Louisiana-Pacific Corp.

National Labor Relations Board - Board Decisions

May 21, 1987

283 N.L.R.B. 1079 (N.L.R.B. 1987)

LOUISIANA-PACIFIC CORP.
Louisiana-Pacific Corporation and Millmen's Local
No. 1495, United Brotherhood of Carpenters
and Joiners of America. -Case 20-CA-19070
21 May 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
BABSON AND STEPHENS
On 10 May 1985 Administrative Law Judge Mi-
chael D. Stevenson issued the attached decision.
The General Counsel filed exceptions and a sup-
porting brief, the Charging Party filed exceptions
and a supporting brief, and the Respondent filed a-
reply brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm -the judge's rulings, findings,1 and
conclusions only to the extent consistent with this
Decision and Order.
The record shows that on 12 March 19842 the
Respondent purchased the assets of Diamond Inter-
national Corporation.3 Diamond's employees were
laid off. At that time, the Union had been the rep-
resentative of Diamond's employees since 1937,
and Diamond and the Union were parties to a col-
lective-bargaining agreement due to expire in July
1985. About the time of the sale, the Respondent's
plant manager, Peruman, began interviewing candi-
dates for employment, including a number of Dia-
mond's employees. During the course of these
interviews, several applicants, who were former
Diamond employees, made unsolicited negative
comments about unions in general and the Charg-
ing Party in particular. As of 16 April the Re-
spondent had hired a complement -of 83 unit em-
ployees, '78 of whom were former Diamond em-
ployees.
By letter dated 17 April, the Union's president
Holm informed the Respondent that the Union rep-
resented a' majority of the Respondent's employees,
that this majority consisted of former Diamond em-
ployees, and that, as a successor to Diamond, the
Respondent was obligated to bargain with the
Union. The letter also requested that the Respond-
1 The General Counsel and the Charging Party have excepted to some
of the judge's credibility findings. 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
a All dates are 1984 unless noted otherwise
The judge found that the' Respondent is a legal successor to Dia-
mond International and there were no exceptions taken to that finding.
1079
ent contact Holm to arrange a meeting for the pur-
pose of collective bargaining. On 23 April the Re-
spondent's personnel manager' agreed, to meet with
Holm and other union officials to discuss the
Union's position, but not to negotiate. This conver-
sation was confirmed by letter from the Respond-
ent to the Union dated 25 April. At a meeting held
27 April, the Respondent expressed doubt regard-
ing the Union's claim that it represented a majority
of the Respondent's employees.4 Holm again as-
serted the Union's claim as' to its majority status
and requested bargaining. The Respondent then
proposed, inter alia, an expedited election on this'
matter, but did not accede to the demand for bar-
gaining.
Following the Union's request for bargaining on
17 April, the Respondent continued to receive re-
ports of employee dissatisfaction with the' Union,
from both employees and supervisors. -On 20 July
the Respondent held a poll for the purpose of de-
termining employee support for the Union. The re-
sults of the poll showed 21 votes for, and 75 votes
against, continued union representation.
The judge found that the Respondent's refusal to
recognize and bargain with the Union was justified
on the basis that the Respondent had relied,on evi-
dence sufficient to establish a reasonably based
doubt of the Union's majority status as of 17 April
1984. The judge also found the 20 July 1984 poll of
employees was not unlawful as it was untainted by
unfair labor practices and similarly was based on
objective factors which placed the Union's majori-
ty status. in doubt We disagree for the reasons
below.
We find insufficient support- for the Respondent's
claim that it had a reasonably based doubt of the
Union's majority, status on 17 April. In order to
find a reasonably based doubt, the Board has long
held that the asserted doubt must be based on ob-
jective considerations and raised in a context free
of unfair labor practices. See, e.g., Golden State Ha-
bilitation Convalescent Center, 224 NLRB 1618
(1976); Terrell Machine 'Co., 173 NLRB 1480
(1969), enfd. 427 F.2d 1088 (4th Cir. 1970).
The record shows that the Respondent based its
withdrawal of recognition-on 17 April on the fact
that approximately 15 former Diamond employees
had made unsolicited declarations to the Respond-
ent regarding their dissatisfaction with the Union
or union representation.5 Of these 15 employees, 6,
' The evidence that formed the basis for the Respondent's claim is dis-
cussed below.
5 The judge indicated that Peruman received such comments from
"man}" employees. He then specified 12 employees The judge indicated
that Supervisor William Reidenhauer had said he also spoke to "many"
Continued
283 NLRB No. 161
1080 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
stated in employment interviews that they no
longer wished to be working in a union shop be-
cause unions discriminated against good employees,
and 6 stated in employment interviews that they
did not wish to be represented by the Union. Addi-
tionally, two employees, including Sanders, a
former union shop steward, expressed the hope to
Supervisor Reidenhauer that the employees would
not get the Union back, and one employee, Charles
Harker, a former member of the Union's negotiat-
ing committee, expressed the view to Reidenhauer
that a majority of employees, including himself, did
not want the Union.
The record also shows that Robert Thayer, a
former union vice president and trustee, testified
that sometime after he was hired on 16 April, he
spoke' i6to between 30.-45 employees who did not
want the Union' and approximately 15 employees
who indicated that the Union might be better than
"nothing. Thayer conveyed these sentiments to
the Respondent sometime in late April or early
May (after 17 April but before the 20 July poll).
