Mid-Continent Refrigerated Service Co.

National Labor Relations Board - Board Decisions

Mar 21, 1977

228 N.L.R.B. 917 (N.L.R.B. 1977)

MID-CONTINENT REFRIGERATED SERVICE COMPANY
Mid-Continent Refrigerated Service Company and
General Drivers & Helpers Union, Local 554,
affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America and The Employee Committee . Case 17-
CA-6937
March 21, 1977
DECISION AND ORDER
BY MEMBERS FANNING, PENELLO, AND
WALTHER
On October 13, 1976, Administrative Law Judge
Joseph I. Nachman issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge to the
extent consistent herewith and to adopt his recom-
mended Order, as modified herein.
The law is clear that an employer must have an
objective basis for doubting an incumbent union's
continued majority status before conducting a poll of
employee sentiment.2 Here, neither Kully's testimo-
ny, even if credited, that he received employee
complaints about the Charging Party's failure to
negotiate a new contract nor his testimony that only 5
to 8 of the 18 unit employees signed dues-checkoff
authorizations, even when taken together, would have
revealed facts sufficient to provide Respondent with
the requisite objective basis for entertaining such
good-faith doubt. We therefore find that Respon-
dent's poll of January 16, 1976, violated Section
8(a)(1) 3 and that Respondent could not use this
unlawful poll as a basis for withdrawing recognition
from the Charging Party.4 Respondent was therefore
not entitled either to refuse to bargain with the
Charging Party or to recognize the Employee Com-
mittee, and, by these acts, violated Section 8(a)(5)
and (2), respectively.5
THE REMEDY
We adopt the remedy recommended by the Admin-
istrative Law Judge. Nothing in our Order, however,
shall authorize or require the withdrawal or elimina-
tion of any wage increase or other benefits, terms,
and conditions of employment which may have been
228 NLRB No. 98
917
established pursuant to the performance of the
contract with the Employee Committee.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that the Respon-
dent, Mid-Continent Refrigerated Service Company,
Omaha, Nebraska, its officers, agents, successors, and
assigns, shall take the action set forth in the said
recommended Order, as herein modified:
1. Substitute the following for paragraph 1(g):
"(g) Maintaining or giving any force or effect to the
collective-bargaining agreement between Respondent
and the Employee Committee or any extension or
modification thereof; provided, however, that noth-
ing in this Order shall authorize or require the
withdrawal or elimination of any wage increase or
other benefits, terms, and conditions of employment
which may have been established pursuant to the
performance of said contract."
2. Substitute the following for paragraph 2(b):
"(b) Forthwith rescind and cease giving effect to the
collective-bargaining agreement entered into with the
Employee Committee, effective as of January 11,
1976, or any renewal or extension thereof. However,
nothing in our Order shall authorize or require the
withdrawal or elimination of any wage increase or
other benefits, terms, and conditions of employment
which may have been established pursuant to the
performance of that agreement."
3. Substitute the attached notice for that of the
Administrative Law Judge.
1 Respondent has excepted to certain credibility findings made by the
Administrative Law Judge . It is the Board's established policy not to overrule
an Administrative Law Judge 's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Product s, Inc, 91 NLRB 544
(1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the
record and find no basis for reversing his findings.
2 Jackson Sportswear Corporation, 211 NLRB 891 (1974); Montgomery
Ward & Co., Incorporated 210 NLRB 717 (1974); Liffiston Implement
Company, 171 NLRB 221(1968).
3 Jackson Sportswear Corporation, supra, Montgomery Ward & Co.,
Incorporated supra
4 However, we place no reliance on the Administrative Law Judge's
implication that an employee poll otherwise conducted in conformance with
the standards set forth in Struksnes Construction Co, Inc., 165 NLRB 1062
(1967), is necessarily unlawful in the absence of a union demand for
recognition.
5 We also find that Rasmussen's remark that a better way to negotiate
with the Company would be through an independent committee and
Stawniak's remarks during the employees' deliberations preceding the poll
not only created an atmosphere within which the poll was taken that was
coercive but also induced the information of the Employee Committee.
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all parties had the opportu-
nity to present their evidence, it has been decided by
the National Labor Relations Board that we, Mid-
Continent Refrigerated Service Company, violated
the law and we have been ordered to post this notice.
We intend to carry out the order of the Board and to
abide by the following:
Section 7 of the National Labor Relations Act gives
all employees these rights:
To organize themselves
To form, join, or help unions
To act together for collective bargaining
or other mutual aid or protection
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refuse to do any or all of these things.
WE WILL NOT do anything to interfere with you
in the exercise of the aforementioned rights, and
all our employees are free to become or remain a
member of Teamsters Local 554, or not to become
or remain a member of that or any other union.
WE WILL NOT poll our employees in such a
manner as to require them to indicate whether or
not they desire to be represented by Teamsters
Local 554.
WE WILL NOT in any manner cause or permit
supervisors to participate in any poll of our
employees designed to ascertain whether or not
our employees desire to be represented by Team-
sters Local 554.
WE WILL NOT promote or participate in any
movement designed to create an employee's
committee to act as the collective-bargaining
representative of our employees.
