Hohn Industries, Inc.

National Labor Relations Board - Board Decisions

Feb 26, 1987

283 N.L.R.B. 71 (N.L.R.B. 1987)

HOHN INDUSTRIES 71
Hohn Industries , Inc. and Sheet Metal Workers'
International Association Local Union No. 71.
Case 3-CA-13209
26 February 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 13 August 1986 Administrative Law Judge
Thomas R. Wilks issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed an answering brief
to the exceptions.I
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, and
conclusions2 and to adopt the recommended Order
as modified.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Hohn Industries , Inc., Batavia, New
York, its officers, agents, successors , and assigns,
shall take the action set forth in the Order as modi-
fied.
1. Insert the following as paragraph 1(a) and re-
letter the subsequent paragraphs.
"(a) Refusing to bargain with the Sheet Metal
Workers' International ' Association , Local Union
1 We deny the General Counsel's request to strike the arguments set
forth in Respondent's exceptions under Sec. 102 46(b) of the Board's
Rules and Regulations. We also deny the General Counsel's request to
add a visitatorial clause in the judge's recommended Order, since the
General Counsel has failed to demonstrate sufficient grounds for a visita-
tonal clause in this case
2 In adopting the judge's finding that the Respondent violated Sec.
8(a)(5) and (1) by unlawfully withdrawing recognition, we agree with the
judge's finding that the Respondent did not have a sufficient basis for
doubting the Union's majority The Respondent conducted a poll which
failed to conform to the safeguards set forth in Struksnes Construction Co.,
165 NLRB 1062 (1967), for employer-conducted polls The signing of the
petition by the employees was a direct result of the unlawful poll There-
fore, the Respondent was not justified in relying on it as objective evi-
dence of the Union's loss of majority status Absent the 8 April 1986 peti-
tion, the facts of this case present insufficient grounds for the Respondent
to raise a reasonably based doubt as to the Union's majority status The
Respondent thus violated Sec 8(a)(5) and (1) of the Act by withdrawing
recognition of the Union.
We find it unnecessary to pass on the judge's alternative rationale for
finding the violation Chairman Dotson additionally finds it unnecessary
to pass on the judge's discussion of the obligations of an employer who
assumes a business with respect to the incumbent union of the previous
employer, or the judge's discussion of what is required before an employ-
er has sufficient basis for conducting a poll. Member Johansen, who did
not pass on the legality of the employee poll in Boaz Carpet Yarns, 280
NLRB, 40 (1986), agrees that that case is distinguishable.
No. 71, as the exclusive bargaining representative
of the employees in the bargaining unit."
2. Substitute the attached notice for that of the
administrative law judge.
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 representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT refuse to bargain with the Sheet
Metal Workers' International Association, Local
Union No. 71, as the exclusive representative of the
employees in the bargaining unit.
WE WILL NOT coercively poll you about your
desire for representation by Sheet Metal Workers'
International Association Local Union No. 71.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed ' you by Section 7 of
the Act.
WE WILL recognize and, on request, bargain in
good faith 'with the above-named Union regarding
rates of pay, wages, hours of employment, and
other terms and conditions of employment for the
employees'in the appropriate unit and, if an under-
standing is reached, reduce the agreement to writ-
ing and sign it. The appropriate unit is:
All full-time and regular part-time employees
normally employed in the manufacture of the
Hirschman-Pohle line of rooftop ventilators
and employed at our Batavia Industrial Park,
Batavia, New York facility, excluding all other
employeesy, office clerical employees, guards,
and supervisors as defined' in the Act.
HOHN INDUSTRIES, INC.
Michael Cooperman, Esq., for the General Counsel.
Peter J. Spinelli, Esq. (Harris, Beach, Wilcox, Rubin and
Levey), of Rochester, New York, for the Respondent.
283 NLRB No. 13
72 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
DECISION III. THE UNFAIR LABOR PRACTICES
STATEMENT OF THE CASE A. Issues
THOMAS R. WILKS, Administrative Law Judge. This
case was tried before me at Buffalo, New York, on 16
June 1986, pursuant to an unfair labor practice charge
filed on 17 April 1986 by Sheet Metal Workers' Interna-
tional Local Union No. 71 (Union) against Hohn Indus-
tries, Inc. (Respondent), and a complaint issued by the
Regional Director of Region 3 on 14 May 1986. The
complaint alleges that the Respondent, by its agent, em-
ployee Robert Scott, violated Section 8(a)(1) of the Act
by coercively interrogating his three fellow bargaining
unit employees, i.e., polling them about whether they de-
sired continued representation by the Union, and that it
further violated Section 8(a)(5) of the Act by thereafter
withdrawing recognition of the Union as their bargaining
agent. The Respondent's answer denied the commission
of an unfair labor practice.
