Sofco, Inc.

National Labor Relations Board - Board Decisions

Oct 26, 1983

268 N.L.R.B. 159 (N.L.R.B. 1983)

SOFCO, INC.
Sofco, Inc. and Local 624, United Paperworkers
International Union, AFL-CIO. Case 3-CA-
10641
26 October 1983
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 30 September 1982 Administrative Law
Judge Phil W. Saunders issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting 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 brief and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order.
The judge found that the Respondent violated
Section 8(a)(5) and (1) of the Act by failing and re-
fusing to recognize Local 624, United Paperwork-
ers International Union, AFL-CIO (the Union), as
the collective-bargaining representative of its em-
ployees. In so doing, he found the testimony of the
Respondent's plant manager, Richard Almy, con-
cerning the employees' opposition to continued
union representation insufficient to warrant a find-
ing that the Respondent had a "good-faith and rea-
sonably grounded doubt of the union's continued
majority status." 2 We disagree and, for the reasons
set forth below, we shall dismiss the complaint.
Almy testified that from June 1981, 3 when the
employees became aware that Stevens & Thomp-
son was selling its Mechanicville facility to the Re-
spondent, until the consummation of the sale in late
August he had a number of conversations with em-
ployees concerning the Union's status. He testified
that during this period virtually all of the approxi-
mately 27 employees had approached him at one
time or another and brought up the subject of the
Union. According to Almy, every employee, with
the exception of union steward Lila Birdsinger, ex-
pressed a desire to "do away with the union, get
away from the union and be on our own." When
pressed for details of specific conversations, Almy
i The Respondent and the General Counsel 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.
I Terrell Machine Co., 173 NLRB 1480, 1481 (1969), enfd 427 F.2d
1088 (4th Cir. 1970).
3 All dates refer to 1981.
testified that employee Perry told him that "it
won't be long now and we can get rid of this lousy
union"; employee Yusaitis asked him what he
thought about the Union and then said, "[W]e'd be
better off without the Union"; employee Conrad, in
reference to the sale and its effect on union repre-
sentation, said, "[W]e only got x amount of days to
go and we'll be on our own"; and employees Biss
and Morey mentioned to Almy that there were
only "x amount of days till the end of the union."
Almy further testified that the other employees ex-
pressed similar sentiments.
Almy also testified that during this period a
number of signs were posted in the plant which re-
ferred to the Union. According to him, one re-
ferred to the "count down" and stated "30 days to
go [or] 25 days to go til the end of the Union."
Another had a "picture of a heart and dagger"
with a reference to the Union. Finally, Almy testi-
fied that, on a number of occasions during this
June through August period, employees with com-
plaints attempted to circumvent union steward
Birdsinger.4
The judge rejected this testimony on the grounds
that the antiunion sentiments began after the Re-
spondent's chief representative and consultant,
Harold Brown, had told the employees that the
Respondent felt it did not need a union and that
the Respondent produced no corroborating em-
ployee testimony concerning the alleged antiunion
remarks. He further found that there was no evi-
dence of any "spontaneous employee attempt to
dislodge the Union," noting that neither the signs
allegedly posted in the plant nor Birdsinger's al-
leged problems as shop steward "rose to the level
of such movement." He also noted that Almy's tes-
timony as to the antiunion signs was also not cor-
roborated.
As the Board stated over 30 years ago in Celan-
ese Corp.:5
By its very nature, the issue of whether an
employer has questioned a union's majority in
good faith cannot be resolved by resort to any
simple formula. It can only be answered in the
light of the totality of all the circumstances in-
volved in a particular case.
Thus, even when a particular factor considered
alone would be insufficient to support a good-faith
4 Almy also testified that Birdsinger "was getting insults" from em-
ployees expressing dissatisfaction with the Union.
The Respondent's consultant and chief representative, Harold Brown,
also testified that several employees had expressed dissatisfaction with the
Union directly to him. Specifically, Brown testified that, on one occasion
as he was walking past the printer, one employee told him that "I sure
hope you guys help us in getting out from under this union."
5 95 NLRB 664, 673 (1951).
268 NLRB No. 15
159
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
doubt of a union's majority status, the "cumulative
force of the combination of factors" may be ade-
quate to support such a doubt.6 In this regard, we
note that a respondent does not bear the burden of
proving that an actual numerical majority opposes
the union.7 However, it must demonstrate that it
had objective reasons for doubting the union's ma-
jority status.8
Contrary to the judge, we find that the testimo-
ny of Plant Manager Almy, which was not contra-
dicted by any of the General Counsel's witnesses,
constituted sufficient objective evidence to support
a good-faith and reasonably grounded doubt of the
Union's continued majority status. Almy testified
that, during the period from June through August
1981, every employee with the exception of union
steward Birdsinger expressed opposition to the
Union and saw the sale of Stevens & Thompson as
an opportunity to rid themselves of the Union.
