Stormor, Inc.

National Labor Relations Board - Board Decisions

Feb 10, 1984

268 N.L.R.B. 860 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Stormor, Inc. Division of Fuqua Industries, Inc. and
United Steelworkers of America, and its Local
No. 7377, AFL-CIO, CLC. Case 17-CA-10621
10 February 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 30 September 1982, Administrative Law
Judge Gordon J. Myatt issued the attached deci-
sion. The Charging Party filed exceptions and a
supporting brief, and Respondent filed an answer-
ing brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions' and to adopt the recommended
Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
Chairman Dotson and Member Hunter find it unnecessary to pass on
or apply the presumptions concerning strike replacements set out in
Pennco. Inc., 250 NLRB 716 (1980), and like cases, because on the facts
here they find that under any view of the law the Respondent did not
violate the Act by withdrawing recognition from the Union.
DECISION
STATEMENT OF THE CASE
GORDON J. MYATT, Administrative Law Judge: Upon
the charge filed by United Steelworkers of America, and
its Local No. 7377, AFL-CIO, CLC (the Union) on Sep-
tember 28, 1981,1 against Stormor, Inc., a Division of
Fuqua Industries, Inc. (the Respondent), the Regional
Director for Region 17 issued a complaint and notice of
hearing on March 11, 1982. The complaint alleges that
the Union was certified as the exclusive collective-bar-
gaining representative of the Respondent's employees in
an appropriate unit on June 28, 1967, and that the parties
have been subject to successive collective-bargaining
agreements; the most recent of which was effective from
February 12, 1978, until February 11, 1981. Further, that
since September 11, 1981, and at all times thereafter, the
Respondent has withdrawn recognition of and has re-
fused to bargain with the Union as the exclusive repre-
sentative of the Union. The complaint alleges that by this
conduct the Respondent has violated Section 8(aX1) and
(5) of the National Labor Relations Act, as amended, 29
All dates herein refer to the year 1981.
268 NLRB No. 134
U.S.C. § 151 et seq. (the Act).2 The Respondent filed an
answer admitting certain allegations of the complaint, de-
nying others, and specifically denying the commission of
any unfair labor practices. The Respondent's answer also
asserts an affirmative defense in that it asserts a good-
faith doubt regarding the Union's majority status as the
bargaining representative of the unit employees.
A hearing was, held on this matter in Fremont, Nebras-
ka, on May 11 and 12, 1982, at which all parties were
represented by counsel and afforded full opportunity to
examine and cross-examine witnesses and to present rele-
vant and material evidence of the issues involved herein.
Briefs were submitted by all counsel and have been duly
considered.
Upon the entire record in this case,3 including my ob-
servation of the witnesses and their demeanor while testi-
fying, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a Delaware corporation engaged in
the manufacture of grain storage buildings, drying equip-
ment, and metal buildings at various facilities including a
facility located in Fremont, Nebraska. In the course and
conduct of its business operations within the State of Ne-
braska, the Respondent annually purchases goods and
services in excess of $50,000 directly from sources locat-
ed outside the State of Nebraska. In addition, from its
Fremont facility the Respondent annually sells goods and
services valued in excess of $50,000 directly to customers
located outside the State of Nebraska. On the basis of the
foregoing, I find that the Respondent is an employer
within the meaning of Section 2(2) of the Act, engaged
in commerce within the meaning of Section 2(6) and (7)
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Steelworkers of America, and its Local No.
7377, AFL-CIO, CLC is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
The Union was certified by the Board in 1967 as the
exclusive collective-bargaining representative of the Re-
spondent's employees in the following appropriate unit:
All production and maintenance employees em-
ployed at the [Fremont] facility but excluding office
clerical employees, guards and supervisors as de-
fined in the Act.
I During the course of the hearing, the General Counsel was permitted
to amend the complaint to allege a separate violation of Sec. 8(aXl) of
the Act involving an alleged unlawful interrogation of a unit employee.
I The official transcript contains numerous errors which are hereby
corrected in the manner set forth in "Appendix A" attached to this Deci-
sion. [Appendix A omitted from publication.)
860
STORMOR, INC.
Since the certification, the Union and the Respondent
have been parties to successive collective-bargaining
agreements and the last agreement between them was ef-
fective February 12, 1978, to February 11, 1981.
B. The Efforts to Negotiate a New Agreement
Prior to the expiration of the last contract, the parties
began negotiations for a new agreement. These negotia-
tions began on January 8, 1981, and were finally termi-
nated on June 22. During this period there were approxi-
mately 17 bargaining sessions, but the parties failed to
arrive at an agreement.4
Approximately a week or so after the expiration date
of the then existing agreement, but while negotiations
were continuing, the Respondent locked out the unit em-
ployees. This was part of a bargaining stratagem em-
ployed by the Respondent to exert pressure on the Union
to come to terms on a new agreement. The testimony in-
dicates that the Respondent's management anticipated
that the employees would continue work without a new
contract until the busy season began (ate spring), and
then engaged in a strike to compel the Respondent to
accept the Union's contract proposals. In order to fore-
stall such a maneuver, the Respondent decided to lock
out the unit employees in mid-February.
