Thomas Industries

National Labor Relations Board - Board Decisions

Apr 6, 1981

255 N.L.R.B. 646 (N.L.R.B. 1981)

646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thomas Industries, Inc. and Oil, Chemical and
Atomic Workers International Union, AFL-
CIO. Case 10-CA-15205
April 6, 1981
DECISION AND ORDER
On August 22, 1980, Administrative Law Judge
William N. Cates issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,'
and conclusions of the Administrative Law Judge,
except as modified below, and to adopt his recom-
mended Order, as modified below.
We agree with the Administrative Law Judge
that the Respondent violated Section 8(a)(1) of the
Act by reprimanding an employee for bringing
"too many petty grievances" on behalf of the
Union. We also agree, for the reasons set forth
infra, that the Respondent further violated Section
8(a)(1) of the Act by conducting an employee poll,
and also violated Section 8(a)(5) of the Act by
withdrawing recognition from the incumbent
Union. We do not agree, however, with the Ad-
ministrative Law Judge that the Respondent violat-
ed Section 8(a)(1) of the Act by refusing to process
employee Moody's "grievance" or by its "best in-
terest" statement in its captive-audience speech.
Employee Peggy Moody told Superintendent
Fred Reed that she wanted to initiate a grievance
against a fellow employee who, Moody alleged,
had tried to provoke a fight with her on company
grounds. Reed told Moody that he already had dis-
cussed the matter with the president of the Union,
and that he had ascertained that the "grievance"
was a personal matter in which Reed did not
intend to get involved. 2 Moody returned to Reed's
office on the following day and informed him that
she was going to file a grievance against him for
refusing to accept her grievance the day before.
Reed responded by accusing Moody of harassing
him and the Company and, according to various
testimonial versions, also said that, if she mentioned
anything more about it, he either would do some-
thing about her, or would take legal or disciplinary
action against her. The Administrative Law Judge
I The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 Reed testified, and it is undisputed, that he and the union president
had agreed that it was a personal matter with which neither wanted any-
thing to do.
255 NLRB No. 94
found it unnecessary to resolve the testimonial dif-
ferences because he found that any version consti-
tuted a coercive statement. However the General
Counsel failed to show, and the Administrative
Law Judge made no express finding, that the activ-
ity about which Moody complained was a protect-
ed activity under Section 7 of the Act, and we find
that it was not. The mere fact that the alleged inci-
dent occurred on company property does not, by
itself, link it sufficiently with conditions of employ-
ment to make it a matter of mutual aid and protec-
tion within the purview of Section 7 of the Act. It
follows, therefore, that neither Reed's rejection of
Moody's personal "grievance" nor his admonition
constituted unlawful conduct and, accordingly, we
shall dismiss this allegation of the complaint.
We also disagree with the Administrative Law
Judge's finding that the Respondent violated Sec-
tion 8(a)(1) of the Act by stating to its employees,
during a captive-audience speech delivered immedi-
ately before polling its employees regarding their
desire for continued union representation, that "We
do not want the Oil, Chemical and Atomic Work-
ers Union here and we think it would be in your
best interest if there is no union here." As the Ad-
ministrative Law Judge recognized, absent any ac-
companying promises or threats, the Board normal-
ly treats such comments as statements of opinion
protected under Section 8(c) of the Act. S. S.
Kresge Company, 197 NLRB 1011, 1012 (1972). The
Administrative Law Judge found Kresge distin-
guishable on the ground that, here, the statement
occurred in the context of other unfair labor prac-
tices and just before a poll of its employees. While
it is true that the Respondent committed other
unfair labor practices, the only unlawful conduct in
which the Respondent had engaged as of the time
the statement was made was the unlawful repri-
mand given approximately 2 months earlier for
filing too many petty grievances. We find that the
nexus between this single incident and the state-
ment is too tenuous to establish an unfair labor
practice climate sufficient to convert an otherwise
protected statement of opinion into a coercive
promise or threat. Nor can the timing of the state-
ment vis-a-vis the poll change its nature. Certainly,
it was intended to persuade, and the proximity to a
vote might have made it more persuasive, but that
does not make it coercive within the meaning of
Section 8(a)(1) of the Act. Accordingly, we hereby
dismiss this allegation of the complaint.
As to the poll itself, the record shows that in
1977 the Union was certified as the exclusive col-
lective-bargaining representative of a unit of the
Respondent's employees, and entered into a collec-
tive-bargaining agreement with the Respondent
------- ------ ------
THOMAS INDUSTRIES 647
which remained in effect until January 11, 1980.
Between the latter part of 1978 and October 1979,
approximately 42 of the 124 unit employees dispar-
aged the Union to 4 different supervisors. Based on
these conversations, and on their "knowledge of
the people" in their departments, the supervisors
reported to the Respondent that a majority of the
employees did not want the Union. Meanwhile, the
percentage of employees having their union dues
checked off declined from 63 percent in January
1979 to 36 percent in June and 31 percent in Octo-
ber, and approximately 24 members, including
some officers, committeemen, and stewards, re-
signed from the Union. The Respondent contends
that these conditions caused it to doubt that a ma-
jority of its employees wished to retain the Union
as their bargaining representative, and, therefore, it
conducted the poll to determine the employees'
desire and, as its president and general manager tes-
tified, to avoid "the possibility of negotiating with
a minority group, which is against the law."
It is well established that, as a prerequisite to
polling employees regarding their desire for contin-
ued representation by a certified union, an employ-
er must have an objective basis for doubting the
union's majority status. Mid-Continent Refrigerated
Service Company, 228 NLRB 917 (1977); Jackson
Sportswear Corporation, 211 NLRB 891 (1974). This
is the same test used for determining the lawfulness
of an employer's withdrawal of recognition from
an incumbent union after the expiration of the cer-
tification year. Montgomery Ward & Co., Incorporat-
ed, 210 NLRB 717 (1974). The Respondent's show-
ing here does not meet this test.
Of the 42 employees who expressed dissatisfac-
tion with the Union, many indicated a clear rejec-
tion of the Union as their bargaining representative.
But, as the Administrative Law Judge has set forth
in more detail, the remarks of a number of these 42
employees fell short of clear rejection and the re-
marks of at least 10 of them can be characterized at
best as criticism of the Union's performance and/or
expressions of disenchantment with the Union and
a disinclination to be members or to pay dues. See
Retired Persons Pharmacy, t/a MRTA-AARP Phar-
macy, 210 NLRB 443, 446 (1974), enfd. 519 F.2d
486 (2d Cir. 1975), and cases cited therein. 3 Rejec-
tion and/or criticism of the bargaining representa-
tive by a minority of the unit employees is insuffi-
cient to support a reasonable doubt of the Union's
continued majority status. Retired Persons Pharma-
cy, supra; Grand Lodge of Ohio, Independent Order
of Odd Fellows d/b/a Odd Fellows Rebekah Home,
3 The remarks of employees Arnold Laws. James Anderson, Moore.
None, Bennett, Miller, Baker, James Laws, Jarnigan. and Thomas fall
into these general categories.