The foregoing demonstrates that as of 17 April,
the day,on which the Respondent withdrew recog-
nition from the Union, the evidence of employee
dissaffection with the Union -known to the Re-
spondent 'consisted of the statements of approxi-
mately 15 employees.6 We fmd these '15 cited in-
stances of employee sentiment, without more, and
representing the views of less than 20 percent of
the' complement of 83 employees, insufficient to
support the Respondent's claim of a reasonably
employees who made unsolicited comments about their desire not to be
represented by the Union He named 6 employees , 3 of whom were al-
ready included in Peruman 's total of 12 . Thus, a total of 15 different em-
ployees were named by the Respondent.
s With respect to the statement of employee Harker purporting to rep-
resent the views of other employees, we find that little weight can be-ac-
corded to such a statement. Otherwise, "a few antiunion employees could
provide the basis' for a withdrawal of recognition when in fact there is
actually an insufficient basis for doubting the Union's continued majori-
ty." Golden Spite Habilitation Convalescent Center, supra at 1619-1620
The Respondent contends that evidentiary weight should also be given'
to 27 April reports of a lack of employee support from the Union's presi-
dent Holm, relying on J & J Drainage Products Co., 269 NLRB 1163
(1984) Holm's statements to management regarding the degree of em-
ployee support for the Union were made at a meeting on 27 April, some
10 days after the Respondent refused to recognize the Union It is well
settled that an employer is not entitled to rely on reports of employee
disaffection with the union to support a claim of reasonable doubt as to
the union 's' majority after it has withdrawn recognition See, e g., First
Food Ventures, 229 NLRB 1228, 1230 (1977). Further, to the extent that
the,Respondent relies on J & J Drainage Products to suggest that the testi-
mony regarding employee disaffection with the Union from former
Union Officials Harker and Sanders likewise warrants greater weight, we
find no merit to this contention In J & J Drainage Products, the Board
found that statements by a union officer that most of the unit employees
did not want the union were entitled to greater weight where the report
came from one of two current shop stewards in a relatively small unit of
32 employees Here, the individuals making the reports were a former ne-
gotiating committee member and a former union shop steward whose
term expired approximately 3 years before the events in issue . We see no
reason to - impute special knowledge regarding current employee union
sentiment to these two individuals because of their former positions.
based doubt of the Union's majority status.7 Thus,
we fmd that the Respondent's refusal to bargain
with the Union as of the time of the -Union's re-
quest on 17 April to be unlawful.8
The judge also found that the 20 July poll was
lawfully predicated upon an objective basis for
doubting the Union's majority status. In light of the
foregoing, however, we fmd that the Respondent's
unlawful refusal to bargain on 17 April undermined
any objective basis that it otherwise might have
had to conduct, the 20 July poll of its employees.
Accordingly, we find that the poll violated Section
8(a)(1) of the Act.9
ORDER
The National Labor Relations Board orders that
the Respondent, -Louisiana Pacific Corporation,
Chico, California, its officers, agents ; successors,'
and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Millmen's Local
No. 1495, United Brotherhood of Carpenters and
Joiners of America, as the exclusive representative
of the employees in the following appropriate bar-
gaining unit:
All production and maintenance employees
employed by Respondent at its Chico, Califor-
nia facility, excluding clerical employees,
guards and supervisors as defined in the Act. -
(b) Polling or otherwise interrogating its employ-
ees to ascertain their union views in the absence of
7 See, e g ., Cornell of California, 222 NLRB 303, 306 (1976), enfd 577
F 2d 513 (9th Cir 1978)
In reaching a contrary conclusion, the judge relied on Riverside Product
Co., 242 NLRB 615 (1979), and U-Save Food Warehouse , 271 NLRB 710
(1984) We find these cases inapposite. In those cases, unlike here, the
employer based its claim of a reasonably based doubt of the union's ma-
jority status on the views expressed by a clear majority of the employees
We find that Sofco, 268 NLRB 159 (1983), also relied on by the judge,
is inapposite In Sofco, virtually all the employees told the plant manager
that they desired to be rid of the union. Further, as noted in fn 10 of
Sofco, "testimony concerning conversations directly with the employees
involved, as here, is much more reliable than testimony concerning
merely a few employees ostensibly conveying the sentiments of their fel-
lows See NLRB v Middleboro Fire Apparatus, 590 F.2d 4, enfg. 234
NLRB 888 (1978)." In the present case, the Respondent's impressions of
employee sentiment, inferred from that of a few employees, does not
rebut the presumption of continued majority status
8 The judge found that Thayer's testimony set forth above, although
not directly related to evidence regarding the lack of union support
before '17 April tended to corroborate the testimony of other witnesses
who informed the Respondent of antiunion sentiment Contrary to the
judge, we find such evidence irrelevant to a determination of whether the
Respondent had objective considerations sufficient to support a reason-
ably based doubt as to the continued majority status of the Union, where
the evidence concerns conversations occurring after the Respondent had
unlawfully failed to bargain and where the Respondent's action may have
contributed to an erosion of employee support for the Union See, e.g,
Orion Corp, 210 NLRB 633, 634 (1974), enfd 515 F2d 81 (7th Cir
1975)
9 We need not pass on the General Counsel's contention that the
manner in which the poll was taken was unlawful.
LOUISIANA-PACIFIC CORP.
objective considerations warranting a reasonable
doubt of the Union's continuing status as the col-
lective-bargaining representative of the majority of
its employees.
(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, bargain with the Union as the ex-
clusive representative of the employees in the fol-
lowing appropriate unit concerning terms and con-
ditions of 'employment and, if an understanding is
reached, embody the understanding in a signed
agreement:
All production and maintenance employees
employed by Respondent at its Chico, Califor-
nia facility, excluding clerical employees,
guards and supervisors as defined in the Act.
(b) Post at its Chico, California facility copies of
the attached notice marked "Appendix."10 Copies
of the notice, on forms provided by the Regional
Director for Region 20, after being signed by the
Respondent's authorized representative, shall be
posted by the Respondent- immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to employees are customarily posted . Reason-
able 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.
CHAIRMAN DOTSON, dissenting.
I agree with the judge that even assuming it was
a successor employer the Respondent had on 17
April 1984 a sufficient objective basis for doubting
the Union's majority status . Therefore, the Re-
spondent did not act unlawfully when it refused to
bargain with the Union. Accordingly, I would
adopt the judge's recommendation that the com-
plaint be dismissed.
10 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
1081
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Governijient
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 Millmen's
Local No. 1495, United Brotherhood of Carpenters
and Joiners of America, as the exclusive represent-
ative of our employees in the bargaining unit found
below.
WE WILL NOT poll our employees or otherwise
ask them about their union views, in the absence of
objective considerations warranting a reasonable
doubt of the Union 's continuing status as the col-
lective-bargaining representative of the majority of
our employees.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL, on request, 'bargain with the Union
and put in writing and sign any agreement reached
on terms and conditions of employment for our
employees in the bargaining, unit:
All production and maintenance employees
employed by us at our Chico, California facili-
ty, excluding clerical employees, guards and
supervisors as defined in the Act.
LOUISIANA-PACIFIC CORPORATION
Sally Spencer, Esq., for the General Counsel.
