Howard M. Howes, Inc.

National Labor Relations Board - Board Decisions

Aug 25, 1988

290 N.L.R.B. 967 (N.L.R.B. 1988)

HOWARD M. HOWES , INC. 967
Howard M . Howes, Inc. and United Steelworkers of
America, Local 14094, AFL-CIO-CLC. Case
9-CA-24194
August 25, 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFF
On November 3, 1987 , Administrative Law
Judge Martin J. Linsky issued the attached deci-
sion . The General Counsel filed exceptions and a
supporting brief, and the Respondent filed a brief
in support of the judge's decision.
The National Labor Relations Board has consid-
ered the decision and the record in light of the ex-
ceptions and briefs and has decided to affirm the
judge's rulings, findings, and conclusions only to
the extent consistent with this Decision and Order.
The issues in this case are (1) whether the Re-
spondent unlawfully polled its employees about
their continued support for the Union and (2)
whether, following its poll, the Respondent unlaw-
fully withdrew recognition from and refused to
bargain with the Union.
In 1972 , the Respondent recognized the Union as
the exclusive collective -bargaining representative
for the Respondent 's drivers, mechanics , and dis-
patchers . The most recent collective-bargaining
agreement between the parties was for the period
May 23, 1984 , through May 23, 1987. At the time
of the material events there were five employees in
the bargaining unit-three mechanics and two spot-
ters.
On March 13 , 1987,1 the Union notified the Re-
spondent in writing that it wanted to begin negotia-
tions for a new collective-bargaining agreement to
replace the agreement due to expire on May 23.
For asserted reasons discussed more fully below,
the Respondent's vice president, Howard M.
Howes, decided to conduct a poll of the employees
in the unit to determine whether they still wanted
to be represented by the Union . The Respondent
conducted such a poll on March 21. All five em-
ployees in the unit voted "no" to the question of
whether they wished to be represented by the
Union . On March 30, the Respondent notified the
Union, in writing, that it was withdrawing recogni-
tion of the Union , effective on expiration of the
collective-bargaining agreement on May 23. The
Respondent honored the terms and conditions of
the collective-bargaining agreement until it expired,
but refused to negotiate a successor collective-bar-
gaining agreement with the Union.
I All dates are 1987 unless otherwise stated.
The complaint alleges that the Respondent acted
unlawfully, in violation of Section 8(a)(5) and (1)
of the Act, by withdrawing recognition from, and
thereafter refusing to bargain with , the Union. The
Respondent denies that it acted unlawfully as al-
leged, and asserts that at the time it withdrew its
recognition of the Union , the Respondent knew,
based on the results of the poll, that each of the
five employees in the unit had expressed a desire
not to be represented by the Union . The Respond-
ent further asserts that at the time it polled its em-
ployees about their desire to be represented by the
Union , the Respondent had a good -faith doubt
about the Union 's majority status, based on objec-
tive evidence existing prior to the poll.
The judge found merit in the Respondent's de-
fense. More specifically, applying the Board's es-
tablished standard for determining whether an em-
ployer may lawfully conduct such a poll , the judge
found that the Respondent had a reasonable doubt,
based on objective considerations , that the incum-
bent Union continued to have the support of a ma-
jority of the employees it represents ,2 and was
therefore privileged to conduct the poll and to rely
on its results in withdrawing recognition from the
Union . For the reasons discussed below, we dis-
agree with the judge.
The judge found that the cumulative effect of
eight factors, which assertedly prompted the Re-
spondent to conduct the poll , were such that any
reasonable person would doubt the Union's contin-
ued majority support. On reviewing these factors,
individually and in their cumulative effect, we con-
clude that they do not support a reasonable doubt
of the Union 's majority status.
The judge found that the Respondent properly
relied on questions asked by unit employee union
member Mark Swinehart in late February or early
March. According to the Respondent's vice presi-
dent, Howard M. Howes , he mentioned to Swine-
hart, in passing , that the Respondent would soon
have to negotiate another collective-bargaining
agreement with the Union, and he wondered-
aloud-who was going to be representing the
Union on a local basis. According to Howes, Swin-
s See Thomas Industries, 255 NLRB 646 (1981), enf. denied 687 F.2d
863 (6th Cir. 1982). In denying enforcement of the Board's order in
Thomas industries, the Sixth Circuit Court of Appeals rejected the
Board's above-stated standard for when an employer may lawfully poll
its employees about their continued support for an incumbent union, and
held instead that an employer may lawfully conduct such a poll when it
has substantial, objective evidence of a loss of union support, even if that
evidence is insufficient in itself to justify withdrawal of recognition (i.e.,
even if that evidence would not, in itself, support a reasonable doubt
about the incumbent union's continued majority support). 687 F.2d at 867.