233 NLRB 143 (1977). 4 Moreover, the supervisors'
subjective estimates that a majority of the employ-
ees did not want a union add little, if anything, to
the probative force of the employees' statements,
which constituted the only concrete evidence on
which the supervisors' estimates were based. As for
the resignations of membership and the cancella-
tions of dues checkoff, it is well established that a
union need not have majority support in terms of
membership or dues checkoff in order to enjoy the
presumption of continued majority status. See, e.g.,
Petroleum Contractors, Inc., 250 NLRB 604 (1980).6
Thus, none of the factors on which the Respond-
ent relies provides an objective basis on which the
Respondent could predicate a reasonable doubt of
the Union's continued majority status. Nor do these
factors have a cumulative effect which impels a
different conclusion. The statements attributed to
approximately one-quarter of the employees remain
the only objective evidence of the employee's
desire to be without representation from the Union.
Moreover, the Respondent had no reason to be-
lieve that any significant number of those com-
plaining employees had ever been in favor of union
representation. 6 Indeed, the evidence presented
here puts into question only the employees' support
for the Union as an institution, above and beyond
their acquiescence in its status as bargaining repre-
sentative. Moreover, there is a considerable overlap
between those who expressed dissatisfaction and
those who actually resigned from the Union. Only
10 employees in addition to the first group, plus
Gene Street, a supervisor, resigned. Significantly,
only 12 of the 42 employees who expressed dissat-
isfaction to supervisors took even the limited step
of resigning their memberships. The drop in dues
checkoffs adds nothing because the Respondent has
not shown that the checkoffs were canceled by any
employees other than those who either (I) ex-
pressed their dissatisfaction with the Union to su-
pervisors or (2) resigned.7 In these circumstances,
we cannot find that the Respondent entertained a
reasonably based doubt of the Union's majority
4 Equally unpersuasive is the fact that some of the employees volun-
teered their opinion that a majority of the employees no longer wanted
the Union to represent them. Roza Watch Corp., 249 NLRB 284 (1980).
5 We note that, with the Respondent's knowledge, a majority of the
employees had ceased having their dues checked off several months
before the Respondent decided to conduct its poll.
I The Union's 1977 certification resulted from an election which it
won by a vote of 52 to 50. The closeness of that vote, occurring nearly 3
years before the events in question here, does not. of course, permit the
Respondent to entertain a reasonable doubt merely by virtue of one or
two individual employees having changed their minds. It is noted, in this
connection, that the presumption of the Union's majority status comes
not only from its certification, but also from its subsequent success in ob-
taining a collective-bargaining agreement.
7 We do not mean to suggest that, had the Respondent made such a
showing, the result here necessarily would be different.
THOMAS INDUSTRIS 7
648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
status when it conducted the poll. Its conduct of
the poll, therefore, was unlawful. Jackson Sports-
wear Corporation, supra.8
Subsequent to the poll, which resulted in 48
votes for and 64 against the Union, the Respondent
refused the Union's request to bargain, claiming it
then doubted the Union's majority status. That
claim, we have found, is without justification, as is
the Respondent's reliance on the results of its un-
lawful poll. Montgomery Ward & Co., Inc., supra.
Further, by conducting the poll immediately after
delivering a captive-audience speech urging the
employees to vote against the Union, the Respond-
ent created an atmosphere which, even in the case
of a Board-conducted election, would not be con-
ducive to a free exercise of employee choice. Peer-
less Plywood Company, 107 NLRB 427 (1953). This
further rendered the results of the poll unreliable.
Therefore, we affirm the Administrative Law
Judge's finding that the Respondent violated Sec-
tion 8(a)(5) of the Act when it refused to bargain.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Thomas Industries, Inc., Johnson City, Tennessee,
its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order, as so modified:
1. Delete paragraphs l(b) and (d) and reletter
the subsequent paragraphs accordingly.
2. Insert the following as new paragraph l(c):
"(c) Coercively polling its employees concerning
their union sympathies."
3. Substitute the attached notice for that of the
Administrative Law Judge.
8 We find it unnecessary to pass on the Administrative Law Judge's
alternative finding that the Respondent failed to comply with one of the
polling standards set forth in Struksnes Construction Co.. Inc., 165 NLRB
1062 (1967).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT refuse to bargain with Oil,
Chemical and Atomic Workers International
Union, AFL-CIO, as the exclusive representa-
tive of the following appropriate bargaining
unit:
All full-time and regular part-time produc-
tion and maintenance employees employed
by us at our Johnson City, Tennessee, facili-
ty, including all warehousemen, shipping
and receiving clerks, and janitors, but ex-
cluding all office clerical employees, sales-
men, professional employees, temporary em-
ployees, guards and supervisors as defined in
the Act.
WE WILL NOT coercively poll our employ-
ees concerning their union sympathies.
WE WILL NOT verbally reprimand our em-
ployees because they file grievances.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL recognize and, upon request, bar-
gain collectively with the aforesaid Union as
the exclusive representative of all the employ-
ees in the appropriate unit described above
with regard to rates of pay, hours of employ-
ment, and other terms and conditions of em-
ployment and, if an understanding is reached,
embody such understanding in a signed agree-
ment.
THOMAS INDUSTRIES, INC.
DECISION
WILLIAM N. CATES, Administrative Law Judge: This
matter was heard before me at Johnson City, Tennessee,
on June 14 and 15, 1980. The charge was filed by Oil,
Chemical and Atomic Workers International Union,
AFL-CIO, herein called the Union or Charging Party,
on November 9, 1979. The complaint, issued on January
2, 1980, alleges that Respondent violated Section 8(a)(5)
and (1) of the Act by refusing to bargain with the Charg-
ing Party which had been certified by the Board as the
bargaining representative of its employees. In its answer
Respondent denied the essential allegations in the com-
plaint. After close of hearing, briefs were filed on behalf
of the General Counsel and the Respondent.
Based on the entire record' in this proceeding, includ-
ing direct personal observation of the witnesses and their
demeanor while testifying, and after due consideration of
the post-hearing briefs, I make the following:
i Certain errors in the transcript are hereby noted and corrected.
THOMAS INDUSTRIES 649
FINDINGS OF FACT
I. JURISDICTION
Respondent is a Delaware corporation with a place of
business located in Johnson City, Tennessee, where it is
engaged in manufacturing of paint brushes and rollers.
During the calendar year preceding the issuance of the
complaint, Respondent sold and shipped finished prod-
ucts valued in excess of $50,000 from its Johnson City,
Tennessee, facility directly to customers located outside
the State of Tennessee.