Almy supported this assertion with testimony con-
cerning specific conversations with a number of in-
dividuals, none of whom testified at the hearing."
Such statements by employees are "objective, iden-
tifiable acts" on which the Respondent was entitled
to rely, and they can form the basis for an employ-
er's doubt.'0 These statements are especially reli-
6 Golden State Habilitation Convalescent Center v. NLRB, 566 F.2d 77,
80 (9th Cir. 1977), denying enf. of 224 NLRB 1618 (1976); see also Na-
tional Cash Register Co. v. NLRB, 494 F.2d 189 (8th Cir 1974).
' Laystrom Mfg. Co., 151 NLRB 1482 (1965), enf denied on other
grounds 359 F.2d 799 (7th Cir. 1966); see also NLRB v. Randle-Eastern
Ambulance Service, 584 F.2d 720 (5th Cir. 1978).
8 Laystrom Mfg. Co., supra.
i The Respondent was not required to elicit such testimony directly
from the employees involved, as implied by the Administrative Law
Judge. See, e.g., Naylor, Type & Mats, 233 NLRB 105 (1977). Nor is a
"spontaneous attempt" to dislodge the union a prerequisite for entertain-
ing a good-faith, reasonably grounded doubt, as implied by the judge.
'O NLRB v. Middleboro Fire Apparatus, 590 F.2d 4 (Ist Cir. 1978); Zim's
IGA Foodliner v. NLRB, 495 F.2d 1131 (7th Cir. 1974); Naylor, Type &
Mats, supra. Such testimony is distinguishable from self-serving general
assertions by an employer that in its opinion the employees did not sup-
port the union. Compare Industrial Workers Local 289 v. NLRB, 476 F.2d
868 (D.C. Cir. 1973); NLRB v. Little Rock Downtowner, 414 F.2d 1084
(8th Cir. 1969). Furthermore, testimony concerning conversations direct-
ly with the employees involved, as here, is much more reliable than testi-
mony concerning merely a few employees ostensibly conveying the senti-
ments of their fellows. See NLRB v. Middleboro Fire Apparatus, 590 F 2d
4, enfg. 234 NLRB 888 (1978).
Finally, we do not agree with the judge's assessment that these em-
ployee statements are unreliable since they were made to supervisory per-
sonnel after the Respondent had made known its opposition to the Union.
In Valley Nitrogen Producers, 207 NLRB 208 (1973), relied on by the
judge, only 7 of the respondent's 70 employees expressed dissatisfaction
with the union prior to respondent's unlawful refusal to bargain, and the
Board specifically declined to pass on the administrative law judge's
comments with respect to the reliability of statements made to superviso-
ry personnel. In Middleboro Fire Apparatus, supra, the employees in-
volved expressed their sentiments during the course of preemployment
interviews. In contrast, here the conversations were initiated in the plant
by the employees involved with no hint of a coercive atmosphere. The
mere fact that the Respondent had previously expressed the view that it
had good relations with its employees and did not need a union, com-
ments not alleged to be unlawful, does not transform these conversations
into coerced and false expressions of dissatisfaction. Rather, we believe
that there is nothing in the circumstances surrounding the employees'
able here when considered in light of the other un-
contradicted evidence tending to corroborate the
employees' apparent disaffection with the Union:
the proliferation of antiunion signs in the plant and
the employees' hostility toward union steward
Birdsinger.
In our opinion the evidence, uncontradicted by
any of the General Counsel's witnesses, was suffi-
cient to support a good-faith, reasonably grounded
doubt of the Union's continued majority status at
the time the Union first demanded recognition on 1
September. Thereafter, the Respondent became
aware of further objective evidence of the Union's
lack of majority status when in early October
Brown saw a petition dated 28 September, signed
by all but one of the Respondent's employees, stat-
ing that they wished to "disassociate ourselves with
[sic] Local 624 . . ." Thus, its continued doubt of
the Union's majority status after that date was rea-
sonably grounded and in good faith.
Since the Respondent had a good-faith and rea-
sonably grounded doubt of the Union's continued
majority status as of I September, it did not violate
Section 8(a)(5) and (1) of the Act by refusing to
recognize and bargain with the Union even after
successorship status attached on 8 September.' 2
Accordingly, we shall dismiss the complaint.
ORDER
The complaint is dismissed.
statements here which would negate their reliability as free expressions of
employee sentiments.
" In view of our finding herein, we need not determine whether the
judge correctly found that the demand for recognition on this date was a
continuing one. However, we do agree with his conclusion that, as of
that date, the Respondent was not yet the successor of Stevens &
Thompson.
I2 We note that the judge erred in finding that the Respondent "suc-
ceeded to a still current bargaining agreement and with obligations ac-
cordingly," See, e.g., NLRB v Burns Security Services, 406 U.S. 272, 280
(1972).