The instant case arises in the Sixth Circuit. The judge, noting these cir-
cumstances, found that the Respondent's polling was lawful under either
the Board's or the Sixth Circuit's standard.
290 NLRB No. 116
968 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ehart questioned whether there was still a union
that was active at that location, and whether a
union was necessary at all. Howes testifed that he
did not answer Swinehart's questions and that "at
that point, I really terminated the conversation . . .
any further conversation about any union."3
Contrary to the judge, we find that Swinehart's
questions to Howes do not constitute objective evi-
dence indicating that a majority of the unit em-
ployees no longer wanted to be represented by the
Union. First, we find that Swinehart's questions to
Howes were, at most, little more than rhetorical
questions about the current state and future role of
the Union in the Respondent's operation. Second,
and in any event, Swinehart's questions certainly
did not indicate that he no longer wished to be
represented by the Union, but rather that he was
concerned about the inactivity of the Union and
was questioning, rather than rejecting, the fact of
union representation.
Howes conceded that this brief encounter with
Swinehart was the only specific conversation that
he had with any employee about the Union. Swine-
hart made no reference, express or implicit, to any
other employee. Thus, of the five unit employees in
question, Howes spoke to only one of them about
the Union, and even that one employee did not in-
dicate to Howes that he no longer desired to be
represented by the Union.
Howes further testified that he overheard "gener-
al derogatory remarks and comments that reflected
a lack of interest in any representation of the
union." However, Howes was only able to provide
one example of having overheard any such remark
within the year prior to the poll in question. In this
regard, Howes testified that:
Lloyd Hedges [a unit employee-union
member], you know, he might say something
about, you know, "we haven't seen any union
out here for a long time. The only thing we've
really got from this union has been breakfast,
once a month", these sorts of comments.
Howes also testified that Hedges "bemoaned the
fact" that it had been a year or more since the
Union had conducted meetings or sent anyone to
3 Swinehart's version of this encounter is generally consistent with
Howes' . According to Swinehart:
I asked him [i .e., Howes] about the union , just because there
hadn't been any representation recently. I was just wondering where
we stood with the union . . . and . . . what we could do about, or
whatever, to see what was going on. And he said that we would just
sort of have to wait, and see what happens . . . not really a definite
reply. . . . Since there hadn't been any, really, union meetings, or
anything , I just asked him how we stood with the union, or what
was being done, and whether it was really, you know, necessary to
have a union.
According to Swinehart , Howes did not respond to these questions.
visit the Respondent's plant. According to Howes,
those sorts of general comments from Hedges were
common, "it was just common knowledge." Also
in this context, Swinehart testified that while he
could not recall precisely what comments Hedges
made about the Union in Howes' presence:4
"[I]t was, you know, just comments as far as,
that we should, you know, something should
be done, you know, to decide what to do with
the union, as far as whether to keep it, or to
get rid of it, you know, either way, just . . . in
general that something should be done, to get
it straightened out. . . . Just, you know,
whether to-if we're going to have a union,
lets get a representative, and, you know, have
meetings regular and all that, or, you know,
just to get rid of it altogether.
We find that Hedges'- remarks, overheard by
Howes, are no more indicative of a loss of majority
support for the Union than were Swinehart's ques-
tions, posed directly to Howes. First, Howes was
able to recall overhearing only two specific re-
marks by Hedges: (1) that Hedges had not "seen
any union out here for a long time" and (2) "the
only thing we've really got from this union has
been breakfast, once a month." These remarks by
Hedges do not constitute objective evidence indi-
cating that a majority of the unit employees no
longer wanted to be represented by the Union. At
most, these remarks by Hedges could not reason-
ably be construed by Howes as anything more than
one employee's oblique, tongue-in-cheek expres-
sions of dissatisfaction with the recent performance
of the Union. As with Swinehart's questions,
Hedges' remarks did not indicate that he or any
other unit employee no longer wished to be repre-
sented by the Union. Second, these remarks by
Hedges are the only arguably disparaging remarks
by an employee about the Union's performance
that Howes could specifically recount at the hear-
ing. (As seen, Swinehart's questions to Howes did
not expressly or implicitly disparage the Union,
much less demonstrate a desire to be rid of the
Union.) Additionally, beyond Hedges' remarks,
Howes could only testify vaguely, generally, and
without attribution that he had overheard "general
derogatory remarks and comments that reflected a
lack of interest in any representation of the union."
