contrary to some earlier cases the Board recently held that no presumption of any kind can arise from the fact that replacement em ployees in any given number have reported to work behind a picket line Station KKHI 284 NLRB 1339 (1987) The fact that a majority of the members of a bar gaining unit are not actual members in good standing of the union that serves as their bargaining agent does not indicate the kind of lack of support that will justify a good faith doubt of its majority status Nor is criticism leveled at the union s activities or policies by members of the bargaining unit the equivalent of a repudiation of that union as bargaining agent Burns Security Services 225 NLRB 271 (1976) Odd Fellows Rebekah Home 233 NLRB 143 (1977) KBMS Inc supra NLRB v Cornell of California 577 F 2d 513 (9th Cir 1978) The fact that the employer has experienced a high turnover of em ployees that the union has not recently filed any gnev ances on behalf of unit employees that the union has failed to file with the Department of Labor the annual reports required by the Labor Management Reporting and Disclosure Act of 1959 or that some employees have evidenced dislike for agency shop provisions in a contract may not form the foundation of a good faith doubt warranting withdrawal of recognition Burns Secu rely Services supra See also Robertshaw Controls Co 263 NLRB 958 (1982) Gregory s Inc 242 NLRB 644 (1979) Neither the failure to file checkoff authorizations nor union violence which has ended several months before recognition was extended may form any basis for with drawing such recognition at the end of a contract term Petroleum Contractors 250 NLRB 604 (1980) NLRB v Pennco Inc 684 F 2d 340 (6th Cir 1982) On February 9 the Respondent polled some of its em ployees concerning their continued representation by both incumbent unions Such polling is presumptively it legal and must be justified by an employer engaged in such conduct by demonstrating compliance with certain standards set forth in Struksnes Construction Co 165 NLRB 1062 (1967) Those standards are 1 The purpose of the poll must be to determine a claim of majority status by a labor organization 2 This purpose must be communicated to the employees who are being polled 3 Employees involved in the poll must be given assurance against employer reprisal for any answers supplied in the course of the poll 4 Polling must be done by secret ballot 5 Polling must not be conducted in the context of unfair labor practices or any kind of coercive at mosphere Normally polling that attempts to comply with the Struksnes standards takes place in an unrepresented bar gaining unit and occurs when an outside union is at tempting to gain initial recognition Such is not the case here Local 312 is an incumbent union and asserted no claim to the Respondent of majority status in January or February 1987 which would warrant polling a require ment set forth in item 1 of the Struksnes rule unless the Union s demand to resume bargaining expressed in Mull er s January 29 letter may be deemed to be an implied claim of majority status Only rarely have Struksnes standards come into play in an incumbent union situa HAJOCA CORP tion 7 The only situation I have been able to find in which an employee poll afforded an employer with an incumbent union any justification for rebutting a pre sumption of continued majority status was Boaz Carpet Yarns 280 NLRB 440 (1986) in which an employer took such a poll after receiving a petition signed by a majon ty of bargaining unit employees which stated that the signers no longer wished to be represented by their in cumbent union No such petition was presented to the Respondent here In Montgomery Ward & Co 210 NLRB 717 (1974) the Board held that an employer was not legally entitled to seek to undercut a continuing ma jonty status of the Union by itself initiating a poll of em ployee sentiment This is exactly what the Respondent did in this case Cf NLRB v A W Thompson Inc 651 F 2d 1141 (5th Cir 1981) Mingtree Restaurant v NLRB 736 F 2d 1295 (9th Cir 1984) The fifth element of the Struksnes requirements is simi lar to the one laid down by Celanese supra and the line of cases following thereafter In order to be lawful an employee poll must be taken in an atmosphere free and clear of unfair labor practices and employer coercion In light of the unfair labor practices committed by the Re spondent and found here the February 9 poll cannot be justified by any reliance on either Struksnes or Celanese One further aspect of this poll should be addressed Employees who participated in the polling-and not all did-were asked to indicate if they considered Teamsters Local 312 (or Plumbers Local 690) to be their collective bargaining representative This question is markedly dif ferent from the one used by the Board in conducting representation elections In a Board election employees are asked if they want a named union to be their bargain ing representative not whether they consider it to be such There is an obvious and significant difference be tween wanting (or not wanting) a union to represent you and an assessment of fact whether or not that union is currently engaged in acting on your behalf The answer to the first question evidences a desire or preference the answer to the latter evidences only an employees eval uation of a union s current collective bargaining activities or status The answers given both by employees who do-and who do not-desire union representation could be markedly different depending on which question was asked Accordingly I would fault this