The complaint alleges, the answer admits, and I find
that Oil, Chemical and Atomic Workers International
Union, AFL-CIO, is now and has been at all times mate-
rial herein, a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
On May 18, 1977, following a secret-ballot election
which was conducted on February 10, 1977, the Union
was certified by the National Labor Relations Board
(hereinafter called Board) as the exclusive collective-bar-
gaining representative of the following unit:
All full-time and regular part-time production and
maintenance employees employed by Respondent at
its Johnson City, Tennessee facility including all
warehousemen, shipping and receiving clerks and
janitors, excluding all office clerical employees,
salesmen, professional employees, temporary em-
ployees, guards and supervisors as defined in the
Act.
On July 11, 1977, Respondent and the Union entered
into a collective-bargaining agreement covering employ-
ees in the above-described unit, said agreement being ef-
fective from July 11, 1977, until January 11, 1980, inclu-
sive and thereafter from year to year unless written
notice within a specified time was submitted by either
party to the other of its desire to amend or terminate the
agreement.
On October 19, 1979, Respondent conducted a poll of
its employees requesting that the employees indicate if
they wished to be represented for purposes of collective
bargaining by the Union. The basis for the poll, the
actual conduct of the poll, and the circumstances sur-
rounding it will be discussed infra.
On November 5, 1979, Joe Carr, president of Local 3-
951 of the Union, gave written notice to Respondent of
the Union's desire to open the contract for negotiation
and requested a meeting date for such negotiations to
commence.
On November 7, 1979, Respondent, by its Plant Man-
ager Gene Holt, responded to the Union in writing indi-
cating that Respondent viewed the Union as a minority
union which did not represent the wishes of a majority
of the unit employees, and that Respondent did not
intend to renegotiate the terms and conditions of the col-
lective-bargaining agreement which would expire on Jan-
uary 11, 1980. However, Respondent continued to honor
the existing contract until its expiration.
Respondent's alleged unlawful conduct in violation of
Section 8(a)(1) of the Act and its refusal to bargain are
discussed infra.
B. Threat of Reprisal
The General Counsel's complaint at paragraph 7 al-
leges that Respondent, by its Roller Department Superin-
tendent Fred W. Reed, on or about October 4, 1979,
threatened its employees with reprisals because they at-
tempted to file grievances. As Respondent acknowledges
in its brief, the essential facts with regard to this incident
are for the most part not in dispute. Employee Peggy
Moody testified that on October 3, 1979, she along with
Union Shop Steward Lola Fox went to Superintendent
Reed's office at approximately 6:55 a.m. Moody testified
she stated to Reed the purpose of her visit was that she
wanted to take step one on a grievance of Carrie Greer.
According to Moody, Reed replied, "It [the grievance]
was personal and that he wouldn't accept it, that he had
already spoken to Joe Carr . . . President of Local."
Moody inquired if that was Reed's answer and when
Reed indicated it was, Moody and Fox left Reed's office.
The following day Moody returned to Reed's office,
this time with Union President Carr. Moody informed
Reed she was going to take step one on a grievance on
him for not accepting the grievance she had attempted to
file the day before. According to Moody, Reed became
angry, accused her of harassing him and the Company,
told her that he had already talked the grievance over
with Carr, and that if she mentioned anything else about
it again he would do something about her. Moody then
mentioned something to Reed about going to the Labor
Board. The grievance Moody was attempting to file with
Reed involved a fellow employee's conduct toward
Moody. Union President Carr testified to essentially the
same facts as Moody except he recalled Reed saying to
Moody that he did not want to hear the grievance and if
she came back any more, he would take her to the office
and take disciplinary action that he was tired of the ha-
rassment. Superintendent Reed testified on direct exami-
nation in essentially the same manner. Reed stated with
regard to the October 4, 1979, meeting with Moody: "I
told Peggy [Moody] that it [the grievance] was a person-
al matter and I didn't want to get involved in it, and I
was getting tired of her harassing me and the manage-
ment team of this plant . . . I told her I would take legal
action on her if she didn't stop it, and they left at that
point." I find all three versions of the incident to be es-
sentially the same and my findings would not differ if
either of the versions was considered alone.
Respondent, in brief, contends the incident should be
considered isolated, innocuous, and insufficient to base a
finding of a violation of Section 8(a)(l) of the Act upon
and cites Square D Company, 204 NLRB 154 (1973), in
support thereof. In Square D, a shift supervisor told a
union steward that certain grievances amounted to "nit-
picking" and that the steward should file no more griev-
ances on the subject. The Board reversed an administra-
tive law judge's finding of a violation by stating that
THOMAS INDUSTRIES 49
650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
there was a single meeting between the steward and the
supervisor where the remark was made and that numer-
ous grievances were being filed and processed thereafter
and that it would not on this single isolated incident find
a violation, and further if it were a technical violation it
would not be sufficient to justify either the finding of an
unfair labor practice or the issuance of a remedial order.
The instant case, however, arises in quite different cir-
cumstances. The Respondent herein on or about August
28, 1979, gave a verbal warning to an employee for filing
a grievance and, as will be set forth infra, commencing
on November 9, 1979, refused to bargain with the Union
as the exclusive representative of its employees. I there-
fore conclude that the incident was neither isolated nor
innocuous but, rather, a threat of reprisal against an em-
ployee who attempted to file a grievance, and such con-
duct constitutes a violation of Section 8(a)(1) of the Act.
C. Verbal Reprimand
The General Counsel's complaint at paragraph 8 al-
leges that Respondent by its Plant Manager Gene Holt,
on or about August 28, 1979, verbally reprimanded an
employee because the employee filed grievances. Em-
ployee Della Dugger testified she had been the Union's
vice president for approximately a year and in that ca-
pacity had attended meetings with the Respondent to
discuss employee grievances. Dugger credibly testified
that she was in attendance at one such meeting 2 where
employee grievances were being discussed with the sub-
ject matter ranging from an employee working a higher
job but not being paid at the higher rate to an employee
not being able to get along with fellow employees. At
this same meeting Respondent and the Union discussed
ordering trash cans for the women's restrooms, and
whether Dugger's supervisor, Gene Street, had been har-
assing Dugger or vice versa. Dugger testified that,
during the discussion of these matters, Plant Manager
Holt stated to her that he was giving her a verbal warn-
ing and when Dugger inquired of Holt why, he replied,
"that I had been having too many petty grievances."