We find that such unsupported, summary testimony
provides no probative, material support for the Re-
spondent's assertion that it had a reasonable doubt,
based on objective considerations, that the Union
4 Hedges did not testify.
HOWARD M . HOWES, INC.
no longer had the support of a majority of the unit
employees. s
The Respondent also relied on Howes ' knowl-
edge, through his unsolicited receipt of internal
union correspondence , that none of the current unit
members wanted to serve as local officers and that
the local had recently been placed in administrator-
ship by the parent union , United Steelworkers of
America. 6 The record shows that no unit employee
had served as a union officer or designated himself
as a local union spokesman since April 1986. In late
February or early March 1987, Don Baker, a
former unit employee and former union recording
secretary , sent to Howes several pieces of corre-
spondence Baker had received in late 1986 or early
1987 from Steelworkers International headquarters
and the Ohio AFL-CIO , in his former capacity as
union recording secretary . Baker requested that
Howes notify the International that Baker was no
longer an employee or union officer and that the
International should stop sending such correspond-
ence to Baker . The correspondence in question,
which Howes read, consisted of, inter alia: (1) A
December 9, 1986 letter from the International
president to Baker, advising him that in order "to
assure the performance of the collective bargaining
agreements or other duties of the bargaining repre-
sentative ," Local 14094 (i.e., the Union) was being
placed under an administrator , Robert Andrews,
and all the local officers were relieved of their
duties.? (2) A January 30 letter from the Interna-
tional to Baker, and four other individuals ad-
dressed as union members , enclosing a copy of a
report of the International Commission, which
stated that Andrews had explained to the commis-
sion that "the membership of the local had de-
clined to four members and that there was decided
lack of interest in serving as an officer" and that
"the lack of interest on the part of the remaining
members is such that there is no objection to the
imposition of administratorship ." The report rec-
ommended that the administratorship of the Union
be continued and that "serious consideration be
given to the possibility of merging with a more
active local , as it is unlikely that this unit will get
much larger in the foreseeable future ." (3) A Feb-
ruary 25 letter from the International to Baker, ad-
vising him that the International executive board
° Indeed , Swinehart's hesitant , almost tortured testimony , set out
above, about what remarks Hedges might have made in Howes' presence
not only fails to support the Respondent 's contention but actually sup-
ports the notion that continued representation by the Union was still a
decidedly open question.
° It appears from the record that the Union in question , Steelworkers
Local 14094, the Charging Party, represents only the five-member unit
involved in this case.
7 Baker had not served as recording secretary since early 1985, and the
last union officer had quit in April 1986.
969
had adopted the above-described report and recom-
mendations . (4) Two form letters, January 13 and
February 5, from the Ohio AFL-CIO to "All Top
Officers" (including, presumably , Baker, who re-
ceived these letters), advising them that their local
union had not paid per capita taxes (45 cents per
member per month) to the Ohio AFL-CIO for 6
months or more.
We find, contrary to the judge , that the above
union correspondence does not constitute an objec-
tive basis to support a reasonable doubt about the
Union's continued majority status . First, there is no
indication that any of the current unit members was
even aware of the administratorship and per capita
tax matters discussed in this correspondence.
Second , even if they were aware of these matters,
mere reluctance or unwillingness of any unit em-
ployees to seek out or accept union office is not an
indication that a majority of employees no longer
wish to be represented by a union. As the judge
himself stated, "employees could have genuine
desire to be represented by a Union but no interest
whatsoever in being an officer or steward ." Third,
the correspondence asserts that four of the employ-
ees were union members , a clear majority of the
five unit employees.
The Respondent also relied on the fact that only
two of the five unit members had authorized dues
checkoff. However, the failure of a majority of the
unit employees to authorize dues checkoff is not in-
dicative that a majority of the employees no longer
want to be represented by the Union. First, the col-
lective-bargaining agreement makes it clear that
dues-checkoff authorization was entirely voluntary
on the part of the employees. Second , and in any
event , it is well settled that failure of employees to
authorize dues checkoff does not indicate opposi-
tion to, or loss of support for continued representa-
tion by, the union in question.8
The Respondent also relied on the Union's ap-
parent inactivity , as purportedly evidenced to
Howes by the questions and remarks of Swinehart
and Hedges, respectively , as set out above; the fact
that the Union had not filed any grievances in over
a year (since . January 1986); and the fact that
Howes had not seen or heard from any union offi-
cial in approximately 8 months (since July 1986).