WE WILL NOT tell our employees that we will
bargain with a committee they select if Teamsters
Local 554 does not continue as their collective-
bargaining representative.
WE WILL NOT dominate or assist any labor
organization of our employees, or contribute
financial or other support thereto.
WE WILL NOT recognize or bargain with the
Employee Committee created on January 16,
1976, or any successor thereof, as the collective-
bargaining representative of our employees.
WE WILL NOT apply or in any manner give effect
to the collective-bargaining agreement we entered
into with the Employee Committee, effective as of
January 11, 1976, or to any renewal, extension,
modification, or supplement thereof, but we are
not thereby required to withdraw or eliminate any
wage rates or other benefits, terms, and conditions
of employment which we have given to our
employees under said contract.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their right to self-organization, to
bargain collectively through representatives of
their own choosing, and to engage in other
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any or all of such activities.
WE WILL forthwith withdraw and withhold
recognition from and disestablish the Employee
Committee as the collective-bargaining represen-
tative of our employees, and cease giving effect to
the contract we entered into with the said Com-
mittee, effective as of January 11, 1976, or any
renewal or extension thereof.
WE WILL, upon request , recognize and bargain
with Teamsters Local 554, as the exclusive collec-
tive-bargaining representative of our employees in
a unit of all warehousemen and loaders, shipping
and receiving employees at our Jones Street and
Gomez Avenue warehouses, in Omaha, Nebraska,
excluding office clerical employees, watchmen,
guards, professional employees, and supervisors
as defined in the Act, and all other employees, and
if agreement is reached, embody the same into a
signed written agreement.
MID-CONTINENT
REFRIGERATED SERVICE
COMPANY
DECISION
STATEMENT OF THE CASE
JOSEPH I . NACHMAN, Administrative Law Judge: This
case, heard before me at Omaha, Nebraska, on June 24,1
with all parties (other than The Employee Committee,
which made no appearance) present and duly represented,
involves a complaint 2 pursuant to Section 10(b) of the
National Labor Relations Act, as amended (herein Act),
which alleges in substance that Mid-Continent Refrigerated
Service Company (herein Respondent or employer); (1)
interfered with, restrained, and coerced its employees in the
exercise of rights protected by Section 7 of the Act, (2)
induced its employees to withdraw from General Drivers &
Helpers Union, Local 554, affiliated with International
i All dates herein are 1976, unless otherwise noted.
s Issued April23 on a charge filed and served January 26.
MID-CONTINENT REFRIGERATED SERVICE COMPANY
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America (herein Union or Local 554), which
had represented the employees for many years, and assisted
the employees in accomplishing the withdrawal from Local
554 and the establishment of the committee with which
Respondent thereafter bargained, and (3) refused thereafter
to bargain with Local 554, in violation of Section 8(a)(1),
(2), and (5) of the Act. For reasons hereafter more fully
stated, I find that the evidence sustains the allegations of
the complaint, and recommend an appropriate remedial
order.
At the hearing all parties were afforded full opportunity
to introduce relevant and material evidence , to examine
and cross-examine witnesses , to argue orally on the record,
and to submit briefs. Oral argument was waived. Briefs
submitted by the General Counsel, Respondent, and the
Charging Union, respectively, have been duly considered.
Upon the pleadings, stipulations of counsel, the evidence,
including my observation of the demeanor of the witnesses
while testifying, and the entire record in the case, I make
the following:
FINDINGS OF FACT3
A. Background
Respondent operates a public cold storage warehouse in
Omaha, Nebraska. Originally, the operation consisted of
one plant located on Jones Street. Late in 1974, a new
building was completed on Gomez Avenue, and since that
time it conducted its operations in both locations, with the
necessary employees stationed at each. Robert Kully is
president of the Company. His office, and that of the entire
office staff, is at the Gomez plant, with Kully visiting the
Jones plant when he deems such visits necessary.
Since about 1964, Respondent's shipping and receiving
employees have been represented for collective -bargaining
purposes by Local 554, pursuant to a Board certification,
and successive contracts were entered into between the
Company and the Union. The last such contract was
effective from January 11, 1973, to January 10, 1976, and
thereafter from year to year unless terminated by notice.
By letter dated November 4, 1975, received on November
5, the Union advised Respondent that pursuant to the
contract, it was opening the same for negotiations as to
wages, hours, and working conditions; would in the near
future submit proposals for a new agreement and that a
business representative of the Union would communicate
with the Company to arrange for negotiations.4 Because of
illness and unavailability of office and secretarial help, the
Union did not send contract proposals to Respondent until
Thursday, January 15. Company President Kully testified
without contradiction, that he received the proposals on
Tuesday, January 20.
The complaint alleges, and the General Counsel con-
tends, that on January 16, Respondent called a meeting of
its employees, unlawfully polled and induced them to
3 No issue of commerce or labor organization is presented . The complaint
alleges and the answer admits facts which establish those elements. The
Employee Committee filed no answer to the complaint , hence the allegations
thereof as to it are taken as admitted for the purposes of this case.