Union President Carr essentially corroborated Dugger's
testimony in that he recalled Holt telling Dugger at the
meeting that she was getting a verbal warning for harass-
ing management. Plant Manager Holt testified regarding
the August 1979 grievance meeting that Dugger, on con-
secutive days, had filed two grievances that month
which he considered were of a petty nature. Holt testi-
fied that he told Dugger the grievances were petty. One
of the grievances, according to Holt, involved a claim
that Supervisor Gene Street and David Potter were
doing maintenance work in the warehouse. Holt claimed
that Dugger had not followed proper procedure with
regard to the grievance and that the outcome of the
grievance was that it was voided. Holt testified the
second grievance involved equalization of overtime with
Dugger claiming overtime was not equalized. Holt testi-
fied Respondent's position was that equalizing overtime
2 Dugger placed the date in September. All other witnesses, including
Respondent's witness, placed the date of the meeting as late August: 1
view this as insignificant in that each remembered essentially the same
facts being discussed. I credit Dugger's testimony with regard to the sub-
stance of the meeting as being the most accurate.
had been a standard procedure in Respondent's plant and
as a result the grievance was dropped at the grievance
meeting in August. Holt denied giving Dugger a verbal
warning. Holt testified that the Company had a policy of
making a file note of verbal warnings and that Dugger's
file contained no such warning note. As earlier indicated,
when in conflict with other testimony, I credit Dugger's
version of the events of the August grievance meeting as
the more accurate. I therefore find that Holt did in fact
state to Dugger that he was giving her a verbal warning
because she had filed the grievances in question. I dis-
credit Holt's denial regarding the warning. I find unper-
suasive the fact that the personnel file of Dugger did not
reveal a warning note. Holt, by his own testimony, con-
sidered grievances petty that dealt with subject matters
that I find are items generally discussed in collective-bar-
gaining relationships. Based on all of the record facts re-
garding the incident and my observation of the wit-
nesses, I find Holt gave a verbal warning to employee
Dugger as alleged in the complaint and that such con-
duct constitutes a violation of Section 8(a)(1) of the Act.
D. The Alleged Unlawful Promises
The General Counsel's complaint, at paragraph g, al-
leges that Respondent, by its president and general man-
ager, P'Pool, on October 19, 1979, promised its employ-
ees, in violation of Section 8(a)(1) of the Act, economic
and other benefits if they rejected the Union as their col-
lective-bargaining representative. The General Counsel
did not specify at the hearing or in brief what the "other
benefits" were; however, counsel for the General Coun-
sel stated at the hearing the sole evidence in support of
the paragraph g allegations were contained in Joint Ex-
hibit 1. Joint Exhibit I was the text of a speech given by
P'Pool on October 19, 1979, to the assembled unit em-
ployees of Respondent just prior to Respondent's con-
duct of a poll by Attorney James Epps. The speech
which P'Pool read is as follows:
We have called this meeting today of all production
and maintenance employees in order to get your de-
cision as to whether or not you want the Company
to continue to deal with the Oil, Chemical and
Atomic Workers Union on all matters pertaining to
your job.
Many of our employees during this past year have
asked why the Company still gives recognition to
the Union since so few of the production and main-
tenance employees have indicated any interest in
the Union and only approximately 30% of the em-
ployees are on checkoff. Let me make this point
very clear. The only reason that the Company has
recognized the Union is because the law has re-
quired us to do so. We do not want the Oil, Chemi-
cal and Atomic workers Union here and we think it
would be in your best interest if there is no union
here. [Emphasis supplied.] On the other hand, the
Company does not want to do anything that would
be a violation of the law. You as an individual have
the right to vote for the Union if you desire to do
so, and the Company respects your rights.
THOMAS INDUSTRIES 651
Up until now we have had no choice but to deal
with the Union since the law requires us to do so.
However, the contract is now about to terminate on
January 11, 1980 and you as an individual have the
right to decide for yourself now whether or not
you want the Company to continue to recognize the
Union. That is our purpose in being here today-to
determine whether the Union continues to represent
a majority of our employees. If the Union fails to
poll a majority of the votes cast the Company will
no longer recognize the Oil, Chemical and Atomic
Workers Union as your bargaining representative at
the expiration of this contract. Of course, should the
Union receive a majority of the votes cast the Com-
pany must by law continue to recognize them as
your bargaining agent.
In order to make sure that everyone's rights are
protected we are going to let each of you vote a
secret ballot. I have asked Mr. James Epps, Attor-
ney, Johnson City, to come here today to handle
the election and to count the ballots in your pres-
ence. There will be no supervisors or representa-
tives of management present when you vote on this
important matter. We ask that you stay in this room
and vote one at a time in the first aid room. As
soon as you have voted and placed your ballot in
the box, you may clock out and go home or stay
and see the results. You will be paid for a full days
work, and your paychecks will be passed out to you
at the time clock. We ask that the second shift wait
until last to vote and then return to your work sta-
tions. I intend to leave now and will turn this meet-
ing over to Mr. James Epps unless any of you have
any questions that you want to ask before I leave.
Joint Exhibit I was fully litigated with no dispute that
the speech was read as quoted above. The General
Counsel alleges the speech contains implied promises of
benefit to reject the union. Respondent, in its brief, con-
tends the Board has held the comment "We think it
would be in your best interest if there is no Union here"
to be a statement of opinion within the ambit of the Re-
spondent's right to free speech under the Constitution
and Section 8(c) of the Act. Respondent contends the
speech in no way violates Section 8(a)(1) of the Act, and
in support thereof cites S. S. Kresge Company, 197 NLRB
1011 (1972). Respondent further contends the Board has
found such statements to be insufficient grounds upon
which to base an objection to the results of a Board elec-
tion, citing Worzalla Publishing Company, 171 NLRB
219, 220 (1968). The comments in Kresge, supra, arose in
the context of an organizational campaign in which the
union, if desired, had time to respond to the comments of
the employer therein, whereas in the case at bar the
comments were made just moments before Respondent
conducted a poll of its employees' union sympathies. In
these circumstances, I conclude that the polling atmos-
phere was such that employees were precluded from ex-
ercising a free choice. In Worzalla the alleged offensive
speeches were made in the context of an organizational
campaign approximately a month on one occasion and a
day on the second occasion before the election which at
least provided time for a response. It is concluded that
the comment in P'Pool's speech "we do not want the
Oil, Chemical and Atomic Workers Union here and we
think it would be in your best interest if there is no union
here," taken in the context in which it arose along with
the other unfair labor practices found herein and consid-
ering the timing of the comment which was just mo-
ments before the Respondent conducted a poll of its em-
ployees' union sympathies constitute interference in the
form of promises which were intended to and did under-
mine employee support of the Union and, therefore, re-
strained or coerced unit employees in violation of Sec-
tion 8(a)(1) of the Act.