Contrary to the judge , we find that the above
facts do not support the Respondent 's asserted rea-
sonable doubt about the Union 's continued majori-
ty status . First, it is well settled that an absence of
grievance activity, or even a union's general inac-
tivity, vis-a-vis, an employer, is not an indication
that a majority of the unit employees no longer
8 Atlanta Hilton & Towers, 278 NLRB 474 ( 1986).
970 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
wish to be represented by their union .9 Second,
under the particular circumstances of this case,
which , as will be discussed below , were well
known to and understood by Howes, the absence
of grievance activity from early 1986 was not un-
usual , was reasonably foreseeable , and, in any
event, was not indicative of a loss of support for
the Union among the five unit employees in March
1987.
The Respondent had recognized the Union in
1972 as the representative of the Respondent 's driv-
ers, mechanics , and dispatchers . But beginning in
September 1985 the Respondent 's approximately 20
driver employees began to convert to independent
contractor status , no longer employed by the Re-
spondent . By March 1986, this conversion was es-
sentially complete, and what had been a 25-em-
ployee unit composed mostly of drivers had
become a 5 -employee unit comprised 3 mechanics
and 2 spotters . When the drivers had been unit em-
ployees , prior to 1986 , they had been the principal
source of grievances . Thus, according to Howes,
he received 10 or 11 grievances from the Union
during the 3 years prior to the conversion of the
drivers to independent contractor status, and
"most" of those grievances were filed by the driv-
ers. Howes conceded that he did not have "too
much trouble" from the mechanics and spotters re-
maining in the unit . Indeed , according to Howes,
"I really didn't have too much trouble from any-
body . . . no, I didn 't. I didn 't [have] many griev-
ances , and we had a good relationship ." Thus, by
Howes' own account , he had enjoyed a good rela-
tionship with his employees ; the Union had a histo-
ry of not filing many grievances ; most of the griev-
ances that were filed were filed by the drivers;
these drivers left the unit in late 1985 and early
1986; and Howes particularly did not have "too
much trouble " from the five employees remaining
in the unit-the mechanics and spotters. Under
these circumstances , we find that Howes could not
reasonably construe the absence of grievances since
the drivers left the unit as an indication that a ma-
jority of the five mechanics and spotters remaining
in the unit no longer wished to be represented by
the Union. Indeed , as the judge himself states in
the attached decision , "Some of the factors were
ambiguous , e.g., no grievances could mean the
members simply have no problems and that the Re-
spondent was complying with the collective bar-
e See Roman Iron Works, 282 NLRB 725 (1987), Cowles Publishing Co.
NLRB 903 (1986), Royal Vending Services, 275 NLRB 1222 (1985) See
generally JVLRB v Flex Plastics, 726 F 2d 272 (6th Cir 1984) (an employ-
er must consider a union's inaction from all of the circumstances before
entertaining good-faith doubts of majonty status) As seen in the follow-
ing discussion, the Respondent did not reasonably assess the Union's inac-
tivity in light of all the circumstances
gaining agreement and not reflect lack of interest in
the Union."
For this same reason, we do not find that the
failure of the Union to contact Howes during the 8
months between the resolution of the last grievance
in July 1986 and the Union's March 1987 notifica-
tion to the Respondent that it wanted to begin ne-
gotiations for a new collective-bargaining agree-
ment to be an objective consideration on which the
Respondent could base a reasonable doubt that the
Union continued to have the support of a majority
of the unit employees. Quite simply, the Union may
not have felt any need to speak with Howes during
these months.
Finally, the Respondent relied on the fact that
for more than a year prior to the March 1987 poll
in question Howes had not seen any union postings
on the employee bulletin board. There is a bulletin
board in the drivers' room, which is used for both
company and union postings. The Union had regu-
larly posted notices of union meetings, but Howes
had not seen any such notices posted since about
March 1986. However, it was in March 1986 that
the drivers completed their conversion from their
former status as unit employees, represented by the
Union, to their current status as independent con-
tractors, no longer represented by the Union. Thus,
the absence of union postings on the drivers' room
bulletin board is most reasonably explained by the
fact that union notices ceased being posted there
about the same time that the drivers themselves
were ending their relationship with the Union, by
becoming independent contractors. Although three
mechanics and two spotters were still in the unit
and represented by the Union, the drivers' room,
according to Howes, was not used by the mechan-
ics and spotters: "No, not really. That was basically
the drivers' room. The mechanics had their own
room, where they have a desk and their files and
records." (Emphasis added.) The mechanics' room,
located about 25 feet from the drivers' room, did
not have a bulletin board. i ° Under all these cir-
cumstances, we find that there was no reasonable
grounds for Howes to construe the absence of
union postings on the bulletin board in the inde-
pendent contractor drivers' room as an indication
that a majority of the five mechanics and spot-
ters-who had their own room, albeit without a
bulletin board-no longer wanted to be represented
by the Union.