4 The case presents no issue relating to Sec. 8(d) of the Act.
919
withdraw from the Union, aided and sponsored the
formation of an Employee Committee, and upon establish-
ment of the same, recognized and entered into a contract
with the Committee as the representative of its warehouse
employees. Before setting forth the facts relative to the
above, it is necessary to resolve a preliminary question,
namely, the supervisory or agency status of James Sisco
'and Ray Stawniak, both employed by Respondent at
its warehouses.
1. The supervisory issue
Since about 1963, and until his employment with Respon-
dent ceased in October 1975, Charles Gunderson was
superintendent in charge of the warehouse. Initially,
Gunderson worked at the Jones plant, but when the Gomez
plant opened, his office was moved there, and although he
continued to have some responsibility for the Jones plant,
he visited that operation only about once a month, to see
that it was clean and well kept, Gunderson testified without
contradiction that as superintendent he had the authority to
and did hire, fire, and reprimand employees; that crew
leaders were members of the unit and worked under his
supervision, but had no authority to hire, fire, or issue
reprimands. Plainly, Gunderson was a supervisor within the
meaning of the Act; a conclusion Respondent does not
question.
Company President Kully admitted that with the depar-
ture of Gunderson, Sisco and Stawniak shared equal
authority with respect to the two plants; Sisco at the Jones
plant, and Stawniak at the Gomez Plant. Although Sisco
testified that he did not take over Gunderson's duties until
late January, at which time he became a supervisor, and
that prior to that he was a "crew leader," 5 he also testified
that he assigned the work to the employees at the Jones
plant; saw that they properly performed their work,
reprimanding them if they failed to do so; and received and
acted upon employee requests for time off. Although Sisco
testified that he issued reprimands and acted on requests
for time off only after clearance with Kully, the fact
remains that by permitting Sisco to so conduct himself,
Respondent placed him in a posture from which the
employees could properly conclude that when Sisco spoke,
he did so with the voice of management. Moreover, if Sisco
did not possess supervisory authority, there was no supervi-
sor at the Jones plant, as there is no evidence that any other
person regularly stationed there was vested with such
authority.6
The evidence also shows that Sisco in fact hired employ-
ees to work at the Jones plant. Employee Regan credibly
testified that he worked at that plant from November 1975
to April 1976, and that the circumstances of his hire were as
follows: He walked in off the street and asked for a job,
speaking with Sisco; the latter told Regan to go to the
Gomez plant and file an application which he did; at
Gomez, Regan after completing the application form given
him by a lady in the office, returned the form to her; after
5 Crew leaders are classified by the contract , as nonsupervisory.
6 Kully, of course , as president of the Company , had general supervision
over all operations, but he maintained his office at the Gomez plant, and
visited the Jones plant only at infrequent intervals.
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
examining the application, the lady told him to take it to
Sisco; after again talking with Sisco, the latter told Regan
that he would be called when needed; that the following
morning he received a telephone call from Sisco who
directed that he report for work; and that upon doing so,
Sisco assigned him to unloading box cases. Regan also
testified that the following week he observed Sisco hire Jeff
King and Jeff Clark, and assign them to work. Whether the
two last mentioned employees first went to the Gomez
plant and filed applications, and if so, to whom they were
presented, the record does not show. Although Kully
claimed that he did virtually all of the hiring, he did admit
that in his absence, Wanda Stewart, a clerical in his office,
was authorized to review employment applications, and, if
in her opinion such action was warranted, to refer the
applicant to Sisco or Stawniak, and that the event described
by Regan, pursuant to which he obtained employment, was
normal procedure for hire iii his absence.
The evidence additionally shows that by memorandum
dated December 11, 1975, employees Mensik was advised
that his probationary period was being extended 30 days
because he had missed so much time from work; had not
established himself to be a dependable employee; and his
work habits had been so relaxed as to not hold up his end of
the work load. The memorandum concluded with an
expression of hope that the extension would enable Mensik
to establish improved work habits so that he might be put
on the payroll as a regular employee, and is signed "Jim
Sisco, General Foreman." There also appears the signature
of Mensik, to acknowledge receipt of the memorandum.
Sisco testified that the memorandum was given to him in
typed form by Kully with instructions to sign it, give it to
Mensik, and obtain the latters signature thereon, which he
did.7
The record also contains two memoranda signed by
Stawniak regarding personnel action.8 The first dated
November 7, 1975, reprimands employee Lisiecki for
abusive language, and warns that if it happened again, he
would be immediately dismissed. Lisiecki credibly testified
that this memorandum was given to him by Stawniak. The
other is dated December 23, 1975, and extends the
probationary period of employee Dennis Swertzic for work
for 2 weeks because he had been late for work too often in
the proceeding 30 days to be considered a full-time
employee. Although Stawniak did not testify, on the basis
of Kully's admission that it was his general practice to draft
all such letters and give them to the clerical staff for typing,
and then to Sisco or Stawniak for signature and delivery to
the employee involved, and his further admission that Sisco
and Stawniak had equal responsibilities at the respective
plants, I find that both memoranda signed by Stawniak
were drafted by Kully, and that he gave them to Stawniak
with expressed or tacit instructions to sign and deliver them
to the respective employees.
r Kully admits that he drafted the memorandum and gave it to a clerical
to be typed. He claims, however, not to recall whether he saw the
memorandum after it was typed, or whether he gave the memorandum to
Sisco , although he admits that he may have done so. KuHy did not impress
me as a frank witness. A number of times I got the distinct impression that
2. Conclusions as to supervisor status
Upon the foregoing evidence, I find and conclude that at
all times material Sisco and Stawniak were supervisors
within the meaning of Section 2(13) of the Act, I base this
conclusion upon the totality of the following considera-
tions:
1. The evidence shows that both men, with only general
directions from Kully, responsibly directed the work of the
unit employees and supervised their activity. Indeed if Sisco
and Stawniak were not supervisors, then the respective
plants operated without supervision, as there is no showing
that there was any other person on the premises full-time, to
perform that function. It defies reason to believe that
Respondent intended to permit the two crews to function
without on-the-job supervision.