E. The Polling Issue
The record establishes and it is undisputed that the Re-
spondent caused a poll of its employees' union sentiment
to be conducted on October 19, 1979. The law is clear
that an employer must have an objective basis for doubt-
ing an incumbent union's continued majority status
before conducting a poll of employee sentiment. Re-
spondent's President and General Manager Gerald
P'Pool testified he came to the Johnson City, Tennessee,
location of Respondent on July 4, 1978, and within a
couple of months of his arrival he began hearing "some
grumbling about the Union situation." P'Pool3 testified
that certain individual employees made comments direct-
ly to him about their union sentiment by stating: "Why
do we need a Union here," "they don't represent a ma-
jority," "we feel like they are a hinderance," and "we
feel like they're troublemakers." P'Pool attributed these
remarks to employees Arnold Laws, Vestal Anderson,
Ralph Trinett, Kay Morley, and Paul Street. However,
upon cross-examination, P'Pool became more specific as
to what he could recall the employees had stated to him
regarding their union sympathies. P'Pool testified that
employee Laws was a janitor and had told him on sever-
al occasions that he (Laws) "thinks the Union shouldn't
be in there." P'Pool was unable to state if these were
Law's exact words. P'Pool testified that employee An-
derson stated to him, "why do we have them here, they
don't represent the majority and so forth and so on";
however, again P'Pool was not sure of the exact words
of Anderson. P'Pool testified that Ralph Trinett's com-
ments were "probably expressed a little stronger per-
haps-in stronger language." P'Pool testified that em-
ployee Morley commented to him, "Why are they in
here. We don't need them-things of that nature."
P'Pool states that employee Street told him "probably
. . . to the effect that we didn't need the Union in there,
that they were causing problems." P'Pool testified that
he also received word from Plant Manager Gene Holt
and other supervisors who had heard remarks from em-
ployees regarding their union sentiments.
:' The testimony of P'Pool, Holt, Reed, and Taylor pertaining to com-
ments made to them by unit employees regarding their union sentiments
was uncontradicted except for the one comment attributed to employee
Bob Holly by Superintendent Taylor. I credit P'Pool, Holt, Reed. and
Taylor in this aspect of their testimony Employee Holly's denial of the
comment attributed to him I find to be more in the nature of not remem-
bering the incident instead of an outright denial.
THOMAS INDUSTRIES 651
652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Plant Manager Holt 3 testified that between the dates
of January 1, 1979, and October 19, 1979, he had heard
comments from unit employees regarding their feelings
toward representation by the Union. Holt testified that
Ralph Trinette stated to him, "The Union costs money,
comments such as why should the minority rule the ma-
jority." Holt further testified that Kay Morley spoke to
him about the Union saying, "that it cost him money, the
Union had, that they were troublemakers, always keep-
ing people upset." Holt states that employee Sheila Carr
told him she did not believe in unions. Holt testified that
Jack Yarber indicated to him he did not want to work in
a union plant, that "they were nothing but troublemak-
ers." Holt testified that Arnold Laws told him "all
unions do is take your money, and they don't do any-
thing for the people, always causing a lot of trouble."
Holt stated that employee Bill Trinette said unions had
never done anything for him and he did not want to be
represented. Holt testified that Karen Crowe had stated
she would quit before she would join a union, and Betty
Reed had said that "they were nothing but troublemak-
ers: they were all starting false rumors."
Roller Department Superintendent Fred Reed3 testi-
fied that prior to October 19, 1979, various employees
made comments to him regarding their feelings toward
union representation. Reed testified that Helen Anderson
had mentioned to him "she wished she had never fooled
with the Union, and that she was confused. They kept
her tore up all the time. She would like to get out of it."
Reed testified that Otis Holsclaw stated to him "they
[Union] kept him tore up all the time, and he didn't like
working under one." Reed also testified that William
Prinette commented to him that "he wanted to get out of
the goddam Union." Reed testified that Edward Woodby
had said "they could take the Union and stick it up their
ass." Reed further testified that Brenda Johnson told him
she could use her money better than the Union could,
and that she did not want to be working for a union.
Reed testified Peggy Davis told him she stayed confused
all the time, that they had her tore up all the time under
the Union, that she was sorry that she ever messed with
it, and she wanted to do something about it. Reed states
James Anderson told him "the Union just caused trouble
between the people and kept them stirred up all the
time." Reed testified employee Robert Garland told him
he was pressured into the Union and that if he had to
work under a union, he would quit. Reed also testified
that Karen Crowe said "[I]f she had to join the Union,
she would quit first-wouldn't work under that condi-
tion." Edna Woodby told Reed the Union caused confu-
sion with the people all the time and that her personal
feelings were that she felt they did not even need a
union. Reed testified that Oscar Moore said "he could
use his $8.00 per month better than the Union could,"
and that the Union had not done anything for him. Reed,
after reviewing his notes, testified that Keith Peters told
him, "that as soon as his time was up on the Union he
was going to resign." Reed testified that employee Frank
Tester had asked him several times why the minority of
the people tried to rule the majority. Reed testified that
Robert McKinney commented to him "that the Union
kept the people tore up and he wanted something done
about it, if he could do anything at all about getting out
of it." Ted Lowe told Reed he felt they did not need a
union and that the Union just caused trouble. Reed testi-
fied that Roger Miller stated to him "that the Union just
caused trouble between the people, and an argument and
uproar all the time . . . that we should do something
about it." Reed stated, based on his knowledge of the
people who worked for him and the comments made to
him, that a majority of the approximately 64 employees
of the roller department and warehouse under his super-
vision did not wish to have continued representation by
the Union.
Brush Department Superintendent Terry Taylor testi-
fied there were approximately 62 employees under his
supervision in the brush department and that various em-
ployees made comments to him, namely: Kenneth None
stated to him "the union didn't do him any good . . . the
union just caused trouble"; Ralph Trinette stated to him
"that the union wasn't doing him any good. It was cost-
ing him money . . . and . . . he didn't have no need for
one"; Earl Bennett stated to him "that he felt like the
Union cost him money, and.they just caused trouble be-
tween people"; Hope Banner stated to him "the Union
caused trouble between the people, and she didn't have
any need for one"; Bob Holly stated to him the Union
did not do him any good and wanted to know what he
could do about getting the Union out; Roger Miller
stated to him "the Union wasn't doing him any good,
and he was getting out of it because he could do some-
thing better with his money"; Jo Ann Crain said to him
"the Union wasn't doing her no good ... it caused trou-
ble . . . it looked like there would be some way that we
could get the Union out"; Roger Barker told him "it just
cost him money and that he had better things he could
do with his money." Taylor further testified Regina An-
derson stated to him that she did not have any need for a
union because she felt like she could speak for herself.
Taylor testified Phyllis Corley had asked him why
should she belong to a union when she could talk for
herself and would not have to pay anyone else to do it
for her; and, Sheila Carr had said to him that she did not
need a union, it always caused trouble between people.