At the trial all parties were given full opportunity to
participate, to adduce relevant evidence, to examine and
cross-examine witnesses, to argue orally, and to thereaf-
ter file written briefs that were ultimately received by
me on 28 July 1986,
On the whole record of this case, and from my obser-
vation of the witnesses and their demeanor, and after
evaluation of the oral arguments and written briefs, I
make the following
FINDINGS OF FACT
1. BUSINESS OF RESPONDENT
At all times material herein, Respondent, a New York
State corporation with an office and place of business at
Batavia Industrial Park, Batavia, New York (Respond-
ent's facility), has been engaged in the production of
sheet metal products. Since commencing operations
about August 1985, Respondent, in the course and con-
duct of its operations, sold and shipped from its Batavia,
New York facility products, goods, and materials valued
in excess of $39,000 directly to points outside the State
of New York. Based on a projection of its operations
since about August 1985, at which time Respondent
commenced its operations, Respondent, in the course and
conduct of its operations for the 12-month period begin-
ning August 1985, will have gross revenues in excess of
$150,000 and will ship and sell from its Batavia, New
York facility goods and materials valued in excess of
$50,000 directly to points outside the State of New York.
It is admitted, and I find, that Respondent is now, and
has been at all times material herein, an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. LABOR ORGANIZATION
It is admitted, and I find, that the Union is now, and
has been at all times material herein, a labor organization
within the meaning of Section 2(5) of the Act.
The main issue in this case is whether the Respondent,
as a successor employer which had voluntarily recog-
nized the Union as bargaining agent for a unit of four
employees, subsequent to a non-Board adjustment of a
prior refusal to recognize an unfair labor practice charge,
violated the Act by withdrawing recognition soon after-
ward based on the polling of its employees by employee
Robert Scott. Subordinate within this issue is whether
Scott acted as an agent of the Employer in conducting
the poll.
A second issue raised by Respondent in its brief is
whether, regardless of the poll, the Union had in fact
lost its majority status, and whether the Respondent pos-
sessed a good-faith doubt of the Union's majority status
sufficient to justify its withdrawal of recognition.
B. Facts
1. Background
The production of sheet metal ventilators at Respond-
ent's facility had previously been performed by Hirsch-
man-Pohle Company, Inc., whose production employees
had been represented by the Union for 30 years. In Octo-
ber 1985, the product line was sold to Respondent,
which continued the operation of the business with the
same employees. After its acquisition of the business in
early October, Respondent was confronted with and de-
clined the demand for continued recognition of the
Union. The Union thereafter filed an unfair labor prac-
tice charge in Case 3-CA-12952 that alleged a violation
of Section 8(a)(5) of the Act based on the refusal of Re-
spondent as a successor employer to recognize the Union
as continued majority employee bargaining agent. The
Respondent contended that it was not a successor em-
ployer.
On 7 and 12 March 1986, Respondent executed a non-
Board settlement agreement, the terms of which the Re-
spondent acquiesced as successor employer to recognize
the Union as the majority bargaining agent for employ-
ees in the historic bargaining unit. After a few days the
unfair labor practice charge was withdrawn with the ap-
proval of the Regional Director. All parties agree to the
applicability herein of Harley-Davidson Co., 273 NLRB
1531 (1985), and that Respondent's bargaining obligation
arising from that settlement agreement is ,that of a suc-
cessor employer and that the Union had at most a rebut-
table presumption of majority representative status.,
Between 7 and 14 March, the Union's business manag-
er, Glenn Gibson, by telephone, requested Respondent's
president and manager, David Hohn, to meet and negoti-
ate a collective-bargaining agreement. Gibson was told
to contact Respondent's attorney, Brian 0' Connor.
Within a day or so, Gibson communicated by telephone
with O'Connor and was told to draft the Union's propos-
al, and that a meeting would be held after receipt of
these proposals. Gibson proceeded to draft these propos-
als. Afterward, in the last week of', March, hen attempted
to inform O'Connor that the proposals were complete
HOHN INDUSTRIES
and that a meeting should now be arranged . He was told
that O'Connor was on vacation . Subsequently , Gibson's
office received a message that O'Connor had telephoned
and stated that Gibson would soon be in receipt of a
letter from Respondent.