Charles S. Loughran, Esq., of Walnut Creek, California,
for the Respondent.
DECISION
STATEMENT OF THE CASE
MICHAEL D. STEVENSON, Administrative Law Judge.
This case was tried before me at Chico, California, on 10
1082 DECISIONS OF THE NATIONAL LABOR. RELATIONS BOARD
January 1985,1 pursuant to a complaint issued by the Re-
gional Director for Region 20 on 30 August 1984, and is
based on a charge filed by- Millmen's Local No. 1495,
United Brotherhood of Carpenters and Joiners of Amer-
ica (the Union), on 20 June. The complaint alleges that
Louisiana Pacific Corporation (Respondent) has engaged
in certain violations of Section 8(a)(1) and (5) of the Na-
tional Labor Relations Act.
Issues
(1) Whether Respondent is a successor to Diamond
International Corporation and is therefore legally re-
quired under the Act to recognize and bargain with the
Union, the designated exclusive bargaining representative
of a production and maintenance unit at Diamond.
(2) Whether, at all times relevant, Respondent pos-
sessed a good-faith doubt that the Union represents a ma-
jority of unit employees.
(3) Whether Respondent violated the Act by taking a
poll of unit employees about 20 July.
All-'parties were given -full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. Briefs,
which have been carefully considered, were filed on
behalf of the General Counsel and Respondent.
On the entire record of the case, and from my obser-
veration of the witnesses and their demeanor, I make the
following
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS
Respondent admits that` it is a Delaware corporation
engaged in the processing and wholesale distributing of
lumber and related products and having a plant located
in Chico, California. It further admits that during the
past year,' in the course and conduct of its business it has
purchased and received products, goods, and materials
valued in excess of $50,000 from suppliers outside the
State of California. Accordingly, it admits, and I find,
that it is an employer engaged in commerce and in' a
business affecting commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Milimen's Local No. 1495, United Brotherhood of
Carpenters - and Joiners of America is a labor organiza-
tion within the meaning of Section 2(5) of the Act.2
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
About 12 March, Respondent purchased the assets of
Diamond International Corporation (Diamond) wood re-
manufacturing plant located at Chico. Prior to the sale,
Diamond had a collective-bargaining relationship with
the Union for a production and maintenance unit extend-
ing back several decades. The Union was certified as the
' All dates refer to 1984 unless otherwise indicated
2 See Diamond International Corp, 271 NLRB 1051 (1984)
collective-bargaining representative of Diamond,employ-
ees in 1937. The last collective-bargaining agreement ex-,
ecuted on 12 July 1983, ran from 1983 to 1985 (G.C.
Exh. 2).
The first and only witness for the General Counsel
was Karl Holm, president and business representative for
the -Union for the past 5-1/2 years. Before his -present po-
sition and that of union -organizer for -6 months, Holm
worked for Diamond in its Chico plant for. 10 years.
Holm held various jobs-in' the plant including setup man,
millworker, and box factory employee. Between his jobs
with the Union and for Diamond in the plant, Holm was
familar with the various employee classifications in the
plant.
Regarding the plant itself, the parties stipulated to the
operations contained therein under -Diamond and the
number of employees employed in each:
(1) National wholesale sales-three hourly employees
represented by the Union under a separate contract cov-
ering that operation.
(2) Apiary supply (provided beekeeping supplies)-
three hourly employees represented by the Union under
a separate contract covering the operation.
(3) Trucking operation-13 employees under a, sepa-
rate collective-bargaining agreement with the Teamsters
Union.
(4) Prefinished plant facility-18 employees under, a
separate collective-bargaining agreement with the Team-
sters Union.
(5) Remanufacturing plant (the process of reprocessing
finished lumber into higher valued products such as
window frames, door -jambs, etc.)-approximately 150-
160 employees represented by the Union pursuant to
General Counsel's Exhibit 2.
It is further stipulated that -Respondent did not carry
on the operations described in paragraphs 1-4 above, and
therefore it did not hire any employees in those catego-
ries (R. Br. 134-135).
About 1 month before the sale, Holm began to hear
rumors about it. The first hard news did not reach Holm
until Saturday, 10 March, when Holm met with a com-
pany official named Cummings, who was vice 'president
of 'industrial relations for Diamond.- The latter informed
Holm that' the 130-150 unit employees then working in
the plant could complete their shift for the day and work
normal 'shift the following day. On Monday, 12 March,
Cummings said the men would report as usual, be, paid
for 2 hours showup time, and then be laid off by Dia-
mond. This is exactly what happened.
Almost immediately after the sale of assets, and possi-
bly even before, Respondent began its hiring process of
new employees. The selection of new employees was
done by Nathan Peruman, who was as of 12 March Re-
spondent's plant manager and a witness at hearing.
Before assuming his present job, Peruman was produc-
tion sales coordinator at Respondent's Red Bluff plant,
located about 40 miles from Chico. Peruman also previ-
ously worked for Diamond in the Chico plant for a
period of 5 years until November 1978, when he left to
work for Respondent.
LOUISIANA-PACIFIC CORP.
During the first 3 weeks after Respondent purchased
the assets of Diamond, Peruman personally interviewed
every applicant for employment spending about 15 min-
utes with each applicant. Advertisements for openings
had been placed in local radio and newspapers. Because
Respondent desired to hire experienced employees, most
persons hired were former Diamond employees. Peru-
man made a point of speaking to former Diamond super-
visors to inquire about the job applicants who had
worked at Diamond and ascertain who was the most
competent. During the interviews, Peruman explained
the differences between the new operation and the old
and asked each applicant about his prior background and
experience. Although Peruman never mentioned the sub-
ject of unions, several applicants made negative com-
ments about unions in general or Charging Party in par-
ticular. More about the conversations during the job
interviews will be provided below.
The parties agreed that as of 16 April, out of 83 unit
employees, 78 were former Diamond employees and
members of the bargaining unit represented by the Union
and were members of the Union (R. Br. 8-9). By 17
April Peruman had interviewed about 110 applicants. It
was also agreed that as of 20 July, out of 97 employees,
83 were former bargaining unit employees.3
Concerning supervisors, the parties agreed that the
plant manager under Diamond was changed. However,
four out of five supervisors of production and mainte-
nance under Diamond were hired by Respondent (R. Br.