DECISION
STATEMENT OF THE CASE
PHIL W. SAUNDERS, Administrative Law Judge: Based
on a charge filed on September 8, 1981, by Local 624,
United Paperworkers International Union, AFL-CIO,
herein the Union, Local 624, or the Charging Party, a
complaint was issued on October 16, 1981, against Sofco,
Inc.,' herein the Respondent, the Company, or Sofco, al-
leging violations of Section 8(a)(1) and (5) of the Nation-
al Labor Relations Act. The Respondent filed an answer
denying it had engaged in the alleged matter. The Gen-
eral Counsel and the Respondent filed briefs in this
matter.
I The name of the Respondent was officially changed from SOP, Inc.,
to Sofco, Inc., and all formal papers and documents should so reflect.
160
SOFCO, INC.
On the entire record in the case, and from my observa-
tion of the witnesses and their demeanor, I make the fol-
lowing
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent is a corporation duly organized under
and existing by virtue of the laws of the State of New
York. At all times material herein Stevens & Thompson
Paper Company, Inc, herein called Stevens, a Delaware
corporation, has maintained its principal office and place
of business at Greenwich, New York, and has been en-
gaged at this place of business in the operation of a paper
products manufacturing facility. Until August 31, 1981,
Stevens maintained a like place of business in Mechanic-
ville, New York, herein called the Mechanicville plant,
and was also engaged at this facility in the production
and sale of paper products.
About August 31, 1981, the Respondent purchased
from Stevens its Mechanicville plant, including the
assets, building, land, and equipment, and at all times
since August 31, 1981, Stevens has ceased to operate the
Mechanicville plant. At all times since September 8, 1981,
the Respondent has operated the Mechanicville plant and
has been engaged in manufacturing essentially the same
products for substantially the same customers as Stevens
had previously. The Respondent has also had as a major-
ity of its employees at the Mechanicville plant individ-
uals who were previously employees of Stevens at this
location. Since September 1, 1981, the Respondent has
employed substantially the same supervisors as had been
employed by Stevens at its Mechanicville plant. 2
Annually, the Respondent or Stevens, in the course
and conduct of its business operations, purchases, trans-
fers, and delivers to the Mechanicville plant goods and
materials valued in excess of $50,000 which are trans-
ported to this plant directly from States of the United
States other than the State of New York.
Annually, the Respondent or Stevens, in the course
and conduct of its business operations, manufactures,
sells, and distributes at said Mechanicville plant products
valued in excess of $50,000, of which products valued in
excess of $50,000 are shipped from said plant directly to
States of the United States other than the State of New
York.
The Respondent or Stevens is and has been at all times
material herein, an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II1. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
It is alleged in the complaint that, since about Septem-
ber 1, 1981, and continuing to date, the Union has been
requesting the Respondent to bargain collectively with it
with respect to rates of pay, wages, hours of employ-
ment, and other terms and conditions of employment as
2 See It. Exh. 1.
the exclusive collective-bargaining representative of all
employees of the Respondent in the appropriate unit de-
scribed below;3 and that, about September 1, 1981, and
at all times thereafter, the Respondent did refuse, and
continues to refuse, to recognize and bargain collectively
with the Union, notwithstanding that the Union was
then, and continues to be, the duly designated exclusive
collective-bargaining representative of the employees in
the unit described herein. Moreover, the Respondent has
refused, and continues to refuse, to meet and negotiate
with the Union with respect to rates of pay, wages,
hours of employment, and other terms and conditions of
employment for the employees in the aforementioned
unit.
Prior to August 31, 1981, Local 624 represented a unit
of employees working for Stevens at its plants located in
Mechanicville and Greenwich, New York, for a period
of from 25 to 30 years-in the record the Greenwich
plant is also referred to as the Middle Falls plant-and
over the years several collective-bargaining agreements
have been negotiated between the Union and Stevens
covering both its plants, with the most recent one effec-
tive November 1, 1980, with an expiration date of Octo-
ber 31, 1983.
The Union's International representative, Edward Ols-
zowy, testified that, around the month of June 1981, the
Charging Party was informed by an official of Stevens
that the Respondent had an option to buy the Mechanic-
ville plant, which option was to expire on August 20,
1981, but the option was then extended beyond August
20. During this period the Union became aware that the
transaction was to be completed about August 31. 4 It ap-
pears that the Union then made some tentative arrange-
ments whereby the Mechanicville plant employees could
exercise seniority to transfer to the Stevens Greenwich
plant or remain at the Mechanicville plant as employees
of the Respondent.
It further appears that during the summer of 1981-in
June-Richard Almy, Mechanicville plant manager for
Stevens and later for the Respondent, informed the Me-
chanicville employees and union shop steward Lila Bird-
singer that the Respondent was interested in buying the
Mechanicville plant, and that a representative of the Re-
spondent would be meeting with the Mechanicville em-
ployees to inform them of the type of employer Sofco
was. Shop steward Birdsinger then asked Plant Manager
Almy if he did not think it was proper for a representa-
tive of the Union to be at such a meeting and also asked
if the Union had been notified, to which questions Almy
replied no, they did not need any union there-that it
was "just the employees and the new company."