About 13 April , Gibson received a letter from O'Con-
nor dated 10 April which stated that Hohn had received
an "unsolicited letter" signed by all four of the bargain-
ing unit employees which disclosed that they had voted
among themselves by 3 to 1 in favor of no further repre-
sentation by the Union . A photocopy was enclosed.
O'Connor's letter concluded that the Union had lost its
status as majority employee bargaining agent and that it
was inappropriate to engage in any collective bargaining
with it.
2. The status of Robert Scott
David Hohn testified that he is the owner and presi-
dent of the Respondent as well as its traveling sales
agent. When engaged in sales solicitation he is absent
from the plant. From the context of his testimony, it ap-
pears that he is the sole manager and production supervi-
sor of the four unit employees . One of the four bargain-
ing unit employees , Robert Scott , not only performs the
same daily production duties as his coworkers, but he
also serves as leadperson and conduit of instructions and
orders from Hohn . Scott testified that he assigns work to
and signs the timecards of his coworkers . Hohn testified
that generally assignment of work is determined by each
man's job function , and the job functions called for are
determined by predetermined job plans on blueprints. He
explained that when assignment decisions are made that
he and Scott will jointly discuss it and that sometimes
joint decisions are made and sometimes Scott will make
the assignment decision . Vacation and time off requests
of unit employees are submitted by the employees to
Scott who in turn submits them to Hohn for approval.
Scott maintains his own office at the plant.
Scott is not alleged to be a supervisor, nor is there suf-
ficient evidence to conclude that he exercises that type
of independent discretion indicative of supervisory au-
thority as defined by the Act . However, it is clear that
Scott occupies a preeminent position among the employ-
ees as the conduit of Hohn's decisions that affect em-
ployees' work conditions , i.e, what Scott tells the em-
ployees concerning their work status is certainly likely to
be and intended to be perceived by them as the policy of
Respondent.
3. The alleged rejection of collective -bargaining
representative
Hohn testified that he decided to meet with the bar-
gaining unit employees and to read to them a prepared
statement concerning union representation . Such a meet-
ing was held on 24 March 1986. Hohn testified initially
as follows concerning the purpose of the meeting.
[W]e had a meeting with them because there was
various comments presented to me, questions re-
garding their rights as employees and in regards to
the union . They had mentioned several times that
73
they had requested withdrawal cards and had been
refused.
When he was asked to be more specific in his testimony,
Hohn responded , "This is actually--it comes to me
through my engineer who is much closer to the employ-
ees in the shop than I was." In effect, Hohn then retract-
ed his testimony . Hohn related only one conversation he
had back in November 1985 with engineer Bob
McCombs, a nonunit employee . He testified that
McCombs had told him that during the last week of Oc-
tober that he had witnessed a business agent in a con-
frontation with three unit employees in the plant parking
lot wherein their requests for membership withdrawal
cards were rejected and they were threatened with
blacklisting if such requests persisted. 'Thus Hohn gave
no specifics about any conversations with bargaining unit
employees concerning union representation disaffection
prior to the March meeting, nor did he relate any other
reports of employee disaffection.
Hohn testified further, without detail or specifications,
that he held the March meeting because:
they were getting feedback from the Union that
they were going to have a contract and there was a
lot of gray areas, they had questions, they were get-
ting upset because they were getting conflicting sto-
ries, so we decided we 'd have a meeting with them
and set the record straight as to what actually oc-
curred in the settlement.
Thus these more recent reports to Hohn appear related
to contract negotiations, and not to union disaffection or
membership withdrawal.
On 24 March , unit employees Arthur Stothers and
Roger Morgan were summoned by Scott to the plant's
office . Union steward David Roblee, a unit employee,
was not present at the meeting . Hohn read to the em-
ployees a two-page speech prepared by his attorney. In
that speech he made the following points paraphrased or
quoted as follows:
1. Respondent entered into a settlement of an unfair
labor practice charge which required continued rec-
ognition of the Union by the Respondent as a suc-
cessor employer.
2. The Union "currently" has the right to represent
and bargain for unit employees.
3. Unit employees are not obliged by the settlement
to retain their union membership or to pay dues.
There is no current contract and thus no existing
union-security obligation nor check off provisions.
4. Employees , may , not be compelled to join the
union by threat of blacklist.
5. "Some of you have asked me how they can with-
draw from union membership oi eliminate the
Union as their bargaining representative . Under the
National Labor Relations Act, you are free to de-
certify the Union at any time before a new collec-
tive bargaining agreement is reached . However, I
cannot assist you or encourage you to do so. This is
up to you alone . If you need further information re-
74 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
garding decertification of Local '71 or any other
issue, you must contact the National Labor Rela-
tions Board yourself. I have the names and phone
numbers of three employees at the Buffalo office
who are obligated by law to answer your questions
and assist you in any way possible. There names are
as follows: [names deleted]
7. [sic] That is all that I have'to say to you. Howev-
er, I would like to answer any questions that you
may have regarding this situation.