The lockout lasted until March 25. On that date, man-
agement officials advised the representatives of the
Union that the lockout would be terminated because it
appeared the parties were close to arriving at an agree-
ment. The union representatives in turn advised the Re-
spondent's officials that they wanted to conduct a meet-
ing of the membership before returning to work. They
insisted that the return of the employees be delayed until
the following Monday (March 30).
On March 29, a membership meeting was held by the
Union. At the recommendation of the union leadership,
the employees unanimously approved going on strike in
support of their contract demands rather than returning
to work as requested by the Respondent. 5
C. The Economic Strike and the Hiring of Permanent
Replacements
On March 30, the vast majority of the unit employees,
led by Richard Hawkins, the staff representative of the
Union, began picketing the Respondent's facilities. At the
time of the lockout, the Respondent had 93 employees
on its payroll. When the strike commenced, all of the
employees, with the exception of six who returned to
work the day the strike started, withheld their services
from or picketed the Respondent. Several days after the
strike commenced, the Respondent began hiring perma-
nent replacements for the striking employees.
One of the principal issues in controversy between the parties was
the amount of cost-of-living adjustment (COLA) to be included in the
new agreement.
I Several employees who returned to work instead of striking testified
they were upset with the union officials because of the manner in which
the strike vote was conducted. According to them, the strike authoriza-
tion was approved by a standup vote and they felt it should have been
conducted by a secret ballot. However, it is undisputed that the strike
was unanimously approved.
The strike activity became violent, on the picket line
as well as away from the Respondent's facilities.6 Two
of the returning nonstrikers, Betty Jespersen and Wayne
Radtke, testified they only worked the first 2 days after
their return to the jobs and then remained at home for an
extended period of time before ultimately returning to
work. 7 The Respondent maintained a "strike-log" to
record the various incidents when they were observed
by members of management or reported to them by non-
strikers and strike replacements. For the most part, all
entries in this log were made by Patrick McIntire, plant
superintendent, based on his personal observations or re-
ports made to him of incidents by supervisors or work-
ing employees. (See R. Exh. 2.)
Because of the violence and property damage, the Re-
spondent sought and was granted a temporary restraining
order against the Union and various picketers, including
Hawkins, from the state district court on April 11. A
permanent injunction was issued by the court on April
16. (See R. Exh. 7.) In spite of the injunction, the violent
character of the strike persisted. After one flare up
during the lunch hour between nonstrikers and strikers
outside the Respondent's .shipping department in late
July, Ronald Rohrs, the Respondent's vice president for
operations, warned the nonstriking employees to avoid
all such incidents or suffer a loss of their jobs.
On July 28, the Respondent filed for a modification of
the permanent injunction issued by the state court in an
effort to further restrain picketing activity and minimize
the possibility of further violence. (R. Exh. 9.) This re-
sulted in a written agreement between the Union and the
Respondent on July 31 specifying areas where pickets
would be allowed to patrol, where nonstriking employ-
ees would be allowed to park their automobiles on the
Respondent's property when coming to work, the routes
of egress and ingress for nonstriking employees into or
out of the Respondent's facilities, and rules of "non-pro-
vocative" conduct for strikers and nonstrikers alike. (See
R. Exh. 10.) The testimony and documented evidence
reveal that after the modification agreement was execut-
ed by the Union and the Respondent on July 31, the
strike violence decreased substantially.
Approximately the same time it sought a modification
of the permanent injunction in the state court, the Re-
spondent filed charges against the Union with the Re-
gional Office of the Board. After an investigation, the
Regional Director issued a complaint alleging that the
Union and its agents restrained and coerced the Re-
spondent's employees in the course of the strike activity
in violation of Section 8(bXIXA) of the Act.8 (R. Exh.
' It is evident from the testimony and documented evidence that the
violence included physical assaults, threats of bodily harm, property
damage to vehicles from rock throwing, kicks, and of the scattering of
nails in the roadway, property damage at the homes of nonstrikers result-
ing from random gun shots, and threats over the telephone to nonstrikers
and members of their families.
Jespersen remained away from the plant for 3 days because of a
threatening telephone call she received at home after returning to work
the day the strike commenced. Radtke remained away for 3 weeks be-
cause of threatening telephone calls received by members of his family.
a The pertinent portion of this section of the Act provides:
Continued
-
861
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8.) The Union and the Regional Director entered into a
settlement agreement regarding the allegations of this
complaint; however, the Respondent, as the Charging
Party in this instance, refused to join in the settlement.
D. The Sentiments Regarding the Union Expressed by
Nonstrikers and Strike Replacements
Sixteen unit employees and four management repre-
sentatives were called as witnesses by the Respondent to
demonstrate what it termed to be "representative testi-
mony" regarding the strike activities and the views of
the employees about continued representation by the
Union:
Ogden Danner-This individual has been an employee
of the Respondent since 1959 and was treasurer of the
Union until he abandoned the strike to return to work on
April 4. Upon his return, he told Ronald Rohrs that the
employees were not receiving the "full truth" or a "fair
shake" from the Union. He also told Rohrs that he
wished Hawkins and the strikers would get off the street
and leave the employees alone.