Birdsinger testified that about a week after the above
conversation, but still in June, Plant Manager Almy
asked her to pass the word along to the Mechanicville
employees that there would be a meeting outside the
3 The appropriate unit is:
All production and maintenance employees employed by the Re-
spondent at its Mechanicville, New York plant, but excluding all
office clerical employees, salesmen, confidential employees, guards,
professional employees and supervisors as defined in the Act
4 All dates are in 1981 unless stated otherwise.
161
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plant on the so-called bridge, with representatives of the
Respondent present, and to instruct the employees to
shut off their machines and to be in attendance. Pursuant
to the above, the employees assembled at the appointed
place where representatives of the Respondent and Ste-
vens were present, including the Respondent's chief rep-
resentative and consultant, Harold Brown, who spoke to
the employees on this occasion. Brown informed them as
to the type of employer the Respondent was, and told
them that the Respondent was based in Scotia, New
York and that he was leaving a list of its employees'
names and telephone numbers at the plant and, if any of
them wanted to know what kind of employer they were
going to work for, all they had to do was to go in the
office and secure the names and telephone numbers. No
benefits were discussed at this meeting, but Brown as-
sured the employees that Sofco was a good employer.
Birdsinger testified that she then opened the current bar-
gaining contract between Stevens and the Union and, re-
ferring to the successor clause, asked Brown if he real-
ized that the employees were represented by a union.
Brown replied that this "didn't concern him," that he did
not want to hear about it, and that it was his feeling that
they "didn't need a union."
Brown admitted that Birdsinger may have brought up
the subject matter about whether the Respondent would
have a union or honor the contract, and that he replied
that the Respondent did not have a union and as far as
he knew the employees at Scotia did not feel they
needed one. I have credited Birdsinger's version of what
was said at this meeting, but, under either version, it is
clear that on this occasion Brown made known to the as-
sembled employees that the Respondent did not have nor
want a union.
About August 24, a Monday, Plant Manager Almy in-
formed Birdsinger that the Respondent had chartered a
bus to take all the Mechanicville employees on a tour of
the Respondent's Scotia plant; that on the day of the
tour the employees would work until noontime and then
board the bus to go on the tour; that the tour would be
on Thursday, August 27; and that on the next day,
Friday, the employees would be asked to make out appli-
cations. When Birdsinger questioned Almy as to why she
had to make out an application when she already had a
job, Almy merely replied this is what had to be done.
The record shows that the scheduled tour took place
on August 27, after which the employees were given job
application blanks and told to fill them out and wait for
interviews. Birdsinger was interviewed by Brown and
Almy, and, after attempting to persuade her to transfer
to the Stevens plant at Greenwich, Brown passed out a
list of the benefits the Respondent intended to provide,
which were less, according to Birdsinger, than those
contained in the current contract. Brown then informed
the employees that the Respondent would be placing em-
ployment ads in the local paper for Mechanicville plant
jobs, but that the ads were not for workers to replace
present employees-they were only to fill the positions
of Mechanicville employees who chose not to remain.
The next day, August 28, Almy approached Birdsinger
during the morning and asked her if she was going to
accept a job at the Mechanicville plant, and she replied
she had not made up her mind. Later during the day
Birdsinger went to the bridge and met with International
representative Olszowy and Local 624's president, Daniel
Langlois. It appears that this meeting took place so the
union representatives could pass on whatever informa-
tion they had gathered to shop steward Birdsinger.
Also on the afternoon of August 28, Brown told Bird-
singer that she had gone beyond the number of hours
they said she would have, and now she must make up
her mind whether or not she wanted to accept a position
with the Respondent. When Birdsinger said it was a big
decision to make, Brown replied that she had been given
enough time to think it over, and that she either accept-
ed or else. When Birdsinger asked, "Or else, what?"
Brown said, "Or else you don't have a job." She then
signed on for the job. On this occasion Birdsinger also
asked Brown if there was a meeting scheduled between
the Union and Brown for Tuesday since she had been in-
formed at noontime that the Union was trying to set up a
meeting, and Brown replied he guessed so-they (union
people) were at the plant during the morning but made
no appointment, and, whatever they had on their mind,
he did not know and did not care.
It appears from this record that Brown had, in fact,
agreed to a meeting with the Union, and it was to take
place on September 1.s
On September 1, Olszowy, Langlois, and Birdsinger
went to the Mechanicville plant and met with the Re-
spondent's representative Brown, Almy, and Eric Kip-
pert, who is currently general manager of the Mechanic-
ville plant. Olszowy testified that at this meeting he in-
formed Brown that it was his understanding the Re-
spondent had purchased the plant, and Brown replied
yes, effective August 31. Olszowy further testified, "I
told him we are the certified bargaining agent. And I've
[sic] asked at that time if he would like to continue the
current labor agreement. He said no. I asked him if he
wanted to negotiate a new one. He said no. I asked him
if he recognized the Union. He said no."