10-11). The four were Ron Bolton, Gerald Sharp, Virgil
Schlect, and Bill Reidenhauer.
Regarding the plant operation, the location stayed the
same under both Diamond and Respondent. Certain
changes were made by Respondent, however, in the
product mix and in the customers serviced. These
changes will be discussed in detail below.
After the changeover began, Holm and other union of-
ficials contacted the membership by telephone, to ensure
that they submitted applications for new employment.
According to Holm, he attended to other-details as well,
such as on 16 April, engaging in a telephone call with
Don Gritz, Respondent's personnel manager at the Red
Bluff plant. Allegedly, Holm followed the prior instruc-
tions of union attorneys and told Gritz that because Re-
spondent was a successorship, the Union was demanding
bargaining as it represented -a majority of Respondent's
unit employees at Chico. Holm testified that Gritz re-
sponded by agreeing with him, saying that by law, Re-
spondent did have a duty to bargain with the Union.
Gritz promised to consult with Peruman to arrange a
meeting and get back to Holm.
On 17 April, Holm wrote a letter to Peruman that
read as follows:
Louisiana-Pacific Corporation
Sierra Division - Chico Operations
West 16th Street
Chico, CA 95926
ATTN: Nathan Peruman, Plant Manager
3 These figures compare to 115 production and maintenance- unit em-
ployees that had been employed by Diamond
Dear Mr. Peruman:
1083
Millmen 's Union Local 1495, United Brotherhood
of Carpenters and Joiners of America, AFL-CIO,
represents a majority of the employees who have
been hired at the Chico facility. This majority is
composed of former employees of Diamond Inter-
national Corporation which sold the facility to your
Company. As a successor employer you are obligat-
ed- to recognize and bargain with Local No. 1495
over the terms and conditions of employment of
these employees.
Please contact the undersigned at once in order
to arrange a meeting for the purpose of Collective
Bargaining.
Very truly yours,
/s/ Karl L. Holm
I note that this letter makes no reference to the alleged
conversation with Gritz I day earlier. Nor is it clear
why Holm wrote the letter because he supposedly had
agreement from Gritz that the Union's position was
valid. Holm testified on cross-examination" that he never
mentioned ,to Gritz later, nor to anyone else from Re-
spondent, the alleged concession from Gritz on 16 April.
Holm volunteered on cross that a union business agent
assigned to Respondent's Red Bluff plant, John Smith,
had told Holm that Gritz had made the same statement
to Smith. Smith was never called as a witness.
Respondent, however, called Gritz as a witness. He
denied making the statements attributed to Holm and
even denied talking to Holm on 16 April,4 Gritz did
admit that he spoke to Holm on or about 23 April and
agreed to meet with Holm and other union officials in
order to discuss the union position, but not to negotiate.
On 25 April, Gritz wrote a letter to Holm confirming
their conversation 2 days before. The letter reads as fol-
lows:
Mr. Karl L. Holm
Business Representative
Millmen's Local Union No. 1495, A.F.of L.
P.O. Box 3069
Chico, CA 95927
Dear Mr. Holm:
This will confirm my telephone discussion with
you on Monday, April 23, 1984 and Mr. Peruman's
later telephone call to you, agreeing to a' general
discussion meeting to be held in the conference
room of Louisiana-Pacific's Remanufacturing Plant,
Chico, California on Friday, April 27, 1984 at 9:00
A.M.
In the event any of the above does not correctly
reflect your understanding please contact me at
once.
Very truly yours,
/s/ Donald L. Gritz
4 Gritz also denied the alleged similar conversation with Smith.
1084 DECISIONS OF THE, NATIONAL LABOR RELATIONS BOARD
I credit Gritz here and find that on this major point
and one other to be discussed immediately below, Holm
was not truthful. Essentially Holm's testimony was not
only uncorroborated, but significantly impeached by his
own conduct and the "testimony of Respondent's wit-
nesses. I find that the Union's first demand for bargaining
was contained in Holm 's 17 April letter above.
' If Holm was merely incredible above, his other testi-
mony, to which I now turn, was totally preposterous. On
27 April a meeting was held in Respondent's conference
room in Chico. For the Union, there was Holm and a
man named Haskell, who never testified because he was
allegedly in the hospital.5 For 'Respondent, there was
Gritz, a company official named Merlow, who did not
testify, Peruman, and Respondent's counsel at hearing,
Charles S. Loughran. According to Holm, Peruman
began by expressing serious doubts whether the Union
represented a majority of Respondent's unit employees at
Chico. Peruman explained that in the course of inter-
viewing applicants for employment and while in the
plant, several employees had expressed unsolicited nega-,
tive comments regarding the Union. Holm stated he was
not surprised at this because he had told several persons
who were applying for jobs with Respondent, to say
anything during the interview that might help get the
job,, including that the person did not like the Union. At
this meeting, Holm again claimed to represent a majority
of Respondent's Chico employees and demanded to ,bar-
gain with Respondent over a new contract. According to
Holm, Attorney Loughran in the presence of three com-
pany officials, then told Holm that he had a choice:
First, the Union-could agree to an expedited NLRB elec-
tion by stipulation without having to solicit authorization
cards; or, the Union could file charges with the NLRB
claiming Respondent was a successorship. Loughran al-
legedly added that while the Union would probably "win
under option two, it would take, 6 months down the
road.
Loughran denied the latter part of Holm's testimony,
testifying that he never suggested that the Union had a
good case or that it would win before the Board. Lough-
ran did agree that he discussed an expedited Board elec-
tion. To this proposal, Holm replied that he would have
to discuss it with union attorney, Mike Roger. Roger
was not present at hearing and was never called to testi-
fy. Loughran testified further that about 18 May, Roger
called him at which time the election proposal was again
discussed. Roger was noncommital.
Loughran concluded his testimony by describing his
association with Respondent. He provides industrial rela-
tions and labor law advice to Respondent that has 40-50
operations located on the West Coast. About 25 of these
facilities have contracts with various unions. However,
six plants are currently experiencing strikes. Both Gritz
and Peruman also denied in their testimony that Lough-
ran stated the Union would probably win an unfair labor
practice case before the Board.
5 No one ever requested a continuance of the case due to the unavail-
ability of Haskell, Smith, or anyone else Nor was the affidavit of any
witness ever, offered.