In accordance with the above analysis, we find
that none of the factors relied on by the Respond-
ent in support of its asserted reasonable doubt
10 The mechanics and spotters were nevertheless regularly and fre-
quently in the driveis' room, picking up and leaving off reports
HOWARD M . HOWES, INC.
about the Union's continued majority status consti-
tutes in itself a sufficient objective consideration to
support such a doubt . Nor do we find that these
same individually insufficient factors , even when
considered cumulatively, constitute sufficient ob-
jective considerations to support such a doubt.' 1
Thus, we conclude that the Respondent, lacking
at the time reasonable doubt about the Union's con-
tinued majority status , acted unlawfully, in viola-
tion of Section 8(a)(1) of the Act, in conducting a
poll of its employees to determine whether a ma-
jority of them still wanted to be represented by the
Union. Having found that the poll was unlawful,
we find that the Respondent was therefore not en-
titled to rely on the results of that poll in deciding
to withdraw recognition from the Union. We fur-
ther find that the Respondent was not otherwise
entitled to withdraw recognition from the Union,
and we conclude, therefore, that the Respondent's
withdrawal of recognition from and refusal to bar-
gain with the Union was also unlawful , in violation
of Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
1. The Respondent , Howard M. Howes , Inc., is
an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union, United Steelworkers of America,
Local 14094, AFL-CIO-CLC is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. At all material times the Union has been the
designated and recognized exclusive collective-bar-
gaining representative of the Respondent's drivers,
mechanics, and dispatchers.
4. By polling its employees to determine whether
a majority of them still wanted to be represented
by the Union, the Respondent violated Section
8(a)(1) of the Act.
5. By withdrawing recognition from and refusing
to bargain with the Union, the Respondent violated
Section 8(a)(5) and (1) of the Act.
6. The above violations of the Act are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
" In making these findings , we are, of course, applying the Board's
well-established standard for when an employer may lawfully poll its em-
ployees to determine if a majority of those employees still wish to be rep-
resented by an incumbent union . As discussed in fn. 2 above , however,
we are mindful that the case arises in the Sixth Circuit Court of Appeals,
and that the court applies a different standard for determining whether an
employer has acted lawfully in conducting such a poll. More specifically,
the Sixth Circuit has held that an employer may poll its employees to
determine their union sentiment if it has substantial , objective evidence of
a loss of union support , even if that evidence is insufficient in itself to
justify withdrawal of recognition. Thomas Industries Y. NLRB, 687 F.2d
863, 867 (6th Cir . 1982). In our view , and as fully discussed above, we do
not find that the evidence proffered by the Respondent constitutes "sub-
stantial , objective evidence of a loss of union support."
971
REMEDY
Having found that the Respondent has violated
Section 8(a)(1) and (5) of the Act, we shall order it
to cease and desist and to take certain affirmative
action designed to effectuate the policies of the
Act.12
ORDER
The National Labor Relations Board orders that
the Respondent, Howard M. Howes , Inc., Balti-
more , Ohio, its officers, agents , successors, and as-
signs, shall
1. Cease and desist from
(a) Polling its employees about whether they
want to continue to be represented by the Union
when at the time of polling the Respondent does
not have a reasonable doubt , based on objective
considerations, that a majority of the employees
want to continue to be represented by the Union.
(b) Withdrawing recognition from and refusing
to bargain with the Union at a time when either
the Union has not actually lost the support of a ma-
jority of the employees in the bargaining unit or
the Respondent does not have a reasonable doubt,
based on objective considerations, that a majority
of the employees want to continue to be represent-
ed by the Union.
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise 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) On request of the Union, recognize and bar-
gain with the Union as the designated and recog-
nized exclusive collective-bargaining representative
of the Respondent's drivers , mechanics, and dis-
patchers.
(b) Post at its facility copies of the attached
notice marked "Appendix." 13 Copies of the notice,
on forms provided by the Regional Director for
Region 9 , after being signed by the Respondent's
authorized representative, shall be posted by the
Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous
places including all places where notices to em-
ployees are customarily posted . Reasonable steps
i s The General Counsel has requested that the Order include a visits-
tonal clause . Under the circumstances of this case , we find it unnecessary
to include such a clause. See Cherokee Marine Terminal, 287 NLRB 1080
(1988).
13 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."
972 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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.