At some unspecified date in July, Danner told William
Dill, a maintenance supervisor, that he wished the strik-
ers would leave the nonstrikers alone and that the work-
ing employees were getting along fine without them. He
made similar statements to McIntire and several other su-
pervisors in the plant and informed them that he did not
want "this kind of union" and "didn't like all the law-
breaking that was going on."
Finally, Danner testified that at some time in July or
August he met Rohrs at a restaurant on a Sunday morn-
ing. Danner was accompanied by another nonstriking
employee, Art Arnold. Danner told Rohrs that he
wished Dick Hawkins and the strikers would get off the
street and leave the people alone so that they could do
the job. He also told Rohrs on this occasion that he was
against having the strike because he felt the employees
were not told the truth (by the union leadership). He in-
dicated to Rohrs that he felt the strike was wrong be-
cause the economic conditions were such that business
was slow.
Frank Conkling-This employee had worked for the
Respondent since 1970. He abandoned the strike on
April 3 and returned to his job. When Conkling re-
turned, he spoke with Rohrs and expressed dissatisfaction
with the way the contract negotiations were going. He
told Rohrs that the union officials had not fully informed
the employees about the Respondent's contract propos-
als. He also expressed a dissatisfaction over the manner
in which the strike vote was taken during the member-
ship meeting on March 29 and gave Rohrs a handwritten
note purportedly setting down a question-and-answer
conversation he had with Hawkins concerning the treat-
ment of nonstrikers crossing the union picket line. (See
R. Exh. 3.)
John Brewer-Brewer was hired on April 13 as a per-
manent strike replacement. Prior to working for the Re-
spondent he had been president of a Steelworkers local
(b) It shall be an unfair labor practice for a labor organization or
its agents-
(1) to restrain or coerce (A) employees in the exercise of rights
guaranteed in section 7 ....
and the chief steward of a Meatcutters local while work-
ing for other employers. Brewer testified that the day
following the altercation between the shipping depart-
ment employees and the strikers during the lunch hour in
late July, he told Rohrs that the leadership of the Union
was "unconscionable and irresponsible." Brewer also
stated he did not want to have anything to do with this
particular union.
Todd Vie-A strike replacement hired on April 7, Vie
testified he told management, shortly after he started to
work, that the lights on his automobile were knocked out
while it was parked at his home. Vie stated he spoke to
Rohrs at the plant on several occasions and said that he
could speak for everyone in the shipping department. He
told Rohrs that they did not want the Union in the plant.
Vie also questioned his supervisors, Voss and Jessen, as
to why the strikers were harassing the nonstrikers since
they (the strikers) "had a chance to come back to work."
Stephen Kuddes-Hired in 1977, Kuddes returned to
work on March 30 when the strike began. He is a lead-
man in the service department. Approximately a month
after he returned, Kuddes told Rohrs he had been asked
by "about 15 employees" whether they could have a
vote to determine if the employees wanted to keep the
Union as their bargaining representative. When Kuddes
put the question to Rohrs, he was informed there was
nothing that could be done about it.
Wayne Radtke-An employee prior to the strike,
Radtke returned to work on March 30. 9 He worked for
several days but returned home for a 3-week interval be-
cause members of his family had received threatening
phone calls. Radtke testified that after he finally returned
to work he spoke with various supervisors on a number
of occasions and indicated he was tired of the harassment
by strikers when he came to and from the plant. Radtke
stated he told Plant Superintendent McIntire and Super-
visors Braesch and Burhman that he talked with other
employees, "And none of them wanted the Union in the
plant."
Clifford Hood-Hood had been an employee of the Re-
spondent since 1968 and returned to work on the day the
strike started. Hood stated he returned to work after the
lockout ended because he was hurting financially and
had to refinance his house trailer in order to avoid losing
it. He further testified that he informed Mclntire on the
first day he returned to work that he "didn't want no
part of no union no more." Hood also spoke to Ron and
Ken Rohrs that same day-the latter is the president of
the Respondent. He told both Rohrs that "we did not
want no more union."'1
Darryl Beiermann-A strike replacement, Beiermann
was hired in April and worked in the shipping depart-
ment. This employee testified that when he first crossed
the picket lines to apply for a job the striking employees
warned him "that bad things happen to people who
9 Radtke stated that he returned to work for financial reasons after the
lockout ended.
0o Hood had previously been a member of the Union on two different
occasions. Since Nebraska is a right-to-work state, membership in the
Union could not be compelled as a condition of employment through a
union-security clause.
862
STORMOR, INC.
worked for Stormor." On July 7 shots were fired at
Beiermann's residence and his automobiles in the early
hours of the morning. Two days later, when Beiermann
went to work, he confronted Hawkins on the picket line
about the shooting. An argument ensued and Beiermann
struck Hawkins." Beiermann testified he told his super-
visors, Voss and Jessen, on several occasions that the
nonstriking employees were tired of seeing the strikers
on the street and that nonstrikers "were not interested in
their union."