Taylor testified James Laws told him all the Union was
good for was just to cause trouble. According to Taylor,
Keith Peters told him he was fed up with the Union and
didn't want anything else to do with it: and, Betty Reed
had told him she did not want to be represented by the
Union. Taylor testified Albert Jarnagin told him "he had
been paying the Union for nothing, and he was getting
out because he was paying them for nothing. They
wasn't helping him a bit"; and, Donna Webb had told
him she did not need a union because she could talk for
herself. Carolyn Broyles told Taylor she had no need for
a union, that she could speak for herself and because
they caused trouble between people. Taylor further testi-
fied Jeff Thomas told him "the Union wasn't doing him
any good"; and Kay Morley had stated to him "the
union didn't do him any good like it was just costing him
money, and he had also talked to different people that he
brought to my attention that he did not, you know, want
the Union." Taylor stated Paul Street told him he did
THOMAS INDUSTRIES 653
not want anything to do with the Union because they
stirred up trouble and he had talked with different ones
in his department that did not want anything to do with
the Union. Taylor also testified William Tester told him
"he felt like the plant would be better off without a
Union"; and Helen Wright told him she did not have any
need for a Union as she could speak for herself. And
Jannie Reese told Taylor, according to Taylor's testimo-
ny, she had no need for a union because it just caused
trouble. Taylor testified he passed this information along
to Plant Manager Holt. Taylor also testified there were
approximately 62 employees under his supervision and it
was his opinion that two-thirds of the brush department
did not want a union.
I find that certain of the unit employees made state-
ments to more than one supervisor. Those employees
who made statements to more than one supervisor were:
Ralph Trinette, Arnold Laws, Kay Morley, Paul Street,
Sheila Carr, William Prinette, Karen Crowe, Betty Reed,
Keith Peters, and Roger Miller. There were a total of 52
unit employee comments testified about by Respondent's
supervisors; namely, 5 by P'Pool, 8 by Holt, 16 by Reed,
and 23 by Taylor. Of the 52 total comments there were
10 duplications, thus reducing the total number of indi-
vidual employees stating an expression of union senti-
ment to the Respondent to 42. I find that the comments
attributed to employees Arnold Laws, Betty Reed, Helen
Anderson, Peggy Davis, James Anderson, Oscar Moore,
Kenneth None, Earl Bennett, Roger Miller, Roger
Baker, James Laws, Albert Jarnagin, and Jeff Thomas
did not convey a clear rejection of representation by the
Union but rather constituted nothing more than disavow-
al of financial support for the Union, or criticism of the
Union which cannot be equated with repudiation of it.
There were 124 unit employees on the list used for the
poll conducted on October 19, 1979. 1 find the state-
ments offered by Respondent to support its objective
basis for doubting the union majority status prior to its
conducting its poll on October 19, 1979, were insufficient
for such a basis. I do so based on the substance of certain
of the statements as set forth above together with the in-
sufficient number of statements attributed to unit employ-
ees.
Respondent would also rely on a decline in the
number of individuals on dues checkoff to support its
good-faith doubt of continued majority status by the
Union. Respondent's Exhibit I sets forth the percentage
of employees on dues checkoff in which it is indicated
that 63 percent of the employees were on checkoff in
January 1979, with a decline to 31 percent in October
1979. The exhibit indicates Respondent had known since
June 1979 that less than a majority of the employees par-
ticipated in dues checkoff. The Board has held that a
desire to no longer contribute to the financial support of
a union is not the same as indicating a desire to no
longer be represented by the Union. Dalewood Rehabilita-
tion Hospital, Inc. d/b/a Golden State Habilitation Conva-
lescent Center, 224 NLRB 1618 (1976). Therefore I con-
clude Respondent could not have validly placed reliance
on the decline in the participation by unit employees in
dues checkoff such as to form the objective considera-
tion to conduct its poll of October 19, 1979.
Respondent would also rely on the resignation of cer-
tain union officials in support of its objective consider-
ations. Plant Manager Holt testified, and his testimony
was uncontradicted, that Bill Prinette and Roger Miller
resigned from the negotiating committee and union stew-
ards Otis Holsclaw, Peggy Davis, and Vestal Anderson
resigned from the Union. Holt also testified Linda South,
a union vice president, quit her employment at Respond-
ent and stated her reason to Holt that she was being har-
assed by the Union. I am unpersuaded that these resigna-
tions detracted from the Union's representative status,
since there is no showing on this record that the Union
has not continued to function with various union offi-
cials. In fact the current union president and vice presi-
dent testified at the hearing. I therefore conclude that
Respondent could not have validly relied on the resigna-
tions of union officials as an objective basis for doubting
the Union's continued majority status such as to legiti-
mize its October 19, 1979, poll. Respondent would also
rely on employee resignations from the union as set forth
in Joint Exhihit 8; however, I conclude that resignations
from the Union do not equate to a desire to no longer be
represented by the Union and as such could not have
constituted the basis for a doubt of continued majority
status sufficient to warrant Respondent conducting its
poll of October 19, 1979.
Accordingly, Respondent did not have expressions of
antiunion sentiment from a sufficient number of employ-
ees to support a reasonable doubt that a majority of the
employees desired to be represented by the Union before
it conducted a poll of employee sentiment. I find all the
objective considerations raised by Respondent; i.e., em-
ployee sentiment, dues checkoff, union officials resigning,
and member resignations in the context of this case do
not constitute a reasonable doubt of continued majority
status by the Union sufficient to permit Respondent to
lawfully conduct a poll of its employees' union senti-
ment. Thus, I find Respondent violated Section 8(a)(l) of
the Act by the conduct of its poll and further find Re-
spondent may not use the unlawful poll as a basis for
withdrawing recognition from the Union. Mid-Continent
Refrigerated Service Company, 228 NLRB 917 (1977).
Assuming arguendo, that Respondent did have an ob-
jective basis for the conduct of a poll of its employees'
union sentiments on October 19, 1979, it failed to meet
the Struksnes Construction Co., Inc., 165 NLRB 1062
(1967), criteria for conduct of such a poll. Respondent
assembled all of its production and maintenance employ-
ees in the plant cafeteria on October 19, 1979. Respond-
ent's president and general manager, P'Pool, addressed
the assembled employees (the entire text of P'Pool's
speech is set forth elsewhere in this decision) in which
P'Pool stated, among other things, "[It] is our purpose in
being here today to determine whether the Union contin-
ues to represent a majority of our employees." Follow-
ing his speech P'Pool introduced to the assembled em-
ployees Mr. James Epps, a private practitioner and city
attorney for the municipality of Johnson City, Tennessee.
Epps impressed me as a very articulate and honest wit-
ness and I fully credit his account of the conduct of the
poll. Epps credibly testified that he read the following
THOMAS INDUSTRIES 53
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
speech without deviation except that he introduced him-
self as Jim Epps instead of James Epps:
As Mr. P'Pool stated to you, I am Mr. James Epps
and my only purpose in being here today is to con-
duct this election in order that each of you can ex-
press your own feelings on this Union matter by
secret ballot. I am not an employee of this company
and I will not be affected one way or the other as
to how you vote. My only concern is to make sure
that each of you have an opportunity to vote and
that your vote will be kept secret.