As indicated above, I credit Loughran on this point.
Not only was he corroborated while Holm was not, but
also it is beyond common, sense that a company attorney
would purport to give legal advise to a union , contrary
to- the best interests of the Company-while company of-
ficials were present,
- I turn now to decide the various issues in the case.
B. Analysis and Conclusions
1. Was Respondent a successor to Diamond
International and, if so, what duty did Respondent
owe to the Union?
In Contee Sand- & Gravel Co., 274 NLRB 574, 584-585
(1985), the Board approved a statement of the adminis-
trative law judge, about the legal test for a successor-
ship:6
In determining whether an employer is a succes-
sor of another employer , the Board has used , the fol-
lowing criteria : (1) whether there has been a -sub-
stantial continuity of the same busines operations;
(2) whether the new employer uses the same facili-
ties; (3) whether the new employer has the same or
substantially the same work force; (4) whether the
same jobs -exist under the same working conditions;
(5) whether the alleged successor employs the same
supervisors; (6) whether the same machinery , equip-
ment, and processes are used ; and (7) whether the
same product or services are offered . J-P Mfg., 194
NLRB 965, 968 (1972 ); Miami Industrial Trucks,
221 NLRB 1223, 1224 (1975). The Board does not
require that all of these factors be present, to find
successorship, but only enough to warrant a finding
that no basic change has occurred in the employing
industry . Lincoln Private Police, 189 NLRB 717, 720
(1971). Nor- does the Board require that the entire
business of the predecessor be taken over by the
successor , it being sufficient if a part of the, old op-
eration survives in the successor. Miami Industrial
Trucks, supra; Avenue Meat Center, 184 NLRB 826
(1970). -
In evaluating the above-listed , factors to determine
whether a successorship has, occurred, the Board does
not accord these factors equal weight. In Airport Bus
Service, 273 NLRB 561, 5,62 (1984), the Board stated:
Although all the circumstances are considered, the
key factor in making a successorship determination
is whether a majority of the new employer's bar-
gaining unit employees were members of the prede-
cessor's unit work force ' at or near the time it
ceased operations.
At page 12 of its brief, Respondent appears to concede
this central point.7 Professor Gorman opines that it is
6 See also Premium Foods, 260 NLRB 708, 714 (1982), enfd. 709 F.2d
623 (9th Cir. 1983).
° At a footnote on p 12, Respondent attempts to qualify its concession
by stating it does not concede that a, representative complement of em-
Continued
LOUISIANA-PACIFIC CORP.
possible to read the case of NLRB v. Burns Security Serv-
ices, 406 U.S 272 (1972), to hold that such a "successor
majority" (regardless of work similarity) is sufficient in
itself to find a duty to bargain.8 In this case it is unneces-
sary to consider whether this interpretation of Burns is
correct because a host of other factors supports a finding
of sucessorship.9 I turn to consider these, beginning with
a second concession from Respondent.
In its brief (Br. 12), Respondent admits that the busi-
ness location remained the salve. To these two conces-
sions, I add findings of my own. First, Respondent has
substantially the same supervisory staff-four out of five
line supervisors. Next, Respondent uses essentially the
same machinery, equipment, and processes. I also find
that there has been a substantial continuity of business
operations. 10 Before turning to still other factors that on
balance also support successorship, but are more difficult
to ascertain on this record, -I Merely note that a compel-
ling case for suceesorship has been established up to this
point. l'1
In reviewing the record, I note that no representative
of Diamond testified. Although Peruman formerly
worked for Diamond and made periodic visits to the Di-
amond plant at Chico while he worked for Respondent
at Red Bluff, his knowledge of the Diamond operation
was to a degree limited. On the other hand, while Holm
may have had greater contact with Diamond in his role
as a union leader, I nevertheless find his credibility to be
generally suspect.
As noted in section III,A, above; Respondent contin-
ued only one out of five of the Diamond operations in
Chico. These discontinued operations accounted for ap-
proximately 37 employees compared to the 150-160 em-
ployees for the remanufacturing plant that was, contin-
ued. It is doubtful whether these facts are even relevant
to the question of successorship because the four discon-
tinued operations had employees represented under sepa-
rate contracts and in two cases with an entirely different
union. Accordingly, they are entitled to little or no
ployees was employed when the union demanded bargaining. Respondent
does not elaborate nor indicate'what result would follow from his asser-
tion, it true. Contrary to Respondent, I find that as of 17 April, a repre-
sentative complement was employed by Respondent. That is, 78 out of 83
unit employees working for Respondent 'at Chico had been employed'by
Diamond. By 20 July Respondent had hired 97 employees, of whom 83
were former Diamond unit employees. See Pre-Engineered Building Prod-
ucts, 228 NLRB 841 fn. 1 (1977), enf. denied 603 F.2d 134 (10th Cir.
1979) NLRB v. Jeffries Lithograph Co., 752 F.2d 459, 467 (9th Cir 19$5).
a R. Gorman, Labor Law, p. 121 (1977).
s Of course, an employer has no general obligation to hire its predeces-
sor's employees. Howard Johnson Co. v. Hotel & Restaurant Employees,
417 U S 249, 262 (1974) It did so in this case because it required the
skills possessed by the former Diamond unit employees. Of those few not
rehired, there is no claim by the General Counsel of any discriminatory
motivation.
10 Thus a hiatus between the operations of the former employer and
the purchaser is a significant factor because, as it lengthens , employees
expectations of hire by the purchaser diminish. Mondavi Food Corp., 235
NLRB 1080, 1082 (1978). The record is not clear exactly when produc-
tion under Respondent began. However, if there was a break it was not
more than 1-2 weeks When the Diamond employees were laid off, they
had every expectation of employment with Respondent because they
were "experienced." Cf., Radiant Fashions, 202 NLRB 938 (1973); Norton
Precision, 199 NLRB 1003 (1972).
11 See New London Convalescent Home, 274'NLRB 1442 (1985); NLRB
v. Jeffries Lithograph Co., supra, 752 F 2d 459."
1085
weight in deciding successorship. Furthermore, as noted
above, it is `sufficient if a part of the old operation sur-
vives in the successor.