2. The evidence shows that at least Sisco had the
authority to and did hire personnel, had the authority to
grant time off, and that both had the apparent authority
and did reprimand employees regarding the performance of
their duties. Although there is no evidence that Stawniak
ever hired or granted time off, I infer that he had the
authority to do so in view of Kully's admission that both
men had equal responsibility at their respective plants.
3. Respondent's contention that neither Sisco nor
Stawniak had supervisory authority seems to be based on
the theory that it did not "officially" designate them to be
supervisors until late January 1976, well after the events
here involved, and that prior to such designations, both
were crew leaders, a classification fixed by the contract to
cover unit employees. This contention is without merit and
I reject it. The argument completely loses sight of the fact
that job titles are meaningless ; it is the authority vested in
the employee, be it expressly or by implication, that is the
controlling factor. Under the facts of this case, it is plain
that Respondent vested apparent supervisory authority in
these men, and it was well aware that they were exercising it
as Respondent fully intended them to do.
4. Moreover, even were Ito conclude, for some reasons
that now completely escapes me, that Sisco and Stawniak
did not qualify as supervisors within the meaning of Section
2(11) of the Act, the uncontrovertable fact remains that
Respondent held them out to the employees as being
representatives of management, and led the employees to
believe that when they spoke or acted, they did so in the
name of management. The fact that Kully prepared the
reprimand letters for Sisco and Stawniak to sign, at least
one of which designated Sisco as "General Foreman," and
directed them to sign and deliver the letters to the men
involved, admits of no other conclusion. As the Supreme
Court said in International Association of Machinists; Tool
and Die Makers Lodge No. 35, etc. v. N.LRB., 311 U.S. 72,
80(1976):
... where the employees would have just cause to
believe that solicitors professedly for a labor organiza-
tion were acting for and on behalf of the management,
his answers to questions were truthful as far as it went , but that he was
holding back for fear that he might say something that would prejudice his
case. To the extent that his testimony on this point aught be regarded as in
conflict with that of Sisco, I credit the latter.
8 These memoranda do not bear a title following Stawmak's signature.
MID-CONTINENT REFRIGERATED SERVICE COMPANY 921
the Board would be justified in concluding that they
[the employees) did not have the complete and unham-
pered freedom of choice which the Act contemplates.
... to be sure, they [the solicitors] where not high in
the factory hierarchy and apparently did not have the
authority to hire or to fire. But they did exercise general
authority over the employees and were in a strategic
position to translate to their subordinates the policies
and desires of the management.
Accordingly, I find and conclude that Sisco and Stawniak
were supervisors within the meaning of the Act, or at the
very least were management representatives, and that
Respondent bears responsibility for their conduct with
respect to the matters involved.
3. The meeting called by Respondent
During the afternoon of January 16, a notice was posted
in the employee break rooms of both plants, advising that
the employees must be at the Gomez warehouse at 4:30
p.m. that day.9 Sisco told the five employees at the Jones
plant that they would leave the plant at 4:10 p.m., and
proceed as a caravan to the Gomez plant, and added that
the employees had better be there. Sisco also told the
employees that when they went to the Gomez plant to take
their timecards with them and, that they would punch out
when they were ready to leave that location. At the
appointed time the men in their respective conveyances,
and with Sisco in the lead, left for the Gomez plant, arriving
there shortly before 5 p.m., and directed to the conference
room, where they were in a short time joined by the Gomez
plant employees and Company President Kully and Com-
pany Attorney Rasmussen . Included among those in
attendance were Sisco and Stawniak.
Kully opened the meeting by reading a statement to the
effect that while the National Labor Relations Act provides
that an employer may bargain only with the representative
of a majority of his employees, the Board in Struksnes
Construction Co., Inc., 165 NLRB 1062 (1967), had provid-
ed a polling procedure to enable an employer "to determine
if a majority of our employees do actually want a union to
continue as their representative," and that for that purpose
a poll would be conducted that day. The notice Kully read
also stated that the poll would be by secret ballot, and that
employees were "assured against reprisal, interference,
restraint or coercion of any nature by any party or person,"
and then turned the meeting over to Rasmussen, whom he
introduced. Rasmussen told the employees that Respon-
dent and other companies whom he represented were
displeased with the Union, and that it was easy to get rid of
the Union by the process of secret ballot voting which had
been used successfully at other employers; and that nothing
would be held against the men whether they voted for or
against the Union. Rasmussen then told the employees that
9 Kully testified that he posted the notice at Gomez and delivered it to
Sisco with instructions to post it at the Jones plant
is Kully testified that the ballots and other forms used in the balloting
were printed up 2 days, and perhaps the day, before the balloting, and that
the decision to prepare this material was made in a conference between he
and Rasmussen . Kully also testified that Rasmussen brought the matenal to
the Gomez plant on the day of the balloting
11 The findings in this section are based on a; composite of the credited
they had three choices open to them, namely, (1) vote the
Union out; (2) file a petition with the Board to get rid of the
Union; or (3) do nothing and wait for the Union to get
them a contract; and that they should think that situation
over and decide the course they wished to pursue. To
enable the men to make that decision Rasmussen and Kully
retired, but Sisco and Stawniak remained.