Birdsinger testified that at this meeting on September I
Olszowy asked, "We're here wondering if your people
want to recognize the union, if you want to accept the
contract as it is or if you want to draw up a new one,"
to which Brown replied, "No, no, no" and then stated
that he had "good relationships with my employees. I
don't need a union," and also stated that Sofco "only
bought the building and the machinery and not the em-
ployees."
Langlois, president of Local 624, testified that on Sep-
tember I Olszowy asked Brown if he would recognize
the Union, if he would recognize the contract, and if he
wanted to renegotiate a contract, to which questions
Brown replied, "No, no, no, I don't think so." Langlois
also testified that at this time Brown inquired of the
union representatives if the Union wanted to invest
money in the Company, but he replied that such would
be illegal.
s The Mechanicville plant was shut down for certain repair work the
week beginning Monday, August 31, and Birdsinger and the other em-
ployees asked for and received layoff slips from Stevens. Temporary
shutdowns of this kind were normal.
162
SOFCO, INC.
At the end of this meeting there was also some discus-
sion about a future meeting, and it appears that Brown
then stated it was probably all right, but he did not see
any point in it after Olszowy had said something to the
effect that he would be getting back in touch.
The Respondent produced testimony through Harold
Brown to the effect that, at the meeting in question on
September 1, he was asked by Olszowy, "Do you want
to recognize the Union?" and he replied, "I don't think
so." Brown testified that he looked on this request as
"exploratory" and a "feeling out" on both sides, and he
stated that on this date he did not know what the em-
ployee complement would be at the Mechanicville plant,
he did not feel he had authority in this matter without
consulting with the president of Sofco, and he was also
aware of the employee dislike for the Union. 6
Plant Manager Almy testified that he was at the June
meeting on the bridge when Brown talked to the em-
ployees, as aforestated, and since that time he had re-
ceived indications from employees of their dissatisfaction
with and lack of support for the Union. He was told by
certain employees that with the change in ownership
they could not get away from the Union and be on their
own. A lot of them "just plain wanted out," and he had
conveyed this information to Brown prior to the takeov-
er of the Mechanicville plant by Sofco. Almy stated that
at the meeting on September I the union representative
asked the Sofco representatives if they wanted to honor
the contract or if they wanted to negotiate a new one,
and he took this as a "feeling out" approach.
The Respondent's general manager, Eric Kippert, tes-
tified that at the meeting on September I union repre-
sentative Olszowy asked them, "do you want to recog-
nize the Union?" and Brown replied, "I don't think so."
Kippert stated that by this question he "got the impres-
sion [Olszowy] was fishing," but that Brown's reply "left
the door open."
The record reveals that by letter dated September 25
the Union again requested that the Respondent recognize
Local 624 as the bargaining agent, but that such request
was denied by a letter from the Respondent to the Union
dated October 8 on the basis that Sofco had a good-faith
doubt as to the Union's majority status among the em-
ployees at its Mechanicville plant.
Counsel for the Respondent argues that Sofco did not
employee a majority of its employees from the former
Stevens Mechanicville bargaining unit until it com-
menced operations on September 8; that, during the prior
week, the Mechanicville plant was shut down and, ac-
cording to Brown, Sofco's consultant at the plant, still
under the operational responsibility of Stevens; and that
on September I and throughout that week, Sofco had no
way of knowing how many employees from the Stevens
Mechanicville work force would be joining it on Sep-
tember 8. Moreover, the uncertainty was so great that
Sofco, in order to be sure that it would be able to fill
whatever vacancies remained of the 25 "plus or minus
two" positions they would need to fill in its anticipated
work force, took in over 200 applications and inter-
' Brown testified that in early October he had seen a petition dated
September 28 from the employees expressing their desire to disassociate
themselves from Local 624. See R. Exh. 2.
viewed 106 applicants during the last week in August,
and it did so even after job offers had been made to the
Stevens Mechanicville employees.
Counsel for the Respondent further argues that the
crucial date under consideration here is September 1 be-
cause this is the date on which the General Counsel and
the Union allege that the initial demand for recognition
was made, and, accordingly, the sucessorship status of
the Respondent on that date is a pivotal issue; that, under
Burns and its progeny, if it cannot be said that on Sep-
tember I it was "perfectly clear that the new employer
plan[ned] to retain all of the employees in the unit" or
that the new employer "ha[d] hired his full complement
of employees" (NLRB v. Burns Security Services, 406 U.S.
272, 294-295 (1972)), then the Respondent was not a suc-
cessor employer on that date and no duty to bargain at-
tached at that point.
The Respondent duly acknowledged as aforestated,
that it has been a successor employer to Stevens since
September 8 when it began operating the Mechanicville
plant and engaging in essentially the same business oper-
ations at the same location as Stevens with a majority of
its employees at the Mechanicville plant having been
previously employees of Stevens at the same location.