Hohn failed to testify to any current event in justification
of the assertions in item 5 regarding membership with-
drawal or union elimination. I credit Hohn that he read
the speech verbatim.
' Robert Scott, a' witness who was called by the Gener-
al Counsel, could not recall the substance of the speech.
After' the speech, however, both he and Hohn testified
that there" was some discussion. Although Scott was not
called as an adverse witness, his demeanor revealed a
hesitancy and reluctance when responding to counsel for
the General Counsel's questions, but a greater spontanei-
ty, if not alacrity, in answering Respondent counsel's
questions in cross-examination, particularly 'when those
questions were of a leading nature.
Scott testified in' response to counsel for the General
Counsel's question that in the postspeech discussion
which concerned the substance of the letter, Hohn ex-
pressed 'a desire for the employees to decide whether
they wanted union representation. He did not particular-
ize just how Hohn verbalized that desire. In cross-exami-
nation Scott testified that in the discussion he asked
Hohn whether Respondent would encounter adversity in
marketing its products as a nonunion shop and that Holin
responded that nonunion representa'tion would not affect
employees' jobs. He also responded "yes" to Respondent
counsel's questions concerning whether Hohn stated that
nonunion representati'onr would make' no' difference, and
that Scott had stated at the meeting'that he was "asking
for a withdrawal card from the union." He further testi-
fied on the rephrasing of another leading question that
Morgan stated "something about having been suspended
from the Union and he testified [Morgan] didn't want to
discuss it, I guess."' Scott ' testified that Stothers also
asked whether rejection of union representation would
affect employees' jobs and ,whether Hohn could supply
the employees with the names of NLRB agents who
could provide them' with information. When asked by
Respondent's 'counsel whether that request "had any-
thing to do with a withdrawal from the Union" he an-
swered with certitude that it did not. He answered fur-
ther "yes" to the question as to ' whether Strothers said
"anything about the amen discussing it [withdrawal from
the Union] among themselves," but explained that
Stothers did not state that employees would make a deci-
sion as to "withdrawal from the Union."
Hohn testified that during the postspeech conversation
Stothers asked about, the probability of adverse economic
impact by the loss ofthe union label from Respondent's
product'line. He testified' that employee Morgan arose
during the discussion and proceeded to walk out on stat-
ing that' he had been suspended from, union membership,
and that Scott had stated he was asking the Union for a
membership withdrawal card. He added, however, that
Stothers did most of the talking and Stothers stated a
fear concerning whether as a long-time union member
his rejection of the Union would affect "his service if for
some reason he left the Company and went someplace
else and it' was a Union shop," but that "some of the
other guys just kidded him and 'said, `look Art; you don't
have any pension benefits or anything else so it doesn't
make any difference."', Hohn testified that the meeting
ended, and as - the employees arose Stothers stated,
"Well, we're going to have to discuss this among our-
selves and get back to you."
Stothers testified as a rebuttal General Counsel wit-
ness. According to him, the meeting lasted a mere few
minutes, i.e., Hohn read his speech and invited questions.
The only question Stother's was able to recall was that
someone asked about the adverse effects of a loss of the
union label. Stothers denied that he had -stated anything
at the meeting about withdrawing from union member-
ship. He denied raising any concern "that if there was no
union there [he] might lose benefits." He neither con-
firmed nor denied other accounts of the balance of the
meeting by either Hohn or Scott. -
Stothers testified that at the close of the meeting Hohn
'invited further future questions. He therefore proceeded
to engage Hohn in a later private conversation.' He testi-
fied without contradiction that he asked Hohn whether
he wanted the employees to have union representation
and Hohn stated he did' not and,-, when asked why not,
stated that union representation would deprive him of
the flexibility to transfer employees from one job to an-
other. In cross-examination it became clear that there
was more to the meeting than `initially testified to by
Stothers. He admitted "yes," that at the meeting Hohn
told the employees "that it was really-up to them-wheth-
er they wanted a union or not." He also admitted that
during the meeting Hohn's wife, who serves as office
clerical and receptionist, was also present and stated that
she had "slips of paper" with NLRB agents' 'names, and
that he took such a slip. He could not remember .doing
so, but testified that- it was "possible" that he stated
during the meeting that he was "going to find out
whether the union could refuse his membership with-
drawal card application." Further, in cross-examination,
he did not deny that' he stated at the end of the meeting
'that the employees would discuss continued union repre-
sentation among themselves. He explained that he just
did not remember.