Among themselves the men discussed the situation. Some
suggested that nothing be done at the time, and that they
wait and obtain the Union's views on the matter, but
Stawniak urged that a vote be taken immediately saying
everyone knows what he wants to do. After further
discussion, Kully and Rasmussen were called back to the
room and informed that the men would vote. The employ-
ees were then required to leave the room, and were given
printed ballots 10 by which they were to cast their vote and
were directed back to the meeting room one at a time,
where each marked a ballot in private and deposited it in a
box which had been provided for that purpose. Both Sisco
and Stawniak casts ballots. The balloting completed, Kully
and Rasmussen returned to the meeting room and caused
the ballots to be counted in the presence of the men by two
clericals employed by Respondent, namely, Wanda and
Sue Stewart, who then signed a certificate that they acted
"as authorized observers" in the election; that the balloting
"was fairly conducted;" that all eligible voters were given
an opportunity "to vote their ballots in secret;" and that the
ballot box was "protected in the interest of a fair and secret
vote." The balloting disclosed five votes for Local 554, and
15 votes for no union." Following announcement of the
vote, Rasmussen told the men that the Local 554 had been
voted out and they were free to form their own union or
committee if they wished to do so, and he and Kully left the
room to permit the men to consider that question, saying
you guys "just figure out who you want for representa-
tives." With Sisco and Stawniak remaining in the room and
participating in the discussion, the men decided to form a
committee and selected employees Skokan, Hoffman, and
Swoboda to serve on the committee. Kully and Rasmussen
were notified of this fact and the meeting adjourned at
approximately 5:30 p.m. The men then punched out and
left the plant. All participants in the meeting were paid until
that time.11
B. The Bargaining Negotiations
On Sunday morning, January 18, the three employees
selected to serve on the Employee Committee met with
Kully at the Gomez plant in an effort to negotiate a
contract. According to Hoffman, a member of the commit-
tee, they had the recently expired Local 554 contract, and
they asked for a wage increase of $1 an hour, but that Kully
would not agree to that. No agreement was reached that
day, and the parties met again on Wednesday or Thursday,
but no agreement having been reached that day, met again
testimony of Jeffrey Thompson and Mike Regan Although the testimony of
these witnesses on direct was different from their testimony on cross-
examination, I find that on some details of the events involved they
immediately corrected themselves and admitted their error. I am convinced
that these men were honestly trying to give the facts , and that their error was
due to faulty recollection because of the lapse of time . My findings herein are
based on their testimony as they corrected it. Respondent introduced no
contrary evidence.
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on Monday, January 26, 1976, at which time complete
agreement was reached, retroactive to January 11, 1976.
The three meetings lasted a total of about 3-1/2 hours. As
the two final meetings were during workdays, all three were
paid for that time, and those who worked at the Jones plant,
as was the case with Hoffman , were paid their travel time in
going to and from the Gomez Plant . At no time during the
negotiations did Kully inform the committee negotiators
that he had received contract proposals from Local 554, as
he admittedly did on or about January 20, 1976.12
On or about January 19 or 20, Union Agent Elmer Davis
telephoned Kully and asked if the latter had received the
Union's contract proposals. Kully replied that he had just
received them, but he had not yet had the opportunity to
study them. Davis then stated that he had heard that Kully
held a meeting with the employees . Kully admitted that
fact, and added that a number of employees had come to
him and indicated that they did not wish the Union to
represent them any further, so they had a meeting and voted
the Union out. (Emphasis supplied.) Davis replied that he
regarded Kully's conduct to be an unfair labor practice,
and would file a charge . Kully replied that Davis could do
what he thought was necessary . Since that date there has
been no further contact between Respondent and the
Union.
C. Contents and Conclusions
The General Counsel contends that by (1) conducting a
poll requiring the employees to indicate whether they
desired continued representation by the Union; (2) causing
and permitting supervisors to participate - in the aforesaid
poll; (3) telling the employees that it would negotiate with a
committee of its employees if the Union did not continue
as their collective-bargaining representative ; and (4)
causing and participating in the establishment of the
Committee , and thereafter recognizing and bargaining with
the Committee , and entering into an agreement with it,
Respondent violated Section 8(axl) and (2) of the Act, and
that by refusing on or after January 16 , to bargain with
Local 554 as the representatives of the employees involved,
Respondent also violated Section 8 (aX5) and (1) of the Act.