However, counsel for the Respondent maintains that
September I is the crucial date, and that at this time
Sofco had not employed a majority of the predecessor's
(Stevens') employees.
Under circumstances, as here, where the new employ-
er continues operations substantially unchanged and the
bargaining unit continues intact, the Board has tradition-
ally held that the new employer succeeds to the prede-
cessor's bargaining obligations when a majority of the
new employer's work complement is determined to have
come from the predecessor's bargaining unit. 7
I am in agreement with the Respondent that on Sep-
tember I a majority of Sofco's work force had not as yet
been employed from the predecessor's bargaining unit,
and the clearest evidence that the Respondent had not as
yet hired its full complement of employees by September
I is Respondent's Exhibit I-Sofco's weekly payroll reg-
ister for the pay period ending on September 2, which
reflects pay for a total of only seven former Stevens em-
ployees two of whom, Almy and Quackenbusli, were su-
pervisory and office employees.
However, the Respondent's Mechanicville payroll for
the week ending September 9 shows I supervisor out of
2 office clericals and all 24 unit employees as former Ste-
vens employees with all but I of the unit employees
being union members.8 The Respondent's payrolls for
the weeks ending September 16, 23, and 30 show, respec-
tively (minus or plus 1), 21 out of 24, 22 out of 25, and
21 out of 28 unit employees as former Stevens employ-
ees, with all but I former Stevens unit employee being
union members.9
' See United Maintenance Co., 214 NLRB 529 (1974).
s See G.C. Exh. 3. The payroll includes September 3 and 4, on which
dates six former Stevens employees were called in to do cleanup work
for Sofco with all being union members at the time.
9 See GC Exhs. 4, 5, and 6.
163
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
From this record it is clear that on September 8, when
Sofco actually started the operation of the Mechanicville
plant, a majority of the work force of its predecessor had
been hired, and admittedly so. Consequently, I find that
the Respondent succeeded to the bargaining obligations
of Stevens on and after September 8 when a majority of
its work force was composed of former Stevens unit em-
ployees, and that its duty to bargain with the Union then
attached and became perfected. 0o
As indicated previously herein, the Respondent argues
that September I is the crucial date, and that the Union's
purported demand for recognition on that date was pre-
mature. However, it appears to me that the Union's ini-
tial request for recognition on September 1 was in the
nature of a live and continuing demand, which was still
outstanding and then became activated on September 8
when Sofco started its operations and had hired a majori-
ty of Stevens unit employees-in fact, it had hired virtu-
ally all of them.
Counsel for the Respondent argues that the Union's
statements on September 1 did not communicate a suffi-
ciently clear request to indicate a desire to be recognized
by and to bargain with the Respondent-the words used
by Olszowy at the September I meeting were not such
as to reasonably and clearly convey an understanding
that the Union was requesting recognition and bargain-
ing; that Olszowy was heard to preface his references to
recognition and negotiation with the precatory words
"want to"-do you want to do this, do you want to do
that, do you want to do the other thing; and that such
words did not constitute a demand. Further, argues
counsel for the Respondent, the final proof of this fact
came less than 1 month later when the Union, recogniz-
ing the inadequacy of its earlier effort for purposes of le-
gally communicating a recognition demand, sent Brown
its formal demand letter of September 25, and, unlike the
"shadow boxing" which took place earlier Olszowy, this
time, was very clear and direct in his request. Put to him
in this manner, Brown then understood that Olszowy
was requesting recognition.
It has been well established by the Board that a re-
quest to bargain need not be precisely worded as long as
it is clearly implied that the request is for bargaining.' I
In the instant case it appears to me that the Union's
initial request to bargain on September 1 was sufficiently
clear, and especially so under the circumstances here
where we have a successor involved. 12 In the final anal-
ysis, the Union in the instant case not only requested rec-
ognition, but also then offered the alternative of either
abiding by the existing contract or negotiating a new
one. As pointed out, Brown alluded in his testimony to
the fact that under these circumstances he would have
had to check with the Respondent's president before
granting recognition, but this record shows that he never
conveyed in any manner this message to the union repre-
sentatives. Brown further testified that he thought there
'o See Stewart Granite Enterprises, 255 NLRB 569 (1981).
" See Cottage Bakers, 120 NLRB 841 (1958).
12 In Wesiern-Davis Co.. 236 NLRB 1224 (1978), the union there made
no explicit recognitional demand until August, but nevertheless the Board
agreed that the successor's duty to recognize and bargain arose on April
I coincident with its establishment of a compelement in unit categories of
whom over one-half had come from the predecessor.
also had to be an election before he could grant recogni-
tion. This, of course, is not the case, and Brown's belief
to the contrary cannot be used to render ineffective an
otherwise valid request.