I have here a ballot for each of you, and I would
like for you to step forward one at a time, state
your name to me, take your ballot in the voting
booth, mark an "X" in your choice, and then return
and place it in the ballot box. You will need to
stand in line until the person in front of you come
out of the room before you go in to mark your
ballot. Do not sign the ballot or put any other mark
on the ballot that would indicate who you are. The
ballot is very simple. If you want the Company to
continue to deal with the Union, then mark your
ballot "YES." If you do not want the Company to
deal with the Union, then mark your ballot "NO."
After you have finished voting, I will then count
the ballots in your presence and give you the re-
sults. Are there any questions concerning the elec-
tion?
Before you go vote, the Company has asked me to
emphasize certain points to each of you:
1. The only purpose in our having this election is to
determine whether or not you want this Union as
your representative.
2. The Company has asked me to tell each of you
that no action will be taken against anyone as a
result of how you vote. This is your election and
you have the legal right to vote however you
please.
3. This will be a secret ballot election. No one will
ever know how you vote unless you voluntarily tell
them.
Do you have any questions before we begin the
election?
Mr. Paul Street, a member of the bargaining unit,
will sit with me as an observer.
Epps testified that upon completion of his reading of
the above speech Local Union President Carr came to
the front of the room and stated he had some remarks to
make to the assembled employees. Carr objected to the
proceedings by stating he thought they were illegal.
Epps told Carr his comments were noted. Carr remained
in the polling area throughout the entire poll.
The poll was taken in the Respondent's cafeteria
where Epps checked off each voter on a list of unit em-
ployees as the voter was identified by unit employee
Paul Street. Each voter was then given a ballot which
the employee took for marking into a first-aid room
which joined the cafeteria at the southeast corner of the
cafeteria a few feet from where Epps was seated at a
table checking off voters. Epps testified that some voters
fully closed the door to the first-aid room while voting,
others partly closed the door, while still others left the
door open. Well inside the first-aid room was a pulpit-
type stand at which place the voter could actually mark
the ballot. Epps had a ballot box for the voter to place
the ballot in after marking it. Epps permitted only one
voter to have a ballot in the first-aid room at any given
time and did not permit the next voter into the area until
the previous individual returned his ballot to the ballot
box. I do not credit that portion of Union President
Carr's testimony that unit employee Bob Holly paced up
and down in the voting area during the time employees
were voting. Holly testified that he voted in the polling
area and departed. Later, he returned to the doorway to
ask if he or anyone else would be permitted to attend the
vote count and then departed a second time returning
only after the voting had been completed. Holly im-
pressed me as an unbiased witness with no apparent
reason not to be telling the truth. I therefore credit
Holly's testimony that after he voted he left the polling
area.
Carr testified that he remained present in the polling
area for the entire time of the poll. He testified he re-
mained "sort of in the lunchroom entrance and the first-
aid entrance," and that he observed approximately 5 to
10 voters mark their ballots in a manner that he could
see how they voted. I do not credit Carr's testimony that
he observed voters marking their ballots. The voters pro-
ceeded inside the first-aid room to a pulpit-type lectern
where they marked their ballots and the direction of the
pulpit would place a voter's back to anyone looking into
the area even if the door to the room remained open.
Carr did not stand in the door but rather 3 to 5 feet from
the entrance to the room and the pulpit was well inside
the 12 foot by 10-foot room. Carr was also mistaken as
to whether Holly remained in the voting area. Addition-
ally, Carr testified that Epps read from a prepared state-
ment that Paul Street was representing the OCAW. A
reading of Epps' remarks indicates that Street was pres-
ent as a unit employee. I find Carr's account of the poll-
ing to be unreliable and discredit his testimony that he
observed 5 to 10 voters marking their ballots.
There were 124 employees on the eligibility list used
by Epps. The ballot used for the poll stated:
Do you wish to be represented for the purpose of
collective bargaining by the Oil, Chemical and
Atomic Workers Union?
Mark an "X" in the square of your choice
YES
NO
Upon the completion of the poll, Epps and Street tal-
lied the vote on a tally sheet and certified the results
which were: Total number of eligible voters 112; votes
for the Oil, Chemical and Atomic Workers Union 48;
votes against the Oil, Chemical and Atomic Workers
Union 64; void ballots, none; total ballots cast 112. As
THOMAS INDUSTRIES 655
noted above, there were 124 names on the list with 112
actually voting. I find the actual eligible voters to be 124
instead of 112. I do so based on the list which contained
124 names, which list neither party objected to. The par-
ties at the hearing stipulated that the marked ballots re-
flected the results indicated above. The ballots, eligibility
list, tally, and certificate of results had been, until the
day of the hearing, in a safety deposit vault in a local
bank under the control of Epps.
The Board has adopted certain specific criteria and
standards that must be observed in any polling of em-
ployees' union sympathies. In Struksnes Construction Co..
Inc., supra, the Board adopted the following standards:
Absent unusual circumstances, the polling of em-
ployees by an employer will be violative of Section
8(a)(1) of the Act unless the following safeguards
are observed: (1) the purpose of the poll is to deter-
mine the truth of a union's claim to majority, (2)
this purpose is communicated to the employees, (3)
assurances against reprisals are given, (4) the em-
ployees are polled by secret ballot, and (5) the em-
ployer has not engaged in unfair labor practices or
otherwise created a coercive atmosphere.
P'Pool's speech, as well as Epps' comments prior to
the poll, indicate that the purpose of the poll (not to be
confused with the basis for taking the poll) was to deter-
mine the validity of the majority status of the Union and
the purpose was communicated to the employees. Epps
stated: "The only purpose in our having this election is
to determine whether or not you want this Union as
your representative." P'Pool stated in pertinent part in
his speech "our purpose [is] . . . to determine whether
the Union continues to represent a majority of our em-
ployees." I conclude that Respondent met the first and
second of the Struksnes requirements as outlined above.
Epps conveyed the following assurance to the employees
just prior to the poll: "The Company [Respondent] has
asked me to tell each of you that no action will be taken
against anyone as a result of how you vote, this is your
election and you have the legal right to vote however
you please." I conclude that assurances were given.
However, this must he viewed in light of my finding that
P'Pool conveyed to the unit employees what I have con-
cluded to be a promise of benefit in his speech as set
forth elsewhere in this Decision. I find that the balloting
as earlier described was conducted in a manner such as
to insure secrecy of the balloting by the employees. I
find the poll was conducted in disregard of Struksnes re-
quirement number five. As more fully set forth else-
where in this decision, I have concluded that Respond-
ent's president and general manager, P'Pool, promised
Respondent's employees benefits to reject the Union in
his speech to the assembled employees just prior to the
poll being taken. In addition, as elsewhere discussed, Re-
spondent threatened its employees with reprisals because
they attempted to file grievances and verbally repri-
manded an employee because the employee filed or at-
tempted to file a grievance with Respondent. It is con-
cluded that Respondent created a "coercive atmosphere"
by its misconduct and as such I conclude Respondent's
poll of its employees' union sympathies on October 19,
1979, was in violation of Section 8(a)(1) of the Act, even
if a valid basis for conducting the poll had been estab-
lished.