Prior to Diamond's sale of assets to Respondent, it had
experienced poor financial conditions. In fact, it had
closed or substantially reduced operations for up to a
year in the early 1980s. During this time many unit em-
ployees were laid off. Accordingly, when Respondent
took over, it was aware that certain changes were neces-
sary to increase the chances of success. One of these
changes was to change the, product mix. Although the
raw material, lumber, remained essentially the same and
most of the machines and the skills required to operate
them remained the same, the final product vaned. Thus,
Diamond manufactured window frame parts, molding
and millwork, and solid lineal moldings. Diamond sold
many products to a few customers.
By contrast, Respondent is now manufacturing indus-
trial cut stock that involves taking the lumber (a different
type of lumber than usually used by Diamond) and cut-
ting the lumber up into different widths and lengths to
specified orders. In addition, Respondent uses wood
planks that are fabricated for other manufactures. Finally
Respondent manufactures carpenters moldings and mill-
work. Respondent also discontinued, the operation of a
box factory that was staffed by a few unit employees
under Diamond.''
With the change in product mix, Respondent's market-
ing of necessity changed. It did not purchase a customer
list from Diamond and currently sells a few items to
many customers. Out of 1900 customers listed on a 1980
Respondent customer list only about 10-15 were custom-
ers of Diamond prior to the sale.
Respondent's evidence also showed some minor differ-
ences in work schedules.
Holm described certain machines used by Diamond
employees, and Perumann admitted their use by Respond-
ent employees in the same premises: finger joint machine,
resaw, molder, cutoff saw, multirip saw, forklift. Other
machines used by Diamond were not used by Respond-
eint: the band-rip machine, back comer machine, boring
machine, the dry kiln, the diptank, and belt and tieup
machines. 12 The employees who worked on these latter
machines under Diamond were apparently assigned to
other machines under Respondent that were used in the
processing of the final products.
After, considering the totality of the evidence, I must
conclude that the General Counsel has established a
successorship under the Burns case by a preponderance
of the evidence.13
13 In those few instances in which the record contains a description of
the function of these various machines , I omit it here on the grounds that
such description does not really contribute to an understanding of the
legal issues presented in the case.
13 I find that the changes in the employing industry during the transfer
from Diamond to Respondent have not been substantial and material See
Mondoet Foods Corp , supra, 235 NLRB at 1082; see also NLRB V. Jeffries
Lithograph Co., supra, 752 F.2d 459.
1086 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2. Did Respondent have a good-faith doubt of the
Union's majority status based on objective
considerations and, if so, when?14
Although it is clear to me that based on established
law of the Board and courts Respondent is a successor,
there is still an additional issue presented by the case
concerning the union's majority support and Respond-
ent's view of it.1 5
To begin, I accept the General Counsel's statement of
the law that, having established a successor, the General
Counsel is entitled to rely on a rebuttable presumption
that the Union enjoys continued majority -support. 16 I
also agree with the General Counsel that Respondent
must show a good-faith doubt by clear and convincing
proof.17 Not only must Respondent show sufficient cred-
ible evidence to establish a doubt of the Union's majority
status, but such evidence must exist in a context free of
unfair labor practices.) 8
I find here that Respondent's evidence was acquired
under circumstances free of unfair labor practices. To
put, this in another, way, I find that at all times relevant
on or before 17 April, Respondent acted in good faith.
Although the General Counsel alleged that the taking of
a poll about 20 July violated Section 8(a)(1) of the Act,
this can be considered only after the threshhold question
of what Respondent knew on or before 17 April.19 By
that time Peruman had interviewed approximately 110
employees.
Peruman testified that during his interviews of prior
Diamond employees applying for jobs at Respondent,
many made unsolicited negative comments regarding the
Union. Their remarks appear to fall into two categories:
(1) Employees who 'told Peruman that they did not
care to work in a union shop because unions discriminat-
ed against good employees; Buzz Madden, Bob Hei-
dinger, Donna McVey, Rodney Sharp, Dan Duggins,
and Ron Coleman.
(2) Employees who told Peruman that they did not
care to be represented by Local 1495; Larry Schlecht,
Larry Wellert, Lee German, Rocky Comfort, Richard
Estrada, and Jerry Sanders.
I find, that the conversations referred to above by
Plant Manager Peruman are "objective identifiable acts
14 Respondent does not purport to show loss in fact of union majority
status, but only its-good-faith doubt
is In Harley-Davidson Co., 273 NLRB 1531 (1985), the Board recently
held that even if the successor recognizes a union certified for a year or
more, the union enjoys a rebuttal presumption of majority status only. In
making its ruling, the Board overruled prior authority to equate the
rights of successors who never recognized the union as in the instant
case, with the rights of successors who did recognize the union. Both
may, withdraw recognition if the successor can show union loss of major-
ity status in fact, or merely a good-faith doubt of union majority status.
16 Barrington Plaza, 185 NLRB 962, 963 (1970), enf. denied on other
grounds sub nom. NLRB v. Tragniew, Inc., 470 F.2d 669 (9th Cir. 1972);
Grico Corp., 265 NLRB 1344, 1345 (1982), enfd mem. 730 F.2d 767 (9th
Cir. 1984).
17 Hutchinson-Hayes International, 264 NLRB 1300, 1304 (1982); Distri-
bution Services West, 262 NLRB 764, 772 (1982) -
18 Choctawhatchee Electric, 274 NLRB 595 (1985).
19 It is not sufficient if the Respondent learned of the evidence regard-
ing the Union's majority status after it refused to recognize and bargain
with the Union. To be effective, the evidence must be known at the time
of the refusal See Orion Corp. v NLRB, 515 F-2d 81 (7th Cir 1975).
on which the Respondent was entitled to rely and they
can form the basis for employer's doubts."20 These state-
ments are especially, reliable here when considered in
light of other evidence tending to corroborate the em-
ployees' apparent disaffection with the Union.
a. Respondent's employee witnesses
In Sofco, Inc., fn. 9 above, the Board made clear that
the respondent there as here was not required to elicit,
directly from employees, the comments about the union
made to the plant manager.21 Nevertheless, Respondent
called several employee witnesses to corroborate the tes-
timony of Peruman . From group 1, Respondent called
Madden, McVey, and Heidinger; all three fully corrobo-
rate Peruman's testimony regarding the antiunion senti-
ments expressed to him during the interview process.