Erick Johnson-Johnson was hired as a strike replace-
ment on April 18. He testified that he was constantly
harassed by the picketing employees when he had to
back up a trailer in the yard at the shipping department.
Johnson also stated that he frequently expressed the view
to Voss and Jessen, his supervisors, that he wished the
Union would not come back into the plant.
Betty Jespersen-A long-time employee, Jespersen re-
turned to work the day the strike commenced. Jespersen
was a divorcee and stated she had to return to support
herself and her daughter. Jespersen worked 2 days and
then because of telephone threats and the fact that the
window of her automobile was shot out, Jespersen re-
mained away from work 3 days before ultimately return-
ing to her job at the plant. Jespersen testified that during
the course of the strike she had conversations with virtu-
ally all of the supervisors in the plant. She informed
them that everybody she had talked to in the plant did
not want the Union.
Carolyn Wirka-Also a long-time employee, Wirka re-
turned to work a week after the strike commenced. As in
the case of most of the returning employees, Wirka re-
turned for financial reasons. She testified she talked with
McIntire on at least three occasions about the Union.
According to Wirka, she told Mclntire "the general run
of the people that [she] talked to in the plant, no longer
said they wanted a union here." She also repeated these
statements to other supervisors in the plant, including
Maintenance Supervisor Dill. After an incident at her
home in late April (presumably involving strikers),
Wirka called Ron Rohrs on the telephone and told him
that she did not think the employees should have a
union.
Ernest Schroeder-Schroeder was one of the employees
who returned to work during the strike (April 6). On the
first day that he returned, Schroeder told Supervisor
Buhrman that he felt the Union was doing the wrong
thing. He repeated similar statements to other supervisors
in the plant during the course of the strike.
Terry Nelson-Nelson was hired on April 3 as a strike
replacement and worked as a forklift operator. As such,
his job carried him throughout the plant. Nelson testified
that in performing his job he had frequent conversations
with other employees about the Union. Moreover, the
Union was generally a topic of discussion between em-
ployees in the breakroom. He stated that sometime in
May he spoke with Ron Rohrs because a number of em-
ployees had held a meeting in the breakroom during
which they expressed concern about their jobs. Nelson
told Rohrs that if the Union returned, he would not join
I" Beiermann was arrested by a police officer on the scene and
charged with assault.
it, and indicated that a number of other employees
shared this view. In June, Nelson told Supervisor Buhr-
man that if the Union came back to Stormor, he would
not join it.
Nelson further testified that picketing employees fre-
quently made threats to him and to his girl friend when
she drove him to work each day. He was also involved
in an altercation with picketing employees in late July
when he and other working employees were returning to
the plant during the lunch hour.' 2
Franklyn Way-Way was hired as a strike replacement
in the building department on April 6. He rode a motor-
cycle to work and stated that he had experienced two
flat tires as a result of nails scattered in the roadway by
strikers. He also testified that several weeks after he was
hired, two striking employees followed him to a gas sta-
tion after work. According to Way, they threatened to
kill him for crossing the picket line. Way further testified
that he had been hit by a beer bottle while working in
one of the lots adjacent to the Respondent's plant. He
stated that the bottle had been thrown by a picketing
employee. Finally, Way testified that he told Mclntire
and Supervisors Buse and Poppe on several occasions
during the spring and early summer that he did not want
to have anything to do with having the Union around
and having them where he was working.
Dale Ringle-Ringle has been employed by the Re-
spondent since 1961. He abandoned the strike 2 weeks
after it started and returned to work. Ringle testified that
during the latter part of April he had a conversation
with his supervisor, Gary Buse. During the conversation
Buse asked what he thought about the Union.13 Ringle,
who had never been a member of the Union, replied, "I
never did need a union and I don't need a union now."
Michael Olsen-As a strike replacement, Olsen worked
under the supervision of Buse. He testified that during
April and May he had several conversations with Buse
in which the Union was the topic of discussion. Olsen
stated he told Buse, "I don't know why the strikers had
to be there and carry on the way they were, with all the
harassment and threats and stuff."
Several management witnesses testified regarding
statements made to them by nonstriking employees re-
flecting their antipathy toward the Union. Braesch, the
floor supervisor, recalled that employee Art Arnold
stated in July or August that he did not want any part of
the Union. According to Braesch, Arnold mentioned this
on several different occasions. Similarly, employee Bob
Benson' 4 told Braesch he wished the Union would go
away. Plant Superintendent Mclntire and Maintenance
Supervisor Dill testified having a like conversation with
Jespersen, Benson, Wirka, Danner, and Conkling.
" This was the altercation which caused Rohrs to meet with the
working employees and instruct them to avoid all incidents with the
strikers or be fired.
Is On the basis of this testimony by Ringle, the counsel for the Gener-
al Counsel moved to amend the complaint to allege unlawful interroga-
tion in violation of Sec. 8(aXl) of the Act. The Respondent opposed this
amendment claiming surprise and asserting that Buse was no longer avail-
able. Because Ringle was the Respondent's witness, the motion to amend
was granted.
'4 Benson had been employed by the Respondent since 1961.