Based on Hohn's greater certainty, Scott's corrobora-
tion, and Stothers' admissions , I conclude that Stothers
did tell Hohn that the employees would discuss further
the, subject of union representation. I credit Scott's testi-
mony that Stothers did not state to Hohn that the em-
ployees would come to some- definite conclusion that
would be reported to Hohn. Scott did not appear to
have any motivation to give testimony adverse to Re-
spondent. If, anything, he ' appeared eager to accommo-
date counsel for Respondent's questions. Moreover, his
self-interest would seem, to mitigate against antagonizing
his employer. Furthermore, Hohn's own personal notes,
HOHN INDUSTRIES 75
which he wrote within an hour of the meeting , merely
state , "Art [Stothers] said they will have to discuss
among themselves ." Based on Stothers ' concessions, I
conclude that he did make a statement to the effect that
he would make inquiries concerning withdrawal of union
membership . It is uncontradicted that Morgan stated that
he had been suspended from union membership . In view
of Scott's and Hohn 's uncontradicted testimony, I con-
clude that Scott also stated that he was in the process of
seeking a withdrawal of union membership application
form . Therefore, at the conclusion of the meeting of 24
March 1986, Hohn had become aware that one employee
was suspended from union membership , that one was in
the process of requesting a membership withdrawal
form, and a third was about to make inquiries as to with-
drawing from union membership. However, no employee
stated to him that they did not desire representation by
the Union as nonunion members , i.e., representation
without the obligation of a dues -paying membership. Nor
did any employee state that they would consider decerti-
fication of the Union, despite item no. 5 of Hohn's
speech which referred to withdrawal of union member-
ship "or" the elimination of the union as bargaining rep-
resentative in the disjunctive as subjects of past employee
inquiry. At most Hohn was told that the unit employees
would discuss further among themselves, "withdrawal
from the Union ." Neither the testimony nor Hohn's own
notes clearly reveal whether the employees were to dis-
cuss the subject of nonunion representation , or the more
limited subject of withdrawal from union membership
with its attendant dues and obligations but short of com-
plete nonrepresentation , or both . Further, Hohn was not
told that the employees would report their decision to
him, nor was there any deadline set:for them to report
any decisions reached.
Hohn was advised by his attorney during this period
of time. NLRB agents were suggested to the employees
as sources of information . Thus Hohn should have been
aware that the employees had at least access to sources
of information that would surely explain to them the dis-
tinction between nonmembership and nonrepresentation.
It appears that union steward Roblee , the fourth em-
ployee, was read Hohn's speech the next day.
According to Hohn 's own testimony, it is clear that he
had not been able to conclude on the basis of his infor-
mation after 24 March that the majority of employees
did not desire representation because he found it neces-
sary to evoke from them some explicit decision . He testi-
fred that 2 weeks went by without any further expression
from the employees on the subject of union membership
or union representation. Hohn testified that on 8 April he
felt constrained to ask Scott whether the employees "had
any discussions ," and (in implicit recognition of Scott's
role as his informational conduit) he "reminded him.' that
they were going to get back to us and let us know what
had been decided . ' Regarding Scott's response, Hohn's
testimony is:
' Hohn's reference to "they" and "us" strongly suggest his identifica-
tion of Scott with the managerial "us."
He said he 'd had a couple minor discussions; noth-
ing concrete determined and he nays , well I can't
get everybody together and he says , well, I don't
know how to do this , and he said, well, my answer
to him was they can either take a secret ballot or
they can -take a vote or he can do anything, but I
can't tell you how to do it.
The conclusion that the employees had not agreed to
come to a formal decision or to report such decision
back to Hohn is enhanced by the fact that no delibera-
tion or "vote" was taken by them nor was any report
made to Hohn . This conclusion is buttressed by Scott's
testimony.
According to Scott, he did indeed have a couple of
discussions with his coworkers after the speech . His mo-
tivation in not approaching Hohn with news of an an-
tiunion decision is revealed by his testimony that after
the meeting at least two of the employees, Stothers and
Morgan , told him that they "thought they wanted the
union." The third employee was the union steward.
Thus, according to Scott and even Hohn 's testimony,
there had been no employee initiative toward a revoca-
tion of the status quo . Scott's testimony as to Hohn's ini-
tiative toward instilling employees' actions in this regard
is in certain important aspects 'markedly different from
that of Hohn.