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 poll our employees about whether
they want to continue to be represented by the
Union unless we have a reasonable doubt, based on
objective considerations, that a majority of our em-
ployees no longer want to be represented by the
Union.
WE WILL NOT withdraw recognition from or
refuse to bargain with the Union at a time when
either the Union has the support of a majority of
the employees in the bargaining unit or we do not
have a reasonable doubt, based on objective con-
siderations, that a majority of the employees want
to continue to be represented by the Union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of your rights guaranteed in Section 7 of the
National Labor Relations Act.
WE WILL, on request, recognize and bargain
with the Union as the designated and recognized
exclusive collective-bargaining representative of
our drivers, mechanics, and dispatchers.
HOWARD M. HOWES, INC.
Carol L Shore, Esq., for the General Counsel.
Catherine Adams, Esq., of Columbus, Ohio, for the Re-
spondent.
Robert Andrews, of Columbus, Ohio, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
MARTIN J. LINSKY, Administrative Law Judge. On 4
April 1987, a charge was filed by United Steelworkers of
America, Local 14094, AFL-CIO-CLC, the Union or
the Charging Party, against Howard M. Howes, Inc.,
Respondent.
On 20 May 1987, the National Labor Relations Board,
by the Acting Regional Director for Region 9, issued a
complaint that alleges that Respondent violated Section
8(a)(1) and (5) of the National Labor Relations Act (the
Act) when it withdrew recognition from the Union and
refused to negotiate with the Union concerning a succes-
sor collective-bargaining agreement . Respondent filed an
answer in which it admitted that it withdrew recognition
from the Union and refused to negotiate with the Union
but denied that it violated the Act in any way because, it
claims, it had a good-faith doubt of the Union's majority
support that caused it to conduct a lawful poll that
showed no support at all for continued union representa-
tion by the member of the bargaining unit.
A hearing was held in Columbia, Ohio, on 8 July 1987.
On the entire record in this case, to include posthear-
ing briefs submitted by the General Counsel and Re-
spondent and on my observation of the demeanor of the
witnesses, I make the following
FINDING OF FACT
I JURISDICTION
Respondent Howard M. Howes, Inc. is, and has been
at all times material, an Ohio corporation with an office
and place of business in Baltimore , Ohio, where it is en-
gaged as a trucking contractor involved in the transpor-
tation of freight.
Respondent admits, and I find, that it is now, and has
been at all times material , an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find , that United Steelwork-
ers of America, Local 14094, AFL-CIO-CLC is now,
and has been at all times material a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Issues
Respondent admits that in a letter to the Union dated
30 March 1987, it withdrew recognition from the Union
and refused to bargain with the Union regarding a suc-
cessor collective-bargaining agreement to replace the one
due to expire 23 May 1987. The Union had previously
sent a letter to Respondent dated 13 March 1987 request-
ing bargaining regarding a successor agreement to the
one due to expire 23 May 1987.
Respondent claims that it had a reasonable good-faith
doubt as to the continued majority status of the Union
among the bargaining unit members and conducted a
HOWARD M. HOWES , INC. 973
lawful poll in which all five unit members said they did
not wish to be represented by the Union.
Because it is conceded by the General Counsel that
the poll was conducted in accordance with the standards
enunicated in Strucksnes Construction Co., 165 NLRB
1062 (1967), and because the results of the poll were five
to zero against continued representation by the Union,
the only issue is whether Respondent could lawfully con-
duct the poll . In other words , did Respondent , when it
conducted the poll on 21 March 1987 , possess sufficient
objective evidence to doubt in good faith the Union's
majority support . If so, the complaint should be dis-
missed . If not, Respondent should be ordered to recog-
nize the Union and bargain with it in good faith.
B. Background and Discussion
Since approximately 1972 Respondent has recognized
the Union as the exclusive bargaining representative for
its drivers, mechanics, and dispatchers . Respondent and
the Union had entered into a number of collective-bar-
gaining agreements , the most recent of which was effec-
tive by its terms for the period 23 May 1984 through 23
May 1987.
Beginning in September 1985 and because of economic
difficulties Respondent began to restructure its work
force. Its drivers went from being employee drivers who
drove Respondent 's trucks to independent contractors,
who were not employees of Respondent and who owned
and drove their own trucks . By March 1986 the net
result of this restructuring , which was accomplished by
attrition and with apparent union approval , was that the
number of employees in the bargaining unit represented
by the Union declined from approximately 25 employees,
the vast majority of which were drivers, to 5 employees.
The five employees remaining in the unit consisted of
three mechanics and two spotters.