863
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ronald Rohrs testified he had numerous conversations
with nonstriking employees in which they expressed
strong feelings against the Union. Rohrs confirmed that
he met Danner in August outside a restaurant and the
employee said he did not want the Union back in the
plant. He also stated that employee Arnold was with him
at the time and expressed the same view. Rohr testified
that Arnold also voiced strong resentment against Haw-
kins, the staff representative of the Union. In a like vein,
Rohrs testified that employee Randy Strimple told him
in early September that he (Strimple) would never join
the Union, especially if Hawkins was a part of it.
Rohrs further testified that employee Al Barton spoke
to him in late August or early September. According to
Rohrs, the employee said he did not want the Union
back, and if some of these strikers were rehired, they
should be fearful about returning to work. Rohrs also
confirmed that employee Terry Nelson stated that he
would not join the Union and most of the employees he
talked with in the plant were of a similar mind. Contrary
to the testimony of Nelson, however, Rohrs stated this
conversation took place in early September.
Rohrs also testified that in late August or early Sep-
tember employees Steven Hanson and Todd Vie told
him they did not want to be a part of the Union. During
this same period, according to Rohrs, employee Con-
kling came to him and stated he had heard there was a
chance the striking employees would be returning to
work. Conkling told Rohrs he did not want the Union or
Hawkins and his "hoodlums" in the plant.
Rohrs confirmed that he had a conversation with em-
ployee Brewer after the altercation between the strikers
and nonstrikers during the lunch hour in the latter part
of July. He stated that Brewer said he had been active in
unions at other places, but that he did not want to have
anything to do with this particular union. Brewer told
Rohrs that the Union was mismanaged by its leadership.
Finally, Rohrs testified that Wirka called him at the
time of the disturbance at her home which she attributed
to the strikers. According to Rohrs, this incident took
place in July or August, and the employee said she did
not want any part of the Union. 1 6
In contrast to the testimony regarding the antiunion
sentiments of the nonstriking employees, several striking
employees and the union representative testified that
nonstriking employees had expressed support for the
Union to them while continuing to cross the picket line.
Hawkins testified that a strike replacement named Nelson
(someone other than Terry Nelson) asked to meet him
away from the plant in early April. According to Haw-
kins, Nelson said he had to work because he needed the
money but he supported the Union. Hawkins stated they
met on three or four occasions and that Nelson expressed
the hope that things would be settled so that everyone
could enjoy the wages and benefits negotiated by the
Union.
Hawkins also stated he talked with employee Beier-
mann on the picket line and the nonstriking employee ex-
pressed support for the Union even though he continued
working. Hawkins stated that Beiermann reiterated these
is The Respondent's strike log in evidence indicates this incident oc-
curred during the latter part of April.
sentiments even after the employee assaulted him on the
picket line over the matter of the shooting of his resi-
dence and automobiles. Similarly, Hawkins stated non-
striking employee Franklyn Way told him that he sup-
ported the Union. Hawkins asserted the employee made
this statement in spite of the fact that Way had threat-
ened to kill him.
Finally, Hawkins testified that when employee Danner
was relieved of his position as treasurer of the Union be-
cause he abandoned the strike and returned to work, the
employee asked to be allowed to attend future union
meetings. Hawkins further stated that Danner said he re-
alized the "good" the Union accomplished for him and
he hoped it would continue to negotiate for the employ-
ees.
Striking employee Christensen testified that he was
riding his motorcycle in a local shopping plaza on July 9
when he was cut off by an automobile. Nonstriking em-
ployees Terry Nelson and Joe Redwing got out of the
vehicle and Redwing made threatening moves toward
Christensen with an axe handle. According to the testi-
mony of Christensen, Nelson then engaged him in a con-
versation about the work at Stormor. Christensen stated
that Nelson said that he was working for the Respondent
because of the good wages and benefits.' 6 The confron-
tation was broken up after a bystander called the police.
E. The Withdrawal of Recognition of the Union
On September 9, Supervisor Glenn Poppe reported to
Rohrs that his wife had parked their automobile in a
public parking lot and when she returned, it had been
spray painted with profanities. Among the profanities
was the expression, "Stormor sucks." Both of the Rohrs
became incensed over this act of vandalism and sought
advice from their attorney. At the request of their coun-
sel, a list of unit employees on the Respondent's payroll
as of the time of the lockout was compiled. This re-
vealed a unit of 93 employees (see R. Exh. 11). Another
list of the unit employees on the payroll as of September
II was compiled. (See R. Exh. 12.) This latter document
disclosed that 86 employees were currently working in
the unit. Of this number, 24 were employees who either
never supported or had abandoned the strike and re-
turned to work. The remaining 62 nonstriking employees
were permanent replacements hired after the inception of
the strike.
At this point, the Respondent's manager considered
and rejected the idea of a petition for an election to de-
termine whether the Union continued to represent a ma-
jority of the employees. According to Rohrs, top man-
agement decided that if an election were held in the
plant, strikers and nonstrikers would be eligible to vote.