Scott 's testimony as to the 8 April conversation is as
follows : According to Scott , on 8 April, Hohn confront-
ed him in the work area of the plant and asked whether
the employees "had decided on the Union or not." He
answered that the employees "hadn't been talking about
it, and nobody 's made - up their mind yet." Thereupon,
Hohn insisted that "he had to know today whether [the
employees] want it or not." Hohn then told him to "take
a vote on it." Scott agreed to do so . Nothing more was
said. On cross-examination to Respondent's counsel,
Scott answered "yes" to the assertions that at the March
meeting Hohn , told the employees that union representa-
tion was a matter for their choice and that he did not
want to get "directly" involved , and "'yes to the ques-
tion , So you took this vote on your own?" In redirect
examination he admitted that the idea, i.e., the initiative
to take a vote, was not his but was that of Hohn.
Within the full context of the events , and the conver-
sation between Hohn and Scott even wider Hohn's ver-
sion, I conclude that it is Respondent who put Scott in
motion with the objective of forcing the issue on the em-
ployees by means of some kind of a formalized group de-
cision , which by any other name means, in effect , a poll-
ing of the employees by Scott at Hohn's order, notwith-
standing Hohn's appended disclaimers. However, if
credibility resolution is necessary , I credit Scott's ver-
sion . As noted above, it was clearly against his self-inter-
est to testify adversely to Respondent, whereas Hohn's
testimony was, of course, otherwise . Furthermore, Scott
was most certain in demeanor with respect to who au-
thored the idea of a vote.
Hohn most certainly realized that nonaction of the em-
ployees was a vote for the status quo. Hohn 's pressure
on Scott to ' force an explicit option was a clear signal
that he wanted them to reject the status quo. Thus, de-
76 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
spite having been told by two employees that they still
',thought" that they desired union representation and
knowing that the third employee was the union steward,
Scott followed Hohn's imperative to poll the employees
that very day about continued union representation. He
approached -each employee and told them to come to his
office at breaktime. He told them, "we, were going to
decide on the Union or not." When they assembled in his
office, he stated to them:
Dave [Rohn] wants us to know whether we want
this Union or not, he wants us to vote on it; he says
we can take a secret ballot or show of hands.
One employee expressed a desire for a showing of hands
which was acquiesced to by the others. The result was a
3-to-1 vote in favor of no further union representation.
Scott reported the results to Hohn's daughter'who is an
office clerical employee. She suggested that he put the
information in writing. At this time Mrs. Hohn was in
the room. Scott testified that he went back to his own
office and composed a note which he arranged for each
of the four employees to sign which states as follows:
The four sheet metal workers at Hohn Industries
took a vote and decided 3-1 against being part of
the Sheet Metal Workers' International Association.
Scott then delivered the note to Hohn's office. There-
after, Respondent's counsel communicated with the
Union as described above.
C. Analysis
The presumption of majority status of the Union may
be rebutted by a demonstration of actual loss or a show-
ing of a reasonable good-faith doubt.
The Respondent's position is that based on the results
of the employee petition and other employee expressions,
it was clear that the Union had lost its majority status, or
that in any event Respondent was warranted in doubting
the'Union's majority status as in the Harley-Davidson case
which involved an employee-initiated petition, and J. &
J. Drainage Products Co., 269 NLRB 1163 (1984). In the
latter case which also involved a successor employer, it
was found by the administrative law judge that the pre-
sumption of union majority status was rebutted by the
existence of objective basis for reasonable doubt which
consisted of (1) the age of the original certification, (2)
the fact that only 6 of 32 unit employees were union
members, (3) the statements of the union steward to the
employer to the effect that employees did not wish to
meet with the union representatives because they were
not interested in the union, and (4) the absence of unfair
labor practices.
The Board has traditionally considered a wide range
of'factors in making an' evaluation whether sufficient ob-
jective phenomena individually or cumulatively supports
a reasonable good-faith belief of loss of majority status.
U-Save Food Warehouse, 271 NLRB 710, 715-718 (1984).
This case, however, does not include many of the factors
often taken into account, i.e.; change in employee com-
plement, absence or inactivity of the union, closeness of
the original majority designation, and, apart from the 8
April petition , a clear statement of rejection of union
representation by a majority of the employees.