On 13 March 1987 the Union notified Respondent in
writing of its desire to commence negotiations for a new
collective-bargaining agreement to replace the one due
to expire on 23 May 1987 . At this time there were five
employees, i.e., three mechanics and two spotters, in the
unit. The mechanics and their dates of hire were Mark
Swinehart (6 April 1982), Todd Bader (3 March 1986),
and Tom Morris ( 15 August 1986). The spotters and
their dates of hire were Lloyd Hedges (6 July 1963) and
Don Young (1 July 1986).
Howard M. Howes, Respondent 's vice president and
the person in charge of labor management matters for
Respondent , decided to conduct a poll of the employees
in the unit to see if they still wished to be represented by
the Union.
His reasons for conducting the poll were as follows:
1. Although the collective-bargaining agreement called
for mandatory dues checkoff that would be activated
when the Union submitted a written document from the
employee authorizing dues checkoff to Respondent, only
two of the five members of the unit , i.e., Lloyd Hedges
and Mark Swinehart , had dues checked off.
2. None of the five employees in the bargaining unit
was either a union officer or designated as a steward.
3. No grievances had been filed since January 1986.
4. For more than a year prior to the March 1987 poll
Howes had not seen any union postings on the employee
bulletin board.
5. With the exception of an arbitration hearing in July
1986 growing out of a grievance filed in January 1986
Howes had not seen or heard from Robert Andrews, the
Union's business representative or any other union offi-
cial.
6. In late February or early March 1987 Howes com-
mented to employees Mark Swinehart that negotiations
for a new contract would be coming up and he (Howes)
wondered who would be representing the Union and
Swinehart , according to Howes "questioned whether or
not there was still a union that was active at the location,
and whether or not a union was necessary at all,"'
7. On a number of occasions for about a year prior to
March 1987 Howes heard comments from longtime em-
ployee Lloyd Hedges to the effect that the employees
had not seen the Union at the workplace for a long time
and the only thing the employees really got from the
Union had been breakfast-an apparent reference to the
fact that breakfast would be served at the union meetings
that were held in the mornings-and, further, Hedges
told Howes that the Union did not have meetings any
more.
8. In late February or early March 1987 Don Baker,
who formerly had been an employee truckdriver for Re-
spondent and who was now an independent contractor
and no longer in the unit , came to see Howes. Baker,
who had been recording secretary for the Union when
he was an employee, voluntarily gave a pile of mail to
Howes, which mail Baker had received from the Union,
Baker gave it to Howes because Baker had no interest in
it because he was no longer a member, much less an offi-
cer, of the Union. Howes looked at this mail matter that
disclosed that the members of the unit had so little inter-
est in serving in union positions that the local had been
placed in administratorship and Robert Andrews named
as administrator.
Based on the above Howes concluded that Hedges and
Swinehart, the only employees in the unit who were
union members and who had their dues checked off, had
little interest in continued representation by the Union,
and that none of the remaining three members of the
unit, i.e., Young , Bader, or Morris had any interest at all
in the Union because they were not even members.
Howes consulted legal counsel and was advised how
to conduct a poll of his employees to determine if they
wished to continue to be represented by the Union.
Counsel 's instructions included written instructions,
which contained the suggestion that the Union be con-
tacted and offered the opportunity to be present at the
polling . Howes did not call Robert Andrews , union staff
representative , however, until the day before the poll
and Andrews was not able to be present due to a prior
engagement . There is no evidence that Andrews contact-
ed any of the employees in the unit to talk to them about
the poll although he was obviously at liberty to do so
1 Employee Swinehart testified in Respondent 's case and corroborated
Howes' testimony that Swinehart asked Howes if having a union was
necessary.
974 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
nor is there any evidence that Andrews sought to have
the poll delayed until he was able to be present. The em-
ployees were told to report for a meeting on 21 March
1987, they did so, and were told for the first time that a
poll was to be conducted. A local attorney, Bill Hayes,
conducted the poll that was to be a secret written ballot.
All five employees in the unit voted "no" to the question
"Do you wish to be represented by the United Steel-
workers of America?" Thereafter, Respondent withdrew
recognition from the Union effective 23 May 1987 when
the collective-bargaining agreement expired. Respondent
honored the terms and conditions of the contract until it
expired on 23 May 1987 but refused to negotiate a suc-
cessor collective-bargaining agreement.