Due to the past and current hostility between these two
groups, management feared an election would serve
"only to intensify the problems" experienced throughout
the strike and "raise the feelings and anxieties" of the
employees. Therefore, a decision was made to withdraw
i" This incident was witnessed by striking employee Jeanne Case. Ac-
cording to Case, Nelson said he was happy with the money and the bene-
fits of the job at Stormor. He also stated if the strikers did not want their
jobs, they should walk away and let the nonstrikers get more benefits.
864
STORMOR, INC.
recognition of the Union on the ground that it no longer
represented a majority of the unit employees. 17
By means of a letter dated September 11, the Respond-
ent's attorney notified the Union that the number of per-
manent replacements and nonstriking employees far ex-
ceeded the number of employees on strike. He further
stated that the Respondent's information was that the
nonstriking employees had no interest in being represent-
ed by the Union. The latter concluded with the follow-
ing:
Accordingly, under the present law of this Circuit,
it is evident that you do not represent a majority of
the employees and the Company must withdraw
recognition of your Union. [See G.C. Exh. 1A.]
On September 17, the union representative sent a letter
to the Respondent stating the Union had "altered" its ne-
gotiation proposals and requesting a meeting to resolve
their differences and end the strike. (G.C. Exh. IA.) This
offer was rejected by the Respondent on September 22
on the ground that the Union no longer represented a
majority of the employees. (G.C. Exh. IA.) By a mail-
gram dated September 30, the Union informed the Re-
spondent that the striking employees voted on "Septem-
ber 9"1 to accept the Respondent's last contract propos-
al of June 22. In this mailgram the Union made an offer
on behalf of the striking employees to return to work on
"October 5 or sooner." (G.C. Exh. 4.) The Respondent
replied on October 2 stating there were no present open-
ings but eligible employees would be reinstated, upon ap-
propriate request, when openings occurred. In this letter,
the Respondent reiterated its position that it no longer
recognized the Union as the bargaining representative of
the unit employees. (See G.C. Exh. 5.)
Concluding Findings
All parties concede the strike here was an economic
strike in support of the Union's bargaining demands. The
General Counsel and the Union contend the Respondent
unlawfully refused to bargain in violation of Section
8(a)(5) of the Act when it withdrew recognition of the
Union as the bargaining representative on September 11,
1981. This argument is founded on two well-settled pre-
sumptions in Board law: (1) that after the expiration of
the initial certification year, absent unusual circum-
stances, there is a rebuttable presumption that an incum-
bent union continues to maintain its majority status; 9
"7 At the time of this decision, the Respondent calculated there were
60 employees on strike. This number was arrived at in the following
manner:
Unit employees as of the date of the strike-93
Less-33 employees:
Returning employees-24
Employees discharged for strike misconduct-6
Employees who quit-3
Balance-60 employees.
58 Although the mailgram cited "September 9" as the date the employ-
ees voted to accepted the Respondent's contract terms, the testimony in-
dicates this was an error in transmission by Western Union and the actual
date of the meeting was September 29.
'9 J. Ray McDermott & Co., 227 NLRB 1347 (1977), enfd. 571 F.2d
850 (5th Cir. 1978); Windham Community Memorial Hospital, 230 NLRB
1070 (1977), enfd. 577 F.2d 805 (2d Cir. 1978); Frick Co., 175 NLRB 233
(1969), enfd. 423 F.2d 1327 (3d Cir. 1970).
and (2) absent evidence to the contrary, new employees,
including striker replacements, are presumed to support
the union in the same ratio as those they have re-
placed. 20 The General Counsel and the Union contend
the Respondent has not rebutted these presumptions by
failing to establish that the Union in fact lost its majority
status, or demonstrate that it had a good-faith doubt of
the Union's continued majority status, grounded on ob-
jective considerations.
The Respondent, on the other hand, argues that this
case is controlled by the holding of the United States
Court of Appeals for the Eighth Circuit (in whose juris-
diction this case arose) in National Car Rental Systems v.
NLRB, 594 F.2d 1203 (8th Cir. 1979). There, the court
rejected the Board's general rule that strike replacements
are presumed to support the union in the same ratio as
the employees they have replaced. Instead, the court
held that in a strike situation, where strike replacements
cross a picket line, they are "assumed" not to support the
union whose picket line they cross.2 1 In addition to its
reliance on National Car Rental, the Respondent asserts
that it has presented evidence, based on objective consid-
erations, sufficient to rebut the Board's presumption and
to establish a good-faith doubt of the Union's continued
majority status.
Addressing the Respondent's first contention that Na-
tional Car Rental controls the decision in this case, suf-
fice it to say that with all due respect to the court, it is
not within the purview of an administrative law judge to
speculate as to what course the Board will follow where
a circuit court has disagreed with its views. 22 There is
no evidence that the Board has abandoned its position on
the general rule regarding the presumption on the senti-
ments of new hires, including strike replacements.
Indeed, in two cases issued by the Board since its order
in National Car Rental was denied enforcement by the
Eighth Circuit, its adherence to the general rule was
clearly articulated. Pennco, Inc., supra at 717 and Burling-
ton Homes, 246 NLRB 1029, 1031 (1979). Thus, it is ap-
parent that the Board has not adopted the court's hold-
ing in National Car Rental and I must follow established
Board precedent until it has been reversed, either by the
Board or the Supreme Court.