From group 2, Respondent called Wellert and Sanders
as witnesses . They also corroborated Peruman's testimo-
ny.22 I credit all of Respondent' s witnesses referred to
above.
b. Supervisory testimony regarding employee union
sentiment
Respondent called Supervisor William Reidenhauer,
who was hired by Peruman on 12 March. He testified
that after the sale, many employees made unsolicited
comments to him regarding their desire not to have the
Union represent them, He named Heidinger, Harker,
Thompson, Comfort, German, and Thayer. Prior to 17
April, the witness reported these negative comments to
Peruman on about six occasions and Peruman relied on
these reports as part- of the basis for an objective doubt
of the Union's majority status.
As a general rule, supervisory impressions of employee
sentiment are not viewed with favor by the Board and
courts.23 In this case, however, Respondent also called
some additional employee witnesses who had talked to
Reidenbauer. For example, Charles Harker, a former
member of the union negotiating committee, expressed
the view that a majority of employees including himself
did not want the Union. Donald Thompson, Reiden-
hauer's brother-in-law for 18 years, also told him that he
hoped the employees would not get the Union back.
Third, Jerry Sanders, a shop steward between 1975
through 1981, testified that within a week after he was
hired by Peruman on 2 April, he asked his supervisor
Reidenhauer if the Union was going to come back in.
When Reidenhauer replied that he did not know, Sand-
ers stated that he hoped it did not come back because the
Union did not treat people fairly and did not back him
up over grievances.
20 So/ca, Inc, 268 NLRB 159, 160 (1983)
21 See Naylor, Type & Mats, 233 NLRB 105, 107-108 (1977)
22 Peruman did not specifically mention Sander's name as someone
who talked to him However, he said there were some employees who
talked against the Union whose names he could not recall I credit Sand-
er's testimony that he spoke to Peruman on.2 April, when he was hired
regarding his thoughts on the Union
2s, See Valley Nitrogen Producers, 207 NLRB 208, 214 (1973); NLRB v
Cornell of California, 577 F 2d 513, 516 (9th Cir 1978)
LOUISIANA-PACIFIC CORP. 1087
The final witness who testified in the case was Robert
Thayer, a former vice president of the Union for 3 years
and former union trustee for 6 years. He testified that he
was hired on 16 April. -Sometime after that, he testified
that he spoke to between 30-45 employees and they did
not want the Union. Approximately 15 employees said
the Union might be better than nothing. Thayer con-
veyed these sentiments to Peruman and Reidenhauer
sometime in late April or May, before the poll was
taken.24
c. Lack of credibility of the General Counsel 's single
witness
I have detailed in section III,A two instances when
Holm was not truthful in his testimony. I now turn to
two other instances. According to Holm, the negative
comments about the Union by union members during job
interviews were part of a ploy suggested by Holm to en-
hance the applicant's chances of getting hired. Not a
single person was called by the General' Counsel to cor-
roborate this testimony. Respondent's witnesses consist-
ing of several union members and former union officials,
who were hired by Respondent, all 'denied that Holm
had made such a statement to them. I further discredit
this testimony because there is no bargaining history or
other evidence to explain why Holm believed that
making negative comments about the Union at Respond-
ent's job interviews would enhance the chances of a
union member being hired.
By contrast, the record does show why the employees
no longer desired to be represented by the Union.
During 1982-1983, Diamond was experiencing economic
problems and all or most union employees were laid off,
some up to a year. When, recalled, many of the employ-
ees lost their seniority, and there was a pervasive feeling
that the Union was responsible.
Another instance of Holm's lack of credibility con-
cerns a second representation he made at -the 27 April
meeting attended by Peruman, Loughran, and, Gritz and
further described above. In his testimony at hearing,
after referring to Loughran's offer to participate in an ex-
pediated Board election, Holm said:
I said that I had already started signing cards. I be-
lieve I said I had about 30. I didn't quite have that
many. It was quite a bit less than that, in fact, about
19 [R. Br. 34].
Later Holm attributed this misrepresentation to a simple
mistake. In his testimony, Peruman recalled that Holm
stated at the meeting that be had cards signed by 40 per-
cent of the membership. In either version of Holm's rep-
resentation, Holm was not credible and all of his testimo-
ny should be carefully scrutinized as I have done.
d. Failure-of the General Counsel to call any rebuttal
witnesses25
All of these circumstances tend to make Respondent's,
witnesses very credible.
In conclusion , as the Board stated in Safco, Inc., supra,
268 NLRB at 159-160:
even when a particular factor considered alone
would be insufficient to support a good-faith doubt
of a union's majority status, the "cumulative force
of the combination of factors" may be adequate to
support such a doubt. In this regard, we note that a
respondent does not bear the burden, of, proving that an
actual numerical majority opposes the union. Howev-
er, it must demonstrate that it had objective reasons
for doubting the union's majority status. [Emphasis
added.] -
Based on the totality of the evidence as reflected in the
above discussion, I find that as of 17 April, Respondent
did have good-faith doubt of the Union's majority status
based on objective factors.26
3. Did Respondent's poll of unit employees about 20
July violate Section 8(a)(1)?
On 20 July a poll of Respondent's unit employees at
Chico was conducted by Arthur Anderson & Co. Em-
ployees were asked, "Do you wish to be represented by
Millmen's Local Union No. 1495 for purposes of, collec-
tive bargaining." The results of the poll indicated 21
votes in support of the Union and 75,votes opposed to
the Union (R. Exh. 4). In this case, the General Counsel
alleges that the taking of the poll per s`e violated Section
8(a)(1) of the Act.
To decide this question, I must consider some addi-
tional brief background. Between 17 April, the date of
the Union's demand for bargaining, and the date of the
poll, Peruman continued to receive antiunion reports
from employees directly, and indirectly through supervi-
sors, who were contacted by employees and told that
substantial numbers of employees did not wish to be rep-
resented by the Union. For example, Peruman talked to
Supervisors Ron Bolton, Virgil Schlecht, Bill Riden-
hauer, and Gerald Shire. Talking to Ridenhauer was
Thayer as reported above, Harker, Sanders, Thompson,
Heidinger, and McVey. Harker also talked to Bolton,
who did not testify. Peruman was contacted three differ-
ent times in May, by a leadman in shipping named Scott
Elliott, who reported that he and people he talked to had
no interest in the Union. Elliott did not testify, but Peru-
man testified that the name of Sanders was mentioned by
Elliott as someone who did not want the, Union. Peru-
man also spoke directly to Willert regarding the latter's
lack of interest in the Union.