Respondent, on the other hand , contends that in accor-
dance with the safeguards expressed by the Board in
Struksnes Construction Co., supra the poll it conducted was
in all respects lawful, and that the results of that poll
demonstrated that Local 554 no longer enjoyed majority
support, and formed a lawful basis for its bargaining with
the Committee which had been freely and voluntarily
selected by the employees. The critical issue thus posed,
and the answer to which will also dispose of all other issues,
is whether, when it recognized and bargained with the
Committee, Respondent had a "good faith doubt," as that
term is defined in the adjudicated cases, that Local 554
represented a majority of the employees.
12 The contract upon which the Committee and Respondent reached
agreement on January 26, 1976, was with some minor changes in language,
basically the Teamsters contract which expired on January 11, with the
following exceptions : art. VI, which deals with "Picket Lines ;" art. XXII,
with "Stewards ;" art. XXIII, with "check-off;" that portion of art. XXVI
dealing with the premium rates in those weeks in which a holiday fell, were
all omitted ; and the "Management" provision was substantially modified.
We start, as we must, with the premise that absent
unusual circumstances the majority status of a certified
union is conclusively presumed during the first year of
certification (Ray Brooks v. N.LRB., 348 U.S. 96 (1954)),
and after the first year has elapsed , there is a rebuttable
presumption derived from the certification that the certified
union continues to be the majority representative of the
unit employees . So long as such majority status exists, the
employer is under the statutory duty to bargain with the
majority representative , and this exacts "the negative duty
to treat with no other." Medo Photo Supply Corporation v.
N.LRB., 321 U.S. 678, 684 (1944). The presumption of
continued majority after the first year of certification, is a
rebuttable one, and an employer will be relieved of the duty
of bargaining with the union , if he can demonstrate that he
had a "good faith" doubt of the union's majority status. An
"essential prerequisite" to support an employer's claim of
good-faith doubt of continued majority status, "is the
establishment by record evidence of some reasonable
grounds for believing that the union lost its majority status
since its certification" (Downtown Bakery Corp. successor to
Smayda 's Home Bakery, Inc., 139 NLRB 1352, 1355 (1962)).
The doubt alleged by an employer to justify its refusal to
bargain with a previously certified union, cannot be
chimerical or whimsical ; it must be based upon "objective
facts that it has a reasonable basis for believing that [the
union has ] lost its majority status". . . United States
Gypsum Company, 157 NLRB 652 (1966); J. C. Penney
Company, 162 NLRB 1553 (1967), and the cases there cited.
The rules thus stated are subject to the threshold qualifica-
tion, that the employer raises the defense in good faith. For
as the Board has held, "A good faith doubt is not a doubt
which has been prompted, encouraged and solicited by the
employer." (Rohik, Inc., 145 NLRB 1236).
Applying the foregoing criteria which the evidence
disclosed by this record, I must and do fmd and conclude
that Respondent failed to establish that it had a good faith
doubt that the Union continued to enjoy majority status
among the employees . On the contrary , I am convinced,
and therefore find and conclude that Respondent , notwith-
standing its lack of knowledge of any facts that would give
rise to a good-faith doubt of the Union's majority status,
embarked upon deliberate , albeit transparent ploy, volun-
tary acts of the employee. I base this conclusion upon the
totality of the following considerations:
1. To begin with, as I have found, the evidence shows
that Kully and his counsel conceived, instigated, and
promoted the idea of a meeting designed to have the
employees indicate that they no longer wished to have the
Union represent them. Kully admitted that he discussed the
matter with Attorney Rasmussen about 2 days or perhaps
the day before the meeting with the employees, and
pursuant thereto Rasmussen caused to be prepared the
ballots and other forms used in the poll that was conducted,
and brought them with him to the meeting for that purpose.
Regarding wages, the old contract called for an hourly rate of $3.50 for
warehousemen, and $3.90 for crew leaders . The contract which the Commit-
tee negotiated provided $4.45 for Warehousemen and $4 .70 for crew leaders.
The Union proposal sent Respondent on January 15,1976 , called for $4.81
during the first 30 days, and $4.98 thereafter for both Warehousemen and
crew leaders , and 10 cents more in each period for fork lift operators.
MID-CONTINENT REFRIGERATED SERVICE COMPANY
And Rasmussen planted in the minds of the employees the
seeds of the idea for disaffection from the Union, by telling
them that it was an easy matter to get the Union out of the
Company by a secret ballot; that the men could form their
own union and negotiate with Respondent themselves, and
this would be better than going through the Union. As the
Supreme Court said in International Association of Machin-
ists v. N.L.R.B., 311 U.S. 72, 78 (1940), "slight suggestions
(made by an employer who holds the power of economic
control) may have telling effect among men who know the
consequences of encurring that employers' strong displea-
sure." Those suggestions, though subtle, "may be as potent
as outright threats of discharge." N.L.R.B. v. Link-Belt
Company, 311 U.S. 584,600 (1941).
2. While testifying as a witness Kully was asked several
questions by me. The examination went thus:
JUDGE NACHMAN: On January 16 what facts did you
have in your possession which lead you to believe that
Local 554 no longer represented a majority of the
employees?
WITNESS: What specific facts?
JUDGE NACHMAN: Yes.