Turning to the merits of the instant case, the principles
to be applied are clear. In order for the Respondent to
lawfully withdraw recognition of the Union, it must
rebut the presumption of continued majority status in
one of two ways: (1) by showing that on the date of the
withdrawal of recognition the Union did not in fact
enjoy majority support; or (2) by presenting evidence of
sufficient objective basis to establish a reasonable doubt
of the Union's majority status of the date recognition
was withdrawn. In addition, the corollary presumption
'o Pennco, Inc., 250 NLRB 716 (1980); Windham Community Hospital,
supra.
21 Although this holding was subsequently adopted by the Court of
Appeals for the First Circuit in Soule Glass Ca v. NLRB, 652 F.2d 1055
(lst Cir. 1981), research fails to disclose its adoption by other circuit
courts of appeals.
22 Regency at the Rodeway Inn, 255 NLRB 961 fn. 2 (1981); Insurance
Agents (Prudential Insurance Co.), 119 NLRB 768, 773 (1957). Cf. Magna-
vox Co., 195 NLRB 265 (1972).
865
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
obtains, i.e., that new hires, including strike replace-
ments, are presumed to support the Union in the same
ratio as those they replace. Pennco, Inc., supra; Saloon,
Inc., 247 NLRB 1105 (1980); Burlington Homes, supra.
The Respondent contends that the violence and prop-
erty damage-both on the picket line and away from it-
encountered by the returning employees and the strike
replacements makes it highly unrealistic to presume the
nonstriking employees supported or continued to support
the Union. In this regard, the facts here are somewhat
analogous to the facts in the Pennco case. There, the
strike activity involved "some incidents" of violence on
the picket line and a state court injunction was issued.
The Board recognized that returning strikers may cross
their union's picket line for several reasons which may
not involve repudiation of the union; e.g., financial rea-
sons or unwillingness to support that particular strike.
Likewise, that strike replacements may cross a picket
line for similar reasons which do not warrant, in and of
themselves, a presumption of rejection of the union as a
bargaining representative. Thus, the Board found that
"the occurrence of some violence on the picket line is, at
best, one factor weakening the presumption of majority
status, but not alone rebutting it." Pennco, Inc., supra, fn.
16 at 718.
In the instant case, however, the record evidence dis-
closes there was far more than an occasional occurrence
of violence. The strike began on March 30 and because
of numerous incidents of violence, both on and away
from the picket line, a temporary restraining order was
issued by the state court on April 11. This restraining
order became a permanent injunction on April 16. The
court order did not cause the violent incidents to subside
and on July 27, the Respondent sought a modification of
the injunction to further curb the violent activity. This
resulted in a modification agreement between the Union
and the Respondent spelling out limitations on the pick-
eting and placing constraints on strikers and nonstrikers
alike. Thus, rather than occasional incidents of violence,
the facts here indicate continued violent strike activity
over an extended period-approximately 3-1/2 months.
In my judgment, this significantly enhances the weight
to be accorded the factor of crossing the picket line and
the effect this factor has in rebutting the presumption
that strike replacements support the Union in the same
ratio as those they replaced.
But the crossing of the picket line under these circum-
stances is not the only factor to be considered here. The
testimony given by the Respondent's witnesses show that
a number of returning employees and strike replacements
expressed sentiments directly to members of management
that clearly revealed they and other nonstriking employ-
ees repudiated or rejected the Union as their bargaining
representative.
Of the 16 employee witnesses presented by the Re-
spondent, 8 returning employees 2 3 and 7 striker replace-
ments24 made statements to various supervisors and/or
as The returning employees who so testified were: Danner, Conkling,
Kuddes, Radtke, Hood, Jespersen, Wirka, and Ringle.
"' The striker replacements who so testified were: Brewer, Vie, Beier-
mann, Johnson, Nelson, Way, and Olsen.
to Rohrs which were unqualified rejections or repudi-
ations of the Union as their bargaining representative. In
addition, several of these employee witnesses indicated to
management that their rejection of the Union was a sen-
timent shared by other employees (Jespersen-"Every-
one she spoke to in the plant did not want a union";
Kuddes-"Fifteen employees were asking if they could
vote on whether to keep the Union as their representa-
tive"; Nelson-"He would not join the Union and other
employees felt the same way"; Radtke-"He and other
employees did not want the Union to return to the
plant"; Vie-"That all the shipping department employ-
ees did not want the Union in the plant").2" Further, the
testimony of the Respondent's supervisors and manage-
ment officials discloses that several other employees ex-
pressly repudiated or rejected the Union as their bargain-
ing representative during the course of conversations
with these management officials.
In assessing the statements of the nonstriking employ-
ees, I am not unmindful of the testimony presented by
the union witnesses to demonstrate that the nonstrikers
nevertheless expressed support for the Union to them.
However, when the circumstances under which most of
these statements were purported to have been made is
considered, I find it difficult to attach much credence to
this testimony. For example, Hawkins testified that
Beiermann told him on the picket line that he hoped the
Union would continue to negotiate for the employees.