particular poll on the basis of the manner in which the question of employ ee preference was phrased on the ballot as well as the other factors that cast doubt on its validity and would regard it as an inaccurate and unreliable expression of employee sentiment on that basis alone On February 11 1987 the Respondent withdrew rec ognition from Local 312 as the representative of truck drivers I conclude that it had no good faith doubt grounded on objective evidence to question the Union s continued majority status at that time Respondent had committed several serious unfair labor practices that had the effect of undermining the Union s majority status It told at least one replacement applicant that it was going 7 See Burns Security Services supra Eastern Washington Distributing Co supra Mid Continent Refrigerated Service Co 228 NLRB 917 (1977) Thomas Industries 255 NLRB 646 (1981) 113 to operate its plant on a nonunion basis because of the stake The poll that it took was seriously flawed and the only other objective fact it could rely on were some statements by one of its replacement drivers a former member of Local 312 made to his brother in law that he did not know why people who were strangers to the Company would be picketing and that they were stupid to be picketing while others inside were working Criti cizing Plumbers pickets is not the equivalent of rejecting the Teamsters as a bargaining agent Moss testified credi bly that he never said to anyone that he did not want the Teamsters to represent him These statements were woe fully insufficient to permit the Employer to form the basis of any good faith doubt of continued majority status As noted above the fact that employees crossed the picket line to go to work does not give rise to an in ference that they do or do not reject representation by the picketing union In this instance the Teamsters whose status is in question here were not engaged in any picketing this effort having been maintained exclusively by another labor organization Accordingly when the Respondent withdrew recognition from Teamsters Local 312 as the exclusive collective bargaining representative of its truckdriver employees it violated Section 8(a)(1) and (5) of the Act In light of the fact that these viola tions of the Act occurred after the approval by the Re gional Director of a settlement agreement on January 15 1987 I conclude that the Respondent violated that agree ment by the commission of subsequent unfair labor prac tices and that the Regional Director was fully justified in setting the agreement aside and in prosecuting unfair labor practices which occurred prior to the execution thereof On the foregoing findings of fact and on the entire record considered as a whole I make the following CONCLUSIONS OF LAW 1 Respondent Hajoca Corporation is an employer en gaged in commerce within the meaning of Section 2(2) of the Act 2 Truck Drivers and Helpers Teamsters Local Union No 312 is a labor organization within the meaning of the Act 3 All regular full time and part time truck drivers em ployed by the Respondent at its Chester Pennsylvania installation excluding warehousemen office clerical em ployees guards and supervisors as defined in the Act constitute a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act 4 At all times material Truck Drivers and Helpers Teamsters Local Union No 312 has been the exclusive collective bargaining representative of all the employees in the unit found appropriate in paragraph 3 for purposes of collective bargaining within the meaning of Section 9(a) of the Act 5 In bypassing the Union and in negotiating directly with members of the bargaining unit represented by the Union and by withdrawing recognition from the Union and refusing to bargain collectively with it the Respond ent violated Section 8(a)(5) of the Act 114 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 By the acts and conduct set forth above by threat ening to replace employees if they refused to accept its wage proposals and by unlawfully interrogating employ ees by conducting a poll respecting their union status and sympathies the Respondent violated Section 8(a)(1) of the Act 7 The aforesaid unfair labor practices have a close in timate and substantial affect on the free flow of com merce within the meaning of Section 2(6) and (7) of the Act REMEDY Having found that the Respondent has committed van ous unfair labor practices I will recommend to the Board that the Respondent be required to cease and desist therefrom and to take other affirmative actions de signed to effectuate the purposes and policies of the Act Because the violations of the Act found are repeated and pervasive and demonstrate a disposition on the part of this Respondent to behave in disregard of the rights of its employees and the processes of the Board I will rec ommend to the Board a so called broad 8(a)(1) order which is designed to suppress any and all violations of that Section of the Act Hickmott Foods 242 NLRB 1357 (1979) I will also recommend that the Respondent be re quired to bargain collectively with the Union as the ex clusive collective bargaining representative of its truck driver employees and that it be required to post the usual notice advising its employees of their rights and of the results in this case The General Counsel seeks a visita tonal clause permitting discovery under the Federal Rules of Civil Procedure in the event that the Board s order must be enforced by a contempt proceeding in a court of appeals I will recommend such an order [Recommended Order omitted from publication ]