24 Technically Thayer's testimony does not directly relate to the lack
of union support on or before 17 April, because he was not hired until 16
April However, I include it here because it tends to corroborate the tes-
timony of other witnesses who informed Peruman and Reidenhauer of
antiunion sentiment and on which Respondent bases its good-faith doubt.
zs Orion Corp. v. NLRB, supra, 515 F.2d at 84-85.
2s See Riverside Produce Co, 242 NLRB 615 (1979); Glosser Bros, 271
NLRB 710 (1984). Compare First Food Ventures, 229 NLRB 1228, 1230
(1977), in which sum total of evidence of employee disaffection available
to Respondent was discovered after Respondent' s initial refusal to bar-
gain.
1088 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
About 29 June, Peruman held a group employee meet-
ing for the purpose of planning a Fourth of July celebra-
tion. After the meeting, Thayer and two nontestifying
employees named Glenda Burks and Gary Scott made
antiunion comments to Peruman. Thayer told Peruman
at this time that he had taken a personal poll of employ-
ees and found very little support for the Union.
Based on the several employee and supervisory reports
received, and based on the Union's refusal to agree to a
Board-conducted election, Respondent decided to ar-
range for a poll to be taken.
Before a poll like that in issue in this case can be
lawful, an employer must have an objective basis for
doubting the union's majority status.27 This is the same
test used for determining the lawfulness of an employer's
withdrawal of recognition from an incumbent union after
the expiration of a collective-bargaining agreement.28 I
assume without finding that it is also the same test used
to, determine the lawfulness of a successor employer's re-
fusal to recognize and bargain with a union that was
never certified to represent unit employees in the succes-
sor's employ. At Diamond the last certification occurred
in 1937.
I fmd based on the evidence in this case that Respond-
ent did have an objective basis for doubting the Union's
majority status sufficient to justify the taking of the poll.
The evidence regarding union majority status that exist-
ed on or before 17 April and' summarized in the preced-
ing section 'increased between 17 April and 20 July.
When'the employer causes a lawful poll of employees to
be taken and the union does not win a majority, the
result may, in an appropriate context, serve as support
for 'an employer's refusal to recognize and to bargain.29
In this case, I have found above that Respondent also
had it reasonable basis as of '17 April to doubt the
Union's majority status. Because there is no evidence
that Respondent committed any unfair labor practices
prior to 20 July, the date of the poll, the results of the
poll serve two purposes:
(1) They relate back to 17 April to corroborate with
even additional evidence my finding regarding the Re-
spondent's reasonable basis to doubt the union's majority
status.30
27 Hutchison-Hayes International, supra, 264 NLRB at 1304-1308.
28 Id .- at fn 9 It should be noted, however, that three circuit courts of
appeals have disagreed with the Board and have held that the objective
evidence, while it must be substantial, need not meet the high standard
necessary to justify a withdrawal of rcognition. Forbidden City Restaurant
v. NLRB, 736 F.2d 1295 (9th Cir 1984); NLRB v A. W. Thompson, Inc,
651 F 2d 1141 (5th Cir. 1981), Thomas Industries v. NLRB, 687 F.2d 863
(6th Cir -1982).
251' See Taft Broadcasting, 201 NLRB 801 (1973).
30 In refusing to enforce the Board 's decision in Forbidden City Restau-
rant, supra at 1297, the court stated the following
The Board relied on Montgomery Ward & Co, Inc, 210 N L.R.B.
717, (1974), in which an employer was found to have violated the
Act by conducting a poll without sufficient objective considerations
to warrant a reasonable doubt of the union's majority status Suffi-
cient objective considerations for a private poll, concluded the
(2) If it is found on review that Respondent did not
have a reasonable basis to doubt the Union's majority
status as of 17 April, then clearly by 20 June Respondent
did have a reasonable basis. Although an unfair labor
practice would have been committed, Respondent would
nevertheless be free to withdraw recognition and refuse
to bargain from 20 June forward.
In conclusion I turn to the case of Struksnes Construc-
tion Co., 165 NLRB 1062 (1967). The General Counsel
contends that for an employer-conducted poll to be
lawful, it must meet certain procedural safeguards con-
tained in that case (G.C. Br. 28). The General Counsel
further argues that Respondent did not meet these stand-
ards.
The Board, however, has not expressly extended its
precertification poll standards enumerated in Struksnes to
polls ' taken in refusal to. recognize situations. Nor can I
find, contrary to the General -Counsel's claim, Board au-
thority requiring an employer to give the,union advance
notice of the time and place of the poll. Accordingly, it
is unnecessary to decide whether Respondent met the
standards of Struksnes when it was not required to,do so.
For all the reasons stated above, I will recommend to
the Board that this case be dismissed.31
CONCLUSIONS OF LAw
1. The Respondent, Louisiana-Pacific Corporation, is
an employer within the meaning of Section 2(2) of the
Act, engaging in commerce and in an industry affecting
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. The Union 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.]
Board, must be such as would occasion the grant of an employer's
petition for a'Board election Montgomery Ward, 210 N L.R B. `at
724. The, criteria for a Board election are the same as those that de-
termine whether the employer may withhold recognition from an in-
cumbent union Id. Thus, under the Montgomery Ward rule, the same
evidentiary standard applies to an employer's conducting its own
poll, successfully petitioning the Board for an election, or withdraw-
ing recognition from the union By the Board 's reasoning, an em-
ployer in doubt of the union's majority status would be allowed to
take a poll only when it had no actual need to do so, that is; when it
already has sufficient objective evidence to justify withdrawal of rec-
ognition
The unusual situation described by the court in its final sentence quoted
above is exactly what happened here. Respondent took a poll on 20 June,
when it already had, as of 17 April, sufficient objective evidence to justi-
fy refusal to recognize the Union Thus under either the Board decision
or the court's, Respondent must be held not to have violated the Act by
taking the poll
31 In light of this decision, it is unnecessary to consider Respondent's
argument (R. Br. 27-28) that assuming Respondent 's bargaining obliga-
tion, the Union may have waived'or forestalled its bargaining demand by
considering Respondent's proposal to stipulate, to a Board-conducted
election.