WITNESS: Some of the men told us that they had
made repeated calls to the Union to determine when the
contract was going to be presented to us and that
nothing had been forthcoming. I know they had to leave
early to go to the meeting. They were concerned why
hadn't anything happened in a two-month period of
time.
JUDGE NACHMAN: Anything else?
WITNESS: I don't think so, no, just a general question-
ing of different men asking us what was happening.13
Following this examination, and as a result of leading and
suggestive question by his counsel, Kully stated that
another factor which entered into his conclusion that the
Union did not represent a majority was that only a small
amount of the men, as a percentage of the crew, were
paying dues to the Union, claiming that his information
was based on the fact that he checked off dues under the
contract.14 The fact that some employees elect not to have
their dues checked off, does not appropriately give rise to
the inference that they no longer whish to be represented by
the Union.
3. Respondent's argument that its poll of the employees
was authorized by the criteria approved by the Board in
Strucksnes Construction Co., supra, is completely misplaced.
The theory of Struksnes is that an employer faced with a
union's demand for recognition may lawfully poll his
employees to ascertain if a majority has in fact authorized
the Union to represent them, provided the safeguards
13 Significantly none of the employees who allegedly indicated to Kully
their concern about the delay on the part of the Umon in obtaining a
contract, were called to testify, and Kully's testimony in that regard stands
uncorroborated. As heretofore indicated, Kully's demeanor as a witness was
not such as to inspire my confidence. On the contrary, I am convinced and
therefore find that no employee discussed that subject with him. According-
ly, I reject all his testimony in that regard. The right of a trier of fact, in an
appropriate case to discredit the uncontradicted testimony of a witness and
find the facts to be the contrary of his testimony, is settled . See N.L.R.B. v.
Walton Manufacturing Co., 369 U.S. 404,408 (1962).
14 At one point Kully estimated that only about 20 percent of them were
923
mentioned in that decision are observed. That decision does
not authorize and was never intended to authorize an
employer to poll his employees absent a union's demand for
recognition. In the instant case neither the Union nor any
other labor organization had made recognition demands on
Respondent which would require Respondent to ascertain
if the Union in fact represented a majority and, if not, to
refrain from bargaining with the Union. Accordingly,
Respondent's conduct in conducting its poll under the
circumstances herein found violated Section 8(a)(1) of the
Act. Leaving all else aside, this violation alone precludes
Respondent from claiming that it raises the issue of
majority status of the Union in good faith.
Accordingly, I find and conclude that, by the totality of
the foregoing conduct, Respondent violated Section 8(a)(1)
and (2) of the Act, and by refusing, on and after January 16,
to bargain with Local 554, as the representative of the
employees in the unit involved, Respondent violated
Section 8(a)(5) of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act and is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. Local 554, Teamsters, and the Employee Committee,
are labor organizations within the meaning of Section 2(5)
of the Act.
3. By conducting a poll of its employees, and by telling
its employees that Local 554 could be voted out by a poll,
and that the employees could form their own committee to
bargain with Respondent themselves rather than through
Local 554, Respondent interfered with, restrained, and
coerced by employees in the exercise of rights guaranteed
them by Section 7 of the Act, and engaged in and continues
to engage in unfair labor practices prescribed by Section
8(a)(1) of the Act.
4. By fostering, promoting, and aiding in the formation
of the Employee Committee, and by recognizing and
bargaining with said Committee, Respondent gave assis-
tance and support to said Committee, and dominated the
same, and thereby engaged in and continued to engage in
unfair labor practices prescribed by Section 8(a)(2) and (1)
of the Act.
5. At all times material Local 554 has been the
collective-bargaining representative of the employees in an
appropriate unit of Respondent's employees consisting of:
All warehousemen and loaders, shipping and receiving
employees of the Jones Street Warehouse and Gomez
Avenue Warehouse, excluding office clericals employees,
watchmen, guards, professional employees, and supervisors
as defined in the Act, and all other employees.
having dues checked off. At another point he said that on January 16, the
work force consisted of 18 to 20 men, and that 5 to 8 had dues checked off.
The record shows that 20 voted in the poll, and included, as I have found, 2
supervisors; therefore, of the 18 employees in the unit, using Kully's figures,
he checked off between 30 and 44 percent of the unit employees. Art. XXIII
of the last contract with the Umon obligated the employer to check off dues
and initiation fees from all employees who gave written authorization
therefore. The number of such authorizations is not disclosed by the record.
Moreover, there is no showing as to the number of employees who elected to
pay their dues directly to the Umon , instead of authorizing a checkoff.
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. At all times material , Local 554 has demanded that
Respondent bargain with it as the collective-bargaining
representative of the employees in the aforesaid appropriate
unit.
7. On or about January 16 , and at all times since,
Respondent has refused to bargain with Local 554, as the
collective-bargaining representative of the employees in the
aforesaid appropriate unit, and thereby engaged in, and
continues to engage in unfair labor practices prescribed by
Section 8(ax5) and (1) of the Act.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in and is
engaging in unfair labor practices prescribed by the Act, it
will be recommended that it be required to cease and desist
therefrom, and to take the affirmative action set forth
below, designed and found necessary to effectuate the
policies of the Act.