Yet this statement is alleged to have occurred after
Beiermann committed an assault on Hawkins during a
confrontion on the picket line over the shooting of his
residence. Similarly, Hawkins stated nonstriker Way
voiced support for the Union even though Way had
threatened to kill Hawkins. The testimony relating to
statements of support purportedly made by strike re-
placement Nelson is equally improbable. This statement
is alleged to have been made after Nelson and another
person, identified as Redwing, cut off striker Christensen
while he was riding his motorcycle in a shopping center.
Nelson and Redwing jumped out of their vehicle and
threatened Christensen with an axe handle. It was then,
according to the testimony of the union witnesses, that
Nelson stated he enjoyed the benefits and wages he was
receiving at the Respondent's plant and the strikers
should walk away and let the nonstrikers continue to
earn them. In these circumstances, it is extremely doubt-
ful that Nelson was expressing support for the Union. If
anything, he was goading and taunting the striking em-
ployees who were no longer at work.
In the light of the statement repudiating or rejecting
the Union made by approximately 20 percent of the non-
striking employees, speaking for themselves and in some
instances purporting to speak for other nonstrikers as
well, the question becomes whether this factor coupled
with the crossing of the picket line during the period of
the strike violence effectively rebuts the presumption of
continuing majority status. As the Board has cautioned,
the burden of proof on the employer-while it is less
" Only the testimony of nonstriker Schroeder might be deemed as in-
dicating disapproval of the strike and not repudiation of the Union as the
bargaining representative.
866
STORMOR, INC.
than actual proof of lack of majority support-to rebut
the presumption is a heavy one. Pennco, Inc., supra at
717. The Board further indicated this heavy burden is
due to the fact that the presumption rests on the dual
Federal labor policies of (1) promoting continuity in bar-
gaining relationships, and (2) protecting the statutory
right of employees to designate a collective-bargaining
representative of their own choosing, and to prevent the
employer from impairing that right without some objec-
tive evidence that the representative so chosen no longer
has majority support. Further, that the heavy burden of
proof is all the more compelling in a strike situation,
since the striking employees risk permanent replacement
in exercising their statutory right to engage in an eco-
nomic strike. Ibid.
Weighing the crossing of the picket line in the face of
the strike violence and the statements of rejection and re-
pudiation of support for the Union conveyed to manage-
ment by a substantial number of the nonstriking employ-
ees, I am constrained to conclude that the Respondent
has met the required burden of proof. The Respondent
has shown that the nonstrikers continued to cross the
picket line in spite of the sustained strike violence over a
3-1/2 month period. As the Board noted in Pennco, Inc.,
this is a factor which weakens the presumption of major-
ity support for the Union. But in addition, the Respond-
ent has established in the record that a substantial
number of the employees who crossed the picket line did
not, in fact, support the Union. Since it is not necessary
for the Respondent to show actual loss of majority sup-
port, the unsolicited statements of rejection and repudi-
ation of the Union by approximately 20 percent of the
nonstriking employees disclosing that they and other
groups of nonstriking employees did not want the Union
to represent them must be given considerable weight in
determining whether the presumption has been rebutted.
Considering both of these factors in the light of labor
policies underlying the presumption, I am of the view
that the Respondent has presented sufficient objective
evidence on which to ground a good-faith doubt regard-
ing the Union's majority status at the time it withdrew
recognition from the Union on September 11. Accord-
ingly, I find, in the circumstances here, that the Re-
spondent did not violate the Act when it declined to rec-
ognize the Union as the representative of its employees.
The final issue to be addressed here is the asserted un-
lawful interrogation of employee Ringle when he told
Supervisor Buse that he "never needed a union and
didn't need it now." On cross-examination, Ringle testi-
fied he made this statement when Buse asked him what
he thought about the Union. There is no indication in the
testimony of Ringle as to how the conversation was initi-
ated or under what circumstances it took place. Ringle
was never a member of the Union prior to the strike and
there is no indication that during the conversation Buse
made any threats or promised any benefits to the em-
ployees. Since there is no evidence of any concurrent un-
lawful conduct by any of the Respondent's supervisors
or management officials in this case, I find that no un-
lawful interrogation took place during this conversation
between Ringle and Buse. Moreover, if such conversa-
tion could be construed as being technically unlawful in-
terrogation, it was of such an isolated nature that it does
not warrant the finding of a violation.
CONCLUSIONS OF LAW
1. Stormor, Inc. Division of Fuqua Industries, Inc. is
an employer within the meaning of Section 2(2) of the
Act, engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. United Steelworkers of America, and its Local No.
7377, AFL-CIO, CLC, is a labor organization within the
meaning of Section 2(5) of the Act.
3. The Respondent did not engage in unlawful interro-
gation of an employee in violation of Section 8(a)(l) of
the Act.
4. By withdrawing recognition of the Union as the col-
lective-bargaining representative of a majority of its em-
ployees in an appropriate unit on September 11, 1981,
the Respondent did not commit a violation of Section
8(a)(5) of the Act.
On the foregoing findings of fact and conclusions of
law and on the entire record in this case, I recommend
the following
ORDER 2 6
The complaint herein is dismissed in its entirety.
'I If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
867