There is further argument by the Respondent to the
effect that Brown's words on September I did not con-
stitute a refusal to recognize the Union, and that they
were not understood by Almy or Kippert to be a refusal
of anything-as General Manager Kippert put it, "I
think he left the door open."
While management representatives may not have un-
derstood the replies by Brown to be a refusal, it appears
clear to me that all reasonable inferences are to the con-
trary, and, even with the utterance on one occasion by
Brown of "I don't think so," I find the evidence insuffi-
cient to remove his replies from the clear and unmistak-
able category of a rejection to recognize and bargain
with the Union.
I turn now to the contention that any refusal by the
Respondent to recognize and bargain with the Union
was based on the Union's lack of majority support or on
a good-faith doubt of the Union's majority support.
The Respondent produced testimony through Plant
Manager Almy to the effect that, after the meeting in
June, he received indications from employees of their
dissatisfaction with the Union. In this regard Almy testi-
fied, "At that time there was rumors that the Company
might be sold, might be closing down or whatever. So
then everybody got talking, well, maybe this is our
chance to do away with the union, get away from the
union, and be on our own. If Sofco does purchase it, we
could make out better without a union. And then there
was a lot of talk about that they were dissatisfied with
the present union and that there was a lot of them that
just plain wanted out."
Almy stated that he heard these comments regarding
the Union almost every day over the 2 or 3 months pre-
ceding September 1; and, on reviewing the names of em-
ployees which appear on General Counsel's Exhibit 3,
the payroll sheet covering the Respondent's first 2 days
of full operation, he testified that, out of the 24 bargain-
ing unit employees appearing on that list, the only one
from whom he did not hear these kind of comments was
Lila Birdsinger, the shop steward. Based on what he
heard from all the rest, it was clear to him that the
Union had no support. While testifying, Almy also gave
the names of several employees who had informed him
of their discontent with the Union.
Almy further testified that, in addition to the com-
ments made directly to him, he also observed posters or
signs hanging in the plant saying such things as "count
down 30 days to go. 25 days to go till the end of the
union. All pertaining to the union," and that these signs
began appearing at the stated intervals prior to Septem-
ber 1, and made specific reference to the number of days
remaining before that date.
Manager Almy testified that the employees were also
"picking on" Birdsinger in clear disdain for her role as
shop steward and that they were "going around her" in
attempting to deal with management during the summer
164
SOFCO, INC.
of 1981. He stated that all this activity protesting the
Union was made known to Brown prior to September 1.
Counsel for the Respondent points out that the ulti-
mate confirmation of the Union's total lack of support
among the employees at the Mechanicville plant came in
the form of a petition signed by all but one of them
dated September 28, 1981, which stated: "WE THE UN-
DERSIGNED, WISH TO DISASSOCIATE OUR-
SELVES WITH LOCAL 624 OF THE UNITED
PAPER WORKERS INTERNATIONAL UNION,
AFL-CIO."'3 This petition was first seen by Brown a
few days afterwards on October 2 "plus or minus two."
Counsel argues that with this petition in hand it was
clear that the Union lacked majority support at the time
of the Respondent's one and only refusal to recognize
and bargain with it-the letter of October 8 from its at-
torney to Olszowy, as aforestated.
As pointed out, the Respondent's good-faith doubt is
based primarily on the testimony of Almy, who worked
as plant manager for Stevens and continued in that ca-
pacity for the Respondent. Almy testified that, after the
June bridge meeting where Brown spoke to the assem-
bled employees, everybody in the plant got to talking
that maybe this was their chance to do away with the
Union and be on their own, and he stated that he heard
comments like this from all the employees except Bird-
singer. However, on cross-examination when the General
Counsel attempted to elicit testimony from him on what
he had actually heard from each employee, Almy exhib-
ited a great deal of difficulty with specifics. With regard
to employee J. A. Perry, Almy stated that he could not
tell the day or time of his conversation with him, that his
conversation was "somewhere along the lines of well, it
won't be long now and we can get rid of this lousy
union, something to that effect. I can't tell you the exact
words." Almy testified that he could not recall the date
of his conversation with employee L. J. Peters, but
stated that Peters was always against the Union since he
transferred from Greenwich to Mechanicville and that
he may have spoken to him prior to June. Almy ex-
pressed the same difficulty in remembering any specifics
with respect to the other employees he allegedly spoke
with, but then agreed that in June all the employees have
him the same response in relating their feelings about the
Union-that they had only "x amount of days to go"
before the takeover by Sofco. He finally concluded that
95 percent of the employees spoke to him in June about
this matter, but then on redirect testified that 95 percent
of the conversations occurred throughout "several
months."