Having found that Respondent interfered with, re-
strained , and coerced its employees in the exercise of their
guaranteed Section 7 rights; fostered, promoted, assisted,
supported , and dominated the Employee Committee; and
unlawfully refused to bargain with Local 554 , the collective-
bargaining representatives of its employees in an appropri-
ate unit, I conclude from the totality of said conduct that
Respondent should be required to cease and desist from
any manner interfering with, restraining, or coercing its
employees in the exercise of rights guaranteed by Section 7
of the Act . N.LRB. v. Entwistle Mfg. Co., 120 F.2d 532
(C.A. 4, 1941); California Lingerie, Inc., 129 NLRB 912, 915
(1960).
Having found that Respondent assisted, supported, and
dominated the employee committee, it will be recommend-
ed that Respondent be required to disestablish that Com-
mittee, withdraw and withhold recognition from the same,
and cease giving effect to the terms and conditions of the
contract with the Committee , which became effective as of
January 11, or any renewal or extension thereof.
Having found that Respondent , since January 16, refused
to bargain with the Union as the collective -bargaining
representative of its employees in an appropriate unit, it will
be recommended that Respondent be required, upon
request , to bargain with Local 554 as such representative,
concerning the wages , hours, and terms and conditions of
employment of the employees in said unit , and if an
understanding is reached, embody the same in a signed
agreement.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in the case , and pursuant to Section
10(c) of the Act , I hereby issue the following recommended:
ORDER 15
The Respondent, Mid-Continent Refrigerated Service
Company, Omaha , Nebraska, its officers, agents, succes-
sors, and assigns , shall:
1. Cease and desist from:
(a) Conducting a coercive poll of its employees which
requires such employees to indicate whether or not they
desire continued representation by General Drivers &
Helpers Union, Local 554, affiliated with International
Brotherhood of Teamsters , Chauffeurs , Warehousemen,
and Helpers of America.
(b) In any manner or by any means causing or permitting
supervisors to participate in a poll designed to ascertain
whether or not its employees wish continued representation
by the aforesaid labor organization.
(c) In any manner by any means causing or participating
in a movement designed to form , establish or create an
employee committee , which will bargain with it as the
collective-bargaining representative of its employees.
(d) Telling employees that it would negotiate with an
employee committee if Local 554 does not continue as the
collective-bargaining representative of the employees in the
unit hereafter mentioned.
(e) In any manner or by any means dominating, or
assisting any employee committee or other labor organiza-
tion of its employees , or contributing financial or other
support thereto.
(f) Recognizing or in any manner bargaining with the
Employee Committee as the collective -bargaining represen-
tative of the employees in the unit hereafter mentioned.
(g) Applying or in any manner giving effect to the
collective-bargaining agreement between it and the Em-
ployee Committee effective as of January 11, 1976, or any
renewal or extension thereof.
(h) Failing or refusing to bargain collectively with
General Drivers & Helpers Union , Local 554, affiliated
with International Brotherhood of Teamsters, Chauffeurs,
Warehousemen, and Helpers of America as the exclusive
collective-bargaining representative of its employees in a
unit of: All warehousemen and loaders, shipping and
receiving employees at its Jones Street and Gomez Avenue
warehouses , in Omaha , Nebraska, excluding office clerical
employees , watchmen, guards, professional employees, and
supervisors as defined in the Act , and all other employees.
(i) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-
organization, bargain collectively through representatives
of their own choosing , and to engage in other concerted
activities for the purpose of collective bargaining or other
mutual aid or protection , or to refrain from any or all of
such activities.
2. Take the following affirmative action designed and
found necessary to effectuate the policies of the Act:
(a) Withdraw and withhold recognition from , and dises-
tablish the Employees Committee as the collective-bargain-
ing representative of the employees in the aforesaid unit.
15 In the event no exceptions are filed as provided by Sec . 102.46 of the of the Rules and Regulations , be adopted by the Board and become its
Rules and Regulations of the National Labor Relations Board , the findings , findings, conclusions , and Order, and all objections thereto shall be deemed
conclusions , and recommended Order herein shall, as provided in Sec . 102.48 waived for all purposes.
MID-CONTINENT REFRIGERATED SERVICE COMPANY 925
(b) Forthwith rescind and cease giving effective the
collective-bargaining agreement entered into with the
Employee Committee, effective as of January 11, 1976, or
any renewal or extension thereof.
(c) Upon the request bargain collectively with General
Drivers & Helpers Union, Local 554, affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen, and Helpers of America, as the exclusive
collective-bargaining representative of its employees in the
aforesaid unit, and if an agreement is reached, embody the
same in a signed contract.
(d) Post at both its Jones Street and Gomez Avenue
warehouses in Omaha, Nebraska, copies of the attached
notice marked "Appendix." 16 Copies of said notice, on
forms provided by the Regional Director of Region 17,
after being signed by an authorized representative of
Respondent, shall be posted immediately upon receipt
thereof and maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the said Regional Director, in writing, within
20 days from the date of this Order, what steps Respondent
has taken to comply herewith.
16 In the event that the Board's Order is enforced by a Judgment of a
United States of Appeals, the words in the notice reading "Posted by Order
of the National 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."