Immediately prior to the receipt of the 8 April peti-
tion, Respondent was possessed of no greater information
of possible employee disaffection with the Union than it
was back in November 1985 at the outset of its-half-year
refusal to recognize and bargain with the Union. That
lengthy period of frustrated bargaining efforts by the
Union was caused by Respondent's refusal to acknowl-
edge its status as successor, and not by a proffered doubt
of majority status. Respondent recognized the Union in
,March 1986, having possessed essentially the same infor-
mation of purported employee union disaffection, i.e.,
that three employees were possibly interested in with-
drawing from union membership. The only difference by
24 March was that Hohn now was informed that one
employee was suspended from union membership and
one, had only requested, not executed, a membership
withdrawal and a third intended to make inquiry about
obtaining a membership withdrawal card. As I have con-
cluded above, Hohn, by his insistence on a more clear-
cut renunciation of the Union, had himself concluded
that he did,not possess sufficient reasonable' doubt that
the majority of the employees did not want union repre-
sentation as such, in contradistinction to union member-
ship and its obligations. Scott's more credible testimony
shows that he, informed Hohn that the employees had
made no disavowal decision. Even Hohn's testimony re-
veals this.
The Board has long distinguished employee expres-
sions of membership and/or dues obligations rejection
from expressions of a desire for nonrepresentation, and
therefore the Board has not viewed such evidence alone
as of sufficient weight to establish a reasonable doubt of
majority status, much less evidence of actual loss of ma-
jority status. Roger's I.G.A., Inc., 232 NLRB 1053 (1977),
enfd. 605 F.2d 1164 (10th Cir. 1979); Carmichael Con-
struction Co., 258 NLRB 226, 230 (1981), enfd. 728 F.2d
1137 (8th Cir. 1984).
Administrative Law Judge Holmes, in J. & J Drain-
age, supra 269 NLRB at 1171; evaluated evidence of a
minority union membership as but "one factor" to sup-
port the Respondent's claim it had a reasonable doubt of
the Union's majority status. He did not rely on the factor
of successorship, and the factor of the age of certification
was not relied on by the Board in adopting his decision.
I conclude that the facts of this case do not warrant a
conclusion that Respondent had, exclusive of the 8 April
employee "petition," sufficient grounds to doubt the ma-
jority status of the Union.
Counsel for the General Counsel concedes that a suc-
cessor employer may rely on an employee petition in
doubting the union's majority status, but he points out
that where such petition has been relied on, it has been
one that was initiated by the employees, citing for exam-
ple Sun Coast Foods, 273 NLRB 1642 (1985), and Boaz
Carpet Yarns, 280 NLRB 40 ( 1986). In the Sun Coast
case the Board took great pains in rejecting the adminis-
trative law judge's finding that the employee petition had
been tainted by supervisory assistance. In the Boaz case,
the employer conducted a poll of its employees in conse-
HOHN INDUSTRIES 77
quence of the presentation of an employee-initiated peti-
tion which revealed a clear rejection of a union as their
bargaining agent. The Board's majority opinion in that
case carefully observed that the employer "verified" the
petition in a noncoercive manner that comported with
the employees' rights under the Act, i.e., the purpose of
the vote was communicated to them, they were assured
that regardless of the outcome there would be no repris-
als, and a secret ballot was utilized.2 The Board noted
that these events occurred in the absence of a refusal of
the employer to bargain in good faith.
The General Counsel argues that Respondent as a suc-
cessor employer did not have "thee option of postponing
its bargaining obligation to make its own determination
of whether the Union still enjoyed minority status." The
General Counsel cites Aircraft Magnesium, 265 NLRB
1344 (1982). The Board stated therein that a union is not
obliged to establish majority status when a successor em-
ployer assumes the business , but that it is the successor
employer 's obligation to demonstrate actual or reason-
ably believed loss of majority status. Furthermore, it
held that "encouraging and sanctioning an employee-
conducted election to test the Union's support" 60 days
after its assumption of operations did not satisfy its obli-
gation because, the Board stated, lack of union support
on the later date had no relevance to the Union's status
on the date when the Union demanded recognition, i.e.,
the dale of the assumption of business. The essential
point in the Board's reasoning is the time differential, and
thus the Board did not preclude per se a poll by a succes-
sor employer. If a prerequisite for a poll is a reasonable
doubt of majority status, then there is no need for a poll
except as verification.
The Respondent argues that it took no poll in this case
inasmuch as Scott was not its agent. The factual finding
above indicates the contrary. Respondent had clothed
Scott with the general apparent authority of its agent by
virtue of his position as conduit for Respondent's orders
and instructions. Propellex Corp., 254 NLRB 839, 843
(1981). Scott 's position as a bargaining unit member does
not negate a finding of agency herein because not only
did he possess a general apparent agency, he was specifi-
cally made Hohn's agent for the polling. Scott, in turn,
made that agency clear to the employees when he gath-
ered them in his office. I therefore conclude that Re-
spondent must be viewed not only as the author of the
idea of a poll, but the actual polling agent.