What is important and controlling in this phase of the
instant case is the initial testimony and admission by
Almy that these employee remarks indicating dissatisfac-
tion with the Union started after Brown had talked with
the Mechanicville employees at the plant in June telling
them that he had good relationships with his employees
and that Sofco did not need a union, as previously de-
tailed herein, and, even though Brown's version of this
portion of the conversation differs in what he contends
he said to the employees, either version of the remarks
i3 R. Exh. 2.
reveals that the chief representative and consultant for
Sofco clearly expressed to the predecessor's employees
on this occasion that the successor was not at all favor-
ably inclined towards unions. Thus, having heard of the
Respondent's opposition to the Union, it is little wonder
that the employees desiring to be retained by the Re-
spondent would make some antiunion statements. It is
also noted that the Respondent produced no employee
testimony concerning these antiunion remarks, nor did it
produce any other corroborating testimony, nor was
there evidence of any spontaneous employee attempt to
dislodge the Union. 4 Moreover, neither the signs alleg-
edly posted in the plant nor Birdsinger's alleged prob-
lems as shop steward (both allegations uncorroborated)
rose to the level of such a movement.
I am in agreement that the Respondent's "objective
evidence of loss of majority" is the same type of unspeci-
fic testimony, uncorroborated by any management or
employee witnesses, that was rejected in MRA Associates,
245 NLRB 676 at 678 (1979). As stated in Valley Nitro-
gen Producers, 207 NLRB 208 at 214 (1973):
Such evidence of employee sentiment is unreli-
able, since an employee, when engaging in conver-
sation with supervisory personnel regarding his
union sentiments, will tend to make statements he
believes management would like to hear.
The foregoing reasoning is especially applicable here
where the employees had been made aware of the Re-
spondent's feelings towards the Union at the June meet-
ing.
Indeed, as noted by the General Counsel, the alleged
statements made herein for the benefit of their prospec-
tive employer are similar to those in Middleboro Fire Ap-
paratus, 234 NLRB 888 (1978), enfd. 590 F.2d 4 (1st Cir.
1978). Middleboro involved a successor employer who
was claiming doubt of the union's majority based on
statements made by the predecessor's employees during
interviews for employment by the successor, about
which it was said at 894:
Statements made by employees during the course of
an interview with a prospective employer that they
approve of his unqualified position that he has no
contract and is not obligated to bargain with the
Union claiming to represent them are not voluntary,
uncoerced expresssions of employee sentiment upon
which their employer can rely in asserting a good-
fath doubt of an incumbent union's majority status.
The rationale behind all the foregoing bases is clear. If
the Board accepted statements such as those proffered by
14 All facts found herein are based on the record as a whole and on
my observation of the witnesses. The credibility resolutions herein have
been derived from a review of the entire testimonial record and exhibits
with due regard for the logic and probability, the demeanor of the wit-
nesses, and the teaching of NLRB v. Walton Mfg. Co., 369 U.S. 404
(1962). As to those witnesses testifying in contradiction of the findings
herein, their testimony has been discredited either as having been in con-
flict with the testimony of reliable witnesses or because it was in and of
itself incredible and unworthy of belief All testimony has been reviewed
and weighed in the light of the entire record.
165
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Manager Almy as proof of a reasonably based doubt,
then the employer could escape its bargaining obligation
by simply having a supervisor testify, without corrobora-
tion or other evidence, that all of the employees told him
they did not want a union. That practice would obvious-
ly create an intolerable situation, and certainly not pro-
mote stable bargaining relationships.
The Respondent also introduced into evidence a docu-
ment or petition with names on it dated September 28
that Brown testified he received from Almy on October
2 or a couple of days before or after that date (R. Exh.
2), and, although General Manager Almy testified, he
was not asked about this document. Thus, there is no
evidence in the record as to who circulated it, how it
came into existence, how the Respondent acquired it, or
whether any of the signatures on it are authentic. As also
pointed out, even if this petition had some possible evi-
dentiary value, it could not be relied on since the earliest
date it was received by any official of the Respondent
would be September 30, and by that time the Respond-
ent had already refused to bargian with the Union.
Moreover, in the instant case the bargaining contract
here in question does not expire until October 1983, and
it has long been recognized that the duty to bargain is
not affected by a union's loss of majority support during
the term of the contract, and here, of course, Sofco has
succeeded to a still current bargaining agreement with
obligations accordingly.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I shall recommended that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. Local 624 is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By engaging in.the conduct described and detailed
in section III, above, the Respondent has engaged in and
is engaging in unfair labor practices within the meaning
of Section 8(aX5) and (1) of the Act.
4. The unit set forth herein constitutes a unit appropri-
ate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
5. At all times material herein, the Union has been the
exclusive collective-bargaining representative of the em-
ployees in the described unit set forth herein.
6. The Respondent is a legal successor for labor rela-
tions purposes to Stevens in the operation of the Me-
chanicville plant.
7. Since about September 8, 1981, and at all times
thereafter, the Respondent has failed and refused to rec-
ognize and to bargain collectively in good faith with the
Union as the exclusive representative of the Respond-
ent's employees in the described unit herein, and thereby
has engaged, and is engaging, in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the Act.
[Recommended Order omitted from publication.]
166