It is my conclusion that based on all the evidence
available to Respondent that Respondent had an objec-
tive basis for doubting the Union's majority status such
that it was authorized to conduct the poll. Thomas Indus-
tries, 255 NLRB 646, 647 (1981), enf. granted in part and
denied in part 687 F.2d 863 (6th Cir. 1982). Any poll
would be required to be conducted in accordance with
the standards enunciated in the case of Strucksnes Con-
struction Co., supra.2
The cumulative effect of the eight factors noted above,
which prompted Respondent to conduct the poll, were
such that any reasonable person would doubt the Union's
continued majority support. The only two members of
the Union, Hedges and Swinehart, criticized the Union
and Swinehart questioned the need for the Union and al-
though neither circulated a petition to decertify the
Union it was plainly apparent that at least Swinehart did
not support the Union. None of the other three employ-
ees in the unit-Bader, Morris, or Young-were even
members of the Union. None of the five were officers.
There was no steward. There was no union presence and
had not been for over a year. It would appear to a rea-
sonable person that the employees were not interested in
the Union and vice versa. When the Union was advised
that Respondent was going to conduct the poll it did not
even attempt to persuade Respondent to postpone the
poll. Some of the factors were ambiguous, e.g., no griev-
ances could mean the members simply have no problems
and that Respondent was complying with the collective-
bargaining agreement and did not reflect lack of interest
in the Union. Further, employees could have a genuine
desire to be represented by a Union but no interest what-
soever in being an officer or steward. But the cumulative
effect of all the factors clearly establishes a good-faith
doubt of continued majority support.
A poll is justified only if the employer has an objective
basis for doubting in good faith the Union's majority
status. The Board in Thomas Industries, supra, took the
position that an employer must set forth objective evi-
dence establishing that over 50 percent of the affected
2 Absent unusual circumstances, the polling of employees by an em-
ployer will be violative of Sec 8(a)(1) of the Act unless the following
safeguards are observed ( 1) the purpose of the poll is to determine the
truth of a union's claim of majonty, (2) this purpose is communicated to
the employees , (3) assurances against reprisal are given, (4) the employees
are polled by secret ballot, and (5) the employer has not engaged in
unfair labor practices or otherwise created a coercive atmosphere
employees have rejected the incumbent union as their
representative before the employer may take a poll. The
Sixth Circuit, in enforcing in part and rejecting in part,
the Board's decision in Thomas Industries, supra, adopted
a different test and held that "an employer may poll its
employees to determine their union sentiment if it has
substantial, objective evidence of a loss of union support,
even if that evidence is insufficient in itself to justify
withdrawal." Thomas Industries v. NLRB, 687 F.2d 863,
867 (6th Cir 1982) Under either test I conclude that Re-
spondent in this case could conduct a poll.3 Swinehart's
comments to Howes and the failure of Bader, Morris,
and Young to even join the Union reflect lack of interest
in union representation by four of the five members or
80 percent of the unit and Hedges, the fifth and last
member of the unit, was critical of the Union in numer-
ous comments to Howes over a period of a year.4 The
combination of this and the other factors cited above
permitted Respondent, in my opinion, to conduct the
poll.
I note, however, as did the Sixth Circuit in Thomas In-
dustries v. NLRB, supra at 869, that the filing of a decer-
tification petition would have been a better way to
handle the matter of determining continuing union sup-
port than conducting a poll. I conclude, in addition, that
Respondent acted in good faith when I consider what it
did in light of the totality of all the circumstances. Celan-
ese Corp. of America, 95 NLRB 664, 673 (1951).
Although the results of a poll cannot be used to justify
the taking of a poll I note that all five members of the
unit voted unanimously against continued union repre-
sentation and there was no evidence that any voter in the
poll was coerced or tricked into voting "no" when he
really wanted to vote "yes" regarding continued repre-
sentation.
Lastly, the unit consists of only five employees and the
Union is obviously at liberty to conduct an organizing
campaign among these employees. Because this is a very
small unit it does not appear that an organizing campaign
will be too great an exercise if the employees change
their mind and want representation.
CONCLUSIONS OF LAW
1. Howard M. Howes, Inc. is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. United Steelworkers of America, Local 14094,
AFL-CIO-CLC is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent has not engaged in the unfair labor
practices alleged in the complaint.
[Recommended Order for dismissal omitted from pub-
lication.]
8 I note that Respondent , an Ohio corporation , is within the jursdic-
tion of the Sixth Circuit but that does not necessarily mean the Sixth Cir-
cuit would handle this case if the matter goes to the court of appeals See
Arvin Industries, 285 NLRB 753 (1987).
* Although new employees are ordinarily presumed to support an in-
cumbent union in the same proportion as their predecessors (see Cutter
Supermarket, 220 NLRB 507 (1975)), in the instant case the three new
employees had nothing whatsoever to do with the Union