F. The Refusal To Bargain
The complaint alleges and Respondent admits that on
November 5, 1979, the Union requested, and on Novem-
ber 7, 1979, Respondent refused, to bargain with the
Union as the exclusive representative of the employees in
an appropriate unit. There was a current collective-bar-
gaining agreement in effect at the time of Respondent's
refusal to bargain. The contract had an expiration date
by its terms of January 11, 1980. Respondent continued
to honor the contract until its expiration. The parties
stipulated that on May 18, 1977, the Board had certified
the Union as the exclusive collective-bargaining repre-
sentative of all the employees in the unit described else-
where in this Decision. It is well established that a certi-
fied union, upon expiration of the first year following
certification, enjoys a rebuttable presumption that its ma-
jority status continues. Celanese Corporation of America,
95 NLRB 644, 671-672 (1951). The existence of a prior
contract raises a dual presumption of majority: first, that
the union had a majority status when the contract was
executed; and second, that the majority continued
through the life of the contract. Shamrock Dairy, Inc..
Shamrock Dairy of Phoenix, Inc., and Shamrock Milk
Transport Co., 119 NLRB 998, 1002 (1957), and 124
NLRB 494 (1959), enfd. 280 F.2d 665 (D.C. Cir.), cert.
denied 364 U.S. 892 (1960). These presumptions may be
overcome by evidence establishing the union no longer
enjoys majority representative status. Also, an employer
may refuse to bargain, without a showing of a loss of
majority by the union, if it relies on a good-faith and rea-
sonably grounded doubt of the union's continued major-
ity status. Terrell Machine Company, 173 NLRB 1480-81
(1969), enfd. 427 F.2d 1088 (4th Cir. 1970). As to the
second of these, namely, "good faith doubt," there are
two requirements necessary in establishing such a defense
which are the asserted doubt must be based on objective
considerations and must be raised "in a context free of
unfair labor practices. Nu-Southern Dyeing & Finishing,
Inc., 179 NLRB 573, fn. (1969), enfd. in part 444 F.2d
I1 (4th Cir. 1974).
Applying these principles to the instant case, it is clear
when, on November 7, 1979, Respondent notified the
Union that it would not participate in renegotiation of
the current contract, which had approximately 2 months
to run, the Union was entitled to a presumption of ma-
jority status. It was therefore Respondent's burden to
show either a loss in fact of majority status by the Union
or that Respondent had, on the basis of objective facts, a
reasonable doubt of that status. For the reasons set forth
elsewhere in this decision and further discussed here, I
conclude that Respondent failed to rebut the presump-
tion of the Union's continued majority representative
status. Respondent did not have sufficient objective con-
sideration to constitute a good-faith doubt of the contin-
ued majority representative status of the Union as set
forth under the section E of this decision. However, as-
THOMAS INDUSTRS
656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
suming, arguendo, that Respondent had a basis for con-
ducting the poll on October 19, 1979, of its employees'
union sentiment, it may not rely on the results of that
poll as it was not conducted in a context free of unfair
labor practices. The unfair labor practices of Respond-
ent; i.e., promise of benefits to reject the Union, threats
of reprisals for attempting to file grievances, and a verbal
reprimand for filing a grievance are of the nature that
would tend to produce disaffections from the Union. It is
well settled that an employer may not negate its obliga-
tion to bargain by relying on any loss of majority status
attributable to its own unfair labor practices. Franks
Bros. Co. v. N.L.R.B., 321 U.S. 702, 704-705 (1944).
Respondent attempted to call some 65 to 70 additional
employee witnesses at the hearing to conduct a poll of
sorts of the employees' union sentiments by inquiring of
the employee if, on October 18, 1979 (I day prior to Re-
spondent's poll), they wished continued representation
by the Union and if that sentiment had changed in any
way by November 9, 1979 (the day Respondent refused
to bargain). I disallowed the calling of the witnesses by
Respondent in that the after-the-fact subjective intent of
the employees is irrelevant to establish the good-faith
basis of the Respondent "objective considerations."
Accordingly, in view of the foregoing I find that the
Respondent's assertion that its refusal to bargain was
predicated on a good-faith and reasonably grounded
doubt of the Union's majority status is not supported by
the record. I therefore find that the Respondent was ob-
ligated to continue bargaining with the Union and, by re-
fusing to do so and withdrawing recognition from the
Union, it violated Section 8(a)(5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The unfair labor practices found are unfair labor prac-
tices affecting commerce and tend to lead to labor dis-
putes burdening and obstructing commerce within the
meaning of Section 2(6) and (7) of the Act.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent has violated Section 8(a)(1) of the Act
by threatening its employees with reprisals because they
attempted to file grievances; verbally reprimanding an
employee because the employee filed grievances, prom-
ised its employees economic benefits to reject the Union,
and by conducting a poll of its employees' union senti-
ments.
4. Respondent has violated Section 8(a)(5) and (1) of
the Act by withdrawing recognition from, and refusing
to bargain in good faith with, the Union from and after
November 7, 1979.
THE REMEDY
Having found that Respondent has violated the Act in
certain respects, I shall recommend that Respondent be
required to cease and desist therefrom. Affirmatively Re-
spondent will be required to continue to recognize and,
upon request, bargain with the Union, and post an appro-
priate notice.
Upon the foregoing findings of fact and conclusions of
law, and pursuant to Section 10(c) of the Act, I issue the
following recommended:
ORDER4
The Respondent, Thomas Industries, Inc., Johnson
City, Tennessee, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with the Union as
the exclusive representative of the following appropriate
unit:
All full-time and regular part-time production and
maintenance employees employed by Respondent at
its Johnson City, Tennessee, facility, including all
warehousemen, shipping and receiving clerks and
janitors, but excluding all office clerical employees,
salesmen, professional employees, temporary em-
ployees, guards, and supervisors as defined in the
Act.
(b) Promising employees benefits if they reject the
Union as their collective-bargaining representative.
(c) Verbally reprimanding our employees because they
file grievances.
(d) Threatening our employees with reprisals if they
attempt to file grievances.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
Section 7 rights.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Upon request, bargain collectively with Oil,
Chemical and Atomic Workers International Union,
AFL-CIO, as the exclusive collective-bargaining repre-
sentative of its employees in the aforesaid unit, and if an
agreement is reached, embody the same in a signed con-
tract.
(b) Post at its Johnson City, Tennessee, facility copies
of the attached notice marked "Appendix."s Copies of
said notice, on forms provided by the Regional Director
for Region 10 of the Board, after being duly signed by
Respondent's representative, shall be posted by it imme-
diately upon receipt thereof and be maintained by it for
60 consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
4 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ilgs, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
5 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted by
Order of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
THOMAS INDUSTRIES 657
spondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(c) Notify the Regional Director for Region 10, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.