In the circumstances of this case, therefore, the conse-
quent petition was a creature of the Employer's poll and
did not precede it. Also, unlike the Boaz case, supra, the
Employer did not apply the Struksnes safeguards. The
purpose and effect of the vote was not clearly explained,
there was no secret ballot, and no assurances against re-
prisals were made at the polling which I therefore find
was a coercive interrogation. Furthermore, unlike Boaz,
supra, the polling did not occur in the absence of a refus-
al to bargain. Respondent admitted that it is a successor
employer. Thus it had an obligation to bargain with the
2 This is an implicit reference to the safeguards required by the Board
for permissive employer polling, as set forth in Struksnes Construction
Co_, 165 NLRB 1062 (1967).
Union on the assumption of the business, but it had re-
fused to bargain for almost one-half year. Having frus-
trated the Union's request to bargain, only after it of-
fered to bargain did it take a poll of its employees' senti-
ments.
In light of all the circumstances in this case , I cannot
conclude that there was demonstrated a loss of the
Union's majority status nor a reasonable good-faith doubt
as to its majority status. Accordingly, I conclude that
Respondent violated Section 8(a)(1) and (5) of the Act as
alleged in the complaint.
CONCLUSIONS OF LAW
1. Respondent Hohn Industries, Inc. is an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. Sheet Metal Workers' International Association
Local Union No. 71 is a labor organization within the
meaning of Section 2(5) of the Act.
3. The following employees of Respondent (the unit)
constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the
Act:
All full-time and regular part-time employees nor-
mally employed in the manufacture of the Hirsch-
man-Pohle line of rooftop ventilators and employed
by the Respondent at its Batavia Industrial Park,
Batavia, New York facility, excluding all other em-
ployees, office clerical employees, guards and super-
visors as defined in the Act.
4. Since about 1 October 1985, and at all times materi-
al herein, the Union has been the designated exclusive
collective-bargaining representative of Respondent's em-
ployees in the unit described in paragraph 3, and since
about 14 March 1986 the Union has been recognized as
such representative by Respondent. Such recognition has
been embodied in a recognition agreement dated about
14 March 1986.
5. At all times material herein and for the past 30
years, the Union, by virtue of Section 9(a) of the Act,
has been, and is, the exclusive representative of the em-
ployees in the unit for the purpose of collective bargain-
ing with respect to rates of pay, wages, hours of employ-
ment, and other terms and conditions of employment.
6. Respondent has engaged in unfair, labor practices in
violation of Section 8(a)(1) of the Act by the conduct of
its agent, Robert Scott, on 8 April 1986, whereby it coer-
cively polled its employees concerning their desire for
union representation.
7. Respondent engaged in unfair labor practices in vio-
lation of Section 8(a)(1) and (5) of the Act on 10 April
1986 and thereafter by withdrawing recognition of the
Union as the exclusive bargaining representative of the
unit and, since, failing and refusing to recognize or bar-
gain with the Union as such representative.
8. The foregoing unfair labor practices affect com-
merce within the meaning of Section 2(05) and (7) of the
Act.
78 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
THE REMEDY
Having found that Respondent engaged in unfair labor
practices in violation of Section 8(a)(1) and (5) of the
Act, I recommend that it be ordered to cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
eds
ORDER
Respondent Hohn Industries, Inc., Batavia, New York,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Coercively polling its employees concerning their
desire for union representation.
(b) 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) Recognize and, on request, bargain in good faith
with Sheet Metal Workers' International Association
Local Union No. 71 as the exclusive collective-bargain-
ing representative of the employees in the appropriate
unit regarding rates of pay, wages, hours of employment
51f 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 the them shall be deemed waived for all purposes.
and other terms and conditions of employment for- the
employees in that unit and, if an understanding is
reached, reduce the agreement to writing and sign it.
The appropriate unit is:
All full-time and regular part-time employees nor-
mally employed in the manufacture of the Hirsch-
man-Pohle line of rooftop ventilators and employed
by the Respondent at its Batavia Industrial Park,
Batavia, New York facility, excluding all other em-
ployees, office clerical employees, guards and super-
visors as defined in the Act.
(b) Post at its Batavia, New York facility copies of the
attached notice marked "Appendix."4 Copies of the
notice, on forms provided by the Regional Director for
Region 3, after being signed by the Respondent's 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.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
4 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."